Coleman v DPP
[2018] VSCA 264
•22 October 2018
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2018 0045
| ANTHONY ROBERT COLEMAN | Applicant |
| v | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
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| JUDGES: | KAYE, ASHLEY and WEINBERG JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 8 October 2018 |
| DATE OF JUDGMENT: | 22 October 2018 |
| MEDIUM NEUTRAL CITATION: | [2018] VSCA 264 |
| JUDGMENT APPEALED FROM: | Coleman v DPP (Unreported, County Court of Victoria, Judge Carmody, 21 February 2018) |
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CONFISCATION – Confiscation Act 1997 – Restraining order made before criminal proceeding commenced by charge being laid – Whether, by operation of s 27(1) of the Act, order made under s 18 ceased to be in force two days after making of order – Whether charge of theft of land was a charge known to the law – Whether order ceased to be in force by operation of s 27(3) because charge of theft withdrawn and charge of obtaining financial advantage by deception brought later – Whether original charge and later charge ‘related charges’ – Whether ‘founded on the same facts’ – Ordinary and natural meaning – Leave to appeal refused.
Confiscation Act 1997, sections 4, 8, 16, 18, 27, Schedules 1 and 2.
Crimes Act 1958, ss 72, 73 and 74.
Criminal Procedure Act 2009, s 3.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr A Coleman in person | |
| For the Respondent | Mr T Gyorffy QC | Mr J Cain, Solicitor for Public Prosecutions |
KAYE JA:
For the reasons given by Ashley and Weinberg JJA, I agree that the application for leave to appeal should be refused. Without detracting from the reasons given by their Honours, I add the following in relation to the proposed grounds of appeal.
Grounds 1 and 2
In oral argument before this Court, the applicant relied on two separate submissions in support of grounds 1 and 2.
The applicant’s first, and principal contention, was that the theft charge that was initially brought against him was invalid and, in effect, a nullity. The applicant based that proposition on the fact that, at the time at which he, as executor of the estate of Mr Smith fraudulently sold the property in July 2007, he was the legal and beneficial owner of the Brunswick property. Accordingly, he submitted, by selling and transferring the property, he did not appropriate the legal or equitable interest of any other person in it.
The submission, thus advanced by the applicant, ignores the plain language of s 73(6)(a) of the Crimes Act 1958. That section, and the associated provisions in Part 1, Division 2, were included in that Act by the Crimes (Theft) Act 1973. The specific purpose of the amendment, at that time, was to overcome the technicalities with which the common law offence of larceny had become entangled. The common law offence required proof of a ‘taking away’, or ‘asportavit’, of the property that was stolen. Thus, at common law, land was incapable of being stolen. Nor was it possible to take away, and thereby steal, items of property that were affixed to real estate, such as fixtures.[1]
[1]Russell on Crime (London, Sweet & Maxwell, 12th ed, 1964) 891ff; R v Dowsey (1903) 29 VLR 453, 457 (Madden CJ), 459 (Holroyd J).
It was in that context that the Crimes (Theft) Act 1973 was introduced. Section 73(6) of the Crimes Act 1958 specifically provided for three exceptions to the principle that a person cannot steal land, or things forming part of land. The first exception was that prescribed by s 73(6)(a). In construing that provision, it is important to bear in mind that it is expressed to apply to a person who is either a ‘trustee’ or a ‘personal representative’. In other words, the subsection specifically applies to a person who might be a personal representative, but not a trustee.
Ordinarily, until the administration of an estate is sufficiently complete, so that the residue of the estate can be ascertained, there may be no trust fund, in which a nominated residuary beneficiary could be said to have a beneficial interest.[2] At that stage, an executor, as the personal representative of the deceased,[3] is vested, by virtue of his or her office, with the legal and beneficial ownership of the estate of the deceased. Section 73(6)(a) of the Crimes Act 1958 recognises, and is directed to, that legal position, and provides that a personal representative, who is not a trustee, can appropriate land sufficiently, in order to constitute a theft of the land, by dealing with it ‘in breach of the confidence reposed in him’. In the present case, by selling the Brunswick property in the name of a fictitious vendor, with the intention of pocketing for himself the net proceeds of the sale of the property, the applicant unarguably acted in breach of the confidence reposed in him. For that reason, the charge of theft, originally laid against the applicant, was valid.
[2]See, eg, Commissioner of Stamp Duties (Qld) v Livingston [1965] AC 694, 708; Lord Suddeley v Attorney-General [1897] AC 11, 16 (Lord Salisbury LC), 18 (Lord Herschell); Pagels v MacDonald (1936) 54 CLR 519, 525–6 (Latham CJ).
[3]Administration and Probate Act 1958 (Vic) s 5.
The second proposition advanced by the applicant, in support of grounds 1 and 2, may also be shortly rejected. In essence, the argument by the applicant was that the theft charge was not a Schedule 2 offence, because Clause 2.2(c)(i) of the Schedule of the Confiscation Act 1997 requires that ‘the value of the property in respect of which the offence is committed is $50,000 or more’. The applicant, relying on s 4(2) of the Confiscation Act, submitted that the offence of theft had not been committed, for the purposes of Clause 2.2(c), until the applicant was convicted of that charge.
Section 16(2AA)(a)(i) of the Confiscation Act (in combination with s 18) enables a restraining order to be made in respect of property if a police officer (or person authorised by or under the Act to prosecute the relevant type of offence) believes that, within the next 48 hours, a person will be charged with a Schedule 2 offence. In the present case, it is not contended that, at the time at which the restraining order was made, that provision did not apply. Section 27(1) relevantly provides that if, at the end of a period of 48 hours after the making of a restraining order in that way, the accused has not been charged with a Schedule 2 offence, the restraining order ceases to be in force. Pausing there, the focus of s 27(1) is on charging the accused, not on the obtaining of a conviction against the accused. It is s 35 that is concerned with the consequences of a conviction for a Schedule 2 offence, the charging of which was the basis of a restraining order. Section 35(1) provides that if the accused is convicted of a Schedule 2 offence, and a restraining order was made in respect of property under Part 2 of the Act (which includes s 16), the restrained property is forfeited to the Minister on the expiration of 60 days after the making of the restraining order.
Thus, s 35 of the Confiscation Act presupposes the continued existence of a restraining order before the person in question is convicted. In order that such a restraining order remain in force for more than 48 hours after it has been obtained, the accused person, to whom it relates, must have been charged with a Schedule 2 offence. The submission, relied on by the applicant, has the effect of turning the provisions to which I have referred, on their head, and would lead to an absurdity that could not have been intended by Parliament. In essence, it would require, in a number of instances, that, within 48 hours of the making of a restraining order, the person to whom it applies be actually convicted of a Schedule 2 offence. The incongruity, produced by the proposition on which the applicant relies, would not be confined to a case in which the person in question is charged with theft. A number of other offences listed in Schedule 2, similarly require that the value of the property in respect of which the particular offence ‘is committed’ is a particular sum or more, or that an offence be ‘committed’. They include the offences specified in clauses 1(e), 2(d)–(n) (inclusive), 7, 8, 9 and 10 of Schedule 2.
Such a result would not only be absurd, but it would be entirely contrary to the legislative scheme revealed by the provisions to which I have referred. In essence, it is the laying of the charge, and not the conviction, that is the necessary foundation for the continued existence of the restraining order. The whole purpose of obtaining a restraining order, in respect of a Schedule 2 offence, is that it has the effect, upon conviction, of rendering the restrained property forfeited to the Minister on the expiry of 60 days after the making of the order.
The argument of the applicant was based on s 4 of the Confiscation Act. Section 4(1) specifies the circumstances in which a person is ‘deemed to have been convicted of an offence’. Section 4(2) then provides that a person who, because of subsection (1), is deemed to be convicted of an offence, is deemed to have committed that offence. The flaw in the applicant’s submission is the implied premise, in it, that s 4(2) is an exhaustive definition of the circumstances in which a person may be said to have committed an offence for the purposes of the Confiscation Act. That premise is misconceived. Section 4(2) is no more than a deeming provision, which enables the Court, without more, to accept that a person has committed a particular offence.
Before passing from grounds 1 and 2, it is worth noting that the applicant, then a legal practitioner, pleaded guilty at the committal proceeding to each charge contained on the charge sheet, including the charge of theft. A plea of guilty to a criminal charge constitutes a formal admission by an accused of each element of the offence charged.[4] The acceptance by the applicant of his guilt of that charge underlines the lack of substance in the first two grounds of appeal sought to be relied on.
[4]R v Inglis [1917] VLR 672, 675 (Madden CJ); De Kruiff v Smith [1971] VR 761, 765 (McInerney J); R v D’Orta-Ekenaike [1998] 2 VR 140, 146–7 (Winneke P).
Ground 3
As the applicant acknowledged in argument, his submissions, in support of ground 3 were based on the proposition that an email, sent by the prosecution to the applicant’s solicitor dated 30 May 2013, and which attached the indictment, a summary of the prosecution opening, and other documents, constituted, of itself, a withdrawal of the charge of theft.
That proposition may be readily rejected. Section 159 of the Criminal Procedure Act 2009 provides that the Director of Public Prosecutions or a Crown Prosecutor in the name of the Director may file an indictment. It is upon the filing of that document that it takes effect. The forwarding of the proposed indictment, by the email dated 30 May 2013, was no more than the compliance by the prosecution with the requirements of procedural fairness, by giving the applicant appropriate notice of the documentation which it intended to file on the hearing that was to take place four days later on 3 June. There is no basis for the inference, contended for by the applicant, that the email itself, without more, constituted the withdrawal by the prosecution of the charge of theft that was then pending against the applicant.
Ground 4
The submissions advanced by the applicant under ground 4 are similarly without substance.
Section 27 (1) of the Confiscation Act provides that if, at the end of the period of 48 hours after the making of a restraining order in reliance on the proposed charging of a person with a Schedule 1 or Schedule 2 offence, the accused has not been charged with that offence or a ‘related offence’, the order shall cease to be in force. Section 8 provides that two offences are ‘related’ to one another ‘if they are founded on the same facts or form or are part of a series of offences of the same or a similar character’. In the circumstances of this case, the charge of obtaining a financial advantage by deception (charge 9) on the indictment was clearly related to the original charge of theft.
The sale of the Brunswick property was settled on 17 July 2007 by the payment by the purchaser to the applicant of three cheques totalling $203,200.21. Charge 1, on the original charge sheet, alleged that the applicant on 17 July 2007 stole the Brunswick property which was valued at $203,200.21. The accompanying police summary stated that on 17 July 2007 the settlement for the Brunswick property took place and the property was transferred to the purchaser with the applicant receiving those three cheques. That is, the theft, that was charged, was founded on the fraudulent transfer of the property by the applicant (using a fictitious name) to the purchaser and the receipt by the applicant, in exchange, of the three cheques totalling $203,200.21.
Charge 9 of the indictment charged the applicant with obtaining a financial advantage by deception on 17 July 2007, in the sum of $189,531.12. That sum constituted the settlement sum paid to the applicant, less the agent’s fee and the appropriate costs of selling and distributing the estate. In other words, the charge was founded on the settlement of the sale and the transfer of the property by the applicant to the purchaser, and the receipt by him, in exchange, of the proceeds of sale, as a consequence of his fraudulent representation that he was entitled to receive the monies and use them as his own.
In that way, it is clear that the theft charge, and the charge on the indictment of obtaining a financial advantage by deception, were founded on the same facts, so as to be related offences as defined in s 8 of the Confiscation Act. For that reason, ground 4 of the application is without substance.
Conclusion
For the foregoing reasons, and the reasons given by Ashley and Weinberg JJA, none of the proposed grounds of appeal are reasonably arguable. Accordingly, the application must be refused.
ASHLEY JA
WEINBERG JA:
By a summons dated 15 September 2017 Anthony Coleman (‘C’ or ‘the applicant’) sought ‘orders/declarations’:
a)That pursuant to s 27(1) of the Confiscation Act 1997 the Restraining Order made by Justice [sic] Parsons on 9 March 2012 ceased to be in force at the end of the period of 48 hours after the making of the Restraining Order as the accused Anthony Coleman had not been charged with a Schedule 1 offence or a Schedule 2 offence or a related offence that is a Schedule 1 offence or a Schedule 2 offence.
In the alternative
b)That pursuant to s 27(3)(a) of the Confiscation Act 1997 the Restraining Order made by Justice [sic] Parsons on 9 March 2012 ceased to be in force at the end of the period of 7 days after the charge of Theft, filed on 9 March 2010 against the accused Anthony Coleman was withdrawn by the OPP prior to the accused being charged with a related offence, that is a Schedule 1 offence or a Schedule 2 offence, by the time of the withdrawal.
On 21 February 2018, a County Court Judge heard argument and delivered ex tempore reasons. He dismissed the summons and ordered that the applicant pay the costs of the respondent, the Director of Public Prosecutions (‘the Director’ or ‘the respondent’).
Now C seeks leave to appeal from the order dismissing his summons. He relies upon four proposed grounds:
1.The judge erred at law in finding that the Theft charge filed on 9 March 2012 in the Melbourne Magistrates Court (the Theft charge) was a Schedule 1 and/or 2 offence for the purposes of section 27(1) of the Confiscation Act 1997.
2. The judged erred at law in finding that I was a both a personal representative and trustee of the Estate of Eric Smith.
3.The judged erred at law in finding that the Theft charge filed 9 March 2012 was not withdrawn on 30 May 2013.
4. The judge erred at law in finding the Theft charge and the charge of Obtaining Financial Benefit [sic] by deception (Charge 9 in the indictment) were based on the same set of facts and therefore were related offence for the purposes of Section 8 of the Confiscation Act 1997.
In our opinion, for the reasons which follow, leave to appeal should be refused. The proposed appeal does not enjoy a real prospect of success.
Facts
In order to understand the summons and the application for leave to appeal, it is necessary to set out a deal of the factual history of the matter.
In the period which is presently relevant, 2001 to 2007, C practised as a solicitor.
In 2001, C prepared a will for Eric Smith. By the will, C was appointed the alternative executor. The will provided for a specific bequest of $40,000, and that the residue be divided equally among five charities.
Mr Smith died in September 2002. The executor declined to act, and the applicant as alternative executor applied for probate, lodging necessary documents on 22 November 2002.
An inventory of assets and liabilities of the estate filed by the applicant disclosed assets estimated at $220,969.18 and liabilities of $1,444.45, the net value of the estate thus being $219,524.73.
By far the largest asset in the estate was Unit 11/36 Murray Street, Brunswick West (‘the Brunswick property’), the estimated value of which, according to the inventory, was $140,000.
Probate was granted, and authenticated on 5 December 2002.
C closed two bank accounts, the monies in which formed part of the estate. He paid monies from those accounts which he closed, into the trust account which, as a solicitor, he maintained. The specific legatee was paid her entitlement and certain expenses of the estate were also paid out of those monies. C stole the balance ― amounting to something over $32,700.
In late June 2003, C had the Brunswick property transferred into his name as executor of the estate.
Then, between 30 June 2003 and 29 May 2006, the Brunswick property was ‘sold’ on four occasions. Three of the ‘purchasers’ were fictitious persons created by C. The fourth was a real person who knew nothing of what was going on. The purpose of these ‘sales’ was to facilitate, in each instance, a claim for a first home buyer’s grant. These claims, which defrauded the revenue, succeeded. In time, they became the subject of criminal charges brought against C.
In May 2007, nominally acting for the most recent fictitious purchaser, the applicant engaged agents to sell the Brunswick property. It was soon sold for $214,000. C, as solicitor for the fictitious vendor, received cheques for the total amount of the purchase price. The last and substantial cheques were paid to him and the Brunswick property was transferred to the buyer ― a real person ― on or about 17 July 2007.
C retained the purchase monies. He used them for his own purposes. Together with funds from some other source, he purchased a property at 85 Esplanade, Altona.
We pause to observe that in 2007, years after Mr Smith’s death, and after the estate’s entire assets had been disposed of in one way or another, the residuary beneficiaries did not even know that they were beneficiaries under the will.
The sale of the Brunswick property in mid–2007, involving the transfer of the property to a bona fide purchaser and C’s wrongful retention of the purchase monies, in time became the subject of criminal proceedings. Charges arising out of those events were of central importance to the summons referred to at [21] above, and are of central importance to the application for leave to appeal which is now before this Court.
The restraining order
On 9 March 2012, a County Court Judge ordered, ‘pursuant to s 18 of the Confiscation Act 1997’ that:
1.No person shall dispose of or otherwise deal with the property specified below or any interest in that property:
(a)the property situated at 85 Esplanade, Altona in the State of Victoria, more particularly described in Certificate of Title 08817 Folio 327;
(b)the property situated at 71 Powell Street, Yarraville in the State of Victoria, more particularly described in Certificate of Title Volume 5986 Folio 071;
(c)the property situated at 187 Ferrars Street, Southbank in the State of Victoria, more particularly described in Certificate of Title Volume 10585 Folio 709; and
(d)all other property in which Anthony Robert COLEMAN has an interest within the meaning of the Act, including property acquired after the making of the restraining order and property registered in fictitious names including, but not limited to the following:
(i)Pat BATEMAN;
(ii)Craig YOUNG; and
(iii)Max POWER.
The three persons named in paragraph 1(d) of the order were the three fictitious purchasers to whom we referred at [34] above.
By his order, the Judge declared, pursuant to s 15(3)(a) of the Confiscation Act1997 (‘the Act’) that the specified property was restrained for these purposes:
(a) to satisfy any forfeiture order that may be made under Division 1 of Part 3 of the Confiscation Act t;
(b) to satisfy any automatic forfeiture of property that may occur under Division 2 of Part 3 of Confiscation Act;
(c) to satisfy any pecuniary penalty order that may be made under Part 8 of the Confiscation Act; and
(d) to satisfy any compensation or restitution order that may be made under the Sentencing Act1991.
The order was made in reliance upon the affidavit of a police officer, Noelene Ford, sworn 8 Mach 2012 in which Ms Ford deposed that:
2.I make this affidavit in support of an application by the Director of Public Prosecutions for a restraining order in respect of property, pursuant to section 16(2)(b) of the Act, on the grounds that I believe that:
(a)the alleged offender Anthony Robert COLEMAN (COLEMAN) will be charged with a Schedule 2 offence on 9 March 2012 and, in any case, within 48 hours of the making of the proposed restraining orders; and
(b)that COLEMAN has an interest in the property that is the subject of this affidavit and/or the property is tainted property in relation to the relevant Schedule 2 offence.
The police officer further deposed her belief that on the following day the police intended to arrest and charge C with the offence that:
at Melbourne on the 17 July 2007 [he] did steal the Brunswick West property, valued at $203,200.21, being property belonging to the beneficiaries of the estate of SMITH.
and that she believed he would be charged with further offences.
The theft charge
On 9 March 2012, C was charged as follows:
The accused at Melbourne on the 17/07/2007 did steal residential property Unit 11 on Strata Plan 012182, Volume 09280, Folio 270 situated at Unit 11, Number 36 Murray Street, Brunswick West, Victoria 3055, being property belonging to the beneficiaries of the Estate of Eric Charles SMITH, namely the Salvation Army, Baptist Community Care Limited, The Royal Melbourne Hospital, Anti-Cancer Council of Victoria and the Royal Victorian Institute for the Blind and valued at $203,200.21.
Many other charges were laid against C, for the most part alleging, so far as is presently relevant, that he had dishonestly obtained for himself a financial advantage. It is not quite clear on the material before this Court when the further charges were laid.
The committal
On 22 May 2013, C was committed for trial in the Supreme Court on a plea of guilty. In all, 32 offences were then involved. Charge 1, which related to the 2007 sale of the Brunswick property, was a charge of theft. It is ironic that C contended below, and in this Court, that the charge to which he then pleaded guilty was a charge which, in the circumstances, was not known to the law. We add that at no stage between committal and the time of filing the indictment did C give notice to the Crown of intention to resile from his plea of guilty to the theft charge.
The indictment
On 30 May 2013 the Office of Public Prosecutions provided to the Court and ‘served’ on C a copy of the indictment which in due course would be filed. At the same time, a summary of prosecution opening was provided. Charges 9 and 10 on the indictment were as follows:
CHARGE 9The Director of Public Prosecutions charges that ANTHONY ROBERT COLEMAN at Melbourne in Victoria 17th July 2007 dishonestly obtained for himself a financial advantage namely the sum of $189,531.21 by falsely representing that:
a)“Max Power” was a real person
b)the ‘Executive Sale Authority’ signed by “Max Power” was genuine
c)he was entitled to receive the money from the sale of the property located at 11/36–38 Murray Street, Brunswick West and to use it as his own
CHARGE 10 The Director of Public Prosecutions charges that ANTHONY ROBERT COLEMAN at Melbourne in Victoria on the 14th day of July 2007 dishonestly obtained for himself a financial advantage namely the sum of $10,700.00 by falsely representing that:
a)“Max Power” was a real person
b)the ‘Executive Sale Authority’ signed by “Max Power” was genuine
c)he was entitled to receive the money from the sale of the property located at 11/36–38 Murray Street, Brunswick West and to use it as his own
The proposed Crown opening described charges 9 and 10 as ‘old charge 1 & 15’. An explanation of the particular offending concluded this way:
69.In selling the Brunswick East property for a total of $215,160.21 (being the $10,700.00 deposit money and the three cheques and cash from the Police Association Credit Co-Operative Limited) and using those funds for his own purposes and not distributing the monies to the beneficiaries under the Estate of Eric Charles Smith, Coleman obtained a financial advantage by deception to the sum of $215,160.21 less appropriate costs of selling and distributing the Estate ($8,469.00) is $207,691.21.
Thus, the original charge of theft of the property was to be replaced by two charges of obtaining a financial advantage by deception.
Filing of the indictment and C’s plea
The indictment was filed on 3 June 2013. C pleaded guilty to all 14 charges thereon.
Sentence
On 25 October 2013, John Dixon J imposed a total effective sentence of five years’ imprisonment upon C. His Honour fixed a non-parole period of three years’ imprisonment. His Honour also ordered, pursuant to s 86 of the Sentencing Act 1991, that C pay compensation in the sum of $309,945.96 to the proper representative of the residual beneficiaries of the estate of the late Mr Smith, once that proper representative was identified to the Court.
Other matters
Over the years, a number of exclusion applications have been brought in respect of certain of the property subject to restraint. Some applications have succeeded, others have been settled. C himself brought an exclusion application, but later abandoned it. Presently, as we understand it, he has an outstanding application for an extension of time to bring a fresh exclusion application. The Court was told that the remaining property subject to restraint has a present value of about $1.5 million.
The Confiscation Act 1997
Next, it is necessary to refer to certain provisions of the Act as in force at relevant times ― that is, between March 2012 and June 2013. Some of the provisions have later been amended. We will refer to relevant provisions as they stood in the relevant period, including schedules to the Act, in the past tense.
Part 2 of the Act dealt with ‘Restraining Orders other than Civil Forfeiture Restraining Orders’.
Section 14 set out what a restraining order was, and s 15 the purposes for which such an order might be made.
Sections 16(1) and (2) described the circumstances in which an application might be made for a restraining order. Relevantly, an application might be made if there is a belief that a person will be charged within the next 48 hours with a Schedule 1 or Schedule 2 offence.
Section 16(4) required that an application be supported by affidavit.
Section 18 set out the circumstances in which, on application, a restraining order must be made.
Under Schedule 1, the first two items were:
1.An indictable offence against the law of Victoria.
2.A Schedule 2 offence.
Theft was (and is) an indictable offence against Victorian law.
Theft was also an offence captured by Schedule 2 in the case of a single offence involving an amount of $50,000 or more, or in the case of multiple related offences involving $75,000 or more. Having regard to an additional argument raised by the applicant, we should set out the text of the particular item:
(2) (c)section 74 (theft) where—
(i)only one offence is charged and the value of the property in respect of which the offence is committed is $50,000 or more;
Obtaining a financial advantage by deception was also an offence captured by Schedule 2 where, in the case of a single offence, the amount obtained was $50,000 or more, or, in the case of multiple offences, the value of the financial advantage obtained was $75,000 or more.
We turn to s 27 of the Act, as it stood at relevant times.
Subsection (1) provided:
27 Duration and setting aside of restraining order
(1)If, at the end of the period of 48 hours after the making of a restraining order in reliance on the proposed charging of an accused with a Schedule 1 offence or a Schedule 2 offence, the accused has not been charged with the offence or a related offence that is a Schedule 1 offence or a Schedule 2 offence, whether or not in the same Schedule as the original offence, the order ceases to be in force at the end of that period.
Subsection (3) provided:
(3)If, when a restraining order was made in reliance on the charging, or proposed charging, of an accused with a Schedule 1 offence or a Schedule 2 offence or in reliance on the conviction of an accused of such an offence—
(a)the charge is withdrawn and the accused is not charged with a related offence that is a Schedule 1 offence or a Schedule 2 offence by the time of the withdrawal, whether or not in the same Schedule as the original offence, the restraining order ceases to be in force on the expiry of 7 days after the charge is withdrawn; or
(b)the accused is acquitted of the charge and the accused is not charged with a related offence that is a Schedule 1 offence or a Schedule 2 offence by the time of the acquittal, whether or not in the same Schedule as the original offence, the restraining order ceases to be in force when the acquittal occurs; or
(c)the conviction of the accused of the offence is subsequently set aside, the restraining order (other than one referred to in subsection (2)) ceases to be in force when the appeal period expires unless a new trial has been ordered at the time of the setting aside of the conviction.
It can immediately be seen that paragraphs (a) and (b) of C’s summons, set out at [21] above, relied, respectively, upon s 27(1) and (3) of the Act.
The Crimes Act 1958
We should refer to certain provisions of the Crimes Act 1958 (‘Crimes Act’) referrable to theft:
71 Definitions
(1) In this Division —
…
property includes money and all other property real or personal including things in action and other intangible property.
..
72 Basic definition of theft
(1)A person steals if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it.
…
73 Further explanation of theft
(1)This section has effect as regards the interpretation and operation of section 72 and, except as otherwise provided in this Division, shall apply only for the purposes of that section and not otherwise.
…
(6)A person cannot steal land, or things forming part of land and severed from it by him or by his directions, except in the following cases, that is to say—
(a)when he is a trustee or personal representative, or is authorized by power of attorney, or as liquidator of a company, or otherwise, to sell or dispose of land belonging to another, and he appropriates the land or anything forming part of it by dealing with it in breach of the confidence reposed in him;
74 Theft
(1)A person guilty of theft is guilty of an indictable offence and liable to level 5 imprisonment (10 years maximum).
The Judge’s Reasons
In the context which we have described, it is now possible to outline the way in which the Judge resolved the issues raised by C’s summons.
Having set out the circumstances of the matter, his Honour said this:
In summary the applicant breached the trust of his client Mr Smith, the beneficiaries of Mr Smith’s will and his oath of office when he was admitted to practice as a legal practitioner.
The Judge noted that it was C’s contention that the charge of theft was, in the circumstances, unknown to the law, because a person cannot steal land. Then he set out the text of s 73(6)(a) of the Crimes Act, following which he said:
In this case Mr Coleman was in the position of trustee or personal representative for Mr Smith, but also for the five charities that were the beneficiaries under Mr Smith’s will. He was clearly in breach of any confidence reposed in him when he sold the property to Ms Plozza whilst representing that Max Power was the vendor. It is overwhelming that Mr Coleman was acting dishonestly and had appropriated the land and the proceeds for the sale of the unit which was upon the land. The effect of his actions was to interfere with the interest of the rightful owners, the five charities. His intention was clearly to deprive the charities of the benefit of the sale of Smith’s unit permanently. Mr Coleman had completed the elements of the charge of theft of the unit when he sold the unit to Ms Plozza.
It is legal sophistry to submit that Mr Coleman was entitled to sell the unit in his capacity as the legal representative of Eric Smith to Ms Plozza. Coleman had transferred the unit by a number of transactions to ultimately be registered in the name of Max Power, his alias. The final sale of the unit and settlement on 17 July 2007 was one step in a sequence of events to dishonestly steal the property and its value from the beneficiaries. He could only do this because he was in the position of a trustee for the estate and in effect a personal representative of the estate of Eric Smith. The application under the heading Order 1 is dismissed.
Next, his Honour addressed the second order or declaration sought by the applicant. He dealt with it this way:
Mr Coleman submits that s 27(3) of the Confiscation Act has the effect of making Judge Parson’s order on 9 March 2012 of no effect because the charge of theft was withdrawn on 30 May 2013. Further he submits that at the time of the alleged withdrawal of the theft charge he had not been charged with a related offence and consequently the restraining order ceased to be in force.
In argument Mr Coleman conceded that there was no order made either at the Magistrates’ Court or the Supreme Court that the theft charge, that is Charge 1, was withdrawn. The indictment filed at the Supreme Court on 3 June 2013 did not have a charge of theft in relation to the Brunswick property. The indictment had a Charge 9 which was for obtaining financial advantage by deception. This charge was for the money amount of Mr Coleman’s offending, less his expenses that he obtained from the sale of the unit to Plozza.
The criminal proceedings in this case were commenced by the charges filed in the Magistrates’ Court on 9 March 2013. The indictment in this case was filed pursuant to s 162 of the Criminal Procedure Act. In effect the Charge 9 on the indictment is a continuation of the prosecution of the criminality relied upon to prove the original charge of theft, Charge 1. The Charge 9 on the indictment is a charge for a related offence arising from the same factual matrix giving rise to that theft charge. The phrase ‘related offence’ is defined in the Criminal Procedure Act and the Confiscation Act in exactly the same terms. I find that Charge 9 on the indictment and Charge 1 of theft originally filed are related offences based on the same set of facts in this case.
I conclude that Mr Coleman was originally charged with the theft and then obtained financial advantage by deception based on the same set of facts or a series of facts and consequently there has always been a charge in place to found the restraining order on 9 March 2012, made by Judge Parsons. Order 2 is dismissed.
As will appear, not only were his Honour’s orders correct, the reasons which he gave for making them in each instance captured the decisive considerations.
Proposed ground 1
Applicant’s submissions
In its initial form, the applicant’s written argument with respect to ground 1 turned on a particular feature of the application of s 27(1) of the Act. According to those submission, he was not charged with a Schedule 1 or Schedule 2 offence within 48 hours of the making of the restraining order, and so that order ceased to have effect. This was because the charge of theft was ‘invalid as it was not known at law’. A person cannot steal land, and his conduct ‘did not fall within the exceptions at s 73(6)(a)–(c) Crimes Act’. The applicant did not appropriate the land. The Judge should have so held. The Judge’s finding was contrary to the evidence. In fact, there was no evidence of appropriation.
The applicant further submitted in writing that appropriation only occurs when there has been an appropriation by a person of the rights of an owner. But, as executor of Mr Smith’s will he, C, was both the legal and beneficial owner of the Brunswick property. Moreover, as executor he had a right to sell the land. As at July 2007 he had not yet completed administration of the estate. The beneficiaries, as at July 2007, had no right to sell the estate. By selling the land, he did not ‘adversely interfere with or usurp the Residual Beneficiaries’ rights’. There cannot be theft of property from the person (here, the residual beneficiaries) to whom it does not belong.
Further still, C submitted in writing, the Judge’s conclusion that his intention was ‘clearly to deprive the charities of the benefit of the sale of Smith’s unit permanently’ showed that there was no theft of the land, no intention to permanently deprive the beneficiaries of the land.
In oral argument, C conceded that there would have been theft of the land within the framework created by s 73(6)(a) of the Crimes Act if, having transferred the Brunswick property into his own name (as he was entitled to do as executor), he had kept it for himself. But it was otherwise, he argued, if he sold the land and kept the proceeds for himself.
As part of his submission that he had the entirety of the legal and beneficial interest in the Brunswick property at the time of its sale, the applicant emphasised that he was acting as executor at the time. He was not acting as trustee. But the Judge, he submitted, had erred by ‘finding that [he] was both a personal representative and trustee of the Estate’. That was not the case. Administration of the estate was incomplete. It could not be said, therefore, that the residuary beneficiaries had any beneficial interest in the land.
Still further, the applicant’s written submissions contended that the judge had erred by failing to draw the inference that the Office of Public Prosecutions withdrew the theft charge because it was invalid in law. Failure of the Office of Public Prosecutions to adduce evidence to explain the supposed withdrawal was unexplained, and the Judge should have drawn an inference that, in effect, the withdrawal was an admission of invalidity of the theft charge.
Finally, in his written submissions as originally filed, the applicant submitted that John Dixon J, in determining the amount of the financial advantage obtained by deception with respect to the Brunswick property, had deducted from the sale proceeds the legal costs of effecting the transaction. His Honour had done so on the basis of a submission advanced by the Crown. This demonstrated that the costs ‘ordered to be paid to [him] for selling the land cannot have been for an illegal act as legal costs are only payable for legal work conducted in the ordinary course of legal practice’.
Some four months after filing his written case, the applicant amended it so as to raise a new argument. It had not been raised below. It involved a point of statutory construction. The Director did not oppose the applicant pursuing the new argument. Despite this lack of opposition, and despite the new argument being confined to a matter of statutory construction, it remains unsatisfactory that a new argument, claimed to be decisive, should be raised for the first time in this Court. That said, in the circumstances we should deal with it.
The argument went this way: the application for a restraining order had been made in reliance on s 16(2)(b)(i) of the Act. That sub-section required that there be a belief that a person will be charged with a Schedule 2 offence within the next 48 hours. The affidavit of Noeline Ford, in support of the application for a restraining order, stated a belief that C would be charged with a Schedule 2 offence on the following day. The charge would be that C stole the Brunswick property on 17 July 2007. Theft is a Schedule 2 offence. But it only applies where, in the case of a single offence, the value of the property in respect of which the offence is committed is $50,000 or more. An offence is not ‘committed’ until there is conviction — see the definition of ‘conviction’ in s 4 of the Act. Therefore, the charge laid on 9 March 2012 was not a theft charge as defined in item 2(c)(i) of Schedule 2. That item would only be relevant where an application for a restraining order was made after conviction in accordance with s 16(2)(d) of the Act.
We should set out s 4 of the Act as it stood in March 2012. Thus:
Meaning of conviction
(1)For the purposes of this Act, a person is deemed to have been convicted of an offence if—
(a)the person has been convicted of the offence; or
(b)the person has been charged with the offence and the court hearing the charge finds the person guilty of the offence but does not record a conviction; or
(c)the offence was taken into account by a court under section 100 of the Sentencing Act 1991 in sentencing the person for another offence; or
(d)the person has been charged with the offence but, before the charge is finally determined, the person absconds.
(2)For the purposes of this Act, a person who, because of subsection (1), is deemed to have been convicted of an offence, is deemed to have committed that offence.
At the heart of this submission was the proposition that the verb ‘committed’ in the schedule item necessarily imported conviction.
Respondent’s submissions
The Director submitted in writing that authorities relied upon by the applicant, pertinent to the administration of rules, expressed ‘orthodox views’. But they did not govern the criminal liability of an executor under the Crimes Act. Counsel addressed attention particularly to s 73(4) and 73(6)(a) of the Crimes Act. He referred also to s 73(8) and (9) of the Crimes Act and to s 3 of the Trustee Act 1958. He submitted that
The clear meaning of the provisions of the Crimes Act are that an executor may steal land forming part of an estate he or she is administering if it is dealt with for the benefit of the executor and is contrary to the duty of the executor to administer that estate. In those circumstances the beneficiaries are deemed to be the owners of that property.
Pertaining to s 27(1) of the Act, the Director submitted that:
Schedule 1 includes any indictable offence against a law of Victoria and a Schedule 2 offence. Theft is the indictable offence against the Crimes Act and is therefore a Schedule 1 offence. Included among the Schedule 2 offences is [item] 2(c) which is a single charge of theft in excess of $50,000.
On the face of it, the theft charge laid against the applicant exceeded $50,000 and was therefore also a Schedule 2 offence.
With respect to the applicant’s argument that nowhere in the materials did the prosecution allege or contend that he had appropriated the land, the Director submitted in writing that the argument proceeded on the basis that criminal proceedings and prosecution openings are analogous to civil pleadings. But this was misconceived. A criminal proceeding is based on the charge laid and the elements that make it up. The situation is not a matter of averment, it is a matter for submissions on the evidence at the end of all evidence being led.
The Director then addressed the applicant’s contention that s 73(6)(a) of the Crimes Act must be read in conjunction with s 73(4) to limit appropriation to a case where there has been an assumption by a person of the rights of the owner. His response was that, whilst the beneficiaries of a will only have a chose in action to enforce the administration of the will, that being undoubtedly the law in the administration of estates, it was beside the point in the context of the Crimes Act. The current provisions in relation to theft were introduced by the Crimes (Theft) Act 1973. In his Second Reading Speech, the Attorney-General had said that:
Over many centuries the law in this subject has developed in a somewhat haphazard manner, and has resulted in highly technical distinctions which have very little to recommend them to a practical man relying on the courts to protect the rights relating to his property.
The Attorney-General had then referred to the genesis of the legislation. It was based on a 1968 report of the United Kingdom Criminal Law Revision Committee which had been reviewed in Victoria by the Chief Justice’s Law Reform Committee. The Attorney-General had commended the Explanatory Memorandum accompanying the Bill to the House and specifically adopted this passage:
The major benefits which may be expected to flow from this reform is that attention will be focused on the basic questions of honesty or dishonesty; instead of on technical questions such as the precise legal analysis of the manner in which the property came into the hands of the accused man …
and:
When the law of larceny first took shape, the notions of ownership and intangible rights (which are the foundation of a modern commercial community) were unknown. Possession of physical objects was all-important, and larceny came to be defined (as it still is) as the taking and carrying away of some physical object from the possession of some other person without his consent.
The Director submitted that the requirement of ‘taking and carrying away’ had hitherto precluded real property being capable of being stolen. But the new provisions enacted in England under the Theft Act 1968 (UK), and largely replicated in Victoria by the Crimes (Theft) Act 1973, did away with that requirement. By s 73(6)(a) of the Victorian Act, it provided an exception to the rule that land could not be stolen in respect of trustees and executors.
The Director then submitted that s 73(6)(a) is a provision which deals with a category of people who are in possession or control of property, including real estate, for the purpose of realising such property for the benefit of others who are entitled to it or proceeds derived from it. The liability of such a person stems from dealing with the land in a manner that breaches ‘the confidence reposed in him’. The focus of the provision was then upon dishonest conduct, not the technicalities of ownership.
In the present case, the Director submitted, C sold the property in question and retained the proceeds for himself and did not allocate them to the beneficiaries under the will. In short, he did not well and truly administer the estate according to law. What he did was to appropriate the real estate dishonestly for his own purposes by selling it and keeping the proceeds for himself.
Counsel further submitted that, in enacting the particular legislation, Parliament was to be taken to know the law as it applied to the administration of estates — in particular, that beneficiaries do not own property comprising the estate during its administration unless it is specifically allocated to one or other of them in accordance with the will. Similarly in relation to trustees and liquidators.
Having referred also to s 73(8) and (9) of the Crimes Act, the Director turned to C’s argument that the Judge erred in finding that he had an intention to permanently deprive the residual beneficiaries of the benefit of the sale. The Director submitted that this was a question of fact, and that the inference of an intention to permanently deprive was well open on the evidence.
As to the applicant’s argument that the Judge erred in failing to draw an inference that the theft charge was withdrawn by the Director because it was invalid, the Director submitted that the nature of any charge to be included in an indictment is a matter for a Crown Prosecutor. Moreover, whether or not the original charge was a valid one was a matter of law, not fact. Thus, no inference adverse to the Director could be drawn from the supposed withdrawal.
Finally, with respect to C’s argument that John Dixon J, by allowing for a deduction of the costs incurred in the conveyancing of the property, had found that the transaction was lawful, the Director submitted that for the purposes of sentencing it was necessary to determine the extent of the financial loss of the residual beneficiaries. The legal costs which would have been due on a lawful transaction reduced the actual loss to the beneficiaries. But that was not a finding that C acted lawfully in the transaction.
Orally, senior counsel for the Director addressed the new argument for C to which we have adverted at [80] and following. He submitted that ss 16(1) and (2) of the Act address charging which is prospective. It would be anomalous if the Schedule 2 item was read to require conviction before it could be relevant. The Schedule 2 item simply describes the character of the offence.
Analysis
In our opinion, it is clear that the respondent’s submissions should generally be accepted. On the charge of theft, as particularised, it would have been open to the tribunal of fact to find that charge proved. There would have been no legal impediment to it doing so.
It would be wrong to deploy the law relating to the administration of estates to limit the plain words of s 73(6)(a) of the Crimes Act.
When the Theft Act 1968 (UK) (‘the Theft Act’) was first enacted, it would have been technically possible to make land generally amenable to the charge of theft. For example, where a person acting dishonestly moved his boundary fence a few inches into his neighbour’s garden, it could have been said that this constituted theft of the land. As previously indicated, the definition of ‘property’ in s 71 of the Crimes Act includes money and ‘all other property real or personal’. Conceptually, therefore, land is property that is capable of being stolen.
However, limitations were imposed upon the theft of land. In drafting the Theft Act 1968 (UK), the Criminal Law Revision Committee considered that there were a number of reasons for not treating the circumstances mentioned in the preceding paragraph as theft. According to the Eighth Report, which led to the enactment of the Theft Act 1968 (UK), these included that the appropriation of land by encroachment was a rare phenomenon that could be dealt with adequately by civil remedies. Moreover, rendering land generally liable to be stolen might create conflict with doctrines such as adverse possession.
It was for that reason that s 4(2) of the Theft Act 1968 (UK), which is essentially in the same terms as s 73(6) of the Victorian Act, imposed significant limitations upon the theft of land.
For present purposes it is sufficient to focus upon s 73(6)(a) of the Crimes Act. Under that provision, exceptionally, land or things forming part of the land are capable of being stolen, but only by the categories of persons designated therein. A personal representative, which is what an executer of an estate is, can steal land provided he or she appropriates the land or anything forming part of it by dealing with it in breach of the confidence reposed in him or her.
Of course, an unauthorized dealing is not, by itself, theft. The other elements of the offence must also be present. That includes both appropriation, and dishonesty.
It is surprising that so little has been said, or written, about theft of land since the Theft Act 1968 (UK) and the provisions of the Crimes (Theft) Act 1973 were enacted. None of the standard English texts refer to any English authority on the point. For example, Professor J C Smith in his classic work, The Law of Theft[5] simply notes that land was formerly a possible subject of fraudulent conversion, an offence that no longer exists under the Theft Act 1968 (UK), but has been swallowed up by the offence of theft itself.
[5]Butterworths, 7th ed, 1993, 48.
One thing that Professor Smith makes clear, however, is that a trustee, personal representative, or other person authorised to dispose of land belonging to another may steal the land, or anything forming part of it, by dealing with it in breach of the confidence reposed in him. So, if he sells or gives away the land, or any fixture or structure forming part of it, he commits theft.
Professor Edward Griew, in his book The Theft Acts[6] notes that the legislature, in enacting the Theft Act 1968 (UK) chose to use the term ‘breach of the confidence reposed in him’, rather than ‘breach of trust’, in order to avoid introducing technical concepts drawn from equity. He posits the example of an agent who is authorised to sell land being guilty of theft if, for instance, he dishonestly sells to his own nominee at an undervalue for the purpose of making a profit by then selling to a sub-purchaser on his own account.
[6]London, Sweet & Maxwell, 7th ed, 1995, 14–15.
The only decided case to which any of the English texts refer in relation to the equivalent of s 73(6) is a Victorian decision which involved the theft of land through permitting the grazing of one’s cattle on the land of another.
The case in question is McGill v Shepherd.[7] It involved a charge of theft of ‘cattle grazing feed’ which had been dismissed at the Magistrates’ Court, on the basis that the requirements of s 73(6)(b) were not met. The Magistrate had concluded that this limited form of theft of land, or things forming part of it, had not been made out because the grass in question had not been severed or caused to be severed by a human agent.
[7](Unreported, Supreme Court of Victoria, Murphy J, 21 July 1976).
Justice Murphy, who set aside the Magistrate’s decision dismissing the charge, and ordered that it be remitted to be reheard, had no doubt that this was relevantly a case of theft of land, by severance, within s 73(6)(b). His Honour’s decision is cited in most of the standard English texts. Yet there is still not a single reported case anywhere, under the Theft Act 1968 (UK) provisions or their equivalents, which deals squarely with s 73(6)(a).
The purpose of s 73(6)(a) is clear. It extends the concept of theft beyond the simple notion of appropriation which limited the application of the law relating to theft in the case of real property. It recognises as theft misconduct by a personal representative despite what would otherwise be the insuperable problem of that person having legal and beneficial ownership of land. It does so by treating an appropriation in breach of confidence reposed in that person as theft. As to ‘breach of confidence’, a beneficiary has a right to have a deceased’s estate administered by the executor in accordance with the will. It is a right recognised as a chose in action, created by the devise and bequests contained in the will.[8] An executor’s undertaking to the Court, on grant of probate, to ‘well and truly collect and administer the estate of the deceased according to law’, emphasises the heavy obligations of an executor having regard to the wishes of the deceased as set out in the will, the superintending role of the Court, and the rights of beneficiaries as already mentioned.
[8]Official Receiver in Bankruptcy v Schult (1990) 170 CLR 306, 314.
In this case, it was common ground that C was acting as executor when he transferred the property and pocketed the proceeds of sale.[9] There being, in our opinion, no legal impediment to it doing so, it was definitely open to the tribunal of fact to be satisfied that C, acting as executor, appropriated the land by dealing with it,[10] albeit as owner, in breach of confidence as we have described it. This was no appropriation of property by an executor to a third party in the ordinary course of administration of an estate. It was an appropriation with the definite aim, as C conceded in oral argument, of pocketing the proceeds of sale.
[9]The Director accepted that this was the situation, and we consider the matter on that footing.
[10]There can be no doubt that the sale of an item of property belonging to another to a third party can constitute an appropriation within the meaning of s 73(4). The term ‘appropriation’ extends to the assumption of any of the rights of an owner in relation to the property in question. That includes the use of property, damage to or destruction of property, selling or pledging of property, lending or borrowing of property and retention of property. So, pointing to another person’s car and offering it for sale constitutes an appropriation. See Stein v Henshall [1976] VR 612, Wilson v Woodrow (1987) 26 A Crim R 387 and R v Morris [1984] AC 320, 322. The latter was a case of price tag switching, held to amount to appropriation. See also R v Gomez [1993] AC 442 for approval of an extended definition of appropriation.
We should say something about the subsidiary arguments pursued by the applicant, and about the concession noted at [76] above.
First, s 73(6)(a) should not be read ‘in conjunction with’ s 73(4). Each of those sub-sections addresses a discrete matter. So do the other sub-sections of that section. This case does not turn upon ss 73(8) or (9).
Second, there was plainly reason for the Judge to conclude that the applicant had the intention of permanently depriving the residuary beneficiaries of what should have proved to be their respective entitlements out of the estate.
Third, the argument that the Judge should have inferred that the theft charge was ‘invalid’ because it was withdrawn, should be rejected. That is because — (1) the charge was not withdrawn, see later in these Reasons; (2) it is a matter for the prosecutor to frame the indictment which must be filed before trial; (3) whether the charge was ‘invalid’ was a question of law, not something which could be informally admitted; and (4) even if the charge had been withdrawn and even if the inference pressed by the applicant was available, it could not determine whether the elements of the charge of theft had in fact been susceptible of proof.
Fourth, we reject the applicant’s bold contention that sale of the property was a lawful exercise of his powers as executor because legal costs were deducted from the purchase price in determining the extent of the financial advantage by deception, and as bearing upon the quantum of compensation to be ordered pursuant to s 86 of the Sentencing Act 1991. Such costs would have been deductible from the proceeds of sale in the ordinary course, so as to affect the distribution amount to the beneficiaries. Moreover, by pleading guilty to charges 9 and 10 on the indictment, the applicant admitted the unlawfulness of his conduct in selling the land and pocketing the proceeds.
Fifth, the applicant’s concession that, had he taken title to and then simply held the land (that is, with intention to hold it permanently) he could have been convicted of theft, but that it was not so when he transferred title to the property to another person, demonstrates, to our minds, the unreality and artificiality of his position.
We turn to the new argument raised by the applicant, noted at [80] and following. In our opinion, it should be rejected.
We should first observe, albeit that we have concluded that the Court should deal with the argument, that it differed dramatically from what the applicant had hitherto advanced. His primary argument was that the particular item in Schedule 2 was not engaged because there was no theft. His new argument was that the Schedule 2 item was not engaged because he had not been convicted of theft when the restraining order was obtained.
We turn to the substance of the argument. In the case of a large number of offences in Schedule 2 of the Act, there was in 2012 (and still is) use of the verb ‘committed’. Taking item 2(c)(i) as an example, the language is that ‘only one offence is charged and the value of the property in respect of which the offence is committed is $50,000 or more’.
Language to similar intent is found in items 2(d), 2(e), 2(f), 2(i), 2(j), 2(m), 2(n), 7, 8 and 9.
The applicant argued that, in item 2(c)(i), ‘committed’ was to be read as ‘convicted’.
Although the applicant’s submission was directed to item 2(c), logically it would extend to every schedule item in respect of which the verb ‘committed’ is used. So, it would be said, the item could not be satisfied before there had been a conviction.
Quite apart from those items which use the verb ‘committed’, Schedule 2 describes (as it did in 2012) many offences in a way which means that, prior to conviction, there could only ever be an allegation of circumstances which would bring the particular offence within the schedule item. The language varies from one item to another, but the thrust is quite clear.
In the event, although every item in the schedule describes an offence in respect of which relevant circumstances can only be matters of allegation until there is a plea of guilty or a finding of guilt, the applicant’s submission would seem to draw a distinction as to the permissible way in which a pre-charging order might be sought in the case of different items. Either that is so, or else the applicant’s position must be that every offence described in the Schedule, involving an allegation of value or the like which could not be established until a plea of guilty or a finding of guilt, must fall under a regime in which a restraining order could only be sought under s 16(1) of the Act before a charge was laid, or else after conviction under s 16(2)(d).
The applicant’s submission turned on s 4 of the Act, which we have already set out. Sub-section (1) of that section provides for when, under the Act, a person is ‘deemed to have been convicted’. It addresses four situations. They are increasingly remote from ‘conviction’ in ordinary parlance. Illustrating the point, the fourth is when a person has been charged but absconds before the charge is finally determined.
The concept of conviction is relevant in a number of ways to the working of the Act. It is understandable that the concept be given a broad application. But that has nothing to do with a pre-charging application for a restraining order.
The applicant placed particular reliance on sub-s (2). In our opinion, that sub-section does not avail him. It provides that where a person is deemed to have been convicted, he or she is deemed to have committed the offence the subject of the conviction. This creates a cascade of deemed situations. But it does not impact upon the meaning attaching to the verb ‘committed’ where repeatedly used in the context of Schedule 2 items. Section 4(2) does not purport to define the word ‘committed’.
The applicant’s submission faced other problems.
It made no attempt to grapple with the issues discussed at [123]–[124] above.
It did not address the orthodox position that the circumstances which the Crown essays to prove are (or should be) ascertainable from the formulation of a charge, which formulation will, at least prima facie, provide a basis for determining whether the charge fits within a Schedule 2 item.
The applicant’s submission did not seek to explain why, in the case of a charge of theft, a pre-charging application for a restraining order could only be made under s 16(1), whereas an application for such an order after conviction could (presumably) be made either under that sub-section or else sub-s 2(d).
Proposed Ground 2
This ground was connected to proposed ground 1. The applicant wished to submit that the judge had not clearly identified him as having acted as executor of the estate, rather than as a trustee,[11] when effecting the sale of the Brunswick property. It was central to his argument that he was then acting as executor.
[11]Presumably, for the residuary beneficiaries.
In the event, the Director accepted that the applicant was acting as executor at the critical time. That was the basis upon which proposed ground 1 was argued. In those circumstances, the applicant formally abandoned proposed ground 2 at the oral hearing of the application.
Proposed Ground 3
This ground focuses on s 27(3)(a) of the Act.
Applicant’s submissions
According to the applicant’s written submissions, the (invalid) charge of theft was withdrawn on 30 May 2013 when the solicitor in the Office of Public Prosecutions emailed to the applicant’s solicitor the indictment upon which the prosecution intended to proceed. By that indictment, as we have already noted, the charge of theft of the Brunswick property was omitted, and was replaced by charges 9 and 10 — that is, charges of obtaining financial advantage by deception.
Further according to the applicant’s submissions, the content of the indictment which the Crown proposed to file provided ‘clear evidence’ that the theft charge was withdrawn. The solicitor at the Office of Public Prosecutions had not given evidence to rebut the inference which arose from the document, and from an accompanying proposed Crown opening, which relevantly referred to ‘Charge 9 & 10 — old charge 1 & 15 Obtaining financial advantage by deception’. The Judge should have found that the inference had not been rebutted.
The applicant also submitted that the words in s 27(3)(a) ‘the charge is withdrawn’ are ambiguous. By reference to the explanatory memorandum, the applicant submitted that the concept of ‘withdrawal’ is a counterpoint to the entry of a nolle prosequi. It followed that withdrawal must therefore operate in the period before filing an indictment. Emailing the indictment, summary of offences and proposed Crown opening to the solicitor on 30 May 2013, before the indictment was filed, ‘equated to the procedure for withdrawing a charge where no indictment is filed’. Further, the applicant submitted, the Judge erred by treating, it seemed, s 27(3) of the Act as if it read ‘the charge is withdrawn in accordance with the Criminal Procedure Act section 177’. There was no warrant for reading words into s 27(3)(a).
Finally, C submitted that the meaning of the words ‘the charge is withdrawn’ in s 27(3)(a) of the Act being ambiguous, the Judge erred by failing to interpret the ambiguity so that the more lenient of interpretations, avoiding the imposition of the confiscation, was adopted. His Honour erred also by failing to apply the common law principle that any statutory ambiguity in confiscation legislation should be interpreted so as to respect a person’s property rights.
Respondent’s submissions
The respondent submitted in writing that the provisions of the Criminal Procedure Act 2009 (‘Procedure Act’) showed that the applicant’s argument was misconceived.
Section 6 of the Procedure Act provides that a criminal prosecution commences with the filing of a charge sheet.
By s 98 of the Procedure Act, committal proceedings relating to indictable offences begin at the commencement of a filing hearing.
If there is evidence of sufficient weight to support a conviction, then the accused is committed for trial.
By s 146 of that Act, relevant documents must be forwarded to the Director.
In this case, the applicant was committed for trial for offences including theft of the Brunswick property.
The Director next referred to s 159 of the Procedure Act, which provides for the filing of an indictment. It is the filing of the indictment, it was submitted, which gives the court in which the indictment is filed power to deal with the charges.
Further to that submission, the Director contended that the prosecutor may allege, on the indictment, any charge that is open on the evidence in respect of which it is considered that there are reasonable prospects of success.
Next, the Director addressed attention to s 162 of the Procedure Act. By that section, the filing of the indictment, though a necessary step, does not commence the criminal proceeding. That proceeding has been on foot since charges were first laid.
The position is different in the case of a direct indictment, but that was not here in point.
According to the respondent’s submission, it was when the indictment was filed, not before, that the charge of theft which had originally been laid, changed to one of obtaining a financial advantage by deception. Thus, it was argued, there was no gap in time between the ending of the theft charge and the commencement of the other charges.
Orally, senior counsel for the Director submitted that the charge of theft remained alive until the indictment was filed. The consequence of the elimination of the theft charge, and its replacement by the charges of obtaining financial advantage by deception on the indictment, was that the theft charge was permanently stayed. The indictment set out the totality of criminality alleged against the applicant.
Analysis
The applicant’s argument depended upon the charge of theft having been withdrawn on 30 May 2013, no charge for a related offence having been laid ‘by the time of the withdrawal’. Putting to one side, for the moment, the question whether the charge of obtaining a financial advantage by deception met the description of a ‘related charge’, the applicant’s argument involved a contention that he was not charged with a related offence until the indictment was filed — that is, on 3 June 2013. The applicant’s submission thus treated the notification on 30 May 2013 differentially. On the one hand, it operated to withdraw the charge of theft. On the other hand, it did not lay a new charge.
In one respect only, we agree with the applicant’s submission. We agree that the relevant deception charge[12] was initiated when the indictment was filed. But we think it is clear that, until that time, bearing in mind the fact that there was only ever one criminal proceeding, the theft charge upon which the applicant had been committed for trial, and to which he had pleaded guilty,[13] remained on foot. It was superseded when the indictment, alleging charges 9 and 10, to which the applicant thereafter pleaded guilty — was filed.
[12]We use the singular for convenience.
[13]See Procedure Act s 144(1).
It may be said that the documents delivered to the applicant’s solicitors on 30 May 2013 contained an intimation that the charge of theft was to be replaced by two charges of obtaining a financial advantage by deception. But that intimation related to an event which was yet to take place. Emphasising the point, the obligation on the Director to serve a copy of an indictment on an accused does not arise until it has been filed.[14]
[14]See Procedure Act s 171(1).
We have referred to the applicant’s submissions with respect to ambiguity, and to the way in which ambiguous provisions in confiscation legislation should be interpreted. In our opinion, these submissions raised a non-issue. On no view of the facts was the charge of theft withdrawn before 3 June 2013.
Proposed Ground 4
This ground seeks to challenge the Judge’s conclusion that the charge of theft referable to the sale of the Brunswick property and the two charges of obtaining a financial advantage by deception in reference to the sale were ‘related offences’ as defined by s 8 of the Act. That section reads:
Related offences
For the purposes of this Act, two offences are related to one another if they are founded on the same facts or form or are part of a series of offences of the same or a similar character.
The significance of proposed ground 4 is that, if proposed ground 3 was rejected, s 27(3) of the Act might yet apply to the applicant’s advantage if it was concluded that charges 9 and 10 on the indictment were not ‘related offences’ to the theft offence originally charged. The argument would run that the theft charge was ‘withdrawn’ when the indictment was filed, which eliminated that charge, no relevant charge being substituted.
The Judge found, as we have said, that charge 9 in the indictment and charge 1 of theft originally filed were related offences based on the same set of facts in the case. His Honour concluded that the applicant was originally charged with theft and then with obtaining financial advantage by deception based on the same set of facts or series of facts, so that there had always been a charge in place to found the restraining order.
Applicant’s submissions
The applicant submitted in writing that the charges of theft and of obtaining a financial advantage by deception were not based on the same facts. He advanced the following arguments.
First, that could not be so because the theft charge had no basis in law.
Second, ‘the same facts’ means ‘identical facts’. The definition of ‘property’ in s 71(1) of the Crimes Act distinguishes between real and personal property. The first charged offence related to real property, the second to obtaining monetary gain by deception. The facts were not identical in respect of those charges.
Third, alternatively, the natural and ordinary meaning of the words ‘same facts’ should lead to the same conclusion.
Fourth, and again alternatively, if the words ’same facts’ were to be regarded as ambiguous, they should be construed in a manner least impacting upon the individual’s right to property, and in conformity with the principle that confiscation legislation should be strictly construed — this leading, again, to the same conclusion.
Orally, the applicant submitted that authorities dealing with the concept of ‘related facts’ in the context of joinder of charges do not provide guidance to the meaning of that term where used in confiscation legislation.
Respondent’s submissions
It was submitted in writing for the respondent that the applicant’s contention that there must be exact equivalence of facts for an offence subsequently charged to be a ‘related offence’ was misconceived and contrary to authority. The offences of theft and of obtaining a financial advantage by deception, it was submitted, were based upon the same facts — the sale of the Brunswick property forming part of Mr Smith’s estate by the applicant as executor. The only difference between the charges was their emphasis. In theft, it was upon the property itself. In the case of the other offence, it was upon the proceeds of sale of the property.
The Director drew attention to the similarity of language between s 8 of the Act and the definition of ‘related offences’ in s 3 of the Criminal Procedure Act — the latter being based upon the Indictments Act 1915 (UK). Inherent in counsel drawing attention to that similarity of language was the proposition that cases to do with the concept of related offences in the criminal law provide guidance to the meaning of the term where used in the Act.
Orally, counsel submitted that the s 8 definition of ‘related offences’ makes use of a term of art which is applied more generally in criminal proceedings. He argued that there needs to be uniformity in the approach of the criminal law, including confiscation provisions, with respect to the charges which are to be pursued in any particular case.
Analysis
The applicant’s first submission must be rejected. We have already concluded that the theft charge was not invalid.
The applicant’s second submission cannot be accepted. The language of s 8 of the Act refers, relevantly, to offences ‘founded on the same facts’. The same language is used repeatedly in Schedule 2 of the Act. In every instance, it is separated, disjunctively, from a different concept — that is, that multiple offences ‘form or are part of a series of offences of the same or similar character’.
The words ‘same facts’ cannot be read in isolation. But that is what the applicant’s submissions effectively said should be done. The concept is of offences ‘founded on the same facts’. As a matter of plain language, that directs attention to the foundational circumstances of the offence initially brought and the offence which is later charged.
That takes us to the applicant’s third submission.
In the present case, the sale of the Brunswick property by the fictitious ‘Max Power’ settled on 17 July 2007 on payment of cheques totalling a little over $203,000. The original charge alleged theft of the property by the applicant on that day, its value being the amount paid to settle.
Charge 9 on the indictment alleged that on 17 July 2007 the applicant obtained a financial advantage by deception. The deception involved false representations that ‘Max Power’ (the nominal vendor of the property) was a real person, that a sale authority (with respect to the land) signed by Power was genuine, and that the applicant (as solicitor for the non-existent Power) was entitled to receive the proceeds of sale of the land. The amount obtained was alleged to be $189,531.21. This was a little less than the amount paid to settle on 17 July, but only because a deposit earlier paid for the purchase of the property was the subject of a distinct charge on the indictment (charge 10) and because allowance had been made for certain sale expenses.
In our opinion, on the ordinary and natural meaning of the phrase ‘founded on the same facts’, the offence initially charged and the later charged offence were definitely so founded. What was involved, in each instance, was the fraudulent completion of the sale of the property on 17 July, it being effected by C falsely setting up the fictitious vendor ‘Max Power’, representing that he, as solicitor for the non-existent Power, was entitled to receive the proceeds of sale, and then (as Power) executing the transfer.
We turn to the applicant’s fourth submission — that if the words ‘the same facts’ were to be regarded as ambiguous, then the ambiguity should be resolved by giving them a meaning which preserved property rights, and which strictly construed confiscation legislation. Because, in our opinion, those words are not to be read in isolation, and because when, read as part of the phrase ‘founded on the same facts’, there is no ambiguity — the words having an ordinary and natural meaning and the question being one of fact in each case — the applicant’s submission should be rejected.
We add this. Many authorities have dealt with the proper approach to construction of penal, forfeiture and confiscation legislation. In Jeffrey v Director of Public Prosecution (Cth),[15] Cole JA, who gave the leading judgment, said this about the Proceeds of Crime Act 1987 (Cth):
[15](1995) 121 FLR 16 (‘Jeffrey’).
The Proceeds of Crime Act permits the confiscation of the property of a citizen without compensation if he be convicted of a serious offence. The appellant correctly submitted that the enjoyment of property is a fundamental right under our legal system and any statutory derogation of it is exceptional … In those circumstances, when construing the provisions of a statute which purports to effect confiscation or derogation from property rights, the following principles of construction are applicable:
1.An intention to abrogate or curtail fundamental property rights will not be imputed by the courts. It must be ‘clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights’ …
2.A legislative intention to take away property without compensation requires expression of that intention with ‘irresistible clearness’ because it is presumed that the legislature would not ‘overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness.’ Accordingly such an intention is not to be ascribed from use of ‘general words, simply because they would have that meaning in their widest, or usual, or natural sense, because so to construe those words would be to ‘give them a meaning in which they were not really used’ ...
3.Any statutory ambiguity should be interpreted so as to respect a person’s property rights … Unless no other interpretation is possible, justice requires that statutes should not be construed so as to enable the confiscation of an individual’s property without payment of just compensation. A fortiori where the statute does not provide for any compensation …
4.In construing a penal statute, and confiscation of property without compensation constitutes a penalty, if there are two reasonable interpretations, the more lenient of which will avoid the imposition of the penalty, that more lenient construction must be adopted …
These [are] well-known canons of construction …[16]
[16]Ibid 19.
In New South Wales Crime Commission v Kelaita,[17] Allsop P, with whom Giles and Bell JJA agreed, said this:
[17](2008) 75 NSWLR 564.
In Studman v Director of Public Prosecutions (Cth) [2007] NSWCA 285; 177 A Crim R 34 at 40 [35] McClellan CJ at CL (with whom Spigelman CJ and Handley AJA agreed), said the following:
[35] I accept as the appellant submitted that, being provisions of a statute which provides for the confiscation or derogation from property rights, the statute must be strictly construed. The intention to take away property must be expressed with ‘irresistible clearness’ before it may be applied (Jeffrey v Director of Public Prosecutions (Cth) (1995) 79 A Crim R 514). Any statutory ambiguity should be interpreted so as to respect a person’s property rights (Director of Public Prosecutions (Cth) v Saxon (1992) 28 NSWLR 263 at 270; Saffron v Director of Public Prosecutions (Cth) (1989) 96 FLR 196 at 200; Diez v Director of Public Prosecutions (Cth) (2004) 62 NSWLR 1 at [42]).
No criticism was made of this formulation by Mr I D Temby QC before the primary judge or in this Court. It can be accepted as an expression of the principle of legality in the interpretation of statutes …[18]
and:
The common law principle of interpretation discussed in Studman, does not, however, deny, in the process of construction and interpretation, any role for the recognition of the social or public policy lying behind the Criminal Assets Recovery Act. The ascertainment of the requisite clarity and the resolution of any ambiguity takes place within the ordinary process of statutory construction and interpretation. Penal statutes, likewise, are construed strictly; but the correct approach to their construction and interpretation is to use the ordinary rules of statutory construction and interpretation, and to recognise that if, after those rules are applied, the language of the statute remains ambiguous or doubtful such ambiguity or doubt should be resolved in favour of the subject because there will not be the requisite clarity to justify the application of the penal statute: see, for example, in the field of interpretation of penal statutes Beckwith v The Queen (1976) 135 CLR 569 at 576; Deming No 456 Pty Ltd v Brisbane Unit Development Corporation Pty Ltd (1983) 155 CLR 129 at 145; and Waugh v Kippen (1986) 160 CLR 156 at 164–165.
The identification of a relevant cannon of construction such as that in Studman and related cases, or that in Beckwith and related cases, does not mean that the process of statutory construction and interpretation as a whole, based on close attention to the text and structure of the relevant provisions by reference to the language of the statute viewed as a whole, set in its proper context and recognising the evident aim and purpose of the legislation, should not be undertaken. In other words, the recognition of one canon of construction such as recognised in Studman does not require reversion to a literal analysis of the provision with an eye to the discernment of textual ambiguity through finely spun distinctions.[19]
[18]Ibid 568 [13]–[14].
[19]Ibid 569 [16]–[17].
In the passage which we have last cited, Allsop P made, in our respectful opinion, an important point. The search is not for ambiguity in order to construe penal or confiscatory legislation in a particular way. Rather, orthodox construction of such statutes is required; and ambiguity is not to be discerned where, in truth, it does not exist. If it is present, then principles of construction of the kind described by Cole JA in Jeffrey come into play.
In the present case, with respect to the applicant’s fourth submission as noted above, there is no basis for discerning an ambiguity. The phrase ‘founded on the same facts’ carries a clear and simple meaning, which may be applied to the facts of any particular case.
We should refer, for completeness to the submission for the Director that, in effect, the definition of ‘related offences’ in s 8 of the Act being the same as the definition of that term in s 3 of the Procedure Act (itself a replication of an earlier presentment rule), the meaning to be given to the phrase ‘founded on the same facts’ should in each case be the same; and that the phrase has a settled meaning in the context of the Procedure Act and its predecessor.
There is no doubt that the phrase ‘founded on the same facts’ does have a settled meaning in the context just mentioned.
In the Procedure Act and its predecessors, the significance of the definition of ‘related offences’ has been with respect to the joinder of offences on the one indictment, and to applications for severance. Most often, in the many authorities, the focus has been upon the ‘series of offences’ aspect of the definition and upon the question whether charges, even if it be permissible that they be joined in the one indictment, should be severed so as not to cause irreparable prejudice to an accused.
The scope of what is comprehended by the phrase ‘founded on the same facts’ can be illustrated by reference to three authorities.
In this State, in R v Renzella,[20] joinder of two counts on a presentment was permitted by a trial judge. That permission was challenged on appeal. The accused man had faced two counts, one of trafficking in cannabis and one of conspiracy to cheat and defraud. The second charge concerned dealings between the applicant and two other men with respect to car thefts and the sale of parts from the stolen vehicles to other persons. Both activities were associated with a factory premises rented by one of the applicant’s associates. It was said that the car thefts commenced because a marijuana crop cultivation, the subject of the trafficking count, was failing for want of finance.
[20](Unreported, Court of Appeal, Winneke P, Tadgell and Charles JJA, 7 August 1997) (‘Renzella’).
It was common ground that, if joinder was permissible, it could only be on the basis that each offence was founded on the same facts.
The Crown contended that there was a substantial overlap between evidence relevant to the offences charged by the two counts. This was said by the Crown to warrant joinder of the counts.
Winneke P, with whom Tadgell and Charles JJA agreed, said this:
All that the first limb of R 2 requires is that the counts to be joined have a common factual origin and/or factual nexus. (See R v Barrell and Wilson (1979) 69 Cr App R 250 at 253 per Shaw LJ and R v Hofschuster (1992) 65 A Crim R 167 at 174 per Mildren J). Such a common factual origin or nexus must, of course, be seen to exist on the facts as the Crown proposes to meet them (see per Brennan J, Sutton v The Queen (1984) 152 CLR 528 at 541).
In my opinion, it is clear that there was, on the Crown case, a common factual origin and factual nexus to warrant the joinder of these two counts in accordance with the Presentment Rules. These were to be found firstly in the fact that the offence charged in Count 2 was conceived and put into effect in order to finance the illegal enterprise charged in Count 1. Further, the factual nexus was to be found in the fact that the two enterprises, the subject of Counts 1 and 2, were alleged to have been carried on contemporaneously and to have had their seat of operation at the same premises.[21]
[21]Ibid 10.
Next, we would refer to R v Barrell and Wilson,[22] one of two cases cited by Winneke P in Renzella in support of the basic proposition that all that is required is that the counts to be joined have a common factual origin and/or factual nexus.
[22](1979) 69 Cr App R 250 (‘Barrell and Wilson’).
In Barrell and Wilson, the appellants had attacked the manager and an attendant at a discotheque and injured them. They were charged with offences arising out of that conduct and were released on bail. About two months later, before trial, one of them visited the manager and tried to induce him to modify his evidence, by offering money. That appellant was also charged on the same indictment with attempting to pervert the course of justice. The trial judge refused to sever that charge. On appeal, it was unsuccessfully contended that joinder was impermissible. Shaw LJ, who gave the judgment of the Court, said this:
This contention rests on too narrow a construction of the language of the statute and the relevant rule. The phrase ‘founded on the same facts’ does not mean that for charges to be properly joined in the same indictment, the facts in relation to the respective charges must be identical in substance or virtually contemporaneous. The test is whether the charges have a common factual origin. If the charge described by counsel as the subsidiary charge is one that could not have been alleged but for the facts which gave rise to what he called the primary charge, then it is true to say for the purposes of rule 9 that those charges are founded, that is to say have their origin, in the same facts and can legitimately be joined in the same indictment. [23]
[23]Ibid 252–3.
In R v Liddy,[24] a question as to joinder arose in a sexual offences matter. Mullighan J, who gave the leading judgment, cited and applied Barrell and Wilson in determining whether offences were founded on the same facts.
[24](2002) 81 SASR 22.
Finally, we should refer to R v Navarolli.[25]
[25][2010] 1 Qd R 27.
The accused was arraigned on an indictment containing four counts: that he (1) being an undischarged bankrupt, obtained credit in a certain amount without informing the lender that he was an undischarged bankrupt; (2) forged a cheque drawn on an account in another name with intent to defraud; (3) dishonestly obtained a sum of money; and (4) forged a document with attempt to defraud.
On appeal, it was submitted, inter alia, that the joinder of the first charge with the second, third and fourth charges gave rise to a miscarriage of justice. Chesterman JA, who gave the leading judgment, rejected that submission, explaining that a particular transaction was ‘the factual origin’ of charges 1, 3 and 4 — which plainly involved proof of significantly different facts in proof of the elements of the offences.
His Honour referred to the judgment of McPherson JA and Lee J in R v Collins ex parte Attorney-General,[26] where their Honours said:
It has long been accepted that the basic criterion for the joinder of counts … is the existence of some connection or nexus between them, each limb of the subsection being illustrative of the circumstances giving rise to that nexus … In defining in broad terms what connection is sufficient … examination of the cases demonstrates that an appropriately liberal reading be given to the text of the section, consistent with its underlying policy. That policy, it was stated in Kray, is to enable the joinder of charges which may be ‘properly and conveniently’ dealt with together … It is obviously desirable both in the interests of the due and expedient administration of criminal justice and in the interests of finality of litigation in relation to the particular accused, that there be a single and final inquiry into matters which arise out of or which essentially involve common issues of fact or law. Any injustice which such a course has the potential to produce is adequately catered for by the discretion to sever provided for in s 597A. If nothing else, consistency in decision making would dictate that the one tribunal resolve such questions, little being gained from a fragmented approach. The simple means which the legislature has provided for giving effect to this policy is to allow the joinder of multiple counts … in an appropriate case ‘so that the whole of the facts can be adjudicated upon by one jury’ ... Indeed so extensively has this policy been recognised, that the courts have laid down the general rule that matters which can be joined without prejudice to the accused ought generally to be …[27]
[26][1996] 1 Qd R 631.
[27]Ibid 636–7, quoted in R v Navarolli [2010] 1 Qd R 27, 55–6.
There was, we think, something to the submission for the Director that the concept of ‘related offences’ in the Act and in the Procedure Act is, in each case, speaking of the time when charges are to be brought. It is true that the Act also permits the making of a restraining order after conviction, but by that time, any question of withdrawing a charge and substituting another charge will long since have passed. So it may be said that the Procedure Act and the Act relevantly operate with respect to a criminal prosecution at the earliest stage and are aspects of, or related to, that proceeding. In that event, there was some force in the submission that the phrase ‘founded on the same facts’, evidently having been brought into the Act at a time when the phrase had a settled meaning in the context of joinder of charges, should carry that same settled meaning.
On the other hand, there was force in the applicant’s submission that the purpose of the phrase, where used in the Procedure Act and its predecessors, has been to facilitate joinder of charges, for which reason the phrase was given a liberal interpretation; and that this must be contrasted with the operation of the phrase in Schedule 2, that schedule being part of a regime restraining property and potentially leading to its forfeiture.
In light of the view which we have formed with respect to the ordinary and natural meaning of the phrase ‘founded on the same facts’, and its application in the present case, it is unnecessary to reach a conclusion as to which of the opposing submissions should be accepted. We would only say this: given the view which we have formed as to the ordinary and natural meaning of the phrase, each of the authorities to which we have referred provides an example of the way in which that meaning would operate upon a particular set of facts; and support the conclusion which we have reached that, in the circumstances of this matter, the original charge of theft and the later charges of obtaining a financial advantage by deception were related charges within the meaning of the schedule item.
Order
As previously indicated, we would refuse the application for leave to appeal.
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