Attorney General v Taino [2015] WSSC 21 (19 March 2015)

IN THE SUPREME COURT OF SAMOA
Attorney General v Toni Taino [2015] WSSC 21

Case name:	Attorney General v Toni Taino
Citation:	[2015] WSSC 21
Decision date:	19 March 2015
Parties:	ATTORNERY GENERAL (applicant) v TONI TAINO (respondent) male of Savalalo and Faleasiu.
Hearing date(s):	11 March 2015
File number(s):
Jurisdiction:	Civil
Place of delivery:	Supreme Court of Samoa, Mulinuu
Judge(s):	Chief Justice Sapolu
On appeal from:
Order:	- Application for a forfeiture order is dismissed.
Representation:	M T Lui and A Iati for applicant Respondent in person
Catchwords:	application for forfeiture order – disputed issues of fact -
Words and phrases:	“tainted property” – “proceeds of crime” – “instrument”
Legislation cited:	Proceeds of Crime Act 2007
Cases cited:	Attorney General v Magele Fiti [2014] WSSC 63 Commissioner of Police v Waters [2012] NZHC 2993
Summary of decision:

IN THE SUPREME COURT OF SAMOA
HELD AT MULINUU

IN THE MATTER: of an application for a forfeiture order pursuant to sections 14, 15 and 19 of the Proceeds of Crime Act 2007

A N D:

IN THE MATTER: of the Proceeds of Crime Act 2007.

BETWEEN

ATTORNEY GENERAL
Applicant

A N D

TONI TAINO male of Savalalo and Faleasiu.
Respondent

Counsel:
M T Lui and A Iati for applicant
Respondent in person

Hearing: 11 March 2015

Judgment: 19 March 2015

JUDGMENT OF SAPOLU CJ

Introduction

1. The respondent Toni Taino was charged with possession of narcotics, contrary to s.7 of the Narcotics Act 1967, which carries a maximum penalty of 14 years imprisonment. He pleaded guilty to the charge.
2. The summary of facts produced by the prosecution and confirmed by the respondent for sentencing purposes showed that as a result of a phone call from an informer, the police went to the house of one Toiloto at Fugalei which is beside the Toleafoa market on Friday 8 November 2013. When the police arrived at Toiloto’s house, they searched the house and found the respondent and a friend inside a room. A red packet of Pall Mall containing loose marijuana leaves estimated to yield five joints and $189 cash was found by the police inside the respondent’s pockets. The pre-sentence report showed that the respondent told the probation service that he had been a consumer of marijuana for several years and the marijuana leaves found on him by the police were given to him by his cousin who was a prisoner. As a consequence, the respondent was charged with possession of narcotics to which he pleaded guilty. On 4 August 2014, he was convicted and sentenced to 6 months imprisonment.
3. In my sentencing decision, I said that there have been several recent cases coming before this Court concerning the consumption and sale of marijuana from this same house of Toiloto beside the Toleafoa market at Fugalei. I am, therefore, satisfied that in the circumstances, the accused (the respondent) was in possession of the marijuana leaves for a commercial purposes, namely, selling them to the public. It appears from the well-prepared submissions of counsel for the applicant that they may have relied in part on this part of my sentencing decision in support of the application for a forfeiture order in respect of the $189 cash found on the respondent.
4. In addition, counsel for the applicant in their submissions rely on the affidavit of detective corporal Salale Salale who was not called as a witness in these proceedings. In that affidavit, the police officer deposes at paras 8, 11, and 12:
   • “8. Based on my investigations, I believe that the respondent is a seller of marijuana for commercial gain. I based this contention on the fact that his family is well known for the marijuana trade and this was not the first time the police have raided their residence over suspicion of marijuana. Not only that, the marijuana substances and the cash found in his pocket infers that he was receiving money from the marijuana substances that he possessed.
   • “11. This cash was found in the respondent’s pocket together with marijuana substances when the police searched him.
   • “12. I believe the cash listed in paragraph 7 of this affidavit were proceeds from the sale and /or distribution of marijuana substances found on the respondent”.
5. I have to say that in the trial of criminal or civil proceedings, the hearsay rule is strictly applied. When it comes to passing sentence in criminal proceedings, the hearsay rule is relaxed and hearsay evidence is often taken into account. This, however, does not mean that such hearsay evidence taken into account in the sentencing process would be admissible in the trial of subsequent civil proceedings by way of an application for a forfeiture order in respect of tainted property where there are disputed issues of fact. The rules of evidence regarding the admissibility of evidence would apply. The onus of proof is on the applicant and the standard of proof is on the balance of probabilities: s.80 of the Act.. Relevant matters admitted by the respondent at sentencing may be put to him during cross-examination in forfeiture proceedings to find out whether he still admits them and thus form part of the evidence for the applicant in support of the application for a forfeiture order.
6. In respect of the affidavit of detective corporal Salale Salale, that affidavit is largely based on hearsay and opinion evidence and perhaps that is the reason why the applicant did not call the police officer as a witness to produce his affidavit and be cross-examined on it by the respondent. In any event, the police officer, not being called as a witness to produce his affidavit and be cross-examined on it by the respondent, that affidavit does not form part of the evidence for the applicant. If the applicant had wanted to rely on evidence from detective corporal Salale Salale, he should have been called as a witness to give evidence and the respondent be given the opportunity to cross-examine him.
7. In the case of Attorney General v Magele Fiti [2014] WSSC 63, it was plain and obvious from the material before the Court that the property in question was tainted property. It was therefore not necessary to call any oral testimony. The argument was restricted to issues of law. In this case, there is a factual dispute as to whether the cash found on the respondent by the police is tainted property in the sense of being proceeds of crime. Evidence was therefore necessary to resolve that factual dispute whether the cash is proceeds of crime or not.
8. As already mentioned, the onus of proof is on the applicant and the standard of proof is on the balance of probabilities. Section 80 of the Act provides:

“(1) The applicant in any proceedings under this Act bears the onus of proving the matters necessary to establish the grounds for making the order applied for.

“(2) Except as otherwise provided in this Act, a question of fact to be decided by the Court, on an application under this Act, is to be decided on the balance of probabilities.”

9. With regard to the case of Commissioner of Police v Waters [2012] NZHC 2993 cited for the applicant, the respondents in that case, following a prolonged procedural history of the matter, failed to appear at the substantive hearing of the application by the Commissioner of Police for asset forfeiture orders under the Criminal Proceeds (Recovery) Act 2009 (NZ). Due to the non-appearance of the respondents, there was no hearing and the Court proceeded to deal with the matter by way of formal proof. That was the reason why the Court relied on the affidavit filed by the police in support of the application for asset forfeiture orders as the basis for granting by way of formal proof the forfeiture orders sought by the Commissioner of Police. The present case is different. Both the applicant as represented by counsel and the respondent appeared at the hearing and the hearing proceeded. The Court was therefore not required to proceed by way of formal proof and rely on an affidavit for formal proof.

The evidence

9. The applicant called no evidence and only the respondent and his wife gave evidence. According to the respondent, at the material time he was living at Faleasiu at his mother’s family. Other members of his family who were staying with him were his wife, mother, grandmother, younger brother, and sister. He was unemployed and stayed at home and looked after his sick and elderly grandmother. Since his grandmother passed away recently, he has been staying with his wife at his aunty’s family at Fugalei.
10. The respondent also said that his family’s only source of income is his wife’s poloka at the Toleafoa market at Fugalei where she sells coconuts, vegetables, and cocoa drinks during the week. On good days, his wife would earn more than $100, sometimes more than $200, from her poloka. On other days she would earn $80 or slightly more.
11. The respondent further said that on Friday 8 November 2013, he came to the Toleafoa market to see his wife for the money to do his family’s shopping. She gave him $150 to do their family’s shopping and for any money left over to be given to his mother. After he was given this money, he went to the nearby house of his aunty Lagi Toiloto who gave him some marijuana free. The respondent is a consumer of marijuana. It was while he was at his aunty’s house that the police arrived and found him there. The marijuana substances found by the police on him were the substances given to him by his aunty. The prosecution’s summary of facts which was admitted by the respondent at sentencing shows that these substances were estimated to yield five joints.
12. In relation to the money found by the police on him, the respondent said that apart from the $150 given to him by his wife for their family’s shopping and for his mother, the other monies were monies he had begged from friends and relatives. Under cross-examination, the respondent maintained and adhered to his evidence.
13. The evidence given by the respondent’s wife Sarona Tafao is essentially the same as the evidence given by the respondent. She said that her family’s only source of income is her poloka at the Toleafoa market at Fugalei where she sells coconuts, vegetable, and cocoa drinks during the week. She stays with the respondent’s aunty at Fugalei during the week and goes home at Faleasiu on Saturdays for the weekend.
14. The respondent’s wife also said that on good days she would earn more than $100 or even $200. On very good days, she would earn around $300. She further said that she had asked for her husband to come on the Friday in question to get the money to do their family’s shopping. When her husband came, she gave him $150 for their family’s shopping and for any money that is left over to give to his mother to buy anything else that is needed during the week. However, after she gave the money to her husband, he went first to her aunty’s nearby house where shortly afterwards she saw him being taken away by the police.
15. Even though there were some discrepancies between the evidence of the respondent and the evidence of his wife as to how the wife’s poloka is funded and the items food to be purchased with the money, their respective testimonies were essentially the same, particularly as to the amount and source of the money that was given to the respondent. The respondent’s wife also maintained her evidence under cross-examination.

The application for a forfeiture order

16. Section 14(1) (a) of the Proceeds of Crime Act 2007 provides that, if a person is convicted of a serious offence, the Attorney General may apply to the Court for a forfeiture order in respect of tainted property. In terms of the definitions of the expressions “serious offence” and “unlawful activity” in s.2 of the Act, the offence of possession of narcotics for which the respondent was convicted and sentenced would be a “serious offence” because it carries a maximum penalty of 14 years imprisonment.
17. The expression “tainted property” is defined in s.2 as:
    • “Tainted property” means the proceeds of crime or an instrument, whether the property is situated within or outside Samoa.
18. This definition of “tainted property” provides for two kinds of properties which can be classified as tainted property. These are proceeds of crime and an instrument. We are only concerned in these proceedings with the kind of tainted property which is proceeds of crime and not with an instrument as the term “instrument” is defined in s.2. What the applicant is claiming is that the $189 cash found by the police on the respondent were ill-gotten gains being the proceeds of crime derived or realised by the respondent from the sale of marijuana. This is denied by the respondent by saying that of the money found by the police on him, $150 was given to him by his wife for their family’s shopping and for his mother and the $49 was monies he had begged from friends and relatives. Thus, the gist of these proceedings is whether or not the cash found by the police on the respondent is tainted property in the sense of being proceeds of crime.
19. The s.2 definition of the expression “proceeds of crime” provides that “proceeds of crime” has the meaning given in s.6. In so far as relevant, s.6 provides:
    • “In this Act, ‘proceeds of crime’ means any property wholly or partly derived or realised, whether directly or indirectly from a serious offence ..., whether situated within or outside of Samoa, ...
20. Section 19 cited by counsel for the applicant then provides, in so far as relevant,:
    • “(1) If, upon application by the Attorney-General, the Court is satisfied that property is tainted property in respect of a serious offence of which a person has been convicted . . ., the Court may order that the property, or so much of the property as is specified by the Court in the order, be forfeited to the State.
    • (2) In determining whether property is tainted property, the Court may infer, in the absence of evidence to the contrary:
      1. (a) that the property was used in, or in connection with the commission of the offence, if the property was in the person’s possession or effective control at the time of, or immediately after the commission of the offence; and
      2. (b) that the property was derived, obtained or realised as a result of the person’s committing the offence –
         • (i) if the property (in particular, money) was found, during investigations before or after the person was arrested for and charged with the offence, in the person’s possession or under the person’s control in a building, vehicle, receptacle or place; or
         • (ii) if the property was acquired by the person before, during or within a reasonable time after the commission of the offence of which the person was convicted, and the Court is satisfied that the person’s income from sources unrelated to criminal activity cannot reasonably account for the acquisition of that property.
21. It appears from the definition of “proceeds of crime” in s.6, that there must be a link between the property claimed to constitute proceeds of crime and a serious offence. That is because s.6 provides that the proceeds of crime is property that is derived or realised, whether directly or indirectly, from a serious offence. Property that is not derived or realised, whether directly or indirectly, from a serious offence would not qualify as proceeds of crime.
22. Counsel for the applicant in their submissions are saying that the serious offence to which these forfeiture proceedings relates is the possession of narcotics by the respondent. The relevant property is the $189 cash. In terms of s.6, in order for the money found on the respondent to qualify as proceeds of crime, it will have to be shown by the applicant that the money was derived or realised, directly or indirectly, from the respondent’s being in possession of narcotics for that is the offence for which he was convicted. It is not easy to see how it can realistically be said that the money found by the police on the respondent was derived or realised, directly or indirectly, from the mere fact that the respondent was in possession of marijuana. It would have been relatively simple to draw that inference if the offence of which the respondent was convicted involved the selling of marijuana. The proceeds from the sale of marijuana would then be proceeds of crime.
23. I am also conscious of s.6 (3) which provides:
    • “(3) Property can be proceeds of crime even if no person has been convicted of the offence.”
24. Counsel for the applicant did not rely on s.6 (3). Perhaps, they have good reason for not doing so. Without expressing any conclusive view on the meaning of s.6 (3), it may be arguable that if the evidence in these proceedings had shown that the money was derived or realised by the respondent from selling marijuana, then even if he has not been convicted of such an offence, the Attorney General could still have brought proceedings for a forfeiture order in respect of the money as being proceeds of crime. However, there is no such evidence.
25. Furthermore, s.19 (1) speaks of property being “tainted property in respect of a serious offence of which a person has been convicted.” Here again, it is clear that there has to be a link between the property sought to be classified as tainted property and a serious offence. In other words, in these proceedings it would have to be shown that there is a link between the money found on the respondent and the offence of possession of narcotics of which he was convicted in the sense that the money is property derived or realised, directly or indirectly, from that offence.
26. Section 19 (2) then provides that in the absence of evidence to the contrary, the Court may draw certain inferences from the specified circumstances. In this case, there is evidence to the contrary provided by the respondent and his wife to resist the inference being drawn in terms s.19 (2) (b) that the money found by the police in the respondent’s possession was property that was derived, obtained, or realised as a result of the commission of the offence of possession of narcotics.

Discussion

27. The real difficulty with the application for a forfeiture order is that the onus of proof is on the applicant in terms of s.80 but the applicant called no evidence to discharge that onus. Only the respondent and his wife gave evidence. That evidence shows that the sum of $150 found by the police on the respondent was given to him by his wife from the earnings at her poloka in the market to do the shopping for their family and any money left over to be given to his mother. The other $49 were monies the respondent said he begged from his friends and relatives. On that evidence, it cannot be said that the $189 cash is proceeds of crime in terms of s.6, being property derived or realised from the offence of possession of narcotics for which the respondent was convicted. It is not ill gotten gains.
28. I am also of the view that the absence of a third party application from the respondent’s wife for relief from forfeiture should not count against the respondent. It is not mandatory on the respondent’s wife to make such an application under s.21. I am also certain that the respondent’s wife, and even the respondent for that matter, would not be aware of the existence of the Proceeds of Crime Act 2007 or of what is a third party application for relief from forfeiture under s.21. . The issue here, as I see it, is squarely between the applicant who claims that the money found by the police on the respondent is proceeds of crime and the respondent who claims that it is not. This is at the core of these proceedings. The respondent gave evidence and called his wife as a witness to show that the money was not the proceeds of crime and therefore not tainted property.

Result

29. The application for a forfeiture order is dismissed.

Honourable Chief Justice