State v Anisimai [2009] FJHC 172; HAM045.2007 (21 August 2009)

IN THE HIGH COURT OF FIJI
AT SUVA
MISCELLANEOUS JURISDICTION

CRIMINAL MISC. CASE NO: HAM 045/07

BETWEEN:

STATE
Applicant

AND:

MAKARIO ANISIMAI
Respondent

Hearing: 20th July 2009
Ruling: 21st August 2009

Counsel: Mr. P. Bulamainaivalu for State
Respondent in Person
Mr. N. Prasad for Interested Third Party

RULING

[1] Following a trial in the High Court, Makario Anisimai (the respondent) was convicted of an offence of robbery with violence involving substantial amount of cash belonging to ANZ Banking Group Limited. The robbery took place outside Village Six Cinemas when the bank employees were servicing an ATM machine with the security provided by a company owned by the Interested Third Party.

[2] At trial, evidence of properties purchased by the respondent using the stolen money and partially recovered cash were tendered in evidence.

[3] In sentencing the respondent to a term of imprisonment, the trial judge said:

"[11] Unfortunately for you, you received and kept bundles of $50 and $20 notes. It was these same bundles that the police subsequently found in your home after they searched it approximately a month later.

[12] In addition to finding $83,920.00 in $50 and $20 denominations the police also located and seized goods that you and your wife had recently acquired including jewelry, electronic appliances and a great deal of building materials. As a result of some very good police investigation it was also discovered somewhat ironically that you had deposited $16,500.00 into your previously dormant ANZ bank account in the weeks after the robbery and before the search of your home. Somewhat unsurprisingly the bank tellers recorded your significant deposits as being made up of $50 and $20 denominations." (State v. Anisimai Criminal Case No. HAC9 of 2004)

[4] On appeal, the conviction of the respondent was confirmed by the Court of Appeal (Anisimai v. State Cr. App. No. AAU0038/06) and by the Supreme Court (Anisimai v. State Cr. App. No. CAV0006 of 2008S).

[5] Following the confirmation of the respondent’s conviction by the Supreme Court, the State filed an application for a forfeiture order pursuant to sections 11-17 of the Proceeds of Crime Act 1997 and as amended by the Proceeds of Crime (Amendment ) Act 2004.

[6] The forfeiture order is being sought for the following properties:

(1) $61,120.00 cash deposit in the Trust Account of Mitchell Keil (solicitors for Interested Third Party);

(2) One computer set and computer work station comprising Sony Pentium 4 CPU, Mitsubishi Diamond Touch Internet keyboard, Mitsubishi USB Flatbed Scanner Model DV650U, Aopen 17" colour monitor, Viewmaster M-400K Subwoofer speaker, Hewlett Packard Deskjet 3420 printer purchased from Courts for $3499;

(3) 4 rolls of chain link wire purchased from GMR Muhammad & Sons on 30-12-02 for $319.80;

(4) 30 pine posts purchased from GMR Muhammad & Sons on 30-12-02 for $510.00;

(5) 2 framed drawings by "Lawrence" purchased from Value City for $13.50;

(6) 9 carat gold necklace purchased from Tapoos Limited on 31-12-02 for $550.00;

(7) Prime electric frying pan purchased from MH for $90.00;

(8) Sanyo 1400 watt vacuum cleaner purchased from MH for $300.00;

(9) G shock wrist watch purchased for $200.00;

(10) Floor rug purchased privately for $120.00;

(11) Marotex bedspread purchased privately for $60.00;

(12) Gold Excel blanket purchased from Nora Store for $105.00;

(13) Ceramic statue of a lion purchased privately for $60.00;

(14) 3 piece suite comprising two chairs and a 3 seater sofa purchased privately for $400.00; and

(15) Pair of gold earrings purchased from Gokul for $50.00;

[7] The Interested Third Party, Tyco (Fiji) Limited trades as Guardforce and ADT Armourguard. The interest of Tyco (Fiji) Limited to the properties is contained in the affidavit of the company’s General Manager, Fenton Barrack. Tyco (Fiji) Limited agreed to reimburse ANZ Banking Group Limited any money, stolen in the process of delivering it from the bank to the ATM locations. In accordance with this agreement Tyco (Fiji) Limited reimbursed ANZ Banking Group Limited the money stolen in the robbery committed by the respondent.

[8] The State concedes Tyco (Fiji) Limited’s claim to the properties.

[9] The respondent opposes the application. He elected not to give evidence but rely on submissions. The main objection of the respondent is that he should not have been convicted and he is seeking a review of the Supreme Court’s decision that confirmed his conviction.

[10] Forfeiture of property under the Proceeds of Crime Act is a discretionary order. Section 11 (1) provides that the Court must be satisfied that the property is tainted before making a forfeiture order on conviction. The Court may from the circumstances provided in subsection (2) to infer that the property is tainted. The circumstances are:

(a) where the evidence establishes that the property was in the person’s possession at the time of, or immediately after, the commission of the offence of which the person was convicted – that the property was used in, or in connection with, the commission of the offence;

(b) where the evidence establishes that the property was under the effective control of the person at the time of, or immediately after, the commission of the offence of which the person was convicted – that the property was derived, obtained or realized as a result of the commission by the person of the offence of which the person was convicted and for purposes of this paragraph "effective control" shall have the same meaning as in section 25 of this Act;

(c) where the evidence establishes that the value, after the commission of the offence, of all ascertainable property of a person convicted of the offence exceeds the value of all ascertainable property of that person prior to the commission of that offence, and the Court is satisfied that the income of that person from sources unrelated to criminal activity of that person cannot reasonably account for the increase in value – that the value of the increase represents property which was derived, obtained or realized by the person directly or indirectly from the commission of the offence of which the person was convicted.

[11] Before granting a forfeiture order, the Court may have regard to factors outlined subsection (4):

(a) the rights or interests, if any, of third parties in the property;

(b) the gravity of the offence concerned;

(c) any hardship that may reasonably be expected to be caused to any person by the operation of the order; and

(d) the use that is ordinarily made of the property, or the use to which the property was intended to be put.

[12] The Third Party Interest is protected by section 13 of the Proceeds of Crime Act. Section 13 states:

(1) Where an application is made for a forfeiture order against property, a person who claims an interest in the property may apply to the Court, before the forfeiture order is made, for an order under subsection (2).

(2) If a person applies to the Court for an order under this subsection in respect of the person’s interest in property and the Court is satisfied:

(a) the applicant has an interest in the property;

(b) the applicant was not in any way involved in the commission of the offence in respect of which the forfeiture of the property is sought or the forfeiture order against the property was made; and

(c) the applicant –

(i) had the interest before the serious offence occurred; or

(ii) acquitted the interest during or after the commission of the offence, bona fide and for fair value, and did not know or could not reasonably have known at the time of the acquisition that the property was tainted property,

the Court may make an order declaring the nature, extent and value (as at the time when the order is made) of the applicant’s interest.

[13] The properties subject of this application was either found in the respondent’s possession or was in his effective control. The cash and the other tangible properties were obtained as a result of the commission of the robbery which the respondent was convicted. The trial court’s finding of guilt of the respondent was based on the evidence of recent possession of the properties by the respondent. I am satisfied the properties subject of this application are tainted properties in respect of the offence of robbery with violence which the respondent was convicted.

[14] I am further satisfied that Tyco (Fiji) Limited has a legitimate interest in the properties. I am satisfied that Tyco (Fiji) Limited was not involved in the commission of the robbery and that they acquired an interest in the property following reimbursement of the stolen cash to the ANZ Banking Group Limited.

[15] For these reasons, I order all properties listed below are forfeited to Tyco (Fiji) Limited to be disposed at their liberty:

(1) $61,120.00 cash deposited in the Trust Account of Mitchell Keil;

(2) One computer set and computer work station comprising Sony Pentium 4 CPU, Mitsubishi Diamond Touch Internet keyboard, Mitsubishi USB Flatbed Scanner Model DV650U, Aopen 17" colour monitor, Viewmaster M-400K Subwoofer speaker, Hewlett Packard Deskjet 3420 printer purchased from Courts for $3499;

(3) 4 rolls of chain link wire purchased from GMR Muhammad & Sons on 30-12-02 for $319.80;

(4) 30 pine posts purchased from GMR Muhammad & Sons on 30-12-02 for $510.00;

(5) 2 framed drawings by "Lawrence" purchased from Value City for $13.50;

(6) 9 carat gold necklace purchased from Tapoos Limited on 31-12-02 for $550.00;

(7) Prime electric frying pan purchased from MH for $90.00;

(8) Sanyo 1400 watt vacuum cleaner purchased from MH for $300.00;

(9) G shock wrist watch purchased for $200.00;

(10) Floor rug purchased privately for $120.00;

(11) Marotex bedspread purchased privately for $60.00;

(12) Gold Excel blanket purchased from Nora Store for $105.00;

(13) Ceramic statue of a lion purchased privately for $60.00;

(14) 3 piece suite comprising two chairs and a 3 seater sofa purchased privately for $400.00; and

(15) Pair of gold earrings purchased from Gokul for $50.00.

SO ORDERED.

Daniel Goundar
JUDGE

At Suva
21st August 2009

Solicitors:

Office of the DPP for State
Respondent in person
Messrs. Mitchell Keil & Associates for the Interested Third Party