N11611

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

OS (POCA) NO 5 OF 2025

IN THE MATTER OF SECTION 31 AND OTHER RELATED PROVISIONS OF THE PROCEEDS OF CRIME ACT 2022

BETWEEN
ACTING PUBLIC PROSECUTOR
Plaintiff

AND
KATHY PITZZ
Defendant

WAIGANI: BERRIGAN J
10, 14, 17, 18, 25 NOVEMBER 2025

PROCEEDS OF CRIME ACT – APPLICATION FOR RESTRAINING ORDER - Section 31, Proceeds of Crime Act, 2022 – Whether entire proceedings frivolous vexatious, oppressive, an abuse of process and incompetent  - Whether applications for restraining orders may stand on their own in an originating summons – Whether objection to final relief in the form of forfeiture premature – Whether application prejudicial to the defendant’s rights under s 37 of the Constitution – Whether proceedings in contradiction of orders made in related criminal proceedings – Application to dismiss the entire proceeding dismissed. 

PROCEEDS OF CRIME ACT – APPLICATION FOR RESTRAINING ORDER - Section 31, Proceeds of Crime Act, 2022 – requirements – principles considered.

PROCEEDS OF CRIME ACT - Section 31, Proceeds of Crime Act, 2022 – Whether affidavit in support inadmissible or unreliable – Whether defendant charged with an indictable offence – Whether defendant suspected of committing an indictable offence - Whether property suspected of being subject to the defendant’s effective control or tainted property – Whether suspicions held on reasonable grounds – Application granted.

PROCEEDS OF CRIME ACT – Applications for restraining orders – Shall be heard ex parte upon request of Public Prosecutor – Confidentiality and Offences Applying. 

The Acting Public Prosecutor applied for a restraining order pursuant to s 31 of the Proceeds of Crime Act 2022.  An affidavit was filed by a police officer in support stating that he suspected that the defendant committed offences of obtaining monies by false pretence and misappropriation on the basis that the defendant entered into an agreement to sell ten parcels of land owned by Singaut Contractors Ltd, of which the defendant was the sole director and shareholder, to the Royal Papua New Guinea Constabulary. Despite payment of K1,827,600 by the RPNGC to Singaut Contractors Ltd between October 2015 and March 2016 pursuant to the agreement, as of 2021 title searches at the Department of Lands and Physical Planning established that Singaut Contractors Ltd remained the registered title holder of the property. The defendant applied to have the entire proceedings dismissed for being frivolous, vexatious, an abuse of process and incompetent and otherwise opposed the restraining order. 

Held 

(1)	An application for a restraining order under the Proceeds of Crime Act 2022 may stand on its own in an originating summons or may be brought in an originating summons also identifying the final relief sought.

(2)	It is premature to argue that the relief sought under s 62 of the Proceeds of Crime Act 2022 cannot succeed. There is both a legal and a factual basis for the relief sought. The defendant has not yet been convicted but she has been charged, committed by the District Court and is awaiting trial at the National Court on indictable offences. 

(3)	The proceedings are not frivolous, vexatious, oppressive or improper. They do not constitute an abuse of the Court’s process. The APP is entitled to bring the proceedings pursuant to her powers under the POCA and the proceedings are properly before the Court. The proceedings do not prejudice the defendant’s rights under s37 of the Constitution. They are not brought in contradiction of orders made in the criminal proceeding. 

(4)	The defendant has been charged with a number of indictable offences. A police officer suspects that the defendant committed the offences and that the property to be restrained is subject to the effective control of the defendant and is tainted property. The officer holds those suspicions on reasonable grounds.

Held
Notice of motion to dismiss the entire proceedings dismissed.
Application for restraining order granted.

Cases cited
Bros Rugby Football Club Inc v Port Moresby Rugby Football Union Inc (2004) N2537 
Central Banking (Foreign Exchange and Gold) Regulations (Chapter 138), Re [1987] PNGLR 433
Public Prosecutor v Property (Cash) in the Sum of K400,150.00 (2021) N11481
Acting Public Prosecutor v James (2025) N11483 
The State v Paul Paraka (Decision on Admission of Bank Records) (2022) N9568 George v Rockett (1990) 170 CLR 104
Acting Public Prosecutor v Yan (2025) N11582

Counsel
T Kametan for the plaintiff
M Liu for the defendant

DECISION

1.	BERRIGAN J: This is a decision on a contested application for a restraining order.

2.	The Acting Public Prosecutor (APP) commenced proceedings by way of originating summons against Kathy Pitzz seeking orders for restraint and forfeiture of specified property (namely, ten real properties described as State Lease Volume 28 Folio 29 situated at Section 315 Allotments 25 to 35 Hohola, National Capital District) pursuant to ss 31 and 62 of the Proceeds of Crime Act 2022 (POCA), respectively.

3.	On 10 November 2025 the APP sought to move a motion seeking orders that “pursuant to s 31 the property… not be disposed of otherwise dealt with by any person without the prior written consent of the Plaintiff or until further order”. 

4.	The hearing was to proceed ex parte at the APP’s request pursuant to s 35(2) of the POCA which provides that an “application for a restraining order shall be heard ex parte if the Public Prosecutor requests the Court to do so”.

5.	Despite this and the confidentiality requirements and offences prescribed under s 20 of the POCA, counsel for the defendant became aware of the matter and appeared at the hearing, matters which I will return to below. 

6.	The APP withdrew the request to proceed ex parte and agreed to an adjournment for the service of documents. The APP sought a further adjournment when the matter returned following the filing of notices and related documentation by the defendant, including:

a)	notice of objection to affidavit pursuant to s 35(2) of the Evidence Act filed 14 November 2025; and 
b)	notice of motion to dismiss the entire proceedings filed 14 November 2025.

7.	All motions, objections and the APP’s application were heard together. 

MOTION TO DISMISS ENTIRE PROCEEDINGS 
8.	The defendant seeks orders that pursuant to Order 12 Rule 40(1)(b) and (c) of the National Court Rules the entire proceedings be dismissed for being:

a)	frivolous and vexatious; and
b)	an abuse of the process of the Court and incompetent. 

9.	There are numerous contentions.

Competency 

10.	The originating summons seeks orders, including:

1.	Pursuant to section 35(2) of the Act that leave be granted to the Plaintiff to make the application for order 2 herein ex parte.

2. Pursuant to section 31 of Act the property specified in the schedule herein (“the property”) must not be disposed of or otherwise dealt with by any person without the prior written consent of the Plaintiff or until further order.

3. Subject to section 57 of the Act, this order shall operate until further.

4. Pursuant to section 62 the property be forfeited to the Independent State of Papua New Guinea (“the State”).

5. Pursuant to section 68 of the Act an order specifying the value of the property forfeited.

6. Pursuant to section 69(1) of the Proceeds of Crime Act 2022 an order giving any directions necessary or convenient to give effect to any forfeiture order made in respect of the property.

7. Pursuant to section 218(2) of the Proceeds of Crime Act 2022 the Commissioner of Police on behalf of the State as soon as practicable take custody and control; of the property after the property is forfeited.

11.	As I understand it, the defendant contends that paragraph 4 of the originating summons, which seeks forfeiture under s 62 of the POCA, is the only primary or substantive relief sought in the originating summons. Paragraphs 2 and 3, which seek restraining orders, are interlocutory in nature and therefore consequential and cannot stand on their own. She relies on Bros Rugby Football Club Inc v Port Moresby Rugby Football Union Inc (2004) N2537 for that proposition. 

12.	Furthermore, that s 62 only applies upon conviction. Whilst there is no dispute that the defendant is currently before the National Court awaiting trial on criminal charges she has not yet and may not be convicted. As such there is no legal or factual basis for the primary relief sought under s 62 and the entire proceeding cannot be sustained and must be dismissed for being frivolous, vexatious, an abuse of process and incompetent ab initio.

13.	Similarly, the restraining order, as an interlocutory order, cannot stand on its own in the originating summons.

Consideration 
14.	In interpreting the statutes of Papua New Guinea the matters contained in ss 109(4) and 158(2) of the Constitution are to be given paramount consideration: Central Banking (Foreign Exchange and Gold) Regulations (Chapter 138), Re [1987] PNGLR 433; Kidu CJ, Kapi DCJ, Amet J. Section 158(2) requires that in interpreting the law the courts “shall give paramount consideration to the dispensation of justice”. In doing so under s 109(4), “Each law made by the Parliament shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the law according to its true intent, meaning and spirit, and there is no presumption against extra-territoriality.” 

15.	It may be that the principles upon which the defendant relies apply generally to civil proceedings but applications under the POCA are governed by that Act. 

16.	In considering this issue it is useful to bear in mind that the primary purpose of the POCA is to ensure that a person does not profit from their crime.

17.	To this end the POCA creates a confiscation scheme under which property may be forfeited to the State or a person may be required to pay a pecuniary penalty to the State.  In anticipation of this the Act also provides for the making of restraining orders, the purpose of which is to preserve property for the purpose of satisfying any confiscation order ultimately made. (A confiscation order is a forfeiture order or a pecuniary penalty order: s 3.)

18.	Restraining orders may be sought where a person has been convicted, charged or is to be charged with an indictable offence; or where a person is suspected of committing a serious offence; or where the property is suspected of being the proceeds of an indictable offence: ss 31, 32 and 33 respectively. Restraining orders may even be granted in respect of property that is yet to be acquired: see for instance s 31(6).

19.	In general terms, there appear to be three main provisions upon which forfeiture may be ordered, that is: under s 62 upon the conviction of a person of an indictable offence regardless of whether or not a restraining order is in place; under s 63 on satisfaction that a person engaged in conduct constituting a serious offence which formed the basis of a restraining order which has been in place for six months; and under s 64 on satisfaction that property covered by a restraining order that has been in place for six months is the proceeds or an instrument of an indictable offence even if the person who committed the offence cannot be identified. 

20.	Property that has been restrained may also be used to satisfy a pecuniary penalty order in a range of different circumstances which may not be foreseeable at the time the restraining order is applied for: see for instance s 39(3); 57(4).  

21.	It follows that the POCA both envisages and in some cases requires (for instance under ss 63 or 64) that applications for restraining orders are brought before what the Act refers to as “final” relief in the form of a confiscation order is available.  At the same time the Act allows an originating summons to seek both the restraining order and the final confiscation order. 

22.	In this regard s 59 of the Act expressly provides that:

59.         CONFISCATION ORDER.
To avoid doubt, if an originating summons specifying that the final relief sought is a confiscation order has been filed and served, then there is deemed to be an application for a confiscation order before the Court.

23.	An application is simply “any process by which such proceedings are commenced or matters are brought before the Court under any Act, rules of Court or any other law, and includes an originating summons and a notice of motion”: s 3.  

24.	If what the defendant submitted was correct then no application for a restraining order could ever be made or usefully made.

25.	In the case of an application for forfeiture under s 62 a restraining order could not be sought until conviction, by which time the proceeds of the crime or any assets to meet a pecuniary penalty might well have been disposed of.  Similar arguments would also apply with respect to orders under ss 63 or 64, such that the final relief could not stand in the originating summons until the restraining order had been in place for six months and the restraining order could not be sought on its own in the meantime. That sort of reasoning would clearly defeat the purposes of the Act. 

26.	It also appears to me that whilst s 59 permits the filing of originating summons in anticipation of “final” relief, it is not the case that an originating summons must specify the “final relief” before an application for a restraining order may be brought under the Act. That appears from the use of the word “if” in s 59 and from the fact that the Act envisages that the PP may ultimately apply for forfeiture, or automatic forfeiture, or pecuniary penalty under different provisions in a range of different circumstances which might only be known at the time the relevant application is made. 

27.	For instance, the PP might initially apply for a restraining order under s 31 and a forfeiture order under s 62. Given the purpose of the POCA, I do not see why in the event that the person is not convicted the PP might not apply for forfeiture under s 63 on the basis that the person (or some other person) has committed a serious offence to the civil standard, provided a restraining order has been in place with respect to the same property for at least six months. Or why the PP might not seek to have the property forfeited to the State pursuant to s 64 on the basis that the property is the proceeds of crime even if it is not possible to identify the person who committed the offence, provided again that a restraining order in respect of the property has been in place for six months. Or it might be that a pecuniary penalty is also sought because the forfeited property is not sufficient to cover the value of the benefit finally determined under the Act. 

28.	To expect the PP to be able to identify in an originating summons at the time they seek a restraining order, often required on an urgent basis to preserve property, the basis upon which they will seek forfeiture in every case, would frustrate the operation of the Act. To expect the PP to plead every possible alternative in such circumstances to protect the State’s position would also serve no useful purpose.  

29.	To give a simple example, assume that a large amount of gold is found in a shipping container bound for overseas without approval for export but the owner cannot be identified. The property might be immediately restrained on the basis that it is reasonable to suspect that it is the proceeds of an offence but by the time the PP seeks forfeiture of it any number of variables might have transpired. A person might have been convicted in relation to the property in PNG, or investigations may reveal that the person responsible has committed a foreign indictable offence, or might in fact be overseas, or cannot be identified at all. Those matters will only be known once an investigation is conducted.  

30.	Where, however, the PP does identify the final relief sought in an originating summons, then s 59 deems the application to be before the Court. 

31.	In this regard whilst the POCA allows for amendment of forfeiture and pecuniary penalty applications in certain circumstances it expressly allows for additional applications to be brought after earlier ones have been finally determined: see 71 and 105.  In addition, if more than one application is made under the Act that concerns the same property or the same conduct or alleged conduct, evidence adduced in an earlier application may be relied upon in a later application if the evidence is otherwise admissible: s 260(5).

32.	It is clear from these provisions that the proceedings under the Act are not governed by the same rules that apply generally in civil proceedings regarding amendment, multiplicity of proceedings, and so forth but with a view to ensuring that the State is able to recover the proceeds of crime. 

33.	In summary, it is my view that whilst the POCA envisages that applications for restraining orders may be brought in the same originating summons seeking final relief in the form of forfeiture or pecuniary penalty, applications for restraining orders may also stand or be brought on their own in an originating summons without the need for the originating summons to apply for or identify the “final” relief.

34.	In addition, it is premature to argue that the relief sought under s 62 cannot succeed in this case. There is both a legal and a factual basis for the application. The defendant has not yet been convicted but she has been charged, committed by the District Court and is awaiting trial at the National Court on indictable offences. 

Prejudicial to the defendant’s rights under s 37 of the Constitution 

35.	The defendant submits that the hearing and determination of this matter by this Court is prejudicial to her rights under s 37 of the Constitution to be afforded a fair hearing within a reasonable time by an independent and impartial court in the criminal proceedings against her, CRFC No 45 of 2025 State v Kathy Pitzz, for the following reasons, and that the Court should not have allowed the proceedings to be brought: 

a.	The hearing and determination of this matter by the same judge and upon the documentary evidence that will likely be presented at the trial of CR (FC) 45 of 2025, is prejudicial to the Defendant’s right to afforded a fair hearing by an impartial court;
b.	The commencement of this proceeding is prejudicial to the Defendant’s right to be afforded a fair trial within a reasonable time as it likely will cause further delay in the trial of the criminal proceedings;
c.	The Defendant is being made to defend this civil proceeding in addition to the criminal proceeding CR(FC) 45 of 2025, which is still it the pre-trial stage, consequently the Defendant has and will incur greater costs;
d.	If the Court grants the restraining orders sought by the Plaintiff, it will be detrimental to the Defendant’s defence in CR(FC) 45 of 2025, in that:
i.	The granting of restraining orders will further incriminate the Defendant, in circumstances where the Defendant has earlier proposed to the Plaintiff that parties agree to consent orders that effectively grant the same relief that is being sought by the State i.e., the property becoming vested in the State;
ii.	The fact that restraining orders are on foot may be used by the prosecution to support their case against the Defendant in the trial of CR(FC) 45 of 2025;
iii.	The issuance of a restraining order will weaken the Defendant’s defence that she acted on an honest claim or right has never prevented the RPNGC from taking possession of the properties. While in fact the titles to the property were given to the RPNGC in early-2016 and since then the RPNGC has failed to liaise with the Lands Department to have the appropriate Certificate Authorising Occupancy issued (as per the Police HUB) and the RPNGC has failed to complete the conveyancing process to formally acquire the properties.

Consideration

36.	The proceedings are not frivolous or vexatious. They are not oppressive or an abuse of process. They are the result of the APP exercising her lawful powers under the POCA. There is nothing to suggest that the proceedings have been brought for an improper purpose. For obvious reasons criminal proceedings and related proceedings under the POCA will often be on foot at the same time.

37.	The defendant is not “being made to defend” the proceedings. The decision to resist an application for a restraining order made with notice, or challenge an order made without notice, is a matter for a defendant, or any person claiming an interest in a property, and success on their part would normally entitle them to costs. 

38.	The proceedings do not “further incriminate” the defendant. The fact that a restraining order, if granted, is on foot does not strengthen the State’s case at trial nor does it weaken the defendant’s proposed defence of honest claim of right. The trial will be determined on the evidence before it. 

39.	The State declined the opportunity to cross-examine the defendant. I don’t see why the State might not rely on any evidence filed by the defendant in these proceedings on the trial, including any admissions, but the decision to file that evidence was a decision by the defendant. 

40.	 The hearing and determination of this matter by the same judge upon documentary evidence that will likely be presented at the trial is not of itself prejudicial to defendant’s right to be afforded a fair hearing by an impartial court. The practice and procedure, the rules of evidence, and the standard of proof are very different on a criminal trial. 

41.	The present application is for a restraining order under s 31. It is available on satisfaction that a police officer holds certain suspicions on reasonable grounds. As below, it is not necessary for the Court to hold the suspicions only to be satisfied that there are reasonable grounds for them.  In addition, the material that the APP relies on in this case is limited in nature. Moreover, those materials are not in any real dispute, as will also be seen below. 

42.	As for the trial, it is yet to commence. Any question of apprehended bias in the criminal matter can be considered if and when required.

43.	Finally, these proceedings will not prejudice the defendant’s right to a trial within a reasonable time. The defendant was committed to the National Court this year and her criminal proceedings are at the pre-trial stage. Pre-trial statements have been filed and the matter is awaiting allocation of a trial date together with other matters in the CRFC list. If the matter is to be allocated to another judge it will be dealt with accordingly. 

Proceedings are in contradiction of orders of 10 November 2025 
44.	At the mention of the criminal matter, CRFC 45 of 2025, on 10 November 2025, defence council informed the Court that he had written to the APP seeking that she decline to lay a charge pursuant to s 525 of the Criminal Code. The Court directed the matter to return on 15 December 2015 for mention as part of the pre-trial and listings process with other matters, at which time the State was also directed to inform the Court of its position.  

45.	It appears that the Registry made these proceedings returnable at 930 am on 10 November 2025. I sat for the matter at 130 pm. 

46.	The defendant submits that the Court’s decision to hear these proceedings is in contradiction of its own directions in the criminal matter given earlier the same day. It would be proper to determine whether the criminal proceedings will go ahead first. If not these proceedings will be affected. If they will the defendant can properly prepare her defence.

Consideration
47.	The direction in the criminal proceedings was made in the interests of efficient case management. The State has filed its pre-trial review statement and in general terms that is a sufficient basis upon which to assume that the matter will go ahead. Given that representations had been made to the APP, however, the direction was given to confirm that the State would proceed to trial before allocating trial dates which might otherwise go to other matters. 

48.	As for the suggestion that it was “contradictory” on the part of the Court to adjourn the criminal proceeding and then proceed to hear the application for restraint on the same day, the submission is misconceived. 

49.	The criminal proceedings and these proceedings, whilst related, are nevertheless separate and distinct. 

50.	In addition, whilst the CRFC is responsible for managing criminal fraud and corruption matters, it is also responsible under the Criminal Practice Rules 2022 for dealing with certain applications including those made under the POCA: Order 4, rule 10. The Rules currently refer to the POCA, 2005 but it must inevitably follow by implication that, subject to any conflict, the rules also apply to the POCA 2022.  

51.	It is also the case that an application for a restraining order may be time sensitive: see s 36(4) POCA. 

52.	Moreover, the APP requested that this application be heard ex parte and the Court is bound to hear it on that basis if requested to do so under s 36(5) which provides that the Court “shall consider the application without notice having been given if the Public Prosecutor requests the Court to do so”.

53.	In the event that a restraining order is issued without notice then the PP is obliged to give notice to any person who has an interest in the property unless otherwise ordered: s 42, POCA, in which case such a person may apply for revocation: s 41. 

54.	I also reject the suggestion that these proceedings are in contradiction of the orders in the criminal matter because the APP is spending time on these proceedings instead of assessing the defendant’s request for a declaration in the criminal matter. There is no basis for such a submission and the APP is required to manage the matters brought by her office.  

55.	In summary, the proceedings are not improper or oppressive. They are not frivolous or vexatious. They do not constitute an abuse of the Court’s process. The APP is entitled to bring the proceedings pursuant to her powers under the POCA and the proceedings are properly before the Court.  The notice of motion to dismiss the entire proceedings is dismissed.

APPLICATION FOR RESTRAINING ORDER UNDER SECTION 31 OF THE PROCEEDS OF CRIME ACT, 2022
56.	The application for a restraining order is made under s 31 POCA:

31.         RESTRAINING ORDERS ON PEOPLE CONVICTED OF, OR CHARGED WITH INDICTABLE OFFENCES.
(1)   The Court shall order that -
(a)   property must not be disposed of or otherwise dealt with by any person; or
(b)   property must not be disposed of or otherwise dealt with by any person except in the manner and circumstances set out in the order; and
(c)   the Public Prosecutor applies for the order; and
(d)   a person has been convicted of, or has been charged with, an indictable offence, or it is proposed that he be charged with an indictable offence; and
(e)   the requirements of Subsection (3), have been met; and
(f)     the Court is satisfied that the police officer who made the affidavit mentioned in Subsection (3), holds the suspicion or suspicions mentioned in the affidavit, on reasonable grounds.
 
(2)   The order must specify, as property that must not be disposed of or otherwise dealt with, the property mentioned in the application for the order, to the extent that the court is satisfied that there are reasonable grounds to suspect that the property is any one or more of the following -
(a)   all or specified property of the suspect; or
(b)   all property of the suspect other than specified property; or
(c)   specified property of another person (whether or not that other person's identity is known) that is subject to the effective control of the suspect; or
(d)   specified property of another person (whether or not that other person's identity is known) that is tainted property.
 
(3)   The application for the order must be supported by an affidavit of a police officer stating -
(a)   if the suspect has not been convicted of an indictable offence - that the police officer suspects that the suspect committed the offence; and
(b)   if the application is to restrain property of a person other than the suspect that the police officer suspects that -
(i)           the property is subject to the effective control of the suspect; or
(ii)         the property is tainted property; and
(c)   the grounds on which the police officer holds the suspicions.
 
(4)   Despite Subsection (l ), the Court may refuse to make a restraining order in relation to an indictable offence that is not a serious offence if the Court is satisfied that it is not in the public interest to make the order.
 
(5)   The Court shall make a restraining order even if there is no risk of the property being disposed of or otherwise dealt with.
 
(6)   The Court may specify that a restraining order covers property that is acquired by the suspect after the Court makes the order, but if the Court does not make that specification in the order, property acquired by the suspect after the Court makes the order is not covered by the order.	

57.	In summary, the Court shall order that property, 

must not be disposed of or otherwise dealt with by any person, except in the manner and circumstances set out in the order, if:

a)	a person has been convicted of, or has been charged with, an indictable offence, or it is proposed that he be charged with an indictable offence; and
b)	the application is supported by an affidavit by a police officer stating that:
i.	if the suspect has not been convicted of an indictable offence - the police officer suspects that the suspect committed the offence; and
ii.	if the application is to restrain property of a person other than the suspect that the police officer suspects that:
(1)	the property is subject to the effective control of the suspect; or
(2)	the property is tainted property; and
iii.	the grounds on which the police officer holds the suspicions;
c)	the Court is satisfied the police officer holds the suspicions on reasonable grounds, and

to the extent that the Court is satisfied that there are reasonable grounds to suspect that the property is any one or more of the following:

(a) all or specified property of the suspect;
(b) all property of the suspect other than specified property; 
(c) specified property of another person (whether or not that other person's identity is known) that is subject to the effective control of the suspect; and
(d) specified property of another person (whether or not that other person's identity is known) that became tainted property.

58.	The Court shall make a restraining order even if there is no risk of the property being disposed of or otherwise dealt with: s 31(5).

Objection to the affidavit of Senior Inspector Lucas Muka  

59.	The defendant objects to the affidavit in support of Senior Inspector Lucas Muka of the National Fraud and Anti-Corruption Directorate sworn 31 October 2025.
 
60.	SI Muka’s affidavit is 25 paragraphs long. All but four paragraphs are objected to. The suspicions stated by SI Muka are objected to on the basis that they are “hearsay and/or speculation”, “hearsay and/or speculation and/or submissions and/or conclusions”. The grounds for the suspicions are objected to on the basis that they are based on hearsay.  It is further contended that SI Muka is not the appropriate person to adduce the information or documentation upon which he relies and which has been provided to him by the investigating officer, that he has not stated how he came into possession of the documents, or why the investigation officer was unable to give the affidavit himself.

61.	Counsel submits that as was seen in the case of Public Prosecutor v Property (Cash) in the Sum of K400,150.00 (2021) N11481, “the unfettered acceptance and reliance of hearsay evidence by the Plaintiff and the Court, can result in the Court being misled intentionally or unintentionally by police officers”. 

Consideration 

62.	The POCA, and in particular s 31(3) for present purposes, expressly provides and in fact requires that the application is supported by a police officer stating that he suspects certain matters. 

63.	A suspicion is by its very nature conjecture, surmise or opinion albeit held on some factual basis. 

64.	As outlined in Acting Public Prosecutor v James (2025) N11483 at [19] to [21], where a statute prescribes that there must be “reasonable grounds” for a state of mind, it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person. It is not necessary for the court to entertain the relevant suspicion or belief itself. It is only necessary for it to be satisfied that there are reasonable grounds for entertaining the suspicion or belief. The State v Paul Paraka (Decision on Admission of Bank Records) (2022) N9568 at [110 to 113] adopting George v Rockett (1990) 170 CLR 104 at [7] and [8].

65.	Suspicion is a “state of conjecture or surmise where proof is lacking” or a “slight opinion without sufficient evidence”: The State v Paul Paraka (Decision on Admission of Bank Records), supra, adopting George v Rockett (1990) 170 CLR 104 at [14], citing Shaaban bin Hussien v Chong Fook Kam [1970] AC 942, 948 and Queensland Bacon v Rees (1966) 115 CLR 266, 303. There must, however, be some factual basis for the conjecture, surmise or opinion: George v Rockett at [14]. 

66.	A suspicion is of a lower standard than a belief as to which the High Court in George v Rockett said at [14]:

“The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.”

67.	This is to be distinguished from the burden of proof required where the Court is required to decide a question of fact, which must be decided on the balance of probabilities: s 260(1).

68.	As to whether there are reasonable grounds for the suspicion, s 276 of the POCA expressly provides that an application for a restraining order may be made on the basis of hearsay evidence:

276.      HEARSAY IN APPLICATIONS FOR RESTRAINING ORDERS OR INTERIM RESTRAINING ORDERS.

To avoid doubt, an application for a restraining order or an interim restraining order may be made by the Public Prosecutor on the basis of hearsay evidence and the Court can be satisfied that the suspicion of the police officer is held on reasonable grounds even if it is based on hearsay evidence.

69.	The Court retains a discretion as to whether to accept the hearsay evidence or what weight to give it. 

70.	None of this is surprising when the purpose of a restraining order is considered, which is to preserve property so that it can be used to satisfy any future confiscation orders. 

71.	It is for this reason that restraining orders may be time sensitive, must be heard ex parte upon request and may be granted without being satisfied that there is risk of dissipation.

72.	I did not issue the restraining order in Public Prosecutor v Property (Cash) in the Sum of K400,150.00 as suggested by counsel, it was Salika DCJ (as he then was), and to suggest that it was based on “unfettered” reliance on hearsay is misconceived.  Both the Court and the PP were entitled to rely on the police officer concerned. The officer’s failing was to proceed on the word of a colleague in the particular circumstances of the case. It may be sufficient in other cases. It will depend on the case at hand. It was a unique case and the key point was that the defendant was entitled to the costs of the proceedings upon their withdrawal by the PP. The case bears no resemblance to this one. 

73.	There is no requirement for the investigating officer in a criminal proceeding to depose an affidavit in related POCA proceedings, regardless of whether or not he is available.  Depending on which provision restraint is being sought under there may not even be an investigating officer in a criminal proceeding at the time the order is sought under the POCA.

74.	The suggestion that the APP or the police officer concerned in this case has demonstrated a lack of due diligence is also without merit. 

75.	In his affidavit SI Muka states the suspicions he holds under s 31 and sets out in some detail the grounds for those suspicions, including how he obtained the information, namely from the investigating officer in the criminal proceedings against the defendant, together with the documentary material provided, which he attaches to his affidavit, which comprises correspondence, general expense forms, IPA and land title records, which moreover, are not in any real dispute.  

76.	The objections to the affidavit are refused.

77.	I turn now to the questions raised under s 31.

Has a person been convicted of or charged with an indictable offence, or is it proposed that they will be charged with an indictable offence?

78.	The defendant has not been convicted but there is no dispute that she has been charged with several “indictable offences” (as defined under s 3 of the POCA), namely three counts of obtaining goods by false pretence and one count of misappropriation contrary to s 404(1)(a) and s 383A(1)(a)(2)(d) of the Criminal Code, respectively: s 31(1)(d) applied.

Is the application supported by an affidavit by a police officer stating that he suspects that the suspect committed the offence, which suspicion is held on reasonable grounds?

79.	In his affidavit SI Muka states that he suspects that the defendant has committed the offences and sets out the grounds upon which he holds the suspicion.  

80.	In short it is alleged that the defendant entered into an agreement to sell ten parcels of land owned by Singaut Contractors Ltd, of which the defendant was the sole director and shareholder, to the RPNGC. Despite payment of K1,827,600 by the RPNGC to Singaut Contractors Ltd between October 2015 and March 2016 pursuant to the agreement, as of 2021 title searches at the Department of Lands and Physical Planning established that Singaut Contractors Ltd remained the registered title holder of the property. 

81.	The defendant has filed an affidavit in which she confirms that she is the sole director and shareholder of Singaut Contractors Ltd, that the monies were paid to and received by her company for the purchase of the properties by the RPNGC, and moreover, that the company “is the proprietor of the real properties which are the subject of this proceeding”. 

82.	In addition, the defendant through her lawyers, wrote to the APP on 12 November 2025 proposing consent orders for the purpose of ensuring that the properties are transferred to the RPNGC as well as seeking to have the criminal proceedings against her discontinued. 

83.	It appears that the defendant does not maintain a claim over the properties personally or through her company. 

84.	The defendant is entitled to challenge the suspicion that she committed the offences. She does so on the basis that the District Court refused to commit her husband, Dominic Kakas, a former police officer, to the National Court for the same charges. That is really beside the point as far as the defendant’s own criminal responsibility is concerned. 

85.	She also relies on correspondence from the Secretary for the Department of Lands & Physical Planning to the Police Commissioner in 2021 stating that the transaction had concluded, that what remained was for the Department of Lands to vest the parcels in the RPNGC by Certificates of Occupancy and asking the Commissioner to direct his Building Directorate to liaise with the appropriate division within the Department, together with a subsequent direction by the Commissioner to his officers to action the request.  

86.	Those materials may be very relevant on the criminal trial but they are not sufficient to displace the reasonable grounds upon which the suspicion that the defendant committed the offences is held in these proceedings. On one view the fact that those directions were necessary in 2021, or that despite those directions the titles remain registered to her company some four years later, might strengthen the suspicion. 

87.	Defence counsel’s submission from the bar table that the registered title holder may have been changed since 2021 contradicts his own client’s evidence and does not exclude criminal liability at an earlier time in any event. 

88.	Accordingly, I am satisfied that the officer holds the suspicions that the defendant committed the alleged offences of which she has been charged on reasonable grounds. 

Is the application supported by an affidavit by a police officer stating that he suspects that the property is property of the suspect; or the property of another person subject to the effective control of the suspect; or tainted property for the purposes of s 31(3), which suspicions are held on reasonable grounds?

89.	It is contended that that there are no reasonable grounds to suspect that the properties are subject to the defendant’s effective control. RPNGC has effective control. It completed payment for the properties. The owner’s copies of the titles are with the RPNGC. The defendant did not prevent the RPNGC taking control of the properties. The properties have been vacant since 2016 and the RPNGC can take possession.

90.	Section 5 provides guidance as to the meaning of “effective control”. 

5.             EFFECTIVE CONTROL.
(1)   Property may be subject to the effective control of a person whether or not the person has-  
(a)   a legal or equitable estate or interest in the property; or
(b)   a right, power or privilege in relation to the property.
 
(2)   Property that is held on trust for the ultimate benefit of a person is taken to be under the effective control of the person.
 
(3)   However, if a person has one of two or more beneficiaries under a discretionary trust, the following undivided proportion of the trust property is taken to be under the effective control of the person - l/number of beneficiaries
 
(4)   If property is initially owned by a person and, within five years either before or after an application for a restraining order, interim restraining order or a confiscation order is made, disposed of to another person without sufficient consideration, then the property is taken to be under the effective control of the first-mentioned person.
 
(5)   In determining whether or not property is subject to the effective control of a person, regard may be had to:
(a)   shareholdings in, debentures over or directorships of a company that has an interest (whether direct or indirect) in the property; and
(b)   a trust that has a relationship to the property; and
(c)   family, domestic, business and other relationships between persons having an interest in the property, or in companies of the kind referred to in Paragraph (a), and other persons.
 
(6)   To avoid doubt, property may be subject to the effective control of more than one person.	

91.	I am satisfied that SI Muka suspects that the properties are subject to the effective control of the defendant through her company of which she is sole director and shareholder.  I am satisfied that he holds the suspicions on reasonable grounds having regard to the searches conducted in 2020. As above, it does not appear to be in dispute that the defendant’s company is still the registered title holder of the properties only that she is not responsible for that fact. 

92.	In addition, the officer says that the property is tainted property. Tainted property means: a) proceeds of an offence and b) an instrument of an offence: s 3, POCA.  In summary, property is "proceeds" of an offence if it is wholly or partly derived or realised, whether directly or indirectly, from the commission of the offence. Property is an "instrument" of an offence if it is used or intended to be used in, or in connection with, wholly or in part, the commission of an offence: s 6; Acting Public Prosecutor v Yan (2025) N11582 at [37].

93.	I am satisfied that there are reasonable grounds to suspect that the specified property is proceeds of the alleged offences, such that it is the benefit that the defendant’s company derived from the commission of the suspected offences and the failure to transfer registration of the titles to the RPNGC following payment. 

Are there reasonable grounds to suspect that the property is all or specified property of the suspect; or the specified property of another person that became tainted property for the purposes of s 31(2)?

94.	I repeat the findings above. 

Undertakings as to costs and damages

95.	Before making a restraining order, the Court may require the State to give an undertaking about the payment of damages or costs, or both, in relation to the making and execution of the order: s 48, POCA. The undertaking is given by the Attorney-General. None is provided at this stage and none was sought. 

96.	Given that the defendant does not maintain any claim over the property herself or on behalf of her company there is no need for any undertaking. 

EX PARTE HEARING

97.	I am concerned that defence counsel became aware of the application for the restraining order given that the APP had expressly requested in the materials that it be heard ex parte pursuant to s 35(2), POCA.

98.	There are very good reasons for that protection, the most obvious being to preserve the property the subject of the application. It may also be important to protect the confidentiality of ongoing investigations, the names of informants or other sources of information as well as police operational matters or investigative techniques generally. 

99.	Accordingly, the POCA creates offences attracting severe penalties under s 20 for both officers of relevant authorities, like the Registry, who directly or indirectly disclose the information other than in the performance of their functions and those to whom the information is disclosed if the disclosure is not made in the performance of the person's official duties.

100.	The Criminal Practice Rules further provide that the Court “shall determine an application at a hearing which may be in private if a Judge finds it necessary or expedient in accordance with s 37(13) of the Constitution and may be conducted in or without the presence of the applicant”: Order  4, rule 11, which appears to allow for applications to be heard in ex parte in camera, or in the presence of or without the applicant in chambers, in appropriate cases. Similarly, the Court may direct that a written application be kept in such manner as will preserve secrecy: Order 4, rule 14.

101.	It is still not clear to me how or from which Registry counsel was informed of the matter. Ignorance is no excuse but given that there have been very few applications to date and the confidentiality requirements and related offences might not have been well understood, I will proceed on the basis that the disclosure was made inadvertently to counsel upon enquiry by him about filings in relation to his client albeit the application was not filed in the criminal proceedings against his client. 

102.	I will raise these matters with the Registrar to ensure that arrangements are in place to avoid similar disclosures in the future.  

CONCLUSION

103.	There is no dispute that the defendant has been charged with a number of indictable offences. I am satisfied that the officer suspects on reasonable grounds that the defendant committed the offences. I am further satisfied that the officer suspects on reasonable grounds that the property to be restrained is subject to the effective control of the defendant and is tainted property. 

104.	The APP seeks orders that the property not be disposed of or dealt with “without the prior written consent of the Plaintiff or until further order”. No basis has been provided for the APP to have any such power and I see no reason for it. 

105.	I make the following orders.

ORDERS

(1)	Pursuant to section 31 of the Proceeds of Crime Act 2022 the property specified in the schedule must not be disposed of or otherwise dealt with by any person until further order.

(2)	Subject to section 57 of the Act, this order shall operate until further order.

(3)	Time is abridged. 

(4)	The defendant shall pay the costs of the Plaintiff on a party-party basis to be taxed if not agreed.

Schedule

i.	Real property identified as State Lease Volume 28 Folio 29 situated at Section 315 Allotment 25 Hohola, National Capital District.

ii.	Real property identified as State Lease Volume 28 Folio 29 situated at Section 315 Allotment 26 Hohola, National Capital District.

iii.	Real property identified as State Lease Volume 28 Folio 29 situated at Section 315 Allotment 27 Hohola, National Capital District.

iv.	Real property identified as State Lease Volume 28 Folio 29 situated at Section 315 Allotment 29 Hohola, National Capital District.

v.	Real property identified as State Lease Volume 28 Folio 29 situated at Section 315 Allotment 30 Hohola, National Capital District.

vi.	Real property identified as State Lease Volume 28 Folio 29 situated at Section 315 Allotment 31 Hohola, National Capital District.

vii.	Real property identified as State Lease Volume 28 Folio 29 situated at Section 315 Allotment 32 Hohola, National Capital District.

viii.	Real property identified as State Lease Volume 28 Folio 29 situated at Section 315 Allotment 33 Hohola, National Capital District.

ix.	Real property identified as State Lease Volume 28 Folio 29 situated at Section 315 Allotment 34 Hohola, National Capital District.

x.	Real property identified as State Lease Volume 28 Folio 29 situated at Section 315 Allotment 35 Hohola, National Capital District.
_______________________________________________________________
Lawyer for the plaintiff:			Acting Public Prosecutor
Lawyers for the defendant:	Tumul Legal