IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

Criminal Miscellaneous Case No.: HAM 028 of 2008

BETWEEN:

BALLU KHAN
Applicant

AND:

THE STATE
Respondent

Counsel: Mr. G. Leung & Mr. S. Leweniqila for the Applicant
Ms. A. Prasad for the State

Date of Hearing: Tuesday 1st April, 2008
Date of Ruling: Friday 11th April, 2008

RULING

[1]	The applicant is charged with three counts of conspiracy to murder. The hearing of the trial is pending. This is an application for the release of properties seized by the police following his arrest on 3rd November 2007 at the Delainavesi Police check point.	

[2]	The applicant seeks release order for the following vehicles and electronic items:

•	Toyota Prado registered as EZ233,
•	Toyota Hilux registered as FD382,
•	Nissan Pathfinder registered as FE301,
•	DVD Player, Digital Camera, Video Camera, and Two Ipods.

[3]	The grounds for the release order are set out in the applicant’s affidavit as follows: 

On Saturday 3rd November 2007, whilst returning from Nadi to Suva in my vehicle Nissan Pathfinder FE301, I was arrested and assaulted by persons I believe to be military and police at the Delainavesi Police Post road block. This vehicle has been in police custody since that time.

On the same date, my other vehicles EZ233 (Toyota Prado), FD382 (Toyota Hilux) were taken by the Police after the drivers of the said vehicles were assaulted by the military/police at the Delainavesi Police Post and kept in Police custody and control at the Central Police Station in Suva. All these vehicles have remained in police custody and control since November 3, 2007 garaged at the police station.

Annexed hereto and marked "BK1" is the Land Transport Authority search results for the vehicles. I confirm that I own EZ233 and that FE301 and FD382 are held under finance leasing arrangements with the Merchant Finance Bank.

On that same date referred to in paragraph 2 and on November 4 on which date the military and police raided my house at 16 Kavika Place, a DVD player, digital camera and ipods were taken from my home at Kavika Place Muanikau. These items belong to my partner Agnes Bulatiko. Agnes who lives with me, is not a person of interest to the police.

On 20 December 2007, I instructed my solicitors to request the Police to regularly start and run for several minutes the engines of the vehicles so as to avoid damage to the engines which will require expensive maintenance. Annexed hereto and marked "BK2" is a copy of the letter my solicitors wrote to the Director of CID.

Between the 3rd of November 2007 to the 8th of January 2008 I was admitted firstly at the Colonial War Memorial Hospital and later at the Suva Private Hospital due to the injuries I suffered at the hands of the military/police at the time of my arrest.

On the 8th of January this year, I was discharged from the Suva Private Hospital at around 3pm. At about 9pm the same day I was taken to the Magistrates Court in Suva under police custody and charged with Conspiracy to Murder. I pleaded not guilty to the charges and was released on bail. I have been on bail since.

On the 15th of January 2008 upon my instructions my solicitors made an application to Magistrate Katonivualiku seeking the release of my cars and other items referred to in paragraphs 1, 2 and 4 of my affidavit. The application was granted by the Magistrate.

In consequence of the Magistrate’s order, on 16 January 2008 my Solicitors wrote to the Director of CID requesting the release of the cars and the other items pursuant to the Magistrate’s order. Annexed hereto and marked "BK3" is a copy of the said letter.

On the 17th January 2008, the Director of Public Prosecutions Office filed and served documents in the High Court seeking a stay of the Magistrate’s orders as aforesaid. Annexed hereto and marked "BK4" and "BK5" is a copy of the Notice of Motion and Affidavit of Tevita Lesu in support respectively.

The DPP’s application for stay was heard by the High Court on 1st February 2008. Judgment was delivered on the 29th February 2008. Annexed hereto and marked "BK6" is a copy of the judgment quashing the Magistrate’s order for the release of the property.

The Police, through the affidavit of Tevita Lesu are detaining the vehicles because they claim their release "may" be a threat to national security.

The claim is baseless and without foundation. No particulars of how my cars constitute a threat to national security have been particularized. The police have now had custody of my cars for more than 4 months now depriving me completely of the use thereof. I believe such adjudication is unconstitutional and unfair. In any event I deny my cars constitute a threat to national security.

The vehicles impounded by the police are ordinary vehicles similar to other vehicles of the same make and model running on Fiji roads. Their continued detention and lack of use will cause long term damage to the systems’ electronics and battery system necessitating repair a further cost to me.

I dispute the contention that the vehicles in question have any evidentiary relevance or value in my trial. This is the ostensible basis upon which the vehicles have been seized. In any event, it should be noted that my case is controversial and I am a high profile person who is constantly under the watchful gaze of the military/police. I am under a night curfew as part of my bail conditions, preventing me from leaving my house between 6pm and 6am daily (except for medical reasons). I have surrendered my passport to the police and cannot leave Fiji. There are other restrictive conditions to my bail. Against this background, the detention of my property and that of Agnes is oppressive and grossly unjust. I honestly feel that there is an element of spite in their continued detention.

The police have now had exclusive custody and control of my cars for more than 4 months now, depriving me completely the use and enjoyment thereof. I believe their initial and continued detention of my property including the cars, is unfair, unreasonable and unlawful. There is no good or lawful reason for the police to be permitted the continued deprivation of my right to property.

I have just recovered from surgery and find it uncomfortable traveling in my present vehicle.

While I have informed the Merchant Bank Finance of the situation in regard the other two vehicles, I am still financially prejudiced by having to pay for the lease of the vehicles even though I have not had access and use of them for the last several months.

If the police claim that vehicles are to be used as exhibits in the trial of the charges against me, there is no reason why that evidence cannot be produced in documentary form through photographs. In any event I am entitled to a constitutional presumption of innocence.

There has never been any suggestion that the other property referred to in paragraph 4 of this my affidavit have any bearing of relevant whatsoever to the police case against me. In any event, as the property belong to my partner Agnes, the police have no colour of right or control over them as she has not been charged with any offence.

The continued detention of my property is causing me financial injury, inconvenience and hardship.

[4]	The State opposes the application on the ground that the properties are exhibits for a criminal trial.

[5]	On 1st April 2008, this Court conducted an evidentiary hearing at which the State called a witness. Sgt. Jitoko Filipo said that the properties seized by the police are exhibits. He admitted that the seizure of the vehicles were without a warrant. He said that the vehicles were used as the mode of transport to attend meetings and trainings relevant to the conspiracy charges. He said the vehicles have been photographed. The witness offered no evidential relevance of the electronic items subject of this application. 

[6]	The applicant contends that the properties have no evidential relevance to his criminal trial and therefore should be released to him. 

[7]	A criminal charge is brought against a person when there is sufficient evidence to link the person to a crime. The incriminating evidence collected following a criminal investigation by the police is preserved for a potential criminal proceeding. Generally, the evidence is in the form of DNA, or articles such as clothing, weapons, documents, etc. The prosecution uses the evidence to prove the elements of the charged offence or a fact in issue in the trial. 

[8]	The power to seize and preserve evidence is provided by statute and common law. The Criminal Procedure Code expressly provides the right to seize and retain evidence pursuant to a court order. 

[9]	Section 103 of the Criminal Procedure Code provides:

"Where it is proved on oath to a magistrate or justice of the peace that in fact or according to reasonable suspicion anything upon, by or in respect of which an offence has been committed or anything which is necessary to the conduct of an investigation into any offence is in any building, ship, vehicle, box, receptacle or place, the magistrate or justice of the peace may by warrant (called a search warrant) authorize a police officer or other person therein named to search the building, ship, carriage, box, receptacle or place (which shall be named or described in the warrant) of any such thing which there is reasonable cause to suspect to have been stolen or unlawfully obtained be found, to seize it and carry it before the court issuing the warrant or some other court to be dealt with according to law."

[10]	Section 106 of the Criminal Procedure Code provides:

"(1) When any such thing is seized and brought before a court, it may be detained until the conclusion of the case or the investigation, reasonable care being taken for its preservation.

(2) If any appeal is made, or if any person is committed for trial, the court may order it to be further detained for the purpose of the appeal or the trial.

(3) If no appeal is made, or if no person is committed for trial, the court shall direct such thing to be restored to the person from whom it was taken, unless the court sees fit or is authorized or required by law to dispose of it otherwise."

[11]	The common law allows for seizure of evidence without a court order. 

[12]	In Ghani v Jones [1970] 1 QB 693, Lord Denning MR at p.706 said:

"I take it to be settled law, without citing cases that the officers are entitled to take any goods which they reasonably believe to be material evidence in relation to the crime for which he is arrested or for which they enter. If in the course of their search they come upon any other goods which show him to be implicated in some other crime, they may take them provided they act reasonably and detain them no longer than is necessary." 

[13]	The right to retain material evidence necessary for trial does not mean that the State can decide unilaterally that an article is material and its retention is necessary. This is particularly so if the seized evidence is an automobile.

[14]	In Krimstock v Kelly, 306 F.3d 40 (September 18, 2002) (Krimstock 1), the United States Court of Appeals, Second Circuit, gave a landmark judgment on the seizure of motor vehicles by the City of New York under a statute allowing the City to forfeit motor vehicles found to be an instrumentality of crime. The court said:

"A car or truck is often central to a person’s livelihood on daily activities. An individual must be permitted to challenge the City’s continued possession of his or her vehicle during the pending of trial proceedings where such possession may ultimately prove improper and where less drastic measures then deprivation ….are available and appropriate".

[15]	In another case which is also called Krimstock v Kelly, 464 F.3d 246 (September 15, 2006), the United States Court of Appeals, Second Circuit, said:

Courts have, however, subjected a prosecutor’s assertion that evidence is necessary for a criminal investigation to scrutiny for reasonableness. For example, prior to the enactment of Federal Rule of Criminal Procedure 41(e) (now 41(g), federal courts invoked their "general supervisory powers" to order the return of property seized under a valid search warrant if the United States Attorney could not establish the continuing need to hold it. In re Search Warrant for "Premises Known as Encore House", 100 F.R.D. 700 (S.D.N.Y. 1983); United States v Premises Known as 608 Taylor Ave., 584 F.2d 1297 (3d Cir. 1978); see also In re Smith, 888 F.2d 167 (D.C. Cir. 1989) (holding that, even though the prosecutor alleged that evidence was needed for a criminal proceeding, the district court had to evaluate this alleged need and to balance the government’s interests against the claimant’s interests). The courts in these cases ruled that the government may retain seized property for a reasonable time before instituting criminal proceedings, but that the need for continued retention should be evaluated for reasonableness (weighing the competing interests) in light of less drastic means (such as a claimant’s stipulation not to challenge the validity of a copy of duplicate).

[16]	Later in the judgment the court said:

Courts use the three-factor balancing test articulated in Mathews v Eldridge "in deciding whether the demands of the Due Process Clause are satisfied where the government seeks to maintain possession of property before a final judgment is rendered." Krimstock I, 306 F.3d at 60; see Mathews v Eldridge, 424 U.S. 319, 335, 96 S.Ct. 893, 47 L.Ed.2d 18 (1976). The test weighs: (1) the private interest affected; (2) the risk of erroneous deprivation through the procedures used and the value of other safeguards; and (3) the government’s interest. 

[17]	Section 164 of the Criminal Procedure Code empowers the courts to decide whether the retention of a property seized by the police as part of criminal investigation is necessary. Any person who is entitled to the property can apply for possession under section 164. 

[18]	In Bulsara v Commissioner of Police & AG, Civil Action No. HBC 215 of 2000 Shameem J held that whether the State should continue to detain a property seized following a criminal investigation, is subject to the general principle of reasonableness. 

[19]	The State submits that the seized vehicles were the mode of transport for the accused persons to attend meetings and trainings to carry out the alleged conspiracy. 

[20]	A conspiracy is an agreement between two or more persons to do an unlawful act. The nub of the offence is the agreement to engage in a common enterprise to do the unlawful act alleged. 

[21]	Thus, at the hearing of the trial, the primary issues would be:

(i)	Whether there was an agreement between two or more persons to commit the alleged unlawful act;

(ii)	Whether the accused agreed with one or more of the other accused persons that the unlawful objective of the conspiracy should be carried out; and

(iii)	Whether at the time of agreeing to the unlawful objective, the accused intended that objective should be carried into effect. 

[22]	Given what may be the real questions at the hearing of the trial, the evidential value of the vehicles as offered by the State is minimal. 

[23]	Counsel for the State has fairly conceded that the vehicles cannot be tendered in evidence at the trial. Instead, the photographs of the vehicles would be tendered. 

[24]	The rights of the State must be balanced with the rights of the accused. The accused has the constitutional protection against the unreasonable seizure of his property by the State. He is entitled to the presumption of innocence. The vehicles are central to his livelihood. 

[25]	Two of the vehicles seized are leased from the Merchant Bank Finance. I take that the Merchant Bank Finance has a charge over these vehicles. Any deterioration of the vehicles whilst in the State’s possession will adversely affect the financial interests of an innocent third party.

[26]	As I have said the likely issue at the hearing of the trial would be whether the accused persons met and agreed on an unlawful act. How the accused persons reached the destination where the alleged unlawful agreement was formed is an unlikely issue at the hearing of the trial. In the event if it does become an issue, then the fact could be easily proved by other evidence, for instance, by witnesses who saw the accused persons in the vehicles at the material times and by the official documents from the Land Transport Authority as to the ownership of the vehicles. 

[27]	I also take into account that the seizure of the vehicles was without a warrant. In these circumstances, the State’s continued possession of the vehicles may ultimately prove improper, when less drastic measures are available than deprivation of property. 

[28]	The accused agrees to the use of the photographs of the vehicles at the hearing of the trial. 

[29]	For these reasons, I am satisfied that the application should be allowed.

[30]	 I order the release of the Toyota Prado registered as EZ233, Toyota Hilux registered as FD382, Nissan Pathfinder registered as FE301, DVD Player, Digital Camera, Video Camera, and Two Ipods to the accused upon his written undertaking that he will not dispute the admissibility of the photographs of these items, nor will he dispute the chain of custody of these items at the hearing of the trial.

[31]	The release order shall take effect upon filing in court the undertaking and serving a copy on the State. 

[32] 	The order is made without prejudice to any civil claim by the applicant against the State in relation to these properties. 

Daniel Goundar
JUDGE

At Suva
Friday 11th April, 2008

Solicitors:
Howards Lawyers, Suva for the Applicant
Office of the Director of Public Prosecutions, Suva for the State