CDirector of Public Prosecutions v Queensland Jewellery and Gift Company Pty Ltd - [2006] QDC 373

DISTRICT COURT OF QUEENSLAND

CITATION:

CDPP v Queensland Jewellery and Gift Company Pty Ltd & Ors [2006] QDC 373

PARTIES:

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

Applicant

V

QUEENSLAND JEWELLERY AND GIFT COMPANY PTY LTD ACN 070 716 175 TRADING AS QUEENSLAND DUTY FREE

First Respondent

AND

SEN-HUNG CHEN

Second Respondent

AND

CHIU-YUAN HSIAO

Third Respondent

AND

TAI XING INVESTMENT PTY LTD ACN 096 384 191

Fourth Respondent

AND

YING-JU CHEN Fifth Respondent

FILE NO:

BD4090 of 2004

DIVISION:

Civil Jurisdiction

PROCEEDING:

Application for Stay

ORIGINATING COURT:

District Court, Brisbane

DELIVERED ON:

26 October 2006

DELIVERED AT:

Brisbane

HEARING DATE:

17 October 2006

JUDGE:

Kingham DCJ

ORDERS:

The applications for forfeiture and pecuniary penalty orders against the first, second and third respondents and their application for exclusion orders are stayed until the criminal proceedings against the second and third respondents are concluded, or further order. 1.

CATCHWORDS:

CONFISCATION OF PROPERTY – Proceeds of Crime Act 2002 (Cth) - Restraining Orders – Application for Forfeiture – Application for Pecuniary Penalty Order – Application for Exclusion Order .

STAY OF PROCEEDINGS – Residual discretion – Real danger of injustice – Same or substantially similar issues – Quantum – Criminal Responsibility – Penalty – Other Prejudice

Proceeds of Crime Act 2002 (Cth), ss 5, 73, 74, 121, 196, 198, 319 Criminal Code Act 1995 (Cth), ss 135.4(5), 400.3(1) Financial Transactions Report Act 1988 (Cth) s 31

Black & White Cab Co Pty Limited v Kelk [1983] 2 Qd R 484 cited Elliot v Australian Prudential Regulation Authority (2004) FCA 586 followed McMahon v Gould [1982] 7 ACLR 202 followed Mule v State of Western Australia [2002] WADC 103 followed Olbers Co Limited v Commonwealth (No 2 ) [2003] FCA 177 followed Queensland v Cannon [2003] QSC 459 cited State of Queensland v Bush [2003] QSC 375 applied State of Queensland v Henderson (2002) QSC 16/5/03 applied State of Queensland v O’Brien & Falzon (2006) QSC 22/6/06 followed State of Queensland v Shaw [2003] QSC 436 applied Stevens v Trewin & anor [1968] Qd R 411 applied The Director of Public Prosecutions for Western Australia v Mansfield and Ors [2006] WASC 72 followed

COUNSEL:

R Devlin SC & N Martin for the First, Second & Third Respondents

P Flanagan SC for the Applicant

SOLICITORS:

Gabriel Ruddy & Garrett for the First, Second & Third Respondents

Commonwealth Director of Public Prosecutions for the Applicant

The Commonwealth Director of Public Prosecutions (CDPP) has commenced both civil and criminal proceedings arising from allegations of large scale evasion of duty payable to the Commonwealth for the sale of tobacco products. In essence, it alleged two duty free outlets, Queensland Duty Free and Queen St Mall Duty Free, sold tobacco in Australia without paying duty on those sales. The CDPP alleged a scheme of sham duty free sales to crew members of commercial transport container ships which visited the Port of Brisbane, and subsequent sale of the tobacco in the domestic market without duty being paid.

In November 2004, the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: CDirector of Public Prosecutions v Queensland Jewellery and Gift Company Pty Ltd [2006] QDC 373
Case: [2006] QDC 373
Decision Date: 26 October 2006

CaseChat Overview and Summary

In the case of Director of Public Prosecutions v Queensland Jewellery and Gift Company Pty Ltd, the court was presented with a complex web of legal issues pertaining to the confiscation of property under the Proceeds of Crime Act 2002 (Cth). The central dispute involved applications for forfeiture, pecuniary penalty orders, and exclusion orders against the respondents, including the company and individual respondents. The Director of Public Prosecutions sought these orders on the basis of alleged criminal activities conducted by the respondents. The court was tasked with determining the appropriate legal framework for these applications, particularly in light of the ongoing criminal proceedings against the second and third respondents.

The legal issues before the court centred on the interplay between the confiscation proceedings under the Proceeds of Crime Act 2002 and the criminal proceedings. Key considerations included the potential for a real danger of injustice if the confiscation proceedings were to proceed concurrently with the criminal cases, the risk of prejudice to the respondents, and the appropriateness of exercising the court's residual discretion to stay the confiscation proceedings. The court also had to weigh the quantum of the penalties and the respondents' criminal responsibility against the risk of prejudice to the respondents.

In its reasoning, the court found that there was a real danger of injustice if the confiscation proceedings were to continue while the criminal cases were still pending. The overlap in issues between the criminal and confiscation proceedings, along with the potential for prejudice, justified the exercise of the court's residual discretion to stay the confiscation applications. The court considered the nature and extent of the respondents' criminal responsibility and the quantum of the potential penalties, concluding that these factors, combined with the ongoing criminal proceedings, warranted a stay of the confiscation proceedings until the conclusion of the criminal cases. Consequently, the court ordered a stay of the applications for forfeiture, pecuniary penalty orders, and exclusion orders against the respondents, pending the outcome of the criminal proceedings.

Orders

Orders of the court

The applications for forfeiture and pecuniary penalty orders against the first, second and third respondents and their application for exclusion orders are stayed until the criminal proceedings against the second and third respondents are concluded, or further order. 1.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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CITATION:	CDPP v Queensland Jewellery and Gift Company Pty Ltd & Ors [2006] QDC 373
PARTIES:	COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS Applicant V QUEENSLAND JEWELLERY AND GIFT COMPANY PTY LTD ACN 070 716 175 TRADING AS QUEENSLAND DUTY FREE First Respondent AND SEN-HUNG CHEN Second Respondent AND CHIU-YUAN HSIAO Third Respondent AND TAI XING INVESTMENT PTY LTD ACN 096 384 191 Fourth Respondent AND YING-JU CHEN Fifth Respondent
FILE NO:	BD4090 of 2004
DIVISION:	Civil Jurisdiction
PROCEEDING:	Application for Stay
ORIGINATING COURT:	District Court, Brisbane
DELIVERED ON:	26 October 2006
DELIVERED AT:	Brisbane
HEARING DATE:	17 October 2006
JUDGE:	Kingham DCJ
ORDERS:	The applications for forfeiture and pecuniary penalty orders against the first, second and third respondents and their application for exclusion orders are stayed until the criminal proceedings against the second and third respondents are concluded, or further order. 1.
CATCHWORDS:	CONFISCATION OF PROPERTY – Proceeds of Crime Act 2002 (Cth) - Restraining Orders – Application for Forfeiture – Application for Pecuniary Penalty Order – Application for Exclusion Order . STAY OF PROCEEDINGS – Residual discretion – Real danger of injustice – Same or substantially similar issues – Quantum – Criminal Responsibility – Penalty – Other Prejudice Proceeds of Crime Act 2002 (Cth), ss 5, 73, 74, 121, 196, 198, 319 Criminal Code Act 1995 (Cth), ss 135.4(5), 400.3(1) Financial Transactions Report Act 1988 (Cth) s 31 Black & White Cab Co Pty Limited v Kelk [1983] 2 Qd R 484 cited Elliot v Australian Prudential Regulation Authority (2004) FCA 586 followed McMahon v Gould [1982] 7 ACLR 202 followed Mule v State of Western Australia [2002] WADC 103 followed Olbers Co Limited v Commonwealth (No 2 ) [2003] FCA 177 followed Queensland v Cannon [2003] QSC 459 cited State of Queensland v Bush [2003] QSC 375 applied State of Queensland v Henderson (2002) QSC 16/5/03 applied State of Queensland v O’Brien & Falzon (2006) QSC 22/6/06 followed State of Queensland v Shaw [2003] QSC 436 applied Stevens v Trewin & anor [1968] Qd R 411 applied The Director of Public Prosecutions for Western Australia v Mansfield and Ors [2006] WASC 72 followed
COUNSEL:	R Devlin SC & N Martin for the First, Second & Third Respondents P Flanagan SC for the Applicant
SOLICITORS:	Gabriel Ruddy & Garrett for the First, Second & Third Respondents Commonwealth Director of Public Prosecutions for the Applicant