The Attorney General of the Commonwealth of Dominica v Jhawnie Gage
| Jurisdiction | Dominica |
| Judge | Stephenson J. |
| Judgment Date | 05 January 2020 |
| Neutral Citation | DM 2020 HC 1 |
| Court | High Court (Dominica) |
| Docket Number | CASE NO. DOMHCV2014/0387 |
| Date | 05 January 2020 |
IN THE EASTERN CARIBBEAN SUPREME COURT
IN THE HIGH COURT OF JUSTICE
CASE NO. DOMHCV2014/0387
In the matter of sections 59L and 59M of the Proceeds of Crime Act, Chap 12:29, Revised Laws of the Commonwealth of Dominica as amended by the Proceeds of Crime (Amended) Act No. 7 of 2013.
and
In the matter of an application for a Recovery Order in respect of property of Jhawnie Gage, Arah Paula Cecil Davis and Edgar Augustus Peltier against Jhawnie Gage, Arah Paula Cecil Davis and Edgar Augustus Peltier the National Bank of Dominica Ltd located on 64 Hillsborough Street; and the Royal Bank of Canada located on Dame Eugenia Charles Boulevard
Mrs Tameka Hyacinth Burton Solicitor General of the Attorney General's Chambers for the Claimant/Applicant/Respondent
Mrs Gina Dyer Munro of Dyer and Dyer for the Defendants/Respondents / Applicants
Mr Justin Simon QC holding a watching brief for the Defendants/Respondents / Applicants
On the 23 December 2014, the Attorney General, acting through Corporal Patrick George, Senior Financial Investigator of the Financial Intelligence Unit (the FIU) and represented by Joelle Harris the then Solicitor General, on an application without notice, obtained a restraint order prohibiting the applicants 1 from in anyway disposing of, tampering with, removing from the jurisdiction or in any way diminishing the value of the property and assets set out in the body of the Order including bank accounts held at banks operating in Roseau Dominica and held in the names of the applicants pending the hearing and outcome of an application for a recovery order made by the state pursuant to the Proceeds of Crime Act 2 as amended by the Proceeds of Crime (Amendment Act) 3.
By way of two notices of application dated the 27 th January 2015 the applicants filed applications to discharge the property freezing order made against them.
Affidavits were filed by all the applicants in support of their applications on even date to which were exhibited a number of exhibits.
On the 28 th January 2015 the applicants filed for a stay of proceedings pursuant to Rule 26.1.(2) (q) of CPR 2000 with an affidavit in support of the application.
On the 30 th January 2015 the draft consent order was approved by Thomas J. This order was only ever signed approved and dated by the learned Judge, it was never filed. There was no compliance with Part 42.7 (d) of CPR 4.
Be that as it may, subsequent to this draft consent order for a stay of proceedings, there were a number of applications made by the applicants and the respondents. There were also lengthy periods of inactivity in the proceedings between the 26 th October 2015 and the 16 th February 2017 and from the 20 th February 2017 to the 29 th June 2018 and again from the 17 th December 2018 to March 2019.
Arguments were heard in Chambers on the application to discharge the freezing order on the 29 th March 2019 and written submissions filed by the applicants on the 10 th May 2019. There is no record on the court's file of the respondent filing any written submissions, however from the courts record of the hearing it is noted that speaking notes were submitted by the respondents on the morning of the hearing.
In her amended written submissions Learned Counsel Dyer Munro sought to launch a five pronged attack on the exparte order obtained by the respondents:
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a. That there was no basis for seeking an exparte order;
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b. That the respondents failed to disclose that the respondents were charged with money laundering offences which were dismissed;
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c. That most of the items in the order obtained were already in the respondent's custody;
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d. That the order obtained infringes on the principles of self-incrimination; and
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e. That the order is an abuse of process.
Learned Counsel Gina Dyer Munro on behalf of the applicants filed extensive submissions and was also given the opportunity to address the court in support of her application. FIU represented by the Solicitor General filed submissions, presented speaking notes and made oral representations on their behalf.
The court chooses now not to restate these submissions and in so doing the court intends no disrespect to counsel. The submissions both oral and written were useful and helpful and have been fully considered by the Court.
The first substantive ground argued by counsel directed towards the impugned order was that there was lack of full and frank disclosure on the part of the FIU.
The exparte application in the case at bar is an application for a recovery order made pursuant to the provision of the Proceeds of Crime Act 5. (“ POCA”) Applicants for these kinds of orders like the application for exparte Mareva and Anton Pillar injunctions are required to make full and frank disclosure to the court. In Clifford Pitt et al v The Director of Public Prosecutions 6 Justice Brian G K Alleyne whilst not deciding on the point, made this observation regarding the issues of non-disclosure in applications under the Proceeds of Crime Act St Vincent “ that the duty of full and frank disclosure applies equally to applications under this Act as to other applications” 7
In Stanford International Bank; Janvey v Wastell and another; Serious Fraud Office v Wastell and another 8 Hughes LJ spoke to the duty of candour required in POCA applications and at paragraph 191 of the judgment he said:
“Whilst I respectfully agree with the view expressed by Slade LJ in Brink's Mat Ltd v Elcombe [1988] 1 WLR 1350 that it can be all too easy for an objector to a freezing order to fall into the belief that almost any failure of disclosure is a passport to setting aside, it is essential that the duty of candour laid upon any applicant for an order without notice is fully understood and complied with. It is not limited to an obligation not to misrepresent. It consists in a duty to consider what any other interested person would, if present, wish to adduce by way of fact, or to say in answer to the application, and to place that material before the judge. That duty applies to an applicant for a restraint order under POCA in exactly the same way as to any other applicant for an order without notice. Even in relatively small value cases, the potential of a restraint order to disrupt other commercial or personal dealings is considerable. The prosecutor may believe that the defendant is a criminal, and he may turn out to be right, but that has yet to be proved. An application for a restraint order is emphatically not a routine matter of form, with the expectation that it will routinely be granted. The fact that the initial application is likely to be forced into a busy list, with very limited time for the judge to deal with it, is a yet further reason for the obligation of disclosure to be taken very seriously. In effect a prosecutor seeking an ex parte order must put on his defence hat and ask himself what, if he were representing the defendant or a third party with a relevant interest, he would be saying to the judge, and, having answered that question, that is what he must tell the judge. This application is a clear example of the duty either being ignored, or at least simply not being understood. This application came close to being treated as routine and to taking the court for granted. It may well not be the only example.” 9
Sykes J in the Jamaican Case of The Assets Recovery Agency v Upert Smith and others 10 relied on and agreed with this dicta of Lord Hughes. It is clear that this dicta is relevant to the consideration of the application at bar.
Those being the principles involved it remains only to apply them to the case at bar.
Has there been non-disclosure of material facts in this case and if so has the nondisclosure been so serious as a matter of public interest and due administration of law that the restraining order granted by Thomas J should be dismissed? This question can be put another way, whether there has been relevant non-disclosure and if so what consequence should attach to any failure to comply with the required duty to make full and frank disclosure?
Learned Counsel Munro Dyer submitted that there has in what seems to be her opinion, been willful and blatant misrepresentation of fundamental facts in this matter by the respondents in that they failed to inform the court that:
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a. there was already a property freezing order in place and that the first and second applicants never breached same and that further, there was never any such order made against the third applicant Peltier. That failure to inform the court of these facts amounted to a material non-disclosure;
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b. the assets which were said to be in the possession of Peltier was at all material times in the custody of the police and that there was never any money laundering charges brought against him therefore there was never any risk of him dissipating any assets and the order was therefore unfair and unjust in the circumstances.
It is the applicants' further contention that the disclosure obligations which the order imposes on the applicants are an “ affront to the principle against self-incrimination”.
It is the applicants' further contention that the disclosure obligations which the order imposes on the applicants are an “ affront to the principle against self-incrimination”.
Learned Counsel Dyer Munro submitted that the order obtained fails to recognise the applicants' privilege against self incrimination and asked this court to find that at this stage it would be an abuse of process of the court for the respondent to be allowed to vary the order...
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