[1] Kent Andrews [2] Winston Robinson [3] Antonio Gellizeau Appellants v Attorney General of Saint Vincent and the Grenadines Respondent [ECSC]

• Jurisdiction: St Vincent and the Grenadines
• Judge: BAPTISTE, J.A.,Justice of Appeal,Justice of Appeal [Ag.],Davidson Kelvin Baptiste,Tyrone Chong, QC,Jefferson Cumberbatch
• Judgment Date: 07 November 2011
• Judgment citation (vLex): [2011] ECSC J1107-4
• Court: Court of Appeal (Saint Vincent)
• Docket Number: HCVAP 2010/019
• Date: 07 November 2011

[2011] ECSC J1107-4

IN THE COURT OF APPEAL

Before:

The Hon. Mr. Davidson Kelvin Baptiste Justice of Appeal

The Hon. Mr. Tyrone Chong, QC Justice of Appeal [Ag.]

The Hon. Mr. Jefferson Cumberbatch Justice of Appeal [Ag.]

HCVAP 2010/019

Between:

[1] Kent Andrews

[2] Winston Robinson

[3] Antonio Gellizeau

Appellants

and

The Attorney General of Saint Vincent and the Grenadines

Respondent

Appearances:

Mr. Theodore Guerra SC, Mrs. Kay Bacchus Browne

Mr. Alberton Richelieu and Mr. Stephen Williams for the Appellants

Mr. Gilbert Peterson, SC and Ruth Ann Richards for the Respondent

Appeal — Constitutional motion — Proceeds of Crime and Money Laundering (Prevention) Act, No 39 of 2001 S. 41(2)(a), 25, 26(1), 26(4), 26(5), 67 — whether Act and amendments ultra vires the Constitution — whether Act should have been passed in accordance with s. 38 of Constitution — whether fundamental rights under section 1 of Constitution violated — Criminal Assets Recovery Act 1990 Act 23 of 1990 of New South Wales — St. Vincent and the Grenadines Constitution Order 1979, s. 6 (1), 6(6), 16(1), 38, whether s.1 of the Constitution is separately enforceable

In April of 2008, on searching the yacht Jo Tobin, members of the St. Vincent and Grenadines Coast Guard found 1.6 million United States Dollars on board concealed in vacuum packed bags. The first and second appellants were on board the yacht at the time and they were charged with breaches of section 41(2)(a) of the Proceeds of Crime and Money Laundering (Prevention) Act, No 39 of 2001 ("the Proceeds of Crime Act"). The yacht was owned by the third appellant; the court granted an order restraining him from transferring, selling, parting with or otherwise charging all realisable assets owned or controlled by him, whether in his name or not, whether solely or jointly owned or held, whether located within or without St. Vincent and the Grenadines.

In the court below, the appellants filed constitutional motions contending that the Proceeds of Crime Act and its amendments were ultra vires the St. Vincent and the Grenadines Order 1979. They claimed that they were an amendment to the Constitution and ought to have been enacted in accordance with section 38 thereof. The appellants also claimed that the ex parte procedure associated with the initial stage of seizure deprived a party of the right to be heard. Further, their rights under section 1 of the Constitution were violated. The learned trial judge dismissed the claims, holding that they were brought, in part, pursuant to section 1(c) of the Constitution, which, as a general provision, is not justiciable. The trial judge also held that the Proceeds of Crime Act did not amend the Constitution and as such it was unnecessary to enact it in accordance with section 38 thereof (this section provides for the alteration of the constitution). The learned judge rejected the submission that section 41 of the Proceeds of Crime Act violated the Constitution on the ground that the ex-parte procedure associated with the initial stages of seizure deprived a party of the right to be heard.

On appeal, the appellants contended, among other things, that the learned trial judge erred in holding that section 38 of the Constitution does not apply to Acts which affect fundamental rights and freedoms. They argued that the Proceeds of Crime Act violated, altered, or affected the fundamental rights under the Constitution and it proposed to amend the constitution; and that as such, it ought to have been passed in accordance with section 38 of the Constitution. Further, sections 26, 49 and 50 of the Proceeds of Crime Act are repugnant to the Constitution in that they violate the principles of natural justice, due process and equal protection before the law. The appellants contended that the learned judge erred in holding that there was no breach of the protection of the law and also pointed out that no regulations have been made to regulate the procedure to be followed upon seizure of property pursuant to the Proceeds of Crime Act.

Held: dismissing the appeal, that:

• 1. The Proceeds of Crime Act does not infringe the appellants' rights under the Constitution. It does not have the effect of adding to, varying, or repealing any provision of the Constitution. Consequently, section 38 of the Constitution was not engaged. Sections 26, 49 and 50 of the Proceeds of Crime Act make provisions for the making of orders which the Constitution contemplates as exceptions to the right against deprivation of property. These sections do not violate the applicable principles of due process and protection of the law provided for by the Constitution.

• 2. A restraint order to prohibit any person from dealing with realizable property, made pursuant to section 26 of the Proceeds of Crime Act does not violate the principles of natural justice, due process and equal protection before the law. Section 26 confers a discretion on the Director of Public Prosecutions to make an application for a restraint order ex parte and the court in the exercise of its discretion will decide whether to grant the application. Furthermore, the section does not impose a fetter on the manner in which the court may exercise its discretion; hence, it does not deprive the court of the power to ensure, so far as practicable, fairness between the parties. The grant of a power to make ex parte order is not unusual but should always be regarded as exceptional. It involves a departure, albeit temporary, from the general requirement of procedural fairness that no order adverse to a party should be made without that party having an opportunity to be heard. Mareva or assets preservation orders are often sought ex parte on the basis that notice to the affected party is likely to result in concealment or dissipation of assets which it is intended the proposed order will protect

  International Finance Trust Company Limited v New South Wales Crime Commission [2009] HCA 49 applied in part and also distinguished; Mootoo v Attorney General of Trinidad and Tobago [1979] 1 WLR 1334, at 1338 — 1339 applied; The State v Boyce [2006] UKPC1 mentioned; Ferguson v The Attorney General of Trinidad and Tobago [2001] UKPC considered.

• 3. The process contemplated by section 50 of the Proceeds of Crime Act is not in the nature of a criminal charge. It is a civil process. Section 8(8) of the Constitution applies to proceedings determining the existence or extent of civil rights or obligations. A restraint order is preemptive and provisional. It is an interim measure, protective in nature, does not determine civil rights and obligations and would not normally fall within the protection afforded by section 8(8) of the Constitution. At the restraint order stage, the court makes no final decision as to the defendant's "benefit" or "realizable property". As a general rule, the right to fair hearing does not apply to interim measures. It can only apply if the practical effect of the interim measure is to determine the rights in question. In the present case, it is clear in that the practical effect of the restraint order was not to determine any civil right or obligation. In the circumstances, the restraint order would not engage section 8(8) of the Constitution.

  J v Crown Prosecution Service [2005] EWCA Civ 746 applied; Trent Strategic Health Authority v Jain & Anor [2009] UKHL4 applied.

• 4. Sections 26, 49 and 50 of the Proceeds of Crime Act have to be read contextually; the context here is section 6 of the Constitution. Sections 6(1) and 6(6) of the Constitution contemplate the existence or enactment of a statute dealing with forfeiture of property either by way of penalty for breach of any law or for forfeiture in consequence of a breach of law within subsection 6(6)(a)(ii)..They further contemplate action, inclusive of the taking of possession of or acquisition of property for as long as may be necessary for the purposes of examination, investigation, trial or enquiry: section 6(6)(a)(vii). An enactment in the nature of the Proceeds of Crime Act is clearly authorized by the Constitution and falls within the ambit of section 6(6) thereof.

• 5. The expression "reasonably justifiable in a democratic society" concerns whether the provision in question "arbitrarily or excessively invades the enjoyment of the guaranteed rights according to the standards of a society that has proper respect for the rights and freedoms of the individual". The court uses a three fold analysis to determine whether a limitation is arbitrary or excessive: (i) Is the legislative objective sufficiently important to justify limiting a fundamental right? (ii) Are the measures designed to meet the legislative objective rationally connected to it? (iii) Are the means used to impair the right or freedom no more than is necessary to accomplish the objective? The Proceeds of Crime Act provides for the prevention of money laundering and related matters. Looking at the Act in the round and applying the three fold analysis, it cannot be said that its provisions either arbitrarily or excessively invade the enjoyment of the guaranteed rights according to the standards of a society like St. Vincent and the Grenadines that has proper respect for the rights and freedoms of the individual. The Proceeds of Crime Act is reasonably justifiable in a democratic society like St. Vincent and the Grenadines. The appellants have not demonstrated that the Act was not reasonably justifiable.

  de Freitas v Permanent Secretary of the Ministry of Agriculture, Fisheries, Lands and Housing and others [1998] UKPC 30 applied.

• 6. The general statement of fundamental rights and freedoms in section 1 of the Constitution is not separately enforceable and does not confer any free standing rights. It is not included in the enforcement provision. Section 16(1) of the Constitution gives a right to apply for redress to any person alleging...