Nicai Lambert v The Queen
| Jurisdiction | Bermuda |
| Judge | Shade Subair Williams J |
| Judgment Date | 15 December 2020 |
| Court | Supreme Court (Bermuda) |
| Docket Number | No. 2 of 2019 |
| Date | 15 December 2020 |
[2020] SC (Bda) 53 App
In The Supreme Court of Bermuda
No. 2 of 2019
Appellant: Mr. Charles Richardson (Compass Law Chambers)
Respondent: Mr. Michael Taylor (Crown Counsel)
Appeal against Order of Forfeiture under section 51(4) of the Proceeds of Crime Act 1997 Meaning of “Satisfied” as standard of proof — whether there is an elevated standard of proof
JUDGMENT of Shade Subair Williams J
This is an appeal brought under section 51(4) of the Proceeds of Crime Act 1997 (“the 1997 Act”). The Appellant, Mr. Nicai Lambert, seeks for this Court to quash the ruling of the Senior Magistrate, Mr. Juan Wolffe, wherein he granted the Crown's application for an order of forfeiture (“the forfeiture order”) pursuant to section 51(1) of the 1997 Act.
Having heard Counsel on their oral and written submissions, I reserved judgment which I now provide with these written reasons.
On Thursday 16 January 2016 Mr. Lambert attended the LF Wade International Airport (“the Airport”) to travel to the Dominican Republic via New York. Having completed the initial check-in process, Mr. Lambert proceeded to the US Customs and Border Protection area where he was questioned about his US Declaration form. The Appellant had falsely declared on the form that he did not have an excess of $10,000.00 in cash in his possession. When queried by US Customs Officer, Mr. David Weems, about the sum of cash he was carrying, Mr. Lambert dishonestly stated and maintained that he only had $5,500.00 on him. It was not until Mr. Lambert was subsequently searched that he admitted his earlier declarations to be untrue.
In actual fact, Mr. Lambert had a total cash sum of $67,793.00 (“the $67K”) on his person which was later seized pursuant to section 50 of the 1997 Act. There is no contention arising from the Senior Magistrate's finding that: (i) the sum of US$6,193.00 was discovered in a bank pouch in a small suitcase; (ii) the sum of US$20,000.00 was discovered hidden in the foam padding of an “Invicta” make black coloured case which was in a larger suitcase; (iii) the sum of US$1,600.00 was in the Respondent's trouser pockets; and (iv) the sum of US$40,000.00 was wrapped in 2 packages hidden in the Respondent's front waistband.
In addition to the said cash, police seized a number of watches and jewelry items from the Appellant. However, unlike the majority portion of the cash discovered, the Senior Magistrate found that the watches and jewelry items had not been concealed by Mr. Lambert. Instead, these items were discovered in plain sight in the Appellant's luggage and the Senior Magistrate concluded that the provenance of the items had not been shown by the evidence to be illegitimate. [See paras 62–63 of the judgment].
On 17 June 2016 Mr. Lambert was interviewed under caution by police. In addressing the origins of the cash found in his possession he explained that he had been earning an approximate sum of $400.00 per day as income from driving his taxi car. He professed the $67K to be a year's worth of savings out of these earnings from taxi driving. While Mr. Lambert did not offer much explanation as to why he concealed such a substantial portion of cash from US Customs, he did tell the police that he prefers to keep his earnings in cash because of his general distrust of banks and that he wanted to avoid having to pay a 40% tax levy on the $67K he was travelling with. (Neither party contended that such a tax would have been payable.)
On 11 August 2017 the Crown filed a Notice of Application in the Magistrates' Court for the forfeiture of the $67K. However, a near 1 year period consisting of numerous adjournments transpired before the Crown's application for the forfeiture order finally proceeded before the Senior Magistrate in a series of hearings expanding over a 4 month period between 19 July 2018 and 23 November 2018. Over that 4 month period, the Crown relied on the evidence of DC 861 Damon Hollis as its sole witness. DC Hollis' evidence in chief took the form of affidavit evidence with various exhibits marked by his initials. With the agreement of the parties, the affidavit was taken as read and the Senior Magistrate watched the video recordings of the interviews exhibited to DC Hollis' evidence. DC Hollis was then cross-examined on his evidence by the Appellant's then attorney, Mr. Craig Attridge.
As the Respondent to the Crown's application in the Magistrates' Court, the Appellant opted against filing any evidence in his defence. Instead, he relied on the Crown's evidence of (i) his statements made to officers of the Bermuda Police Service (“BPS”) during the search at the Secondary Area of the US Border Control of the Airport on 16 June 2016 [DH/18] and (ii) his statements made to BPS officers under caution interview on 17 June 2017 [DH/23].
At the close of the trial, the Senior Magistrate reserved judgment and later delivered a written decision dated 31 December 2018 wherein he granted the forfeiture order.
Mr. Richardson advanced three grounds of appeal:
Ground 1:
The learned Magistrate erred in law as it relates to establishing “criminal conduct” per section 3 of POCA 1997, namely that the $67,793 was the proceeds of drug trafficking;
Ground 2:
The learned Magistrate erred in law as it relates to making his decision in part based on the Appellant's “lack of reasonable explanations” for the source of the $67, 793.00. It is the Crown's duty to prove the offence on the balance of probabilities; and
Ground 3:
The learned Magistrate erred in law in drawing the wrong inferences from the Appellant's evidence i.e. his caution interview.
The fourth ground of appeal, which had been proposed as a supplement, was withdrawn by Mr. Richardson during the appeal hearing before me on 16 October 2020.
The Senior Magistrate's power to make a forfeiture order is derived from section 51(1)-(2) of the 1997 Act which requires a summary court to be satisfied that the property detained by the police is a direct or indirect representation of proceeds of criminal conduct.
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.
Drug trafficking is expressly included in the statutory definition of “criminal conduct” at section 3 of the 1997 Act and its meaning is defined as “doing or being concerned… in a drug trafficking offence”. A drug trafficking offence is given a specific meaning under the same section and is defined by reference to various offences under the Misuse of Drugs Act 1972, the Criminal Justice (International Co-operation) (Bermuda) Act 1994 and the 1997 Act.
Section 51(5) fuels this Court's appellate jurisdiction to re-hear an application for forfeiture:
(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.
Section 62 governs the position on standard of proof in all civil applications made under the 1997 Act:
“ Civil standard of proof
62 Any question of fact to be decided by a court in proceedings under this Act, except any question of fact that is for the prosecution to prove in any proceedings for an offence under this Act, shall be decided on the balance of probabilities.”
Counsel for both parties in this case agreed that the drafting of the 1997 Act was lifted from the Proceeds of Crime Act 2002 in the UK (“the UK Act”). Like section 62 of the 1997 Act, section 241(3) of the UK Act expressly requires the question of unlawful conduct to be determined on a balance of probabilities. Section 241(3) provides:
“(3) The court or sheriff must decide on a balance of probabilities whether it is proved—
(a) that any matters alleged to constitute unlawful conduct have occurred, or
(b) that any person intended to use any property in unlawful conduct.”
In M. Jones et al. v The Queen [2019] SC (Bda) 6 App (17 January 2019) [paras 19–21] I considered, without controversy, the term “satisfied” in the context of the civil standard of a balance of probabilities and section 51(1) of the 1997 Act. Citing the remarks of Omrod LJ who was concerned with a matrimonial matter, I observed:
“…
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...
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