The Office of the Director of Public Prosecutions (ODPP) is set to challenge the dismissal of the case against four executives of Symbiote Investments Limited, which operates as telecommunications brand Caricel.

The company was accused of using a spectrum without a licence.

Parish Judge Maxine Ellis threw out the matter on Friday at the Kingston and St Andrew Parish Court on the grounds that she does not believe the Crown will be able to prove the case.

However, the ODPP, which was prosecuting the matter, will be filing an appeal on the basis that the judge made an error of law in her ruling.

“We are going to be filing documents to pursue an appeal against all the judge’s orders, ” DPP Paula Llewellyn told the Jamaica Observer on Friday, adding that she has been thoroughly briefed by the assistant DPP who handled the matter.

“We are making haste to make sure that we put the paperwork together to support our notice of appeal, which will be filed in short order early next week … So we will be working around the clock over the weekend to put our paperwork together, to put ourselves in the best position to file our notice of appeal in the parish court,” she said.

The four Symbiote officials — Chief Executive Officer Lowell Lawrence; company Secretary Minette Lawrence; Director Natalie Neil; and director of another Symbiote brand, Xtrinet Limited, Livingston Hinds — were charged in February 2020 after they were accused of breaching the Telecommunications Act by broadcasting without a spectrum licence.

The specific charges were conspiracy to use a spectrum without a licence; use of a spectrum without a licence under the Telecommunications Act; and failure to comply with a directive of the Spectrum Management Authority.

Last week Tuesday, when they appeared in the Kingston and St Andrew Parish Court, the lawyers for the company executives had made an application that the charges against the defendants be dismissed, arguing that this was an abuse of process. They had noted, for example, that there is no charge of conspiracy at the common law.

The assistant DPP who handled the case told the Jamaica Observer that in response to the abuse of process application in court on Friday, the Crown had submitted the allegations and written submissions.

She said when the judge heard the Crown’s arguments regarding evidence it would rely on to prove the charges against the four accused, the judge asked if some of the charges would be withdrawn. When the prosecutor indicated they would not, the judge said that she would not be granting the indictment order for the trial to start.

“Mind you, no application was made for indictment order by the Crown, because we were only dealing with the abuse of process application. But she ruled that the order wasn’t granted because the Crown doesn’t have enough evidence to support the charge,” the assistant DPP said.

“She said the allegations do not support the charge. So none of the witnesses came and testified. She just [made the decision] based on the Crown’s synopsis of the case,” she said.

The assistant DPP said the judge also ruled on the abuse of process application, and that the proceedings are to be stayed.

“[In] the abuse of process application, the defence was saying that the charges on the indictment were not offences in law, and they were saying that there was no evidence to support the charges. So the order that was asked for, following that application, is that the criminal proceedings, because of the abuse of process … be put on a hold or halted. The proceedings couldn’t continue because of this abuse,” she said.

The Crown counsel said the judge also ordered the immediate return of all the company’s equipment seized by the police in February 2020.

Symbiote has been battling with the Government and competing telecoms providers since being awarded a spectrum licence in 2015. The licence was eventually withdrawn in 2018.

Symbiote took the matter to the Appeal Court, but in 2019 the court denied its application for leave to apply for judicial review of the decision to revoke the licence. The court also refused the company’s request for a temporary stay, until it makes an application for permission to appeal to the Privy Council in London.

In December 2018, Caricel placed all its licensed facilities and operations under the immediate control of Xtrinet Limited, a locally licensed carrier and service provider. Notification of the arrangement was provided to the Office of Utilities Regulation (OUR) by correspondence that same month.

In April 2019, the OUR advised that, as a result of the Court of Appeal’s decision on March 29, 2019, Symbiote was not authorised to own or operate a facility, nor is it permitted to provide telecommunications or other specified services in Jamaica, as defined in the Telecommunications Act, to the public.