“M” Applicant v The Hon. Attorney General Respondent

• Jurisdiction: Cayman Islands
• Judge: The Hon. Mr. Justice Charles Quin
• Judgment Date: 23 January 2015
• Court: Grand Court (Cayman Islands)
• Docket Number: Cause No: POCL 10/2012 Ind. No: 5/2014
• Date: 23 January 2015

In the Matter of an Application by the Attorney General for a Restraint Order Pursant to S.45 of the Proceeds of Crime Law (2008) Revision

Between:

“M”

Applicant

and

The Hon. Attorney General

Respondent

[2015] CIGC J0127-1

Before:

The Hon. Mr. Justice Charles Quin Q.C.

Cause No: POCL 10/2012 Case Numbers: 04346/2013 (1–11) Ind. No: 5/2014

IN THE GRAND COURT OF THE CAYMAN ISLANDS

Introduction

1 On the 9^th January 2015 the Applicant filed an ex parte Summons pursuant to the Proceeds of Crime Law (POCL) applying for the Restraint Order dated the 15^th October 2012 to be varied, discharged or suspended on the following grounds:

• a. That there were substantial irregularities in the Respondent'sex parte application for the Restraint Order on the 15^th October 2012, including, but not limited to non-disclosure, misstatements and procedural irregularities;

• b. That the Restraint Order contravenes the Applicant's fair trial rights pursuant to s. 7 of the Bill of Rights of the Cayman Islands Constitution;

The Summons also asks the Court to make such Orders which the Court in its absolute discretion may consider appropriate and also to make an Order for costs.

Chronology of Relevant Proceedings

2 For the avoidance of doubt, and for the sake of clarity, it is noted that, although the Summons now before the Court is filed in the Grand Court pursuant to the Proceeds of Crime Law (POCL), the ‘Proceedings’ referred to in this Chronology relate to matters in:

• i. The Grand Court of the Cayman Islands — POCL 10/2012;

• ii. The Summary Court of the Cayman Islands — Case Numbers 04346/2013 (1–11);

• iii. The Criminal Division of the Grand Court of the Cayman Islands — Indictment 0005/2014.

3 10^th October 2010 : The Complainant made a report to the Royal Cayman Islands Police Service Financial Crime Unit (the RCIPS FCU) that the Applicant had stolen money from a joint account. In a sworn statement the Complainant stated that the CI$500,000.00 had been placed in a joint US dollar account, which was a loan to the Applicant on the purchase price for dilapidated apartment for the Applicant to refurbish and sell. The agreement was that the Complainant would be paid back the CI$500,000.00 but the profits would go to the Applicant. The Complainant told the police that the Applicant had transferred over CI$500,000.00 from the joint account to her personal account without his authorization or consent, and the Complainant requested that the police investigate the matter and appropriate charges be laid.

4 12^th October 2012 : Crown counsel Michael Snape (‘Mr. Snape’) on behalf of the Attorney General filed an ex parte Summons for a Restraint Order prohibiting the disposal of assets pursuant to s.45 of the Proceeds of Crime Law (POCL). On that date, Detective Constable “F” swore an affidavit stating that the application is based on the premise that a criminal investigation has commenced with regard to the offences of theft and money laundering, and there is reasonable cause to believe that the Applicant has benefitted from her criminal conduct.

5 15^th October 2012 : The Grand Court heard the POCL application presented by Crown Counsel, Mr. Snape, and read the affidavit of DC “F”, sworn on the 12^th October 2012 and made an order restraining:

• i. Butterfield Bank (Cayman) Ltd account #02201125903 with a current balance of CI$200,549.49;

• ii. Butterfield Bank (Cayman) Ltd account #0120125903 with a current balance of US$220,593.09;

• iii. Monies held in the account at Scotiabank and Trust (Cayman) Ltd. in the name of the Applicant;

• iv. Monies held in accounts at RBC Dominion Private Banking in the name of the Applicant;

• v. Property located at Ocean Club, Shamrock Road — Registration Section Spotts, Block 25B, Parcel 338 H66.

• vi. Any other property held in the name of or on behalf of the Applicant.

The POCL Order was served on the Applicant's then attorneys.

6 21^st June 2013 : Criminal charges were brought against the Applicant in these proceedings in the Summary Court of the Cayman Islands. The Applicant was charged with 8 counts of theft, 1 count of obtaining property by deception, 1 count of forgery and 1 count of transferring criminal property — Summary Court Case Numbers: 04326/2013 (1–11). The charges allege that the offences took place between the 31^st May 2010 and the 13^th August 2012.

7 5^th July 2013 : The Applicant was brought before the Summary Court and granted bail. Crown Counsel Ms. Salako confirms that a full bundle of papers were served on the Applicant's attorneys on the 2^nd July 201, prior to the Summary Court proceedings, and the only additional statement was one from a Ms. G B, dated the 29^th May 2014.

8 26^th November 2013 : A Preliminary Inquiry hearing took place.

9 18^th December 2013 : The Summary Court charges against the Applicant/Defendant were transmitted to the Criminal Division of the Grand Court1 for Mention on the 17^th January 2014.

10 15^th January 2014 : The DPP prepared and submitted Indictment 0005/2014 containing 10 counts of theft, 1 count of forgery, 1 count of obtaining property by deception, and, 1 count of transferring criminal property.

11 17^th January 2014 : The Applicant, represented by her then attorneys — who had been her attorneys from October 2012 — was arraigned and pleaded not guilty to all 12 counts on the Indictment and a trial date was set for the 4^th August 2014 and a Plea and Directions (PDH) hearing was set for the 25^th April 2014.

12 14^th November 2014: The Applicant's then attorneys filed a Summons for an application to vary the Restraint Order on the grounds that the valuation of the restrained assets exceeded the amount of money which needs to be restrained in order to indemnify the Complainant, should the case against the Applicant be proven beyond reasonable doubt at the Grand Court criminal trial.

13 22^nd November 2014: Based on the Applicant's summons to vary the Restraint Order, the Court made an Order varying the Restraint Order of the 15^th October 2012 — restraining US$200,000.00 and CDN$250,000.00 — held in the account at Bank of Montreal, Toronto in the name of the Applicant, as well as CDN$ 100,000.00 held in RBC Toronto in the name of the Applicant. As a result of the submissions made on behalf of the Applicant the Court also approved a direction that, for the avoidance of doubt, the Restraint Order does not prohibit the Applicant from having access to funds in excess of the amounts stated.

At some point the Applicant's then attorneys agreed with the Respondent that funds from the Applicant's Ocean Club rental property in the sum of CI$ 1600.00 per month should be paid to the Applicant's then attorneys. It was also agreed that out of the CI$1600.00 the Applicant's attorneys would pay the strata fees for the rental property and then provide the balance in the sum of approximately CI$700.00 per month to the Applicant for her living expenses. This agreement did not require any further variation of the October 2012 Restraint Order.

14 31^st May 2013 : The Crown received information from the Bank of Montreal that the Applicant had CDN$1,472,353.81 in her bank account there.

15 June 2014 : It as revealed that the Bank of Montreal had closed the account because the bank, in the absence of a Canadian Restraint Order, was not prepared to continue to restrain any funds.

16 25^th April 2014 : The Applicant applied for an adjournment of the PDH in Indictment 5/2014 to allow the Applicant's leading counsel time to take further instructions from the Applicant, who herself had been unwell. The Crown opposed this application for the adjournment of the PDH but the Court acceded to the Applicant's request to adjourn the PDH to the 23^rd May 2014.

17 23^rd May 2014 : The Applicant applied to vacate the trial date of the 4^th August 2014 due to the Applicant's leading counsel's commitments in London. The Crown opposed the Applicant's application to vacate the trial date — stating that the Complainant was in his 80's and unwell. The Crown submitted that any delay would be prejudicial to the Complainant and that the Applicant could instruct another suitable leading counsel — with sufficient time to be prepared for the trial on the 4^th August 2014.

Despite the Respondent's objections to the Applicant's application the Court acceded to the application on the basis that the 4^th August 2014 was the first trial date set and the Applicant should be allowed the opportunity to be represented by her counsel of choosing.

18 30^th May 2014 : The 2-week trial is now set to commence on Thursday the 15^th January 2015. The Applicant requested a third-party disclosure application hearing for the 4^th June 2014.

19 4^th June 2014: The court granted the Applicant's disclosure request for the Complainant's will, some medical records and bank accounts relating to the Complainant.

20 Between 4^th June 2014 and the 23^rd July 2014 : The Applicant dismissed her previous attorneys.

21 23^rd July 2014 : Stuarts came on the record. The Court made it clear to defence counsel that the trial was set to commence on the 15^th January 2015 for 2 weeks. The Respondent put the Court and the defence on notice that any further requests to adjourn the trial would be vigorously opposed. The Respondent pointed out that the defence had already had one adjournment to facilitate the availability of their counsel and any further applications would be vigorously contested.

22 5^th September 2014: Discussions regarding discovery were held and defence counsel gave notice of the Applicant's intention to apply to discharge the Restraint Order which is currently in place in relation to the joint account.

23 19^th December 2014: Indictment 5/2014 was listed for the Applicant's counsel to advise on his availability to commence the 2-week trial on the 15^th January 2015. Defence counsel confirmed...