BASSETERRE, St. Kitts - NEWRISH NITAL, the once popular Mathematics teacher, Chemist and host of the ZIZ television programme ‘Ask Nital’, walked out of the Basseterre High Court this afternoon (June 11) a free man, smiling and being congratulated by persons in the legal profession.
He had appealed his conviction and sentence and appeared before the Justices of Appeal at the Eastern Caribbean Supreme Court of Appeal.
He was convicted of three counts of fraud by a 12-member jury on June 15, 2011 for the April 1, 2 and 4, 2008 incidents and sentenced to three years imprisonment on July 21.
He is said to have presented several United States Postal Service International Postal Money Orders to a cashier at the Basseterre Post Office with intent to defraud.
He obtained EC$3 710, EC$1 855 and EC$3 710 on April 1, 2 and 4, respectively, from the cashier by presenting the money orders that later turned out to be fraudulent.
The three money orders totalled EC$9 275.
Nital was also said to have had five US$700 money orders and had taken them to the postal office on the said dates.
On March 12, 2013, during the last sitting of the Court of Appeal in the Federation, Nital was granted bail in the amount of EC$40 000 with two sureties pending his appeal.
At trial, Nital was represented by Attorney-at-Law Anthony Johnson but he represented himself at his Appeal hearing today. He presented a remarkable argument, citing cases to assist in his debate.
Among his grounds for appeal were:
• The learned trial judge refused to withdraw the case from the jury at the close of the prosecution's case on the submission being made that there was no evidence;
• The trial judge inadequately directed the jury when he failed to give direction regarding good character; and
• The trial judge's summation was grossly unbalanced and skewed.
Nital argued that the trial judge should have allowed the no case submission because the prosecution did not prove that he was aware of committing an offence.
He said the components of the charge suggested that he acted knowingly and that "there was no way of indicating or showing that I knowingly presented something that was false".
He further argued that the Court relied on the "cap and gown analogy" which did not fit the circumstances of his case, because the virtual complainant stated that nothing about him seemed odd when he cashed the cheques on the dates in question.
The mathematics teacher submitted that there should have been a process of due diligence which would have alerted both him and the Post Office of the fraudulent cheque that was presented.
He was told by the Court that his submission was one that was "very creative".
Nital said the fact that he was allowed to cash the cheque, he was left to assume that it had already gone through the due diligence process.
He explained that he had previously taken some of the money orders to the Royal Bank of Canada and was told that they had to go through a due diligence process to ensure authenticity, and when alerted that the cheques were not genuine he asked the bank to contact the police so they could inform the Post Office in the event that there be others who were victims of a scam like he was.
With regards to his good character, Nital told the Court that the trial judge did not direct the jury on that, and had it been directed it may have had an impact on their decision.
He was told by the Court that his counsel is the one who should have raised the issue of his good character as it was his responsibility. And that if his counsel had done that, it would have then been the duty of the trial judge to direct the jury on it.
Nital rebutted that even though his counsel did not speak of his good character directly, it was clearly shown in the evidence that was presented to the Court.
"I took the stand under oath and I gave the police a statement, so there was evidence of it," he said.
He went on to state that the evidence presented in total would have spoken to the fact that he showed disappointment when he was told that the cheques were not good.
A Justice rebutted: "Showing disappointment is not good character, it merely shows a reaction to something."
The good character point was debated at length, and Nital maintained that the jury might have been impacted if a good character direction was given.
Nital also argued that the trial judge made excessive and inappropriate intervention while the defence presented its case, and had expressed hostility towards him, but was told by the Court that there was no merit.
On the ground that the trial judge's summation was unbalanced and skewed, Nital argued that the trial judge had implied that more weight be given to the prosecution's witnesses rather than the defence's.
He further argued that the trial judge placed emphasis on the discrepancies and cited a few which, he said, were misleading to the jury.
He was however told by a Justice that they were "not satisfied that the one or two instances in the entire summation were enough to facilitate the ground of it being grossly unbalanced and skewed”.
Nital then argued that no emphasis was placed on the fact that the then Chief of Police gave evidence on his behalf, but was told by the Court that they were still not able to see how that has any impact on the ground that the trial judge's summation was unbalanced.
With regards to his sentence, Nital argued that there were crimes of the same and similar nature to his that occurred around the same time and the persons involved received far less a punishment than he did, which was unfair.
He made mention of cases where the guilty parties were sentenced to serve only a few months in prison while others were ordered to pay fines.
He also mentioned that while in prison he did make good use of his time, as he created a programme and taught inmates Mathematics, English and Accounts at CXC level and had a 90 percent pass average in examination.
Nital was highly commended by the Justices for his self-representation which was described as "quite impressive".
Crown Counsel Garth Wilkin, when asked to respond on the good character ground, argued that the Court was proper in not giving direction on good character since it was not raised by Nital's counsel.
He stated that the lack of the good character direction did not have any impact on the jury's guilty verdict because the evidence presented by the prosecution in and of itself was sufficient to convince the jury of guilt and secure a conviction.
The Justices of Appeal debated at length with Wilkin on whether or not the lack of good character direction could have had any bearing on the jury's decision.
Although three of his four grounds of appeal were found to be of no merit, the Justices weighed heavily on the fact that he had no previous conviction and he was a man of good character was never brought out at trial and only mentioned at his sentencing hearing.
They stressed on the fact that an issue of that nature should have been raised at trial by the defence's counsel but also debated that the trial judge could have directed the jury on it nonetheless. They also weighed heavily on whether or not it impacted the jury.
They also considered Nital’s three-year sentence on each count and whether or not it was excessive when compared to the judgments of others who had the same and similar cases.
They further considered if a retrial would be deemed fit given the fact that he had already served the majority of his sentence.
They, in the end, upheld Nital's appeal and quashed his conviction and sentence.
Nital left the Basseterre High Court a free man with a clean criminal record. Had he not appealed, Nital would have completed his sentence next month (July).
