Public Prosecutor v Kaltabang [1986] VULawRp 7; [1980-1994] Van LR 211 (24 January 1986)

[1980-1994] Van LR 211

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

CRIMINAL JURISDICTION

Criminal Case No. 22 of 1985

BETWEEN:

PUBLIC PROSECUTOR

AND:

KALMET KALTABANG

Coram: Chief Justice

Counsel: Mr G Rissen for defendant

JUDGMENT

[CRIMINAL LAW - CONSTITUTIONAL LAW - restitution]

This is an application by the Public Prosecutor for an Order of Restitution in connection with frozen accounts belonging to the Defendant in the above case. Mr Rissen, the Public Solicitor, appeared for the Defendant.

The Public Prosecutor outlined the facts stating that the application arose out of the trial of the Defendant in the Supreme Court on the 12th June 1985 before Mr Justice Williams, when the Defendant was charged as follows:-

First charge: That between the 30th April 1984 and 14th March 1985, in Vila, stole the sum of 5,000VT, the property of the Government of Vanuatu contrary to section 125 (a) of the Penal CodeAct, 1981.

Second charge: That between 1st January and 14th February 1985, in Vila, stole the sum of 10,000VT the property of the Government of Vanuatu, contrary to section 125 (a) of the Penal CodeAct of 1981, and

Thirdly: That between 1st January and 14th February 1985, in Port Vila, stole a sum of money, quantity unknown, the property of the Government of Vanuatu, contrary to section 125 (a) of the Penal Code Act 1981.

The Defendant pleaded guilty to the three charges and was sentenced to nine months (9 months) on each count. The sentences to be consecutive. (Two years and three months altogether).

The Public Prosecutor submitted that when the police were investigating the case, they applied to the learned Senior Magistrate, under the Bankers Book Evidence Act, for an Order for inspection, which was granted on the 3rd May 1985, in each of the Banks in Port Vila in an attempt to ascertain whether the Defendant had lodged money in any account, which he had with either of the Banks. In due course, as a result of the Order, photocopies of accounts found their way to the Public Prosecutor but when the case was heard before Williams J. no reference was made to the said Order but he said it was clear to him that the accounts were not used as a repository for the stolen money, at least, he said it did not appear to be so as the Defendant said he spent all the money.

The Public Prosecutor said he only became aware of one account with the ANZ Bank which amounted to 2,662VT but recently had his attention drawn to the sum of 41,522VT in the Hong Kong Bank when the Public Solicitor requested that the said sum of 41,522VT in the Hong Kong Bank be released to the Defendant.

The Public Prosecutor has made this application to the Court because I refused to allow the money to be released until I heard arguments by both Counsel whether such release should be allowed. The Public Solicitor did make some comments that such procedure was improper but I totally reject his submission as I consider it right and proper that the Court should be satisfied that money in an account belonging to the Defendant who admitted stealing money from the Government while being employed by them, should in fact be either released to the Defendant or whether a restitution order should be made against all money found in accounts in Banks in his name. Money was admitted stolen and it is, in my opinion, the duty of this Court to carefully examine the matter and certainly not release money found in an account of the Defendant which could be credited to Government revenue by way of restitution for some of the money stolen.

The Public Prosecutor referred me to section 199 of the Criminal Procedure Code as an authority for the Court to put right what the Court may have done wrong or more particularly left undone. In my opinion, the section has a wide meaning sufficient to do such and can be used in this case to allow the Court, even at this late stage, to make an order of restitution. The Public Prosecutor connected the aforesaid section with section 108 of the Criminal Procedure Code which reads:

"108. Where, upon the arrest of a person charged with an offence, any property is taken from him, the Court before which he is charged may order-

• (a) That the property or a part thereof be restored to the person who appears to the Court to be entitled thereto, and, if he be the person charged, that it be restored either to him or to such other person as he may direct; or
• (b) That the property or part thereof be applied to the payment of any fine or any costs or compensation directed to be paid by the person charged."
  

He, Mr Dickinson, submitted that section 28 (1) (c) of the Theft Act 1968 in England was a parallel section to our section 108 and being such, he referred to the case of R v Ferguson (1970) 2 A.E.R. p. 820 C.A. In that case, on the 24th April l968, an armed gang robbed a Securicor van of £40,000. Two days later, the appellant was arrested and charged with the offence. On the 7th May 1968, the police went to a store where the appellant had had a safe deposit box since January 1968 and appropriated the contents of the box, £2,000, as the suspected proceeds of theft. At the trial, the appellant's evidence was given that the safe deposit had not been opened between the date it had been deposited at the store and the appellant's arrest, and could not, therefore, have contained part of the proceeds of the robbery. The appellant contended that the £2,000 was not proceeds of any theft but belonged to his mistress who had asked him to look after it for her. The appellant was convicted, and at the conclusion of the trial a restitution order was made under section 28 (1) (c) of the Theft Act 1968 and that the £2,000 found in the safe deposit box should be handed over to Securicor. On an appeal against the making of the restitution order, it was held that the £2,000 from the safe deposit was money which was 'taken out of (the appellant's) possession on his apprehension' within the meaning of section 28(1)(c) of the Theft Act 1968, but the issue had clearly been raised by the appellant that the money belonged to his mistress and not to him, and there were no documents or any other evidence given at the trial to show beyond a reasonable doubt that the money did belong to the appellant; accordingly the order would be set aside.

In this case, the money is held in two banks in the sole name of the Defendant. The Public Solicitor did not contend that the money belonged to anyone else. He, the Public Solicitor, did mention that he had only a short period of time to prepare his arguments in this matter. I did suggest to him that I could adjourn the proceedings to give him more time but he declined. I therefore must accept that the money in the two banks belongs to the Defendant. The principles to be followed in considering whether or not the discretion to make the Order of restitution should be exercised are set out in Stamp v. United Dominions Trust (Commercial) Ltd (1967) 1 A.E.R. p. 251. That case was decided under section 45 of the Larceny Act 1916 which gave similar powers to make orders of restitution to those contained in section 28 of the Theft Act 1968 and our section 108 of the Criminal Procedure Code.

Salmond J said that "If there is any doubt at all whether the money or goods in question belong to a third party, the criminal courts are not the correct form in which that issue should be decided. It is only in the plainest cases, when there can be no doubt that the money belonged to the convicted man, that the Court would be justified in exercising its discretion in making an Order for Restitution".

I am satisfied from the statement of accounts that the money belongs to the Defendant and he alone. The Public Solicitor before me never attempted to even suggest that the money belonged to anyone else.

In the case of Stamp v. United Dominions Trust (Commercial) Ltd, a person had possession of a motor car as hirer under hire purchase agreement made in March 1965 and in June 1965, when the hire purchase instalments were still running, he sold it to the appellant.

It was held that the justices had a discretion whether to make the restitution order and in the present case their order should stand, particularly as their finding that the appellant was not a purchaser in good faith precluded him from maintaining a claim under section 27(2) of the Hire Purchase Act 1964.

Wedgery J stated that the submissions made by Counsel for the appellant fell into two main groups. In the first instance, that the justices had no jurisdiction to make the restitution order, either because there were third parties involved, or because, if they had jurisdiction to make a restitution order at all, they should have made it on the occasion when the defendant was convicted, namely in October 1965, and not on February 10th l966, some six months later.

After setting out the jurisdiction to make the restitution order Wedgery J stated at page 254-

"It is unnecessary in my judgment to do more than point out that within the section itself one finds in sub-section (3) that it is clearly contemplated that a restitution order may be made although the goods have left the possession of the principal offender and have gone into the hands of a third party. Not only is there a positive internal indication that the section applies in that way, but there is certainly nothing to the contrary in any of the three subsections to which I have referred, and in my judgment there is no substance whatever in the submission of Counsel for the appellant that the justices lacked jurisdiction to make the order of this kind merely because the goods in question have ceased to be in the possession of the offender whose conviction made the making of the order possible.

Equally, as it seems to me, there is no substance in the other submission of Counsel for the appellant that the jurisdiction of the magistrates was dependent on their making their order on the day when the conviction was entered, and as part, as it were, of those proceedings. It is true that section 45 contemplates that restitution orders shall sometimes be made in a summary form, and no doubt frequently will be made at the close of the prosecution itself. Here, however, the matter having been raised at that time, the justices took the step of adjourning in order to give the third party an opportunity of being heard, and I can see nothing at all in the section to indicate that that was wrong."

In this case, the attention of the Public Prosecutor was drawn recently to the fact that a substantial sum of money was in the account of the Defendant in the Hong Kong Bank and quite properly, in my opinion, has even at this late stage applied for a restitution order against not alone that money in the Hong Kong Bank, but also a small sum in the ANZ Bank in the account of the Defendant. As our section 108 is a parallel section to section 28(1)(c) of the Larceny Act 1968 and as it was held in the Ferguson case that restitution was permissible, I so hold that restitution is also permissible in this case. Even if section 108 of the Criminal Procedure Code does not possess a wide definition to allow me to make a restitution order, I hold that article 45(1) of the Constitution permits me to determine the matter according to substantial justice and I rule that substantial justice in this case would be the making of an order of restitution considering the amount of money stolen by the Defendant. Lastly, I am of the opinion that section 108 of the Criminal Procedure Code, if the power is not therein contained, can be altered and adapted under section 44(2) of the Courts Regulation 1980, as necessary, under my inherent power to make the said order of restitution.

I therefore allow the application of the Public Prosecutor and order that the Defendant make restitution to the amount of money now standing in the accounts in his name with the ANZ and Hong Kong Bank, to the Government of Vanuatu. I further Order that the said banks do pay the amount in the said accounts forthwith to the Government of Vanuatu.

24 January 1986

FREDERICK G. COOKE
CHIEF JUSTICE