Calculated criminal conduct

Calculated criminal conduct

Friday, May 29, 2020

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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.

DIRECT EVIDENCE —

[78] In assessing the evidence of the witnesses as to fact, the Court may find that not only did Mr Elliott devise the scheme but that his criminal conduct is borne out based on several commonalities described by the witnesses in their evidence. These are enumerated as follows:

• They are all close friends or associates of Mr Elliott.

• They all conveyed or provided their names and TRN (Taxpayer Registration Number) to him, either by means of WhatsApp message or in person.

• They met him on the roadway to collect cheques directly or from another person based on his instructions. This is devoid of the legitimate process explained by Miss Ramsey, Mr Facey, and David Harris in his unsworn statement.

• It was not permissible for Mr Elliott, being an employee of the council, to collect cheques on behalf of a contractor.

• They received instructions from him to encash these cheques and return the proceeds to him or to turn over same to Dwayne Sibblies or another person.

• They are all unaware of the contractor invoices prepared in their names, which proved to be fraudulent documents, and ultimately resulted in MPC invoices and payment vouchers being prepared.

• Mr Elliott certified the contents of these payment vouchers and MPC invoices to be true (which proved to be fraudulent), resulting in payments being made.

• They neither performed the work described in the stated documents nor any work for the council.

These witnesses' evidence, if accepted by the Court, tend to support the argument made by the Crown that the survival of the scheme depended heavily on Mr Elliott using his friends as conduits to fleece money out of the council by recycling their personal data (name and TRN) under the guise that they had been legitimately contracted by the council to perform bona fide work.

[79] In the case of Kendale Roberts, the Crown invites the court to find that Kendale Roberts:

• Was not merely an unwitting participant when he signed off on contractor and MPC invoices, verifying that work was done;

• Facilitated the creation of fictitious contractor invoices, fraudulent MPC invoices and payment vouchers;

• Dishonestly conveyed to the council that “purported contractors” were entitled to payment for bona fide work by certifying these fictitious and fraudulent invoices. This was unlawful conduct;

• Induced the council to process these fraudulent contractor invoices;

• Did not attend upon or visit the various divisions stated on the contractor invoices and other documents with the named contractors;

• Did not measure the scope of work nor negotiated any rate or estimates with these “purported contractors”;

• Actions or conduct were not merely negligible but rather calculated criminal conduct designed to fleece the council out of money under the guise that he was verifying legitimate work.

[80] In the case of David Harris the Crown invites the court to find that:

• He knowingly participated in this scheme;

• He was not merely rubber stamping these cheques, payment vouchers and invoices pursuant to his functions as a signing officer nor was he an unwitting participant;

• He facilitated and approved the creation of fraudulent documents in the names of purported contractors;

• He used his position as a signing officer and the autonomy he held in his post to manipulate the processes and procedures available to him as a means of fleecing monies out of the council;

• By way of reasonable inference, that his position on the Finance Committee allowed him to disguise or conceal irregularities at the council;

• He knew at all material times that his conduct and actions were in furtherance of a criminal purpose.

[81] In the case of Dwayne Sibblies the Crown invites the court to find:

• By virtue of his conduct he was not an unwitting participant in this scheme;

• He acted as an intermediary between the purported contractors and Sanja Elliott;

• He engaged in and facilitated the unauthorised encashment of third party cheques in the scheme.

[82] In the case of Radcliff McLean, the Crown invites the court to find that:

• He was an active participant in this scheme;

• He facilitated the processing of cheques presented to him by persons other than the named payee and which bore fraudulent endorsements;

• His conduct was not merely negligible but calculated to facilitate the payments of the proceeds on the cheques presented to him by persons other than the named payee contrary to the bank's protocols;

• His failure to verify that cheques had been properly authenticated is conduct which strikes at his culpability.

[83] In assessing the credibility of these witnesses as to fact, the Crown invites the Court in its deliberation to give credence to the commonality in the evidence and ask itself the following questions:

• What need would these witnesses, who are all Mr Elliott's friends or close associates, have to lie?

• Isn't it more plausible from the evidence that they being his friends were trying to protect his interest when they were approached by the police?

The Crown also invites the Court to consider the direct evidence of these witnesses cumulatively with the other evidence presented by the Crown.

[84] Testimony of MM (name withheld to protect witness), June 14, 2019 evidence in chief

MM testified that:

• She operates an online clothing store called (name withheld to protect witness).

• She knows Sanja Elliott otherwise called “Alex” since 2014 when they exchanged numbers and became friends.

• Mr Elliott contacted her via telephone on December 18, 2015 and asked her to cash a cheque for him on that day. “Mr Elliott asked me for my TRN, this was before I cashed the cheque… and that he would need my TRN to put on the cheque”. She sent him a picture of her TRN via WhatsApp.

• Dwayne Sibblies brought the cheque to her on December 18, 2015, and they drove to the Bank of Nova Scotia. She observed that the cheque was a Manchester Parish Council cheque prepared in her name for the sum of $300,000. She encashed the cheque and handed the cash to Mr Sibblies as per Mr Elliott's instructions. She did not work for this cheque.

• She recalls that whilst she was inside the bank standing at the back of the line in the company of Dwayne Sibblies, Radcliff McLean who she did not know before called her from the line and processed her transaction.

• Sanja Elliott contacted her via telephone and thanked her, and they met up that day in the evening.

• She was shown a number of exhibits in the form of cheques, invoices, and payment vouchers prepared in her name, and indicated that she was never employed to the council, neither did she perform the works stated in the invoices and payment vouchers. She was never a contractor to the council and she did not sign the signature on the exhibits shown to her. She did not submit the contractor invoices shown, neither did she cause anyone to submit same on her behalf. Further, she does not own a water truck nor have access to a water truck, and did not cause anyone to perform this service on her behalf.

[85] The several transactions generated in MM's name are depicted in the attached table.

ANALYSIS OF MM's EVIDENCE

[86] The evidence of MM, buttressed by table 1 captures the culpability of all participants in this scheme. However, at this juncture the analogy will be limited to the single transaction where MM appeared in person before Mr McLean.

[87] An examination of the exhibits listed in table 1 reveals that Sanja Elliott, David Harris, and Kendal Roberts certified payment vouchers, MPC invoices, cheques, and contractor invoices respectively, prepared in the name MM and bearing her TRN and a forged signature. It is their certification of these payment documents that induced the council to make cheques payable to the order of MM and which allowed funds to be paid out from the council's bank account.

[88] Mr Roberts as the works overseer was required to meet and negotiate with the contractors, and where work is awarded, to verify its completion by certifying the contractor and MPC invoices. Given that the witnesses with whom Mr Roberts purportedly entered into contractual relations on behalf of the council have categorically stated that they were not engaged to provide any work, and did not perform or caused it to be performed, who did he meet with? What work did he verify? The unchallenged evidence of MM is that she was never employed by the council.

[89] Mr Roberts' involvement in this criminal enterprise is more apparent on an examination of exhibits 12, 7, 5 (a) and (b). These exhibits show where MM purportedly delivered water to three divisions and the contractor and MPC invoices are certified by Messrs Roberts and Elliott. The Court heard the evidence of Donican Sutherland, Superintendent of Minor Water, who made clear that he is not aware of females being engaged to perform delivery of water services. Further, where water is delivered it is he who signs the water invoices. Once again, Mr Roberts has been found wanting. How does he account for signing off on water invoices? He has not addressed this. Moreover, to be signing off on invoices in the names of females and in all cases these are forged and no service performed.

[90] In the case of Mr Elliott, he shared a close relationship with MM. If the court accepts her evidence that she was neither employed to nor performed any work or service for the council, undeniably Mr Eliiott, by his conduct, was then engaged in unlawful conduct. He was the one who “asked” her to do a favour to encash an MPC cheque and recruited her TRN, well knowing she had not been contracted by the council. The inferences are there that can be reasonably drawn by the Court as to his knowledge and involvement.

[91] Mr Sibblies being the intermediary presented the cheque to MM and accompanied her to the bank where Mr McLean processed the cheque. After encashing the cheque she gave the proceeds of $300,000 to Mr Sibblies as directed by Mr Elliott.

[92] The Crown submits that it was an orchestrated plan, designed by Messrs Elliott and Harris, who were fully aware that based on their positions at the council they had the autonomy to approve sums below $500,000 without going to the council, and as such, the figures at all times were within that limit, so as not to raise an alarm. The inescapable inference from the circumstances outlined is that the defendants engaged in dishonest and unlawful acts, evidenced by their conduct as described above, which have resulted in financial loss to the council.

WITNESS OF TRUTH

[93] It is entirely reasonable to ask: Why did she participate by encashing the cheque? In accounting for her participation, MM has been frank with the Court in indicating that “at the time I didn't think anything of it because we were pretty close so he called and asked me for a favour. I did ask but nothing came out of the conversation, because at the time I was curious about the TRN”.

[94] The Crown submits that MM should be accepted as a witness of truth. Her evidence was unchallenged in material respects by the defence. The Court had the opportunity to observe her demeanour and conduct, and she was in no way shaken under cross examination. We submit her to the Court as a witness of truth as her credibility remained intact.

TOMORROW: The Crown presents and analyses the testimonies of other witnesses


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