(Jamaica Gleaner) Mis-steps by Jamaica鈥檚 environment regulatory agency that caused the collapse of a criminal case against a company accused of polluting a river, resulting in a fish kill, should serve as a 鈥渢eachable moment鈥 for government entities with investigative or prosecutorial functions, a prominent attorney has warned.
The warning by Peter Champagnie, King鈥檚 Counsel, came hours after chief prosecutor Paula Llewellyn publicly explained the decision by her office to discontinue the case against Wisynco Limited for breaching Section 11 of the Wild Life Protection Act.
The outcome in the Wisynco case, he argued, should drive home the point that like the police, agencies with prosecutorial or investigative functions must ensure that they consult with the Office of the Director of Public Prose-cutions (ODPP) about the 鈥渋ngredients鈥 that are necessary for a viable case.
鈥淚 find it alarming that any state agency, an established one such as NEPA (National Environment and Planning Agency) 鈥 who have prosecutorial powers would not want to consult or get the advice of the director of public prosecutions before proceeding in such an important matter as this,鈥 he told The Gleaner on Tuesday.
鈥淚t suggests to me that there is a disconnect between an appreciation of their role and the importance of their role and the fact that they can rely on the chief prosecutor鈥檚 office, and if that is allowed to continue, you are going to have matters like this happening again.鈥
The charge against Wisynco is the second high public-interest case related to the pollution of the Rio Cobre that has collapsed in recent months.
In May, Trade Winds Limited was acquitted of criminal charges after lawyers for the NEPA told a judge that they were offering no further evidence against the company in a controversial move that triggered wide public backlash.
The acquittal followed a confidential mediation settlement, which also included a non-disclosure agreement.
Jamaica Environment Trust (JET), a non-government watchdog group, slammed the latest development as a 鈥渄isgrace鈥.
鈥淚t鈥檚 a disgrace that a pollution incident received such scant regard from our environment regulator,鈥 Dr Theresa Rodriquez Moodie, chief executive officer of JET, told The Gleaner yesterday.
The charge against Wisynco was related to the pollution of the Rio Cobre, in St Catherine, in July 2023. It was filed by lawyers for the NEPA, the enforcement arm of the National Resources Conservation Authority.
The NEPA was acting on a general fiat granted by the ODPP that allowed its attorneys to 鈥渁ctively associate with the prosecution鈥 of the case.
The charge followed a report received on July 18, 2023, of a pipeline leakage that caused officers from the NEPA to visit the Rio Cobre in the vicinity of Dyke Road, where they reportedly observed that 鈥渇luid was gushing from the pipeline into the river鈥, according to the ODPP.
The pipeline was used to connect the two sides of the Wisynco plant, the ODPP noted, citing a report by the NEPA.
The Wisynco plant manager was alerted to the break in the pipeline and indicated, after a telephone call, that the pumps would be turned off.
The trial commenced on October 8 last year in the St Catherine Parish Court and was being prosecuted by the NEPA via the fiat from the ODPP, the country鈥檚 prosecutorial authority. However, the case collapsed on Monday, and Wisynco was acquitted after prosecutors Dwayne Green, an assistant director of public prosecutions, and Kemar Setal, Crown Counsel, indicated in court that they were offering no further evidence against the company.
Llewellyn, in a public statement on Tuesday, said a review of the case file prepared by the NEPA revealed that a number of critical evidentiary 鈥渋ngredients鈥 were missing.
As an example, she said no samples of water were taken by the NEPA from the area beneath where the fluid was seen gushing into the river for testing to determine whether it fell within the definition of trade effluent, industrial waste, sewage, noxious or polluting matter.
Depositing trade effluent, industrial waste, sewage, noxious or polluting matter in any harbour, river, stream, canal, lagoon, or estuary containing fish is a criminal offence under Section 11 of the Wild Life Protection Act.
Similarly, Llewellyn said no sample was taken by the NEPA from the source of the pipeline attached to Wisynco that was seen from the break in the pipe that was discharging fluids into the river for testing.
鈥 The substance that flowed through the pipe was never scientifically identified, as a matter of law, as a substance capable of falling within the definition of trade effluent, industrial waste, sewage, noxious or polluting matter,鈥 the statement by the chief prosecutor read.
鈥 Therefore, the prosecution was not in any position to evidentially prove what its character and nature was.鈥
After perusing the explanation provided by the ODPP, the JET CEO pointed the finger at the NEPA for the collapse of the case.
鈥淣EPA failed to carry out even the most basic investigative steps, leaving no usable evidence, the case dropped, and no one held accountable,鈥 said Rodriquez Moodie.
Noting that the Rio Cobre is a vital source of water for thousands of Jamaicans, she said the river must never be treated as a dumping ground 鈥渞egardless of whether the pollution incident was accidental or deliberate鈥.
Champagnie, a noted criminal defence attorney, said he agreed with the ODPP鈥檚 decision to end the case against Wisynco and warned that inactions, as outlined by the ODPP, could come at a significant cost to taxpayers through a malicious prosecution lawsuit.