ACT Director of Public Prosecutions v King
[2016] ACTSC 35
•23 February 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | ACT Director of Public Prosecutions v King |
Citation: | [2016] ACTSC 35 |
Hearing Date: | 23 February 2016 |
DecisionDate: Delivery of reasons: | 23 February 2016 23 March 2016 |
Before: | Refshauge J |
Decision: | 1. That the title of the proceedings be amended to describe the Commonwealth Bank of Australia as the third defendant. 2. That it is not necessary to amend the title of documents filed in the proceedings prior to the date of this order. |
Catchwords: | CIVIL LAW – Jurisdiction, practice and procedure – application for restraining order – confiscation of criminal assets – ex parte application – correct description of parties to application – ‘interested person’ – defendant CIVIL LAW – Jurisdiction, practice and procedure – affidavit in support of application for restraining order – formatting errors – title of affidavit incorrect – pages not consecutively numbered – error of substance – incorrectly identified annexures – statements of belief and suspicion – grounds for belief or suspicion CIVIL LAW – Jurisdiction, practice and procedure – restraining order – property to be restrained – nature of property – ambiguity in statute – physical object as property – interest in Crown Lease as property – effective control of property CRIMINAL LAW – Trafficking in a traffickable quantity of cannabis – cultivating a controlled plant – serious offence |
Legislation Cited: | Confiscation of Criminal Assets Act 2003 (ACT), ss 10, 11, 14, 19, 24, 26(2)(a), 29, 29(5)(a), 31, 31(2), 31(2)(a), 31(4), 32, 32(1)(c), 35, 36, 75(2), 76(4), 77(4), 107, 236, 243, 243(2), 243(5), 244(2), 244(2)(d), 244(4), 253(1)(d), 259, Pt 9, Dictionary Court Procedures Rules 2006 (ACT), rr 20, 612, 6103, 6710(1)(d), 6719 Proceeds of Crime Act 2002 (Cth), s 338 Criminal Code 2002 (ACT), ss 603(5), 604, 618(2)(a), 619(1), 619(3), 619(5), 619(7) |
Cases Cited: | Blamey v Blamey [1902] WN 138 Commissioner for Corporate Affairs v Guardian Investments Pty Ltd [1984] VR 1019 |
Texts Cited: | W Hohfeld, “Some Fundamental Legal Conceptions as Applied to Judicial Reasoning” (1913) 23 Yale Law Journal 16 |
Parties: | ACT Director of Public Prosecutions (Plaintiff) Gregory William King (First Defendant) Kim Maree King (Second Defendant) Commonwealth Bank of Australia (First Interested Party) |
Representation: | Counsel Mr A Williamson (Plaintiff) Non appearance (Defendants) |
| Solicitors ACT Director of Public Prosecutions (Plaintiff) Non appearance (Defendants) | |
File Number: | SC 76 of 2016 |
REFSHAUGE J:
Following an operation conducted jointly between ACT Policing and NSW Police, police officers entered residential premises in Chisholm under a search warrant and located $22,000 in cash and, in various locations, cannabis, which, in total, weighed 9.9 kgs. The defendant, Gregory William King, was arrested and charged with trafficking in a traffickable quantity of cannabis.
Application for a Restraining Order
Application has now been made by the ACT Director of Public Prosecutions, as plaintiff, for a restraining order under s 31(2) of the Confiscation of Criminal Assets Act 2003 (ACT) (the Confiscation Act), in respect of certain property, namely the residential property in Chisholm, a motor vehicle, being a Mazda station wagon, and the cash found in the Chisholm property. This property is more particularly described below. The application was supported by the required affidavit of a police officer.
A restraining order, if made on the application, prohibits any party from dealing with the restrained property specified in the order other than in accordance with the order, another order under the Confiscation Act or with that Act: s 19 of the Confiscation Act. Any dealings in contravention of the order may be set aside: s 24 of the Confiscation Act.
The scheme of the legislation and some requirements have been helpfully set out by Mossop AsJ in Director of Public Prosecutions v Tomas [2015] ACTSC 233 (Tomas) at [11]-[12].
It is, however, relevant to note the caution expressed by Carter J in Re An Application Pursuant to the Drugs Misuse Act 1986 [1988] 2 Qd R 506 at 508:
The consequences of the making of a restraining order are far-reaching. An order made pursuant to s 41 constitutes a statutory restraint upon the exercise of fundamental rights in respect of property which a person may need to use in the course of his everyday living.
...
The restraining order under s 41 is, in my view, akin to an interlocutory injunction pending trial but its consequences are more extensive. The purpose of the latter is essentially to maintain the status quo. The purpose of the former is not only that but also it substantially impairs the exercise of property rights and dispossesses the person charged with an offence of his property pending the determination of the question whether the property in question is to be forfeited to the Crown. It needs to be observed in this context that the power to make a restraining order under s 41, like the making of an interlocutory injunction, is discretionary. Since it involves the exercise of a discretionary power, it can only be validly exercised in accordance with those legal principles which govern the proper exercise of a discretion.
The comment of his Honour about the similarity with an interlocutory injunction is re-inforced by the requirement in s 31(4) of the Confiscation Act permitting the court to refuse to make a restraining order if the applicant Director of Public Prosecutions does not give an undertaking as to damages.
Since applications may be made ex parte, as I refer below (at [9]-[15]), it is important for the court to scrutinise the application carefully to ensure that the Confiscation Act requirements have been adequately met and that a proper case has been made out for the making of the restraining order.
On 23 February 2016, I made a restraining order in the terms sought. These are my reasons for doing so.
Ex parte application
The application was, as permitted under s 243(2) of the Confiscation Act, made ex parte.
There is no direct provision in the Confiscation Act or the Court Procedures Rules 2006 (ACT) for an application to be made ex parte. Indeed, s 244 of the Confiscation Act requires notice to be given to persons listed in that section.
That section is subject, however, to s 243 of the Confiscation Act, which applies to applications for a restraining order, such as this proceeding, and then relevantly provides:
(2) An application to begin a restricted access proceeding may be made to a relevant court without notice to the person against whom the relevant order is sought.
(3) If an application is made to begin a restricted access proceeding without notice to the person against whom the relevant order is sought, the applicant is the only party to the application.
(4) If notice is given to the person against whom the order is sought, the person is entitled to appear and to present evidence at the hearing of the application, but the person’s absence does not prevent the court from making the order.
(5) The relevant court must hold a restricted access proceeding in closed court if the applicant asks and may give directions about who may be present.
It appears that, despite the term, “restricted access proceedings”, such proceedings are those where the notice of the application to, and presence at the hearing of, persons other than the applicant are restricted.
As can be seen, the reference to “restricted access proceedings” does not simply mean that disclosure about the conduct and results of proceedings is to be limited. Indeed, disclosure about these matters are dealt with separately under ss 35 and 36 of the Confiscation Act.
Thus, while it may seem somewhat unusual that an applicant can, by merely requesting the proceedings be commenced as restricted access proceedings, give himself, herself or itself a discretion as to service and whether the matter is heard in closed court, that seems to be what the Confiscation Act provides. Indeed, when it is accepted that applications for interim injunctions and other urgent orders which are made in inter partes civil proceedings are usually heard ex parte at the request of the plaintiff, this is not, perhaps, so unusual at all.
This application was heard ex parte, but the Court was not closed and no directions were given under s 243(5) of the Confiscation Act.
The offences
An application for a restraining order must be made with respect to an offence or offences in relation to which the property was used or from which offence the property was derived: s 26(2)(a) of the Confiscation Act. The phrase “in relation to” is defined very widely in the Dictionary to the Act.
The Confiscation Act expressly permits an application in reliance on offences that are not particularised; that is to say, s 32 prohibits a court from refusing an application only because the police officer in the supporting affidavit does not have “any belief that a particular serious offences was committed within the relevant period” or that the offence was committed on “a particular day or time”.
This would mean that, for example, the officer may express a belief that the offender has committed an offence of trafficking in cannabis without being able to say, because the quantity was not then known, that it was an offence against the following provisions of the Criminal Code 2002 (ACT): s 619(1) selling a controlled plant (large commercial quantity), s 619(3) selling a controlled plant (commercial quantity), s 619(5) selling a controlled plant (traffickable quantity) or s 619(7) selling a controlled plant. Indeed, the officer may not know whether the offence was against one of the provisions of s 603 as the form of the cannabis was not then clear to him or her.
The beliefs of the police officer about such matters do not have to be based on reasonable grounds (s 32(1)(c) of the Confiscation Act). Given the importance of a stated offence to the justification of the making of a restraining order, this is a curious provision, with an odd inconsistency with s 31(2)(a) which requires the court to be satisfied that there are reasonable grounds for the beliefs and suspicions of the police officer otherwise expressed in the supporting affidavit, but it may simply be the case of a special case (s 32) which modifies the more general case (s 31).
I do not have to resolve whether there is any such inconsistency in this case.
The first mentioned offence was a count of trafficking in a traffickable quantity of cannabis on 16 December 2015, contrary to s 603(5) of the Criminal Code, for which the maximum penalty prescribed is 1,000 penalty units and ten years imprisonment. This offence is, therefore, within the definition of a serious offence in the Confiscation Act.
The second mentioned offence was a further count of trafficking in a traffickable quantity of cannabis, but on 23 August 2013. This is, again, a serious offence, for the same reason.
The third mentioned offence was a count of cultivating a controlled plant, namely cannabis plants, between May 2013 and December 2015, which is contrary to s 618(2)(a) of the Criminal Code which prescribes a maximum penalty of 200 penalty units and imprisonment for two years. This is, thus, an ordinary offence and not a serious offence within the meaning of the Confiscation Act.
The first mentioned offence arises from the search of the Chisholm premises on 16 December 2015, when police located an amount of cannabis, in total in excess of 9.9 kgs of cannabis, that exceeded the traffickable quantity, thereby entitling police to lay a charge of trafficking in cannabis in reliance on the statutory presumption in s 604 of the Criminal Code.
The second mentioned offence arose out of a police operation during which Mr King sold 23 pounds of cannabis for $56,700 to an undercover operative on 23 August 2013.
The third mentioned offence was said to have been committed because of certain findings by police when executing the search warrant at the Chisholm residence. Police found that one of the three car spaces in the garage to the premises had been partitioned off, the window blackened, and the room thus treated contained a hydroponic cultivation tent with an air filter. Other items associated with plant cultivation was found. Plant clippings, believed to be cannabis plants, were also found.
This offence, however, was not one which was intended to be prosecuted. No evidence was adduced that an information or indictment had been laid or was to be laid within a required specified time. Indeed, the assertion was that the deponent police officer believed that the Director of Public Prosecutions proposed to commence civil forfeiture proceedings and penalty order proceedings in respect of this offence (and, indeed, the second mentioned offence) within six weeks.
That intention permits a restraining order to be made in respect of property used in relation to an offence or derived from an offence but only for serious offences. The third mentioned offence is an ordinary offence. Accordingly, a pre-condition for the making of a restraining order in respect of any property used in relation to this offence or derived from it is not made out.
Accordingly, I shall not rely further on this offence. There was, however, no property sought to be restrained in this application that relied solely on this offence to found the restraining order.
One further offence was unspecified, namely trafficking in cannabis between 23 August 2013 and 16 December 2015. This offence was identified as the source of the cash found in the Chisholm premises. It is a serious offence.
Parties to the application
There were, in addition to Mr King, two other parties named in the Originating Application. These were the partner of Mr King, Kim Maree King, who jointly owned the Chisholm premises and who also owned the Mazda station wagon, and the Commonwealth Bank of Australia, a mortgagee of the Chisholm premises. Ms King was described as the second defendant.
Regrettably, the Originating Application was entitled in a different way to the supporting affidavit, which had described Ms King as an “interested party”, as was the Commonwealth Bank of Australia. They clearly were both an “interested person” with the meaning of s 107 of the Confiscation Act.
Mr A Williamson, who appeared for the plaintiff, submitted that where the specified property of particular persons was to be the subject of a restraint under the order, those persons should be made defendants; it was only where such person merely had an interest which may be affected but which interest was not intended to be directly restrained, that they should be described only as interested parties. I understand the intention behind such a distinction and accept that the intention is a reasonable and understandable one. The question is whether it should make persons different parties or differently described parties.
Perhaps, unsurprisingly, the Confiscation Act is not entirely clear on this matter of procedure, though it has to be noted that the Act does prescribe matters of procedure in more detail than might ordinarily be expected in primary legislation.
Thus, the Confiscation Act prescribes much by way of procedure, as well as pre-conditions for the making of a restraining order, but it is by no means a code for all procedure.
In particular, the Confiscation Act is not clear about who the parties are to confiscation proceedings (which include applications for a restraining order: s 236), though there is a reference to parties in s 243 of the Act. Of course, a person ordinarily does not become a party to proceedings until served with an originating process or otherwise given notice of the proceedings: Re Evans; Evans v Noton [1983] 1 Ch 252 at 264.
The Confiscation Act does refer to an “interested person” in s 107 (though not “interested parties”), but only for the purposes of Pt 9 (Forfeiture Orders). That section includes in the definition of “interested person” in the first place “a person who has an interest in the property”. This would, of course, include the owner of the property as well as someone with another interest such as a mortgagee or a lessee. The definition, however, goes on to include other people who are not at all in that category, namely the Director of Public Prosecutions (who will almost inevitably be the plaintiff in proceedings under the Confiscation Act), the trustee who controls property and a person who had an interest in forfeited property immediately before it was forfeited. Thus, it is not really appropriate as a matter of discrimination between parties to refer to a party adverse to the applicant Director of Public Prosecutions (who is defined as an interested person) as an interested party.
In the other parts of the Confiscation Act, reference is made to the offender, but the property sought to be restrained and then forfeited need not necessarily be property of the offender: see, for example, ss 10, 11, 14 and 29(5)(a) of the Confiscation Act.
The Confiscation Act also permits persons other than offenders to make interlocutory applications, for example for an exclusion order: see s 76(4) of the Confiscation Act.
Finally, the Confiscation Act requires that, subject to s 243, notice of the making of an application in proceedings under the Act must be given to “the person in relation to whom the order is sought” but also to “anyone else the applicant believes may have an interest in the property or benefits ... the subject of the proceedings”: s 244(2). Under s 244(4), a person who proposes to oppose the application must give the applicant written notice of the grounds on which the application is opposed. No prescribed forms under s 259 of the Confiscation Act or s 8(1)(b) of the Court Procedures Act 2004 (ACT) have been made for these purposes.
It is not entirely clear who will be a person in relation to whom an order is sought when application is made for a restraining order. In this case, the interests of Mr King and Ms King alone in the Chisholm property are sought to be restrained. The interests of the mortgagee, the Commonwealth Bank of Australia, is not apparently intended to be directly affected but, depending on the precise circumstances, may, in fact, be affected in some way.
In my view, there is no warrant for making a distinction between any of the persons who have an interest in property such as between an “owner” or another person with an interest, such as lessee, chargee or mortgagee. Indeed, in many places, the Confiscation Act makes no such distinction: see, for example, ss 75(2), 244(2)(d), 253(1)(d).
I am also concerned that a person who has an interest in property that may be restrained should not be lulled into a false sense of security by the description that is given of them as a party and which may suggest that the party described as an “interested party” need not take an active part in the application. That may be to that person’s detriment.
Neither the Director of Public Prosecutions nor the Australian Federal Police will necessarily know how an order, such as a restraining order, will affect a person who has an interest in property the subject of such an order. Thus, a decision to describe a party in the way suggested may, unintentionally, be misleading.
While it is, perhaps, understandable that the applicant does not wish to appear to sue persons by describing them as defendants when they may not be directly involved in the offending behaviour and whose proprietary interests may not be affected, it does seem to me they are, in fact, defendants. This is consistent with r 20 of the Court Procedures Rules. Their role can be seen, not by their description as a party but in the actual orders sought set out in the Originating Application.
I note that neither the Confiscation Act nor the Court Procedures Rules provide any basis for describing any party to confiscation proceedings as other than a defendant. Indeed, the Court Procedures Rules strongly imply that such persons are defendants. This would require, in this case, the Commonwealth Bank of Australia to be described as a defendant.
I have already, however, given the plaintiff leave to amend the title of the proceedings (by filing an Amended Originating Application), which described Mr King as the first defendant, Ms King as the second defendant and the Commonwealth Bank of Australia as an interested party. The order has been issued under that amended title. I shall, however, direct that the title to the proceedings now be amended to describe the Commonwealth Bank of Australia as the Third Defendant.
Affidavit in Support of the Application
The application was supported by an affidavit made by a police officer, as required under s 29 of the Confiscation Act.
That affidavit complied with the following provisions of the Confiscation Act by making the following statements:
s 27(1) that the application was not in relation to artistic profits;
s 27(2) that the application was made within 2 years after the information charging Mr King with the first mentioned offence was laid, being an offence alleged to have been committed on 16 December 2015;
s 29(1)(a) that the police officer believed that an information had been laid in the Magistrates Court on 16 December 2015 charging Mr King with the offence of trafficking in a traffickable quantity of cannabis contrary to s 603(5) of the Criminal Code 2002 (ACT), punishable by imprisonment for ten years and so a serious offence under s 13 of the Confiscation Act. The grounds of the police officer’s belief were satisfactorily set out, namely an assertion that a court bench sheet for the offence had been created;
s 29(1)(b) that the police officer suspected that Mr King had committed two other offences, with which he had not been charged, namely:
(a) trafficking in a traffickable quantity of cannabis on 23 August 2013, also an offence contrary to s 603(5) of the Criminal Code, and that the plaintiff intended to commence civil forfeiture and penalty order proceedings within six weeks in relation to these offences. The source of her suspicion was also satisfactorily set out, being the findings set out in the affidavit of surveillance of Mr King and of the execution of the search warrant of the Chisholm premises. As to the intentions to commence the required proceedings, this came from an email communication to that effect from the office of the Director of Public Prosecutions. A further offence, as noted above (at [23], [26]-[29]), did not justify making a restraining order and it need be considered no further;
(b) trafficking in cannabis between 2013 and 2016, an unspecified offence;
s 29(5)(a) that the police officer suspected that the Chisholm property was jointly owned by Mr King and Ms King, a suspicion amply supported by the results of a Search of the Records in the Land Titles Office;
that the police officer suspected that the cash sum of $22,000 was owned by Mr King. The source of that suspicion was that Mr King had, on 23 August 2013, received the sum of $46,700 for 23 pounds of cannabis and, when police searched the Chisholm premises on 16 December 2015, that the cash in $100, $50 and $20 notes was found on a bench in the kitchen of the premises, being the same premises as was found the 9.9 kgs of cannabis, and an area in the premises had been established for cultivating cannabis hydroponically, as well as the results of surveillance. There were other people in the premises at the time. I deal with this issue further below;
s 29(5)(b) that the police officer suspected that the Mazda motor vehicle, which Road Transport Authority records showed was owned by Ms King, was tainted property under s 10 of the Confiscation Act because it was said to have been used in relation to the offence with which Mr King had been charged, and that he had effective control of the vehicle. I shall deal with that below;
s 29(6)(a) that the police officer believed that the property sought to be restrained may be required to satisfy one or more purposes mentioned in s 22 of the Confiscation Act, which purposes include a forfeiture under a civil forfeiture order and a penalty order, both of which were satisfactorily referred to in the affidavit;
s 29(8) subject to my comments below, the affidavit set out the grounds for the belief or suspicion of the police officer who made the affidavit.
The form of the affidavit
Unfortunately, however, the affidavit had some errors in it, though at least one cannot be said to be other than minor.
In the first place, the affidavit referred to Annexure “A” as the Bench Sheet from the Magistrates Court in respect of the trafficking charge laid against Mr King on 16 December 2015. Unfortunately, that was not what was annexed as Annexure “A”; it was a Police Statement of Facts, though for that offence. Then Annexure “B” was said to be that Statement of Facts but it was, in fact, the Bench Sheet. The Annexures had clearly been inadvertently transposed.
This is a disturbing error, though human error cannot always be eliminated. The making of an affidavit is, however, a serious matter and the deponent has made a solemn promise as to the truth of what is asserted in it. In this case, those assertions are untrue so far as references to these annexures are concerned. That the error is an understandable one does not detract from its seriousness.
I have power under r 6719 of the Court Procedures Rules to accept an affidavit which is irregular in form. This error, however, is not one of form; it is one of substance. Just as a court cannot amend an affidavit, it must be uplifted, corrected and re-sworn (Underdown v Stannard [1871] WN 171) so I cannot re-arrange the annexures. As Barrett J pointed out in Fastlink Calling Pty Ltd v Macquarie Telecom Pty Ltd [2008] NSWSC 299 at [52]:
This case illustrates the high price that may have to be paid for lack of attention to simple matters of detail.
In the event, I considered that I could receive the affidavit without Annexures “A” and “B” and Mr Williamson agreed that, in the particular circumstances, the plaintiff was not prejudiced by that course being adopted.
There were two formal defects, however. The first was that the title on the affidavit was not consistent with the title of the amended Originating Application which, of course, amended the title to the proceedings.
It may be that, while the contents, including the description of the deponent and the jurat of an affidavit, cannot be amended, the title may be amended. An overseas affidavit without any title at all was used in Blamey v Blamey [1902] WN 138. I do not have to decide whether the title to a sworn or affirmed affidavit can be amended but I can give leave, under r 6719 of the Court Procedures Rules, to use the affidavit in the proceedings, notwithstanding this irregularity, which I did.
The second was that, contrary to the requirement under r 6710(1)(d) of the Court Procedures Rules, the pages of the affidavit and the extensive annexures (which latter totalled 49 pages) were not consecutively numbered. See also the requirements for documents under r 6103.
This is not a mere matter of technicality. The unnumbered pages of annexures, especially multi page annexures, can be particularly difficult to turn up and identify if they are not sequentially numbered. This is not only time consuming, but can be confusing and confusion can lead to error or worse.
Rule 6103 has been in its present form since the Court Procedures Rules were made on 1 July 2006 and r 6710(1)(d) was inserted on 29 June 2009 so these provisions should by now be well-known.
Neither of these irregularities justify refusal to receive and read the affidavit, so I exercised my power under r 6719 of the Court Procedures Rules to give leave to use it in the proceedings and I received and read it.
There was, also, a small but obvious typographical error in one paragraph of the affidavit but it was immaterial and, in my view, could be overlooked.
The property sought to be restrained
There were three items of property sought to be restrained. The first was described as the interest of Mr King and Ms King in the Crown Lease of certain land in the Territory on which was a residence in which police, when executing the search warrant on 16 December 2015, located the cannabis and the room set up, apparently, for hydroponic cannabis cultivation. This was the use of the property, namely the premises, in which the traffickable quantity of cannabis was located, thus it was used in relation to the first offence (in this case “in” and “in connection with” the offence), given especially the wide definition in the Dictionary of the Confiscation Act to the phrase “in relation to”.
It was also the property on which it was suspected that cannabis was cultivated and which was trafficked between 2013 and 2016. There has been some disagreement in this Court about the nature of the property which may be restrained. In Director of Public Prosecutions v Close [2015] ACTSC 10, Burns J gave consideration to the meaning of “property” in the Confiscation Act. His Honour noted the comment by distinguished legal philosopher, W Hohfeld in his article, “Some Fundamental Legal Conceptions as Applied to Judicial Reasoning” in (1913) 23 Yale Law Journal 16 at 21:
Sometimes it [i.e. ‘property’] is employed to indicate the physical object to which various legal rights, privileges, etc relate: then again – will far greater discrimination and accuracy – the word is used to denote the legal interest (or aggregate of legal relations) appertaining to such physical object.
Indeed, Professor Hohfeld went on to say appositely at 21-2:
Frequently, there is a rapid and fallacious shift from one meaning to the other. At times, also the term is used in such a ‘blended’ sense as to convey no definite meaning whatever.
His Honour also considered the definition of “property” in the Confiscation Act, namely that it “includes property in which the person has a beneficial interest”. It is, of course, an inclusive definition: Sherrit Gordon Mines Ltd v Federal Commissioner of Taxation [1977] VR 342 at 353. His Honour also referred to the Dictionary of the Legislation Act 2011 (ACT) of terms for use in other legislation, which defined “property” as meaning:
any legal or equitable estate or interest (whether present or future vested or contingent, or tangible or intangible) the real or personal property of any description...
His Honour relied on the Queensland decision of Director of Public Prosecutions (Cth) v Hart (No 2) [2005] 2 Qd R 246 where the Court held that property meant the physical object, the “thing” itself. That decision, however, related to a different definition of “property” contained in s 338 of the Proceeds of Crime Act 2002 (Cth).
His Honour, however, found that “property” in the Confiscation Act meant “the thing itself”: Director of Public Prosecutions v Close at [21]. His Honour did say, rather obliquely, that the meaning was “the primary meaning”.
In Tomas, Mossop AsJ, took a different view. His Honour pointed out (at [38]) that land – the “thing itself” – in the Territory is all Commonwealth land and that the Territory legislature has no power to forfeit Commonwealth owned land to the Territory. Thus, the Confiscation Act could only forfeit the Crown Lease of the person who leases the land from the Commonwealth though this person is colloquially – and, I suspect, in conveyancing practice in the Territory – described as “the owner of the land”. Thus, at least so far as land is concerned, the interest able to be restrained or forfeited under the Confiscation Act, can only be the Crown Lease, not the land, the “physical object”.
Burns J was concerned in Director of Public Prosecutions v Close, at [17], that, were the property to be only the interests of the person (offender or other), then the reference in s 77(4) of the Confiscation Act, which entitles an “innocent” third party to seek exclusion of forfeiture of his, her or its interests would be absurd, since the interests of the person and the third party would be mutually exclusive.
I am not satisfied that this is so. The Crown lessee would have an interest in the land as Crown lessee. His, her or its interest would be the interest he, she or it has in the Crown Lease. A mortgagee or other encumbrancer would also have an interest in the Crown Lease. The Crown Lease is, of course, a document, but the property is the bundle of rights given under it. Thus, the Crown Lease is not, for these purposes, a physical thing, but a bundle of rights and while, of course, the owner and mortgagee have different rights, not necessarily shared, it does no violence to the language of the Confiscation Act to say that both have interests in the Crown Lease which is the property.
I prefer the conclusion of Mossop AsJ in Tomas, though I have not heard full argument on the issue.
Nevertheless, the Confiscation Act itself seems to use “property” in various, ambiguous and perhaps even inconsistent ways. Thus, the effective control of property referred to in s 14 of the Act applies whether or not a person has an interest in the property. Here, property must include the physical thing. In this case, the police allege that the motor vehicle was under the effective control of Mr King because he used it and drove in it. This has nothing to do with an interest in the vehicle, but dominion over the physical thing. It does not seem to me, for example, that it requires that Mr King have the right of an owner, such as to sell the motor vehicle.
Thus, while preferring the conclusions of Mossop AsJ, I am not convinced that, despite the various definitions, “property” as used in the Confiscation Act does not include the physical thing in appropriate cases. This seems tolerably clear from the examples to s 10 of the Confiscation Act, which refer in a number of cases to physical things. It could be argued that the reference is elliptical so as to mean the ownership rights in respect of the thing, but that does not seem to me to be the way in which it is used there.
Accordingly, I am satisfied that the court can make a restraining order over the interests of Mr King and Ms King in the Crown Lease of the Chisholm residential premises.
The second item of property is the black Mazda CX9 vehicle, registered number YFV02U, registered to Ms King. Police saw Mr King, on 23 August 2013, drive up in it to the premises where he sold the 23 pounds of cannabis. Again, it is clear that this vehicle was used in relation to (that is “in” and “in connection with”) the offence.
Police further stated that Mr King had “effective control of the vehicle”. I am not satisfied that this is so more generally, though clearly so on 23 August 2013, when he was driving it without the registered owner being present.
The other evidence relied on in the supporting affidavit was that he had been seen “driving the vehicle regularly over a period of years”. The evidence did not say what “regularly” meant; it could mean every 1 January and at no other time. Regularly may be used more colloquially to be a synonym of “frequently”.
The more specific evidence was that surveillance showed Mr King
to have been driving the vehicle on a number of occasion in March 2013. Police observed the Defendant driving the vehicle in August 2013, April 2015 and June 2015.
Even assuming that there was more than one occasion on which Mr King drove the motor vehicle in each of the named months, it did not seem to me that this was either “regularly” or “frequently” for a period of over two years.
Nevertheless, in this case, no reliance was required to be placed on that further driving for, on 23 August 2013, Mr King not only used the vehicle in relation to the second mentioned offence but, at the time, had effective control of it. That justified the applicant seeking a restraining order over the vehicle.
The third item of property was cash of $22,000 found on the bench in the kitchen of the Chisholm residence. It was submitted that this was the proceeds of trafficking in cannabis between 2013 and 2016.
The evidence
The affidavit set out comprehensively the evidence on which I was asked to rely. As noted above (at [49]), it complied with the relevant provisions of the Confiscation Act.
It set out the occasion on 23 August 2013 when Mr King drove in the Mazda motor vehicle to an address in Canberra where he sold 23 pounds of cannabis to an undercover operative who paid $56,700 of which Mr King received $46,700. The motor vehicle was registered to Ms King but she was not in the car on this occasion.
The affidavit also referred to the execution of a search warrant at the Chisholm premises on 16 December 2015 where Mr King was interviewed, but declined to answer any questions.
During the search, police seized $22,000 in cash, in denominations of $100, $50 and $20, found on the bench in the kitchen of the premises beside a set of silver and black electronic scales and a quantity of clip seal bags, items usually associated with drug dealing.
Police then located a green Woolworths bag in a cupboard in the laundry of the premises. It contained loose green vegetable matter which was believed to be cannabis and which weighed approximately 50 grams. A white plastic bag was also located in the laundry cupboard, also containing green vegetable matter, believed to be cannabis, and weighing approximately 500 grams.
A black garbage bag containing dried green vegetable matter, believed to be cannabis, and weighing approximately 2.00 kilograms, was located under a computer desk in the kitchen of the premises. Two mobile phones, one containing multiple messages addressed to “Greg” were found on the computer desk. Police were unable to access the messages.
In a hanging space in a walk-through wardrobe in the master bedroom of the premises, police located a box previously used to contain a rice cooker. It contained three vacuum sealed bags of dried green vegetable matter, believed to be cannabis, and weighing approximately 2.8 kilograms. Also in the wardrobe was found another bag containing dried green vegetable matter, believed to be cannabis, and weighing approximately 50 grams.
After Mr King was arrested, a garbage bag was located in the garage of the premises. It contained a number of vacuum sealed bags of dried green vegetable matter, believed to be cannabis, weighing approximately 4.5 kilograms. A large black suitcase was also found in the garage; while it was empty, it smelt strongly of cannabis and police believe it contained traces of cannabis.
The garage was a three-car garage and one section had been partitioned off by gyprock. The window had been blackened and it contained an erected hydroponic cultivation tent, in which an air filter had been attached to the roof. Two electronic ballasts were fixed to a wall attached to a power board and several hydroponic lights were also located in and around the tent. Also located were other items associated with the cultivation of plants, including fertilisers, pH strips, pots and hoses. The tent smelled strongly of cannabis and a number of plant clippings, believed to be cannabis, were next to the tent. Mr King’s fingerprints were found within the tent.
The Chisholm premises were purchased in May 2013 for $617,500, subject to a mortgage to the Commonwealth Bank of Australia on which the balance as at 21 December 2015 was $285,469.99 in debit.
The property had been extensively renovated since its purchase; those renovations were estimated to have cost in excess of $100,000.
Ms King is employed as a cleaner, working 20 hours per week at an hourly rate of $21 gross before tax. Mr King engages in domestic duties and does not regularly attend a place of work. He has stated to police on three occasions between February 2008 and December 2015 that he is unemployed.
In August 2013, he received a total of $46,700 from the sale of cannabis, after leaving the intermediary with $10,000.
These facts lead to a finding, on the balance of probabilities, that the cash was the proceeds of trafficking in cannabis. As noted above (at [21]-[22]), that offence is a serious offence. This is not an offence charged; it does not have to be by virtue of s 32 of the Confiscation Act. It is not necessary for the offence to be the subject of an information or indictment if, being a serious charge, it is intended to apply for a civil forfeiture order or a penalty order in relation to it. That is what is intended. Thus, the cash may be the subject of a restraining order.
Helpfully, the deponent police officer then set out in her affidavit a summary of what were said to be her suspicions.
The Confiscation Act requires the affidavit of the deponent police officer to contain certain statements of belief and suspicion and, in most cases, the grounds for the belief or suspicion.
The list of suspicions in the affidavit extended beyond those required by the Confiscation Act and, in some cases, seemed to me not to be justified by the evidence. I mentioned earlier (at [76]-[80]) the suspicion that the Mazda motor vehicle was on occasions other than 23 August 2013 driven by Mr King, so as to be under his effective control in general. The evidence did not seem to justify that suspicion.
Suspicion is, of course, less than belief: Lai v The Queen (2003) 143 A Crim R 111 at 115; [21].
In Commissioner for Corporate Affairs v Guardian Investments Pty Ltd [1984] VR 1019 at 1024-5, the distinguished judge, Ormiston J, had occasion to consider the meaning of “suspect” as a verb. His Honour referred to the well-known statement of Kitto J in Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266 at 303, a decision since applied in the Supreme Courts of New South Wales and Queensland. His Honour indicated that he had looked at a number of authorities, including the decisions of this Court in Cruickshank v Warren (1976) 9 ACTR 30 and McIntosh v Webster (1980) 30 ACTR 19 and then concluded:
My conclusion is that the word "suspect" requires a degree of satisfaction, not necessarily amounting to belief, but at least extending beyond speculation as to whether an event has occurred or not.
Given that the Confiscation Act requires the grounds of the suspicion to be stated, the court, as it is required to do, is in a position to evaluate whether those grounds are, in fact, sufficient to convert speculation into suspicion.
In respect of the claimed suspicion that the motor vehicle was under Mr King’s effective control, I do not consider the evidence justified a suspicion; rather it was speculation. In the event, however, this was of no consequence, for the motor vehicle was tainted property as a result of its use in relation to the second mentioned offence.
I have set out above (at [49]), the statutorily required beliefs and suspicions and, in brief, the grounds of those beliefs and suspicions either there or later in these reasons.
Conclusion
I was satisfied that the beliefs and suspicions required to be stated by the police officer are based on reasonable grounds, save in respect of the motor vehicle.
I was also satisfied that the property sought to be restrained was used in relation to an offence for which Mr King was charged and in relation to offences for which, in a stated time, the plaintiff will commence proceedings for a civil forfeiture and or a penalty order.
The requisite pre-conditions for the grant of a restraining order in respect of the three items of property the subject of the application having been made out, I was prepared to and did make the restraining order sought.
These are my reasons for doing so.
| I certify that the preceding one hundred and seven [107] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 22 March 2016 |
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