Carol Ann Lawrence-Austin v The Assets Recovery Agency
| Jurisdiction | Jamaica |
| Judge | Edwards JA,McDonald-Bishop JA |
| Judgment Date | 06 May 2022 |
| Neutral Citation | JM 2022 CA 054 |
| Docket Number | SUPREME COURT CIVL APPEAL NO 10/2018 |
| Court | Court of Appeal (Jamaica) |
[2022] JMCA Civ 18
THE HON Mrs Justice McDonald-Bishop JA
THE HON Miss Justice Edwards JA
THE HON Mr Justice D Fraser JA (AG)
SUPREME COURT CIVL APPEAL NO 10/2018
IN THE COURT OF APPEAL
Written submissions filed by Ballantyne Beswick & Company for the appellant
Written submissions filed by Miss Alethia Whyte for the respondent
I have read, in draft, the judgment of my learned brother, D Fraser JA (Ag). I agree with his reasoning and conclusion and have nothing to add.
I, too, have read the draft judgment of my learned brother, D Fraser JA (Ag) and I agree with his reasoning and conclusion.
D Fraser JA (AG)
This is a procedural appeal against the decision of Laing J (‘the learned judge’), delivered on 16 January 2018, in a written judgment cited as Carol Ann Lawrence — Austin v The Assets Recovery Agency [2018] JMCC COMM. 05, in which he ordered that fixed date claim number 2016 CD 00313, brought by the appellant, Mrs Carol Ann Lawrence-Austin, be stayed pending the determination of criminal proceedings in the Saint Ann Parish Court. The appellant is charged in those proceedings for offences under the Proceeds of Crime Act, 2007 (‘ POCA’) and at common law. The learned judge also ordered that there should be liberty to apply, and that costs of the application for the stay should be costs in the claim. He also granted the appellant leave to appeal.
On 15 July 2011, by way of claim number 2011 HCV 00410, the respondent, The Assets Recovery Agency (‘ARA’), pursuant to money laundering, forfeiture and civil recovery investigations involving the appellant and other persons, obtained from the Supreme Court a restraint order for properties, including the following owned by the appellant:
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(i) Lot 47 Spot Valley, Charlotte Close, Rosevale Estate in the parish of Saint James, comprised in certificate of title registered at volume 1404, folio 677 of the Register Book of Titles;
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(ii) Lots 42, 43 and 44 Ironshore, Little River in the parish of Saint James, comprised in certificate of title registered at volume 1376, folios 549–551 of the Register Book of Titles;
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(iii) 2004 Grey Toyota Corolla motor car; and
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(iv) 2000 Black Ford 150 motor truck.
In 2012, the appellant and others were charged before the Resident Magistrate's Court for the parish of Saint Ann, as it was then known, for breaches of sections 92 and 93 of the POCA and offences at common law.
On 18 May 2015, in claim number 2015HCV02588, the Office of the Director of Public Prosecutions obtained registration in the Supreme Court of a Foreign Consent Forfeiture Order pursuant to section 27(1) of the Mutual Assistance (Criminal Matters) Act, 1995. This was on behalf of the Government of the United States of America, and listed the said assets set out in the restraint order obtained by the ARA on 15 July 2011 in claim number 2011HCV04410.
On 21 April 2016, pursuant to an application by the ARA, an order was made in the Supreme Court, in claim number 2011HCV04410, discharging the restraint order obtained on 15 July 2011 against the seven named respondents/defendants including the appellant. On 25 May 2016, the ARA filed a notice of discontinuance against all seven defendants in that claim.
On 26 September 2016, the appellant filed fixed date claim number 2016CD00313 in the Commercial Division of the Supreme Court against the ARA, in which she sought a declaration that the properties which had been the subject of a restraint order, obtained in claim number 2011 HCV 04410, are not “criminal property” for the purposes of sections 92 and 93 of the POCA.
The appellant outlined various grounds in support of her claim. Firstly, she asserted that a restraint order obtained by the ARA on 15 July 2011, against the affected properties, had been discharged on 21 April 2016, upon an application made by the ARA. Secondly, at the time of the filing of her claim, she asserted that the ARA had not initiated any civil recovery proceedings against her. Thirdly, on 25 May 2016, the ARA filed a notice of discontinuance in respect of a fixed claim form it had filed against her. Fourthly, she stated the properties were never criminal property at the time of acquisition or possession.
The fixed date claim form was supported by two affidavits of the appellant filed 26 September 2016 and 17 March 2017. It was the appellant's assertion, in both, that the affected properties are legitimately owned. She claimed the properties have never been involved in nor used to facilitate any crime. She also insisted that she has no criminal record and that she has committed no crime. It was her complaint that the actions of the respondent have significantly prejudiced her financial dealings in respect of the properties. However, she acknowledged that, since 2012, the Director of Public Prosecutions has alleged that the affected properties are criminal property and she is the subject of charges pursuant to sections 92 and 93 of the POCA in the Saint Ann Parish Court. The delay in having the charges determined, she deposed, has prejudiced her upward mobility at work and has caused her severe emotional distress and trauma.
The ARA, in an affidavit sworn to by Ms Karlene Barnaby, in response to the appellant's claim, objected to the declaration sought. Ms Barnaby referenced various documents to support the ARA's contention that the affected properties are criminal property. She deposed that given the registration of the United States forfeiture order in relation to the properties that had been the subject of the restraint order in claim number 2011HCV04410, that restraint order became redundant, which resulted in the ARA's application to have it discharged.
The appellant in reply applied to have certain portions of Ms Barnaby's affidavit struck out on the basis that it contained hearsay evidence and evidence which was irrelevant and or prejudicial to her. Up to the time of the hearing before the learned judge that application had not yet been determined. Accordingly, the learned judge declined to allow the use of Ms Barnaby's affidavit in the stay proceedings.
The ARA was, however, allowed to rely on an affidavit sworn to by Mrs Larona Montague-Williams and filed on 29 March 2017, specifically in support of the stay proceedings. That affidavit is also the subject of an application, to have certain portions struck out based on them allegedly being hearsay and prejudicial, which to date has also not been heard. The sections relied on by the learned judge, which are not subject to that application, spoke to the nature and progress of the criminal proceedings against the appellant in the Saint Ann Parish Court.
Mrs Montague-Williams deposed that the matter came up for mention on various occasions, as legal representation for the accused persons remained unsettled. However, on 2 September 2015, she stated, a “firm trial date” was set for 18 April 2016. On the latter date, the Crown was ready with three witnesses to commence the trial against the appellant, Mrs Montague-Williams asserted. However, on the application of counsel for the appellant, Mr Christian Tavares-Finson, the court granted an adjournment to 26 July 2016, for Captain Paul Beswick to join her defence team.
Mrs Montague-Williams further deposed that, on 26 July 2016, the Crown was again ready with three witnesses present. However, counsel for the appellant then applied to have the matter dismissed on the basis of undue delay by the Crown, the case lacking merit and the ARA's withdrawal of its claim. The application was refused. The Crown on that date indicated an intention to apply to amend the informations charging the appellant, and her counsel indicated an intention to object. The Judge of the Parish Court ordered that submissions be filed and served in respect of the impending application, which Mrs Montague-Williams, at the time of swearing to her affidavit, asserted had not been complied with by the appellant. The matter, she said, had been set for trial on 3 May 2017 and the Crown was ready to proceed.
She also deposed that, prior to the trial date of 3 May 2017 being set, the matter came up for trial on two other occasions. She explained that on the first occasion the Crown had one witness ready and the others on standby, but the matter could not proceed as the appellant failed to file its submissions as ordered. On the second occasion, senior prosecuting counsel with conduct of the matter was engaged in the circuit court.
Counsel for the appellant, Captain Beswick, in response to Mrs Montague-Williams' affidavit, deposed to the reason for the delay caused by his firm in the criminal proceedings before the Saint Ann Parish Court. He asserted that the reasons his submissions were not served until 13 April 2017 were that on one trial date his junior was unaware the submissions in her possession should have been served and on another the representative of the Crown was absent. However, he denied that the reason for the adjournment on the first of the two occasions, before the trial date of 3 May 2017 was set, was due to counsel's failure to serve the submissions. Instead, he asserted that the adjournment was due to a co-accused of the appellant having recently given birth and her doctor had opined that the “strain of the trial would have been too great for her at the time”.
In coming to his decision to grant the stay, the learned judge considered that the relevant law was that outlined in the decision of this court in Omar Guyah v Commissioner of Customs and Others [2015] JMCA Civ 16, a case relied on by both...
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