More than $19 million collected

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More than $19 million collected

Saturday, May 30, 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.

[95] Testimony of NH (name withheld to protect witness), June 19, 2019 — evidence in chief

NH states that:

• She is a nail technician and knows Sanja Elliott for over 5 years, and considers him a friend. She would speak to him on telephone number 365-2630 about twice per week.

• She met Mr Elliott sometime between 2013-2014 at the gym. One evening he was taking her home from the gym when he asked her “What is your TRN number. I knew my TRN from memory and I gave him the number” (number withheld to protect witness).

• She asked him why he needed it and he said he was going to use it because he had a job for her. He asked for her full name which she gave to him and he wrote it in a little book.

• He told her the work was contractor work beautification but he did not actually give her any work. One day he called and told her that the cheque was ready and she should pick it up and encash it.

• On her way to work at Ward Avenue she picked the cheque up. She thinks she changed it at the Bank of Nova Scotia, Ward Avenue branch. It was a Manchester Parish Council (MPC) cheque drawn in her name but she cannot remember in what amount. She changed the cheque and contacted Mr Elliott and told him. She does not remember much about the first cheque.

• She encashed about 41 cheques totalling about $15 million. “Once there is a cheque in my name Sanja would call and let me know that the cheque is ready. Every time the cheque is available I would get the call from Sanja.”

She would get the cheques from Mr Elliott but recalls that at least one occasion she collected it at the council from a “brown big head man who was about 5 feet 6 inches”. She did not sign for it or the other cheques. She encashed the cheques and informed Mr Elliott.

• The lowest cheque was $10,000 and the highest was over $490,000. Sometimes she received the cheques a day apart.

• She did not perform any contractor work, beautification or any type of work for the council nor caused it to be performed. She has never been employed to the council.

• She is unable to say how many times she gave money to Dwayne Sibblies and Sanja Elliott and another guy whose name she doesn't know, but Mr Elliott had instructed her to give him the money.

• She did not employ anyone to do work for the council nor disburse funds to any person claimed to be employed by her. She did not submit any invoices or other documents to MPC for work done. She has never performed delivery of water on behalf of the council or caused it to be done. She did not prepare nor sign the contractor invoices bearing her name and TRN, neither did she perform the work stated therein or caused anyone to perform same.

[96] Table 2 captures the fraudulent transactions carried out in NH's name.

ANALYSIS OF NH's EVIDENCE

[97] Similar to MM, Sanja Elliott, David Harris and Kendale Roberts certified payments vouchers, MPC invoices, cheques and contractor invoices, respectively, prepared in the name NH. It was Mr Elliott who recruited her to participate in his scheme.

[98] Significantly, over $4 million was paid out in the name NH for work which she was never engaged to perform, neither did she perform or cause anyone to perform same. An examination of these exhibits support NH's evidence that she received the cheques days apart and would sometimes encash two cheques on the same day. This corroborates her viva voce evidence.

[99] We invite the Court in its deliberation to look closely at exhibits 13, 14, 68, 71 and 72 which outline delivery of water services for which NH has said she did not perform or caused to be performed, and she doesn't own a water truck. Like in the case of MM this is instructive of the scheme employed by Messrs Elliott, Harris and Roberts.

[100] NH's evidence supports the role of Dwayne Sibblies as an intermediary, as she testified that Mr Elliott instructed her to hand over the proceeds from the cheques to Mr Sibblies. Once again, Mr Sibblies is the recipient of the criminal proceeds. NH's evidence is consistent with the evidence of MM, as she too was recruited by Mr Elliott and used as a conduit to fleece money from the purse of the council by means of fraudulent documentations purporting she had been contracted to perform legitimate work for the council.

Cross-Examination and Issues of Inconsistencies, Discrepancies and Omissions — NH

[101] Absence of Inconsistencies

• Consistent with reference made to her statement to the police, NH, in her viva voce evidence, maintained that she received a call from Mr Elliott telling her that the cheque was ready and she must attend upon the council to collect same. Further, Mr Elliott had caused her to collect cheques for work not done and also to encash them.

• Consistent with reference made to her statement in cross-examination, NH maintained that Mr Elliott had asked her for her TRN and full name while they were in the car.

• Consistent with reference made to her statement to the police in cross-examination, NH maintained that Mr Elliott gave her cheques to encash for work she had not performed and that she gave the money to him.

• Consistent with reference to her statement to the police, NH in cross-examination maintained that she gave the cash both to Messrs Elliott and Sibblies.

[102] The Crown submits that if the witness had provided answers which conflicted with or contradicted that which was said in her statement to the police, learned counsel would have applied for this portion of the statement to go into evidence or otherwise use same to impeach the witness' credibility.

[103] Inconsistencies and Omissions

• NH testified in court that she did not do any work for the council, which was contrary to what she told the police in her statement.

• NH testified that she did not employ any workmen but under cross-examination admitted that she had said in her statement to the police that she employed four to five persons.

• Under cross-examination NH was confronted with not mentioning in her statement to the police that she encashed 40 to 41 cheques. In response to this question, she indicated: “Because they didn't ask”.

[104] NH's Explanation

In explaining omissions and inconsistencies between her witness statement and viva voce evidence, NH sought to reconcile these variances in re-examination in the below stated exchanges:

Question: When you were asked about signing your statement as being true, what was your reason?

Answer: Before the investigation started, before I was brought before the police to answer, Sanja approached me and he said that if anybody asked a question I should say I did beautification work and I was employed as a contractor.

Question: Did you follow those instructions from Sanja?

Answer: I did

Question: Is there any reason you did?

Answer: He is my friend.

Question: How long before you gave the statement Sanja came to you?

Answer: About a month before I gave the statement.

Question: In examination in chief, you said you did no work but in your statement you said you did work, which is true?

Answer: What I said today is true.

Question: Reason for you telling the police that you got men to do the work as in your statement?

Answer: Because I am still going along with what Sanja told me to say, that I was employed as a contractor to do beautification work.

[105] The Crown submits that these omissions and inconsistencies do not rise to the degree of materiality set out by the authorities so as to destroy or severely impugn the credibility of the witness. The witness has provided explanations for the consideration of the Court, and it is entirely a matter for the tribunal of fact.

[106] The Court had the opportunity to observe NH's demeanour when she gave evidence. The Crown submits that she spoke in a cogent and frank manner and was cross-examined at length without being shaken by learned defence counsel. In assessing her credibility, it is our submission that Your Honour should assess her credibility partly based on the commonality between her evidence and other direct evidence. In this regard, the Crown submits that credence should be given to the commonality with other direct evidence which supports or corroborates material aspects of NH's testimony. In the main, as it relates to the following:

• The recruitment process employed by Mr Elliott in securing “purported contractors' ” names and TRNs;

• Requesting that they encash cheques and hand over the proceeds to him or another on his instructions;

• Meeting them on the road and providing them with cheques for services they did not perform or cause to be performed and thus was not owed the monies thereon.

[107] The Crown further submits that, based on the role she played in encashing the cheques in the circumstances described, the Court might deem it necessary to warn itself on accomplice evidence. Despite this observation, we nonetheless commend NH as a witness with no interest to serve. It is submitted that reasonable inferences can be drawn from the circumstances of her conduct that she was loyal to Mr Elliott and sought to protect him when she was contacted by the police.

[108] The Crown submits that the degree of inconsistency and omission are not a material defect that strikes at the root of the Crown's case but rather, these variances arose out of NH's desire to protect her friend Mr Elliott. This was captured in her explanation that Mr Elliott told her she should say that she did beautification work and was a contractor if the police asked. This, when taken within the context of the friendship she shared with Mr Elliott, the extent of the variance is not such as to render her evidence unreliable that a reasonable tribunal could not convict on it.

Testimony TM (name withheld to protect witness) June 24-25, 2019 — evidence in chief

[109] TM states that:

• He is self-employed as a welder and has known Sanja Elliott who he refers to as “Ellie” for between six and seven years. He communicated with him about three times per week over a four-year period.

• He performed legitimate welding work for the council which he submitted invoices for and would collect the cheques for this work at the council, where he signed for them.

• He did not perform any other work for the council outside of welding work and he was never contracted to do beautification work or to paint bus sheds.

• In June 2016, he did not perform any work for which he was owed any money; between 2013 and 2016 he encashed MPC cheques at the request of Sanja Elliott “Ellie”, having collected them from Mr Elliott anywhere on the road. He encashed these cheques and gave the money to Mr Elliott, however he did not work for these cheques.

• He did not submit or sign the contractor invoices shown to him in court, neither did he perform the works stated therein, cause them to be performed or direct anyone to submit them on his behalf.

• He was not owed any money by the council, neither did he instruct anyone to collect or encash any cheque on his behalf between 2013 and 2016.

[110] Table 3 depicts some of the fraudulent transactions generated in TM's name.

ANALYSIS OF TM's EVIDENCE

[111] Table 3 shows that, consistent with the scheme to defraud described by other fact witnesses, Mr Elliott recruited TM. Acting in concert with Kendale Roberts and David Harris, they authorised the payments in the name TM by certifying MPC invoices and payment vouchers prepared from fraudulent contractor invoices in TM's name, unbeknownst to him. These documents signified to the council that TM was owed monies, and Mr Elliott, by certifying them, induced and authorised the council to make payment to TM. Mr Elliott, when he recruited TM to cash cheques and return the proceeds to him, was fully aware that TM was never contracted to the council to perform the works described in the payment voucher and invoices he certified. TM made clear he only performed welding work for the council and this was within Mr Elliott's knowledge because he had done welding work on Mr Elliott's house and they were friends.

[112] TM testified that between 2014 and 2016 Dwayne Sibblies brought Manchester Parish Council cheques to him which he encashed and gave him the proceeds. He did not work for these cheques. This is consistent with the intermediary role played by Mr Sibblies throughout the scheme. Also of great import is the change in the nature of Mr Sibblies' role from a conveyer and receiver of criminal proceeds to engaging in the unauthorised encashment of third party cheques. In this regard, Mr Sibblies, without the authorisation of TM, attended the bank and negotiated a Manchester Parish Council cheque made payable to TM.

TM testified that he was not owed any money by the council, was unaware of the existence of this cheque, and did not authorise anyone to encash any cheque on his behalf. When Mr Sibblies accepted this cheque he set in motion a chain of events whereby he subsequently endorsed the cheque “D Sibblies” and received the proceeds, which resulted in economic loss to the council, given that he was never entitled to this money. The unchallenged evidence of Miss Beverely East is that Mr Sibblies signed the reverse of this cheque (exhibit 169).

[113] The encashment of this cheque in the circumstances revealed by the evidence is indicative of an unlawful act, causing money to be paid out by forgery. Also of significance is the fact that this cheque was processed by TM. The Crown submits that given the bank's policy that it does not negotiate third party cheques, even if it were possible, certainly not by signing “D Sibblies” on a cheque made it payable to TM. We submit that Mr Sibblies knew this was not possible and that is the reason he went to his “friend” TM to carry out his misdeeds.

How did he come into possession of this cheque? The Crown invites the Court to consider the evidence that Mr Sibblies resides with Mr Elliott who had previously given him cheques to deliver to other payees. Having regard to Mr Sibblies' conduct, coupled with the circumstances discussed by the witnesses as to fact above, the Crown also invites the Court to find that Mr Sibblies was not a mere receiver of the criminal proceeds but that he knowingly participated in the criminal enterprise.

[114] The Crown submits that it is consequent on Messrs Elliot, Harris and Roberts' deception and criminal conduct that the council was defrauded the sums captured in Table 3.

TOMORROW: Inconsistencies and omissions in testimony under cross-examination


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