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Attorney General v Faisauvale [2011] WSSC 56 (24 June 2011)

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

BETWEEN:

THE ATTORNEY GENERAL
Applicant

AND:

TAGALOASA FILIPAINA FAISAUVALE
Respondent

Presiding Judge: Justice Slicer

Counsel: L Su'a and G Patu for applicant
T S Toailoa for respondent

Hearing: 14 December 2010, 11 January and 16 June 2011
Judgment: 24 June 2011

JUDGMENT OF THE COURT

1. The Attorney General seeks orders that property held or owned by the Respondent be forfeited to the State in accordance with the Proceeds of Crimes Act 2007 ("the Act") Sections 14, 15 and 19.
   
2. The circumstances and events giving rise to the Application have been set out in my Reasons for Judgment published on 11 June 2010 and Sentencing Decision on 16 July 2010. A subsequent appeal against conviction and sentence was dismissed by the Court of Appeal.
   
3. Filipaina had been convicted of crimes involving the possession of narcotics, a firearm and ammunition. The finding was that the offender was involved in the commercial operations of cultivation and distribution of marijuana.
   
4. At the time of his Application, Filipaina's accompanying wife was searched and the pistol and a large amount of money found with the Respondent's bankbook found in her handbag. Filipaina agreed at trial that he had withdrawn a large amount of money but claimed that it was for a legitimate purpose. The Court did not accept his explanation. The money was associated with narcotic sales either as change or payment for work or services provided or repayment for earlier transactions.
   
5. The Act Section 14 relevantly permits the Attorney to apply for:
   

"(a) a forfeiture order against tainted property; and

(b) a pecuniary penalty order against the person for benefits derived by the person from the commission of the offence."

6. A serious offence is defined by Section 2 as including:
   

"an offence:

(a) against any law of Samoa that would constitute unlawful activity..."

7. The Act Section 15 provides for the requirement of notice to the offender and in some circumstances the Court may require the Attorney:
   

"3(a) to give reasonable written notice of the application to any person who, in the opinion of the Court, appears to have an interest in the property..."

8. The Court had no reason to bring subsection 3(a) into operation.
   
9. The Respondent was given proper notice and in accordance with the Act Section 15(s) appeared and adduced evidence at the hearing.
   
10. Tainted property is defined by Section 2 as:
    

"...proceeds of crime or an instrument."

11. The Court finds, as a fact, on the evidence provided at trial and on this hearing, that the sum of $1,322 was tainted.
    
12. The money was for use in the dealing with a narcotic either as:
    
    • (a) a portion received by sales; or
    • (b) a portion (withdrawn from the Respondent's bank account) for the payment of others or as change or repayment for existing transactions.
      
13. The sum of $1,322 is forfeited to the State.
    
14. A different conclusion is reached in relation to the Jeep cargo truck Registered No. 1424. The vehicle was manufactured and imported into Samoa in 1997. It was first registered on 2 May 2007. The original owner Judy Seumanutafa disposed of the vehicle some few years later. Filipaina purchased the vehicle.
    
15. Evidence of his bank statements for the period 2007 – 2009 does not assist the Attorney on the issue of forfeiture. He was arrested in August 2008. He had owned the vehicle for some time before his commercial involvement in narcotics which led to his conviction or at least the Attorney has not shown the contrary.
    
16. The Attorney contends that its use was used in the distribution of cannabis as stated by Tafiga Taupuna or the surveillance evidence given by police combined with the significant amounts of money deposited in the Respondent's bank account permit the Court to declare the 'instrument' tainted.
    
17. But there is insufficient evidence to show that the vehicle was purchased with 'the proceeds of criminal activity'.
    
18. The Act Section 28 requires that a pecuniary penalty may be imposed 'if the Court is...satisfied that the person has benefited from the offence.' There is no evidence that the vehicle was a benefit obtained through the offence.
    
19. The Attorney did not rely on Section 28 as a basis for the Order. Section 6 limits the meaning of proceeds of crime. It does not apply to an object or instrument used in the commission of a crime.
    
20. The Application for confiscation or forfeiture of the Cherokee Jeep Registered No. 1424 is dismissed.
    

ORDERS

(1) The sum of $1,322 is forfeited to the State of Samoa.

(2) The Application for the forfeiture of the Cherokee Jeep Registered No. 1424 is dismissed and is to be returned to the Respondent or a person authorised by him in writing to take possession of the vehicle.

________________________
JUSTICE SLICER