Director of Public Prosecutions of the Republic of Fiji v Chase [2015] FJHC 1009; HBM114.2015 (11 December 2015)

IN THE HIGH COURT OF FIJI
AT SUVA
CIVIL JURISDICTION

CIVIL ACTION NO: HBM 114 of 2015

BETWEEN:

THE DIRECTOR OF PUBLIC PROSECUTIONS OF THE REPUBLIC OF FIJI
Applicant

AND:

CHRISTOPHER ARTHUR ROGER CHASE
First Respondent

RAECHELLE NINA CHASE
Second Respondent

BANK OF THE SOUTH PACIFIC
Third Respondent

COUNSEL : Ms. J. Prasad for the Applicant

Dates of Hearing : 9 and 10 December 2015
Date of Ruling : 11 December 2015

RULING

[1] The Applicant instituted these proceedings by way of an Originating Summons seeking the registration and enforcement of a foreign restraining order over Certificate of Title No. 39964, Lot 30, DP 10178, Naisosovu, Ba District, Viti Levu (the property).

[2] An affidavit in support of the Originating Summons was filed by Moira Konrote, Legal Officer of the Office of the Director of Public Prosecutions (DPP), along with several annexed documents.

[3] The Applicant also filed an Ex-Parte Notice of Motion, seeking an interim restraining order, prohibiting any transactions or dealings in the aforesaid property. An affidavit in support of the Ex-Parte Notice of Motion was again filed by the said Moira Konrote.

[4] When the matter was taken up for hearing on 9 December 2015, an application was made by the Counsel for the Applicant to file an amended Ex-Parte Notice of Motion, along with an amended affidavit in support of same. Court permitted this application.

[5] Accordingly, an amended Ex-Parte Notice of Motion, along with an amended affidavit in support of same, was filed on the same day.

[6] As per the affidavit filed by Moira Konrote in support of the Originating Summons, it is stated that the New Zealand Crown Law Office has requested the Attorney General's Office of the Republic of Fiji to assist in the enforcement and service of an order of the High Court of New Zealand restraining a real property registered in the names of the First and Second Respondents in Fiji.

[7] Annexed to the affidavit are the following documents:

1. Copy of the authority to proceed. This is in the form of a letter dated 27 November 2015, written by the Attorney General to the DPP, authorizing the application to be made to court for a restraining order against the property (marked A 1).
   
2. Copy of the letter of request, dated 15 October 2015, made by Mr. Brendan Horsley, Deputy Solicitor General, on behalf of the Attorney General of New Zealand. This letter requests the assistance of the appropriate authorities in Fiji in this matter (marked A 2).
   
3. Copy of the restraining order over the property, made by the High Court of New Zealand on 9 October 2015 (marked A 3).
   
4. Copy of the Certificate of Title of the property (marked A 4). It can be ascertained from the said Certificate of Title that the property was transferred in the names of the First and Second Respondents on 11 March 2011. On the same day, a mortgage has been registered in the name of the Third Respondent Bank.
   

[8] As per the amended affidavit filed in support of the amended Ex-Parte Notice of Motion, it is stated that the First Respondent has already been convicted and sentenced in New Zealand for committing an offence in terms of section 6(1)(a) of the Misuse of Drugs Act 1975. He is said to be currently serving his sentence in the Auckland Prison.

[9] In terms of Section 33 of the Mutual Assistance in Criminal Matters Act 1997 it is provided as follows:

Where-

(a) a criminal proceedings has commenced, or there are reasonable grounds to believe that a criminal proceedings is about to commence, in a foreign country in respect of a serious offence;

(b) there are reasonable grounds to believe that property that may be made or is about to be made the subject of a foreign restraining order is located in Fiji; and

(c) the foreign country requests the Attorney-General to obtain the issue of a restraining order against the property,

the Attorney-General may, in writing, authorise the Director of Public Prosecutions to apply to the Court for a restraining order under the Proceeds of Crime Act 1997 against that property in respect of the offence.

[10] In terms of section 45 of the Proceeds of Crime Act 1997 an interim restraining order may be made in respect of a foreign serious offence

(1) Where the Director of Public Prosecutions is authorised, under the Mutual Assistance in Criminal Matters Act 1997, to apply for a restraining order under this Act against any property of a person in respect of a foreign serious offence, the Director of Public Prosecutions may apply for the order accordingly....

[11] In terms of Section 3 of the Mutual Assistance in Criminal Matters Act 1997, a "serious offence" has been defined as an offence for which the maximum penalty prescribed by law is death, or imprisonment for not less than 12 months.

[12] These proceedings have been instituted in terms of the above legal provisions. Having perused the documents filed in this application, I am of the view that this is an appropriate case for granting of an interim restraining order as prayed for in the amended Ex-Parte Notice of Motion, and the amended affidavit filed in support.

[13] In terms of Section 45 (2) of the Proceeds of Crime Act 1997 an interim restraining order made in respect of a foreign serious offence ceases to have effect at the end of the period of 30 days commencing on the day on which the order is made.

[14] Accordingly, I make the following orders

ORDERS

1. An interim restraining order is granted prohibiting any transactions and dealings in the following property:
   

Certificate of Title No. 39964,

Lot 30, DP 10178, Naisosovu,

Ba District, Viti Levu.

2. The said interim restraining order will be effective until the 10th day of January 2016.
   

Dated this 11th day of December 2015, at Suva.

Riyaz Hamza
JUDGE
HIGH COURT OF FIJI