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The Court of Appeal in The Supervisory Authority v Cresswell Overseas S. A et al, considered whether the trial judge had jurisdiction to order the registration of a foreign criminal restraint order from a non-Commonwealth country and the procedure for the registration of such orders; namely a Brazilian foreign restraint order (“the Moro Order”). The Court examined the High Court’s jurisdiction under four heads: (1) the Mutual Assistance in Criminal Matters Act 1993 (the “MACMA”); (2) the Money Laundering (Prevention) Act 1996 (the “MLPA”); (3) International treaties; and, (4) the principle in Black Swan Investment I.S.A v Harvest View Limited et al (the “Black Swan Principle”).
The Court held that the registration of foreign criminal restraint orders originating from Commonwealth countries are governed by section 27 of the MACMA and on its own, section 27 of the MACMA does not extend to the registration of orders from non-Commonwealth countries. However, section 30 of the MACMA makes provisions for the registration of foreign orders from non-Commonwealth countries, specifically that regulations must exist in accordance with the requirements contained within section 30 of the MACMA, or some other legislation having the effect of section 30 regulations. In the present case, no such regulations or legislation existed.
The Court noted that sections 19 and 19A of the MLPA is limited to the court’s power to grant an injunction against the property of a person who has been charged or convicted of a money laundering offence, and does not extend jurisdiction to the court to make a registration order. Further, section 23 of the MLPA provides a general power to facilitate the provision of legal assistance and therefore, registration of foreign orders such as the Moro Order must be done in accordance with the laws of Antigua and Barbuda pursuant to part 72 of the CPR and section 27 and 30 of the MACMA.
The Court also examined whether the High Court had jurisdiction to register a restraint order under international treaties; and found that the four international treaties relied upon were not ratified in accordance with section 3(3) of the Ratification of Treaties Act (the RTA), and therefore could not have given the court any powers to register the Moro Order. In any event, the Court found that the treaties deferred to domestic laws of the signatory states on the procedure to be taken in processing of legal mutual assistance requests, therefore the registration of foreign orders were to be done in accordance with the provisions of the MACMA.
The Court stated that the Black Swan principle was of a civil proceedings nature and reliance should not be placed on the same in criminal or quasi criminal proceedings. Further, the court was of the view that the common law principles which seek to invoke the court’s inherent jurisdiction are not intended to circumvent or derogate from statutory provisions which govern the registration of orders; thus, strict compliance of sections 27 and 30 of the MACMA was intended by parliament.
It is therefore settled that the powers of the High Court in Antigua and Barbuda, in registering criminal restraint orders, are regulated by sections 27 and 30 of MACMA.
ANUHCVAP2017/0003 Michel, J.A. Delivered: 10/04/2019