Delores Elizabeth Miller v Assets Recovery Agency

• Jurisdiction: Jamaica
• Judge: Panton P,Dukharan JS,Phillips JA
• Judgment Date: 09 May 2016
• Neutral Citation: JM 2016 CA 43
• Docket Number: CIVIL APPEAL NO 29/2012
• Court: Court of Appeal (Jamaica)
• Date: 09 May 2016

[2016] JMCA Civ 25

JAMAICA

IN THE COURT OF APPEAL

SUPREME COURT

Before:

The Hon Mr Justice Panton P

The Hon Mr Justice Dukharan JA

The Hon Miss Justice Phillips JA

CIVIL APPEAL NO 29/2012

Between:

Delores Elizabeth Miller

Appellant

and

The Assets Recovery Agency

Respondent

Nigel Jones and Zavia Mayne instructed by Zavia Mayne & Company for the appellant

Mrs Susan Watson-Bonner and Miss Alethia Whyte for the respondent

Panton P

1 I have read in draft the judgment of my brother Dukharan JA. I agree with his reasoning and conclusion and have nothing to add.

Dukharan JS

2 On 18 December 2015, the court made an order dismissing this appeal and affirming the civil recovery order made against the appellant by D O McIntosh J on 17 February 2012, in respect of cash in the sum of US$1,350,300.00. The court also ordered that the appellant should pay the respondent's costs, such costs to be taxed if not agreed. These are the reasons for this decision, with apologies for the delay in delivering them.

3 In order to understand how the matter arose, it is necessary to state something of its background. The respondent (the ARA) is a statutory body by virtue of section 3 of the Proceeds of Crime Act ( POCA). On 24 September 2007, Beckford J heard an application by the respondent, pursuant to rule 17.1(1)(c) of the Civil Procedure Rules (the CPR), for the detention and custody of cash in the sum of US$1,350,300.00. The cash was found wrapped in newspaper and foil and placed amongst frozen meats in the freezer compartment of a refrigerator during a search of a property occupied by the appellant. The application as granted and it was ordered that the order was to remain in effect ‘until the trial of these proceedings’.

4 Prior to the granting of that order, the cash was seized under section 75 of the POCA and a first continued detention order of the cash by virtue of section 76 was in effect. The first continued detention was ordered on 27 June 2007 for three months. It is however unclear whether the continued detention was pursuant to section 76(2) — by a Resident Magistrate — or section 76(3) — by a Justice of the Peace — of POCA.

5 On 30 November 2010, D O McIntosh J, after the parties, through their respective counsel, indicated their agreement on the facts, heard submissions from counsel in respect of issues of law related to the ARA's claim, which was brought by way of an amended claim form filed on 18 September 2007, against the appellant and three other defendants, for a civil recovery order pursuant to section 57 of POCA, in respect of US$1,350,300.00 and other properties (not in issue on appeal). By a consent order made by G Smith J on 20 August 2009, the amended claim form ordered to be treated as if commenced by way of a fixed date claim form. The evidence in support of the claim was set out in the affidavits of Assistant Superintendent of Police Dean-Roy Bernard and Jorge Da Silva, United States Drug Enforcement Officer.

6 As it relates to the appellant, learned counsel for the ARA submitted in the court below, in reliance on sections 55–57 of POCA, that the properties subject to the freezing, detention and custody orders are recoverable property within the meaning of POCA. Learned counsel argued that it was irrelevant that the criminal charges under POCA against the appellant have been adjourned, given that in a civil recovery action the court is not concerned to establish criminal guilt. Instead, learned counsel submitted, the concern is with unlawful conduct solely for the purpose of identifying property with a sufficient relationship to that conduct to render it recoverable. The case of The Queen on the application of the Director of Assets Recovery Agency and Others v Jeffrey David Green and Others [2005] EWHC 3168 was relied on in support of that argument.

7 Also, relying on In the matter of the Director of the Assets Recovery Agency and in the matter of Cecil Stephen Walsh and in the matter of the Proceeds of Crime Act 2002 [2004] NIQB 21, learned counsel submitted that, in the absence of legitimate income or capital to support the appellant's asset base and in the light of the affidavit evidence of ASP Bernard and Mr Da Silva it is reasonable on a balance of probabilities that the assets detained are recoverable property, which should be forfeited to the Crown. Learned counsel argued that the appellant, a higgler, could not have amassed the assets detained based on her income and expenses.

8 In response, learned counsel for the appellant asserted that on 27 June 2007, the Resident Magistrate Court issued an order for the detention and forfeiture of the US$1,350,300.00 pursuant to section 76 of POCA. Under section 76, learned counsel submitted that the detention of cash seized may be extended for a period of three months from the date of the order, but not beyond a period of two years beginning from the date of the first order. Accordingly, he argued, given that the ARA has failed to have the order of 27 June 2007 extended and the period of two years has elapsed, the appellant is entitled to the return of the cash, which should not be forfeited.

9 Learned counsel further argued that in the light of the charges for money laundering having been adjourned sine die, there was no evidence linking the money or the appellant to any criminal conduct or activity. Accordingly, he submitted that there was a single issue to be determined by the court, that is, ‘whether the property is [sic] the subject of the claim is “recoverable property”’. In reliance on section 57 of POCA and the approach set out by Sullivan J in The Queen in the application of the Director of Assets Recovery Agency and Others v Jeffrey David Green and Others (which was approved by the Court of Appeal in R v W (N) and others [2009] 1 WLR 965 ), learned counsel argued that the ARA failed to satisfy the court that the property owned by the appellant was acquired through unlawful conduct and that, consequently, she ought not to be called upon to justify her lifestyle.

10 D O McIntosh J found that the issue to be determined by the court was ‘whether the properties seized are recoverable property that is “property obtained through unlawful conduct”’ (paragraph 58 of the judgment). In deciding this question, he recognized that he had to examine the evidence and, in so doing, he found that (a) the appellant lied about the identity of her sons and their occupation; (b) there was an absence of any evidence that she worked to earn the money (as a higgler or otherwise); and (c) the fact that the seized properties were all in her possession ‘must lend to one inevitable conclusion’. He took note of the fact that the appellant gave inconsistent accounts of how she came to be in possession of US$1,350,300.00, in that, she initially stated that the money belonged to her son, who resided in the USA and was a construction worker and then later she claimed the money represented her earnings as a higgler.

11 The learned judge, at paragraph [69] of his judgment, stated that it was ‘incumbent on [the appellant] to demonstrate evidentially how [she] lawfully came in possession of the assets seized’. He found that the appellant only stated that she worked as a higgler, but has amassed thousands of United States dollars, without more. Accordingly, D O McIntosh J found that ‘[t]he only reasonable and inescapable inference based on all the evidence is that the properties seized are properties obtained through unlawful conduct and are therefore Recoverable Properties’ (paragraph 70 of the judgment). The claim by the appellant, he acknowledged, appeared to be in respect of the monies seized by virtue of section 76 of POCA.

12 D O McIntosh J found, at paragraph [71], that there was no evidence before him that would warrant the court refusing a recovery order pursuant to section 58 of POCA. He also acknowledged that mere lifestyle was not sufficient to conclude that money was obtained by unlawful conduct, and as such the lifestyle of the appellant was one of the many factors the court considered in making a recovery order. Accordingly, having been satisfied that the ARA proved its case, he made a recovery order in respect of US$1,350,300.00, among other properties.

The appeal

13 It is against that order that the appellant appealed. In a notice of appeal filed on 2 March 2012, the appellant stated the grounds of appeal as follows:

• ‘a) The application for the forfeiture of the funds found on the [appellant's] premises had lapsed by virtue of the fact that the procedure set out under Section 76 had been breached.

• b) The evidential burden on the [ARA] to establish “unlawful conduct” on the part of the Appellant had not been established.

• c) The Learned Trial Judge erred in law in relying mainly on the lies told by the Appellant as a basis for his findings.

• d) The Learned Trial Judge failed to appreciate that although the facts were not in issue there was still a duty on his part to evaluate the worth of the evidence in the affidavits filed which consisted mainly of “hearsay evidence”.’

14 In light of the grounds of appeal and the submissions of counsel for the parties, the issues to be addressed by this court are as follows:

1

Whether the Supreme Court had jurisdiction to hear the recovery order proceedings in respect of the cash sum of US$1,350,300.00, given proceedings for its seizure and detention had been made pursuant to section 76 of POCA. 2. Whether the learned judge could be faulted for his decision, in respect of the agreed evidence, to grant a recovery order in respect of the cash sum of US$1,350,300.00.

Issue one

Whether the Supreme Court had jurisdiction to hear the recovery order proceedings in respect of the sum of US$1,350,300.00, given proceedings for its seizure and detention had been made pursuant to...