Supreme Court
Action No. 306 of 1992
12th July, 1993.
G. D. MEERABUX, J.

Mr. Dean Barrow S.C. for the Applicant.
Mr. Mark Anderson associated with Mr. Dons Waite and
Mrs. R. Usher for the Crown

Application for judicial review - Order for forfeiture of money after conviction for offences of possession of drugs and possession of drugs with intent to supply - Section 28(2) Misuse of Drugs Act No. 22 of 1990 - Nature of judicial review, established categories - grounds of present application within established categories - Meaning of "record" for purposes of present proceedings - Finding that Magistrate acted ultra vires powers conferred by Section 28(2) in that no finding of fact was made that the money ordered forfeited related to the offence - Breach of the rules of natural justice - Refusal by Magistrate to allow applicant to be heard before making forfeiture order - obvious error on face of record - Magistrate did not hear evidence or make findings of fact, and refused permission for the applicant to be heard - Decision of Magistrate quashed - Matter remitted to Magistrate with direction to reconsider forfeiture order.

D E C I S I O N

On the 13th of January, 1993, I granted leave to apply for Judicial Review from a decision of the Inferior Court for the Belize Judicial District on the 29th of September, 1992, to forfeit $30,000.00 BZ as being money relating to the offences for which the applicant had been convicted, for an order:-

(1) that the said decision made by the Inferior Court and its purported forfeiture of the applicant's $30,000.00 BZ. be removed into the Supreme Court of Judicature and thereupon that the said decision and forfeiture be quashed;

(2) that the Inferior Court be compelled to return the $30,000.00 BZ to the applicant;

(3) that the Inferior Court be prohibited from continuing to detain the said $30,000.00 BZ, and

(4) that the Magistrate of the said Inferior Court pay damages to the applicant for the wrongful detention of the said $30,000.00 BZ. The Motion was heard on the 13th of January, 1993, when counsel for the applicant intimated that he was abandoning ground 4 of the relief sought and applied to add the following new ground (iv):-

(a) "(iv) The decision of the Inferior Court was made without jurisdiction and there the Learned Magistrate ordered forfeiture without there being any evidence to establish a nexus between the offence for which the applicant has been convicted and the money forfeited, in the alternative, the decision was unreasonable in the Wednesbury sense in that it was such that no tribunal properly viewing the circumstances could have come to the conclusion that forfeiture was required or permitted" and

(b) to amend particulars of the application by deleting the figure of $30,000.00 where ever it appears and substituting the new figure of $29,998.00.

Counsel for the Crown at first objected to the application but later made no objections to the amendments which were granted by the Court.

Counsel for the applicant referred to the affidavit of the applicant which he pointed out remained unchallenged in spite of service of this affidavit on the Magistrate concerned, the Director of Public Prosecution and the Attorney General.

He submitted that since there was no reply or answer filed challenging the contents of the said affidavit, the court should proceed on the basis that the applicant's version of events is accurate. The applicants affidavit states as follows:-

"I, ALBERT GORDON, Businessman of No. 3244 Courtenay's Crescent, Belize City, Belize, the applicant herein, MAKE OATH AND SAY as follows:-

1. On or around the 18th September, 1992 I pleaded guilty in the Inferior Court for the Belize Judicial District to drug possession and drug trafficking offences for which I had been jointly charged with Sharlene Roca.

2. The case against Roca proceeded after I had entered my plea of guilty, and I appeared as a witness for Ms. Roca's defence.

3. On the 29th September, 1992, the Magistrate found Roca guilty

   and proceeded at that time to sentence both Roca and me.

4. I had originally been charged after the police had searched my home and discovered dangerous drugs on my premises. The police had at the same time found $29,998.00 BZ in my home and had seized and detained the money.

5. Immediately after sentence on the 29th September, 1992, Counsel by whom I was represented indicated to the Learned Magistrate that she had failed to deal with the money that had been seized from my home; that I was applying for the return of the money; and that the prosecution had not applied for the money to be forfeited.

6. The prosecution thereafter straightaway made verbal application that the $29,998.00 BZ be seized as money relating to the offences for which I had been convicted.

7. My Counsel then pointed out that the Magistrate would need to judicially determine whether the said $29,998.00 BZ was in fact related to the offences for which I had been convicted and that in that regard I should be allowed to give and call evidence to try and prove the contrary.

8. The Learned Magistrate then ruled that there was no need to hold any separate enquiry or receive evidence on the question of the money. She held that the course of the evidence during the trial of Ms. Roca and the testimony I had given as Ms. Roca's defence witness were enough to enable her to make the relevant determination under Section 28(2) of the Misuse of Drugs Act No. 22 of 1990. The Learned Magistrate thereupon ordered forfeiture of the $29,998.00 BZ which had been found on my premises and which I had applied to have returned to me.

9. I attach hereto and mark A.G.1. a minute of the Magistrate's decision as certified by the Clerk of the Inferior Court."

Counsel for the applicant further submitted with great clarity and scholarship that:-

(1) the decision of the Inferior Court was ultra vires the power conferred by S.28(2) of the Misuse of Drugs Act;

(2) the decision of the Inferior Court was contrary to the rules of natural juctice, and
(3) the decision was without jurisdiction;

are grounds within the established categories on which an order for Judicial Review will issue.
Reference was made to Halsbury Laws of England 4th Ed.

Vol. 1 - para 60 p.91 under caption
"Nature of Judicial Review" and
the Annual Practice 1991 Vol. 1 p.825 - 0.53 r,14 under caption "Application for Judicial Review"

Turning to the grounds set out above, counsel for the applicant further submitted that:-

          (1) the decision was ultra vires the power of the court conferred by S.28(2) of the Misuse of Drugs Act because that section states that the court " shall forfeit" money etc. if found relating to the offence and that the burden rest on the prosecution to satisfy the Court that the money is related to the offence. The records of that Ex. A.G. 1 reveal that no evidence was led by the prosecution in this regard, but the unchallenged affidavit of applicant reveals that the Magistrate used evidence of co-accused as a basis for determining innocence or guilt of accused, and made no finding of fact that money related to drug offence.

Reference was made to Archbold 1992 Vol. 1 42nd. Ed. para. 5 - 528 and to para. 22- 47 p. 2052 of Archbold supra under caption "Customs Act and Controlled Drugs", where the term "related to the offence" was emphasised, and to para. 5 - 527 of Archbold supra where the term "shown to the satisfaction of the court" is stressed.

He submits that there is need for a enquiry to be held and for the applicant to give evidence but that no enquiry was held in this case.

(2) Ground 2 - Rules of Natural Justice requires that evidence should be heard before making such order, and reliance on evidence in other proceedings compounds error. Reference made to Archbold supra. 5 - 532

(3) Ground (iv) Refers to Ex. SA. G.1 which reveals that no evidence was led by prosecution to show money related to the offence. Alternatively the principle in the Wednesbury sense applies.
Submits no charge of "supplying drugs to another" to enable an order for forfeiture of money to be made.

Counsel for the Crown reply may be summarised as follows:-

(1) where money is found on premises where drugs are also found, a person convicted of an offence under the Misuse of Drugs Act is liable to have that money forfeited and that the court does not have to determine whether that money is his or another person. What is important is that the money relates to the offence.

(2) both accused were jointly charged with:

(a) possession of dangerous drugs and

(b) drug trafficking.

The Magistrate in passing sentence on both accused is entitled to make a determination at that time as to whether the money found on premises belonged to applicant relating to either of the offences with which they were charged and that the forfeiture is part of the sentence, it matters not to whom the money belonged;

(3) the question raised by the applicant's counsel is whether a 2nd enquiry ought to be held after trial of co-accused to determine the matter of forfeiture of the money.
There is no need for 2nd enquiry where the evidence points to the money being related to the offences;

(4) that the applicant's affidavit does not mention that applicant not given a chance to be heard or that he wished to call witnesses, nor that any such application was refused.
It was argued that these opportunities only allowed if Magistrate is entitled to make a separate enquiry which she is not entitled to do;

(5) rules of natural justice does not require the Magistrate to conduct the case for the defence and she has a discretion to determine finality of proceedings.
No breach of rules of natural justice occurred nor was it ultra vires, her power to make a determination in respect of the forfeiture of the money;

(6) with reference to ground (iv) the additional ground:-

(a) the Magistrate had jurisdiction to make the forfeiture order as part of sentencing under S.28(2) of the Act and since the proceedings were regular on the face of it, the Supreme Court should not grant the writ of certiorari on the ground that the inferior court has misconceived the law.

Rex v Ludlow 1 K.B. - 1947 p.634

(b) error of Law on the record -
record in a criminal trial must include information, complaint, evidence, reasons for decisions and not "Minute Alone"
Rex v Northumerland Compensation
Appeal Tribunal Ex parte - 1 K.B. 1952 p.338

If Magistrate made a forfeiture order without taking evidence this is not an error of law on the face of the record, rather an error of fact going to the issue of natural justice but does not arise from the face of the record. Admits unable to find a case dealing with the issue of forfeiture without taking evidence.

(c) Wednesbury principle: - the court cannot interfere and act as an appellate authority unless the decision of a competent authority is so unreasonable that no reasonable authority, could even have come to it.

In the absence of notes of evidence there is no basis for the court so to find.

Further, the issue of reasonableness only arises if Magistrate took into account something which she should not take into account.

(d) Judicial Review not concerned with merits of judgement but decision making process itself.
Refers to Halsbury LawsVol. 1 para. 60 p.91

(e) The Misuse of Drugs Act S. 2 (1) (m)
gives definition of proceeds of drug trafficking. It matters not when raid took place and drugs found, and that there was nothing transpiring as such between money and cocaine;

(f) that a certified copy of Magistrate notes of evidence should be admitted without any accompanying affidavit to establish nexus between money forfeited and the offences, Refering to S.8. of the Evidence Act and seeking counsel for the applicant's agreement to have such notes admitted;

(g) that the case of Q v Churcher not applicable to this case in that the facts were different;

(h) applicant does not have sufficient locus standi in that the money belongs to a lady friend;

(i) the Magistrate made a wrong decision but acted within her jurisdiction.

Epassant, I must comment on a matter which has caused me some anxiety in these proceedings.

In this case principles of law have been submitted to the court without any legal authority or authorities to support them. I find this modus operandi not only insulting to legal jurisprudence but also highly improper.

When principles of law are submitted, legal authorities must be quoted unless the proposing counsel is the legendary Tribonian who compiled the Digest of Roman Law, dealing with many aspects of Roman Jurisprudence.

When there are no legal authorities or persuasive argument to support these proposed legal principles the question that arises is this - how can you honestly make such legal submissions-

Furthermore, when legal authorities have been advanced supporting a contrary view to that legal principle proposed which has no legal authority, that legal authority should not be ignored but rather should be dealt with face on and either admitted as against the proposed principle or distinguished. The practice of law is not a game but a very serious business challenging the integrity, honesty, skill and scholarship of persons who are engaged in its practice,. The ultimate aim of trials in our Courts of Law is the quest for truth - the search for truth. Lawyers who are engaged in this search for truth have an obligation as officers of the court to be honest and candid with the court. I am reminded of the legal maxim "Fiat justicia ruat coelum" - let justice be done though the heavens should fall.
Counsel for the applicant replied as follows:-

(1) In dealing with Magistrate's Notes of evidence - In proceedings for Judicial Review - reliance has to be placed on U.K. Supreme Court Rules 0.53. as local rules make no provisions therefor.

Evidence is normally by affidavit with exceptions but is prepared in the interest of justice to consent the admission of the said notes in accordance with s.8(2) (1) (a) of the Evidence Act.

(2) Definition of "proceeds of drug trafficking" has nothing to do with money found to be related to offence and no attempt made to deal with the wealth of authorities in Archbold supra para. 5 - 527 and to ignore learning is fatal.
Emphasised that mere presence of money where drugs found not enough - money must relate to offence for which he was convicted. This is the essence of the Wednesbury Principle. No evidence to support confiscation order and no reasonable tribunal appreciating requirements and acting reasonably could have come to that conclusion.
Halsbury Vol. 1 supra paras. 77 and 142
There was no evidence to show money related to the offence.

(3) Error on the face of the Record
Record constitutes Minute exhibited. What constitutes record not authoritatively defined.
Halsbury Vol. 1 supra para. 84
Minute makes no notes of enquiry, no findings of fact no nexus - error patently on the Record.

(4) Breach of Rules of Natural Justice
When applicant pleads guilty, calling of witness irrelevant but calling of witness becomes relevant in dealing with application for forfeiture. Applicant proceeded correctly, and application to call witness refused - applicants affidavit unchallenged and amounted to a naked breach of the rules.

(1) No need to hold separate enquiry as to forfeiture. Maintains duty to hold separate inquiry before making forfeiture order.

(2) On the issue of locus standi - the applicant is a bailee holding money for Mr. Belisle and therfore liable to owner and denied the opportunity to be heard.
Furthermore, persons having "sufficient interest" may apply.
Refers to Halsbury supra Vol. 1 para. 107

(7) Notes of evidence confirms what applicant's affidavit states that the "sum being related to the offence of drug trafficking" (See line 29 of page of reasons for decision) whereas the applicant was charged with possession and possession with intent to supply. Archbold states you cannot forfeit on charge of possession with which to supply because there is no evidence that anything was supplied.

(8) The question of forfeiture not before the court.
Seeks certiorari to quash decision of the court, mandamus to compel and prohibition restraining Magistrate from continuing to detain money.

(A) FIRSTLY, I have to decide whether the applicants grounds
for Judicial Review falls squarely within the established categories set out by law.

Halsbury Laws of England 4thEd. Vol. 1 para. 147 p.150 states
as follows under caption "Nature of Judicial Review"
"Certiorari lies, on the application of a person aggrieved, to bring proceedings of an inferior tribunal before the High Court for review so that the court can determine whether they shall be quashed, or to quash such proceedings. It will issue to quash a determination for excess or lack of jurisdiction, error of law on the face of the record or breach of the rules of natural justice, or where the determination was prccured by fraud, collusion or perjury"

The Annual Practice 1991 Volume 1 - p. 825 0.53 r 14/6 p. 822 under caption
"Nature and Scope of Judicial Review" states:

"The remedy of judicial review is concerned with reviewing not the merits of the decision in respect of which the application for judicial review is made, but the decision making process itself. It is important to remember in every case that the purpose of (the remedy of judicial review) is to ensure that the individual is given fair treatment by the authority to which he has been subjected, and that it is no part of that purpose to substitute the opinion of the judiciary or of individual Judges for that of the authority by law to decide the matters in question." Chief Constable of North Wales Police v Evans (1982) 1.W.L.R. 1155, p. 1160, (1982) 3 ALL. E.R., 141, p.143 per. Lord Hailsham L.C.

Thus, a decision of an inferior court or a public authority may be quashed (by an order of certiorari made on an application for judicial review) where that court or authority acted without jurisdiction or exceeded its jurisdiction, or failed to comply with the rules of natural justice in a case where these rules are applicable, or where there is an error of law on the face of the record, or the decision is unreasonable in Wednesbury sense.

The court will not, however, on a judicial review application act as a "court of appeal" from the body concerned; nor will the court interfere in any way with the exercise of any power or discretion which has been, conferred on that body, unless it has been exercised in a way which is not within that body's jurisdiction, or the decision is Wednesbury unreasonable. The function of the Court is to see that lawful authority is not abused by unfair treatment. If the Court were to attempt itself the task entrusted to that authority by the law, the court would under the guise of preventing the abuse of power, be guilty itself of usurping power; (Chief Constable of North Wales Police v Evans (1982) 1 W.L.R. 1155, p. 1173, (1982) 3 ALL. E.R. 141, p. 154 per Lord Brightman)

I find that the grounds upon which this relief is sought are that:

(a) the decision of the inferior Court was ultra vires the power conferred by Sec. 28(2) of the Misuse of Drugs Act,

(b) the decision of the Inferior Court was contrary to the rules of natural justice;

(c) the decision of the Inferior Court was made without jurisdiction and that there is an error of law on the face of the record.

I further find these grounds are within the established categories set out by law.

(B) SECONDLY, I must ask myself how is the evidence to be produced in certiorari proceeding.

There appears to be a misconception by counsel for the Crown as to the manner in which the evidence is to be produced in this regard.

The Belize Rules of the Supreme Court makes no provisions for Judicial Review and by O.78 r 1 (Saving Clause) the procedure and practice then in force in the Supreme Court of Judicature (U.K.) shall apply.

O.53 sets out the practice and procedure in applications for Judicial Review in the Annual Practice 1991 and a careful perusal of O.53 reveals that affidavit evidence is contemplated which sets out the evidence upon which the parties rely and that viva voce evidence is only utilised in particular cases.

In Rex v Northumberland Compensation Appeal Tribunal Exparte Shaw (1952) 1 K.B. p. 338 Denning L.J. at p. 352 2nd para. in dealing with this issue made these pertinent remarks:

"The next question which arises is whether affidavit evidence is admissible on an application for certiorari. When certiorari is granted on the ground of want of jurisdiction, or bias, or fraud, affidavit evidence is not only admissible, but it is as a rule, necessary. When it is granted on the ground of error of law on the face of the record, affidavit evidence is not, as a rule admissible, for the simple reason that the error must appear on the record itself. See Rex v Nat. Bell Liquors Ltd. Affidavits were however, always admissible to show that the record was incomplete, as for instance, that a conviction omitted the evidence of one of the witnesses (See Chitty's Practice Vol. 2 at p. 222, note (d), or did not set out the fact that the justices had refused to hear a competent witness for the defence (see Rex v Anon ) whereupon the court would either order the record to be completed, or it might quash the conviction at once."

Therefore the protracted arguments, concerning the admission of the Notes of Evidence and decision by the Magistrate could have been avoided if Counsel for the Crown had acquainted himself with the said 0.53 and filed an affidavit in answer together with the necessary exhibits.

There is a proper procedure under the Rules of the Supreme Court and the Laws of Evidence for the admissibility of documents. Documents cannot be thrown at the Court at the whims and fancies of counsel.

Thankfully, in the interests of justice counsel for the applicant consented to its admission in accordance with Sec. 8 (2)(1)(a) of the Evidence Act.

(C) THIRDLY, I must now turn my attention to what is the "Record" in this application as both counsels submitted conflicting views on this matter. What do the legal authorities state.

Halsbury Laws Vol. 1 4th Ed. para 84 p. 107 states as follows under the caption "Error on the face of the proceedings."
"The meaning of the record for this purpose has not been authoritatively determined, but it may be taken to include the decision itself, such reasons, if any, as are given for the decision and any other material, or instrument identified therein with a sufficient degree of particularity for it to be constructed as forming part of the record."

Likewise, the learned authors of the U.K. Supreme Court Practice 1991 in O.53 r. 14 p. 825 under the caption "where there is an error of law on the face of the record" states as follows in para. 2

"Recently what constitutes the "record" has been widely interpreted: it is not confined to the formal order but extends to the reasoned decision given by the Judge in his oral Judgement. (R V v.Crown Court at Knightsbridge, exparte International Sporting Club (London) Ltd. (1982) Q.B.304; (1981)3 ALL. E.R. 417, D.C. applying R. v. Northumberland Compensation Appeal Tribunal (1952) 1 ALL. E.R. 122)"

In Rex v Northumberland Compensation Appeal Tribunal supra Denning L.J. stated in p.352 in the penultimate sentence in the first para.

"Following these cases, I think the record must, contain at least the document in which initiates the proceedings, the pleadings, if any; and the adjudication, but not the evidence nor the reasons, unless the tribunal chooses to incorporate them. If the tribunal does state its reasons, and those reasons are wrong in law, certiorari has to quash the decision."

In dealing with this question of what is the record, I would also have to deal with the hotly disputed argument as to whether in dealing with this question of forfeiture under S.28(2) of the Misuse of Drugs Act the Magistrate must hold a seperate hearing distinct and apart from the hearing on the issue of innocence or guilt of charges before the court or whether as was submitted by counsel for the Crown, that there is no need for any seperate inquiry to be held where the evidence at the trial provided a basis or points to the money being related to the offences, and furthermore forfeiture relates solely as part of the sentence.

The learned authors of Archbold 43rd. Ed. in dealing with forfeiture orders under the Misuse of Drugs Act 1971 - Summary state as follows in para. 5 p. 816

"Where any person is convicted of an offence under Misuse of Drugs Act 1971, section 27 empowers the court to order the forfeiture of anything shown to the satisfaction of the court to relate to the offence. The court may order the property to be destroyed or otherwise dealt with. If a person claiming to be the owner of the property, or otherwise interested in it, applies to the court to be heard, the court must give him an opportunity to show cause why an order should not be made.

The power to order forfeiture does not apply to offences of conspiracy to commit an offence under the Misuse of Drugs Act 1971. It is limited to tangible property to be found within the jurisdiction of the English courts. The property must relate to the offence of which the offender is convicted:
where cash is found in the possession of a person convicted of possessing a controlled substance with intent to supply the cash will not normally relate to the offence and the power to order forfeiture under section 27 will not be available (although other provisions, particularly Drug Trafficking Offences Act 1986, may apply). Cash found in the possession of a person convicted of supplying a controlled substance may be liable to forfeiture under this section, if the court is satisfied that the cash is the proceeds of the act of supply of which the offender has been convicted. Where a forfeiture order is in contemplation, and the offender claims that the property concerned was not related to the offence of which he has been convicted, he must be allowed to give or call evidence bearing on the issue before the order is made." Again at para. 5 - 532 p. 817 of Archbold supra the said learned authors under caption "Duty to hear evidence before making forfeiture order " states as follows: "In Churcher (1986) 8 Cr. App. R. (s) 94, CSP J4.3(c), the appellant pleaded guilty on various charges relating to dealing in controlled drugs. Forfeiture orders were made in respect of two sums of money found in his possession. The appellant's counsel offered to call evidence before the orders were made, to show that the money was not related to the offences of which the appellant was convicted, but this offer was declined by the sentencer. Quashing the forfeiture orders, Woolf L.J. commented that the Court was concerned whether the appellant had a proper opportunity to put before the trial court material to establish that the requirements of the section were not satisfied, and that it was desirable that adequate inquiries be made to establish that the requirements of the statute were fulfilled, before orders were made."

I therefore find that before making the forfeiture order the Magistrate has a duty to hear evidence making adequate inquiries to be satisfied so that she feels sure that the money related to the offence to which the applicant pleaded guilty or was convicted as the case may be. In other words the Magistrate is enjoined to make this finding of fact. Again the learned authors of Archbold supra at para. 5-531 p.817 under caption "Relation of Property to the offence of which the offender is convicted" states:
"Misuse of Drugs Act 1971, section 27 applies only to things shown "to relate to the offence." The Court"of Appeal has held in a number of decisions that the thing proposed to be forfeited must be shown to relate to the offence of which the offender has been convicted, it is not sufficient to show that it relates to some other offence. In particular, where money is found in the possession of a person convicted of possession with intent to supply a controlled substance as opposed to supplying a controlled substance), the court may not order the forfeiture of that money under Misuse of Drugs Act 1971, section 27, even though it is shown to be the proceeds of dealing with drugs on other occasions which are not the subject of charges in the indictment. See Morgan, February 28, 1977, CSP J4.3(c); Ribeyre (1982) 4 Cr. App.R. (S.) 165, CSP J4.3 (c); Llewellyn (1985) 7 Cr. App. R. (S) 228, CSP J4.3(c); Cox (1986) 8 Cr. App. R.(S.) 384, CSP J4.3(c); Simms (1987) 9 Cr. App. R.(S.) xxx, CSP J43.(c)." If therefore the Magistrate had a duty to hear evidence before making a forfeiture order, it follows that the notes of evidence of the trial of the co-accused are not relevant matters for the purpose of the "Record"which dealt with this issue because the evidence at the trial pertained only to the question of innocence or guilt of the co-accused. In other words the question of forfeiture could not arise during the hearing of whether the accused was guilty or not. It is only after conviction that this question of forfeiture can arise as part of the sentencing process.

The question that arises is,what is the "record" for the purpose of this application- I find that the record must contain "at least the document which initiated the proceedings, the pleadings, if any, and the adjudication or the decision."

I further find that Ex. A.G. I appended to the applicant's affidavit is the "Record" for the purposes of this application for certiorari.

(D) FOURTHLY, I must now deal with the issue as to whether on a charge of being in possession of cocaine with intent to supply to another unknown person the magistrate can order forfeiture of money found on the premises where the drugs were found. "The power to order forfeiture does not apply to offences of conspiracy to commit an offence under the Misuse of Drugs Act 1971. It is limited to tangible property to be found within the jurisdiction of the English Courts. The property must relate to the offence of which the offender is convicted: Where cash is found in the possession of a person convicted of possessing a controlled substance with intent to supply the cash will not normally relate to the offence and the power to order forfeiture under Section 27 will not be available (although other provisions, particularly Drug Trafficking Offences Act 1986, may apply). Cash found in the possession of a person convicted of supplying a controlled substance may be liable to forfeiture under this section if the court is satisfied that the cash is the proceeds of the act of supply of which the offender has been convicted." etc. Archbold 43rd. Ed. in para. 5 - 526 p. 816 2nd para. supra. Again the learned authors of Archbold emphasise in para 5 - 531 p.817 2nd para. supra.

"In particular, where money is found in the possession of a person convicted of possession with intent to supply a controlled substance (as opposed to supplying a controlled substance), the court may not order the forfeiture of that money under the Misuse of Drugs Act 1971, Section 27 even though it is shown to be proceeds of dealing with drugs on other occasions which are not the subject of charges in the indictment."

In this case the accused was charged with possession of a quantity of cocaine, and possession with intent to supply.

The above authorities indicate quite clearly that the power to order forfeiture "will not be available" simply because the cash will not normally relate to the offence with which he is charged.

(E) FIFTHLY, I shall now deal with the grounds of the application that:-

(a) the decision was ultra vires S.28(2) of the Misuse of Drugs Act,

(b) the rules of natural. justice were infringed,

(c) there is an error on the face of the record,

(1) the decision was unreasonable in the Wednesbury sense.

A perusal. of the Record in respect of that application for forfeiture reveals that the entire application was dealt with in two lines as follows:-

"Prosecution applies for forfeiture of money. Money forfeited." This is the sum total of the notes of evidence taken in the application for forfeiture.

The applicant's affidavit in paras. 5 - 8 sets out in detail what took place when this question of forfeiture arose and since there is no answer or reply filed challenging the contents of this affidavit, I find that the court must proceed on the basis that the applicant's version of the events is accurate.

Since the burden of proving that the money related to the offence with which the accused was charged remained on the prosecution the notes of evidence reveals that:-

(1) the prosecution led no such evidence;

(2) the application was not heard in the application and therefore was denied the opportunity to give and call evidence to prove the contrary;

(3) there was no finding of fact by the Magistrate that the money related to the offence with which the applicant was convicted.

As a result of these quite blatant omissions on the record in respect for the forfeiture application I find that the Magistrate

(a) acted ultra vires the powers conferred by S.28(2) of the Misuse of Drugs in that no finding of fact was made that the money related to the offence;

(b) breached the rules of natural justice by not allowing the applicant to be heard before making the forfeiture order and thus failing to act judicially;

(c) there was an obvious error on the face of the record in not hearing evidence, not making findings of fact, and refusing permission for the applicant to be heard.

For the above reasons I find that the decision making process in the application for the forfeiture of money was seriously flawed and I quash the decision of the Magistrate order of forteiture of $29,000.00.

This Court will not however, on a judicial review application act as a Court of Appeal from the lower court below. The function of the Court is to see that lawful authority is not abused by unfair treatment.

I therefore remit the matter to the Magistrate concerned with a direction to reconsider the forfeiture order made on the 29th September 1992, and to reach a decision in accordance with the judgement of this Court in this Judicial Review Proceedings.

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