State to challenge judge’s order to release seized funds

THE State has appealed the decision of a High Court judge to throw out an application which called on a St Helena couple to explain their wealth.

Justice Carla Brown-Antoine had granted police an order under the explain your wealth legislation which was introduced in April 2019 by Attorney General Faris Al-Rawi.

When the order was granted ex-parte in December 2019, the couple were to each file a declaration under sections 58(1) and 61(1) of the Civil Asset Recovery and Management and Unexplained Wealth Act within 28 days. It was the first matter brought to the court after the legislation became law.

After considering an application by the couple’s attorneys to set aside her previous order, the judge upheld the submissions on the basis that the evidence provided did not satisfy section 58(1) of the Act and discharged the order on August 21.

The State filed an appeal, asking for an expedited hearing. In its notice of appeal, attorneys for the State admitted it was unable to provide full details of the finding of fact and law of the judge since she delivered a brief oral decision.

However, the State’s attorneys said it was appealing the decision in the public’s interest because of the widespread impact the judge’s decision would have on proceedings filed under the Civil Asset Recovery and Management and Unexplained Wealth Act of 2019.

In its application, the State contends that the judge did not correctly interpret the provisions of the legislation, in particular its retrospective application.

It was also contended that the judge did not identify, or apply, the proper threshold test when she revoked the order.

The notice of appeal alleges that Brown-Antoine misconstrued, or misapplied, the provisions of the legislation as it related to evidential requirements and whether the evidence provided by the police was satisfactory.

One of the nine grounds of appeal filed by the State also contends that the judge misapplied the test as it relates to evidence when she held that the police did not provide reasonable grounds to suspect that the couple’s “total wealth exceeded the value of their wealth that was lawfully obtained.”

The State will be asking that the Appeal Court reinstate the preliminary ex-parte order.

They are also asking for a stay of the discharge order pending the determination of the matter.

The State’s applications is expected to come up for hearing on September 14 as the appellate court held that the State had persuaded it that the matter raised a novel question of law based on the evidence necessary to secure ‘explain your wealth’ orders. The court also granted an interim stay of the judge’s decision until the hearing next Monday because of the “the risk of dissipation of assets.”

Details on the actual matter before the judge cannot be reported as the documents filed in the matter are sealed and such hearings are held behind closed doors.

Representing the couple are attorneys Jagdeo Singh, Kiel Taklalsingh and Karina Singh while Senior Counsel Fyard Hosein and Gilbert Peterson lead attorneys Ravi Rajkumar, Amirah Rahaman and Tiffany Ali for the State.