IN THE HIGH COURT OF FIJI
AT LAUTOKA
CRIMINAL JURISDICTION

MISCELLANEOUS ACTION NO. 05 OF 2021

BETWEEN		:	

TAFIZUL RAHIMAN
APPLICANT

A N D			:

THE STATE
RESPONDENT

Counsel			:	Applicant in person.
					Mr. T. Tuenuku for the Respondent.

Date of Judgment	:        5th December, 2022

JUDGMENT

BACKGROUND INFORMATION 

1.	The applicant was carrying on a business in Nadi with his deceased wife from two outlets.  Both resided in the same house with their two daughters.

2.	After some time the applicant and his wife started having differences and were quarrelling with each other over the applicant’s suspect involvement with another woman.

3.	On 2nd January, 2005 the applicant with his family and some others went to Natadola beach for a picnic and having returned home in the evening the applicant went to meet his friend Mohammed Hazrat. At Hazrat’s house a plan was made to kill the applicant’s wife in the night. 

4.	The motive behind the plan to kill the wife seems to have been that the applicant’s wife was creating problems in the house, and after killing her, the applicant wanted to get her insurance money. 

5.	On 3rd January, 2005 at around 2.15 am the applicant and his friend, Hazrat as planned, went to the deceased’s bedroom where she was sleeping and killed her by placing the pillow and pressing it on the mouth of the deceased causing suffocation. The deceased body was found in the bedroom of the deceased the next morning.  The applicant originally made a plain statement when he alleged that he was robbed. After the police investigations were carried out the applicant was treated as a suspect and not as a complainant. The items were recovered by the police from Hazrat’s house.

CHARGE

6.	The applicant was charged in the High Court at Lautoka on 7th March, 2005 with the murder of his wife Juliet Burres Sanchez contrary to sections 199 and 200 of the Penal Code Cap. 17.  The applicant was found guilty of murder after trial, the learned Judge agreed with the unanimous opinion of the assessors and sentenced the applicant to life imprisonment.

CURRENT APPLICATION

7.	The applicant seeks an order for the restoration of properties as per the notice of motion filed in this court.  The applicant in his affidavit in support sworn on 25th November, 2020 deposes that at trial the learned Judge had informed him that all the properties seized as per the search list will be returned to him. However, the state counsel had objected to this course being taken on the grounds that the items will be used against the person from whose house the items were recovered.

8.	The affidavit of the applicant mentions that a copy of search list and search warrant were attached but unfortunately there are no such documents attached. The applicant states the items were his ancestral jewelries. It is now more than 10 years and the alleged perpetrator Mohammed Hazrat has not been apprehended hence he wishes the items be given to him.

9.	In his supplementary affidavit sworn on 11th March, 2021 the applicant states that some lost properties were recovered from the house of Hazrat as per the search warrant dated 3rd January, 2005 (annexed). The applicant further states that the said properties were exhibited in court during trial. The applicant has attached pages 259 and 272 which he says is from the High Court Record of his murder trial.

10.	As per page 259 the following items were marked for identification:
a)	Nokia Mobile (MFI – 2);
b)	Wrist watch (MFI – 3)
c)	Camera (MFI – 4)
d)	Jewelry (MFI – 5)
e)	Pulsar Watch (MFI – 6)
f)	Money (MFI – 7)

11.	As per page 272 the following items were exhibited in court:

i.	Exhibit M – Nokia phone;
ii.	Exhibit N – Lorus watch;
iii.	Exhibit P – Pulsar watch
iv.	Exhibit Q – Cash in plastic;
v.	Exhibit R – 9 bags of jewelry.

12.	On 10th March, 2022 this matter was for hearing the applicant on this date sought to file a further supplementary affidavit saying that he wishes to put before the court evidence of his ownership of the properties he wants restored to him.  

13.	The applicant in his second supplementary affidavit sworn on 14th March, 2022 deposes that at page 19 of his summing up the learned Judge had narrated the State’s submission as follows:

“… that the items found at Hazrat’s house was identified as belonging to him and his family were recovered from the house of Hazrat …and they were recovered the same night…”   

14.	Furthermore, the applicant also states that in his caution interview which was tendered in court during his murder trial particularly questions and answers 114 to 118 supports his contention that the items he is seeking are his.  In respect of the possession of the items the applicant has attached page 322 of the High Court Record whereby the learned Judge had ordered the items exhibited be returned to the police after the expiration of the appeal period.   

     	STATE’S RESPONSE

15.	The application filed by the applicant is opposed by the state, however, no affidavit in reply has been filed. The state counsel relies on the rules of forfeiture as per section 49 A of the Succession, Probate and Administration (Amendment) Act 2004 that the applicant is not entitled to receive any properties of the deceased.   

LAW
16.	Section 155 of the Criminal Procedure Act states:
Division 5 — Dealing with Property 

Preservation or disposal of property 
155.-(1) It shall be lawful for any court in any criminal proceedings to make orders for-
              (a)    the preservation or interim custody or detention of any property or thing produced in evidence or as to which questions may arise in the proceedings; 
	(b)    the sale, destruction or other disposal of any such property or thing  which  may  be  of  a  perishable  nature  or  liable  to deteriorate, or which may be dangerous; 
	(c)    the restoration or awarding of possession of any such property or thing to the person appearing to the court to be entitled to possession of it, without prejudice to any civil proceedings which may be taken in relation to it; 
	(d)   the payment by any person of the expense incurred in the preservation, custody, detention, sale, destruction or other disposal of any such property or thing, or the proceeds of it; 
	(e)    the application of any such property or thing, or the proceeds of it, towards satisfaction or payment of any   costs or compensation which are ordered by the court to be paid by any person, or to the police or any other emergency service as compensation for the services that they have been called upon to perform as a result of the commission of the offence. 
(2) Any order made under the provisions of sub-section (1) (d) may be enforced as if the order were the imposition of a fine. 
(3) When an order is made under the provisions of this section in a case in which an appeal lies, the order shall not, except when the property is livestock or is liable to deterioration or decay, be carried out until the period allowed for presenting the appeal has passed or, when the appeal is presented within such period, until the appeal has been determined.250 251 

Section 101 of the Criminal Procedure Act states:
Detention of property seized 
101.-(1) When anything is seized and brought before a court, it may be detained until the conclusion of the case or the investigation, and reasonable care shall be taken for its preservation. 
(2) If any appeal is instituted, or if any person is committed for trial, the court may order property which has been detained to be further detained for the purpose of the appeal or the trial. 
(3) If no appeal is instituted, or if no person is committed for trial, the court shall direct the property to be restored to the person from whom it was taken, unless the court sees fit or is authorised or required by law to otherwise dispose of it

APPLICANT’S SUBMISSIONS

17.	The applicant submits that the items in question were his which were allegedly stolen from his house.  When he reported the matter to the police he had given his police statement about the alleged robbery and the subsequent murder of his wife.

18.	During police investigation one Hazrat was arrested and the items in question were later exhibited during trial. The police officer who took possession of the items had noted the same in the search list which was also tendered in court.  According to the applicant Hazrat was charged but he has not appeared in court and is still on the run.

19.	The applicant in his application is seeking an order that he be returned all the exhibited items belonging to him and his family in his murder trial HAC 006 of 2005. The applicant submits that it has been more than a decade that Hazrat has not been apprehended and dealt with by court hence there is no reason why the items should remain in the possession of the police. The items are not only of significant value but also has psycho sentimental value.  

20.	The state on the other hand argues that the applicant is not entitled to receive any of those items in question since he may not have told the truth to the police during his interrogation and there is no evidence of his direct ownership of the properties.       

DETERMINATION

21.	Upon considering the evidence adduced and the submissions made by the applicant and the respondent (including supplementary submissions) there is no doubt that this court had made an order for all the exhibited items to be kept in the possession of the police.
 
22.	The state counsel has not been able to confirm whether Hazrat has been charged or not. I agree with the applicant that it is now 14 years and nothing appears to have been done about the case of Hazrat. I had the opportunity to peruse the High Court file and I would like to state that the applicant has attached authentic copies of the High Court Record and the summing up delivered during his trial.     

23.	This court is mindful that due to lapse of time documentary evidence cannot be possible, however, I have had the opportunity to peruse the caution interview of the applicant dated 3rd January, 2005 which was exhibited in court. 

24.	The following questions and answers are relevant to this application:

Q 114.	Is this the same nokia mobile phone which Hazrat took from you? (red and grey nokia phone shown).
A.		Yes this is the same phone, which Hazrat took from me.

Q115.	Is this the same watch you gave to Hazrat? (wrist watch shown).
A.	Yes this is the same watch.

Q 116	.	Is this the same camera? (camera shown)
A		Yes this is my camera which I gave it to him.

Q 118	.	Whose watch is this? (pulsar wrist watch shown).
	A.		This was my wife’s wrist watch.

	Q 119.	Look at this jewellery, whose are these? (Jewellery shown).
A.	This jewellery is my daughters and my wife’s which he took from my house.

Q 120.	Whose money is this?
A.	I am thinking that this money is from my house, but I am not sure.

Q 130.	Are these the same jewellery which Juliet was wearing on that day (jewellery shown).
A.	Yes these all jewellery she was wearing.

25.	From the above answers given by the accused to the interviewing officer one thing is for certain that there are some items that belonged to the applicant and some belonged to the deceased. 
 
26.	As per the order of this court made on 20th May, 2008 all the exhibits were to be given to the police after the expiration of the appeal period. As per the dispatch book kept by the High Court Registry on the same day Mr. Sovau from the office of the Director of Public Prosecutions received the following items:
DESPATCH BOOK
Date	Ref/File No.	Subject	To	Received by	
20/05/08		EXB. OF HAC 006/05	      

  Released
      to 
     Mr. 
     Sovau
     of DPP 
     Lautoka	

    (Signed)

      1.10
       pm	
		STATE v. TAFIZUL RAHIMAN			
	EXB.Q.	17 X $50 NOTES &			
		50 X $10 NOTES			
	EXB.0	SILVER CONCORD CAMERA			
	EXB.N	SILVER LORUS WRIST WATCH [BROKEN]			
	EXB.M	I RED & GREY NOKIA MOBILE FONE			
	EXB.P	GOLD LADIES WRIST WATCH			
	ITEM 21	1 GOLD CHAIN WITH HEART PENDANT (SILVER)			
                     
                     	ITEM 17	1 GOLD TWISTED CHAIN WITH PENDANT			
EXB.R           
                     	ITEM 19	1 GOLD CHAIN WITH PENDANT (J)			
                     
                     	ITEM 20	1 GOLD CHAIN WITH HEARD PENDANT			
                     	ITEM 15	1 GOLD BRACELET			
                     
                     	ITEM 13 – 12	4 PIECE RING, 4 ROUND EARINGS			

Date	Ref. File No.	Subject	To	Received by	
20/05/08	12-12	1 PAIR HANGING EARING, 
3 PAIR STUDS, I EARING STOPPER, 1 ANITA JEWELLERY BOX	

    Released 
    to Mr  
    Sovau    
    of 
    D.P.P.   
    Lautoka.	

     Signed
     1:10 pm	
					
E.X.B.R	ITEM 14	1 COPPER BANGLE			
	ITEM 13	1 TWISTED CHAIN WITH 3 PIECE RING IN A JEWELLERY BOX			
	ITEM 18	I GOLD CHAIN HEART PENDANT			
	EXB. 1	2 SILVER CROME ALUMINUM PIPES			
	EXB. J 	PIECES OF PINK BED SHEET CUTTINGS INSIDE ONE BROWN ENVELOP			
	EXB. A.	1 BOLT CUTTER.			
	EXB. K	I WHITE PANTY, I GREEN TOP, I BLACK ¾ 			
	EXB. L	I PINK CHAIR			

27.	It is noted by this court that so far no one has claimed any entitlement of the above properties in this court. This is the first application made.  This court has taken into account the fact that the deceased was the wife of the applicant and a business woman hence it cannot be said with certainty that all the items exhibited belonged to the applicant.

28.	The applicant cannot be a beneficiary of the deceased estate or her properties due to his complicity in her murder and therefore the forfeiture rule as per section 49 A of the Succession, Probate and Administration (Amendment) Act 2004 applies.  This court has been informed by the applicant that his daughter is making an application for the administration of the estate of the deceased. 

29.	As the application stands this court is satisfied that the applicant is only entitled to receive the following items:

a)	One only red and grey Nokia mobile phone (MFI – 2);
b)	Wrist watch (MFI – 3);
c)	Camera (MFI – 4).

30.	There is no conclusive evidence that the applicant is entitled to possession of the other items in question.  On the basis of the above the application for restoration of property is partially allowed. 

31.	There has been a delay in the finalization of this application since it was only prudent to allow the office of the Director of Public Prosecutions and the Fiji Police Force to locate the items released by the High Court Registry. Unfortunately, nothing positive has happened over time. 

ORDERS

1.	The application for restoration of property is partially allowed.

2.	The Fiji Police Force and/or the office of the Director of Public Prosecutions are hereby ordered to locate and release the following items to the applicant forthwith namely:

a)	One only red and grey Nokia mobile phone (MFI - 2);
b)	Wrist watch (MFI – 3); and
c)	Camera (MFI- 4). 
3.	30 days to appeal to the Court of Appeal.

Sunil Sharma
Judge
At Lautoka
5th December, 2022

Solicitors
Applicant in person. 
Office of the Director of Public Prosecutions for the State.