Brauer v The Director of Public Prosecutions

[1990] HCATrans 302

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Brisbane No B24 of 1990

B e t w e e n -

THILO ANDREAS WOLFGANG CARL

HUBERTUS B?..AUER

Applicant

and

THE DIRECTOR OF PUBLIC

PROSECUTIONS

Respondent

Application for special leave

to appeal

MASON CJ
TOOHEY J

McHUGH J

Brauer 1 7/12/90

TRANSCRIPT OF PROCEEDINGS

FROM BRISBANE BY VIDEO LINK TO CANBERRA

ON FRIDAY, 7 DECEMBER 1990, AT 10.46 AM

Copyright in the High Court of Australia

MR S.E. HERBERT:  May it please the Court, I appear for the

applicant. (instructed by the Public Defender's

Office)

MR C.E.K. HAMPSON, QC:  May it please the Court, I appear

for the respondent	with my learned friend,
MR P.J. FLANAGAN.	(instructed by the Commonwealth
Director of Public	Prosecutions)

MASON CJ: Yes.

MR HERBERT:  Your Honours, I should first mentions that it

is sought to argue here a matter not in the

original application - a question of law which I

say arises which has not been referred to and it

raises a constitutional question. Notices were

given to the attorneys only yesterday. It concerns

section Sl(xxxi) of the Constitution - - -

MASON CJ: Well, if the notice has been given under

section 78B, is there anything we can do today?

MR HERBERT:	The notices were given only yesterday. They were given, but yesterday.
MASON CJ:	What does the respondent say about this?
MR HAMPSON:	We submit that there is no such question

really. What is relied on as that question does

not really raise a constitutional question and that

the Court could deal with it. It is really a

question of - the Court has not looked at this

statute before, but there are authorities on

similar statutes and it is a question of being able
to convince the Court that there is enough there

that there should be a special leave given and, of

course, if, contrary to my submission, special
leave were given, it would be appropriate at that
time for any of the attorneys to be represented on

the appeal.

MASON CJ: Yes, well, we will hear what the applicant has to

say, Mr Hampson.

MR HERBERT:	Thank you, Your Honours.
MASON CJ:	Mr Herbert, it seems to be a characteristic of

special leave applications in Queensland that the

Court is asked to entertain questions that have not been debated in the courts below.

MR HERBERT: That might follow from the matter a moment ago.

This matter would not require any findings of fact

different from those made - - -

Brauer 7/12/90

MASON CJ:  You had better explain to us, I think, at this

stage what is the constitutional point that you say

now arises?

MR HERBERT:  I will begin by explaining to the Court the

structure of the Proceeds of Crimes Act with which

this is principally concerned.

Your Honours, the beginning is section 43

which makes provision for the making of a

restraining order:

Where a person -

(b) has been, or is about to be, charged with

an indictable offence -

and the restraining order may, under section 43(l)(d) be in relation to -

all of the property of the defendant -

or, in.this case, as it was then, the proposed

defendant.

Under section 44 of the Act where it is a

serious offence as here, the court shall make a

restraining order subject to certain provisions.

The principal one for these purposes is

subsection (3). In the absence of conviction, then

the restraining order shall be made if there is an

affidavit from a police officer swearing that he

believes that the defendant had committed the

offence, and that there are grounds to hold that

that belief is reasonable under subsection (3)(b).

The rest of the provisions to which

section 44(1) is subject do not concern this case.

So the beginning is that a restraining order must

be made where a person has been charged and a
police officer swears that that person is guilty,

and that that belief is a reasonable one.

One then goes to section 30 of the Act, and

under that provision, if a person is convicted of a

serious offence then, under (d) in addition to

other matters, if -

(d) the restraining order is in force at the

end of the period of 6 months commencing on

the day of the conviction,

then the property is forfeited to the Commonwealth.

So the requirements so far are the making of a

restraining order, and that can be made on the

basis of a belief as to guilt and a charge; and if

Brauer 7/12/90

the restraining order remains in force and there is
no relevant way in which it might not, then the

property is forfeited.

The only way to avoid that consequence is

under section 48 of the legislation, and in

particular subsection (4), and what is required is

this:  where the person has been convicted, and

then (b) a restraining order against property has

been made; the defendant has an interest; the defendant must make application; the defendant

then makes an application for a declaration, in effect, for the order to be disregarded for the purpose of certain property. It must be

established under subsection (e)(i) - and that is

the relevant provision for this matter, 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.

The previous provision in the same Act

required satisfaction that the property -
previously the legislation provided, when first

passed, that the court had to be satisfied in order

to disregard - in order for the court to disregard
the restraining order for the purposes of the

relevant property. It was then provided that:

the property was not used in, or in connection

with, the commission of the offence

that being the offence upon which the original

restraining order was based. So the amendment now

requires two things, as I say in the outline. It
requires proof, not merely from the defendant -
from the applicant - that it was not used, but also

proof that it was not used in connection with any

unlawful activity, not merely the offence of which

he or she has been convicted, but any unlawful
activity whatever, not limited as to time.	So the

submission which the applicant contends raises a

constitutional issue is that this is in truth not a

provision for a penalty or forfeiture of a legally
acquired property, or for forfeiture of property

used in the commission of any offence.

MASON CJ:  Mr Herbert, the problem with this is that you

seek to raise an issue which has never been

considered in these proceedings. It is not part of

these proceedings. If there is anything in this

point it will be available to you if you commence

suit for a declaration of invalidity.

Brauer 4 7/12/90

McHUGH J: In fact, this is an application under section 48,

is it not?

MR HERBERT:  Yes, I appreciate the point Your Honour the

Chief Justice makes. The only submission I can

advance is that this is a convenient proceeding in

which to raise the point.

McHUGH J: Well, it is not, because you do not seek any

orders declaring the section invalid.	I mean, you
proceed on the basis that the section	if operative,
and it is the source of your right to	a return of
the property.

MR HERBERT:  The consequence of the section is not operative

goes to section 30. It is really a combination of

sections 30 and 48.

McHUGH J: In any event you have got to overcome Burton v

Honan.

MR HERBERT: Yes. Well, in my submission, Your Honour, it

is not a matter of overcoming Burton v Honan.

Burton v Honan can be seen on one view as assisting

the applicant. It is plain from Burton v Honan

what may be not covered by placita (xxxi), but the

submission here is that this is not one of those

things. The legislation considered in the other

cases to which I have made reference in the

outline, is different. It is generally customs

legislation which has an historical background and

it deals with cases where there is a nexus between the property to be forfeited and the commission of

an offence. This is one where there is no such

nexus. Mr Justice Pinker said something about it

in Cox in - - -

MASON CJ:  I think, Mr Herbert, it really is fruitless to

persue the constitutional question in light of your

responses to Justice McHugh and myself. I think

you ought to proceed with the application as

originally framed on the footing that if there is

any substance in the constitutional point, then

that is available to you in appropriate

proceedings, but not in these proceedings.

MR HERBERT:  Thank you. Your Honours, I have taken the

Court through the Act except for the objects of the

Act which are declared at section 3. Now, it is

object 3(l)(b) which might be thought to be

reflected in a combination of sections 30 and

48(4). The object is:

to provide for the forfeiture of property used

in or in connection with the commission of

such offences.

Brauer 7/12/90

Those offences pursuant to 3(l)(a) are:

offences against the laws of the Commonwealth
or the Territories.

The provision, if construed in the manner in which the Full Court construed it means the forfeiture of property where there is nothing to suggest that it

has been used in the commission of any offence nor

any evidence to suggest its connection with any

offence nor, indeed, its connection with any

unlawful activity however one defines it and even

it one restricts it to unlawful activity against

the laws of the Commonwealth.

TOOHEY J: Well, there is no flexibility about ''unlawful

activity", is there? It is defined in the Act.

MR HERBERT:  Yes. Now, the submission is really a short

one.

TOOHEY J: Are you suggesting that the Full Court in some

way gave "unlawful activity" a meaning that was

contrary to that in the Act?

MR HERBERT:  No. The complaint that is made here about the

construction of the Full Court does not derive from

its view of the meaning of "unlawful activity".

Now, the point can be shortly stated. It

appears, perhaps, best in the judgment of Mr

Justice Connolly at page 292 of the application

book. Now, the passage in quotations is the

judgment at first instance or part of it. It needs

no amplification. In effect, His Honour held that

in the absence of evidence upon which he would act

in any way that the vessel was used in or in

connection with, he was in effect prepared to be

satisfied on the basis that the applicant said he

knew nothing of such use, that it was not used and

His Honour Mr Justice Connolly rejects that

approach saying that:

This is simply to say that the absence of

evidence of illegal activity is the same as

positive proof of legal activity.

Your Honours, the submission that the

applicant makes is this: where the property, as in

fact it was in this case, is out of his possession

for some lengthy period, in the possession of

others, it can only be that on that construction an
applicant must always fail, always, to establish

positively the lack of use in any unlawful

activity.

Brauer	6	7/12/90
McHUGH J:	No, it does not.	He could have called Burthold.

Burthold might have given evidence which was accepted that the yacht during April to

December 1987 was not used in any illegal activity.

MR HERBERT:  Where an applicant is, in fact, ignorant of the

whereabouts of the property during a period,
leaving the matter of Burthold aside, which I

accept arises here, then this construction would

mean that the property must be forfeited in the

absence of even a suggestion that it was so used.

McHUGH J: That is what the legislation says. The court has

to be satisfied that it was not used in illegal

activity.

MR HERBERT:  Yes. The submission, Your Honours, to put it

very bluntly is that that cannot be the meaning of

it when one has regard to the objects and there

must at first be some evidence upon which one could

draw an inference that the property was so used

before the strict onus applies. I do not know that

I can advance the argument beyond what was said by

the learned judge at first instance.

MASON CJ:	Yes.
MR HERBERT:	Those are my submissions.

MASON CJ:  Yes, thank you, Mr Herbert. The Court need not

trouble you, Mr Hampson. The Court is of opinion

that the decision of the Full Court of the Supreme

Court is not attended with sufficient doubt to

justify the grant of special leave to appeal.	The
application is therefore refused.

Mr Herbert, I do not know whether Mr Hampson

has overlooked the matter of costs or - - -

MR HERBERT:	Yes.
MASON CJ:	Has Homer nodded?

MR HAMPSON:  No, and it was not Achilles sulking in his

tent, if it please the Court. I am sorry, I was

just trying to move some books off the table here.

No, my instructions are to ask for costs.

MASON CJ: Yes.	I take it the application is not opposed?
MR HERBERT:	No, Your Honours.
MASON CJ:	The application is refused with costs.

AT 11.02 AM THE MATTER WAS ADJOURNED SINE DIE

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