Dorrette Angella Reynolds v Constable Carol Kerridge
| Jurisdiction | Jamaica |
| Judge | Brooks P,Edwards JA,Dunbar-Green JA |
| Judgment Date | 29 June 2023 |
| Neutral Citation | JM 2023 CA 83 |
| Docket Number | PARISH COURT APPEAL NO 18/2017 |
| Court | Court of Appeal (Jamaica) |
[2023] JMCA Civ 36
THE HON Mr Justice Brooks P
THE HON Miss Justice Edwards JA
THE HON Mrs Justice Dunbar-Green JA
PARISH COURT APPEAL NO 18/2017
IN THE COURT OF APPEAL
Proceeds of Crime — Civil recovery proceedings — separate applications for forfeiture of seized cash and for release of cash — whether seized cash is recoverable property — whether cash was obtained through unlawful conduct or was intended for unlawful purpose — standard of proof — whether evidence of a specific unlawful conduct or of a criminal conviction must be shown — whether inference can be drawn that cash is recoverable property or is intended for unlawful purpose from the circumstances surrounding the seizure including lies told — Proceeds of Crime Act — sections SS, 56, 75, 76, 79, 84, 101
Ian Wilkinson QC and Lenroy Stewart instructed by Miss Ann Marie Jordon for the appellant
Mrs Alethia Whyte-Tomlinson for the respondents”
I have read, in draft, the reasons of Edwards JA. I agree and would add nothing further.
This appeal has its genesis in an order for forfeiture of cash that was made, in 2016, by a learned Senior Resident Magistrate for the Corporate Area. Since then, as a result of a change in the law, Resident Magistrates' Courts are now known as Parish Courts, and Resident Magistrates, as Judges of the Parish Court. As this matter was heard before the changes were made, the previous terminology will be used in this judgment.
On 10 June 2011, Mrs Dorrette Angela Reynolds (‘the appellant’), together with her husband and their friend Dr Terrence Nunes, filed a joint application, which was supported by affidavits from all three, before the Resident Magistrate's Court for the Corporate Area, seeking orders that cash seized by the police, in the amount of US$92,657.00 and TT$11.00, plus interest thereon, be released. An application for the continued detention of the seized cash was made on 1 July 2011, supported by the affidavit of Constable Carol Kerridge (who, at the time of the incident was at the rank of Constable, but had been promoted to the rank of Detective Sergeant by the time of the hearing of the applications before the learned Senior Resident Magistrate, and who will hereinafter be referred to as ‘Detective Sergeant Kerridge’). On 10 April 2012, an application was made, by way of notice, supported by the affidavit of Detective Sergeant Kerridge, for an order that the said cash, be forfeited to the Crown.
On 6 December 2016, after a hearing which lasted almost four and a half years, the learned Senior Resident Magistrate made the following orders:
“l. The Application for Release of the Seized Cash from Dorrette Reynolds, Wesley Reynolds and Dr. Terrence Nunes in the amount of US$92,657.00 and TT$11.00 plus interest thereon is denied.
2. The Seized Cash in the amount of US$92,657.00 and TT$11.00 plus interest thereon is recoverable property and is forfeited to the Crown.
3. Costs to the Applicant to be taxed if not agreed.”
The appellant, who was aggrieved by this decision, filed a notice and grounds of appeal on 22 December 2016. An amended notice and grounds of appeal were filed on 28 June 2019, and with the permission of this court, one ground was withdrawn, and two additional grounds were added.
On 20 May 2022, having heard arguments, we made the following orders:
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1) The appeal is dismissed.
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2) The judgment and orders of the then learned Senior Resident Magistrate are affirmed.
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3) Costs of the appeal to the respondent to be agreed or taxed.
At the time of making these orders we promised to put our reasons in writing and we do so now.
The background facts, in broad outline, are that, on 8 May 2011, the appellant was at the Norman Manley International Airport (‘NMIA’) waiting to board an outgoing flight to Trinidad and Tobago. Whilst in the checking queue, she was approached by Corporal Byron McKenzie, a police officer attached to the Transnational Crime and Narcotics Division (‘TCND’), who had been conducting random searches of passengers at the NMIA. Corporal McKenzie questioned the appellant as to her intended destination and asked to see her passport. He then advised her that he needed to search her luggage, and instructed her to take them to the search desk. She complied. Before her luggage was searched, Corporal McKenzie further questioned the appellant as to the amount of cash in her possession, whether the suitcases she was carrying belonged to her, whether she had packed them herself and whether she was aware of all their contents. She said the suitcases were borrowed but admitted to packing them herself and that she was aware of all their contents. She was asked if she had anything to declare, to which she replied that “the only thing of concern” was US$8,000.00 that she was travelling with. When asked where the cash was, she replied that it was in her handbag. She was asked the purpose of the cash to which she replied that she was going to use it to buy a deep freeze in Trinidad. When asked about the source of the cash she said she had mortgaged her house to obtain a loan.
Corporal McKenzie then asked the appellant to open the suitcases, which she did. Corporal McKenzie searched the suitcases, and in the larger suitcase, he observed two concealed compartments with unusual bulges and no zipper. The appellant denied knowing what was in the sealed compartments. Corporal McKenzie cut one of the compartments open with a utility knife and found six parcels wrapped in transparent plastic, each of which contained United States currency. He opened one of the parcels and showed it to the appellant. When asked if she knew how they got there, the appellant said “it's not my money”. Corporal McKenzie placed the parcels back into the suitcase and took the appellant and the suitcase to the TCND section of the NMIA, where the appellant was introduced to a female constable. The parcels were removed from the two concealed compartments of the suitcase, in the appellant's presence. A total of 14 separate parcels wrapped in transparent plastic bags and containing United States currency were found and removed from the suitcase. When the cash was counted, it amounted to US$80,157.00.
A search of the appellant's handbag revealed cash totalling TT$11.00 and US$12,500.00, separately parcelled in a brown envelope and in a purse. In total, US$92,657.00 was found in the possession of the appellant, along with the TT$11.00. The appellant denied that the US$80,157.00 was hers and repeated that she had borrowed the suitcase from a close friend. She said all the money in the handbag belonged to her but gave no explanation for the additional amounts found in her purse, other than to say that she may have miscounted.
The Constabulary Financial Unit (‘CFU’) was contacted and Detective Sergeant Kerridge, along with Corporal Radcliffe Gordon, from that unit, attended the TCND section of the NMIA. They, too, spoke with the appellant, who repeated to them that she was only aware of US$8,000.00 she had in her possession for her travelling expenses to Trinidad and Tobago. She also told them that the suitcase belonged to Dr Terrence Nunes and that he was not aware that she had taken it. The appellant, the cash, and the suitcase were taken to the TCND headquarters, where, in the presence of the appellant, the cash was again counted and placed in an evidence bag, which was then sealed and labelled. The appellant was also informed that the cash would be detained under the Proceeds of Crime Act 2007 (‘ POCA (Jamaica)’), because of the circumstances under which the money had been found, and her lack of knowledge of the presence of a substantial portion of the cash. A receipt for the cash was given to her.
That same day, Corporal Gordon and Detective Sergeant Kerridge went to the offices of Dr Nunes, conducted a search of the premises, and interviewed him. He gave them a written statement. A search was also conducted of the home of the appellant. Nothing untoward was found at either premises. Corporal Gordon applied for and received the first order for the continued detention of the cash on 10 May 2011, and the notice to persons affected by that order was duly served.
At the hearing, the appellant raised a defence to the application for forfeiture, that the cash in her handbag was hers, a substantial portion of which was a gift to her by her husband and the rest was purchased by her. It was also asserted that the sum found in the suitcase had been converted from the proceeds of a loan to Dr Nunes, from the bank.
In an attempt to account for the cash, found in her possession, the appellant gave a written statement in the presence of her attorney. In that statement, which was exhibit 3 at the hearing before the learned Senior Resident Magistrate, the appellant said that she lived with her husband and children, and that Dr Nunes, who is a medical doctor, also stayed with them. Her husband was a businessman, who had a small share in a supermarket business and a fishing boat. She said that the money that was seized belonged to Dr Nunes and her husband, and that their house had been put up as collateral for a loan from the RBTT bank. She said further, that when she left home (for the airport) on 8 May 2011, she had US$12,500.00 in an envelope inside her handbag. She bought United States currency from “anybody”, and a Cambia, and had been doing so for four months. She said she was carrying the money to Trinidad to buy anything she saw, as well as for vacation and to buy a deep freeze for her catering business.
She also said that she had taken the suitcases from the backroom where Anthony...
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