Asset Recovery Agency v Stennett et Al

• Jurisdiction: Jamaica
• Judge: Campbell J
• Judgment Date: 06 September 2017
• Neutral Citation: [2017] JMSC Civ 120
• Docket Number: CLAIM NO. 2012 HCV 03222
• Court: Supreme Court (Jamaica)
• Date: 06 September 2017

[2017] JMSC Civ 120

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

CIVIL DIVISION

Campbell, J.

CLAIM NO. 2012 HCV 03222

Between

Asset Recovery Agency

Claimant/Respondent

and

Ouida Desrene Stennett

1 ^st Defendant/1 ^st Applicant

and

IPS International LLC

2 ^nd Defendant/2 ^nd Applicant

and

Milton Clarke

3 ^rd Defendant

Mrs. Susan Watson Bonner and Mrs. Charmaine Newsome instructed by the Asset Recovery Agency for the claimant/respondent.

Mr. Brian Barnes instructed by Brian J. Barnes & Associates for the defendants/applicants.

Injunction — Interim Injunction — The Proceeds of Crime Act — Restraint Order — Application to Discharge Restraint Order — Application for Extension of Restraint Order — Civil Recovery Order — Standard of Proof — Balance of Probabilities — Good Arguable Case — Criminal Trial — Not Guilty Verdict — Dismissed for Want of Prosecution.

IN CHAMBERS

Campbell J

;

1 The claimant/respondent, the Asset Recovery Agency (“Agency”), is established pursuant to Section 3(1)(a) of the Proceeds of Crime Act (“ POCA”) as the Financial Investigation Division (“FID”) of the Ministry of Finance and Planning. Section 3(1)(4) of POCA provides that the Agency shall have the functions conferred on it by the Act or another Act, and that it “may do anything (including the carrying out of investigations) that is appropriate to facilitate, or incidental to, the exercise of its functions.”

2 The 1 ^st defendant/applicant, Ouida Desrene Stennett, is the sole Director of the 2 ^nd defendant/applicant, and a Director of March Communications. The 2 ^nd defendant/applicant, IPS International LLC (IPS), was incorporated in Charlestown, Nevis. Its registered address is Hunkins Waterford Plaza, Main Street, Charlestown, Nevis. Credit report issued from Belize Bank International (“Belize Bank”) states that IPS maintains a corporate account with Belize Bank, in which the 1 ^st defendant/applicant, Ms. Stennett, is the sole signatory. The 3 ^rd defendant, Milton Clarke, is of Belmont District, St. Andrew. Entry of Appearance was entered, for and on behalf of Mr. Milton Clarke on the 2 ^nd October 2012.

3 Between 2009 and 2010, the 1 ^st defendant/applicant was arrested and charged with eighteen (18) counts of Fraudulent Conversion contrary to the Larceny Act, two (2) breaches of the Securities Act and Money Laundering contrary to Proceeds of Crime Act.

4 Consequently, a Without Notice Application for a Restraint Order filed on 8 ^th June 2012 was made by the claimant/respondent. The application was made pursuant to Sections 32 and 33 of POCA. On 10 ^th July 2012, the Honourable Ms. Justice Beckford having heard the application, granted the restraint order preventing the defendants, their servants or agents or however otherwise from disposing of, causing or allowing the disposal of and/or dealing with assets as listed in the application until the conclusion of legal proceedings including Appeals. The Agency gave an undertaking to abide by any order the Court may make as to damages, should any of the defendants or a third party suffered damages that the Agency ought to pay. The interim restraint order was extended on several occasions.

5 Ms. Stennett was found not guilty on 29 ^th April 2014, in relation to all the charges of Fraudulent Conversion contrary to the Larceny Act, and those counts were discharged. The Agency filed its Claim Form and Particulars of Claim for civil recovery on 3 ^rd March 2015.

6 On 13 ^th January 2015, the charges of Money Laundering, Dealing in Securities without a Licence and Acting as a Securities Agent without a Licence were dismissed for a want of prosecution on the contested application of the 1 ^st defendant/applicant.

7 On the 6 ^th February 2015, a Notice of Application for Court Orders was filed pursuant to Part 11 of the Civil Procedure Rules, on behalf of Ms. Stennett and IPS, for an Order that the Interim Restraint Order made on the 10 ^th July 2012 against the applicants be discharged or set aside. The Application was grounded on the Agency's allegations that Ms. Stennett and IPS had engaged in transactions of an unlawful nature and came into properties that were acquired using criminal proceeds for which the applicants were charged. On trial the applicants were found not guilty of eighteen (18) counts. The remaining counts were dismissed for want of prosecution.

8 The underlying basis of the claimant's/ respondent's Interim Restraining Order was the charge for the Money Laundering offence in the Criminal Court under the Proceeds of Crime Act. The Money Laundering having been dismissed; this holding Order has lost its usefulness.

9 The application was supported by an affidavit by Ms. Stennett dated the 5 ^th February 2015, in which she stated;

• • At paragraph 3; “The case against me came on approximately fourteen (14) occasions between August 3, 2010 and June 2, 2014.”

• • At paragraph 4; “Between August 3, 2010 and April 29, 2014 shy of four years I had attended court about 40 times in between mentions and trial dates.”

• • At paragraph 11; “ I have been living under the severe strictures of the Interim Restraining Order since July 2012. I have been unable to deal with my Bank Accounts and my properties notwithstanding the fact that I have committed no crime.”

• • At paragraph 13; “ The investigations by the police after a lengthy trial and an application to the Court has come to naught. The Affiant's belief is now unsupported and is of no effect.”

• • At paragraph 18; “There is now no basis on which to continue this interim restraining order which in essence was a holding action to be derived from a money laundering conviction. I did not commit any crime and was confident that his day would come.”

10 The Agency filed an Affidavit of Desmond Robinson, a Forensic Examiner and an Authorised Financial Investigator dated 23 ^rd February 2015. It was served on Counsel for the applicants the following day. At paragraphs 3 and 6 it was stated;

• “[3] I have conduct of a civil recovery investigation in respect of property believed to be recoverable property obtained by the 1 ^st Respondent, Ouida Desrene Stennett, and the 2 ^nd Respondent IPS International, LLC who unlawfully operated an unregulated financial organisation, and the 3 ^rd Respondent, Milton Clarke, who is believed to be the beneficiary of a tainted gift.

• “[6] I also wish to refer to and rely on my affidavit filed on the 8 ^th June, 2012 at the time of the application for the restraint order against the Defendants.”

11 Based on the investigations twenty-two (22) persons made reports to the police in relation to monies invested with the 1 ^st and 2 ^nd defendants/applicants between 2007 and 2008. The contracted rate of return varied from 60 per cent to 144 percent per annum. The investigations further reveal that the parties neither received the interest promised nor were their principal sums returned to them.

12 The Affidavit listed the contributors and the respective principal amount invested, which amounted to a total of $ USD 642,698.00. At paragraph 10, some of the investors reported that they were instructed by the 1 ^st defendant/applicant to send funds being invested with her to the Belize Bank International LLC. to a corporate account maintained there by the 1 ^st defendant/applicant, in the name of the 2 ^nd defendant/applicant.

13 It was alleged that a property situated Lot/Apt 8, Shaltell Close, which was acquired with mortgage lien of $1,710,000.00, the outstanding sum was discharged, with what Mr. Robinson describes as ‘ funds… were derived from the 1 ^st respondent from her involvement in the unregulated financial organisation’. The property was transferred by way of a gift to Milton Clarke. The Agency asserts that they believe the property is associated property and its transfer to Mr. Clarke constitutes the transfer of a tainted gift.

14 On 25 ^th February 2015, Gayle J, heard the application by Ms. Stennett to discharge the interim restraint order. The Court ordered that the criminal cases that were dismissed for want of prosecution, in Half Way Tree Resident Magistrate Court be disposed of with a final order. It was also ordered that the restraining order made on the 10 ^th July 2012, be extended for seven (7) days.

15 On the 2 ^nd March 2015, the Agency filed a Notice of Application for Court Orders, with a hearing scheduled for the 27 ^th March 2015, applying for several banks including Belize Bank, to provide the applicant with the balances in all the accounts under restraint pursuant to the Interim Restraint Order granted on the 10 ^th July 2012.

16 On March 3 ^rd, 2015, the Agency filed and served a Claim Form with Particulars of Claim, which claimed against all the defendants, Civil Recovery pursuant to Section 58 of POCA in relation to the assets set out in the tables, identified as being owned by the defendants and in trust for the 1 ^st defendant by the 2 ^nd and 3 ^rd defendants. The recoverable real estate particularised, were six (6) properties, four (4) were registered in the name of IPS, one (1) in the name of Milton Clarke, one (1) in trust with Ms. Stennett as the sole beneficiary. Six (6) of the properties were acquired during 2007. Three (3) were acquired, the same day, August 17 ^th 2007. The balances in the five (5) recoverable bank accounts are listed as unknown.

The Relevant Law

17 Section 32(1)(a)(ii) of POCA provides;

“The court may make a restraint order if any of the following conditions are satisfied—

• (a) there is reasonable cause to believe that an alleged offender has benefited from his criminal conduct and –

  • i. A criminal investigation has stared in Jamaica with regard to the offence;

  • ii. Proceedings for the offence have been commenced in Jamaica and have not been conclude; or

  • iii. The enforcing authority has made an application under section 5, 20, 21, 26, or 27, which has not been...