Dawn Satterswaite v The Assets Recovery Agency

• Jurisdiction: Jamaica
• Judge: F Williams,Phillips,P Williams JJA
• Judgment Date: 25 May 2021
• Neutral Citation: [2021] JMCA Civ 28
• Docket Number: SUPREME COURT CIVIL APPEAL NOS 30/2014 & 51/2015
• Court: Court of Appeal (Jamaica)

Between

Dawn Satterswaite

Appellant

and

The Assets Recovery Agency

Respondent

Consolidated with

Between

Terrence Allen

Appellant

and

The Assets Recovery Agency

Respondent

BEFORE:

THE HON Miss Justice Phillips JA

THE HON Mr Justice F Williams JA

THE HON Miss Justice P Williams JA

SUPREME COURT CIVIL APPEAL NOS 30/2014 & 51/2015

IN THE COURT OF APPEAL

Douglas Leys QC and Miss Kenik Brissett instructed by LeySmith for the appellant, Dawn Satterswaite

Paul Beswick and Miss Georgia Buckley instructed by Ballantyne, Beswick & Company for the appellant, Terrence Allen

Miss Dawn Satterswaite represents herself and Terrence Allen (from July 2020)

Mrs Caroline Hay and Mrs Symone Mayhew for the Assets Recovery Agency

Miss Althea Jarrett, Mrs Susan Reid-Jones and Miss Lorraine Patterson instructed by the Director of State Proceedings for the interested party

Phillips, F Williams and P Williams JJA

1 This is the judgment of the court, to which each member has contributed a substantial part.

2 This consolidated appeal relates to the refusal of two judges to grant applications that sought to vary a restraint order made by B Morrison J, on 16 January 2014, pursuant to the Proceeds of Crime Act (‘ POCA’). The first appeal was filed by Miss Dawn Satterswaite against K Anderson J's refusal to vary the restraint order to provide for reasonable legal expenses. Mr Terrence Allen filed an appeal challenging C McDonald J's refusal to vary the said restraint order to provide for reasonable legal expenses and to exclude his pension emoluments and investments in Mayberry Investments Limited.

3 There are certain issues that distinctly relate to one appellant, and therefore one appeal, and some that overlap both appeals. However, at the end of the day, one of the fundamental issues relative to both appeals was whether K Anderson and C McDonald JJ, in interpreting certain provisions of POCA whilst hearing the respective applications to vary the initial restraint order of B Morrison J, ought to have taken into consideration certain provisions of the Constitution of Jamaica (‘the Constitution’), thereby granting Miss Satterswaite and Mr Allen (‘the appellants’) access to certain restrained funds for their legal expenses.

4 For a better understanding of the issues that arose and for convenience, we have endeavoured to highlight the background to both appeals, the applications that were before the various judges and the orders made therein.

Background

5 The appellants (who are married to each other) are being investigated for alleged money laundering activities, in connection to Mr Andrew Paul Hamilton, who had been convicted of drug trafficking offences in the United States of America. It is being alleged that Miss Satterswaite, who is a practising attorney-at-law, had shared a long term attorney/client relationship with Mr Hamilton, and through that medium, had benefited from and facilitated the disguise and disposal of proceeds of Mr Hamilton's criminal conduct. As a consequence, Miss Satterswaite was charged with breaches of sections 92 and 93 of POCA, while (at that time) Mr Allen remained under investigation.

6 On 16 January 2014, the Assets Recovery Agency (‘ARA’) filed an ex parte application for a restraint order pursuant to sections 32 and 33 of POCA and rule 17.1(1)(f) of the Civil Procedure Rules (‘CPR’), against the appellants and three named respondents (who were not parties to this appeal). The application sought orders that, inter alia, realizable property that had been listed in the application be restrained until the conclusion of criminal proceedings, including appeals.

7 The ex parte application was supported by an affidavit filed on the same date (16 January 2014), deponed to by Ronald Rose, a Forensic Examiner employed to the Financial Investigations Division (‘FID’), acting in the capacity of Authorised Financial Investigator, pursuant to section 2 of POCA. Mr Rose referred to the affidavit of Bobette Smalling, a Detective Sergeant of Police assigned to the Major Organised Crime and AntiCorruption Task Force (‘MOCA’) which had been filed on 16 December 2013 in support of a previous application for a warrant of search and seizure. These affidavits catalogued a litany of allegations against the appellants and other named respondents and outlined various properties which were to be subject to restraint.

8 The ex parte application was granted by B Morrison J on 16 January 2014. It essentially restrained the appellants and the other named respondents, from dealing with or disposing of certain assets that had been listed and imposed requirements for the disclosure of all assets owned by them or on their behalf. The terms of the order are stated, in part, below:

• “1. Pursuant to Sections 32 and 33 of the Proceeds of Crime Act, 2007 (‘ POCA’) and CPR 2002, Part 17.1(1)(f), the [appellants and other named] Respondents be restrained, whether by themselves, their servants or agents or however otherwise from disposing of, causing or allowing the disposal of and/or dealing with the realizable property listed in the Tables below or any assets whether or not identified in this Order, until the conclusion of criminal proceedings including Appeals , now extant in respect of [the appellants and other named] Respondents:-

  [Assets of each party set out in tabular form] ….

• 2. Pursuant to CPR 2002, Part 17.1(1)(g) the [appellants and other named] Respondents do forthwith disclose with full particulars the nature and location of all assets owned by them, whether or not identified in the order and whether they are held in their names or by nominees or otherwise on their behalf, such disclosure to be verified by affidavit and served on the [ARA's] Attorney-at-Law within twenty-one (21) days of service of this Order.

• 3. Liberty to the [appellants and other named] Respondents, to the General Legal Council and any other third party affected by the Order to apply to the Court on seven (7) days' notice to the [ARA's] Attorney-at-Law to set aside or vary this Order.

• 4. This Application will be further considered by the Court on the 6 ^th day of February 2014 at 10:00 am or so soon as Counsel may be heard.

• 5. The [ARA] undertakes to serve copies of the following documents upon the [appellants and other named] Respondents not less than seven (7) days before the date fixed for further consideration of this Application:

  • (i) The Interim Restraint Order;

  • (ii) The Without Notice of Application for Restraint Order.

  • (iii) The Affidavit in Support of the Notice of Application for Court Order.

  • (iv) The Supplemental Affidavit of Ronald Rose.

• 6. To abide by any Order the Court may make as to damages, should the Court hereafter be of the opinion that the [appellants and other named] Respondents or any Third Parties given notice of this Order have suffered any damages that the [ARA] ought to pay.

• 7. That Costs be reserved pending the further consideration of the Application.” (Emphasis added and underlined as in original)

9 On 5 February 2014, Miss Satterswaite filed an application to vary and/or discharge the restraint order to provide for her reasonable living and legal expenses and to allow her to carry on her employment as an attorney-at-law. This application was supported by an affidavit sworn to by Miss Satterswaite and filed on the dame date. The application was made on the basis that: (i) there was material non-disclosure by ARA in its ex parte application for the restraint order; (ii) the restraint order did not make provisions for reasonable living and legal expenses; (iii) the restraint order is arbitrary and unconstitutional or that section 32(1)(a)(i) of POCA is unconstitutional; and (iv) the restraint order was granted on insufficient evidence.

10 Likewise, on 5 February 2014, Mr Allen filed an application to set aside the restraint order and compel ARA and its counsel to pay his damages that were to be assessed flowing from the restraint and the wasted costs. This application was premised on the grounds that: (i) ARA had not disclosed all relevant information to the court; (ii) the restraint order did not make adequate provision for his reasonable living and legal expenses; (iii) impropriety exists on the part of ARA, its officers and counsel; (iv) ARA did not satisfy the condition under rule 17.4(4) of the CPR for the grant of an ex parte restraint order; and (v) the restraint order is irregular and void.

11 In his affidavit in support of this application, Mr Allen detailed what he described as his personal history and asset acquisition. He explained that the bulk of the savings of both his wife (Miss Satterswaite) and himself were in the Bank of Nova Scotia Jamaica Limited (‘BNS’) and that the information in the restraint order that Miss Satterswaite's name appeared on the accounts solely was incorrect since his name had been added to the accounts in 2012. He also revealed that he was receiving a monthly pension from BNS from which he had retired in 2008 after working there for 40 years.

12 Mr Allen's application was subsequently amended on 6 February 2014 to request a variation of the restraint order to provide for the payment of reasonable living expenses and legal fees.

13 The applications for variation and/or discharge of the restraint order filed by the appellants, came before Sykes J (as he then was) for hearing on 6 February 2014. There has been no indication as to whether Mr Allen's amended notice of application (filed 6 February 2014) was before Sykes J. The learned judge made orders extending the time in which assets were to be disclosed (pursuant to order 2 of B Morrison J's order) to 18 February 2014. Sykes J also ordered that:

“Without prejudice to the [appellants' and other named] Respondents' right to challenge the validity of the Restraint Order issued by Mr Justice Morrison on 16 January 2014 and without prejudice...