Dawn Satterswaite v Bobette Smalling, Janet Ramsay and Paulette Higgins
| Jurisdiction | Jamaica |
| Judge | P Williams JA,F Williams JA,Phillips JA |
| Judgment Date | 2019 |
| Neutral Citation | JM 2019 CA 117 |
| Date | 20 December 2019 |
| Docket Number | SUPREME COURT CIVIL APPEAL NO 99/2015 |
| Court | Court of Appeal (Jamaica) |
[2019] JMCA Civ 43
IN THE COURT OF APPEAL
THE HON Miss Justice Phillips JA
THE HON Mr Justice F Williams JA
THE HON Miss Justice P Williams JA
SUPREME COURT CIVIL APPEAL NO 99/2015
and
and
Miss Dawn Satterswaite in person
Mrs Caroline Hay, Nigel Parke, Neco Pagon, and Miss Kamesha Campbell instructed by Caroline P Hay attorneys-at-law for the respondent
Ian Wilkinson QC and Lenroy Stewart instructed by Wilkinson Law for the 1 st and 2 nd intervenors
Legal Profession - Legal profession privilege — Order for search and seizure — Whether judge erred in ordering that documents seized could be examined by the court for a determination of what material attracted legal professional privilege — Proceeds of Crime Act — Determination of what constituted criminal conduct pursuant to section 2 of the Proceeds of Crime Act in order to determine what documents would attract legal professional privilege.
An appeal lies before us against the decision of Straw J (as she then was) delivered on 17 September 2015. The learned judge had made orders that documents and material that had been taken from the residence and office of Miss Dawn Satterswaite (the appellant), were to be unsealed and examined by a judge in the Supreme Court, in order to determine whether they attracted legal professional privilege. The appellant has lodged an appeal on the basis that the learned judge had applied the wrong standard of proof in deciding whether a particular activity constituted a breach of the Proceeds of Crime Act ( POCA); that she failed to make a determination as to what constituted ‘criminal conduct’ pursuant to section 2 of POCA in order to determine which documents and material would attract legal professional privilege; and she failed to consider the likely breaches of the constitutional rights of the involved parties.
Miss Bobette Smalling (the respondent) is a Detective Sergeant of Police assigned to the Major Organised Crime & Anti-Corruption Task Force (MOCA), which is a branch of the Jamaica Constabulary Force. She filed a comprehensive affidavit in support of an application for a warrant of search and seizure dated 16 December 2013.
She deponed that from about December 2010, MOCA, the Financial Investigations Division (FID) and the Drug Enforcement Administration (DEA) in the United Stated of America (USA), were conducting joint money laundering and civil recovery investigations into Mr Andrew Paul Hamilton. It was alleged that Mr Hamilton was involved in drug and arms trafficking in the USA, and money laundering in the USA and Jamaica. She indicated that Mr Hamilton was convicted of drug trafficking offences in the USA in 1998, for which he served one year in prison. Also, Mr Hamilton pleaded guilty on 22 October 2012, to certain counts on an indictment charging him with, inter alia, money laundering and drug trafficking.
Investigations by MOCA and the FID revealed that Mr Hamilton was sending substantial amounts of cash to Jamaica to purchase various assets in breach of POCA. The respondent stated that it was her belief that the facilitators of these offences were: the appellant (Mr Hamilton's attorney-at-law); his relatives (namely, Miss Annmarie Cleary (mother of Mr Hamilton's children), Paulette Higgins and Janet Ramsay (Mr Hamilton's sisters), Dorothy Hamilton (Mr Hamilton's mother), his children and his brother); associates (the appellant's mother, Gloria Satterswaite, and the appellant's husband, Terrence Allen); and companies in Jamaica.
It was alleged that the appellant had “facilitated [Mr Hamilton], his companies, his relatives and other associates to conceal, disguise and dispose of benefits flowing from his criminal conduct”. The respondent also deponed that it was her belief that Mr Hamilton's relatives had also facilitated, participated and benefited from laundering the proceeds of his criminal conduct, primarily, by acting as “the principal recipients of real estate registered in their names or jointly with [Mr Hamilton] and by assisting in making efforts to engage in transfers of the said properties”.
The respondent described about 29 “high value real estate properties” that had either been bought and/or sold between 1998 to 2009, by or to Mr Hamilton, his associates, relatives and his companies, with the appellant's assistance, who purported to act as counsel for purchasers with carriage of sale to third parties. Those properties had an estimated value of J$319,700,000.00 and US$300,000.00, and yet, on the certificates of titles for each of those properties, there was no evidence of financing for any of the acquisitions. Indeed, many of the properties were sold below value. Individuals named as being the owners of these properties were not in receipt of legitimate income in quantities that would enable them to finance the assets they had acquired. The respondent deposed that she believed that some of those transactions were “shams designed to conceal the true ownership of the properties”. The respondent also said that it was her belief that the appellant had also conducted sham transactions using fictitious names, signatures and addresses. Of the properties listed, 11 were acquired before 30 March 2007, and 18 were acquired thereafter.
The application for the search and seizure warrant was heard by McDonald-Bishop J (as she then was), who granted the order for the warrant to search and retrieve relevant documents and other material from the appellant's residence at 1 Cherry Hill Drive, Townhouse #8, Kingston 8, and her office ‘Chambers Consultants’ situate at 20 1/2 Duke Street, Kingston. It was stated in the warrant that the learned judge had reasonable cause to believe that seizure of the material at the designated places would assist in the investigation of certain offences under POCA, namely, sections 92(1)(a), 92(1)(b), 92(2), and 93(1).
On 17 December 2013, the search warrant was executed at the places named in the warrant in the appellant's presence. She claimed that legal professional privilege was attached to the documents and items seized, and so they were bagged, tagged and sealed in her presence, and remained unsealed in the respondent's possession.
Subsequent to the removal of the documents, the appellant had entered into a consent order on 17 January 2014, made by B Morrison J, to participate in a process whereby the files and documents relating to the said particular client, namely, Mr Hamilton, would be separated from other files, and the latter returned to the appellant. Whilst in this process, however, the appellant objected, inter alia, to the presence and participation of the representatives of MOCA, and filed an application that the warrant for search and seizure be set aside; that all files, documents and other material removed from her office and home, be returned to her forthwith; and that there be an inquiry into the damages suffered by her, consequent on the unlawful search and seizure of the various files. There was also an application by the respondent that the application to set aside the warrant be stayed pending the appellant's compliance with the order of the court issued on 17 January 2014 by and with the consent of the parties. On 30 January 2014, B Morrison J dismissed the in limine point made requesting the stay of his hearing of the application to set aside the warrant.
The matter was appealed to this court which ruled that the learned judge had embarked on a process of hearing an application to set aside a warrant issued by a judge of concurrent jurisdiction, in circumstances where he had no jurisdiction to do so. Additionally, as there was no application before the learned judge to vary the warrant, he could not do so on his own motion, particularly, when the matter related to a criminal investigation under POCA. The court stated that the consent order and the directions in the warrant were to be carried out without delay. The appeal was therefore allowed and the order of B Morrison J was set aside.
Following this order, the parties proceeded on the sifting exercise to ascertain the matters which had been removed from the appellant's office and home, which were not related to the listed material set out in the warrant, and which ought to be returned to the appellant. That process was completed prior to the hearing before Straw J.
In the application before Straw J, the respondent sought orders that the court examine the documents removed from the appellant's office to determine if they were relevant to and included the ‘listed material’ described in the search and seizure warrant. If the material was found not to be relevant to or included in the ‘listed material’ in the warrant, then the court should order that the documents and other material be returned to the appellant's possession, custody and control within three working days. If, however, the documents and other material were found to be relevant to or included in the ‘listed material’, then they ought to be unsealed and retained by MOCA.
Additionally, the application sought an order that if the documents and other material being examined by the court were found to attract legal professional privilege, then they should also be returned to the possession, custody and control of the appellant within three working days, and if not, then they should be retained by MOCA for their examination, consideration, and use in the furtherance of their investigations.
In her reasons for judgment, the learned judge set out the reliefs claimed in the application before her which have already been set out herein at paragraphs [12]–[13]. She indicated that there were three basic issues for determination by the court, namely:
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