State appeals dismissal of 'explain your wealth' order

THE COURT of Appeal has been asked to overrule a judge’s dismissal of an application which called four people – a St Helena couple and the wife and mother of an alleged drug trafficker – to explain their wealth.

In December 2019, 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 four 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 attorneys for the four 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, 2020.

The police appealed. In his submissions, Senior Counsel Fyard Hosein urged Justices Allan Mendonca, Mark Mohammed and Maria Wilson argued that the judge did not correctly interpret the provisions of the legislation, in particular its retrospective application.

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

Hosein said the case dealt with “historic investigations” and involved property derived from criminal conduct.

As he took the judges through the underlying philosophy of the act and its general principles, Hosein said the preliminary order which the judge was asked to grant, was an “investigatory tool” used by the police.

He said it was not a forfeiture order but simply one which sought more information on alleged criminal conduct. Hosein argued the judge misconstrued, or misapplied, the provisions of the legislation as it related to evidential requirements and whether the evidence provided by the police was satisfactory.

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.”

In response, the couple’s attorney Jagdeo Singh argued there was lack of evidence to prove that the properties identified in the application for the order were derived from the proceeds of criminal conduct.

He also said the legislation was not retroactive nor was it an investigative tool.

Attorney Narindra Ramnanan, who represented the wife and mother, also agreed there was no evidence to link the properties to any specific offence.

In his clients’ case, he said it was necessary to prove that all the properties which were in their possession before the 2015 drug charges were laid, were acquired from that offence.

“You must draw a nexus between the property and the specified offence and in this case it was impossible. You can’t call a dead person to explain his wealth,” he said.

Both he and Singh argued what was required was the typical process to assist in establishing a link between the property and the specified offences.

In the couple’s case, it was alleged that they are involved in trafficking of cocaine, with charges pending, but had amassed a total wealth of over $2.4 million with no evidence of that sum being lawfully obtained.

The legislation provides for an explanation of sums larger than $500,000, if the police reasonably suspects it was accrued through the commission of an offence. In the other matter, the wife was made to explain for her late husband’s wealth which police said totalled $12.8 million.

The husband was killed in 2018, but both he and his wife were charged with trafficking of cocaine and marijuana in 2015.

The judges have reserved their decision on the State’s appeal.

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