ACT Director of Public Prosecutions v John Edward Mitchell
[2016] ACTSC 89
•9 May 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | ACT Director of Public Prosecutions v John Edward Mitchell |
Citation: | [2016] ACTSC 89 |
Hearing Date: | 15 April 2016 |
DecisionDate: | 9 May 2016 |
Before: | Refshauge J |
Decision: | 1. The following items belonging to John Edward Mitchell are forfeited to the Australian Capital Territory: a. Sako Quad Rimfire Rifle .22LR, SN: F45632 b. Smith and Wesson revolver .22, SN: AYH0861 c. Browning pistol/Buck Mark .22, SN: 655PN04579 d. Rimfire Rifle CZ/ZKM452 .22, SN: A676990 e. Browning Rifle/BL22 .22, SN: 20099ZM242 f. Sako XS Varmint Rifle .223, SN: A72739 g. Classic Rimfire Rifle CZ/ZKM425 .22, SN: A752768 h. Tikka Centre Fire Rifle/T3 .223, SN: F43555 i. Browning Rifle/BLR .243, SN: 20296ZW341 j. Gecado Air Rifle/22 Air Rifle k. Pratt 1918 Metallic Telescopic Sight l. S/S Shotgun 12 Gauge, SN: AB30613 m. Kahles super rifle scope n. .45 Pistol Barrel o. .243 Hillver scope mount p. Brown pistol holster q. Green slingshot r. .303 bayonet s. Blue rifle carry case t. Sako Quad barrel as per PSR 322555 u. Magazine Sako Quad v. .243 Magazine w. .22LR Magazine x. 3 x .22 Magazines y. Tikka Centre Fire Rifle/T3 rifle bolt 2. The application to forfeit the ammunition, ammunition components and reloading equipment is dismissed. 3. Liberty is reserved to the parties to apply for the matter to be relisted should there be difficulties in relation to the disposal of the ammunition belonging to John Edward Mitchell. |
Catchwords: | CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Confiscation of criminal assets – firearms and ammunition– tainted property – conviction for relevant offence – convicted and sentenced – no evidence to relate ammunition to charge – firearm accessories incidents of possession of firearms – ammunition cannot be returned without licence – return property to third party for sale STATUTES – INTERPRETATION – s 10 of Confiscation of Criminal Assets Act 2003 (ACT) – ‘used’ – ‘in relation to’ – wide provision – wide interpretation would produce absurd results – potential interference with vested property rights – narrow interpretation to avoid absurdity – reversal of onus of proof – rebuttable – low threshold to rebut presumption |
Legislation Cited: | Australian Capital Territory (Self-Government) Act 1988 (Cth), s 23(1)(a) Confiscation of Criminal Assets Act 2003 (ACT), ss 10, 10(2), 13, 17, 53(2), 53(3), 54, 56, Constitution of the Commonwealth of Australia (1900), s 51(xxxi) |
Cases Cited: | Attorney-General (NT) v Emmerson (2014) 253 CLR 393 Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248 |
Texts Cited: | American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed, 2013) |
Parties: | ACT Director of Public Prosecutions (Plaintiff) John Edward Mitchell (Defendant) |
Representation: | Counsel Mr M Reardon (Plaintiff) Ms T Warwick (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Plaintiff) Ms T Warwick (Defendant) | |
File Number: | SC 382 of 2015 |
REFSHAUGE J:
Since he was fourteen years old, the defendant, John Edward Mitchell, has been fascinated with guns. He has been a member of the school cadets, the Army Reserve and the Sporting Shooters’ Association of Australia (ACT) Inc.
He has also been diagnosed with a debilitating psychological disorder, termed in the American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders (5th ed, 2013) at 247-51 as a Hoarding Disorder.
This disorder has led to the Magistrates Courts making orders under s 73 of the Public Health Act 1997 (ACT), commonly known as abatement orders, requiring him to abate the unsanitary conditions of his home caused by the accumulation of material in his house that the disorder compels him to acquire and retain.
During the enforcement of one of these orders on 27 May 2015, a number of guns were seized from his premises. Also seized was ammunition and components for guns.
Mr Mitchell was charged with various offences under ss 43(1)(a), 180(1)(a)(ii) and 249(1) of the Firearms Act 1996 (ACT).
On 15 April 2016, I convicted Mr Mitchell of those offences on his plea of guilty to them. I sentenced him to a term of imprisonment, backdated to take account of pre-sentence custody and then suspended for four years. As required under s 12 of the Crimes (Sentencing) Act 2005 (ACT), I also made a Good Behaviour Order for four years. See R v Mitchell [2016] ACTSC 85.
On 14 October 2015, the ACT Director of Public Prosecutions, as plaintiff, commenced proceedings under s 54 of the Confiscation of Criminal Assets Act 2003 (ACT) for an order for the forfeiture of certain specified property to the Australian Capital Territory. Such an order is known as a conviction forfeiture order.
Section 54 of the Confiscation of Criminal Assets Act provides:
54 Conviction forfeiture orders—making
(1) On application under section 53, the court must make an order for the forfeiture to the Territory of tainted property in relation to the relevant offence if satisfied that—
(a) the offender has been convicted of the offence; and
(b) the offender has not been cleared of the offence; and
(c) the property, or any of the property, to which the application relates is tainted property in relation to the offence.
(2) If a court makes the order, it must state in the order—
(a) the property to which it applies; and
(b) what it considers to be the value of the property (other than money) to be forfeited to the Territory under the order at the time the order is made.
The Confiscation of Criminal Assets Act is the ACT’s implementation of the acceptance by legislatures in Australia of the utility of the restraint or forfeiture of property, wholly being “a strong and drastic sanction” vindicating aspects of the criminal law and encouraging the observance of such law, but also as a mechanism to deprive criminals of profits and preventing them from accumulating significant assets by their criminal activities. See Attorney-General (NT) v Emmerson (2014) 253 CLR 393 at 416; [15].
The application
As permitted by s 53(2) of the Confiscation of Criminal Assets Act, the application referred to above (at [7]) was made before Mr Mitchell was convicted of the offence but not heard until convictions had formally been entered.
The application specifies the property which is sought to be forfeited, namely, a total of 133 items comprising guns, ammunition, components for guns and components for ammunition.
The application was supported by two affidavits, one annexing a statement of the facts of the Crown case against Mr Mitchell, the other providing a value for the property sought to be forfeited and the basis of that valuation.
Mr Mitchell opposed the application in whole on a constitutional ground and, in the alternative, on the ground that certain of the property was not forfeitable.
The facts
I set out the facts of the offences as I found them in R v Mitchell at [13]-[29], as follows:
13.Mr Mitchell has been a long time shooter. He has been a member of gun clubs and owned firearms for many years. He said that he took the guns, the subject of the principal charge, home to practise what I understood to be techniques, but never fired them outside a proper gun range.
14.For a time he lived in New South Wales and then returned to the ACT, and on 6 February 2015, the New South Wales Police Firearms Registry wrote to him revoking his licence to possess certain firearms because he had become a permanent resident of this territory and therefore no longer eligible to hold a New South Wales firearms licence.
15.He was directed, in the letter, to surrender his New South Wales licence and any firearms registered to him under that licence to police. The firearms, the subject of the principal charge, were, with one exception to which I will refer later, firearms which he had been licensed to own under the New South Wales licence.
16.In May 2015, an abatement order was made by the ACT Magistrates Court, apparently under s 73 of the Public Health Act 1997 (ACT), requiring Mr Mitchell to abate the unsanitary conditions caused by an accumulation of material in his house. In the event of non-compliance an authorised officer may implement the order.
17.Accordingly, officers of the Environmental Health Section of ACT Health arranged to attend at Mr Mitchell's premises to implement the order.
18.Because of his former firearms licence, Australian Federal Police accompanied the officers to check on any firearms that may be on the premises.
19.When they arrived, police spoke to Mr Mitchell and he consented to police entering the premises and inspecting a secure firearms safe that was in the house. Police noted that the safe did not contain any ammunition or firearms.
20.Mr Mitchell initially told police that there were no firearms at the address and that the firearms, the subject of the New South Wales revoked licence, were secure in an address in New South Wales. Accordingly, the police left the premises.
21.Later, the officers from Environmental Health who had entered the premises to implement the abatement order, advised police that they had located several firearms in the premises and police returned and secured the residence as a crime scene.
22.After obtaining a search warrant, police searched the premises and located seven rifles, a shotgun, a revolver, a pistol and an air rifle.
23.The revolver and the pistol had, in fact, been reported by Mr Mitchell as stolen in 1999.
24.A substantial amount of live ammunition, ammunition components, such as projectiles, caps, primers and gun powder, as well as loading tools and magazines of various calibres, were also located in various places in the house.
25.I had a series of photographs which showed the premises. They showed the premises in a significant state of disarray and hoarding, with what can only reasonably be described as junk all over the place. It also, however, showed some of the rifles clearly visible and not hidden, as well as a significant amount of ammunition and ammunition components in the premises.
26.As was apparent from the photographs, the firearms and ammunitions were located in a number of rooms throughout the house and in the shed in the backyard. They were not stored in any appropriate way and were certainly not stored securely, as required under the Firearms Act.
27.Mr Mitchell was interviewed and admitted to owning the firearms and ammunition and that he was not authorised to possess the handguns.
28.He did express a view that his New South Wales firearms licence was current, although police located the letter from the New South Wales Firearms Registry of 6 February 2015, which was on the premises. It was not in a sealed envelope, but open. Mr Mitchell acknowledged that it was possible that he had read the letter, but he maintained that he was not aware that his licence had been revoked.
29.Mr Mitchell had previously also held an ACT firearms licence, which was cancelled in March 2000.
What is to be noted here, not referred to in R v Mitchell because not relevant to the issues there to be decided, is that there was no evidence adduced by the plaintiff to relate the ammunition or ammunition components to any of the guns the subject of the charge of unauthorised possession of firearms.
It seems unlikely, though I cannot make a final finding on this, that the plaintiff would have had available relevant expertise to show whether this was so.
Given Mr Mitchell’s mental disorder and his long history of possessing firearms, many of them perfectly legally possessed, subject to an appropriate licence, there can be no inference drawn, even on the balance of probabilities, that the ammunition found in Mr Mitchell’s house was for the firearms also found there.
Constitutional Challenge
Initially, Mr Mitchell challenged the application on the grounds that it offended s 51(xxxi) of the Constitution of the Commonwealth of Australia (1900), which prohibits the acquisition of property by the government except on just terms. Confiscation under the Confiscation of Criminal Assets Act, it was submitted, could not be on just terms.
That provision does not, however, apply to the Territory, which is a separate polity. See Capital Duplicators Pty Ltd v Australian Capital Territory (1992) 177 CLR 248 at 259, 271-4.
There is, however, in s 23(1)(a) of the Australian Capital Territory (Self-Government) Act 1988 (Cth), a provision identical to s 51(xxxi) of the Constitution. Although not mentioned by counsel for Mr Mitchell, I will briefly deal with it.
A contention that the Criminal Property Forfeiture Act (NT) breached a relevantly similar provision in s 5D(1) of the Northern Territory (Self-Government) Act 1978 (Cth) was rejected by the High Court in Attorney-General (NT) v Emmerson.
Application of the reasoning in that decision validates confiscation of property under the Confiscation of Criminal Assets Act: Director of Public Prosecutions v Close [2015] ACTSC 10 at [48]. Mr Mitchell did not press the challenge.
Tainted property
Mr Mitchell did, however, challenge the forfeiture of some of the property the subject of the application on the ground that it was not all tainted property. In particular, he submitted through his counsel, Ms T Warwick, that the ammunition, including components for reloading of ammunition, blank ammunition and magazines, as well as reloading equipment and bags, scopes and other firearm accessories which were part of the property seized were not tainted property and should not be forfeited.
This requires a careful consideration of the terms of the Confiscation of Criminal Assets Act. The principal provision is, of course, s 54, which is set out above (at [8]). It requires, as elements justifying forfeiture, that the court be satisfied that:
a)the offender has been convicted of an offence described as a relevant offence; and
b)he or she has not been cleared of the offence; and
c)the property, or any of the property...is tainted property in relation to the offence.
It is convenient to consider these matters. The first two may be considered together.
Conviction for a relevant offence
Conviction for every offence does not attract forfeiture. It has to be a relevant offence. That phrase is defined in s 13 of the Confiscation of Criminal Assets Act to mean, so far as these proceedings are concerned, an offence against the law of the Territory punishable by imprisonment for longer than twelve months.
In this case, the offence under s 43(1)(a)(i) of the Firearms Act is a relevant offence, for the maximum penalty is imprisonment for twenty years.
The offences under ss 180 and 249 of the Firearms Act do not attract a maximum penalty of imprisonment for more than twelve months and so are not relevant offences for the purposes of s 54. I need not consider them further.
The next issue is whether Mr Mitchell has been convicted of the offence.
Cooper J held in In the Matter of Section 45 of the Proceeds of Crime Act 1991 (ACT) and Re an Application by the Director of Public Prosecutions of the Australian Capital Territory of Restraining Orders in Respect of Le, Le and Le (Unreported, Australian Capital Territory Supreme Court, Cooper J, SC 821 of 1996, 28 November 1997) at p 15, that “conviction” under the earlier Act might require, in the circumstances of the legislation, the imposition of a sentence for the offence. I do not need to consider whether that applies to the Confiscation of Criminal Assets Act.
As noted above (at [6]), I entered convictions and imposed sentences on Mr Mitchell on 15 April 2016. Whether the construction given to the term “conviction” by Cooper J should be applied to the Confiscation of Criminal Assets Act can await another day and a suitable case.
The third issue to be proved under this heading is whether Mr Mitchell has been cleared of the offences of which he has been convicted. Section 17 to the Confiscation of Criminal Assets Act sets out the circumstances of when a person is cleared of an offence as follows:
17 When is someone cleared of an offence
For this Act, a person is cleared of an offence if—
(a) an indictment for the offence lapses, or is withdrawn or struck out; or
(b) a charge for the offence is withdrawn or discharged; or
(c) the person is acquitted of the offence; or
(d) the person’s conviction for the offence is quashed.
Note Indictment is defined in the Legislation Act, dict, pt 1 as including an information. (See also that Act, dict, pt 1, def present.)
Paragraphs 17(a), (b) and (c) of the Confiscation of Criminal Assets Act are inapplicable, for the proceedings under the indictment have been completed, the charges found proved and Mr Mitchell has been convicted and not acquitted.
The only question is whether paragraph 17(d) of the Confiscation of Criminal Assets Act requires that the application cannot be considered until either an appeal is heard or the appeal period has expired without an appeal having been commenced. No appeal has been commenced in this case and the appeal period had not expired prior to the hearing of this application.
In my view, that is not necessary. Indeed, the Confiscation of Criminal Assets Act suggests that this is the position, for s 56 provides that a “conviction forfeiture orders ends if – (a) the offender is cleared of the offence ...”. That clearly implies that an order can be in existence at the time an offender is cleared of an offence, by, for example, the conviction being quashed on appeal.
While that may require a refund of the value of the forfeited property if it has been converted into cash by the Territory through sale and otherwise or compensation for the loss if it has been destroyed, an offender who wished to recover the actual property rather than its value could possibly, upon the institution of the appeal, apply for a stay of the order or an injunction to restrain disposal pending the hearing and determination of the appeal.
Accordingly, in this case, all the relevant pre-conditions under this heading for the making of a conviction forfeiture order have been satisfied.
Is the property tainted property?
The next question is whether all or some of the property the subject of the application is tainted property. This question must be answered for the particular offence. The offence, under s 43(1)(a)(ii) of the Firearms Act, is in the following terms:
43 Offence—unauthorised possession or use of firearms other than prohibited firearms
(1) A person commits an offence if the person—
(a) possesses or uses—
(i) 10 or more firearms; or
(ii) 3 or more firearms, but less than 10 firearms; or
(iii) 1 or 2 firearms; and
(b) is not authorised by a licence, permit or otherwise under this Act to possess or use each of the firearms.
Maximum penalty:
(a) for subsection (1) (a) (i)—imprisonment for 20 years; or
(b) for subsection (1) (a) (ii)—imprisonment for 7 years; or
(c) for subsection (1) (a) (iii)—imprisonment for 5 years.
Note A reference to an Act includes a reference to the statutory instruments made or in force under the Act, including any regulation (see Legislation Act, s 104).
(2) In this section:
firearm does not include a prohibited firearm.
In considering the elements of the offence, I note that no fault element is provided for the offence, hence, under s 22 of the Criminal Code 2002 (ACT), intention is the fault element for a physical element that consists only of conduct and recklessness is the fault element of a physical element that consists of a circumstance.
Possession is a physical element of conduct: R v Tang (2008) 237 CLR 1 at 24; [46]-[47], 43; [90], 55; [134]. In He Kaw Teh v The Queen (1985) 157 CLR 523 at 537, 585, 602, it was held that intention to possess an object required knowledge or belief that the object possessed was the object the subject of the offence.
The number of guns appears to be a circumstance as a physical element. There are always semantic issues surrounding these matters, but it seems unlikely that this matter would be categorised as a result of conduct, the other possibility under s 14 of the Criminal Code.
Applying these provisions the elements of the offence are that:
(a) Mr Mitchell possessed firearms;
(b) he intended to do so, knowing that they were firearms;
(c) there were ten or more firearms;
(d) Mr Mitchell was reckless as to whether there were ten or more firearms;
(e) Mr Mitchell was not authorised by a licence, permit or otherwise under the Firearms Act to possess the firearms; and
(f) he was reckless as to whether he was so authorised.
By reference, then, to these elements, it is necessary to consider whether the property the subject of this application was tainted property. The definition of “tainted property” appears in s 10 of the Confiscation of Criminal Assets Act and is as follows:
10 What is tainted property
(1) In this Act:
tainted property, in relation to an offence, means—
(a) property that was used, or was intended by an offender to be used, in relation to the commission of the offence; or
(b) property that was derived by anyone from the commission of the offence; or
(c) property that was derived by anyone from property mentioned in paragraph (a) or (b);
and includes an amount of money held in an account with a financial institution that represents the value of property mentioned in paragraph (a), (b) or (c) that has been directly or indirectly credited to the account.
Note 1 For the meaning of in relation to, see dict.
Note 2 For the meaning of derived, see s 12.
Note 3 Property includes an interest in property, see the Legislation Act, dict, pt 1.
(2) For subsection (1) (a), any property found in the possession of an offender at the time of, or immediately after, the commission of the offence is taken to be property that was used, or was intended by the offender to be used, in relation to the commission of the offence, unless the contrary is established by the offender.
Examples of tainted property for s 10
1 A car used as a getaway car for an armed robbery (see s (1) (a)).
2 Money and jewellery stolen during the commission of the armed robbery offence (see s (1) (b)).
3 Shares bought using money stolen during the commission of the armed robbery offence, or a mixture of that money and money unconnected with the offence (see s (1) (c) and s 12 (1) (Meaning of derived)).
4 A house in relation to which a mortgage is partly or completely discharged using money stolen during the commission of the armed robbery offence, or a mixture of that money and money unconnected with the offence (see s (1) (c) and s 12 (1)).
5 Money or other property received from the sale of the car, jewellery, shares or house mentioned in examples 1 to 4 (see s (1) (c) and s 12 (1)).
6 Other property purchased using the money mentioned in example 5 (see s (1) (c) and s 12 (1)).
7 Money stolen during the commission of the armed robbery offence is deposited in 1 or more accounts with a credit union and later transferred to a bank account that also contains money unconnected with the offence. The money in the bank account to the value of the money stolen during the commission of the offence is tainted property (see s (1)).
8 Money received from the sale of the car, jewellery, shares or house mentioned in examples 1 to 4 is deposited in a credit union account that also contains money unconnected with the armed robbery offence. The money in the account to the value of the money received from the sale of the car, jewellery, shares or house mentioned in examples 1 to 4 is tainted property (see s (1) and s 12 (1)).
Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
As can be seen, the definition depends on the property being used “in relation to” the commission of the offence. That phrase is defined in the Dictionary to the Confiscation of Criminal Assets Act in a wide and expansive way as follows:
in relation to—to remove any doubt, in relation to includes—
(a) in; and
(b) for or for the purposes of; and
(c) in connection with; and
(d) in respect of; and
(e) with respect to.
Example
The phrase ‘property used, or intended to be used by an offender, in relation to the commission of an offence’ (in s 3 (d) and elsewhere) refers to 1 or more of the following:
(a) property used in or in relation to the commission of the offence;
(b) property used for or for the purposes of the commission of the offence;
(c) property used in connection with the commission of the offence;
(d) property used in respect of the commission of the offence;
(e) property used with respect to the commission of the offence.
Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).
The definition is a very wide one, but the examples to s 10 of the Confiscation of Criminal Assets Act do strongly suggest that there must be a relevantly identifiable connection with the offence.
The term “used” has been subject to considerable attention by courts dealing with confiscation proceedings. In Chalmers v The Queen (2011) 215 A Crim R 275, the Victorian Court of Appeal conducted an extensive consideration of the authorities and, at 290; [77], summarised the following propositions which were said to have emerged from the analysis undertaken:
...
1.The word “used” should be given its ordinary meaning of “employed, or made use of, for a particular end or purpose”.
2.The statutory phrase is of wide scope. The inclusion of the words “in connection with” was plainly intended to extend the scope of the definition of “tainted property” beyond circumstances where the property could be said to have been “used in the commission of” the offence.
3.Whether there is a connection between the use of the property and the commission of the crime is a question of fact and degree. It is not necessary for it to be established that there was a “substantial” connection, or that the crime could not have been committed without using the property.
4.The nature, extent and significance of the use of the property in connection with the commission of the crime will be matters which go to the court’s discretion whether or not to order forfeiture of the property.
The Court then gave examples of decisions in which the requisite connection of the property and the commission of the offence had been found to constitute use. I do not need to repeat them. The Court continued, at 291-2; [80]:
Express statutory provision apart, the mere fact that an act is done in or on a particular property will ordinarily not suffice to bring that property within the definition. That is because, as a matter of ordinary language, this could not be characterised as a “use” of the property. In their joint judgment in White, French CJ and Crennan and Bell JJ said:
On the face of it, the mere doing of an act in or on a property in connection with the commission of a confiscation offence, does not necessarily fit comfortably within the concept of use applied to property. The relevant ordinary meaning of the verb “use” is to [m]ake use of [a thing], esp for a particular end or purpose; utilise, turn to account.
(footnotes omitted)
There does not seem to be any statutory provision that assists here, though I need to deal separately with s 10(2) of the Confiscation of Criminal Assets Act later.
The Court then cited, with approval, what Doyle CJ, with whom White J agreed, said in Director of Public Prosecutions (SA) v George (2008) 102 SASR 246 at 262; [65]:
As a matter of ordinary language, and bearing in mind that the word defined is “instrument”, I consider that the definition refers to a use of property that facilitates, assists or contributes to the commission of an offence. That is a starting point, not a conclusion. The use of the property must be sufficiently significant (I realise that this is question begging) to warrant a conclusion (especially when the property is the place where the offence is committed) that the property is used in connection with the commission of the offence. This invites attention to the role that the property plays in the commission of the offence, to the extent to which the property is so used, and to how much of the property, or what part of it, is used. I doubt whether one can usefully go any further than that.
The Court then described what may be regarded as the continuum between a clear connection and clear lack of connection between the property and the commission of the offence, saying at 294; [89]-[91]:
89 At one end of the spectrum are cases where the property is deployed in an instrumental sense to commit the offence. An obvious example is the weapon that is used to inflict an injury. Land can be used to cause death or injury, such as where a domestic pool is used to drown the victim. Another example is where a beam in a ceiling of a house is used to support a rope for the purpose of hanging the victim. A further example is where the victim is thrown off a second floor balcony. These are examples of cases where an attribute or feature of the property is actively used in the commission of the offence.
90 At the other end of the spectrum are cases where the property is merely the passive location at which the offence is committed. An example is where a discussion takes place in the offender’s home which constitutes a conspiracy to commit an offence at another location. Another example is where, during dinner in the family home, a domestic dispute erupts spontaneously which leads to one person reaching across the table and assaulting another person. These are examples of cases where an offence is committed at the property (the home) but there is no relevant connection between the use of the property and the commission of the offence.
91 There will, of course, be cases along this spectrum where the question whether the requisite connection exists (between the use of the property and the commission of the offence) will be a matter of difficulty. Those cases will require a close examination of the nature of the property, its precise use, the nature of the offence that was committed and the manner, if any, in which the property was used in connection with the commission of the offence. The more passive the use of the property and the more incidental its role, the less likely it is that the requisite connection will be found to exist.
This analysis was adopted in its entirety by a differently constituted Court of Appeal in Director of Public Prosecutions v Moran (2012) 37 VR 624 at 628-32; [22].
Consideration
What is important is to determine the factual background by reference to the actual offence.
In this case, the offence was one of possession of the firearms. Section 43 of the Firearms Act creates two offences – possession of firearms and use of firearms. To have charged both would have been duplicitous. See S v The Queen (1989) 168 CLR 266 at 284-5. That the two offences were distinct seems to follow from the principles applied in Ware v Fox [1967] 1 WLR 379. In any event, Mr Mitchell was only charged with, and pleaded guilty to, the offence of possession of firearms, not to an offence of use of the firearms.
The evidence accepted in the sentencing proceedings was that Mr Mitchell had the firearms but had never used them. The majority were new firearms and one other was not serviceable. Three firearms were guns he did not recall, at the time of his arrest, that he had. See R v Mitchell at [97].
Further, as noted above (at [15]-[17]), there was no evidence to link the ammunition or ammunition components with the firearms actually seized by the police.
It is neither necessary nor required for possession of firearms for Mr Mitchell to have ammunition in his possession at his house, especially as he explained that he would not use ammunition in them when he practised techniques with the firearms at home.
While his fascination with firearms may equally be the source of his possession of the firearms the subject of his conviction, and of the ammunition, that does not seem to me to fall within the relevant connection.
That he had ammunition or not, did not impact upon his possession of the firearms.
That, of course, does not end the matter, for s 10(2) of the Confiscation of Criminal Assets Act does seem, effectively, to reverse the onus of proof on this issue. I deal with that later (at [63]-[69]).
Nevertheless, it seems to me that, in these circumstances, the ammunition and components of ammunition cannot be shown to have been used in relation to the commission of the offence.
The same seems to me to apply to what was known as the reloading equipment, which is an incident of use rather than of possession.
On the other hand, the bags, scopes and other firearm accessories seems to me to be incidents of the possession of the firearms. They are part of the containment of the firearms or the associated accessories that constitute an appropriate part of the firearms as complete items.
The one issue that needs to be addressed, however, is the relevance of s 10(2) of the Confiscation of Criminal Assets Act which renders property found in the possession of an offender deemed to be property that was used or intended to be used in the commission of the offence. That, effectively, reverses the onus of proof in respect of such property.
This is, in its baldest terms, an extremely wide provision. All the property in Mr Mitchell’s house and, indeed, the clothes he was wearing, were all items of property that were in his possession at the time the firearms were found in his possession. Indeed, the house itself and the Crown Lease may be regarded as having been in his possession at that time.
It does not seem to me that such a wide interpretation should be given to the subsection. To do so would render property that had no conceivable relevant connection with the offence, such as the food in his refrigerator and, indeed, the refrigerator itself, tainted property. To so find would, in my view, be absurd.
Ordinarily, legislation would not be construed to interfere with vested property rights. See Clunies-Ross v Commonwealth (1984) 155 CLR 193 at 199-200. Thus, while I have found above (at [19]) that the Confiscation of Criminal Assets Act, is valid, it should be construed as narrowly as the words can fairly and reasonably be interpreted. See Potter v Minahan (1908) 7 CLR 277 at 304.
In this case, it is difficult to see how the words of the statute can be limited because of the apparent width of their clear terms. The section, however, seems to recognise this by making the presumption in the sub-section rebuttable. In order to respect the appropriate approach to fundamental rights, however, it would be proper to provide a reasonably low threshold that Mr Mitchell must reach in order to rebut the presumption.
In this case, the evidence shows that he had not used the firearms. He has shown himself to be a gross hoarder. It was not necessary for him to have the ammunition in order to possess them. The ammunition contributed nothing to his custody or control of them. Indeed, the possession of the ammunition was a separate, discrete offence.
In my view, Mr Mitchell has discharged the onus of showing that the possession of the ammunition and the reloading equipment was not used in relation to the commission of the offence of which he was convicted.
Disposition
Accordingly, I will make an order forfeiting the firearms, which Mr Mitchell did not contest. I will order that the bags and accessories also be forfeited.
As to the reloading equipment, Mr Mitchell is authorised to have that returned to him. I give effect to that by dismissing the application in relation to that property.
The ammunition, however, is in a somewhat different situation, for it can only be possessed if Mr Mitchell is authorised to do so. That authority seems to come as a condition of a firearm licence. See ss 73 and 94 of the Firearms Act. He has no licence and, in the light of the convictions I have entered, he is unlikely to gain one. Thus, the ammunition cannot be returned to him, though he still owns it as it has not been forfeited. Without an order, it cannot be forfeited or otherwise dealt with by the Australian Federal Police or an agency of the Territory.
It was proposed by Ms Warwick that it be released to Tough Gear Hunting Supplies, a licensed firearm dealer. Presumably that business would sell it and give the proceeds to Mr Mitchell.
I assume that, were Mr Mitchell to give Tough Gear Hunting Supplies an authority in writing directed to the Australian Federal Police to deliver the items to that business, there would be no bar to the release of that property to that business. The Police would have no proprietary entitlement to retain the items. While Mr Mitchell may not have a right to possession of them because of the absence of a licence, he is still the owner and can direct any person to obtain possession. As owner, he can direct any person to receive them on his behalf. If that person has an appropriate licence to possess them, there appears to me to be no impediment to them doing so, even as agent or bailee of them on behalf of the owner.
I do not consider that I can direct the police to act in this way, certainly not without specific evidence from Mr Mitchell. I will, however, reserve liberty to the parties to apply to have the matter relisted, in the event that there is some problem with this proposal which can be solved by curial intervention.
| I certify that the preceding seventy-five [75] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 9 May 2016 |
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