Calabrese v Commonwealth Director of Public Prosecutions

[1993] HCATrans 130

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S56 of 1993

B e t w e e n -

SALVATORE CALABRESE

Applicant

and

COMMONWEALTH DIRECTOR OF PUBLIC

PROSECUTIONS

Respondent

Application for removal
pursuant to section 40(1) of

the Judiciary Act 1903

DAWSON J
GAUDRON J

Calabrese 1 21/5/93

McHUGH J

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 21 MAY 1993, AT 9.33 AM

Copyright in the High Court of Australia

MR G.D. WENDLER:  If the Court pleases, I appear with my

learned friend, MR A.J.P. REYNOLDS, for the

applicant. (instructed by Leigh Johnson)

MR D.F. JACKSON. OC:  May it please the Court, I appear with

my learned friend, MR A. ROBERTSON, for the

respondent. (instructed by the Director of Public

Prosecutions.

DAWSON J:	Mr Wendler.
MR WENDLER:	If the Court pleases. Can I just mention a

matter of procedure before I move even to my

submissions concerning why this application should

be removed. I seek leave to file in Court the

affidavit of Leigh Diane Johnson, consisting of two

pages with one annexure, sworn on 20 May 1993. It

concerns the formalities under section 78B of the

Judiciary Act.

DAWSON J:	Mr Jackson?
MR JACKSON:	I have not seen it, Your Honour, but I will

have a look at it while it is being looked at by

the Court.

DAWSON J:	You have no objection?
MR JACKSON:	No.

DAWSON J: Yes, Mr Wendler.

MR WENDLER:  This morning my solicitors instructed me that

the Attorney-General for the State for Victoria
gave notice that they would not be intervening at

this level of the proceedings. That only came

through at 8 o'clock this morning or something.

If the Court pleases, can I invite

Your Honours to a short outline· of contention.

DAWSON J: Yes, Mr Wendler. What is it that you are seeking

to remove?

MR WENDLER:  The issue that involves the Constitution or

its -

DAWSON J:	No, which proceeding?
MR WENDLER:	It is the proceeding before, or pending before

His Honour Justice Ireland in the common law

Criminal Division of the Supreme Court of New South

Wales, a proceeding which seeks to extend an order

restraining the property of the applicant. That

order, or the authority and legality of that order

Calabrese 2 21/5/93

depends on section 44 ultimately, of the Proceeds of

Crime Act.

DAWSON J:	And the extension has not been made?
MR WENDLER:	No, it has been adjourned.

DAWSON J: But the order has.

MR WENDLER:  An order has been made and then an extension

was sought but the extension of that order has been

adjourned. That is set out, indeed, if the Court

pleases, in the order that is produced at page 4 of

the application book.

Can I commence by inviting Your Honours to

section 44 of the Proceeds of Crime Act? In the
actual notice of motion the question is formulated
seeking to challenge all of section 44 of the

Proceeds of Crime Act. Can I indicate to

Your Honours that the specific challenge to the

validity of section 44 concerns

section 44(1)(3)(a)(b). What then is the issue

involving the Constitution or its interpretation

and how does it arise in this matter?

Section 44(1) reads:

Where the offence concerned is a serious offence -

and I indicate to Your Honours the applicant is

charged with a serious offence within the meaning

of the Proceeds of Crime Act.	He is charged with a
serious narcotics offence -

the court shall, subject to subsections (3), (4), (7A) and (10), make a restraining order

against the property.

For the purposes of my submissions, can I indicate

to Your Honours subsections (4), (7A) and (10) have

Section 44(3) then goes on to say:

If the defendant has not been convicted of the offence -

no relevance.

in this case, the applicant has not been convicted

of anything, he has merely been charged -

the court shall not make a restraining order

unless -

and this is the legislative control, if that is the

right description, on section 44(1):

Calabrese 3 21/5/93

the application for the order is supported by

an affidavit of a police officer stating that

the officer believes that the defendant

committed the offence.

I do not mind telling Your Honours, when I read

that, I was wondering what they were going to let

the executive do next. The next subsection (3)(b):

the court is satisfied, having regard to the
matters contained in the affidavit, that there

are reasonable grounds for holding that

belief.

The submission is this, that it i3 not the

belief of the court, it is the subjec- ·e belief of

a pc ice officer wh ~ is decisive. other

wore", what is happ, · ing here is that _n this

counLry police officers - not just federal police

officers - are empowered to make injunctions. That

is the bottom line of it. The submission involves

the Constitution or its interpretation in this sense, that the police officer's belief is the

belief that the court must embrace, because

section 44(1) says the court shall then make the

order restraining the property. So, it is the

belief of the police officer that is decisive in

the actual execution of the order.

That belief, if the Court pleases, invested in

an executive functionary is tantamount to an

investiture of judicial power in~ functionary not

capable of exercising judicial F- ~r - - -

DAWSON J:  Why is it a judicial power?

MR WENDLER: It is a determination concerning a binding

authoritative determination concerning rights to

property based on a belief concerning criminal

responsibility.	A police officer believes, "You're
guilty." The court then steps in - - -

DAWSON J: The police officer does not determine anything.

MR WENDLER:  If the Court pleases, the police officer - the

expression in section 44(3):

the application for the order is supported by

an affidavit of a police officer stating that

the officer believes that the defendant

committed the offence -

in other words, there is a presumptive status, as

it were. The police officer simply subjectively

comes to a conclusion concerning criminal

responsibility at the time he executes the

affidavit. The court then just rubber-stamps it.

Calabrese 4 21/5/93

McHUGH J: But surely the legislature does not even need to

interpose the court. Why, consistently with the

Constitution, could not the opinion of the police

officer be made the condition upon which the

forfeiture or restrain operates?

MR WENDLER:  It does not read that way, if the Court

pleases.

McHUGH J:  I know it does not. I would have thought that if

there was any substance in your argument at all

about judicial power it would be a completely

different argument. It would be that this invests

non-judicial power in a federal court, hence the

argument would proceed along the line of Hilton v

Wells, but I must say I do not see any substance at

all in your argument at the moment. That is my own

view.

MR WENDLER:  The submission is this, that in so far as the

police officer is authorized - an executive
functionary is authorized by section 44 to make

binding authoritative decisions concerning property

rights on the basis of a subjective belief

concerning criminal responsibility, that is an

exercise or a purported exercise of judicial power.

This Court, by a minority, in Dietrich v Reg,

indicated that there was an implied constitutional

guarantee in relation to a fair trial. The

applicant wishes to make a submission as to the nature and ambit of that implied constitutional guarantee and whether or not it applies in relation

to the restrictions concerning property rights as

imposed by executive functionaries. What is the

permissible intrusion into Commonwealth judicial

power by an executive to the extent that it does
not undermine the rigid separation of powers in the

Constitution?

This section, section 44, in my respectful

submission, in so far as it empowers an executive

functionary to form conclusions concerning criminal

responsibility - - -

GAUDRON J:	The only conclusion, though, is a belief that the particular person committed an offence. That
is the only conclusion that the police officer
comes to.
MR WENDLER:	At the time he raises the affidavit.

GAUDRON J: Yes, a belief.

MR WENDLER:  That is right, a subjective belief concerning

criminal responsibility. Then you go to

section 44(1), the court then is obliged - it says:

Calabrese 5 21/5/93

Where the offence concerned is a serious offence, the court shall ..... make a

restraining order against the property.

GAUDRON J: Yes, if it is satisfied, by reference to the

other matters in the affidavit, that there are

reasonable grounds for the belief.

MR WENDLER: Subsection (3)(b) is, in my respectful

submission, a titular form of judicial review. It

is not the court's belief - and that is the

critical point - it is the police officer's belief.

McHUGH J: No, it says "the court is satisfied". Could you

conceivably argue that this was not an exercise of

judicial power if forfeiture was dependent upon the

court finding that there were reasonable grounds
for holding that this property was tainted

property?

MR WENDLER:  I would agree with Your Honour if section 44(1)

was worded in this way:  "Where the offence

concerned is a serious offence, the court may make

a restraining order." That keeps the court in

control of it, but because it is couched in

mandatory terms it must make the order - - -

McHUGH J: - - - unless two conditions are satisfied: (1),

that there is a belief a police officer; and (2),

it is a belief which the court is satisfied is the

product of reasonable grounds for holding that

belief.

MR WENDLER:  Yes, but at the time - court's role is at

the time of the application	the order
restraining property.	The po~~ce officer's belief

is at the time of the raising of the affidavit.

That is the critical difference. Because it says:

the application for the order -

it is talking about "the application for the

order". Where? In the court. I cannot conceive
of a situation where the court would never make the

order unless the circumstances were absurd. For

instance, if the police officer filed an affidavit

saying, "I come to this belief because someone,

through the process of telepathy, communicated to

me from the 15th century" - - -

McHUGH J: Well, the existence of the police officer's

belief is a question of fact to be litigated in the

proceedings.

MR WENDLER:  Not at the point where the application for the

order is sought. These orders are made ex parte,

initially.

Calabrese 6 21/5/93

GAUDRON J:  What is it in the Act that brings about the

proceeding for an extension?

MR WENDLER:  Section 48 is the section which talks about the

court making further orders. But section 48 is

underpinned, of course, to a certain extent by

section 44. You can seek to extend an order that

is made but, once again, this all comes back to the

question whether or not section 44(1), (3)(a) and

(b) is a valid law of the Commonwealth Parliament.

It all comes back to that. The challenge that the applicant seeks to make is to the constitutionality of that section. It makes it on the basis that before a citizen in this country can be deprived of

his rights to property, there must be a fair and

equitable judicial process; there must be some

judicial process. It is not good enough to empower

executives to form subjective views about who is or

who is not criminally responsible. We know, in
this country, that often police officers get it
wrong or we find the over-zealous police officer or

the corrupt police officer.

So, to the extent that this Act purports to

channel authority into an executive functionary on

the basis of a belief formed at the time of raising
of an affidavit and it is his belief at that time,
not the court's belief - for instance, perhaps if I
can put this scenario to Your Honours: the police

officer raises an affidavit and in the affidavit there is contained material that he has received

information from an informant. You might want to

go along to court and say, "Look, this informant is

a proven perjurer, a liar, a pathological liar."

It would not make any difference because at the time the police officer raised the affidavit, his

belief was that the information he was getting was

reliable.

McHUGH J: There would be no reasonable grounds for belief,

would there?

MR WENDLER: Well, there would, at the time the police

officer received the information. It is at that

time he raises the affidavit, not at the time

that - - -

McHUGH J: But paragraph (b) is in the present continuous

tense: "for holding that -"

MR WENDLER:  Yes.

McHUGH J: Not that "there were reasonable grounds for

holding that belief".

MR WENDLER: Paragraph (b) concerns the scrutiny of the

reasonable grounds for holding the belief. It does

Calabrese 21/5/93

not talk about the belief itself and who forms that

belief. The belief is always kept, by this piece

of legislation, in the custody of the executive

officer. It never transfers to the court. The

court simply rubber-stamps, as it were, the

determination for the order restraining property.

DAWSON J: Well, that is the point, is it not, that you

make?

MR WENDLER: That is the point, and the two bases which

involve the Constitution or its interpretation are

the applicant seeks to make a submission concerning

whether or not there is an implied constitutional

guarantee concerning fair judicial process when a

person is deprived of his property rights. Is this

constitutional guarantee, identified by Your Honour there an ambit to those implied constitutional

guarantees? How far do they go?

The second limb of the submission is this,

that this Court in Lim v Minister for Immigration,

the Cambodian Boat People case, by a majority, held

invalid that section in the Migration Act which

empowered an executive functionary to hold people

in custody and at the same time shut out any

scrutiny by the courts. The applicant wishes to

make a submission that in so far as section 44(1)

of the Proceeds of Crime Act compels the court,
obliges the court to make this restraining order,
it also forces upon the court or, rather, strait-
jackets the court in relation to the subjective

determination formed by this executive functionary.

In other words, to use the expression in Lim, what

is the permissible ambit of executive intrusion

within the context of the Constitution into what

might be described as judicial administration?

What is the ambit of that?

Lim's case is not an authority for the

proposition that executive functionaries can do

anything in this country. There is a limit, in my

respectful submission, imposed by the Constitution

itself because if the ambit increases you undermine

the doctrine of the separation of powers.

DAWSON J:  I think we have got that. You say that the court

is told what to do.

MR WENDLER: That is it, Your Honours. If the Court

pleases, I have outlined my submission. The

application is that it is an issue involving the

Constitution or its interpretation. The applicant

seeks an opportunity by order of removal of those

issues into this Court to develop those submissions

further. That is the application.

Calabrese 21/5/93

DAWSON J:  Thank you, Mr Wendler. The Court need not

trouble you, Mr Jackson.

The Court does not consider that the matter

which the applicant seeks to remove, that is, an

application for the extension of an order already

made under section 43 of the Proceeds of Crime Act

1987, is a suitable matter for removal. Nor does

it consider that the grounds advanced by the

applicant raise constitutional issues which would

justify the removal as sought.	The application is
refused.

MR JACKSON:  I would ask for costs of the application.

DAWSON J: Mr Wendler?

MR WENDLER:  Yes, I oppose the application. The general

practice of this Court is not to grant costs in

matters which emerge or are as a consequence of criminal proceedings and these are ancillary to criminal proceedings.

DAWSON J: Mr Jackson.

MR JACKSON:  Your Honour, it depends to some extent on the nature of the matter. I do not want to go into the

substance of it but may I just say one thing: if

Your Honours were to look at section 46 of the Act,

it is absolutely clear that on the hearing of such

an application, evidence may be adduced in relation

to the substance of the matter, and the whole
foundation of the application that has been brought
on the other side is, we would submit with respect,

not there.

DAWSON J:	Mr Wendler.
MR WENDLER:	If the Court pleases, that is pretty

irrelevant. Section 40 provides a vehicle for

determining issues that touch upon the
Constitution.	The applicant ·has availed himself of
that opportunity.	He cannot be penalized further

for that. Indeed, I think last year when I made an

application in relation to a section 40 removal

concerning section 70(i), (ii) and (iii), that part

of the Constitution, the Iranian matter, the Court

did not make an order for costs in that matter, and

I do not see that that is any different, if the

Court pleases.

DAWSON J:  The application will be refused with costs.

AT 9.56 AM THE MATTER WAS ADJOURNED SINE DIE

Calabrese 9 21/5/93