Banda v DPP (Cth)
[2003] VSC 224
•24 June 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
No. 1525 of 2000
| BANDA | Applicant |
| v | |
| DIRECTOR OF PUBLIC PROSECUTIONS (COMMONWEALTH) | Respondent |
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JUDGE: | OSBORN J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 19-20 JUNE 2003 | |
DATE OF RULING: | 24 JUNE 2003 | |
CASE MAY BE CITED AS: | BANDA v DPP (CTH) | |
MEDIUM NEUTRAL CITATION: | [2003] VSC 224 | |
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Issue estoppel – Abuse of process – Whether DPP can raise issue adverse to applicant which was not raised by DPP in prior sentencing hearing.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mrs J. Morrish with Ms L. Taylor | Kalus Kenny |
| For the Respondent | Mr G. Silbert | Director of Public Prosecutions (Commonwealth) |
HIS HONOUR:
The applicant in this matter pleaded guilty to five counts upon a presentment/indictment before His Honour Judge Shelton in the County Court on 8 August 2002.
He was convicted and sentenced with respect to one count relating to the importation of cocaine and four counts of possession of other drugs of dependence being cannabis, amphetamines and "ecstasy".
Prior to his conviction items of the applicant's property had been made the subject of a restraining order pursuant to s.30 of the Proceeds of Crime Act 1987 (Cth). The order was the subject of a number of variations and ultimately crystallised in the order of Bongiorno J made on 17 April 2003. This order restrained dealings with property of the applicant comprising:
(1) the interest of the applicant as tenant in common in land at Cranbourne;
(2) a parcel of AMP shares registered in the applicant's name;
(3) the interest of the applicant in a superannuation policy;
(4) a motor car registered in the name of the applicant;
(5)money held in a National Australia Bank cash management account in the name of the applicant;
(6) cash in the sum of $50,200; and
(7) the contents of a safe deposit box held in the name of one Reeves.
Section 30 of the Act provides that if, as has occurred in this case, a defendant is convicted of a "serious offence" (as defined), and a restraining order was granted in reliance on the charging of the defendant with that offence, the property is forfeited if the restraining order is in force at the end of a six month period commencing on the date of the conviction.
This consequence is expressly restricted to property not the subject of a declaration under s.48(4). Section 48(4) provides:
"(4) Where:
(a)a person (in this sub-section called the 'defendant') has been convicted of, or has been charged or is about to be charged with, a serious offence;
(b)a court, in reliance on the conviction, charging or proposed charging, makes a restraining order against property;
(c) the defendant has an interest in the property;
(d)the defendant applies to the court for a declaration under this sub-section in relation to the interest; and
(e) the court is satisfied that:
(i)the property was not used in, or in connection with, any unlawful activity and was not derived, directly or indirectly, by any person from any unlawful activity; and
(ii)the defendant's interest in the property was lawfully acquired;
the court may, by order, declare that the restraining order, to the extent to which it relates to the property, shall be disregarded for the purposes of s.30."
In the present case the applicant seeks a declaration that the property other than that contained in the safe deposit be the subject of a declaration either under s.48(4) of the Act or pursuant to a general discretion which is asserted to exist under s.48(1).
The Crown takes the position that:
(a)The applicant's interest in the land at Cranbourne derives from moneys received in breach of income tax legislation and in particular derives from the application of gains made as a result of failing to disclose capital gains on prior property dealings;
(b)There is no dispute with respect to the AMP shares or the superannuation policy;
(c)The car was purchased from a cash management account, and both that account (Item 5) and the car (Item 4) are alleged to be derived from income which was the subject of tax evasion;
(d)The cash (Item 6) includes $15,000 which is said to have been brought into Australia illegally by the applicant's mother and the balance comprises money in respect of which the applicant has avoided the payment of income tax.
It can thus be seen (putting aside the $15,000 brought into Australia by the applicant's mother) the substantial dispute between the applicant and the Commonwealth is with respect to compliance with income tax legislation firstly as to capital gains and secondly as to income.
Mrs Morrish has made a preliminary application seeking orders:
(a)that the Crown be restrained from taking any action in these proceedings that seeks to or has the effect of relitigating or undermining any issues that were or could have been raised in the criminal proceedings in the County Court of Victoria; and
(b)that the Crown be restrained from taking any action in these proceedings that seeks to or has the effect of relitigating or undermining any findings of fact made by His Honour Judge Shelton in sentencing the applicant on 8 August 2002.
It is clear that the current proceedings are consequential upon the conviction of the applicant in the County Court and it might be thought that matters which were determined in the County Court as issues of fact between the applicant and the Crown could not now readily be relitigated.
In the event the Crown does not take issue with:
(a)matters put by it to the sentencing judge by way of an agreed statement of facts;
(b)matters positively stated in the applicant's record of interview, which record of interview was adopted by the applicant in evidence before the sentencing judge and the truthfulness of which was affirmed in evidence led by the Crown; and
(c)findings made by the sentencing judge on the balance of probabilities during the course of his sentencing remarks. These findings include findings that:
(i)the applicant did not make a financial investment in the importation of the cocaine in relation to which he was convicted; and
(ii)the drugs found in the applicant's possession were not in his possession for the purposes of trafficking (a matter in respect of which it was necessary to make a finding for the purposes of sentencing under the relevant legislation).
The compliance by the applicant with revenue laws and by his mother with respect to regulations governing the importation of cash into Australia, were not the subject of any direct allegation, investigation or finding before His Honour Judge Shelton.
Mrs Morrish submits that because upon the hearing of the plea the Crown did not take issue with the position of the defence with respect to good character, it cannot now take issue with the applicant's assertion that the property in issue in this application was not derived from unlawful conduct. The Crown in effect accepted that up until the relationship which gave rise to the importation offence, the applicant had been of substantially good character.
I reject the submission that the Crown's conduct has the consequence for which Mrs. Morrish contends. First, there has been no agreement by the Crown as to the relevant facts. Second, there was no allegation by the Crown with respect to the relevant facts. Third, there was no investigation by the Court of the relevant facts. Fourth, there was no determination by the sentencing court as to the relevant facts.
Although the Crown has a duty to bring relevant facts to the attention of the sentencing judge (R v Rumpf[1]), it must ultimately establish facts adverse to the accused beyond reasonable doubt before a sentencing judge can take them into account (R vStorey[2] and R v Olbrich[3]). It follows that a failure to establish such facts (or to allege that such facts can be established) cannot lead to the conclusion that either the Crown has agreed or the Court has found that the applicant has proved on the balance of probabilities that property was not derived from unlawful activity.
[1][1988] VR 466
[2](1998) 1 VR 359
[3](1999) 199 CLR 270
This conclusion follows whether the matter is approached as one raising questions of issue estoppel or abuse of process (as Mrs Morrish primarily put to me). Insofar as the latter concept is concerned, it is further to be observed that the application before me is one:
(a) in respect of which the applicant has the carriage;
(b) in respect of which the applicant bears the onus of proof; and
(c)is one of a character expressly contemplated by the statute as a form of subsidiary inquiry consequent upon conviction.
As a general rule the acquittal of a party will not be admitted as evidence of innocence in subsequent civil proceedings.[4] Because the standard of proof is different an acquittal means only that the case against the accused has not been proved beyond reasonable doubt.
[4]Hollington v Hewthorn & Co Ltd [1943] KB 587; Helton v Allen (1940) 63 CLR 69; S & Y Investments v Commercial Union (1986) 44 NTR 14 at 33.
It is unnecessary, however, for me to consider what the position of the parties might be under s.48(4) if the lawfulness of the derivation of the property in issue had been the subject of some direct or implied finding as a result of the primary proceedings. I observe only that circumstances can readily be imagined in which an applicant might wish to adduce further evidence from that before the sentencing judge and seek to challenge a finding made in the course of conviction and sentence. In the present case, however, I am satisfied that the resultant evidentiary issues need not be resolved. No direct or implied finding has been made by the sentencing judge as to whether the property in issue was derived from unlawful activity.
For the above reasons the preliminary application is dismissed and I rule that the Crown is neither estopped nor bound by abuse of process from relying on the matters which Mr Silbert has identified as forming the basis of its position, nor from contending that the items of property which remain in dispute were acquired as a result of activity which can be said to have been unlawful by reason of failure to comply with obligations under revenue legislation or legislation governing the importation of cash moneys into Australia. I further decline to make any other order in accordance with the preliminary application on the basis that it is otherwise too broad.
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