The Tribune

By YOURI KEMP

Tribune Business Reporter

ykemp@tribunemedia.net

Reforms to the penal code will place the “onus of proof” on foreign residents of The Bahamas to demonstrate they have not defrauded overseas governments, Cabinet ministers said yesterday.

The changes, debated in the House of Assembly, essentially impose the same penal regime on expatriates as exists for Bahamians who seek to cheat the Government of its due tax revenues.

They are also intended to further strengthen The Bahamas’ anti-money laundering and tax evasion regime amid the constant pressures from the likes of the Financial Action Task Force (FATF), European Union (EU) and Organisation for Economic Co-Operation and Development (OECD).

Elsworth Johnson, minister for financial services, trade and industry and Immigration, told the House of Assembly that the Penal Code amendments capture “money laundering, tax avoidance, tax evasion, trafficking in persons, the funding of proliferation of weapons of mass destruction, or terrorism financing and cybercrime”.

With such acts resulting in a summary conviction incurring fines of up to $500,000, and imprisonment of five years, Mr Johnson said there are also forfeiture clauses for persons found guilty of using the proceeds of tax avoidance and money laundering.

“Among the penalties for the offence is the power for the instrumentalities or proceeds of such an offense to be forfeited, and paid to the confiscated funds. These monies which are forfeited will not be paid or shared with any government to settle any tax liabilities in our country,” he added.

Desmond Bannister, minister of works, said the changes place the “onus of proof” upon the accused person.

Mr Bannister said: “The amendment has what we call a shift of the onus of proof, and I don’t want anyone to confuse that with the burden of proof in The Bahamas; the burden of proof is always on the prosecution.

“But the onus of proof, what lawyers refer to as an evidential burden, is in this Act. Evidential burden is very simple. If you’re driving on the street, and the police arrest you and ou can’t produce your licence, they won’t arrest you, but they’ll charge you with driving without a valid driver’s licence. When you go to court, all they have to do is prove that you drove on the road.”

Mr Bannister added: “This Act leaves an onus on the defendant; an evidential burden where the foreign country raises sufficient evidence that a fact exists, and the fact would be the allegation that the defendant owed money to that government and did not pay it.

“That is going to be presumed to be true unless the defendant provides evidence to the contrary. Additionally, an allegation by a foreign government that information in relation to their general revenue, which the foreign government law requires the defendant to provide, and is not provided, is also going to have to be rebutted by evidence by the defendant.”

Mr Bannister said, in support of the forfeiture clauses: “We are sending messages today that if you sit in The Bahamas, and you submit that false statement to a public official in a foreign government, on summary conviction you could serve six months in prison and will pay a final $100,000. And if you’re convicted on indictment you can serve five years in prison or pay a fine of $500,000.

“The law provides forfeiture orders. If real property is used in the commission or in connection with an offence, that property can be forfeited. Also, if property is received or possessed as a result of the product of an event, that property can be forfeited, whether or not any one has been convicted.”

Mr Bannister said the courts “shall” confiscate the property and have it remitted to the Government of the Bahamas. “It is mandatory forfeiture whether or not someone is convicted,” he added.