DPP asks for update on Que Pasa’s appeal to Privy Council

Antonio ‘Que Pasa’ Gellizeau is again before the court as the crown keeps on top of the status of an appeal on his money laundering conviction before the Privy Council so that they can determine whether to move ahead with confiscation proceedings of his assets. 

However, with a new lawyer freshly taken on board on Gellizeau’s side there was no answer to these questions on Friday, April 29 at the High Court. 

Director of the Public Prosecutions (DPP), Sejilla McDowall was present for the Crown, alongside Assistant DPP, Tammika McKenzie and Jai-Len Williams of the Financial Intelligence Unit(FIU).

McDowall informed Justice Brian Cottle that, “The crown would have requested that this matter be case managed because we have not had an update regarding the status of the appeal at the level of the Privy Council.”

She said they made inquiries over the years and would be grateful if an indication could be made whether there was a live appeal “so that the Crown can be in a position to put its house in order as to whether we are proceeding to confiscation.”

Gellizeau was convicted in the Serious Offences Court (SOC) for concealing the proceeds of criminal conduct to the tune of US $1,733,463 on the yacht, Jotobin. He was also convicted for transferring and bringing into St Vincent and the Grenadines his proceeds of criminal conduct on board the Jotobin. 

Following his conviction in March, 2012 the High Court sentenced Gellizeau in July of that year to 10 years in prison with hard labour. During this time Gellizeau lodged an appeal in the Court of Appeal but this was dismissed. 

Shortly after his conviction and sentence in 2012 the Crown issued the notice of intent to pursue confiscation of the assets of what they submit are the proceeds of crime. This would include all of his property obtained six years prior to the date of the offence. 

Last Friday, Gellizeau’s newly retained lawyer, Matthew Ferrari revealed to the Judge that, “A couple points to make on this matter my lord, the first is that I have recently been instructed in this matter so I have not had time to acquaint myself with the matter before the court.”

He said that the second point is that he was unable to collect the file from previous counsel. 

“Thirdly, a motion has been filed in this matter with the attorney general, a constitutional motion, challenging the confiscation order at hand,” Ferrari submitted and said that he would wish this matter to be stayed until that motion was heard. 

The DPP commented that it is the first time she is seeing counsel in the matter, and she does know what the challenges are in communicating with the Office of the DPP. 

Further, she noted “Just indicating for the benefit of counsel – there is in fact no confiscation order made.”

“I’m not sure about the basis about the constitutionality of what it’s exactly being challenged but I look forward to yet another legal challenge if that is where counsel will take this matter,” McDowall said. She added, “If you’re challenging the non-existence of a thing – then we might be back here sooner rather than later because there is no confiscation order.”

“There has been a previous constitutional challenge regarding constitutionality of the very statute and of course, I’m not sure how much of that counsel is also privy to so I could only urge further conversation in this matter,” she said. 

The DPP asked that the case remain on the list for case management as she has not heard the answer to the Privy Council matter. 

“I would definitely be better helped if I know whether or not at some stage in 2022 there is going to be an indication as to whether or not there will be a substantive matter before the Privy Council,” she said. 

McDowall disclosed that she is tiring the registry of the court “by asking them time and time again what is the update. The last indication that they said – please speak to the other side. So that is an indication that they feel bothered about the inquiries over the years and I would be grateful that counsel understands the predicament that we put the Crown in sometimes by failing to reach out…”

She added that she would not hold that against counsel as he is freshly retained, and suggested that the case return in two months. 

Addressing Ferrari, the judge said that while he understands counsel is not in possession of the physical file, “I must ask you if you have instructions concerning the status or otherwise of an appeal on this matter before Her Majesty’s Privy Council.”

Ferrari replied that he attempted to reach out to counsel but “due to a disagreement between my client and former counsel, former counsel was unwilling to assist in this matter. So I am in the same position as the honourable DPP.”

“So in short you don’t know yet,” Cottle queried. 

“I don’t know yet. As I say I was very freshly instructed and I was instructed very narrowly on a constitutional motion that we have before the attorney general that was filed this week,” the lawyer said. 

The Judge said that “… there is a live matter before this court that needs to be progressed and in fairness to you I think that I should give you some time to get up to speed.”

“ It’s a lot of reading so I will give you some time to come back…” Cottle said, “I am hopeful that you would be able to provide a little bit more assistance to the court.”

Ferrari said that he is hopeful of that. 

A date of July 14 was set for case management. 

The Judge said that this would give sufficient time, commenting, “let’s have some progress.”

Gellizeau’s legal troubles emanated from April 5, 2008 when the police and the FIU nabbed him; Bermudan, Winston Robinson; and Trinidadian, Kent Andrews.

The police were on surveillance off Bequia when they observed two yachts, the Jotobin and the Orion docked alongside each other. Gellizeau captained the Orion and Robinson captained the Jotobin while Andrews was a deckhand on the Jotobin. The US$1,733,463 was discovered concealed under hardened foam in water tanks on the Jotobin. 

The FIU provided evidence to show that the Jotobin was sold to Gellizeau although Gellizeau denied ownership. 

Gellizeau was found guilty by then Chief Magistrate, Sonya Young on March 9, 2012. Robinson was found guilty of money laundering offences, but Andrews was acquitted. 

Several assets of Gellizeau’s were frozen by order of the court in June 2008. These include bank accounts, Flexible Premium Annuities with CLICO, vehicles which were registered to him, his family members and associates.

In order to seek confiscation of assets, a prosecutor’s statement is prepared and filed in which the Crown would outline the assets of the defendant and attach a monetary value to them dating six years back from the date of the offence. They will show how they are linked to the crime and, or that there are no legitimate sources used to obtain them. 

The defendant can then respond by contesting or acquiescing. 

The court will then make a decision. If the money over the period is more than the value of the currently available assets, then the court can give time to pay or there may be a prison sentence but a prison sentence does not stop the order from having effect.