The Assets Recovery Agency v Sanja Ricardo Elliott

• Jurisdiction: Jamaica
• Judge: Brooks JA
• Judgment Date: 06 September 2021
• Neutral Citation: JM 2021 CA 97
• Court: Court of Appeal (Jamaica)
• Docket Number: SUPREME COURT CIVIL APPEAL NO 37/2017

[2021] JMCA Civ 39

IN THE COURT OF APPEAL

BEFORE:

The Hon Mr Justice Brooks JA

The Hon Mrs Justice McDonald-Bishop JA

The Hon Miss Justice P Williams JA

SUPREME COURT CIVIL APPEAL NO 37/2017

Between

The Assets Recovery Agency

Appellant

and

Sanja Ricardo Elliott

1 ^ST Respondent

and

Myrtle Gentles Elliott

2 ^ND Respondent

and

Elwardo Augustus Elliott

3 ^RD Respondent

and

Tasha-Gay Deayna Goulbourne-Elliott

4 ^TH Respondent

and

Mary Chambers

5 ^TH Respondent

and

Aldane Fernando Foster

6 ^TH Respondent

and

The Attorney General of Jamaica

Interested Party

Mrs Alethia Tomlinson (nee Whyte), Ms Shanique Crooks-Alcott and Ms Ann-Monique Bailey for the appellant

Canute Brown and Norman Godfrey instructed by Brown Godfrey & Morgan for the 1 ^st, 2 ^nd, 3 ^rd and 4 ^th respondents

5 ^th and 6 ^th respondents not appearing or represented

Miss Tamara Dickens instructed by the Director of State Proceedings for the interested party

Brooks JA

1 This case has, regrettably, been long in gestation. It was adjourned on 7 February 2018 in order to secure the notes of evidence taken, and the written reasons for judgment given by the judge at first instance (the learned judge). Although those were provided from as long ago as October 2020, the logistics of re-convening this panel prevented an earlier hearing. Indeed, the court was obliged to sit during the vacation in order to prevent further delay. As it turned out, intervening developments simplified the resolution of the case.

2 The appeal is brought to this court by The Assets Recovery Agency (the Agency), which is the statutory body charged with carrying out various functions assigned to it by the Proceeds of Crime Act ( POCA). The Agency is entrusted under the Act, among other thing, to apply for, in certain circumstances, the restraint of the property of various individuals, including people whose property may be subject to forfeiture, on their being convicted of a criminal offence.

3 The learned judge considered and refused an application by the Agency for an unqualified extension of a restraint order (‘the original order’) that had previously been made by another judge of the Supreme Court. The original order was made against the property of Mr Sanja Elliott; his mother, Mrs Myrtle Gentles Elliott; his father, Mr Elwardo Augustus Elliott; his wife, Mrs Tasha-Gay Deayna Gouldbourne-Elliott; Ms Mary Chambers and Mr Aldane Fernando Foster (the respondents). The learned judge granted the extension but permitted Mr Sanja Elliott, Mrs Myrtle Gentles Elliott and Mrs Tasha-Gay Deayna Gouldbourne-Elliott to have access to the restrained property for the purposes of paying reasonable legal fees in respect of the restraint proceedings against them and the criminal proceedings against Mr Sanja Elliott.

4 The Agency contends that the learned judge based his decision on a view that section 33(4) of the POCA was unconstitutional. It asserts that the learned judge erred in so finding and therefore erred in allowing access to the restrained property for the purposes, which were mentioned before. The Agency asks that the learned judge's order be set aside.

5 Section 33(1) of POCA permits a judge of the Supreme Court to make a restraint order upon an application by the Agency. Section 33(3) stipulates that the restraint order may provide that it applies to all realizable property held by a specified person or transferred to that person after the order has been made. Section 33(4) allows exceptions to the restraint order. It states:

Subsection (5), which is referred to in subsection (4) states:

There is no dispute that the conditions of section 32(1)(a)(i) had been satisfied in this case. Mr Sanjay Elliott had been already charged with a predicate offence at the time of the learned judge's decision.

• “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) …

  • (c) …

• “The offences that fall within this subsection are-

  • (a) the offence mentioned in section 32(1)(a)(i), if the condition mentioned in that subsection is satisfied.

  • (b) the offence mentioned in section 32(a)(ii) [sic], 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 The relevant order made by the learned judge is:

“(12) The 1 ^st, 2 ^nd and 4 ^th Respondents are allowed to withdraw from the restrained assets identified in the Order a sum for reasonable legal expenses in respect of these restraint proceedings, and as it relates to the 1 ^st Respondent, the criminal proceedings, subject to the taxation of the bills of cost [sic] in respect of all such legal expenses.”

7 The learned judge arrived at that position by reasoning, which is contained in paragraph [31] of his reasons for judgment:

“I accept that there is a presumption of constitutionality as it relates to the provisions of POCA. However, it appears to me that to [sic] although POCA institutes an absolute prohibition on payment of legal expenses in relation to offences in respect of which a restraint order may be made or in restraint proceedings, it does not provide a concomitant mechanism for an affected citizen to seek recourse to public assistance by way of legal services or funding. As a consequence, it is my view, that the provisions of POCA as contained in section 33(4)(a) infringe the charter of rights provisions of...