Attorney General v Filipaina [2012] WSCA 1 (31 May 2012)

Court of Appeal of Samoa

Attorney General v Filipaina [2012] WSCA 1

Case name: Attorney General v Filipaina

Citation: [2012] WSCA 1

Decision date: 31 May 2012

Parties: Attorney General and Tagaloasā Filipaina

Hearing date(s): 25 May 2012

File number(s): CA 06/11

Jurisdiction: Criminal

Place of delivery: Mulinuu

Judge(s):

Honourable Chief Justice Sapolu

Honourable Justice Baragwanath

Honourable Justice Fisher

On appeal from:

Order:

Representation:

P Chang and L Taimalelagi for appellant

T S Toailoa for respondent

Catchwords:

Words and phrases:

“tainted property”

“instrument”

Legislation cited:

Cases cited:

([2010] WSCA 8]).

Summary of decision:

IN THE COURT OF APPEAL OF SAMOA

HELD AT MULINUU

C.A. 06/11

BETWEEN:

THE ATTORNEY GENERAL

Appellant

AND:

TAGALOASA FILIPAINA FAISAUVALE

Respondent

Coram:

Honourable Chief Justice Sapolu

Honourable Justice Baragwanath

Honourable Justice Fisher

Counsel:

P Chang and L Taimalelagi for appellant

T S Toailoa for respondent

Hearing: 25 May 2012

Judgment: 31 May 2012

JUDGMENT OF THE COURT

Introduction and result

1. This Court has sustained convictions of the respondent on charges of possession of cannabis, possession of an unlawful pistol and two counts of unlawful possession of ammunition ([2010] WSCA 8]). The Attorney General thereafter sought orders under the Proceeds of Crime Act 2007 forfeiting as “tainted property” cash of $1,322 and a Jeep cargo truck Registered Number 1424 owned by the respondent. The Supreme Court made such order in relation to the cash but declined it in relation to the vehicle. For reasons that follow we allow the Attorney General’s appeal and order forfeiture of the Jeep.

The facts

2. On 8 August 2009 police officers were travelling to execute a search warrant at the respondent’s vegetable cropping and brick-making property at Vaitele. Seeing the Jeep parked outside a shop at Fugalei they found the respondent sitting in the driver’s seat. In the space between that seat and the passenger’s seat was a small bag lying on the brim of a hat which the respondent had been wearing earlier that morning when he met his wife at a bank and withdrew $800. The bag contained the unlawful ammunition. The respondent’s wife came to the car holding a handbag which the police searched. It contained the respondent’s bankbook together with the $1,322 cash and the pistol loaded with ten bullets.
3. The police drove on to the respondent’s Vaitele property where his nephew was seen to throw into bushes what was found to be a plastic bag containing 99 smaller “deal bags” and 5.6 grammes of cannabis. The respondent tried to bribe a police officer to place the blame on the nephew.
4. There was a coincidence of factors:

(1) The respondent having just withdrawn $800 from the bank used his wife’s handbag as a receptacle for his bankbook and that sum plus a further $500;

(2) He was in possession of cartridges in the Jeep in which his wife would be carrying his bankbook and money on his behalf;

(3) The large number of deal bags and cannabis suggested he was engaged in unlawful drug dealing;

(4) The possession of large sums of money needed to pay suppliers and unlawful pistols to threaten against other criminals and sometimes the police are a familiar adjunct to drug dealing.

5. We concluded it was open to the Supreme Court Judge, Slicer J, to find as he did that the physical control of the loaded pistol was, like that of the bankbook and money, on behalf of the respondent. So he was rightly convicted of unlawful possession of the pistol and its cartridges.

The legislation

6. Section 19 of the Proceeds of Crime Act provides that where the Court is satisfied on proper application that property is tainted property in respect of a serious offence of which a person has been convicted, it may order that the property, or so much of it as is specified in the order, be forfeited to the State. The offences of which the respondent was convicted are “serious offences” (s2).
7. “Tainted property” is defined as “proceeds of a crime or an instrument...”; “instrument” in relation to property means “the property”:

(a) is used in, or in connection with, the commission of a serious offence; or

(b) is intended to be used or in connection with, the commission of a serious offence” (s2).

Supreme Court decision

8. The Supreme Court found that the Jeep was not the proceeds of a crime and dismissed the application but without going on to consider the extended definition of “tainted property”.

Discussion

9. The respondent argued that the Jeep was intended to be used simply as a mere receptacle of the items for possession of which he was convicted and was not itself intended to be used to commit any offence and that the appeal should therefore be dismissed.
10. We are however satisfied that the Jeep was clearly “intended [by the respondent] to be used in or in connection with, the commission of a serious offence” namely the unlawful possession of the pistol and cartridges (in the course of its carriage for protection of such dealing).
11. It follows that the Jeep is tainted property and liable to forfeiture.
12. Counsel for the respondent argued that the Jeep is of negligible value. It must follow that no issue arises as to forfeiture of only part of the value of the Jeep.
13. We therefore allow the appeal and order forfeiture of the Jeep to the State of Samoa.
14. We further order the respondent to pay costs of $1,000 to the appellant.
    

Honourable Chief Justice Sapolu

Honourable Justice Baragwanath

Honourable Justice Fisher