Drug convict loses agian

CONVICTED Jamaican drug lord Norris “Deedo” Nembhard has lost another appeal in his battle against the Assets Recovery Agency, which had already seized property and motor vehicles valued at millions of dollars that he had acquired through alleged criminal conduct.

On May 4 this year the Appeal Court, after hearing arguments submitted by Nembhard’s attorney Hugh Wildman last December, denied Nembhard’s motion for conditional leave to appeal to Her Majesty in Council, a decision of the Appeal Court delivered last September which did not go in his favour.

On September 30, 2019 the court had dismissed Nembhard’s application for permission to appeal the decision of the court, which also awarded costs to the Assets Recovery Agency, on the basis that his appeal had no real chance of success.

Nembhard, along with Montego Bay businessman Leebert Ramcharan, were designated “drug kingpins” under the US Foreign Narcotics Kingpin Designation Act, by then US President George Bush in 2004.

After fighting his extradition for four years Nembhard was extradited to the USA in 2008 along with four other Jamaicans — Robroy Williams, Glenford Williams, Vivian Dalley and Herbert Henry, a former police corporal.

Their cases drew national attention, based on the allegations made by US prosecutors that they were major participants in the international drug trade between Jamaica and Colombia.

In January 2009 Nembhard pleaded guilty to conspiracy to distribute more than five kilogrammes of cocaine and more than 1,000 kilogrammes of marijuana, knowing and intending it to be unlawfully imported into the United States upon reaching the United States, and was initially sentenced to 13 years but the sentence was reduced to nine years. He was, however, released in 2015.

Outlining the background of the case, the Appeal Court noted that on October 5, 2011 the Assets Recovery Agency had brought civil proceedings against Nembhard in the Supreme Court, seeking a civil recovery order and restraint order pursuant to the Proceeds of Crime Act (POCA) against certain properties owned by him, namely several items of real estate and motor vehicles.

The Appeal Court noted that there is agreement that Nembhard was served personally, through his then attorney-at-law, with the claim form, the particulars of claim and other supporting documents. However, he filed no defence to the claim and five years later, in August 2016, a default judgement was entered against him and a civil recovery order made in relation to five properties and 11 motor vehicles, pursuant to section 58(2) and (3) of POCA.

Nembhard then filed an application for the court to set aside the default judgement.

But in August 2018, when the application was heard, Nembhard’s application to set aside that default judgement and extend the time to file his defence was refused. Leave to appeal was also refused.

In refusing the application, the court noted that the five years’ delay was exceptional and that Nembhard had not provided any evidence to account for the delay. The court further found that Nembhard did not show that he had any real prospect of successfully defending the claim.

In his motion for conditional leave to appeal to Her Majesty in Council, Nembhard had questioned whether the Proceeds of Crime Act, 2007 has retrospective effect to allow for unlawful conduct that occurred prior to May 2007 to be used as the basis for making a civil recovery order under section 57 of the POCA.

He also asked whether section 55(3) of the POCA overrides the provision of section 2 of the Act in so far as it relates to the appointed date for the purposes of a civil recovery order in respect of an unlawful conduct that occurred prior to May 2007.

The court noted that in his affidavit filed on October 18, 2019, in support of the motion, Nembhard deponed that the court had misinterpreted section 55(3) of POCA in light of the provisions of sections 2 and 55(1).

He stated that on a true and proper construction of those provisions, the Assets Recovery Agency would not have been able to rely on those provisions to establish that a civil recovery order could properly be made against him, therefore the questions he raised “ought to be referred to Her Majesty in Council for consideration and clarity”.

The court noted that attorney Wildman, in his submissions before the court, asserted that based on the definition of “criminal conduct” in section 2 of POCA, and “unlawful conduct” set out in section 55, the legislators intended “to reconcile the definition of unlawful with criminal conduct in Section 2 of POCA”.

He argued that before any act can be regarded as unlawful conduct, it must be a crime, and crime takes its meaning from section 2 of POCA. The definition of “unlawful conduct”, Wildman submitted, is “not at large”, as “it is circumscribed by the plain language in section 2 of POCA”.

As a consequence, he submitted that “if the respondent cannot establish a crime in the definition of unlawful conduct, there is no basis to apply for a civil recovery order under section 57 of POCA”.

Wildman also submitted that section 55(3) of POCA only deals with recoverable property and does not attempt to redefine criminal or unlawful conduct. Additionally, he stated that it permitted the Assets Recovery Agency to apply for a civil recovery order against someone who had committed unlawful conduct, but that conduct must be a crime within the definition of section 2 of POCA.

He stated that, contrary to the position taken by counsel for the respondent, Alethia Whyte, it is not true that when dealing with a civil recovery order under POCA one was not concerned with criminal conduct. It was a condition precedent that a crime must be established.

Section 55(3), he said, assumes that unlawful conduct has been established. That is why it is only after unlawful conduct has been established, which includes a crime under section 2 of POCA, that section 55(3) of POCA can be invoked. Once the unlawful conduct is established then one can seek and obtain a civil recovery order, and that order can be obtained irrespective of whether the property was owned by the person before the appointed day of May 30, 2007.

However, Whyte described Wildman’s submissions as “entirely misconceived”. She reminded the court that these submissions were made before and had not found favour with Justice Brian Sykes in a previous case between the Assets Recovery Agency and Adrian and Patrick Fogo in 2014, nor with either Justice Laing on the application to set aside the default judgement, or the Appeal Court on the application for permission to appeal Justice Laing’s decision.

She submitted that Wildman’s construction of the relevant provisions of POCA was without merit and just plainly wrong.

Additionally, Whyte submitted that in light of the court’s pronouncement in respect of the interpretation of unlawful conduct in the context of civil recovery, the questions raised by Nembhard in the motion do not raise any difficult or serious issues of law which need to be clarified. She therefore urged the court to dismiss the motion with costs to her client.

In response, the court stated that there was no merit in Nembhard’s proposed ground of appeal that POCA did not have retrospective effect to cover unlawful conduct which pre-dated May 30, 2007.

“This court and the Supreme Court have therefore made it clear that there are two particular regimes set out in POCA. The definition of ‘unlawful conduct’ in relation to the civil regime is different from ‘criminal conduct’ in relation to the criminal regime. Therefore property acquired before POCA was passed can be seized through civil recovery proceedings if it can be shown that it was obtained through ‘unlawful conduct’,” the court said, adding that the limitation period is 20 years from the time of acquisition of the property.

“As a consequence, there is absolutely no issue requiring any clarity in relation to those provisions. There is no basis on which one could say that the applicant has posed any questions of great general or public importance or otherwise, relative to the true and proper interpretation of any provisions of POCA,” the court added.

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