DPP v Roberts

• Jurisdiction: Bermuda
• Judgment Date: 19 March 2008
• Date: 19 March 2008
• Docket Number: Civil Appeal 2006 No. 12
• Court: Court of Appeal (Bermuda)

In The Court of Appeal for Bermuda

Stuart-Smith, JA

Civil Appeal 2006 No. 12

BETWEEN:

Kirk Roberts

Appellant

and

Director of Public Prosecutions

Respondent

Mr F Phipps, QC and Mr E Bailey for the Appellant

The following cases were referred to in the judgment:

McIntosh v Lord AdvocateUNK [2001] 2 All ER 638

Philips v United KingdomUNK [2001] Crim L R 811

R v SonejiUNK [2005] 4 All ER 321

Proceeds of Crime Act 1997, s. 9

Order for confiscation — Appeal against judgment — Jurisdiction — Whether DPP has locus standi to bring proceedings

JUDGMENT of Stuart-Smith, JA

Introduction

1. This is an appeal from a judgment of Kawaley, J. made on 24^th March 2006 on the application of the Director of Prosecutions (DPP) for an Order for confiscation pursuant to the Proceeds of Crime Act 1997 (the Act) Section 9. The Judge determined that the Appellant had benefited from drug trafficking and ordered him to pay $1,822,754.27. In default of payment he ordered that the Appellant should serve one years imprisonment for each $10,000 unpaid subject to the statutory maximum. The default term was to be adjusted pro rata in respect of sums less than $10,000 unpaid. The appellant had been sentenced to 10 years imprisonment for this offence of Conspiracy to import controlled drugs, namely Marijuana, following his conviction on the 8^th of July 2002. The Judge also made a charging Order on 15 A West Side Road Bermuda (the property) in the sum of $962,531.20.

Background facts of the Drug Trafficking

2. The evidence for the Prosecution came in the main from the affidavits sworn by Special Constable Robin Dyer. The facts relating to the Appellant's conviction were that a co-conspirator Heinz Golumbeck had made an initial trip to Bermuda with a comparatively small quantity of marijuana in March 2000. Following this the Appellant requested Golumbeck to return to Bermuda with a consignment of 200 lbs of marijuana, for which the Appellant gave him $36,000.00 as an advance. A second major shipment of 200 lbs did not go so smoothly. Eventually a Crown witness one Cabral collected the consignment at sea in his vessel, which he offloaded into an inflatable dingy manned by the Appellant. In an answer to Cabral's expression of hope that they were not handling cocaine, the appellant said ‘No, I don't deal with that anymore’. The abandoned dingy was found by the police on the 19 December 2008. The appellant's house was searched the same day and he was arrested. No drugs from this consignment were found. When Golumbeck called the Appellant from sea, the latter said ‘it's cool. I haven't lost anything’. Following his arrest he told the police ‘I've been doing this for 20years’. The Appellant did not give evidence or call witness at his trial. His appeal to the Court of Appeal and Privy Counsel failed. The Conspiracy charge apparently related only to the second consignment of 200 lbs. But he subsequently pleaded guilty to a further charge of possession of 936.8 grams of cannabis found in his house when raided by the police on the day of his arrest.

Judges findings on benefit

3. The judge found that the claimant was entitled to a confiscation order under Section 9 of the Proceeds of Crime Act 1997 in the following amounts:

Deposit in BNTB account	$ 40,261.90
Deposit in the Capital G	$ 5,650.00
200 lb Marijuana	$1,400,000.00
Cash directly sent	$ 10,984.00
Cash sent by others	$ 15,795.44
Unaccounted building costs At 15 West Side Road	$ 350,062.40
$1,822,754.27
Total	$1,822,754.27

4. The Judge then considered what realizable assets were owned by the Appellant. He held that the Appellant and his wife had a joint interest in the Property. The market value of the property was$1,875,000.00 which, after the deductions of the mortgage and legal costs resulted in an equity of redemption of $1,575,000.00. One half of this was $787,500. But to this had to be added one half of the unaccounted building costs, namely $175,031.20, which the judge held had been provided by way of gift to the wife. The calculation is set out in paragraph 92 of the judge's findings as follows:

Market value of Property	$1,875,000.00
Less Mortgage	$192,573.00
Less estimated legal costs	$ 7,427.00
$1,575,000.00
Less 50% joint interest	$ 787,500.00
$ 787,500.00
+ 1/2 Building Costs	$ 175,031.20
	$ 962,531.20

5. There are a number of grounds of appeal. The first two are challenges to the court's jurisdiction. The remainder of the challenges of certain of the judge's findings of fact.

Ground 1

6. The DPP has no locus standi to bring the proceedings under the Act. It is contended that the proceedings must be brought by the Attorney General and there is no statutory provision substituting the DPP for the Attorney General. This point was not argued in the Court below.

7. Section 9(1) of the Act provides:

9 (1) Where a defendant appears before the Supreme Court to be sentenced for one or more drug trafficking offences, the court shall proceed under this section—

(a) on the application of the Attorney General,

Section 10(1) is to a similar effect

8. The Bermuda Constitution Order 1968 (the Constitution) provides:

Attorney-General

71 (1) There shall be an Attorney-General who shall be the principal legal adviser to the Government.

(1A) The Attorney-General shall be either a member of either House who is entitled to practice as a barrister in Bermuda, in which case he shall be appointed by the Governor in accordance with the advice of the Premier, or a public officer.

(2) The Attorney-General shall have power, in any case in which he considers it desirable so to do—

(a) to institute and undertake criminal proceedings against any person before any civil court of Bermuda in respect of any offence against any law in force in Bermuda;

The Director of Public Prosecutions Sections

71A At any time when the office of Attorney-General is held by a member of either House—

(a) there shall be a Director of Public Prosecutions whose office shall be a public office;

(b) the following provisions of this Constitution shall have effect as if references therein to the Attorney-General were references to the Director of Public Prosecutions, that is to say, subsections (2) to (6) of section 71 …

9. Although at first blush it might appear that the expression criminal proceedings are to be contrasted with civil proceedings in a civil court in Paragraph 71(2)(a), I am satisfied that Counsel are correct in submitting that the expression “civil court” is to be contrasted with a court constituted by or under a disciplinary law (see Section 16(1) of the Constitution). Therefore criminal proceedings take place before a civil court; they do not thereby become civil proceedings. Any other construction would mean that the Attorney General, and since the institution of the Office of DPP, the DPP would have no authority to institute criminal proceedings.

10. The Director of Public Prosecutions (Consequential Amendment) Act 1999 provides:

4 Where a reference is made to the Attorney General in any statutory provision … that relates to criminal proceedings, the references shall be construed as a reference to the DPP.

This section, as its name suggests, is consequential upon the amendment of the Constitution in Section 71 A.

11. The question therefore is whether the proceedings under Section 9 of the Act are civil proceedings, as the Appellant...