DPP Claimant/Applicant/Respondent v Julian Adjodha Defendants/Respondents/Applicants DPP Claimant/Applicant/Respondent v Moeita Adjodha Defendants/Respondents/Applicants [ECSC]
| Jurisdiction | St Lucia |
| Judge | Thomas W.R. Astaphan, J |
| Judgment Date | 12 December 2013 |
| Judgment citation (vLex) | [2013] ECSC J1212-5 |
| Court | High Court (Saint Lucia) |
| Docket Number | CLAIM NO. SLUHCV 2011/1110 |
| Date | 12 December 2013 |
IN THE HIGH COURT OF JUSTICE
CLAIM NO. SLUHCV 2011/1110
CLAIM NO. SLUHCV 2011/1111
Thomas W.R. Astaphan, J.: These are the Reasons for the Decision given on the hearing of two Applications filed by the Defendants/Respondents/Applicants (the "Applicants") on April 25, 2012 wherein they sought the discharge or variation of Ex-Parte Orders of Restraint granted by the Court on 27th October 2011, and subsequently extended and varied on the 26th July 2012, in respect of various properties owned by the Applicants and their company, Julian Adjodha Group of Companies Inc., which Order was made pursuant to Sections 2, 30 and 31 of the Proceeds of Crimes Act Chapter 3.04 of the Laws of St. Lucia. The Act will hereafter be referred to as POCA. That the Applicants are charged with predicate offences under the Act is not in dispute.
The Parties agreed with this Court that the facts, issues and the applicable Law in both Applications were identical, and that therefore the Applications could properly be heard together.
At the outset Ms. Tina Mensah, Counsel for the D.P.P., in the highest tradition of the Legal Profession, correctly conceded that the D.P.P could not properly, on the state of the evidence before the Court, oppose the Applications to discharge the Restraining Orders against the personal properties of the Applicants, but stated that the D.P.P. would vigourously defend the Restraining Order against the property upon which the alleged illegal substances were found, on the ground that, according to the Act, that property was "Tainted property". That property is registered, not in the name of the Applicants, but in the name of a company entitled Julian Adjodha Group of Companies Inc. which company, the D.P.P submits on affidavit, is owned and/or controlled by the Applicants. That ownership and/or control was, for the purposes of these Applications, not disputed by the Applicants.
What therefore this Court is required to determine is whether the said property is Tainted Property' in accordance with Section 31(1) (d) of the POCA, it having not been disputed by the Applicants at this Hearing that POCA provides a lawful basis for the granting of a Restraining Order against the third party company's property under Section 31(1) (d),if the requirements of the Act are met. [It is to be noted that the D.P.P. is relying on Section 30 (2) (g) to ground the application for the extension of the restraining order in relation to the subject property, and on Section 31 (1) (d) for the restraining order to be extended.]
Section 31(1) (d) of POCA. states, so far as is relevant for present purposes, and given that the applicants do not deny that they "effectively control" the subject property, as follows-
"31. (1) Subject to this section, where the Director of Public Prosecutions applies to the Court for a restraining order against property and the Court is satisfied that-
(a) …
(b) …,
(c) there are reasonable grounds for believing that the property is tainted property in relation to an offence…, "
As relied on by Learned Counsel Miss Mensah, 'tainted property', is defined in section 2 of the Act thus-
"tainted property", in relation to a scheduled offence, means-
(a) Property used in, or in connection with, the commission of the offence;… "
The offences with which the Applicants are charged are possession of a controlled drug, suspected to be cannabis, and, by virtue of the amount of that substance, the deemed offence of possession with intent to traffic in a controlled drug, namely, the said suspected cannabis.
These charged offences provide the statutory predicate for the invocation of Section 31 (1) (d) by the Director of Public Prosecutions.
It is therefore necessary for the D.P.P to establish by evidence on affidavit the following facts, in order to satisfy this Court that the subject property is 'Tainted Property'-
(a) that the Applicants, or either of them, are/is likely to have committed either of the offences with which they stand charged, [necessary to engage section 31 (1) (d)] or Section 31 at all; and,
(b) that the subject property was used in, or in connection with, the commission of either of the offences charged.
In relation to sub-section (a) above it is necessary to state at this juncture that, while the purpose of this Hearing is in no way to determine whether or not the offences charged were committed, it isnecessary for this Court to be satisfied on the evidence provided by the D.P.P, that there is a likelihood that the one or both of the charged offences may have been committed by the Applicants, or either of them.
This is so because Section 8 (2) (a) of the Constitution of St. Lucia vests in the Applicants the Fundamental Right to the Presumption of Innocence, and therefore to presume that the charged offences, or either of them, canproperly predicate the D.P.P.'s applications for Restraining Orders without examining the evidence upon which those applications are grounded, is to 'taint' the Applicants' Constitutionally mandated Presumption of Innocence. Further, it cannot be doubted that the Applicants' Constitutional Rights to the protection of their property, guaranteed by Section 6, is also engaged by the invocation of POCA, because a restraint of the use of a Citizen's property is, prima facie, an infringement of his/her Right to the enjoyment of that property. These reasons are why the Constitution makes express exceptions to these Rights, and in order for these exceptions to be lawfully engaged, the Court must ensure that the predicate charges are with basis in fact, and therefore are reasonable in Law. This is why the POCA requires evidence on affidavit in support of an application for a restraining order; so that "… the Court is satisfied … ".
The evidence which the D.P.P relied on to premise the applications for the restraining orders is contained in the affidavits of Troy Lamontange sworn 24 October 2011, Kendell President sworn 24th October 2011, and another of Troy Lamontange sworn 19th April 2012.
At paragraph 4 of his first affidavit Lamontange states-
"It is to my knowledge that on Thursday 17th March 2011 a search warrant in the name of Julian Adjodha was executed on the premises of JAG Motors situate at Beausejour in the quarter of Gros Islet, by members of the Drugs Squad of the Royal S1. Lucia Police Force, with assistance of officers of the Customs and Excise Department. During the search four (4) metal drums were discovered in a locked room which was opened by the Defendant [Moeita Adjodha] upon the request of the police. The four drums all had welded inner compartment which were opened by the police in the presence of the Julian Adjodha and the Defendant, [Moeita Adjodha] who is the manager and a Director of JAG Motors, A quantity of green plant material which appeared to be cannabis was found in each of the inner compartments of the drums." [All errors are in the original].
What is immediately obvious from the foregoing is that (a) that Mr. Lamontange does not give the source of "It is to my knowledge…" as is required by CPR 2000 Part 30.3 (2) (b), and (b) the Search Warrant which was executed on the subject premises, owned by the company, and not by Julian Adjodha, was a Search Warrant directed to premises of julian Adjodha and not to premisesowned by the Company. In respect of (a) above, at the hearing of these applications it appeared to be common ground that Lamontange was not present at the JAG Motors premises on 17th March 2011 when the search was carried out, and therefore his affidavit does not comply with Part 30.3 (2). This, however, shall not hinder this Court from giving full attention to the contents of this paragraph in his affidavit, as it appears to be a reflection of what is deposed to in the affidavit of Kendell President on 24th October 2011. In respect of (b) above, that issue is of no moment in these proceedings.
At paragraph 9of the said affidavit Lamontange states-
"I state further that based on the information contained herein and the Affidavit of Constable Kendell President dated 24th October 2011 and filed herein on 24th October 2011 that I have reasonable grounds to believe that the Defendant [Moeita Adjodha] has committed the offence of drug trafficking and that she has benefitted from the offence of drug trafficking".
At paragraph 2of his first affidavit President states-
"2. On Thursday the17th of March 2011 about 3:07pm, I along with inspector Samuel, other police officers from the Drugs Squad and Customs Officers executed a search warrant for controlled drugs on the business place, "JAG Inc" which is situate at Beausejour in the quarter of Gros Islet and owned by Julian Adjodha and his wife, Moeita Adjodha, who is hereafter referred to as "the Defendant".
At paragraphs 3 and 4 President states-
"3. Upon arrival at the aforesaid business place Julian Adjodha was not present but we were met by the Defendant [Moeita Adjodha] who is also the manager of the business….,
4. I informed the Defendant [Moeita Adjodha] that I had a warrant to search the premises for controlled drugs. I read the contents of the warrant to her, gave her a copy of the search warrant, and then commenced a search of the premises in the presence of the Defendant". [Moeita Adjodha].
As stated earlier, it appeared to be common ground at this hearing that the warrant was directed to premises owned by Julian Adjodha,and not to any premises owned by the separate...
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