Chiro v The Queen; Hamra v The Queen - [2017] HCATrans 133

[2017] HCATrans 133

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
Adelaide No A9 of 2017

B e t w e e n -
MARCO CHIRO
Appellant
and
THE QUEEN
Respondent

Office of the Registry
Adelaide No A14 of 2017

B e t w e e n -
STEPHEN JOHN HAMRA
Appellant
and
THE QUEEN
Respondent

KIEFEL CJ
BELL J
KEANE J
NETTLE J
EDELMAN J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON TUESDAY, 20 JUNE 2017, AT 10.15 AM

____________________

MS M.E. SHAW, QC: May it please the Court, I appear with my learned friend, MR B.J. DOYLE, for the appellant in the matter of Chiro v The Queen and in the matter of Hamra v The Queen. (instructed by Wallmans Lawyers; Woods & Co Lawyers)

MR C.D. BLEBY, SC, Solicitor‑General for the State of South Australia: May it please the Court, I appear with my learned friend, MR B. LODGE, in the matter of Chiro v The Queen, and my learned friend, MS F.J. McDONALD, in the matter of Hamra v The Queen. (instructed by Director of Public Prosecutions (SA))

KIEFEL CJ: Yes, Mrs Shaw.

MS SHAW: If the Court pleases, in terms of timetable we have had discussions and on the basis that no more than one and a half days has been allowed for both appeals, and subject to the Court’s convenience, my learned friend, Dr Bleby, and myself have agreed the division of time and it is proposed that I would address the Court on the Chiro appeal, followed by the Hamra appeal, with a view to concluding this afternoon at about 3.05 pm, then Dr Bleby would conclude his submissions in response on both matters by about 12.25 tomorrow, leaving 20 minutes for any reply.

KIEFEL CJ: Yes, thank you.

MS SHAW: Your Honours should have our outlines of oral argument in both matters, and in the case of the Chiro appeal a proposed second amended notice of appeal which simply corrects an error in the verdict here because it was by a majority verdict and the notice of appeal stated it was unanimously. That is the only alteration to correct, that the verdict was a majority verdict. So we have amended 2(a) and 3 accordingly to make that amendment.

KIEFEL CJ: There is no opposition to the amendment?

MR BLEBY: It is by consent, your Honour.

KIEFEL CJ: Thank you.

MS SHAW: Turning first to the Chiro appeal, might I give the Court a few moments to see the sequence in which we intend to make our arguments?

KIEFEL CJ: Yes, Mrs Shaw.

MS SHAW: If the Court pleases. In our submission, the central issues are those set out in paragraphs 2 and 3 of our written submissions raised by the grounds of appeal at appeal book 2, page 793. First, in circumstances where the trial judge directed the jury that they could convict on a…

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

Case: [2017] HCATrans 133
Decision Date

CaseChat Overview and Summary

In *Chiro v The Queen* and *Hamra v The Queen*, the High Court of Australia considered appeals against convictions for offences under the *Proceeds of Crime Act 2002* (Cth) and the *Criminal Code Act 1995* (Cth). The central dispute concerned the interpretation and application of provisions relating to the forfeiture of assets derived from or used in connection with criminal conduct, specifically in circumstances where the assets were held by third parties.

The High Court was required to determine whether the appellants, who were convicted of serious indictable offences, were liable to have their assets forfeited under the *Proceeds of Crime Act 2002* (Cth), notwithstanding that those assets were allegedly held by or on behalf of third parties. A key legal issue was the proper construction of the term "benefit" as defined in the Act, and whether it extended to property that was not directly owned by the offender but was nevertheless under their effective control or had been transferred to a third party to avoid forfeiture. The Court also considered the scope of the court’s powers to make forfeiture orders in relation to such property.

The Court reasoned that the *Proceeds of Crime Act 2002* (Cth) is a remedial statute designed to deprive offenders of the financial gains derived from their criminal activities. It held that the definition of "benefit" is broad and encompasses not only property directly owned by an offender but also property that has been transferred to a third party for the purpose of frustrating the operation of the Act. The Court emphasised that the focus is on the offender's effective control and beneficial interest in the property, rather than mere legal title. In applying these principles, the Court found that the appellants had retained a sufficient beneficial interest in the assets in question, even though legal title was held by others, thereby making those assets liable for forfeiture.

The appeals were dismissed.

Orders