ACT Director of Public Prosecutions v Tomas
[2016] ACTSC 223
•18 August 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | ACT Director of Public Prosecutions v Tomas | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Citation: | [2016] ACTSC 223 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Hearing Date: | 26 July 2016 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
DecisionDate: Reasons Date: | 26 July 2016 18 August 2016 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Before: | Refshauge J | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Decision: | 1. Under s 31(2) of the Confiscation of Criminal Assets Act 2003 (ACT) (the Act) the following property be restrained: (a) The First Defendant’s interest in the Crown lease over land described as Fisher, section 10, block 28 on deposited plan 2411 recorded in volume 541, folio 78 of the register kept by the Registrar General of the ACT, also known as 3 Rossarden Street, Fisher, ACT, estimated value $500,000; (b) The Third Defendant’s interest in the Crown lease over land described as Fisher, section 10, block 28 on deposited plan 2411 recorded in volume 541, folio 78 of the register kept by the Registrar General of the ACT, also known as 3 Rossarden Street, Fisher, ACT, estimated value $500,000; (c) A silver coloured, 2013 model, Nissan Navarra motor vehicle, VIN VSKCAND40A0508961, engine number V9X022017C, bearing ACT registration YJL 51Z, estimated value $35,000; and (d) 34 items seized from 3 Rossarden Street, Fisher, ACT, as listed in the following table, total estimated value $17,235.40.
2. Under s 31(3)(a) of the Act, the ACT Public Trustee take control of the property referred to in order 1(c) and (d). And the Court states that: 3. This is a restraining order under the Confiscation of Criminal Assets Act 2003 (ACT). 4. The First, Second, Third, Fifth and Sixth Defendants are the people whose property this order applies to. 5. The First, Second, Third, Fifth and Sixth Defendants must not deal with the property mentioned in this order except in accordance with the Act. And the Court notes that: 6. The Plaintiff gives an undertaking as to costs and damages in accordance with s 31(4) of the Confiscation of Criminal Assets Act 2003 (ACT). | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Catchwords: | CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – application for restraining order – confiscation of criminal assets CIVIL LAW – JURISDICTION, PRACTICE AND PROCEDURE – confiscation of criminal assets – law reform – procedural provisions in primary legislation – generally undesirable – alternative measures | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Legislation Cited: | Confiscation of Criminal Assets Act 2003 (ACT), ss 10(1), 13, 13(2), 19, 22, 26(1), 26(2), 26(3), 27(1), 29(1)(a), 29(5), 29(5)(a), 29(5)(b), 29(6)(a), 29(8), 31(2), 31(2)(a), 31(3)(a), 31(4), 33, Div 5.1, 5.2, 8.1 Land Titles Act 1925 (ACT) Court Procedures Rules 2004 (ACT), s 11 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Cases Cited: | ACT Director of Public Prosecutions v King [2016] ACTSC 35 R v Walmsley [2011] ACTSC 173 | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Parties: | ACT Director of Public Prosecutions (Plaintiff) Tomislav Tomas (First Defendant) Tom’s Carpet Laying Pty Ltd (Second Defendant) Anna Tomas (Third Defendant) National Australia Bank Ltd (Fourth Defendant) Nissan Financial Services Australia Pty Ltd (Fifth Defendant) Zoran Milenkovic (Sixth Defendant) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Representation: | Counsel Mr A Williamson (Crown) Non-appearance (Defendants) | |||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
| Solicitors ACT Director of Public Prosecutions (Plaintiff) Non-appearance (Defendants) | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
File Number: | SC 273 of 2016 |
REFSHAUGE J:
Late on 23 May 2015, police entered premises at 3 Rossarden Street, Fisher, ACT, and discovered that the house was used for the cultivation of cannabis in a sophisticated hydroponic operation.
As a result, the first defendant, Tomislav Tomas, and a co-accused, Zoran Milenkovic, were arrested.
After proceedings in the ACT Magistrates Court, Mr Tomas was committed for trial to this Court and, on 11 September 2015, an indictment was filed charging him with, between 20 April 2015 and 24 May 2015, cultivating a traffickable quantity of cannabis with the intention of selling any part of the plant or its product and, between the same dates, trafficking in a commercial quantity of a controlled drug, namely cannabis.
Mr Tomas entered a plea of guilty on 27 May 2016 to the charges and the proceedings have been listed for sentence on 10 August 2016.
Application has now been made under s 26(1) of the Confiscation of Criminal Assets Act 2003 (ACT) (Confiscation Act) for a restraining order in relation to certain property set out in the Originating Application.
The hearing
When the matter was called, the plaintiff was represented by Mr A Williamson, but there was no appearance for any other party. The other parties were called outside the court but did not appear. I read affidavits of service which deposed to service of the Originating Application and supporting affidavit on each of the defendants. I was satisfied that it was appropriate to proceed.
The Originating Application set out the matters required to be stated in s 26(2) of the Confiscation Act and was supported by an affidavit of a police officer, Detective Senior Constable Woodburn, a requirement under s 26(3) of the Confiscation Act. I read the affidavit.
The orders sought were that the following property be restrained: the first and second defendants' interest in the Crown Lease over the property known as 3 Rossarden Street, Fisher, a Nissan Navara motor vehicle and 34 other items, principally electrical and lighting system items, as well as a Sunbeam vacuum sealer. To be restrained means, under s 19 of the Confiscation Act, that a person must not deal with the property except in accordance with the order, another valid order or the Confiscation Act.
The reference to the second defendant’s interest in the Crown Lease of the Fisher property was incorrect, probably inadvertently. The search of the land titles register held by the Registrar-General under the Land Titles Act 1925 (ACT), shows that the property is in the joint names of the first and third defendants.
I did not require amendment to the Originating Application but obviously the order to be made should specify accurately the person whose interests are actually to be restrained.
I have referred in ACT Director of Public Prosecutions v King [2016] ACTSC 35 at [4]-[6], to an analysis of the Confiscation Act and set out various procedural considerations relevant to such proceedings. This application was consistent with what I there set out.
The evidence
Detective Senior Constable Woodburn annexed a copy of the indictment to his affidavit and also a copy of the police Statement of Facts prepared for the proceedings in the Magistrates Court.
The Statement of Facts asserted that information had been received by police about possible drug related activity at the Fisher residence and, as a result, surveillance was commenced of the property. It stated that, although no-one apparently lived at the property, two vehicles attended every second day, one a silver coloured Nissan Navara and the other a black coloured Volkswagen.
The Statement of Facts asserted that the Navara motor vehicle was registered to the second defendant, Tom’s Carpet Laying Pty Ltd. The address of the registration is the address of the first and the third defendants, Mr Tomas and Anna Tomas. Mrs Tomas appears to be the wife of Mr Tomas.
It was further stated that, on nine occasions between 21 April and 22 May 2015, surveillance by police of the premises showed Mr Tomas or Mr Milenkovic or both attending the premises for periods of between about twenty five minutes and two hours.
It was also stated that, on 23 May 2015, the surveillance showed them arriving at about 10.45am and still there when police attended at 4.49pm.
According to the Police Statement of Facts, when police entered the premises they found five rooms in the house were being used to cultivate and harvest cannabis, that is every room in the house except for the laundry, bathroom and toilet.
The operation was described in the Statement as follows:
These rooms had sophisticated lighting, irrigation, climate control and exhaust systems set up to aid the cultivation and harvesting of cannabis, as well as plastic sheeting attached to all four walls, the roof and the floor. Three rooms contained a total of 29 cannabis plants in various stages of maturity. The fourth room, being the kitchen, had a free-standing cupboard containing five small cannabis plants. Within was also an exhaust fan and lighting set up. The fifth room contained drying beds and four large garbage bins filled with cannabis bud. The estimated weight of this cannabis bud is in excess of 30 kilograms.
Police also observed a handwritten set of instructions which stipulated in detail a week by week process for cultivating cannabis plants. Police observed that the list described what chemicals are to be used and at what stages of the cannabis grow cycle. There was also mention of how long to set timers for irrigational purposes.
The application
The Confiscation Act requires certain matters to be asserted or proved to the satisfaction of the court.
I read the affidavit of Detective Senior Constable Woodburn and the annexures to it. From that, I can make the following findings.
The application is not in relation to artistic profits (s 27(1) of the Confiscation Act).
Detective Senior Constable Woodburn deposed that he believed that an indictment had been presented to this Court (s 29(1)(a) of the Confiscation Act). He annexed a copy of the indictment and deposed that, on 27 May 2016, Mr Tomas had pleaded guilty to the indictment. Generally, in this jurisdiction, the indictment is filed and usually well before the trial. See R v Walmsley [2011] ACTSC 173 at [6]. It seems to me, however, that this is or is equivalent to the presentation of the indictment and that the date of filing would be the date the indictment is presented relevant to the Confiscation Act.
Detective Senior Constable Woodburn deposed that he believed that the application had been made within the prescribed time, namely within two years after the day the indictment was presented (s 27(3) of the Confiscation Act). As noted above (at [3]), the indictment in this matter was filed on 11 September 2015.
The offences with which Mr Tomas has been charged are relevant offences (s 29(1)(a) of the Confiscation Act). “Relevant offence” means, inter alia, an offence punishable by imprisonment for longer than twelve months: s 13 of the Confiscation Act. The charge of cultivating a traffickable quantity of cannabis with the intention of selling any part of the plant or its product is an offence against s 616(5) of the Criminal Code 2002 (ACT) and, so far as imprisonment is concerned, attracts a maximum penalty of ten years imprisonment. It is, thus, a relevant offence. The other offence was trafficking in a commercial quantity of a controlled drug, namely cannabis, an offence against s 603(3) of the Criminal Code. That offence, so far as imprisonment is concerned, attracts a maximum penalty of 25 years imprisonment. It is also a relevant offence. Both the offences are also “serious offences” because the maximum term of imprisonment is more than five years (s 13(2) of the Confiscation Act).
As to the property sought to be restrained, Detective Senior Constable Woodburn referred first to the property in Fisher. In the affidavit, he deposed that he suspected that the Crown Lease of the property at Fisher was owned Mr Tomas and his wife, Mrs Tomas (s 29(5)(a) of the Confiscation Act). He relied upon a search of the Land Titles Register and a copy of that search was annexed to his affidavit.
Detective Senior Constable Woodburn also deposed that the Fourth Defendant, National Australia Bank Ltd, had an interest in the Crown Lease of the Fisher property (s 29(5)(a) of the Confiscation Act). The title search of the property, annexed to his affidavit, disclosed the Bank as a first mortgagee of the property, though, of course, that information could not tell whether any money or, if so, how much, was owing under the mortgage and so whether the Bank had an actual current interest. An interest under a mortgage would be a proprietary interest, making a part of the Crown Lease relevantly the Bank’s property for the purposes of the Confiscation Act.
Detective Senior Constable Woodburn deposed that the property, being the Crown Lease of the Fisher property, was tainted property (ss 10(1) and 29(5)(b) of the Confiscation Act). He based his suspicion on the facts alleged in the Police Statement of Facts, namely, that police discovered the cultivation of the cannabis, the subject of each charge, in the premises on the property.
As to the Nissan Navara motor vehicle, Detective Senior Constable Woodburn deposed that he suspected that the Nissan Navara was property of the second defendant, that is Tom’s Carpet Laying Pty Ltd (s 29(5)(a) of the Confiscation Act). He had obtained a search from the records of the ACT Road Transport Authority which showed the company as operator of the vehicle.
Detective Senior Constable Woodburn further deposed that the vehicle was also the property of the fifth defendant, Nissan Financial Services (Australia) Pty Ltd (s 29(5)(a) of the Confiscation Act). A search in the Personal Properties Securities Register kept by the Australian Financial Security Authority showed that the fifth defendant, Nissan Financial Services Australia Pty Ltd had an interest in the property as a registered security. Thus, the vehicle or part of it was, relevantly, the financier’s property also.
Detective Senior Constable Woodburn then deposed that he suspected that the motor vehicle was tainted property (ss 10(1) and 29(5)(b) of the Confiscation Act). The car was garaged at the address of Mr and Mrs Tomas. A company search from the Australian Securities and Investment Commission showed that the principal place of business of the company was the residential address of Mr Tomas and he was a director and shareholder of the company.
Detective Senior Constable Woodburn also relied, for that belief, on the surveillance to which I have referred above (at [15]-[16]), which showed that the motor vehicle was driven by Mr Tomas on the occasions when he attended at the Fisher premises. Detective Senior Constable Woodburn viewed the surveillance video and noted that Mr Tomas used the motor vehicle to carry items which were taken to the premises where the cannabis growing operation was conducted. The inference was available that the vehicle was used in the commission of the offences.
So far as the lighting and electrical equipment was concerned, Detective Senior Constable Woodburn deposed that he suspected that the property was owned by the Mr Tomas or jointly owned by him, his wife Mrs Tomas, and Mr Milenkovic and that it was tainted property (ss 10(1) and 29(5)(b) of the Confiscation Act). The grounds of his belief were the ownership of the property, as noted in the search of the Land Titles Register referred to above (at [9]), the fact that the property was seized from that property and the fact that the police entry to the premises showed that the property was used for the cultivation of cannabis, as I have described above (at [18]).
Detective Senior Constable Woodburn also deposed that he believed that the property sought to be restrained might be required to satisfy one or more of the purposes mentioned in s 22 of the Confiscation Act (s 29(6)(a) of the Confiscation Act). Those purposes include a conviction forfeiture order under Div 5.1 of the Confiscation Act or an automatic forfeiture on conviction for serious offences under Div 5.2 of the Confiscation Act. As noted above (at [4]), Mr Tomas has pleaded guilty to the offences in the indictment.
Under s 29(8) of the Confiscation Act, the deponent is required, in the affidavit, to state the grounds for each belief or suspicion in the affidavit. I have noted, in referring above to the relevant suspicions or beliefs, the grounds for each suspicion which were set out. Section 31(2)(a) of the Confiscation Act requires the court to be satisfied of the reasonableness of the belief or suspicion or whether the stated grounds justify the suspicion. In this case, it is patent that the matters on which Detective Senior Constable Woodburn relied justified his suspicions or beliefs to which I have referred.
I have addressed in ACT Director of Public Prosecutions v King the issue of the restraint of real property in the ACT. This application complies with what I there said.
Under s 31(4) of the Confiscation Act, the plaintiff is required to give an undertaking as to costs and damages should the restraining order be set aside and any person has, as a result of the making of the order, sustained any damages or incurred any costs.
While it is preferable for that undertaking to be given orally by counsel for the plaintiff, the Originating Application stated that the plaintiff gave the required undertaking. Further, the submission of short minutes of the orders which I was invited to make and which included that undertaking, seems to me, in the circumstances, to have discharged that obligation.
The Director sought that the Public Trustee and Guardian (Public Trustee and Guardian Act 1985 (ACT)) be appointed to take control of the movable property, namely the motor vehicle and the lighting, electrical and other items found in the house. Division 8.1 of the Confiscation Act gives the Public Trustee and Guardian wide powers to preserve the value of restrained property. This is, no doubt, particularly useful where the property is likely to be secreted before it can be seized, such as the motor vehicle, or no-one else has immediate possession or responsibility of the property, such as with the electrical, lighting and other equipment.
The contents of a restraining order are set out in s 33 of the Confiscation Act. They are detailed and add to what would ordinarily be in such an order. I was much assisted by short minutes of order prepared from that provision and submitted by Mr Williamson. It is not always desirable that purely procedural matters be included in Acts of Parliament. This can impose an undesirable rigidity or inflexibility. In this case, it might be suggested that the policy requires a legislation mandate to ensure an order which has far-reaching ramifications contains certain information and that this is appropriately a matter for legislation. The courts can, of course, deal co-operatively within rules or practice directions with such matters, especially given the executive presence on the Advisory Committee for rule-making established under s 11 of the Court Procedures Rules 2004 (ACT).
I was satisfied that all I was required to consider justified making a restraining order.
Accordingly, I made the orders set out in the short minutes submitted by the plaintiff, though with some minor amendments.
These are my reasons for making those orders.
| I certify that the preceding forty-two [42] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 18 August 2016 |
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