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Police v Palu [2017] WSSC 21 (17 February 2017)

IN THE SUPREME COURT OF SAMOA
Police v Palu [2017] WSSC 21

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

BETWEEN:

POLICE
Prosecution

AND:

MANO PALU male of Maninoa Siumu and Fausaga Safata.
Defendant

Counsel:
L Sio for prosecution
T P Mulitalo for defendant

Hearing: 17 February 2017

Decision: 17 February 2017

ORAL DECISION OF NELSON J
(Restraining Order Application)

Background

1. On 29 July 2016, the 18 year old complainant lodged with the Lotofagā Police Post complaints of sexual misconduct against the defendant. Who is her de-facto father-in-law. To protect the identity of the complainant and because this matter is pending trial, an order suppressing publication of her name and any details that may serve to identify her will issue. By necessity that prohibition will extend to the name and details of the defendant.
2. Later on 29 July 2016 Corporal Kalati Tusani of the Lotofagā Police asked the defendant to attend the Police Post for an interview in relation to the complaint. At about 7:00 pm that evening the defendant in response drove to the Police Post in his white Honda Station Wagon registration number 0517. After interview and based on his enquiries Corporal Kalati advised the defendant he would be charged with the rape and attempted rape of the complainant. He also advised him that as the vehicle was allegedly involved in the offending the police were seizing the vehicle. In his original affidavit filed dated 19 September 2016, the Corporal referred to this as a “confiscation of the vehicle that the offending took place.” The vehicle is still in the custody of the Lotofagā Police.
3. On or about 30 July 2016 the defendant was charged with rape, attempted rape and indecent assault of the complainant. He has pleaded not guilty and I am advised his trial is scheduled for the week commencing 20 June 2017.
4. On 05 September 2016 the police applied for a restraining order in respect of the defendants vehicle. Application was made pursuant to section 48 of the Proceeds of Crimes Act 2007 and was on the basis:
   1. firstly that there are reasonable grounds for believing the defendant committed the offending;
   2. secondly that the property is tainted property within the meaning of the legislation;
   3. thirdly that it is necessary to seek these orders to ensure the property is not dissipated, disposed of or otherwise placed beyond the reach of the court.
5. The Police sought further orders directing an administrator take custody and deal with the vehicle in accordance with any directions from the court.
6. A further ground has been added as justification for seizure and custody of the defendants vehicle, namely section 36 of the Police Powers Act 2007. Which empowers a Police officer who suspects on reasonable grounds to take a “thing” into custody without the authority of a search warrant because it is relevant “to a serious offence” and this is necessary to prevent it from “being concealed, lost or destroyed.”
7. The application was originally filed ex-parte but subsequently was placed on notice. The defendant is contesting the application on various grounds none of which I need consider in any detail.

The legislation

8. Section 48(1) of the Proceeds of Crime Act 2007 relevantly provides:

“48. Restraining orders – (1) The court may make a restraining order against property if it is satisfied that:

(a) the defendant has been convicted of a serious offence or has been charged with a serious offence or will be charged with a serious offence within 5 days; and

(b) if the defendant has not been convicted of a serious offence, there are reasonable grounds for believing that the defendant committed the offence; and

(c) if the property is property of the defendant, there are reasonable grounds for believing that the property is tainted property...........”

9. Section 46 governs the form of the application for a Restraining Order in particular subsection (3)(b) as to the contents of the supporting affidavit:

“46. Application for restraining Orders – (3) An application for a restraining order shall be in writing and shall be accompanied by an affidavit stating:

(b) if the defendant has not been convicted of a serious offence, the serious offence for which the defendant is or is about to be charged and the grounds for believing that the defendant committed the offence.”

10. Also relevant to the present application is section 49 of the legislation which provides -

“49. Undertakings by State – (1) Before making a restraining order, the court may require the State to give an undertaking about the payment of damages or costs, or both, in relation to the making and execution of the order.

(2) For the purposes of this section, the Attorney-General may give such undertakings with respect to the payment of damages or costs or both, as are required by the court.”

11. It is noted that no such undertaking has been received from the State and neither does it appear customary for one to be given for such applications.

Discussion

12. Where a defendant has been convicted of a serious offending, debate will usually centre around whether or not property is an “instrument” within the definition of section 2 of the Act and whether it is “tainted property.” There have already issued a number of decisions of this court in respect of both these matters.
13. In such cases, the course of enquiry is clearly defined by the legislation and its definitions. But not so in situations such as the present one where a defendant faces an unproven but serious allegation of criminal misbehaviour. For these situations there is only the words of section 48(1)(b) which introduces a large measure of subjectivity into the issue. In such cases I am of the view the court must proceed with great caution as the basis of the jurisdiction sought to be exercised is an unproven criminal allegation.
14. Section 48(1)(b) requires that before the court can issue the order sought, it must be satisfied there are reasonable grounds for believing the defendant committed the serious offence in question. There is no doubt the alleged offending facing the defendant is serious, it is an allegation of rape of his 18 year old defacto daughter-in-law. The question for present purposes is what reasonable grounds existed for believing the defendant committed this offence?
15. In this regard reliance is placed by the prosecution on the supporting affidavit of Corporal Kalati who has filed two affidavits, one in support of the original application dated 19^th September 2016 and the other recently on the 14^th of February 2017. In terms of evidence substantiating the charge, the original affidavit refers to a statement obtained from the victim. However there is no reference to any other statements, documents or pieces of evidence such as for example a medical report, a forensic examination of the vehicle, or the alleged scene of the rape or evidence of any eye witnesses if there be any, and such like.
16. All the affidavit states is an investigation was “prompted and implemented” and a belief ensued on the part of the Corporal “that the offending took place inside the defendants vehicle.”
17. In similar vein is the Corporals supplementary affidavit of 14^th of February 2017 which refers to “the strength of the evidence collected” without detailing what such evidence comprises. Essentially the court is being asked to take on faith and accept as sufficient for present purposes the Corporals belief that the evidence is strong enough to lead to a conclusion that the defendant committed the three offences with which he has been charged.
18. This is in my respectful view insufficient. The legislation in section 46(3)(b) requires the supporting affidavit detail “the grounds” for the Corporals belief not merely the fact of it. Section 48(1)(b) requires the court be satisfied such grounds are “reasonable.” An exercise the court is ill-equipped to undertake if no grounds are provided in the first place.
19. I have also expressed concern at the delay in bringing the application before the court. The vehicle was in police custody for almost two months before the prosecution saw fit to seek an order that should have been sought earlier and more expeditiously. Had the vehicle been seized pursuant to a search warrant it would have had to be returned to its owner upon the expiry of 28 days: see section 42. It cannot be Parliaments intention that in the absence of a court order, properties seized without a search warrant would be subjected to more strenuous requirements and can be retained by the police for a longer period than 28 days.
20. Counsel courageously argued for justified retention of the vehicle also on the basis of section 36 of the Police Powers Act 2007. As pointed out in the course of the hearing I have some doubts as to whether a vehicle can be said to be a “thing” in terms of that legislation. Quare whether a vessel or an aircraft where a serious offence is allegedly committed could be said to be a “thing” and therefore seizable and retainable by the Police pursuant to section 36 of the Police Powers Act 2007.
21. The other difficulty with counsels argument however is there is no evidence retention by the police was necessary in terms of section 36(b) “to prevent the thing from being concealed lost or destroyed.” The evidence is the defendant voluntarily drove his vehicle to the Police Post and there is nothing to suggest he was trying to conceal, misplace or destroy his vehicle. The argument must fail.
22. I have referred to section 49 of the Proceeds of Crime Act 2007 and noted that it does not appear customary that undertakings by the State be required for the purposes of making an application such as the present one.
23. In my respectful view the giving of an Undertaking should be made mandatory for such applications. Much like an undertaking as to damages is required for applications for interim relief. It is required for the same purposes. To safeguard against disingenuous applications and costs and damages incurred in the event a respondent or defendant is ultimately successful in the litigation. Such undertakings can easily be given by the Attorney General on behalf of the State as provided for under section 49 (2) of the legislation.
24. All in all the application is dismissed. The vehicle is to be returned to the defendants possession forthwith. Defendant is entitled to costs on the present application. If this cannot be agreed upon by counsel the matter can be referred back to the court.

JUSTICE NELSON