Kotobalavu v State [2015] FJHC 678; HAM83.2015 (21 September 2015)

IN THE HIGH COURT OF FIJI
AT LAUTOKA
MISCELLANEOUS JURISDICTION

CRIMINAL MISCELLANEOUS CASE NO: HAM 83 OF 2015

BETWEEN:

MALAKAI KOTOBALAVU
APPLICANT

AND:

STATE
RESPONDENT

Counsel : Applicant in person
Ms. L. Latu for Respondent

Date of Ruling : 21st September 2015

Ruling on Property Seized

1. The Applicant is seeking the release of property seized from his custody on his arrest by the Police on 30th May 2010.
   
2. The State is objecting to the application on the ground that the property seized comprises proceeds of crime.
   
3. The Applicant with another was charged in the Criminal High Court Case 53 of 2010 with one count of Aggravated Robbery contrary to Section 311 (1) (a) of the Crimes Decree No. 44 of 2009.
   
4. The State had filed Nolle Prosequi on 19th November 2014 and discontinued proceedings since the Complainant, a Chinese national had left the country.
   
5. The State has filed an affidavit of the Investigating Officer, Cpl. Kini Namoumou to support its assertion that properties claimed by the Applicant comprise proceeds of crime.
   
6. The Investigating Officer's assertion is founded on two grounds.
   
   1. The complainant's statements given to Police on 30th May 2010 and on 6th June, 2010identifying part of the property seized as stolen property.
      
   2. Applicant's own statement given in the cautioned interview.
      
7. The Applicant had not claimed the property when he was interviewed by the Police on 31st May 2010. In his cautioned interview, he had admitted his involvement in the alleged offence.
   
8. The Applicant has not furnished any material evidence to substantiate his claim that he is entitled to the property seized by Police.
   
9. Section 155of the Criminal Procedure Decree states as follows:
   

(1) It shall be lawful for any court in any criminal proceedings to make orders for—

(c) the restoration or awarding of possession of any such property or thing to the person appearing to the court to be entitled to possession of it, without prejudice to any civil proceedings which may be taken in relation to it;

10.The Applicant has failed to satisfy that he is entitled to the property he is now claiming.

11. Section 31 of the PROCEEDS OF CRIME ACT, 1997 deals with return of property seized by Police on a search warrant. Although the claimed property had not been seized by Police under a search warrant in the present case, the Court can still be guided by procedure laid down in the Act.

(1) Where property has been seized under this Division (otherwise than because it may afford evidence of the commission of an offence), a person who claims an interest in the property may apply to the Court for an order that the property be returned to the person.

(2) Where a person makes an application under subsection (1) and the Court is satisfied that:

(a) the person is entitled to possession of the property;

(b) the property is not tainted property in relation to the relevant offence; and

(c) the person in respect of whose conviction, charging or proposed charging the seizure of the property was made has no interest in the property, the Court shall order the Commissioner to return the property to the person and the Commissioner shall arrange for the property to be returned.

12. The Applicant had not been acquitted in the Aggravated Robbery case. He had only been discharged. The property seized may afford evidence of the commission of an offence.

13. The Applicant has failed to satisfy this Court that he is entitled to the property seized.

14. For the reasons given above, Application is rejected and dismissed.

Aruna Aluthge
Judge

At Lautoka
21st September 2015

Solicitors: Applicant in Person
Office of the Director of Public Prosecutions for Respondent