State v Terubea [1991] FJHC 61; Haa0108.1991s (2 December 1991)

IN THE HIGH COURT OF FIJI
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: 108 OF 1991

BETWEEN:

THE STATE
Appellant

&

RONGORONGO TERUBEA
Respondent

Ms N Shameem for the appellant
Mr T Fa for the Respondent

JUDGMENT

In this case the Director of Public Prosecutions made an application in the Magistrate's Court of Suva on 14^th October 1991 in Magistrates Court Suva Criminal Case No: 2004 of 1991 seeking an order under section 164(1)(a) of the Criminal Procedure Code that funds currently held in favour of the Rabi Council of Leaders and the Banaban Trust Fund Board be transferred to the interim custody of the office of the Prime Minister pending the hearing of the above-named case. The learned Chief Magistrate had by his ruling dated 11^th November 1991 refused the application.

The DPP has now appealed to this court from that ruling. In the criminal case in which the application was made the Deputy Chairman of the Rabi Council of Leaders, Rongorongo Terubea, is being charged on 4 counts of fraudulent conversion of sums of money aggregating to above $64,000, the property of the Rabi Council of Leaders.

Section 164 of the Criminal Procedure Code appears under the heading 'restitution of property' and under the sub-title 'preservation or disposal of property'. In the first place an application of the kind made by the prosecution in the present instance must be made in any proceedings pending before a court. According to the affidavit of Detective Inspector Sailendra Chandra the order the prosecution seeks is not necessary for the pending criminal case but for the purpose of the wider investigations that are now a foot but are not yet the subject of any charges at present. Section 164 is clearly not intended to facilitate Police investigations which may reveal possible further charges.

Section 164(1)(a) deals with "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."

No such situation has been made out in this case. The accused is charged with fraudulent conversion of monies. Does the order sought concern any property which will be produced in evidence or regarding which questions may arise in the case? That is the basic question. The property which the section has in mind is property regarding which the court may have to decide as to its ultimate destination at the end of the case or in relation to which an order for preservation or detention had to be made pending such disposal.

No such contingency is involved in this case. Neither Section 164(1)(a) nor any of the other sub-sections come into play in this case. The affidavit of Inspector Sailendra Chandra is clear on that point. According to para 13 of his affidavit the evidence he intends to lead at the trial is available.

I have no doubt that the order sought will be helpful to the Police as it will not render futile the outcome of future and further investigations in relation to the funds of the Rabi Council of Leaders and Banaban Trust Fund.

The powers, functions and duties of the Rabi Council and the Banaban Trust Fund have been comprehensively set out in an Ac ct of Parliament.

What this court is being asked to do by the DPP is to arbitrarily interfere with those powers, functions and duties without hearing any of the interested parties and transfer the fund to the Prime Minister's interim control – and to do it under section 164 of the Criminal Procedure Code which deals with property produced in court and allied matters.

This court is bound by the four corners of section 164. The order sought by the prosecution does not arise from the necessities of preserving property with a view to its ultimate disposal at the end of the case or with relevant questions that may arise in the case in that connection.

In England there are enactments under which such orders as are sought by the prosecution in the instant case can be made. The prosecution arguments seems to be that in view of the lack of such legislation in Fiji this court should give relief under a section which in terms is meant for quite a different situation. The law perhaps is not powerless to grant the types of relief the prosecution seeks.

But it should be obtained in the appropriate civil forum. This court has not only to do justice but do justice according to law.

The present prosecution application is misconceived. It fails in limine.

I therefore dismiss the appeal of the Director of Public Prosecutions.

M. D. JESURATNAM

At Suva
2^nd December, 1991

HAA0108.91S