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Crown points to manner and frequency of forged cheques encashments


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.

 

COUNT 27 — RADCLIFF MCLEAN

CAUSING MONEY TO BE PAID OUT BY MEANS OF FORGED DOCUMENTS

 

[192] Radcliff McLean, on divers dates between the 1st day of January 2015 and the 31st day of December 2016, in the parish of Manchester, with intent to defraud caused the sum of in excess of $2,000,000 to be paid out from the Manchester Parish Council bank account by virtue of you encashing and or processing fraudulent cheques presented to you by person(s) other than the payee.

 

THE LAW

[193] Section 10 (a) of the Forgery Act stipulates that a person shall be guilty of a felony who, “with intent to defraud, demands, receives, or obtains, or causes or procures to be delivered, paid, or transferred, to any person, or endeavours to receive or obtains or to cause or procure to be delivered, paid, or transferred, to any person, any money, security for money, or other property, real or personal (a) under, upon, or by virtue of, any forged instrument whatsoever, knowing it to be forged; or …”.

 

[194] Section 3 (1) stipulates that, forgery “is the making of a false document in order that it may be used as genuine, with either an intent to defraud or deceive. Subsection (2) provides that a document is a false document within the Act, if the whole or any material part thereof purports to be made by, or on behalf or on account of a person who did not make it or authorised its making; … in particular a document is false:

(a) If any material alteration, whether by addition, insertion, obliteration, erasure, removal or otherwise, has been made therein; or…..

Provided that a document may be a false document notwithstanding that it is not false in such manner as is in this subsection set out”.

 

[195] Section 4 (2) provides for forgery of any valuable security, or assignment thereof or endorsement thereon, or where the valuable security is a bill of exchange, any acceptance with intent to defraud.

 

[196] Section 73 of the Bill of Exchange Act provides that a cheque is a bill of exchange drawn on a banker payable on demand. There are however, some considerations under the Act.

 

[197] The following is clear from the above provisions:

a. A cheque is a valuable security.

b. For the purpose of Section 4 (2) a cheque and the endorsement thereon are distinct instruments. Therefore under this section forgery of the endorsement would operate differently from forgery of the cheque itself. This distinction was articulated in the case of R v Errol Salmon, Francis Chin Loy and Clair Chin.

c. For the purpose of Section 10 (a) the cheque and the endorsement thereon are distinct but not mutually exclusive instruments. Therefore, on a charge pursuant to this section, the Crown is not required to prove forgery of the cheque itself. Proof of forgery of the endorsement thereon suffices.

d. The use of the word fraudulent in the count merely signifies the effect of the false endorsement thereon.

 

[198] In discussing the considerations to be taken into account when deliberating on the stated count ‘causing to be paid by forged documents’, the court in R v Errol Salmon, Francis Chin Loy and Clair Chin adopted the principles set out in R v Simpson and Hurford and Williams. The Court held in those cases that the words “under, upon, or by virtue of, any forged instrument whatsoever knowing it to be forged” qualify all the verbs in the preceding part of the section and are applicable to “causing to be paid” as they are to obtaining. The court in Chin Loy said that, “section 10 is to be looked at, not from the viewpoint of the person who has parted with the property, but from the angle of the alleged offender and one must ask oneself, did he start a train of events by means of the forged instrument which culminated in his obtaining property?”

 

[199] We submit that at a minimum, on the evidence, reasonable inferences can be drawn which tend to support that based on his conduct, Mr McLean set in train a series of events that were prejudicial to the interest of the Manchester Parish Council, resulting in the bank paying out millions of dollars from the council’s account. In view of this, the Crown is required to prove that:

a. Mr McLean knew that the endorsements on the cheques were forged.

b. He, with intent to defraud, caused monies to be paid from the Manchester Parish Council account.

 

[200] The evidence in respect of count 27 came through Miss Sherill Goppal bolstered by the testimony of MM, TM, NH, AF, TB, TW (names withheld to protect witnesses) and Dave Smith, as well as documentary evidence in the form of exhibits 115-119, 122-124, 143, 148, 168-169, 171-172 and 176. This count is also supported by the submission of the Crown in count 1 as it relates to Radcliff McLean.

 

[201] We submit that there is no dispute that Mr McLean processed the cheques. The unchallenged evidence of Ms Sherill Gopall is that these cheques were negotiated at the bank and processed by Mr Mclean who was assigned teller stamp number 9. Consequently, the Crown submits that the salient issue is whether Mr McLean knew that the cheques contained forged endorsements at the time they were negotiated.

 

[202] In considering his knowledge and intention, the Crown invites the court to consider the circumstances in its entirety. Namely, the manner and frequency of the encashments; the duration of his involvement; irregularities observed on these cheques which conflict with the protocols of the bank; his experience and training in anti-money laundering protocols and banking procedure; and the testimony of the named payees. It is submitted that these are circumstances from which the court may infer guilty knowledge on the part of Mr McLean.

 

[203] Based on the evidence, it is open to the tribunal of fact to find from the circumstances that the named payees did not present at the bank and encashed the cheques. We submit that if the court makes this finding coupled with other considerations [it] meant that the circumstances which are required to exist when the cheques are negotiated would not have existed, and this gives rise to the reasonable inference that Mr McLean knew these cheques bore forged endorsements. The evidence is clear from the testimony of Miss Goppal that a cheque cannot be negotiated at the teller without the endorsement of the payee.

 

[204] The scope of Mr McLean’s involvement… bears witness to the inescapable conclusion that he was instrumental in the scheme.

NEXT: An act of corruption

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