Martseeyah Baht Jones, Rita Angela Jones, Morlan Antonio Smith Steede and Richard Richardo Steede v R

• Jurisdiction: Bermuda
• Judge: Shade Subair Williams J
• Judgment Date: 17 January 2019
• Neutral Citation: [2019] SC Bda 6 App
• Docket Number: No. 28 of 2018
• Court: Supreme Court (Bermuda)
• Date: 17 January 2019

[2019] SC (Bda) 6 App

In The Supreme Court of Bermuda

Williams, J.

No. 28 of 2018

Between:

Martseeyah Baht Jones

1 ^st Appellant

and

Rita Angela Jones

2 ^nd Appellant

and

Morlan Anthonio Smith Steede

3 ^rd Appellant

and

Richard Ricardo Steede

4 ^th Appellant

and

The Queen

Respondent

1 ^st–2 ^nd Appellants: No appearances

3 ^rd–4 ^th Appellants: Mr. Tyrone Quin (DV Bermuda)

Respondent: Mrs. Shakira Dill-Francois (Dep.S-G)

Meaning of Appeal by way of Rehearing / Meaning of “Satisfied” as standard of proof Appeal against Order of Forfeiture under section 51 of the Proceeds of Crime Act 1997

JUDGMENT of Shade Subair Williams J

Shade Subair Williams J

Introduction

1 This matter has come before the Court on appeal from a ruling made by the learned Magistrate, Mr. Khamisi Tokunbo, in answer to an application by the Crown for forfeiture of criminal proceeds pursuant to section 51 of the Proceeds of Crime Act 1997.

2 The appeal was heard by way of a rehearing pursuant to section 51(4). Having heard Counsel, I reserved judgment and the provision of written reasons which are outlined below.

Summary of the Facts

3 No real contention arose between the parties on the facts before this Court.

4 On Friday 22 January 2016, the late Mr. Morlon Steede (MS) 1, a Jamaican national attended the LF Wade International Airport to travel to Jamaica via Miami.

5 MS was subject to a secondary search at the US Customs and Border Protection. Upon questioning by US Customs Officers, MS presented a false document which purported to be an authentic certificate from the Jamaica Constabulary Force reporting that MS did not appear to be in the Jamaica Criminal Database. This was later proven to be untrue on MS' admission that he served a term of 6 months' imprisonment for possession of controlled substances. On this basis, MS was denied entry to the US.

6 When further questioned by a US Customs Officer as to the quantity of cash he had on his person, MS falsely stated that he had $3000 in his possession. However, it was later discovered that MS was carrying $7000 in US currency without supporting documentation to explain the purpose of the cash. This resulted in the investigative involvement of Detective Constable 2213 Anthony Topey of the Joint Intelligence Unit.

7 DC Steede interrogated MS on the source of the cash discovered on his person. In reply, MS informed police that a $5000 portion of the money seized had been given to him by his wife, Martseeyah Jones (MJ) for a down payment on a house he was to select in Jamaica for her and her sisters.

8 However, on the evidence which was before the learned Magistrate, MJ told Detective Constable 2028 Jones that both she and her sister, the 2nd Appellant, Rita Jones (RJ), gave MS a sum of $2,500 (making up the total sum of $5000) for investment purposes. Evidence

before the Court also established that RJ also assisted MS prior to his airport arrival in converting the $7000 cash into US currency

9 According to statements made by MS during the same interview he said that the remaining $2000 had been given to him by his father, the 4th Appellant, Ricardo Steede, (RS) as a form of financial assistance.

10 On 23 February 2016 RS partook in a voluntary police interview and informed police that he had given (not gifted) the $2000 to MS on the specific instruction that MS pass this money on to his (MS') mother in support of a bus transportation business owned or operated by MS' parents.

11 The $7000 sum was seized and placed into an evidence exhibit bag and later handed over to the Financial Crime Unit of the Bermuda Police Service. On the same date, MS signed a document entitled ‘Notice of Disclaimer’ which stated, inter alia, that he did not object to the forfeiture of the $7000 cash sum and that he would not contest a forfeiture application before the Court. Additionally, MJ informed DC Jones on 19 September 2017, that neither she nor her sister, RJ, had any interest in pursuing the recovery of the seized sum and that they would both sign disclaimers to that effect.

12 A forfeiture application was made before the learned Magistrate. On 31 May 2018 the learned Magistrate ordered that $2000 of monies seized was to be released and returned to RS. The remaining $5000 was ordered to be forfeited to the Crown.

13 RS prosecuted this appeal through his Counsel without the participation of the other named Appellants. He maintained his personal interest in the $2000 which was released to him and further asserted that he appeared in a representative capacity for the other Appellants including the estate of MS in respect of the forfeited $5000.

14 While RS' standing as an estate representative was not seriously argued by Ms. Dill-Francois, the Respondent did not accept that RS could properly pursue the appeal on behalf of the other named Appellants. Accordingly, Appellants MJ and RJ were directed to confirm by supplemental affidavit evidence their respective interests in prosecuting this appeal and recovering any of the forfeited sums.

15 By affidavit evidence sworn on 5 December 2018, MS stated:

• 1. At all material times I was or am the wife of the 3rd Appellant who is now deceased.

• 2. At all material times I have been a party to these proceedings.

• 3. At all material times I have asked and given the 4th Appellant Mr. Richard Steede the authority (to) handle all legal matters on behalf of the estate of my late husband, the 3rd Appellant.

• 4. More specifically, I have asked and given Mr. Richard Steede authority to represent the estate of my late husband with regard to these legal proceedings.

The Relevant Law:

Section 51 of the Proceeds of Crime Act 1997 (“the Act”) :

16 Section 51 governs the Court's powers to make an order for forfeiture and is premised on any seizure or detention of property by a police officer made under section 50. This applies to property imported into Bermuda, exported from Bermuda or found in the execution of the duties of the officer. The police officer must have reasonable grounds for suspecting that the property in question directly or indirectly represents any person's proceeds of criminal conduct or that such property is intended by any person for use in any criminal conduct.

17 Where such property is to be detained for more than forty-eight hours, it must be done under an order of a magistrate pursuant to subsection (2). The magistrate under such circumstances must be satisfied on the establishment of the reasonable grounds for suspicion and must also find that the continued detention of the property is justified while its origin or derivation is being further investigated or while criminal proceedings are being considered. Where the property detained for more than 48 hours is cash consisting of coins and bank-notes, it should, where practicable, be held in an interest-bearing account in order for that interest to be added to the cash on its forfeiture or release, pursuant to section 52.

18 Section 51 is triggered where the Crown makes an application for seized and detained property to be forfeited and paid into the Confiscated Assets Fund, as established under section 55A of the Act. Section 51 provides:

Forfeiture orders and appeals

51

• (1) A court of summary jurisdiction may make an order (a “forfeiture order”) ordering the forfeiture of any property which has been seized under section 50 if satisfied, on an application made by a police officer while the property is detained under that section, that the property directly or indirectly represents any person's proceeds of, or benefit from, or is intended by any person for use in, criminal conduct.

• (2) An order may be made under subsection (1) whether or not proceedings are brought against any person for an offence with which the property in question is connected.

• (3) Any party to the proceedings in which a forfeiture order is made (other than the applicant) may, before the end of the period of thirty days beginning with the date on which it is made, appeal to the Supreme Court.

• (4) On an application made by an appellant to a court of summary jurisdiction at any time, that court may order the release of so much of any cash to which the forfeiture order relates as it considers appropriate to enable him to meet his legal expenses in connection with the appeal.

• (5) An appeal under this section shall be by way of rehearing, and the Supreme Court may make such order as it considers appropriate and, in particular, may order the release of the property (or, in the case of cash, any remaining cash) together with any accrued interest in the case of cash.

19 The evidential threshold stated at subsection (1) requires a magistrate to be satisfied that the elements of the section have been proved.

20 In my previous judgment A.R.M.F. v A.J.F. [2018] SC (Bda) 61 Div (23 July 2018) I cited the helpful remarks of Omrod LJ in K v K (Avoidance of Reviewable Disposition) (1983) 4 FLR 31, 36G, CA in outlining what it means for the Court to be satisfied on an application. While the examination of the term ‘satisfied’ was done in the context of matrimonial matters, I see no reason why its meaning would not parallel with test applicable for civil matters.

21 At page 36 of the English Court of Appeal judgment, Omrod LJ said:

“… I venture to think that all of us know when we are ‘satisfied’ of something by evidence in court, or not. Our difficulties begin when we try to say what we mean by being ‘satisfied’. It forces people to turn to synonyms, which altar the sense, or to the addition of various adverbial phrases such as ‘beyond reasonable doubt’ or ‘on the balance of probability’, which can lead to rather unreal distinctions being drawn. But the question remains, in simple language, ‘Am I satisfied?’ I think that, if the judge had asked himself that question, he would have arrived at the same answer as...