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Cheques post-dated to cover up unlawful conduct


THE $400-million Manchester Municipal Corporation fraud trial ended on Friday, May 15, 2020 with the conviction of main accused 35-year-old Sanja Elliott, the corporation’s former deputy superintendent of road and works; his wife, Tasha-gaye Goulbourne-Elliott; two former employees of the corporation, David Harris, secretary/manager and acting chief executive officer, and Kendale Roberts, temporary works overseer; as well as Dwayne Sibblies, a former employee of Sanja Elliott.

Those freed at the end of the trial were Sanja Elliott’s mother, Myrtle Elliott, and former commercial bank teller Radcliff McLean.

In January, Sanja Elliott’s father and husband of Myrtle Elliott, Elwardo, was the first to be freed.

The charges included conspiracy to defraud, engaging in a transaction that involves criminal property, several counts of possession of criminal property, facilitating the retention of criminal property, obtaining money by means of false pretence, causing money to be paid out by forged documents, an act of corruption, and uttering forged documents.

The Jamaica Observer continues its publication of the Crown’s closing submission, prepared by prosecutors Channa Ormsby, Patrice Hickson, and Jamelia Simpson, as well as Kamesha Campbell, attorney on fiat from the Major Organised Crime and Anti-Corruption Agency, and presented to the court in the case against the seven.

 

KENDALE ROBERTS

What acts or omission did Kendale Roberts engage in?

 

[217] Kendale Roberts, in his capacity as temporary works overseer, had as a part of his functions, responsibility to prepare bills for payment and implement work programmes. The evidence shows that Mr Roberts, in the performance of these public functions, did the following:

• Submitted and signed forged invoices in the names of persons who had not performed legitimate work for the council. All the witnesses as to fact gave evidence that they did not submit or cause to be submitted or sign the signature on the respective contractor invoices; neither did they perform the work stated therein or cause same to be performed. Given that it was Mr Roberts’s job to attend the location with the contractor and scope out the work to be done and negotiate the estimates, in view of the evidence of the witnesses, with whom did he scope out the work and estimates?

 

[218] The evidence shows where Mr Roberts signed in the margin of the contractor and Manchester Parish Council (MPC) invoices, certifying that he had inspected these locations and work was satisfactorily done. We invite the court to find that Mr Roberts purposely certified forged invoices and back-dated bills which he submitted to the council under pretext that these had been prepared in respect of bona fide work carried out by the named individuals on behalf of the council. Further, that he did not inspect the named locations to verify that work was done. This is inferable from his conduct of engaging in the back-dating of bills as depicted in the text messages.

 

[219] Mr Roberts’ purpose was to derive a benefit from this conduct for himself and Sanja Elliott. This is apparent in the exchange between Sanja Elliott and WhatsApp handle “Kendale”: “find a next name n put 50 for urself” (Exhibit 227, pg.19).

 

[220] We invite the court to find that Mr Roberts unlawfully used his station to procure monetary benefit for himself and Mr Elliott, contrary to his prescribed duty and the interest of the public.

 

DAVID HARRIS

What acts did he engage in?

 

[221] David Harris was employed to the council as director of finance and commenced acting as secretary manager/CEO effective November 2015. He, as part of his public function, was responsible for supervising the day-to-day operations of the council.

 

[222] In the performance of his public function Mr Harris approved and signed off on fraudulent invoices and payment vouchers, which resulted in the creation of cheques in the names of persons who had not performed bona fide work on behalf of the council. This unlawful conduct was depicted in the text messages sent by Mr Harris to Sanja Elliott. Mr Harris submitted names of purported contractors and amounts to be allocated on cheques to be drawn in their names (exhibit 225, page 17).

 

[223] The evidence shows that Mr Harris arbitrarily conveyed the names of payees and amounts to Mr Elliott, following which payment vouchers, invoices and cheques are generated in these names and amounts although no work was performed. The messages also show where Mr Harris facilitated the post-dating of cheques. We submit, the post-dating of cheques indicates that Mr Harris was seeking to cover up his unlawful conduct.

 

[224] Mr Harris also spearheaded the ratio of the allocation and distribution of the funds between the various accounts (exhibit 225 pg. 14-15, 24.). If Mr Harris was engaged in a lawful and a legitimate process of allocation, what need would there be for him to become involved in the conduct below?

* “squeeze $1.2… $800 from beauty $400PRF”. “we can’t do more than that” (Exhibit 225, pg. 15 per David Harris).

* “New arrangement for program $1.2M weekly from PRF maximum and $2.7M main account beauty. Fluctuate from $250,000 to $450,000. No two cheque for same person same week or one in PRF acc and one in beauty” (exhibit 225, pg.16 per David Harris).

 

[225] We submit that given that work is based on negotiations between the prospective contractor and the work overseer upon a site visit, a predetermined arrangement for procurement of names, disbursement and allocation of amounts is indicative of his calculated and criminal conduct. Similarly, if this concerned legitimate contractors, having a pre-ordered or predetermined plan as to what account the payment should come from is not plausible, particularly, since he is not responsible for awarding work.

 

[226] We invite the court to find that Mr Harris unlawfully used his station to procure monetary benefit for Mr Elliott or another, contrary to his prescribed duty and the interest of the public. This was possible because of the office he occupied, access and autonomy he had over the system, and his control over the finances of the council, having been the financial director and CEO.

 

COUNT 32

UTTERING FORGED DOCUMENT

 

[227] The count of uttering forged document is specific to Mr Kendale Roberts and charges him as follows:

Count 32: Kendale Roberts, on divers dates between the 1st day of January 2014 and the 31st day of December 2016, with intent to defraud, uttered forged invoices in the names Raquel Butt, Kevin Butt, NH, Trevor Peart, MM and TM (names withheld to protect witnesses) certifying that these individuals had carried out bona fide work for the Manchester Parish Council.

 

THE LAW

 

[228] Section 9 of the Forgery Act provides:

9(1) “Every person who utters any forged document, seal, or die, shall be guilty of an offence of the like degree (whether felony or misdemeanour), and on conviction thereof shall be liable to the same punishment as if he himself had forged the document, seal, or die.

9(2) “A person utters a forged document, seal, or die, who knowing it to be forged, and with either of the intents necessary to constitute the offence of forging the document, seal, or die, uses, offers, publishes, delivers, dispose, disposes of, tenders in payment or in exchange, expose for sale or exchange, exchanges, tenders in evidence, or puts off such forged document, seal, or die.”

 

Elements of the Offence

 

[229] The ingredients which the prosecution needs to prove the offence against Mr Roberts are as follows:

a. that he uttered the invoices in the names MM, NH, TM, AF, Dave Smith, TB and TW;

b. that these invoices were forged;

c. that he knowingly uttered/issued the forged invoices;

d. the intention was to deceive and defraud.

 

[230] We submit that the following facts are not in issue:

a. that Mr Roberts signed the contractor and MPC invoices;

b. he tendered or submitted these invoices to the parish council;

c. that these invoices were submitted as part of his job function to facilitate the processing of payment vouchers and cheques;

d. that the contractor invoices were forged, in that

• the named contractors did not prepare or cause to be prepared these invoices;

• they did not sign the invoices or cause anyone to sign them on their behalves;

• they did not submit these contractor invoices to the parish council;

• the signature on these invoices did not belong to them;

• they did not perform the work described in these invoices or cause anyone to perform the work described therein;

e. that the works overseer’s signature on these invoices signifies that the work was completed;

f. that the works overseer is required to attend work sites to meet with contractors to identify the scope of work and to value the work;

g. that the works overseer is to visit the work site to verify that the work was done to specification before signing off on the invoices.

 

[231] The main issue for determination by the court is whether Kendale Roberts knowingly uttered the forged invoices with the intention to defraud and to deceive the parish council.

 

[232] The mens rea for uttering a forged document was defined in Welham v The Director of Public Prosecutions. Lord Denning, after reviewing the law on forgery, agreed with East on Pleas of the Crown Vol 2 page 852, which states: “Put shortly ‘with intent to defraud’ means ‘with intent to practise a fraud’ on someone or other. It need not be anyone in particular. Someone in general will suffice. If anyone may be prejudiced in any way by the fraud, that is enough.” This was adopted by the Court of Appeal in the decision of Howard Campbell v R.

 

[233] The Crown submits that, in looking at the question in issue of whether or not Mr Roberts knew the invoices were forged at the time he uttered them and intended to defraud or deceive the council, the court should have regard to his overall conduct from the surrounding circumstances of the case. In considering this, the Crown invites the court to pay particular attention to these factors which tend to support his knowledge as described below.

 

[234] If the court accepts the evidence of the witnesses as to fact that they did not submit these invoices or otherwise knew of them, with whom did Mr Roberts attend the named location to scope out the work and negotiate the estimates? This question has been asked several times and remains unanswered.

 

[235] The content and context of the messages sent between Messrs Roberts and Elliott reveal that the witnesses as to fact names, TRN, and in some instances sums were forwarded to Mr Roberts to facilitate the processing of payments in their names. The fact of this is borne out in the invoices and other payment documents that were created contemporaneously with these messages, unbeknownst to the witnesses.

It was Mr Roberts who certified these documents in all cases where the witnesses gave evidence that that they neither performed work nor caused it to be done, and it is not their signature on the contractor invoices and they did not submit the contractor invoice to the council. This also conflicts with the process described by Mr Roberts in his unsworn statement.

Mr Roberts, by his own admission, agrees with the Crown that the contractor provides the contractor invoice to the works overseer or officer. It means that there would be no need for Mr Elliott to be sending him this information, given that Mr Roberts would have already had this in his possession as a part of the process of meeting with the contractor and receiving the invoice.

 

[236] Even at a minimum, this cannot be considered as an innocent query, given that in all cases where impropriety is being alleged it is Mr Roberts who signed off on the forged document, even though he was not the sole works overseer employed to the council.

 

[237] The Crown invites the court to find that, based on all the circumstances outlined in this case, and which implicate Mr Roberts, that it was not mere coincidence that his signature is stated on all forged invoices for which the witnesses as to fact said they neither signed nor caused anyone to prepare nor submit, nor performed the work or services stated therein.

We invite the court to find that Mr Roberts knew that the invoices were forged documents when he uttered these to the council. We invite the court to find that his conduct amounted to an act of deception or dishonesty which was prejudicial to the interest of the council and designed to defraud the council.

NEXT: The money laundering charges against Sanja Elliott, Tashagay Goulbourne Elliott and Mrytle Elliott

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