The Attorney-General v Jonathan Reid
| Jurisdiction | Bahamas |
| Judge | Mr. Justice Milton Evans, JA |
| Judgment Date | 27 May 2021 |
| Neutral Citation | BS 2021 CA 78 |
| Docket Number | SCCivApp. No. 127 of 2019 |
| Court | Court of Appeal (Bahamas) |
IN THE COURT OF APPEAL
The Honourable Mr. Justice Isaacs, JA
The Honourable Mr. Justice Jones, JA
The Honourable Mr. Justice Evans, JA
SCCivApp. No. 127 of 2019
In the matter of the Mutual Legal Assistance (Criminal Matters) Act, Chapter 98
and
In the matter of the Banks and Trust Companies Regulation Act, Chapter 316
and
In the matter of the Proceeds of Crime Act, Chapter 93
and
In the matter of the Proceeds of Crime (Designated Countries and Territories) Order, Chapter 93
and
In the matter of a Request for Legal Assistance by the United States of America
and
In the matter of an Application by the Competent Authority of The Bahamas, i.e., the Attorney-General
and
and
and
Mr. Shaka Serville, with Mrs. Kenrah Newry, Ms. Michelle Dean, and Mrs. Deidre Clarke-Maycock, Counsel for Appellant
Mr. Damian Gomez, QC, with Ms. Monique Gomez, Counsel for the Third Respondent and Fourth Respondents
No appearance by or on behalf of the First and Second Respondents
Salaman v Warner and Others [1891] 1 QB 734 considered
Peace Holdings limited v First Caribbean International Bank (Bahamas) Ltd. SCC App No.57 of 2014 followed
Junkanoo Estates Limited v UBS (Bahamas) Limited [2017] UKPC 8 applied
Blue Planet Group Limited v William Downie SCCiv App No.80 of 2018 followed
Inverugie Investments Ltd. V Hackett (1995)1 WLR 713 considered
Civil Appeal — Court of Appeal Act Sections 12(1) — Rule 24 Court of Appeal Rules — Failure to Give Full and Frank Disclosure on an Ex — Parte Application — Restraint Order — Material Non-Disclosure — Application for Joinder — Mutual Legal Assistance Treaty
On 22 December 2020, the Appellant filed a Re-Re-Amended Notice of Appeal wherein the 4 th Respondent was joined as a Party in this matter pursuant to leave granted by this Court. The Appellant is challenging the oral and written judgments of Justice Grant-Thompson (19 June & 23 October, 2019 respectively), within which it was determined, inter alia: that the Restraint Order of 20 June 2017 pertaining to funds in 2 named accounts located at the Royal Bank of Canada, Nassau, The Bahamas, be discharged and that the Appellant “had violated Articles 17, 19, 20, 21 and 27 of the Constitution of The Bahamas as against Rudolph King and Celebrating Women International AND wherein damages for said Constitutional breaches and costs were awarded against the Applicant.”
On 16 March 2021, the Third and Forth Respondents filed a Notice of Objection to the Appeal on numerous basis inter alia: that the Appellant, purport to appeal an order for costs and interlocutory orders made in Supreme Court without having either sought or obtained leave to appeal same. The Notice also gave indication that the respondent would raise allegations of non-disclosure by the Appellant of an inconsistency in material information during the ex-parte hearing for the application to add the Fourth Respondent as a party to the Appeal.
Held: (1) the preliminary objections of the Fourth Respondents to the extent all the orders sought in the Notice of Appeal are to be severed is upheld, save for the claim that the order whereby it was determined that the Appellant had violated Articles 17, 19, 20, 21 and 27 of the Constitution of The Bahamas as against Rudolph King and Celebrating Women International AND wherein damages for said Constitutional breaches and costs were awarded against the Appellant.
(2) The parties are to provide written submissions as to the appropriate order relative to the cost of this application on or before 24 June 2021.
Judgment delivered by the Honourable
. The Appellant pursuant to leave granted by this Court filed a Re-amended Notice of Appeal on the 22 nd December 2020 wherein the 4 th Respondent was added as a Party. The aforesaid notice was in the following terms:
“TAKE NOTICE that the Court of Appeal will be moved, so soon as Counsel can be heard, on behalf of the above named Appellant, the Attorney-General, on an Appeal from the Ruling of Her Ladyship Madam Justice Cheryl Grant-Thompson given on the 19 th day of June, A.D., 2019 (“the Oral Ruling”) and subsequently Her Ladyship's Written Ruling delivered on the 23 rd day of October, A.D., 2019, whereby it was determined, inter alia, that the Restraint Order of Justice Grant-Thompson made on the 20 th day of June, A.D., 2017 and filed on the 21 st day of June, A.D., 2017 (“the Restraint Order”) whereby a restraint was placed on the funds in Account Numbers 05135–2415420 and 05135–2415412 and any funds or interest accruing on all accounts in the name of or for the benefit of Jonathan Reid, David Valdez-Lopez, Anthony Albert Allens, Greg Harry Smith, Celebrating Women International and CWI International located at the Royal Bank of Canada Caribbean (“RBC Royal Bank”) 101 East Hill Street, P. O. Box N-7549, Nassau, The Bahamas, be discharged (“Discharged Restraint Order”); AND whereby it was further determined that the Appellant had violated Articles 17, 19, 20, 21 and 27 of the Constitution of The Bahamas as against Rudolph King and Celebrating Women International AND wherein damages for said Constitutional breaches and costs were awarded against the Applicant.
AND THE APPELLANT SHALL SEEK THE FOLLOWING ORDERS:
A. That the Order to discharge the Restraint Order within the Ruling be set aside and that this Honourable Court substitutes a ruling that the Restraint Order should be reinstituted relative to the funds in the amount of $1,510,697.12, previously held at the Royal Bank of Canada and now held at FirstCaribbean International Bank (Bahamas) Limited in Account V. A. Gomez & Co. or wherever said funds may be, pursuant to the MLAT Request;
B. That the Honourable Court's finding of Constitutional violations against Celebrating Women International and Rudolph King, be quashed and set aside:
C. That all previous Order for costs against the Appellant be set aside; AND
D. That the Respondents be made to pay the costs of this Appeal.
AND TAKE FURTHER NOTICE that the grounds of this appeal are that:
1. The Learned Judge erred in law by taking into consideration issues that ought not to have been applied when considering the awarding of reasonable legal expenses and ordinary living expenses. Further, the Learned Judge failed to satisfy herself with any documentary evidence that would substantiate that these were actual costs and or legitimate expenses.
2. The Learned Judge erred in law and principle in determining that a complete discharge of the Restraint Order was an appropriate remedy for discharging an obligation under the Mutual Legal Assistance Treaty between the Government of the United States of America and the Government of the Commonwealth of The Bahamas (“MLAT”) when there was no evidence led by the Respondents that the funds in their accounts were legitimate funds. Further that the Learned Judge failed to consider that her Written Ruling would completely dissipate the funds.
3. That the Learned Justice failed to distinguish the evidence adduced in the domestic police criminal proceedings and the MLAT application and thus failed to properly consider how to exercise her discretion in the MLAT matter. That in the circumstances, the Learned Judge was wrong to base her Written Ruling on issues and facts that were related to the domestic police criminal proceedings and were not related to the application made pursuant to the MLAT.
4. That the Learned Judge erred in determining that the MLAT Application before the Supreme Court was an abuse of process.
5. The Learned Judge erred when she said at paragraph 19 that “In my view the nexus sought to be established against named parties between the fraudulent funds in the Boeing scheme from Sun Trust Bank and the CWI Account at RBC was tenuous at best …” That the Learned Judge erred in her finding as this statement is fundamentally incorrect as the onus is not on the Appellant to establish a nexus to a particular individual(s) to obtain a lawful restraint of the accounts. That the Learned Judge failed to consider or did not properly consider that there was a clearly established nexus, showing the subject funds moving from the Sun Trust Account located in Atlanta, Georgia, which was opened November 10, 2015 to the RBC Royal Bank Accounts located at Cable Beach, New Providence, The Bahamas, between December 14 th, 2015 to January 26 th 2016, which accounts were in the name of CWI International and Celebrating Women International.
6. That the Learned Judge erred when she opined at paragraph 17 of her Written Ruling that “They knew that a fraud had allegedly occurred but not by whom”. The fact that an incorrect identity was stated does not obviate the fraud. Further, the Learned Judge failed to appreciate that “the identity of the fraudster” was a separate issue. The Learned Judge ought to have only been concerned with the defrauded funds, the subject of the MLAT Request.
7. That the Learned Judge also erred in determining that the AttorneyGeneral's application under the MLAT process was a fishing expedition, as the Requesting State provided bank statements in the name of Celebrating Women International, in whose bank account Boeing's funds were deposited, albeit the identity of the beneficial owner was illusive. The Learned Judge also erred in not taking into account that the application before the Court was for investigative purposes.
8. That the Learned Judge erred in granting constitutional relief as she was functus from the issuance of the Oral Ruling. Furthermore, the constitutional breaches found ought not to have been attributed to the MLAT application but more properly determined to have arisen from the...
To continue reading
Request your trial