High Court overthrows conviction

Jan 29, 2011 News

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Almost nine months after Magistrate Hazel Octive Hamilton sentenced former Guyana Revenue Authority employee, Michelle Fraser, to seven years’ imprisonment, the Full Court yesterday overturned the conviction.
Fraser, who was charged on December 27, 2002 for engaging in money laundering, was found guilty of the offence on April 12, 2010. She was also fined $ 250,000.
Fraser’s lawyer, attorney at law Nigel Hughes, filed a notice of appeal against her conviction one day after the conviction.
In the judgement which was handed down Chief Justice Ian Chang and Justice Rishi Persaud, it was found that Fraser could have been used by Adrie Callender Martin as an innocent agent to launder her “dirty money”.
Further, it was stated that even though this theory came up, nowhere in the memorandum of reason for the magistrate was such a possibility adverted to, discussed, or discounted even though it was the effect of the appellant’s unsworn statement.
The high court was not inclined to infer guilty knowledge or belief of the status of the “res” as the proceeds of crime in the absence of any evidence that the appellant was aware of the criminal activities of Adrie Callender Martin or Lisa Witter Bennett.
It was observed during the appeal that even though money laundering may be a continuous activity over a period time, yet the particulars of offence were limited to activities which took place on December 27, 2002.
As such the evidence of acts on the part of the appellant subsequent to that date had to be used only as retrospectant circumstantial evidence going to the issue as guilty knowledge or belief in the appellant that the money received by her “Fraser” on December 27, 2002 was the proceeds of criminal activities.
For those reasons cited, the appeal was allowed and the conviction and sentence of the appellant was set aside. A cost of $30,000 was fixed to the appellant.
Grounds of appeal…..
Hughes filed several grounds for the appeal on behalf of Fraser. These included that the learned magistrate failed to adequately consider the defence.
Secondly, the magistrate erred in law when she found that uncontradicted evidence was led to show that the defendant must have had knowledge that the money must have emanated from the proceeds of crime.
Thirdly, the defence contended that the magistrate erred in law when she found that there was evidence that the defendant knew that Adrie Callender Martin had no legitimate earnings in England, and that Martin owned property in England.
This evidence about Martins’s earnings where tendered by Lester and Allen, United Kingdom investigators.
Fourthly, it was stated that magistrate erred in law when she held that, the fact that the defendant’s annual earnings was $573,000 was evidence that Fraser’s money was proceeds of a crime.
Further the defence said that the magistrate erred in law when she found that “the cumulative effect of the above can only mean one thing which is, that the defendant’s actions were in furtherance of some illegal scheme…She must have had reasonable suspicion that the money emanated from some ulterior or illegal source”.
Further it was stated that the magistrate applied the wrong principles of the law, plus she also failed to properly analyze the evidence led by the prosecution. In all the defence stated in there grounds of appeal is that the decision was perverse and excessive.
Since the Money Laundering Legislation came into force 10 years ago, the current Director of Public Prosecutions, Mrs. Shalimar Ali-Hack, was the only DPP to institute a charge under this Act.
The matter had first started before Magistrate Bertlyn Reynolds September 9, 2005 and ended on April 7, 2006. A total of nine witnesses had testified on behalf of the prosecution after which the prosecution closed its case.
Shortly thereafter, the Magistrate resigned and the case had to be done de novo (had to eb restarted from scratch).
It was then transferred to Magistrate Hazel Octive-Hamilton who started the trial on 29th November, 2006.
From that date to November 7, 2007, nine witnesses again testified for the prosecution after which the prosecution closed its case. The matter was adjourned to December 19, 2007, and between that date and January 3, 2008, the defence made written no-case submissions to which the prosecution submitted a written response between February 4 and February 11, 2008.
The matter was adjourned first to April 21, 2008, then to May 21, 2008, for the Magistrate’s ruling, which was given on the latter date.
The Magistrate dismissed the no-case submissions and called upon Michelle Fraser to lead her defence.
Fraser led her defence on August 20, 2009 by way of an unsworn statement made from the dock.
The prosecution’s case is that Michelle Fraser was engaged in a transaction that involved the sum of US$289,000 that is the proceeds of crime, knowing or believing the same to be the proceeds of crime and therefore committed the offence of money laundering.
According to the evidence, Michelle Fraser went to an unknown woman at an unknown address and collected US$289,000.
She then took the US$289,000 to Laparkan Financial Services and exchanged it for Guyana currency.
At Laparkan Financial Services, the defendant requested that the Guyana money be delivered to her as follows. One of the cheques was for $16, 910,000 in the name of Adrie Callender –Martin, the other was for $38,000,000 in the name for Lisa Witter.
After receiving the two cheques and cash, Fraser then took it to the New Building Society to deposit them into the accounts of Adrie Callender-Martin and Lisa Witter. In doing the aforesaid, Michelle Fraser was engaging in a transaction involving an extremely large quantity of US money.
Adrie Callender-Martin and Lisa Witter, into whose names the cheques were written, were both convicted in England for the offence of trafficking in cocaine. Narco trafficking is a prescribed offence as stated in the Second Schedule of the Money Laundering (Prevention) Act 2000.
The Money Laundering (Prevention) Act 2000 states at section 3 that a person who engages in money laundering is guilty of an offence. Money Laundering is defined in section 2 (j) of the Act as follows, engaging, directly or indirectly, in a transaction that involves property that is the proceeds of crime, knowing or believing same to be the proceeds of crime; or
Further receiving, possessing, managing, investing, concealing, disguising, disposing of or bringing into or removing from Guyana any property that is the proceeds of crime, knowing or believing the same to be the proceeds of crime.

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