Gellizeau v The State

• Jurisdiction: St Vincent and the Grenadines
• Judge: Blenman, J.A.
• Judgment Date: 05 April 2017
• Neutral Citation: VC 2017 CA 1
• Judgment citation (vLex): [2017] ECSC J0405-2
• Date: 05 April 2017
• Court: Court of Appeal (Saint Vincent)
• Docket Number: SVGMCRAP2013/0058

Court of Appeal

Blenman, J.A.; Michel, J.A.; Webster, J.A. (Ag.)

SVGMCRAP2013/0058

Gellizeau

and

The State

Appearances:

Mr. Keith Scotland, with him Mr. Mikhail Charles for the appellant.

Mr. Gilbert Peterson, SC, with him Ms. Sejilla McDowall for the respondent.

Criminal practice and procedure - Appeal — Money laundering — Appeal against conviction — Whether learned chief magistrate erred in holding that prosecution did not have to prove that monies were from a precise source of crime or predicate offence — Whether learned chief magistrate erred in law when she failed to uphold no case submission — Whether learned chief magistrate erred in law by placing substantial weight on testimony of witness as forensic accounting expert when he did not possess requisite qualifications.

A combined party of police officers and Financial Investigation Unit officers were on surveillance in the Grenadine island of Bequia when they observed a yacht, the Jotobin, captained by Mr. Keith Robinson (“Mr. Robinson”) with Mr. Kent Andrews (“Mr. Andrews”) on board as deckhand, docked alongside another yacht, the Orion, captained by Mr. Antonio Gellizeau (“Mr. Gellizeau”). Both vessels were searched and one million seven hundred and thirty three thousand four hundred and sixty three United States dollars (US$1,733,463) was found concealed beneath hardened foam in water tanks on the Jotobin.

Mr. Gellizeau and his co-defendants, Mr. Robinson and Mr. Andrews, were charged with money laundering offences. Mr. Gellizeau was charged with two counts of money laundering: (a) concealing his proceeds of criminal conduct on board the Jotobin contrary to section 41(1)(a) of the Proceeds of Crime and Money Laundering (Prevention) Act, 2001 (“PCMLPA”), namely, one million, seven hundred and thirty three thousand, four hundred and sixty three United States dollars ($US1,733,463); and (b) transferring and bringing into St. Vincent and the Grenadines his proceeds of criminal conduct on board the Jotobin contrary to section 41(1)(b) of the PCMLPA, namely, one million, seven hundred and thirty three thousand, four hundred and sixty three United States dollars ($US1,733,463). Mr. Gellizeau's co-defendants were charged with concealing and bringing into St. Vincent and the Grenadines another person's proceeds of crime, namely, Mr. Gellizeau.

Mr. Gellizeau denied ownership of the Jotobin, the money recovered on board, as well as close association with his co-defendants, but financial investigations and direct evidence that was led by the Crown revealed that the Jotobin was in fact sold to him. The Crown amassed a great deal of circumstantial evidence to prove their case against Mr. Gellizeau, including the testimonies of several witnesses who spoke about conducting large financial transactions in United States dollars at his request and for his benefit. The Chief Magistrate rejected the evidence that was heard on behalf of the defence and being satisfied beyond reasonable doubt of Mr. Gellizeau's guilt on the strength of the Crown's case; Mr. Gellizeau was convicted and sentenced.

Being dissatisfied with the decision of the learned Chief Magistrate, Mr. Gellizeau appealed against his conviction on the grounds that the learned Chief Magistrate erred firstly, in holding that the prosecution did not have to prove that the monies were from a precise source of crime or the predicate offence; secondly, when she failed to uphold the no case submission made on his behalf; and thirdly, by placing substantial weight on the testimony of a witness as a forensic accounting expert when he did not possess the requisite qualifications. The main thrust of the appeal concerned the Chief Magistrate's ruling that the prosecution did not have to prove that the monies were from a precise source of crime or the predicate offence. The Crown emphatically resisted the appeal asserting that the Chief Magistrate did not err in convicting Mr. Gellizeau on the basis of the very strong circumstantial evidence that was presented and which pointed beyond a reasonable doubt that he was guilty of the offences as charged.

Held: dismissing the appeal against conviction and affirming the conviction, that:

There is no bifurcation of the offences in the Proceeds of Crime and Money Laundering (Prevention) Act, 2001 merely because the definition of “criminal conduct” expressly refers to “drug trafficking” or “relevant offence”. Although the PCMLPA addresses both drug trafficking and non-drug trafficking offences, there is no dichotomy in St. Vincent and the Grenadines as obtains in the United Kingdom. If the legislature in St. Vincent and the Grenadines required the prosecutor to have established a particular provenance offence it would have stated so clearly. In any proceedings against a person for an offence under sections 41(1)(a) and 41(1)(b) of the PCMLPA, it shall be sufficient for the prosecution to aver that the property is, in whole or in part directly or indirectly the proceeds of a crime, without specifying any particular crime, and the court, having regard to all of the circumstantial evidence, may reasonably infer that the proceeds were in whole or in part directly or indirectly the proceeds of a crime. Neither was there any duty on the prosecution to prove any predicate or provenance offence under the PCMLPA. Therefore, the learned Chief Magistrate did not err and correctly applied the law in holding that there is no need for the prosecution to show or to particularise the offence or offences that generated the proceeds of crime. Proceeds of Crime and Money Laundering (Prevention) Act, No. 39 of 2001 as amended by Act No. 8 of 2005, sections 41(1)(a) and 41(1)(b) applied; Director of Public Prosecutions of Mauritius v. Bholah[2011] U.K.P.C. 44 applied; R v. Craig[2007] E.W.C.A. Crim. 2913 applied; R v. Anwoir[2008] E.W.C.A. Crim 1354 ; [2009] 1 W.L.R. 980 applied; R v. Assets Recovery Agency (Ex parte) Jamaica[2015] U.K.P.C. 1 applied; R v. Montilla and Others[2004] U.K.H.L. 50 distinguished; UK Criminal Justice Act, 1988, section 93C(1) distinguished; UK Drug Trafficking Act, 1994, section. 49(1) distinguished. 2. On a submission of no case to answer at the end of the evidence adduced by the prosecution, the judge should not withdraw the case if a reasonable jury properly directed could on that evidence find the charge in question proved beyond reasonable doubt. In the present case, the prosecution had amassed an overwhelming amount of cogent and coherent circumstantial evidence including oral, documentary and digital evidence that clearly pointed to Mr. Gellizeau as being guilty of the money laundering offences with which he was charged, and in the circumstances a jury properly directed could have found beyond a reasonable doubt that he had committed the money laundering offences. The Chief Magistrate as the trier of fact and law demonstrated knowledge of the principles applicable to circumstantial evidence, took great care in applying them to the factual circumstances, and in so doing, did not err in her conclusion that Mr. Gellizeau had a case to answer. Having carefully and closely examined the circumstantial evidence, the Chief Magistrate was therefore entitled to overrule the no case submission as the circumstantial evidence could have led a jury that was properly directed to the irresistible inference that the property in question his proceeds of crime. Archbold: Criminal Pleading, Evidence & Practice (63rd edn., Sweet & Maxwell 2015), 10-48 applied; R v. Galbraith[1981] 2 All E.R. 1060 applied; DPP v. Selena Varlack[2008] U.K.P.C. 56 followed. 3. The time to challenge the competence of an expert is during the trial. Furthermore, the competence of an expert is to be adjudged by the presiding officer on the basis of whether or not the witness is qualified or has the experience to give an opinion or belief on the subject. In the present case, it is not open to Mr. Gellizeau to have allowed the evidence to be led on the basis that it was coming from an expert without objection, and then on appeal seek to assail the expertise of the witness and by extension the discretion of the Chief Magistrate to admit the evidence on the basis that it emanated from that expert witness. The Chief Magistrate carefully assessed the evidence of the several witnesses and attached appropriate weight to their evidence in coming to her decision. There is no evidence that the learned chief Magistrate attached undue weight to the evidence of Mr. Kirk Da Silva (“Mr. Da Silva”) in arriving at the conclusion of guilt of Mr. Gellizeau. The learned Chief Magistrate therefore did not err and acted within her discretion when she deemed Mr. Da Silva as an expert forensic accountant based on a combination of his expertise and certification.

1 State of Trinidad and Tobago v. Boyce [2006] U.K.P.C. 1 applied; R v. Bonython (1984) 38 S.A.S.R. 45 applied; R v. Silverlock [1894] 2 Q.B. 766 applied.

INTRODUCTION

Blenman, J.A.

1 This is an appeal against the decision of the learned Chief Magistrate in which she found Mr. Antonio Gellizeau (“Mr. Gellizeau”) guilty of two counts of money laundering: (a) concealing his proceeds of criminal conduct contrary to section 41(1)(a) of the Proceeds of Crime and Money Laundering (Prevention) Act, 2001 No. 39 of 2001 as amended by Act No. 8 of 2005 (“PCMLPA”), namely, one million, seven hundred and thirty three thousand, four hundred and sixty three United States dollars ($US1,733,463) and (b) transferring and bringing into St. Vincent and the Grenadines his proceeds of criminal conduct namely, the sum of one million, seven hundred and thirty three thousand, four hundred and sixty three United States dollars (US$1,733,463) on board the yacht, the “Jotobin”, contrary to section 41(1)(b) of the Proceeds of Crime and Money Laundering (Prevention) Act. Mr. Gellizeau was convicted along with Mr. Winston Robinson...