ACT Director of Public Prosecutions v Trewin
[2018] ACTSC 340
•7 December 2018
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | ACT Director of Public Prosecutions v Trewin |
Citation: | [2018] ACTSC 340 |
Hearing Date: | 30 November 2018 |
DecisionDate: | 7 December 2018 |
Before: | McWilliam AsJ |
Decision: | See [35] |
Catchwords: | CONFISCATION OF CRIMINAL ASSETS – appeal from registrar’s decision declaring interest in real property forfeited – where automatic forfeiture of restrained property on conviction for serious offences – where no application for exclusion order made within 14 days – whether registrable property was subject to forfeiture or forfeited – appeal dismissed |
Legislation Cited: | Confiscation of Criminal Assets Act 2003 (ACT) ss 13(2), 39, 58, 59, 73, 74, 75, 109, 110, 246 |
Cases Cited: | ACT Director of Public Prosecutions v Nikro [2017] ACTSC 15 |
Parties: | Australian Capital Territory Director of Public Prosecutions (Plaintiff) Simon Trewin (Defendant) |
Representation: | Counsel Ms M Evans (Plaintiff) Mr B Hamack (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Plaintiff) Legal Aid ACT (Defendant) | |
File Number: | SC 143 of 2015 |
Decision under appeal: | Court/Tribunal: ACT Supreme Court Before: Registrar Glover Date of Decision: 1 November 2018 Case Title: ACT Director of Public Prosecutions v Trewin Court File Number: SC 143 of 2015 |
On 1 November 2018, Registrar Glover made orders declaring that Simon Trewin’s interest in a specified property in Nicholls (Nicholls Property) was automatically forfeited to the Australian Capital Territory (Territory), pursuant to s 59 of the Confiscation of Criminal Assets Act 2003 (ACT) (COCA Act).
The orders followed Mr Trewin being sentenced on 30 July 2018 for two offences, the first being trafficking in a trafficable quantity of cannabis, and the second being cultivating a trafficable quantity of cannabis with the intention of selling any of the plants or the products: see R v Trewin [2018] ACTSC 256.
Other equipment seized from the property on 5 January 2015 was also declared to have been forfeited.
The Registrar further refused to allow an oral application for an exclusion order in relation to the Nicholls property to be made by counsel who appeared for Mr Trewin.
Mr Trewin has appealed the Registrar’s orders insofar as they relate to the forfeiture of his interest in the Nicholls property and the refusal to permit an application for an exclusion order to be made.
The appeal is brought pursuant to r 6256 of the Court Procedures Rules 2006 (ACT) (Rules). It amounts to a hearing de novo under r 6256(4).
There is an interested party, namely National Australia Bank Limited, who is the mortgagee in respect of the Nicholls property but had indicated that it did not wish to be heard on the initial application before the Registrar and who did not take part in the appeal.
The debate between the parties is a matter of statutory construction around whether the Nicholls property was automatically forfeited following Mr Trewin’s conviction, and no application for an exclusion order having been made within 14 days, or whether it was only subject to forfeiture and thus an application for an exclusion order was still able to be made. It is necessary to have some understanding of the detailed statutory scheme in order to understand Mr Trewin’s arguments on appeal.
Relevant Legislation
The power to make the order sought by the ACT Director of Public Prosecutions (DPP) is contained in s 59 of the COCA Act as follows:
Automatic forfeiture–court order declaring property automatically forfeited
(1) The DPP may apply to a relevant court for an order declaring that property has been automatically forfeited under this division.
(2)If the relevant court is satisfied that the property has been automatically forfeited under this division, the court must make the order and state in the order the property to which it applies.
(3)The registrar of the relevant court may exercise the functions of the court for this section.
10. The appeal centres on s 58 of the COCA Act, which prescribes when restrained property is automatically forfeited and is in the following terms (notes omitted):
(1) This section applies if—
(a)a person is convicted of a serious offence; and
(b)a restraining order (other than an artistic profits restraining order) is made, whether before or after the conviction, over property in relation to the offence or a related serious offence committed by the person.
(2)The restrained property is forfeited to the Territory at the end of whichever of the following periods applies (the relevant 14-day period), except so far as the property is excluded from forfeiture under an exclusion order:
(a)if the restraining order was made before the conviction—14 days after the day of conviction;
(b)if the restraining order was made at the same time as or after the conviction—14 days after the day the restraining order comes into force.
(3)However, if an application for an exclusion order in relation to the property, or a part of the property, has been made (but not decided) before the end of the relevant 14-day period, the property (or that part) is not forfeited until the proceeding in relation to the exclusion order is finalised.
11. A serious offence is defined in s 13(2) of the COCA Act as an offence punishable by imprisonment for 5 years or longer, or any other offence prescribed by regulation.
12. Section 39 of the COCA Act is also relevant for the purpose of interpreting ss 58 and 59 in their context. Section 39 provides for additional orders to be made about restraining orders and restrained property. The material parts are as follows (emphasis added):
(1) A relevant court may, when it makes a restraining order or at any later time before the order ends, make any additional order that the court considers appropriate in relation to the restraining order or restrained property (other than an order mentioned in subsection (2)).
…
(2)However, the court must not make any of the following orders under subsection (1):
(a)an order revoking or otherwise ending a restraining order;
(b)an order for the extension of the period a restraining order is to remain in force;
(c)an order for the exclusion of property from a restraining order.
Note 1
For the revocation of a restraining order, see s 43 and s 44.
Note 2
For the extension of the operation of a restraining order, see s 49.
Note 3 For the exclusion of property from a restraining order, see pt 6.
13. Under s 127 of the Legislation Act 2001 (ACT), notes do not form part of the Act. They serve as a useful guide. The relevance of that section is that it does not give the Court power to make an exclusion order as an additional order. The only way that can be done is under pt 6 of the COCA Act, which deals with exclusion of property. Section 72, located in pt 6, defines an exclusion order as follows (emphasis added):
Meaning of exclusion order
In this Act:
exclusion order means an order under this part in relation to—
(a) restrained property (other than restrained property that has been forfeited) or property in relation to which an application for a restraining order has been made; or
(b) property in relation to which an application for a conviction forfeiture order has been made; or
(c) property subject to forfeiture under this Act.
Note 1Property includes an interest in property, see the Legislation Act, dict, pt 1.
Note 2
This part does not apply to forfeited property (see s 75 (4)). A person with an interest in forfeited property immediately before its forfeiture may apply for the return of the property or compensation for its value under a return or compensation order under div 9.5.
Note 3
Property is forfeited 14 days after a forfeiture order or an automatic forfeiture applies to the property unless an application for an exclusion order is made, see pt 5 (Forfeiture of property).
14. The DPP relies on the words emphasised in par (a). Mr Trewin relies on the words emphasised in par (c).
15. Relevant to the appellant’s argument, section 73 of the COCA Act sets out when a property is “subject to forfeiture” (emphasis added):
When property is subject to forfeiture
For this Act, property is subject to forfeiture if—
(a)a forfeiture order made under this Act applies to the property and the property has not been forfeited; or
(b)an automatic forfeiture under this Act applies to the property and the property has not been forfeited.
16. However, section 74 and the explanatory note under it are important:
Effect of exclusion order
An exclusion order for property has effect as follows:
(a) for property in relation to which an application for a restraining order or conviction forfeiture order has been made—the property is excluded from restraint or forfeiture (as appropriate);
(b) for restrained property (other than restrained property that has been forfeited)—the restraining order stops applying to the property;
(c) for property subject to forfeiture—the property is excluded from forfeiture.
NoteThis part does not apply to forfeited property (see s 75 (4)). A person with an interest in forfeited property immediately before its forfeiture may apply for the return of the property or compensation for its value under a return or compensation order under div 9.5.
17. The note directs attention to s 75(4) of the COCA Act. Section 75 is in the following terms (emphasis added):
Exclusion orders—application
(1)This section applies to—
(a)restrained property (other than restrained property that has been forfeited) or property in relation to which an application for a restraining order has been made; or
(b)property in relation to which an application for a conviction forfeiture order has been made; or
(c)property subject to forfeiture under this Act.
NoteSee the notes to s 72.
(2)A person claiming an interest in the property may apply to a relevant court for an exclusion order.
(3)The application must be made—
(a)if a restraining order or conviction forfeiture order has been applied for (but not made) in relation to the property—at the same time as, or after, the application is made for the order but before the order is made; or
(b)if the property is restrained or subject to forfeiture—at any time before the property is forfeited.
(4)To remove any doubt, an application for a exclusion order cannot be made in relation to property that has been forfeited.
18. Part 9 of the COCA Act deals with forfeited property. Again, relevant to Mr Trewin’s argument, ss 109 and 110 are in the following terms:
109 Vesting of forfeited property—general rule
On forfeiture, the forfeited property vests absolutely in the Territory.
Note 1 Property includes an interest in property, see Legislation Act, dict, pt 1.
Note 2If a joint owner of restrained property dies, and the property is later forfeited, the forfeiture takes effect as if the property had been forfeited immediately before death (see s 106).
110 Vesting of registrable property on forfeiture
(1) This section applies despite section 109, if the forfeited property is, or is an interest in, registrable property.
(2) On forfeiture, the property or the interest vests in equity in the Territory, but does not vest at law in the Territory until the applicable registration requirements for the property or the interest have been complied with.
Example
All of a person's property, except a mortgage over the person's house, is restrained before the person's conviction for a serious offence. All the restrained property is forfeited 14 days after the person's conviction. The mortgagee's interest is not forfeited because it was not restrained. However, all other registrable interests in the house are forfeited and vest in the Territory in equity. On registration of the interests under the Land Titles Act 1925, the interests vest in law in the Territory.
Note 1For the power of a relevant court to order the sale of property owned by more than 1 person, see div 9.4.
Note 2Non-registrable property vests ‘at law' in the Territory on forfeiture, because it vests ‘absolutely' under s 109. Registrable property vests ‘at law' in the Territory when it is registered in the name of the Territory under this section.
Note 3 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).
(3) The Territory is entitled to be registered as the owner of the property or the interest.
(4) The registration of the Territory as the owner of the property is taken not to be a contravention of a direction under section 111 (3) in relation to the property.
NoteIf a joint owner of restrained property dies, and the property is later forfeited, the forfeiture takes effect as if the property had been forfeited immediately before death (see s 106).
(5) To remove any doubt, if property is divisible into 2 or more interests and not all the interests in the property are forfeited, the other interest or interests are not ended only because of the forfeiture of another interest in the property.
19. The final aspect of the legislation relevant to this appeal is the power of the Court to extend the time in which to bring applications. It is set out in s 246 of the COCA Act (emphasis added):
Confiscation proceedings—time extensions for applications
(1)A relevant court may give leave for—
(a)an application in relation to any confiscation proceeding to be made after the end of a period otherwise provided by this Act (the standard period ); or
(b)if an application for a particular order in relation to an offence has already been made in relation to the offence (or a related offence)—another application for an order of that kind to be made in relation to the same offence (or a related offence), whether before or after the end of the standard period; or
(c)the amendment of an application for an order under this Act to vary the property or benefits to which the application relates.
(2)The court may give leave only if satisfied that—
(a)property or benefits to which the application relates were (or will be) derived from the offence, or identified, after the end of the standard period; or
(b)necessary evidence has (or will) become available only after the end of the standard period; or
(c)it is otherwise desirable having regard to the purposes of this Act.
(3)To remove any doubt, this section does not authorise a relevant court to give leave for an application for an exclusion order in relation to property that has been forfeited.
20. The emphasised words in s 246(3) of the COCA Act were relied upon by the DPP.
Some uncontroversial facts
21. There was no doubt that Mr Trewin had been convicted of a serious offence as defined in the Act, and that at the time of that conviction, the Nicholls property was already the subject of a restraining order which had been made by Murrell CJ on 18 July 2018.
22. Mr Trewin also accepted that no application for an exclusion order had been made within the 14 day time period referred to in s 58 of the COCA Act.
23. For its part, the DPP accepted that if the Court found the property had been forfeited, then because it was registrable property, it had vested in the Territory in equity only, until the applicable registration requirements for the property or the interest in the property had been complied with: s 110 of the COCA Act.
Arguments of the Parties
24. Mr Trewin’s position was that ss 58 and 59 of the COCA Act must be read in the context of ss 109 and 110. The Nicholls property is not forfeited until it vests in law in the Territory. The term “forfeited” suggests that the person no longer has any legal interest in the property. In the case here, the Nicholls property was only “subject to forfeiture” and, accordingly, an application for an exclusion order could be made under s 75 of the Act, notwithstanding that 14 days had passed since Mr Trewin had been convicted.
25. Mr Trewin further relied on s 53 of the Land Titles Act 1925 (ACT), which provides that the register relating to land is conclusive evidence as to the interests held in land under that statute.
26. The DPP submitted that Mr Trewin had conflated two things: property being forfeited, and property vesting in a person at law. The fact that the Nicholls property had vested in equity only, by virtue of s 110 of the COCA Act, did not affect whether the property was forfeited to the Territory.
27. The DPP relied on the express words in the various provisions of the statutory regime set out above. He submitted the definition of “subject to forfeiture” in s 73 of the COCA Act did not apply to the Nicholls property, as 14 days had passed and no application for an exclusion order was made within that time. Accordingly, the Nicholls property was not “subject to forfeiture” but rather, forfeited.
28. The application to the Court for a declaration to that effect was to confirm what was an automatic consequence of the operation of the provisions of the COCA Act, in particular s 58. It was necessary to enable the DPP to use the Court’s declaration that the Nicholls property had been forfeited as the basis for then transferring the legal title in the register from Mr Trewin to the Territory. At that point, the title would vest at law.
Findings
29. The operation of the COCA Act is apparent from the express words of the provisions set out in detail above. Relevant to the facts of this case, it operates in this way:
(a) Before a person is convicted of a serious offence, an interest in real property relating to the offence may be restrained: s 58.
(b) Upon conviction of the serious offence, time starts running: s 58(2)(a).
(c) Up until 14 days from the date of conviction, the property has not been forfeited, but the criteria for an “automatic forfeiture” have been enlivened, namely that the interest in property has been restrained and the person is then convicted. During that time, by the express words of the definition in s 73, the interest in the property is “subject to forfeiture”.
(d) During that 14 day period, an application for an exclusion order may be made in respect of property that is “subject to forfeiture”: s 75(1)(c).
(e) If such an application is made, the interest in the real property remains “subject to forfeiture” until the application for the exclusion order is resolved: s 58(3).
(f) If no application for an exclusion order is made, the interest in the real property is forfeited: s 58(2)(a).
(g) At that point, the interest is forfeited to the Territory and becomes an equitable interest held by the Territory. The Territory is expressly entitled to become the registered owner of the interest: s 110(3).
(h) The DPP also becomes entitled at that point to apply for a declaration that the interest has been forfeited: s 59(1).
(i) If satisfied that the automatic forfeiture has occurred, the Court must make the order and state in the order the property to which it applies: s 59(2). There is no discretion given to the Court in making that order. The declaration follows as of right upon satisfaction that the criteria under the Act have been met.
(j) That may be a harsh result, given the short time period in which to make an application and that a person may not be represented and may not be aware of the strict time limit. However, the Court has no power to extend the time in which to make an application. That is made clear by the express words of ss 39(2) and 246(3).
30. There is nothing in the Act that requires s 58 to be read as somehow incorporating a right to make an application for an exclusion order at any time up until an interest in property has ‘vested at law’ in the sense of being a registered legal interest.
31. Sections 109 and 110 are only enlivened “on forfeiture”. That is clear from the express words of those sections. They do not operate to determine whether an asset has been forfeited and there is no authority to suggest otherwise.
32. The DPP drew the Court’s attention to the decision of Director of Public Prosecutions v Tomas [2015] ACTSC 233, where Mossop AsJ (as his Honour then was) was considering whether to make a restraining order under the Act. His Honour stated at [11]:
The consequences of the making of a restraining order are very significant. The most obvious example of the significance is that where property is subject to restraint and a person is convicted of a serious offence then that property will be automatically forfeited to the Territory within 14 days of the conviction or 14 days of the restraining order whichever is the later unless that property is the subject of an exclusion order: COCA Act s 58(2). Thus the default position would be that the property is forfeited.
33. That observation, although obiter for the issue there being considered, clearly supports the construction of the COCA Act that has been set out at [29]-[31] of these reasons. To the same effect is the succinct construction of the effect of s 58 set out by Burns J in ACT Director of Public Prosecutions v Nikro [2017] ACTSC 15 at [8].
34. I therefore accept the submissions of the DPP as to the proper construction of the COCA Act and there is no warrant to disturb the declaratory orders made by the Registrar.
Conclusion and Orders
35. For the above reasons, the appeal is dismissed and the orders of Registrar Glover made on 1 November 2018 are confirmed. I note that no application is made for costs.
| I certify that the preceding thirty five [35] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Associate Justice McWilliam. Associate: Date: 7 December 2018 |
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