State v Vere [2011] FJHC 831; HBM120.11 (8 December 2011)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

Case No: HBM120 of 2011

IN THE MATTER
of an application for a Restraining Order in respect of a serious offence pursuant to sections 34(1), 35 and 44 of the Proceeds of Crimes Act, 1997 [and Amendment Act of 2005].

BETWEEN:

THE STATE
Applicant

AND:

VINESH BABU VERE
Respondent

Hearing: 25 October 2011
Decision: 8 December 2011

Counsel: Ms N. Tikoisuva for State

DECISION

[1] This is an ex parte application by the State for a restraining order in respect to the following properties owned by the respondent:

1. One Taxi Registration Number LT 2807;

2. One Taxi Registration Number 6763;

3. A Fabiola Red 5 piece Corner Lounge Suite;

4. One Sena Walnut Tall TV/wall unit;

5. One Panasonic Blender;

6. One Panasonic Washing Machine;

7. One Topkit Motorized Treadmill – TK 2018;

8. One HP Deskjet F2480 Printer;

9. One BBQ Grill with serial marked as 502762;

10. One Humphrey Dakua Baby Cot with Economy Baby Cot Mattress;

11. One King Size Sleep On It Bed with Mattress.

[2] The application is made pursuant to sections 34(1), 35 and 44 of the Proceeds of Crime Act and is supported by an affidavit of Assistant D/Sgt. Mikaele Koro of Lami Police Station.

[3] Section 34(1) of the Act provides:

Where there are reasonable grounds to suspect that any property is property in respect of which a forfeiture order may be made under sections 11 or 19, the Director of Public Prosecutions may apply to the Court for a restraining order under subsection (3) against that property.

[4] Subsection (3) states:

An application for a restraining order may be made ex parte and shall be in writing.

[5] Subsection (4) states:

An application under subsection (1) shall be accompanied by an affidavit stating:

(a) a description of the property in respect of which the restraining order is sought;

(b) the location of the property; and

(c) the grounds for the belief that the property is tainted property or terrorist property for which a forfeiture order may be made under sections 11 and 19.

[6] The affidavit of D/Sgt. Koro complies with the requirements specified by subsection (4).

[7] Section 35(1) states:

Subject to this section, where the Director of Public Prosecutions applies to the court for a restraining order against property under section 34(1) and the Court is satisfied that there are reasonable grounds for suspecting that the property is tainted property or terrorist property, the Court may make an order under subsection (1B).

[8] Subsection (1B) states:

Where satisfied under subsection (1) or (1A), the Court may make an order:

(a) prohibiting the defendant or any person from disposing of, or dealing with, the property or such part thereof or interest except in the manner specified in the order; and

(b) at the request of the Director of Public Prosecutions, where the Court is satisfied that the circumstances so require – that the Attorney-General take custody of the property or such part thereof and manage or otherwise deal with all of any part of the property in accordance with the directions of the Court.

[9] It is clear from the affidavit evidence of D/Sgt. Koro that there is an ongoing criminal investigation into allegations that the respondent has misappropriated large sums of money from his former employer. Ms Tikoisuva informs me that the respondent is being interviewed under caution and criminal prosecution will ensue after the conclusion of the interview. Ms Tikoisuva was unable to provide a timeframe for these events.

[10] I was further informed that the properties that are subject of this application are already in the possession of Lami Police Station as exhibits for future prosecution. Ms Tikoisuva submits that the need for the restraining order arose after the respondent's spouse filed a civil action against the State for recovery of the seized properties.

[11] In my judgment this application is misconceived. The provisions of the Act are clear.

[12] The purpose of a restraining order is to protect the properties that are in possession or effective control of a suspect from disposal before the commencement of any prosecution. If the properties are already in the lawful possession of the State, as is the case here, then there is no jurisdiction to issue a restraining order. In other words, the court lacks jurisdiction to restrain properties that are already in the safe custody of the State and are protected from disposal by the potential accused.

[13] For these reasons, I dismiss the application for want of jurisdiction.

Daniel Goundar
JUDGE

At Suva
8 December 2011