Anisimai v The State [2004] FJHC 206; HAM0014D.2004S (26 May 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

CRIMINAL MISC. CASE NO: HAM0014 OF 2004

Between:

MAKARIO ANISIMAI
Applicant

And:

THE STATE
Respondent

Hearing: 14th May 2004
Ruling: 26th May 2004

Counsel: Mr. T. Fa for Applicant
Mr. P. Bulamainaivalu for State

RULING

On the 10th of January 2003 I granted an application by the State for a restraining order over property alleged to be obtained as proceeds of crime. The property included all money held in an ANZ Access Account, number 5031080 in the name of the Applicant. He now seeks variation of the order under section 35(2)(b) of the Proceeds of Crime Act 1997, to allow $8000 from this bank account to be paid to his counsel as legal fees for his representation.

This application was heard on the 14th of May 2004. At the conclusion of the hearing, counsel asked for time to file a further affidavit, that of the de facto wife of the Applicant. This was filed on the 19th of May 2004.

Section 35(1) of the Proceeds of Crime Act 1997 provides that on application by the DPP, the Court can make a restraining order. Section 35(2) provides:

“An order under subsection (1) may be made subject to conditions as the Court thinks fit and, without limiting the generality of this section, may make provision for meeting, out of the property or a specified part of the property:

(a) The person’s reasonable living expenses (including the reasonable living expenses of the person’s defendants (if any) and reasonable business expenses;

(b) The person’s reasonable expenses in defending a criminal charge and any proceedings under this Act; or

(c) Other specified debt incurred by the person in good faith;

but the Court shall not make such provision unless it is satisfied that the person cannot meet the expenses or debt concerned out of property that is not subject to a restraining order.”

In the affidavit of Detective Inspector Ilimotama Cawi, filed for the purpose of obtaining the restraining order in June 2003, the Applicant was said to be charged of larceny, and robbery with violence (on two counts). These charges will be heard in the High Court and have already been transferred. The ANZ Access account has a balance of $16,520.66. A total amount of $83,920 in cash was seized from the Applicant’s house. The State says that these entire amounts are tainted because they are all proceeds of the alleged crimes, in particular in relation to the robbery from an Armourguard Fiji employee on the 6th of December 2002.

The Applicant gave sworn evidence in respect of this application in evidence-in-chief. He said he did not earn any money and was a serving prisoner. His wife is a schoolteacher. He used to run an amusement centre business but it had been sold. He said his family survived on his wife’s income.

Under cross-examination he said he earned more than $100 per week at the amusement centre, and also operated a canteen shop at Suvavou House. He also ran a money-lender’s business and owned a house which was built on his brother’s land. He said at first that the land was freehold land but later said that it was native land. He agreed that his caution interview contained a confession to the Armourguard robbery and that his share of the proceeds was $120,000, $83,920 of which was found in his house. However he said that the statement was false and that all the money was derived from his various businesses. He said he did not know what the shop earned after his incarceration.

In answer to my questions, he said that the income from the shop amounted to $2000 per month and that part of this income was used to extend his house. He said he bank the rest. He said he earned $8000 per year from his money-lending business, and that the sum seized by the police at his house was the proceeds of this business.

The affidavit of Ateca Morovia, the Applicant’s partner, states that she is a kindergarten teacher earning $135.00 a fortnight. She says that she and the Applicant and their 3 year old son lived at a squatter settlement but that the Applicant had now built a house on his brother’s land at Tovata Road, Makoi. At paragraph 7 of her affidavit she states:

“Before my husband was sent to prison in January 2003 he ran his own businesses from home. He had his own billiard tables which were earning him money everyday, he had a groceries shop at home from which the neighbourhood bought their food supplies, he was a money lender and he was a middleman dealing with yaqona buying from farmers, drying them at home and reselling them to our neighbours.”

She states that all these businesses have now stopped and the groceries in the shop are used for their family needs. She said that she used to help her husband deposit money from his businesses into his bank account and the average deposit was $2000.

The bank statements annexed to the affidavit of Detective Inspector Cawi show deposits, of between $500.00 and $8000.00 from 19th December 2002 to the 20th of January 2003. The balance prior to the deposit of 19th December was $20.66. In his caution statement (the truth of which he disputes) the Applicant said that he had banked more than $15,000 which was part of the proceeds of the robbery.

It is for the Applicant to show the court to its satisfaction that he requires a variation of the restraining order to pay his legal expenses. In this case I am not so satisfied. Firstly, the Applicant was less than forthright in his evidence about his various businesses. He disclosed a little more in cross-examination, in that he said he ran a shop and a money lending business, but he still failed to disclose his business of selling yaqona, a matter disclosed by his partner in her affidavit.

Secondly, his evidence about his weekly and monthly income, is inconsistent with the bank statements exhibited. Because he disputes the truth of his confession, I disregard the admissions made therein.

Thirdly, the Applicant has failed to provide either personally or through his partner, any business records showing that his various business concerns have wound down and are non-productive. Indeed, before his incarceration he admits to having several businesses, including a money-lending business. He said that they were all highly lucrative. These businesses must have accounts, ledgers and balance sheets. None was produced in court.

In all the circumstances I am not satisfied that the Applicant is unable to meet his legal expenses from sources other than the property restrained. In considering this application I am conscious that only a trial can determine the ownership of the properties restrained, but that it is the duty of the court to, as far as possible and in the interests of justice, preserve the status quo in respect of those properties in order that the rights of all parties be protected.

This application for variation of the restraining order is dismissed.

Nazhat Shameem
JUDGE

At Suva
26th May 2004