The Assets Recovery Agency v Robert Sylvester Dunbar
| Jurisdiction | Jamaica |
| Judge | Batts J |
| Judgment Date | 31 March 2017 |
| Neutral Citation | [2017] JMSC Civ 47 |
| Docket Number | IN THE CIVIL DIVISION CLAIM NO. 2015HCV02582 |
| Court | Supreme Court (Jamaica) |
| Date | 31 March 2017 |
[2017] JMSC Civ 47
IN THE SUPREME COURT OF JUDICATURE OF JAMAICA
IN THE CIVIL DIVISION CLAIM NO. 2015HCV02582
In the Matter of an Application by the Assets Recovery Agency for a Restraint Order Pursuant to Sections 32 and 33 of the Proceeds of Crime Act 2007
and
Susan Watson Bonner for Claimant
Denise Senior-Smith instructed by Oswest Senior Smith & Co. for 1 st and 2 nd Defendants
Forfeiture of Assets — Application for Interim Order — Claim filed twice with same number — Whether service of second filed Claim valid — Affidavit pre-dates claim and application which were served — Whether valid — Delay in making application-Application inter partes — Whether honest belief reasonably held that Defendants likely to dissipate assets — Whether evidence in support of application sufficient-whether Act has retroactive effect.
In this interlocutory application the Claimant, a state agency, seeks to restrain the disposal of assets due to the pendency of criminal proceedings. The jurisdiction relied upon is that provided by the Proceeds of Crime Act and in particular sections 32 and 33 of that Act. Those sections state:
“Section 32. —
(1) The Court may make a restraint order if any of the following conditions are satisfied—
(a) there is reasonable cause to believe that an alleged offender has benefitted from his criminal conduct and—
(i) a criminal investigation has been started in Jamaica with regard to the offence;
(ii) proceedings for the offence have been commenced in Jamaica and have not been, concluded; or
(iii) the enforcing authority has made an application under section 5, 20, 21, 26 or 27, which has not been determined, or the Court believes that such an application is to be made;
(b) where—
(i) the enforcing authority has made an application under section 22 (reconsideration of benefit after order is made), which has not been determined or the Court believes that such an application is to be made; and
(ii) there is reasonable cause to believe that the Court will decide under that section that—
(A) in the case of a forfeiture order, the property identified under the fresh identification of the defendant's benefit exceeds the property found by the Court that made the order; or
(B) in the case of a pecuniary penalty order, the amount found under the new calculation of the defendant's benefit exceeds the relevant amount as defined in that section;
(c) where—
(i) the enforcing authority has made an application under section 24 (reconsideration of available amount after order is made), which has not been determined, or the Court believes that such an application is to be made; and
(ii) there is reasonable cause to believe that the Court will decide under that section that the amount found under the new calculation of the available amount exceeds the relevant amount as defined in that section; or
(d) where the enforcing authority has made an application under section 58 (recovery orders), which has not been determined or the Court believes that such an application is to be made.
(2) Subsection (I)(a)(ii) is not satisfied if the Court finds that—
(a) there has been undue delay in continuing the proceedings; or
(b) the Director of Public Prosecutions does not intend to proceed.
(3) If an application mentioned in subsection (1) (a) (iii), (b), (c) or (d) has been made, the requirements of those provisions are not satisfied if the Court finds that—
(a) there has been undue delay in continuing the application; or
(b) the enforcing authority does not intend to proceed.
(4) If subsection (1) (a) (i) is satisfied—
(a) references in this Part to the defendant are to the alleged offender;
(b) references in this Part to the enforcing authority are to the Director of Public Prosecutions; and
(c) section 2(2)(a) (relevant dates for identifying tainted gift) has effect as if proceedings for the offence had been commenced against the defendant when the investigation was started.
33.-(1)
A Judge of the Supreme Court (hereinafter referred to as the Judge) may make a restraint order upon an application made without notice in Chambers by—
(a) the Director of Public Prosecutions; or
(b) the Agency.
(2) If any of the conditions set out in section 32(l) is satisfied, the Judge may make an order prohibiting any person dealing with any realizable property held by a specified person.
(3) A restraint order may provide that it applies to—
(a) all realizable property held by the specified person, whether or not the property is described in the order;
(b) realizable property transferred to the specified person after the order is made.
(4) A restraint order may be made subject to exceptions, which may—
(a) provide for reasonable living expenses and reasonable legal expenses, other than any legal expenses that—
(i) relate to an offence which falls within subsection (5); and
(ii) are incurred by the defendant or by a recipient of a tainted gift;
(b) make provision for the purpose of enabling any person to carry on any trade, business, profession or occupation;
(c) be made subject to conditions.
(5) The offences that fall within this subsection are—
(a) the offence mentioned in section 32(l)(a)(i), if the condition mentioned in that subsection is satisfied;
(b) the offence mentioned in section 32(a)(ii), if the condition mentioned in that subsection is satisfied;
(c) the offence concerned, if any of the conditions mentioned in section 32(1) (a)(iii), (b) or (c) is satisfied.
(6) Where—
(a) the Judge makes a restraint order; and
(b) the applicant for the order applies to the Judge to proceed under this subsection, whether as part of the application for the restraint order or at any time afterwards,
the Judge may make such order as the Judge believes is appropriate for the purpose of ensuring that the restraint order is effective, including in particular, any provisions which the Judge considers appropriate for the preservation of the property with respect to which the order is made.
(7) For the purposes of subsection (2), dealing with property includes removing property from Jamaica.
(8) A copy of a restraint order shall be served on a person affected by the order in such manner as may be prescribed by rules of court.”
The Act and these provisions have in their relatively short existence received considerable judicial gloss from our courts see for example: The Asset (sic) Recovery Agency v Rohan Anthony Fisher et al [2012] JMSC No 16, on appeal Delores Elizabeth Miller v Assets Recovery Agency [2016] JMCA Civ 25; The Assets Recovery Agency v Michael Brown aka Erdley Barnes [2015] JMSC Civ 163; Assets Recovery Agency (Ex-parte) Jamaica [2015] UKPC 1, Privy Council Appeal No 0036 of 2014.
The Claimant has filed four (4) affidavits sworn to by the same affiant. These affidavits support the application and respond to affidavits filed by the Defendants. They assert that the 1 st Defendant was under investigation, has been charged and is now before the court for money laundering. Much reliance is placed on statements made by Dean and Delmar Drummond which implicate the 1 st Defendant. Dean was successfully prosecuted in the United States of America for drug related offences. Reliance is also placed on seized ledgers, which it is said refer to the 1 st Defendant. The affidavits also purport to demonstrate that the Defendants' income was insufficient to acquire property the Defendants now own. Paragraph 28 of the affidavit dated the 30 th April 2015 stated:
-
“28. Based on the information obtained surrounding the purchase of the property and the subsequent palatial property construct [sic] on the land there is sufficient for the court to infer that the acquisition of the property and buildings thereon were funded with the 1 st respondent's benefit derived directly or indirectly from his involvement in drug trafficking. Based on the investigations conducted, I have reasonable ground to believe that it is more likely than not that the asset identified was not acquired from the Respondent's known legitimate income. The known sources of income identified at Table 5 above are insufficient to enable the Respondents to acquire the asset identified and listed in Table 1 above. This asset I believe represents the Respondents' benefit from criminal conduct namely the 1 st Respondent's drug trafficking activities with Dean Drummond.
-
29. There are reasonable grounds to believe that the Respondents have engaged in conduct that is criminal under the laws of Jamaica, to wit, money laundering and might take steps to transfer, sell, dissipate or otherwise deal with the asset and thereby frustrate any subsequent civil recovery order made by the court.”
The sole asset in respect of which the restraint order is sought is property located at Lot 24 Whittingham Avenue Ironshore, Hartfield Meadows, Little River, St. James, registered at Volume 1324 Folio 52 of the Registrar Book of Titles. It was purchased by the Defendants for $1.5 million. A house was constructed on the property by the Defendants. The property was valued at $50 million in the year 2013.
The Defendants (who are the Respondents to the application) relied on affidavits of Olivia Derrett filed 3 rd March 2017, the 2 nd Defendant (Christina Dunbar) filed 27 January 2017 and an affidavit from each Defendant filed on the 15 th November, 2016. These affidavits deny involvement in illegal activity, explained their “relationship” with the Drummonds and set out in some detail their sources of income in the period. Both sides filed written submissions and supplied authorities and also addressed me...
To continue reading
Request your trial