The Prosecutor-General has
appealed against the decision of the High Court declining to make a forfeiture
order in respect of certain assets that the Prosecutor-General (the PG) contends
were proceeds of unlawful activities. The PG had earlier successfully applied
for a preservation of property order in respect of the property that she sought
to be forfeited. In the application for a forfeiture order, the PG did not
attach the affidavits filed in support of the preservation application to her
forfeiture application affidavit. Instead, she incorporated those affidavits
and annexures by reference.
The High Court
held that it was not permissible for the PG to rely on affidavits deposed to in
the preservation application without annexing those affidavits to her affidavit
in support of the forfeiture application. The court concluded that as the
evidence of the PG was based on hearsay, there was no admissible evidence
establishing that the preserved assets were proceeds of unlawful activities.
In the Supreme
Court, the PG argued that the High Court erred in failing to appreciate that
the preservation application and the forfeiture application are two sides of
the same coin. As the evidence required in each application is essentially the
same, it was not necessary to attach documents filed in respect of the
preservation application to the affidavit supporting the forfeiture
application.
The Supreme
Court held that the important matter to consider is the question whether a
person with an interest in the preserved property would suffer prejudice if the
documents that were filed in the preservation of property application are not
attached to the PG’s affidavit in the forfeiture application. The court
reasoned that such person is unlikely to suffer prejudice as he or she would
have been served with the documents filed at the preservation of property
stage. As the evidence in the two phases is essentially the same, it was not
necessary to burden the court with repetitive material that may also serve to
increase the costs of litigation.
The court held further that
the evidence tendered established fraud and money laundering and that the High
Court should have ordered the forfeiture of the property on the basis that it
represented proceeds of unlawful activities. The Supreme Court accordingly made
a forfeiture of property order and also directed the respondents to pay the
PG’s costs both in the High Court and in the Supreme Court.
