Namatak v Public Prosecutor (No. 2) [1986] VULawRp 5; [1980-1994] Van LR 280 (1 October 1986)

[1980-1994] Van LR 280

IN THE COURT OF APPEAL OF
THE REPUBLIC OF VANUATU

Appeal Case No. 3 of 1986 (No. 2)

BETWEEN:

JONAH ROBERT NAMATAK
Appellant

AND:

PUBLIC PROSECUTOR
Defendant

[No. 2]

Coram: Williams and Amet JJ

Counsel: Mr G Rissen for appellant
Mr Dickenson, Public Prosecutor

JUDGMENT

[CRIMINAL LAW - JUDGMENTS AND ORDERS - restitution - jurisdiction]

The Appellant Jonah Robert Namatak was convicted of fourteen (14) counts of theft and given a sentence ranging from three (3) years to the highest being ten (10) years, all to be served concurrently. He was a public officer employed by the Government as a cashier to the Tafea Local Government. His duties were to collect revenue on behalf of the Government and to pay salaries and certain items on behalf of the Government. From time to time he was sent money from Vila through the Vanuatu Savings Bank which he received, for the various payments that had to be made. He was convicted of stealing the total sum of 6.700.000VT between October 1984 and April 1985, on 12th December, 1985.

In the course of police investigation certain sums of money recovered from the possession of the appellant were retained by the police and another sum standing to his credit in the Vanuatu Savings Bank was frozen, and four motor vehicles were also retained by the police. The learned trial judge, at the conclusion of the trial, upon conviction and sentence only "ordered that all such items be retained by the police pending the outcome of an appeal by the accused," he having indicated through counsel that he would appeal.

The Court of Appeal confirmed the order of the trial judge relating to the sums of money and the motor vehicles and further directed that in relation to the money and goods in the Appellant's possession, the Prosecution must if it sought restitution, apply to the Supreme Court for any orders in relation thereto. This was contained in the Court of Appeal Judgment dated 4th March, 1986. Subsequently, the Public Prosecutor filed a Notice of Application of orders thereto, on 18th April, 1986, before the Supreme Court.

The learned Chief Justice made two orders on 2nd May, 1986 in relation to the sums of money and the motor vehicles. It is from these two orders of the Chief Justice that this appeal has been brought.

The Chief Justice ordered that the sum of 220.837VT standing to the credit of the Appellant in the Vanuatu Savings Bank shall be paid into Central Government Revenue by way of part restitution of the money stolen by the Appellant. Secondly, in respect of 25.100VT taken from the Appellant's possession on his arrest and 364.817VT recovered from trading houses, also after his arrest, should also be paid into Central Revenue as part restitution. And finally, it was further ordered that four motor vehicles, a Landrover T14, a mini bus T177, an Hilux T153 and a Corolla T200, be forfeited to the State, as having been purchased partly with some of the money stolen.

Mr Rissen for the Appellant had relied upon two main grounds in his submissions that the learned Chief Justice had erred in making the orders now appealed against. First, it was submitted that the Chief Justice, having failed to make any orders in the first instance at the time of conviction and sentence, and the matter having gone on appeal, did not have jurisdiction to entertain the application and make the orders he made. Secondly, it was strongly contended that even if the Chief Justice in the Supreme Court had jurisdiction, he erred in granting the orders on the basis he purported to make them, in that there was no evidence then before the learned Chief Justice, or in the original trial that, the sums of money ordered to be restituted to the State were part of the money found to have been stolen by the Appellant. It was submitted also that there was no evidence before the learned Chief Justice either at the time of the application or in the original trial "that part of the money stolen by the accused was used for the purchase of the said vehicles."

Mr Dickinson, for the Respondent, submitted that the Supreme Court in the first instance did have jurisdiction to make orders for restitution and forfeiture, even after conviction and sentence had been passed, pursuant to powers granted under Section 199 of the Criminal Procedure Act. It was whether the money and the trucks belonged to the appellant; it was not essential to prove that the money was part of the money stolen nor that the vehicles were bought with part of the stolen money. Reliance was placed upon section 108 of the Criminal Procedure Act to the end that it need only be proved that money or other property were taken from the appellant or any other person upon that persons arrest, and that said money or property belonged to that person. Thus Mr Dickinson submitted that the only issue was whether the sums of money and the vehicles belonged to the appellant, it not being contested that they were taken from either his physical possession or legal possession.

The learned Chief Justice made two Orders, one in respect of the two sums of money and the second in respect of the four motor vehicles.

Mr Dickinson submitted that there is no dispute that the sums of money taken from the physical possession of the appellant and from the trading houses were his money. It is also sufficiently clear that money held to the credit of the appellant in a savings account is the appellant's money. Some small doubt might have existed about the ownership of the motor vehicles, but it was submitted there was ample evidence to conclude that, notwithstanding that some of the vehicles were registered in other peoples names, they were in fact owned and operated by the appellant.

It is our view that the Supreme Court, sitting in the first instance does have jurisdiction and power, to make restitution or forfeiture orders in respect of any property taken from a person charged and arrested with an offence, pursuant to sections 108 and 109 of the Criminal Procedure Act, notwithstanding that it is sometime after conviction and sentence had been passed. We are also satisfied that there was sufficient evidence upon the trial to satisfy the learned Chief Justice that the sums of money and the motor vehicles were the property of the appellant and were taken from his possession. In this instance, however, the learned Chief Justice did not believe that the appellant bought the motor vehicles out of the Waisisi Local Community Association funds, but that part of the stolen money was used to purchase the vehicles. This is implicit in paragraph 2 of the Chief Justices trial Judgment. We would agree with the learned Chief Justice's inferential conclusion that the vehicles were bought with part of the stolen money.

In the end result, we find the Supreme Court had jurisdiction to make the orders in the circumstances it did, that there was ample evidence before the Chief Justice on trial to conclude that the money and motor vehicles belonged to the appellant and the orders were properly made pursuant to sections 108 and 199 of the Criminal Procedure Act.

The appeal is therefore dismissed.

Dated at Port Vila this 1st day of October 1986.

MR JUSTICE WILLIAMS
MR JUSTICE AMET