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Illicit benefits obtained through 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.

 

[205] The evidence reveals that cheques were made payable to the order of specific payees, and therefore required the endorsements of these individual to be encashed. Of the 17 fraudulent cheques presented, 15 were processed by Mr McLean. This was done contrary to the policy that the bank does not negotiate third party cheques.

A total of $5,985,000 was paid out of the Manchester Parish Council account. Of this amount, $5,685,000 was paid based on falsified endorsements. This sum was negotiated through 15 cheques processed by Mr Radcliff McLean who was assigned teller stamp number 9. On the evidence, these cheques were neither endorsed nor presented to Mr McLean by the named payees. In the case of MM (name withheld to protect witness), it is instructive that Mr McLean negotiated multiple falsified cheques on the same date in her name. Is it mere coincidence that he processed all three fraudulent cheques negotiated in the name MM on December 22, 2015? A mere four days after she had appeared before him and encashed a Manchester Parish Council cheque?

 

[206] On March 18, 2016 Mr McLean processed a cheque made payable to TM (name withheld to protect witness) which was endorsed “D Sibblies” unbeknown to TM and without his authorisation (exhibit 169). The unchallenged evidence before the court is that, where the customer cannot sign, he is required to place an X. It is not permissible for a signature other than the named payee to appear at the back of the cheque. Interestingly, on the same date, March 18, 2016 Mr McLean processed another cheque made payable to TM which also did not bear the signature of TM (exhibit 171). From these circumstances, it is open to the court to find that when all these factors are taken together, that Mr McLean was not acting in good faith, and that he knew the endorsements were forged when he negotiated these cheques.

 

[207] Applying the principles enunciated in the case of Chin Loy to the evidence, it is apparent on the evidence that all the cheques outlined in tables 7 and 8 came into the possession of Radcliff Mclean for negotiation, and the bank account of the council was debited accordingly. From all the circumstances set out, it is clear that he knew that the endorsements on the cheques were forged. We submit that this is very apparent in the case of exhibit 169 which was endorsed “D Sibblies” and exhibit 168, which reflects only one authorised signatory. Further, his position at the bank as an expert level teller facilitated the negotiation of these cheques. By facilitating these cheques for negotiation, well knowing that they contained forged endorsements, he advanced the train of events which culminated in monies being paid out of the parish council account at the bank.

 

COUNTS 28-30

AN ACT OF CORRUPTION

[208] The indictment includes three counts which charge the offence of an act of corruption in respect of Sanja Elliott, David Harris, and Kendale Roberts. These counts are addressed below.

 

* Count 28: David Harris, being a public servant, on divers dates between January 1, 2015 and December 31, 2016 in the parish of Manchester, in the performance of his public function, did an act to wit you corruptly caused monies to be paid out by the Manchester Parish Council by approving and signing fraudulent invoices and payment vouchers which resulted in the creation of cheques in the names of persons who had not performed work for the Manchester Parish Council, for the purpose of obtaining an illicit benefit for either yourself or another.

* Count 29: Kendale Roberts, being a public servant, on divers dates between January 1, 2014 and December 31, 2016 in the parish of Manchester, in the performance of his public function, did an act to wit you corruptly caused monies to be paid out by the Manchester Parish Council by approving and submitting forged invoices which resulted in the creation of payment vouchers and cheques being drawn in the names of persons who had not performed work for the Manchester Parish Council, and you did this for the purpose of obtaining a benefit for yourself or some other person.

* Count 30: Sanja Elliott, a public servant, on divers dates between January 1, 2014 and December 31, 2016 in the parish of Manchester, in the performance of his public function did an act to wit you corruptly caused monies to be paid out by the Manchester Parish Council by authorising the payment of fraudulent vouchers, resulting in the creation of cheques being drawn in the names of persons who had not performed work for the Manchester Parish Council, and you did this for the purpose of obtaining a benefit for yourself or some other person.

 

THE LAW

[209] Corruption is defined as “the act of an official or fiduciary person who unlawfully and wrongfully uses his station or character to procure some benefit for himself or for another person contrary in duty and the rights of others”.

 

[210] Pursuant to Section 14 (1) (b) of the Corruption (Prevention) Act, a public servant commits an act of corruption “if he in the performance of his public function does an act or omits to do any act for the purpose of obtaining any illicit benefit for himself or any other persons”. The essence of this charge is that the accused person must know that he was doing an unlawful act and receiving an illicit benefit to do such act, whether for himself or some other person.

 

[211] Section 2 of the Act defines a public servant as “any person employed in the public, municipal, or parochial service of Jamaica… who is an official of the State or any of its agencies; elected, selected, or otherwise engaged to perform a public function”. The section stipulates that a public function means any activity performed a single time or continually, whether or not payment is received and which is carried out by a person, on behalf of … a …parish council…;” We submit that it is not in dispute that Sanja Elliott, David Harris, and Kendale Roberts are public servants for the purposes of the Act.

 

Elements of the Offence

[212] In order to succeed on the counts charging an act of corruption the Crown must prove the following:

(a) proof of public servant;

(b) proof of an act or a failure to act when action is required in the discharge of duty (unlawful conduct);

(c) intention to gain a benefit either for himself or some other person (knowledge).

SANJA ELLIOTT

What act (s) did Sanja Elliott engage in?

[213] The Crown submits that Mr Elliott, being the deputy superintendent of roads and works and then acting superintendent of roads and works, had the autonomy to identify, issue, or allocate works within the divisions of Manchester. In the performance of this duty:

• He pretended that he had procured or engaged the services of contractors to supervise beautification and debushing work and delivery of potable water within various divisions of the council. The evidence of NH, AF, TM, and MM (names withheld to protect witnesses) support this. Particularly, NH testified that Mr Elliott told her that he had a job for her to be a contractor, doing beautification work. However, this did not materialise. Nonetheless, he authorised several payment vouchers in her name and received the proceeds for this unlawful conduct.

• Solicited the TRN (taxpayer registration number) and names of these individuals and used their personal information to funnel money out of the council by authorising and certifying payment vouchers and invoices, on the pretext that monies were owed to these persons for bona fide work. Similar to what was discussed above, NH, AF, TM, and MM all testified that they provided their TRN to Mr Elliott. With the exception of MM, this was provided to him for the purpose of securing work. In the case of MM, he had randomly called and asked her to encash a cheque for him and requested her TRN. The proceeds from that cheque and other cheques encashed by these individuals were all returned to Mr Elliott, either directly or through his associates. We submit that this constitutes the illicit benefit which Mr Elliott obtained through his unlawful conduct.

 

[214] In all cases, these individuals had not legitimately earned these cheques, having not performed any work or service. We submit that the court can infer from the circumstances that Mr Elliott was fully clothed with the knowledge that these persons were not performing work on behalf of Manchester Parish Council and therefore was not owed this money. Moreover, these witnesses and Mr Elliott were all friends.

 

Fraudulent

[215] We submit that it is through this corrupt bargain that Mr Elliott retained unencashed cheques made payable to TB, AF, and TM, without their knowledge or consent and with full knowledge that they were never owed any money by the council. The court recalls the evidence that these cheques were found concealed in an envelope in Mr Elliott’s Suzuki Jimny motor vehicle. It is instructive that in the case of TB, she had last worked for the council in 2014. We submit that Mr Elliott knew this, as he was the person who usually offered her work, the two to three times when she did work.

 

[216] We invite the court to find that Mr Elliott held a position of public trust, and he unlawfully used his station to procure monetary benefit for himself, contrary to his prescribed duty and the interest of the public.

 

NEXT: Kendale Roberts’ acts and omissions

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