IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

Crim. Misc. Case No: HAM0023 of 2005S

Between:

STATE
Applicant

And:

EPELI DUVE;
MINILOTE VAKAVANUA;
SAKIUSA NACEBE;
MILIO VUETIBAU; and
PENI NABANIVALU
Respondents

Hearing: 10th August 2005
Ruling: 18th August 2005

Counsel: Mr. P. Bulamainaivalu for State
All Respondents in Person

RULING

This is an opposed application by the State, for a forfeiture order of property seized by the police in relation to an offence of the larceny of $102,000 on the 14th of December 2001. The five Respondents were charged, tried and found guilty of the offence on the 28th of April 2005. A restraining order was made in respect of all property alleged by the State to be tainted property on the 15th of January 2004.

A forfeiture order is sought over the following property:

Ba Police Station

1.	1 x 18ft wooden boat valued at FJD$900.00
2.	1 chest freezer
3.	Roofing irons
4.	FJD$120.00 cash
5.	1 Toyota Utility van, registration no. CV559; engine no. 2L3786763; chassis no. LN850142709WTE*2732000
6.	1 Nissan Sunny Station Wagon, registration no. BU194; engine no. E13894784; chassis no. WB11350753
7.	1 Toyota Utility van, registration no. CR987; engine no. 2L3573411; chassis no. LN850133584

Central Police Station

8.	FJD$6870.00 cash

Lautoka Police Station

9.	1 Toyota Utility truck (3 tonne), registration no. BB171, engine no. BO0280036; chassis no. BU30026260
10.	FJD$500.00 cash
11.	Roofing irons
12.	Assorted clothings
13.	6 x 10ft corrugated irons
14.	5 x 8ft corrugated irons
15.	3 mattresses
16.	Assorted cooking utensils
17.	1 double bed with side braces
18.	Radio cassette

A forfeiture order be granted over the sum of FJD$1600.00 deposited by one Josua Tuisova at M.R. Dayal Sawmillers Ltd., Ba Branch purportedly for the purchase of building materials.

A forfeiture order be granted over the sum of FDJ$1167.30 deposited by one Josua Tuisova at R.C. Manubhai & Co. Ltd., Ba Branch purportedly for the purchase of building materials.

Section 3 of the Proceeds of Crime Act 1997 defines proceeds as “any property that is derived or realised, directly or indirectly, by any person from the commission of the offence.”

“Proceeds of crime” means:

“(a) proceeds of a serious offence.”

A “serious offence” is one, which carries a maximum penalty of death or imprisonment for not less than 12 months.

Section 11(1) of the Act provides:

“Where the Director of Public Prosecutions applies to the Court for an order under this section against property in respect of a person’s conviction of an offence and the Court is satisfied that the property is tainted property in respect of the offence, the court may order that the property, or such of the property as is specified by the Court in the order, be forfeited to the State.”

Section 11(2) allows the court to infer that property is tainted –

“where the evidence establishes that the property, and in particular money, was found in the person’s possession or under the person’s control in a building, vehicle, receptacle or place during the course of investigations conducted by the police before or after the arrest and charge of the person for the offence of which the person was convicted – that the property was derived, obtained or realised as a result of the commission by the person of the offence of which the person was convicted.”

Another ground for finding property to be tainted is according to section 11(2)(c): 

“where the evidence establishes that the value, after the commission of the offence, of all ascertainable property of a person convicted of the offence exceeds the value of all ascertainable property of that person prior to the commission of that offence, and the Court is satisfied that the income of that person from sources unrelated to criminal activity of that person cannot reasonably account for the increase in value.”

	Section 11(4) provides that, in making a forfeiture order, the Court may consider the rights or interests of any third parties in the property, the gravity of the offence, any hardship resulting from the order and the use to which the property is usually put. Where a forfeiture order is made, the property vests absolutely in the State.

	The effect of section 11 of the Act, which allows the court to draw inferences, is that once tainted property is found in the possession of an offender, such property is a proceed of crime unless the offender proves to the contrary on a balance of probabilities.

The evidence in this case is that the accused persons were charged with the larceny of $102,000. The cash was contained in a money bag which fell off an Armourguard vehicle travelling from the Colonial Bank to Lami and Cost-U-Less. The bag fell off the vehicle at Harris Road, Suva and was found by the Respondents. The Respondents are from Koronubu, Ba. Thereafter, stories of lavish living by the Respondents spread throughout the Koronubu settlement. The police investigated and interviewed them under caution. Under caution each of the Respondents admitted sharing the stolen money and spending it on a number of items. The police then searched their homes, and other homes. From the 1st Respondent, they seized a wooden boat valued at $900, a chest freezer obtained on hire purchase from Courts and $6870 cash. From the 2nd Respondent, they seized a Toyota van registration number CV559 and a Nissan Station Wagon BU194. From the 3rd Respondent, they seized roofing iron and $120 cash which was recovered from one Waisake Soqo. From the 4th Respondent, they recovered a Toyota Utility van CR987. From the 5th Respondent, they recovered a Toyota Utility truck BB171, $500 cash, roofing iron and assorted personal items such as a radio cassette player and a double bed. They did not dispute their confessions in the lower court, and they were tried and convicted. They are serving sentences of 2 years imprisonment.

The hearing of this application proceeded on the 5th of August. The State called Corporal Abdul Khan of the Trans-National Crime Unit to give evidence. He said that all the items in this application were seized as a result of information given by the Respondents themselves. He tendered search warrants, and search lists in relation to each item seized. He also tendered an R.C. Manubhai cash sales docket and receipts from M.R. Dayal to show how they had traced the property concerned.

The State also called ASP Keni Tausasa, who tendered his own affidavits, which set out the circumstances of the case, the background to the seizure of the properties and the caution interviews of each Respondent.

Having heard this evidence, it transpired that the Respondents had objections to the forfeiture order in relation only to the wooden punt, the chest freezer, the Nissan Station Wagon BU194, and the Toyota truck CR987. The objections were therefore only made by the 1st, 2nd and 4th Respondents. The 3rd and 5th Respondents wanted their personal items back and the State had no objection since they are not subject of this application. The Respondents do not dispute that the property seized was in their possession or control, only that such property was in fact tainted.

The three remaining Respondents gave sworn evidence. The 1st Respondent claimed that he bought the punt and the freezer from his earnings as a cane farmer. He said his annual income was about $9,000. Later he said his income fluctuated from $7,000 to $8,000. He tendered a Grower’s Statement of Account, which showed that his earnings per harvest was $536.00 in February 2005 and $27 in December 2004. He said he also earned money by fishing. In relation to the punt he said that it was actually bought by his brother, who was also a fisherman.

In his caution interview he said that he had used the stolen money to buy both items. Under cross-examination it was suggested to him that his earning could not justify the purchase of either item and that his interview was the truth. He denied this saying that the police had tricked him into making a confession. However he agreed that he had told them the truth.

The 2nd Respondent objects to the forfeiture of the Station Wagon BU194. He said in his sworn evidence that the car had been bought by his brother, who had used his wages to buy it for $2000. He said his brother earned $80 a week at a logging company. He agreed that he had told the police that he had bought the van with stolen money, but said that the police had threatened him to make him say that.

The 4th Respondent disputes forfeiture of the Toyota truck CR987. He said that he bought the van using his FNPF funds of $12,000. He said he was unable to show any documentary proof of such a withdrawal, and said that he had told the police about it but they had failed to record it.

Under cross-examination he agreed that his police interview was tendered in the lower court, and that in it he had confessed to receiving $16,040 as his share of the stolen money. However, he denied the truth of that statement. He said he was formerly employed by C.J. Enterprises, and that he used to sell bêche-de-mer. He earned $160 a week. He agreed that his bank account did not reflect an income of $4000, but said that his wife also earned $9700 every year from selling mangoes.

He called one Govind Sami, who gave evidence that he sold CR987 to the 4th Respondent and that he received $12,000 from him as the purchase price.

Section 11(2) of the Act allows the Court to draw inferences from the Respondents’ possession of tainted property. Having heard the evidence, I have no difficulty in finding that the property, which the State seeks to forfeit is tainted property. The 3rd and 5th Respondents have no objection to forfeiture. The remaining Respondents object to the forfeiture of only some of the property. In relation to the 1st Respondent I consider his sworn evidence about the way he acquired the punt and the freezer to be unimpressive and contradictory to his interview to the police. His account contradicts his initial objection to the forfeiture order on the 3rd of June, when he said he bought the freezer with his own money. I consider that the punt and the freezer were bought with proceeds of crime and I order their forfeiture together with the other items listed in the motion which were seized from him.

Similarly, I do not accept the evidence of the 2nd Respondent in relation to BU194. His sworn evidence is entirely inconsistent with his caution interview with the police. He did not dispute the latter during his trial. Nor can I accept that the 2nd Respondent’s brother could afford to pay cash for the vehicle on an income of $80 a week. I am satisfied that the income of the Respondent’s brother could not reasonably account for the purchase of the van. I order its forfeiture.

The 4th Respondent said he bought CR987 with his own money from the FNPF and from his wife’s earnings from selling mangoes. His story was, quite frankly, incredible. His demeanour was unsatisfactory and his explanation for the possession of $12,000 quite impossible to believe. I have no hesitation in finding that CR987 was bought with tainted money. It is to be forfeited.

Result

I grant a forfeiture order in terms of the Notice of Motion of the State dated the 3rd of May 2005, in accordance with section 11 of the Proceeds of Crime Act. The State may dispose of the property on the expiry of the appeal period.

Nazhat Shameem
JUDGE

At Suva
18th August 2005