Less than a year after she was sentenced to serve seven years in prison for money laundering, ex-Guyana Revenue Authority employee Michelle Fraser had her conviction overturned by the Full Court.
Sitting in the Full Court were Chief Justice (Ag) Ian Chang and Justice Rishi Persaud, who found, among other things, that the prosecution in the Magistrates’ Court did not prove that Fraser knew that the money she had banked for a woman in the United Kingdom was ill-gotten. As a result, they ordered that Fraser’s conviction and sentence be set aside.
The Chamber of the Director of Public Prosecution (DPP) has since indicated that an appeal would be filed against the decision. “The DPP will be appealing the Full Court’s decision by seeking leave of the Court of Appeal, because we do not agree with the Full Court,” Senior State Counsel Sonia Joseph said in an email.
In the January 28, 2011 decision, the Full Court pointed out that even though money laundering may be a continuous activity over a period of time, the particulars of Fraser’s charge limited it to activities which took place on particular date. “As such, evidence of acts on the part of the appellant subsequent to that date had to be used only as retrospectant circumstantial evidence going to the issue of guilty knowledge or belief in the appellant that money received by her on the 27th of December, 2002, was the proceeds of criminal activities,” they wrote in their decision.
Fraser, the first person to be charged since the new money laundering law was enacted over a decade ago, was convicted on April 12, 2010 by Magistrate Hazel Octive-Hamilton. In addition to the seven-year sentence, the Magistrate also imposed a $250,000 fine.
Although the offence was allegedly committed on December 27, 2002, Fraser was not charged until June 20, 2005. Following the conviction, her lawyer Nigel Hughes immediately filed an appeal. At the time, he said he was puzzled by the Magistrate’s decision since the evidence suggested another outcome.
Erred in law
Among the grounds listed by Hughes for the appeal were that the Magistrate failed to adequately consider the defence and erred in law when she found that un-contradicted evidence was led to show that Fraser must have had knowledge that the money emanated from the proceeds of crime.
The prosecution in the Magistrates’ Court had stated that Fraser, in December 2002, received the sum of US$289,000 from an unknown woman in Guyana after a conversation with Adrie Callender-Martin. She took the money to Laparkan Financial Services and exchanged it to Guyana currency. At Laparkan, she requested that the money be delivered in three parts; one cheque for $16.9M in the name of “Adrie Callender-Martin”; a cheque for $38M in the name of “Lisa Witter” also known as “Lisa Bennett”; and $578,000 in cash. (Callender-Martin and Witter both pleaded guilty in the UK to narcotic offences.)
Upon receipt of the cheques and cash, Fraser took the cheques to the New Building Society (NBS) and deposited them into the accounts of Callender-Martin and Witter. The DPP said in doing so Fraser was engaging in a transaction involving an extremely large quantity of US.
Citing Section 2 (1) (j) of the Money Laundering (Prevention) Act, the Full Court noted that Money Laundering means “Engaging directly or indirectly, in a transaction that involves property that is proceeds of crime, knowing or believing the same to be the proceeds of crime” and “Receiving, possessing, managing, investing, concealing, disguising, disposing of or bringing into or removing from Guyana any property that is the proceeds of crime, knowing or believing the same to be proceeds of crime.”
The judges said the burden of proof lies on the prosecution to satisfy the court beyond reasonable doubt not only that the property (money) received by the appellant was proceeds of crime but also that she knew or believed it to be so at the time she engaged in a transaction involving it. Hughes had submitted to the court that there was no or insufficient evidence to enable a finding by the magistrate that Fraser knew or believed the money she received was proceeds of or emanated from crime.
The Magistrate, in her decision, had found that Fraser “must have had reasonable suspicion that the money emanated from some illegal source.”
However, the judges said it was difficult to see on what basis the Magistrate convicted Fraser since she found that “reasonable suspicion” (not knowledge or belief) that the money emanated from some illegal source had to be imputed to the appellant. “Clearly, not only was ‘reasonable suspicion’ insufficient to support a finding of guilt but also the source of the money had to be not merely illegal but criminally illegal. Reasonable suspicion cannot be equated with knowledge or belief and illegality cannot be equated with criminality (an act maybe illegal but not criminally illegal)” the judges said.
The judges said they were not minded to interfere with the finding of the Magistrate on reasonable suspicion but, in the absence of any evidence that Fraser knew Adrie Callender Martin was involved in lucrative criminal activities and had no legitimate earnings, they could not come to the conclusion that it must have been obvious to Fraser that the money she received was the proceed of criminal activity. It was stated that it was difficult to see what inquiries Fraser could have made to ascertain the source of the money. “It does appear to the Court that, on the evidence, there existed the reasonable possibility that the appellant could have been used by Adrie Callender Martin as an innocent agent to launder her ‘dirty’ money. Yet, nowhere in the memorandum of Reason of the Magistrate was such a possibility adverted to, discussed, or discounted before the Magistrate even though that was the effect of the appellant’s unsworn statement,” the court said.
‘Bling Bling’ gang
Fraser’s case, which was kept under wraps, was prosecuted by DPP Shalimar Ali-Hack and involved cooperation from international law enforcement officers. Two police officers from Scotland Yard were among the nine witnesses who testified at the trial. The case arose out of the huge investigation that was mounted in the UK and other neighbouring countries into the drug running gang, labeled the ‘Bling Bling’ gang. The probe saw several persons, most of them Guyanese, being convicted in the UK in 2006.
The DPP had said during the course of the investigations by the Metropolitan police in the UK, orders made there in relation to persons charged there for drug-smuggling and money laundering were validated by the Guyana High Court. As a result of the information received, the proceeds of crime were traced and frozen based on applications made by the DPP. Assets in account # 161 683 8 at the Republic Bank, into which $38M was deposited by Fraser, were among those frozen.
The DPP had obtained Freezing Orders for that account but despite this Confiscation Order an ex-parte application dated September 3, 2008 was made to the High Court by Hughes on behalf of Cymone Witter, who is the sister of Lisa Witter, for access to and permission to withdraw account from the bank. “Justice Brassington Reynolds, without hearing the DPP, who had applied for the Freezing Order, made the matter inter partes with Republic Bank and granted the application for access to and permission to withdraw account # 161 683 8 at the Republic Bank,” the DPP had said. The DPP had added that investigations were ongoing in relation to tracing the money withdrawn from that account and a substantial amount of the said money had been traced so far.
Police in the UK had said the gang, nicknamed “Bling Bling” because of their high-living lifestyles, made up one of the biggest drug rackets ever brought to justice in that country. The gang, whose members were mostly of Guyanese and Caribbean descent, had bases in London, Paris and New York. Police had said that the British contingent had smuggled about £50 million worth of cocaine into the UK in just two years. The gang turned the cocaine into crack, a highly addictive form that could have been sold for as much as six times its unaltered value.
Bennett was the partner of Bernard ‘Kofi’ Clarke, who was described as a “principal player” in the gang and was jailed for 18 years and recommended for deportation after pleading guilty to importing cocaine and manufacturing and supplying crack. Bennett was also sentenced to 18 years imprisonment and recommended for deportation. The court had heard that Clarke and Bennett had acted as the “cooks” to produce the crack.
Guyanese Ian ‘Bowfoot’ Dundas-Jones was said to be the principal person in the gang.
Guyanese Roger Khan, David Narine, David Clarke and Peter Morgan, who have all pleaded guilty to drug charges in the US, operated here but none of them was charged locally with any type of money laundering or drug offence.
While commending the authorities for making the move, observers have pointed out that the ‘Bling Bling’ gang members did not operate out of Guyana yet the authorities found enough evidence to move to the local courts. Observers further pointed out that Khan, Morgan and others did operate in Guyana and to date no charge under the new money laundering law had been brought.
