Trevor Wright v Detective Sergeant Yates and Others

• Jurisdiction: Jamaica
• Judge: Campbell, Q.C., J.
• Judgment Date: 25 May 2012
• Neutral Citation: [2012] JMSC Civ 52
• Docket Number: CLAIM NO. CL 2002 W021
• Court: Supreme Court (Jamaica)
• Date: 25 May 2012

Between

Trevor Wright

Claimant

and

DET. SGT. Yates

1st Defendant

And

Inspector Canute Hamilton

2nd Defendant

And

The Attorney General of Jamaica

3rd Defendant

[2012] JMSC Civ. 52

CLAIM NO. CL 2002 W021

IN THE SUPREME COURT OF JUDICATURE OF JAMAICA

Drug Offences (Forfeiture of proceeds) Act — Search Warrant, pursuant to S20 — Whether Reasonable or Probable Cause — Tainted Property — Derived, Obtained or Realised Directly — Convicted Person — Commission of Offence — Pleading Unclear Whether Action in Detinue or Conversion — Distinction Demand — Measure of Damages — Market Value at the Date of Judgment

Mr. Gayle Nelson and Ms. Analisa Chapman instructed by Gayle Nelson & Company for the claimant.

Mr. Curtis Cochrane instructed by Director of State Proceedings for the defendants.

Campbell, Q.C., J.

Background

1 On the 8th February 2001, the claimant's Ford 150 pick-up truck registered 2081 DM, was taken from his home at Glendale in St Catherine by the 1 ^st defendant, who was accompanied by other police officers. The 1 ^st defendant showed a search warrant to the claimant. A year later, on the 7 ^th February 2002, the claimant filed a writ, which alleged that the 1 ^st and 2 ^nd defendants ‘did wrongfully and unlawfully seized the claimant's F150 motor vehicle and have refused to release it and as a result of which, the plaintiff has suffered loss and damage’.

2 In his Statement of Claim, he contended that having been taken to the Narcotics Division, he was interrogated by the 2 ^nd defendant, who asserted that the said motor vehicle was under investigation, as it had been purchased and sent to Jamaica by a known drug dealer. The claimant told the defendants that he purchased the F150 motor vehicle from a Mr. Berkely Hepburn, of Papine, in St. Andrew, paying for it between May 2000 and November 2000, and having it transferred into his name about January 2001. The claimant said he fully explained that he ‘was a purchaser for value without any knowledge of what was been alleged in respect of the motor vehicle.’ He gave the defendants details of the name and whereabouts of the vendor of the motor vehicle.

3 He alleged malice and lack of reasonable and probable cause on the part of the 1 ^st and 2 ^nd defendants because, ‘despite the clear fact of no illegal or unlawful act on the part of himself, the 1 ^st and 2 ^nd defendants have continued to detain his motor vehicle, while vainly asking him for information which he does not have … and maliciously keeping the vehicle in the meantime’.

4 The Defence, filed by the defendants, stated at paragraph 11;

That the said F150 Ford pick-up was seized under and by virtue of the Drug Offences (Forfeiture of Proceeds) Act. That on investigations carried out by the First and Second Defendants, information was received that the said F150 Ford pick-up truck was the property of Samuels Knowles, a convicted drug dealer. That the Plaintiff failed to produce receipts to show that he made genuine payments for the said motor vehicle. That the transfer of the said motor vehicle to the Claimant was merely to conceal the interest of a convicted drug dealer in the said motor vehicle.

5 The claimant and his sister gave sworn evidence as to the acquisition of the motor-vehicle. The claimant stated that he had observed the F150 displaying ‘For Sale’ sign and a telephone number. He contacted the number and eventually met the vendor of the vehicle, and had it assessed twice before completing the payment of the purchase price, which were made in three instalments, between May and November 2000. He testified that the funds were those of his sister who lives in the United States, and on whose behalf he had purchased the vehicle. For each payment, the sister visited Jamaica, making withdrawals from her account at Victoria Mutual Building Society (VMBS) in the amounts of J$800,000; J$400,000 and J$100,000. The total purchase price was of $1,200,000, the additional $100,000 was to accessorise the vehicle. Of his sister, he said she had a home in St. Jago Heights in St. Catherine. He had received receipts for the sums tendered, but they were among the 37 documents removed from his home at the time the 1 ^st defendant visited his home and seized the vehicle.

6 The claimant's sister, Hilma Wright, a nursing assistant, has lived in the United States for the past 38 years. She earns US$25,000 per annum, and testified that she had visited the island in April 2000, with a view of making arrangements to facilitate her permanent return to Jamaica. She, on that visit, requested that her brother buy a vehicle to be utilised at her farm in St. Elizabeth. She testified, there was no house on the farm, although she had made attempts to start construction there some years ago, but those building materials have been stolen. On each of her visits to the VMBS, her brother and a cousin, Derrick Dewdney, had accompanied her.

7 Counsel for the Attorney General, in his written submissions, pointed to areas of inconsistencies in the evidence of the two witnesses for the claimant. He further submitted that there was no certainty as to the cause of action relative to the claim. That the claim is neither detinue nor conversion, as neither had been pleaded. The claim therefore fails. The defendant relied on the case of George and Brandy Ltd. v Lee (1964), 7 WIR 275, to support their submission that the claimant need to specify whether their claim was in detinue or conversion. In that case, the Resident Magistrate had wrongly found that there had been a refusal in the absence of which the claim in detinue must fail. The Court of Appeal went on to hold that, without an amendment, it would not be open for the Resident Magistrate to have found a conversion.

8 Mr. Cochrane further submitted that the evidence reveals a criminal enterprise, and that the 1 ^st and 2 ^nd defendants carried out an extensive investigation, which resulted in the Ford pickup being seized. Crown counsel submitted that the court should find, on a balance of probabilities, the pickup is the property of Samuels Knowles. He said, on an examination of the statements of Hepburn, it is clear that the claimant was involved in activities in breach of the Money Laundering Act. Moreover, there is no evidence that the action of the 1 ^st and 2 ^nd defendants were malicious and without probable and reasonable cause, as required by sections 13 and 33 of the Jamaica Constabulary Force Act.

Discussion

9 The seizing of the van was under colour of the warrant, which was not exhibited before us. The defendants' testimony is that the warrant was issued under the Drug Offences (Forfeiture of Proceeds) Act. Was there reasonable and probable cause for the seizure of the motor vehicle? The applicable section for the issuance of the warrant would be the Drugs Offences (Forfeiture of Proceeds) Act. (the Act) Section 20, which provides that:

Where a Justice of the Peace is satisfied by information on oath that there are reasonable grounds for suspecting that tainted property is to be found on any premises specified in the information, he may issue a search warrant authorising a named officer to enter those premises, and seize property found in the course of the search that the officer believes, on reasonable grounds, to be tainted property.

10 There has to be first, tainted property, and the officer should have reasonable grounds for believing that there are on the premises to be searched. Section 2, provides;

Tainted property in relation to a prescribed offence, means, (a) property used in, or in connection with the commission of the offence; or (b) property derived, obtained or realised directly by the person convicted from the commission of the offence.

An offence, for purposes of the Act, is an offence contained in the Schedule.

11 Neither the 1 ^st nor the 2 ^nd defendant has alleged that the Ford pick-up was used in or had any connection with any offence at all or, in particular, an offence in the Schedule to the Act. In the defence filed, it is alleged inter alia, at paragraph 11, ‘That on investigation carried out by the first and second defendants, information was received that the said F150 Ford pickup truck registered 2081DM was the property of Samuels Knowles, a convicted drug dealer. In the pre-trial memorandum, the Attorney General's Department further alleged that the claimant failed to produce receipts to show that he made genuine payments for the said motor vehicle.

12 Is there any evidence adduced to prove, on a balance of probabilities, that this motor vehicle had been derived, obtained or realised directly by the person convicted, from the commission of a scheduled offence, as required by S. 2(b) of the Act? Mr. Cochrane has invited the court to find, on a balance of probabilities, that the Ford pick-up was the property of Samuels Knowles. It might very well be, although there is nothing in the evidence to support such a finding. The mere allegation that the motor vehicle is the property of Samuels Knowles, a convicted drug dealer, is not enough. In order to meet the requirements of the Act, the defendants need to adduce evidence that the motor vehicle is the property of Samuels Knowles, who is a person convicted of a scheduled offence. Next, that the motor vehicle was derived, obtained or realised directly, from the offence for which Knowles was convicted. Finally, that the said motor vehicle accrued to the claimant at the request of Samuel Knowles.

13 The adverb ‘directly,’ in S. 2(b) of the Act modifies or qualifies all three verbs (i.e., derived, obtained and realised) as to the manner in which it was acquired from the commission of the offence. What this means is that, not all property owned by a person convicted of a scheduled offence, become ‘tainted property,’ for the purposes of the Act. There needs...