Jheanell Watkis and Another v Opal Smith and Another
| Jurisdiction | Jamaica |
| Judge | Cresencia Brown Beckford, J |
| Judgment Date | 04 November 2016 |
| Neutral Citation | [2016] JMSC Civ 178 |
| Docket Number | CLAIM NO. 2016 HCV 01129 |
| Court | Supreme Court (Jamaica) |
| Date | 04 November 2016 |
[2016] JMSC Civ 178
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
CIVIL DIVISION
Cresencia Brown Beckford, J
CLAIM NO. 2016 HCV 01129
and
and
B. St Michael Hylton Q.C. and Sundiata J. Gibbs instructed by Hylton Powell for the claimants.
Althea Jarrett instructed by the Director of State Proceedings for the defendants.
Proceeds of Crime Act — Application for continued Detention of Cash, Procedure in the Parish Court
This application for judicial review seeks to determine the proper process to be used in an application for the continued detention of cash under section 76 of the Proceeds of Crime Act ( POCA) in the Parish Courts (PC). The decision of the Court is that this application must be made in accordance with Order XI Rule 7 of the Parish Court Rules.
The claimants are Jheanell Watkis, a Woman Constable of the Jamaica Constabulary Force who is an authorized officer under POCA and The Asset Recovery Agency, a statutory body established under POCA with responsibility, among other things, for carrying out investigations into various financial crimes. The first defendant is a Parish Court Judge (PCJ) of the Corporate Area Parish Court, Civil Division. The 2 nd defendant The Attorney General is joined as a representative of the Crown pursuant to the Crown Proceedings Act.
This application was occasional by the refusal of the learned PCJ to consider any further application for the continued detention of cash under section 76 of POCA unless such application was commenced by Plaint Note and Particulars of Claim. The manner of proceeding is dependent on the resolution of the issue whether the application for the continued detention of cash commences the proceedings and is a stage in the process or whether it is an application standing on its own.
The PCJ's authority is given by section 76 of POCA. Section 76 (2) of POCA provides that:
(2) The period from which cash (seized under section 75) or any part thereof may be detained under Subsection (1) (initial detention) may be extended by an order made by a Resident Magistrate Court: (now Parish Court)
Provided that no such order shall authorise the detention of any of the cash —
(a) beyond the end of the period of their months beginning with the date of the order, in the case of an order first extending the period; or
(b) in the case of a further order this section, beyond the end of the period of two years beginning with the date of the first order.
(3) A Justice of the Peace may also exercise the power of a Resident Magistrate's Court to make an order first extending the period mentioned in subsection (1).
(5) On an application under subsection (4) the Court or Justice of the Peace, as the case may be, may make the order if satisfied, in relation to any cash to be further detained, that either of the following conditions is met.
Of note the initial application for an extension can be made to a PCJ or a Justice of the Peace (JP). Subsequent extensions can only be granted by a PCJ. POCA makes no provision for the procedure to be followed in making these applications. It was conceded by the defendants that if this application is to be commenced by plaint, then there would necessarily be separate procedures before a PCJ and a JP for the same type of application.
In Metalee Thomas v The Asset Recovery Agency (2010) JMCA Civ 6 Harrison JA indicated that in the absence of rules and regulations under POCA, the commencement of actions in the Parish Court were to be governed by the Judicature (Parish Court) Act (JPC Act) and Parish Court Rules (Rules)
Against this background the claimants contend that the applicable Rule is Order XI Rule 7 which states that:
Where by any statute or by these Rules any interlocutory application is expressly or by reasonable intendment directed to be made to the Judge, then subject to the provisions of the particular statute or of the particular Rule applicable thereto, and so far as the same shall not be inconsistent therewith the following provisions shall apply:-
(a) The application may be made either in or out of Court, and either ex parte or on notice in writing; when made on notice, the notice shall be served on the opposite party two days at least before the hearing of the application, unless the judge gives leave for shorter notice.
(b) No affidavit in support shall be necessary, but the Judge may if he shall think fit adjourn the hearing of the application and order an affidavit or affidavits in support to be filed.
There was no contest that an application under section 76 would be an interlocutory application in that it would not finally determine or dispose of the matter. The claimants however contended that section 143 of the JPC Act does not require that all matters be commended in the PC by plaint and particulars of claim. Section 143 provides that all actions and suits which, if brought in the Supreme Court, would be commenced by writ of summons should be commenced by plaint and particulars of the claim which it is the contention of the claimant, means that only matters that would be commenced by writ (now claim form) in the Supreme Court, are to be commenced by plaint in the PC. “Action” is defined in the Rules as any proceeding commenced by plaint. “ Matter” is defined in the Rules as any proceeding other than an action and includes interlocutory applications. They make the point that in the Supreme Court, interlocutory applications are commenced by way of Notice of Application and supporting affidavit. In the PC they would be brought by notice and affidavit.
The defendants contend under section 143 of the JPC Act the only originating process in the PC is the plaint, and while conceding that in the Supreme Court the Civil Procedure Rules make provision for pre-action applications, on a true construction, Order XI Rules 1 to 4 refer to applications made during the course of an action. Had it been intended to confer on the PCJ jurisdiction to hear pre-action applications, it was submitted that that would have been expressly done. Hence the PCJ, a creative of statute, had no jurisdiction to hear pre-action applications.
Section 75 of POCA which provides that an authorized officer may seize cash is not an end in itself. Section 76(5) makes it clear that it is an investigative tool or ancillary to criminal proceedings. As an investigative tool its purpose is to give investigators the time to investigate the source of cash. This investigation may give rise to an application for the forfeiture of the cash.
Further, section 76 allows for the continued detention of the cash. In Leroy Smith v Commissioner of Customs [2014] JMCA Civ 10. Brooks JA seems to make it clear what the stages may be, saying:
[19] Part IV of the Act deals with the civil recovery of property which are the proceeds of unlawful conduct. It includes sections 55 through 90 of the Act. Section 55 defines recoverable property and property obtained through unlawful conduct. Section 75 of the Act allows for a customs officer to seize and detain cash if that officer has reasonable grounds to suspect that the cash is recoverable property, or reasonably suspects it to be intended to be used for unlawful conduct.
[20] The property having been seized, section 76 allows for its continued detention for a period of up to three months. The person from whom it has been seized may apply, pursuant to the provisions of section 78, for the release of the cash on the ground that either the basis for the detention or the provisions of section 76 are no longer applicable. On the other hand, section 79 allows the detaining officer to apply within the three month period for the cash, or any part, of it to be forfeited. Section 79 authorises a Resident Magistrate, after a summary hearing, to order the forfeiture of the cash. (emphasis mine)
The application for forfeiture is not inevitable. It is subject to the investigation which may lead to an application for forfeiture of the seized cash. In Delores Elizabeth Miller v The Asset Recovery Agency [2016] JMCA Civ. 25 it was held that where cash is detained under section 76, the authorised officer has discretion to make an application for the forfeiture of the whole or any part of the cash under section 79(1). This section did not impose an obligation on the authorised officer to make an such an application (per Dukharan JA at para 19.)
“Proceedings” in that sense are commenced with the seizure of cash by the relevant authority. The proper interpretation of ‘the proceedings’ in R (on the application of Chief Constable of Lancashire Constabulary) v Burnley Magistrates Court (2003) EWHC 3308 (Admin) is therefore that Pitchford J is dealing with proceedings in general under POCA and not the commencement or stages of court proceedings. Section 76 does not initiate proceedings. It is a continuation of the actions taken by the authorized officer. It is therefore erroneous to argue, as the defendants do, that making an application for the continued detention of cash commenced proceedings. The application for forfeiture is a separate proceeding, the order being subject to appeal. As such an application for the continued detention of seized cash could be regarded as a “pre-action” application.
A useful starting point for the discussion is this portion of the judgment of Lord Scarman in Castanho v Brown and Root (U.K.) Ltd [1981] A.C. 557
‘The considerable case law to...
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