Man loses appeal to recover J$1.2 million

A man who arrived in the island from the United States in 2018 with approximately J$1.2 million lost his appeal to recover the funds, which were forfeited after he was unable to clearly state the source and intended purpose of the money.

The Court of Appeal in a recently published judgment upheld the parish court's ruling for the money to be forfeited by the Crown.

The applicant, Keron Clarke, who had initially claimed that the funds was to pay for his aunt's funeral, was held with US$4,000 in a pouch on his body, while the rest, US$5,200, was found in an envelope in his jeans pants in his luggage on arrival at the Sangster International Airport in Montego Bay on November 30.

He was also found with two bank cards, one of which was verified by a woman who is believed to be his wife, while a friend whom he had called to confirmed ownership of the card denied being the owner.

During subsequent questioning by Customs Officers, it was revealed that Clarke who had earlier given his deceased aunt's name as Vera Bell, was uncertain about his aunt's correct name.

Based on the doubts surrounding the intended purpose and source of the funds, as well as the ownership of the bank card, the money was seized for Clarke to provide further proof that they came from “ a legitimate source, and were destined to be used for a legitimate purpose”.

INCONSISTENCIES UNEARTHED

Clarke, however, sought the St James Parish Court's intervention to have the funds released in January 2019 but the judge, Kaysha Grant, after hearing the application on January 8, 2020, ruled that the money should be forfeited.

The Jamaica Customs, however, had also made an application for the funds to be seized.

However, according to the judgment, the judge in granting the request made by Customs, among other things, took into consideration the method by which the cash was being transported; that Clarke had a bank card for which he could not properly account; (and) his conflicting explanations as to the source of the intended use of the seized cash.

The parish judge also highlighted among the inconsistencies unearthed during the hearing that Clarke had informed Customs Officers that the cash was for the repayment of a loan that his family had obtained, and used to pay for his aunt's funeral, although he had stated that the funeral was postponed on account of the cash being seized.

Clarke had also contended that he was close to the deceased, yet he told at least one customs officer that he did not know her name, and had also referred to her in his evidence by eight different names, the judgment revealed.

Additionally, the taxi driver who had picked him up from the airport, who he said was the son of the deceased, had denied any knowledge of any funeral or of any of the appellant's affairs.

REQUIREMENT FOR NOTICE

Clarke, however, appealed the local court's ruling on the grounds that the parish judge's decision was unreasonable having regard to the evidence, that the judge failed and/or refused to treat with [the] pertinent issues raised by him in respect of service of the First Order for Continued Detention of Seized Cash in keeping with the law.

He also appealed on the grounds that the judge's assessment of evidence/issues was unbalanced and that she had erred in making an order for cost [sic] in the all [sic] circumstances.

Attorney-at-law Audrey Clarke, who argued on behalf of the applicant, addressed only the second ground while not officially abandoning the others.

“The main thrust of her contention on this ground was that the procedure that Section 76 of the [Proceeds of Crime Act, 2007 ] Act requires was not followed, the judgment said.

The lawyer submitted that the time for service of the notice had to be before the order was made, and that although the Customs Officers had spoken with her client on December 1 and 2, 2018, there is no evidence of any approach or attempt to provide him with notice of the application.

Attorney-at-law Krystal Corbett, who represented the respondent, the Commissioner of Customs Jamaica Customs Agency, however, argued that there was no merit in counsel's argument as the first order for an extension was served on Clarke's attorney as the applicant had just left the island and personal service was impossible.

Additionally, the lawyer pointed out that the applicant had not raised the issue of non-service in the lower court and that it had no bearing on the ruling.

The appellate judges said, however, that, “In our view, on a proper interpretation of the section, there is no requirement for notice to be given before the first order is made. It is only when an application is going to be made for a second extension that prior notice is required to be given.”

The judges also noted that based on their perusal of the notes of evidence in this matter, the issue was not raised before and, as such they were not required to have considered the ground.

They subsequently concluded that, the applicant had not made out his principal ground and that it was “wholly unmeritorious”.

tanesha.mundle@gleanerjm.com