Commissioner of Australian Federal Police v Curran

Narcotics - Conspiracy to import druus - Action for pecuniarv penalty - Assessment of value of benefit derived from a particular narcotics dealina - Distinction between aDportionrnent of aross proceeds and deductlon of expenses and outuoinga -

Whether the Court has any discretion as

to the makinu

of an order

for penalty - Reference to Parliamentary debate.

Customs Act 1901 33. 243A. 243B. 243C

THE COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE V CLIFFORD

GEORGE FRASER CURRAN

G.85 of 1984

C O W : WILCOX J

DATE:

27 September

1984

PLACE: SYDNEY

IN THE FEDERAL COURT OF AUSTRALIA

) )

NEW SOUTH W	ES DISTRICT	REGISTRY	)	No. G.85 of 1984
)

DIVISION

GENERAL

)

THE COMMISSIONER OF THE

AUSTRALIAN FEDERAL POLICE

Applicant

AND	:	CLIFFORD GEORGE	F'RASER
CURRAN

Respondent

ORDERS

C M :

WILCOX J

DATE	:	27 SEPTEMBER 1984
:	-	P	SYDNEY

1. Order that the respondent pay to the Commonwealth a

pecuniary penalty pursuant to s.243B

of the Customs Act 1901 in

the sum of Five thousand	four hundred and forty eluht dollars
($5,448.00).

2 . Order that the respondent pay to the applicant his costs

of the application.

3 .

Direct the Reuistrar

of the Court to forward to the

Law

Society of New South Wales a copv

of the Reasons for Juduement in

the matter and to make available to the Society, as requlred.

copies of all affidavits and exhibits and the transcript	of the
proceedings.

- IN THE FEDERAL COURT OF AUSTRALIA

) )

NEW SOUTH WALES DISTRICT REGISTRY	)	No. G.85 of 1984
)
GENERAL DIVISION	)

B E D E E N :	THE COMMISSIONER OF THE
AUSTRALIAN FEDERAL POLICE

Applicant

AND	:	CLIFFORD GEORGE	F‘RASER
CURRAN

Respondent

REASONS

FOR

J U E M E N T

C m :

WILCOX J

D 3 :

SEPTEMBER

1984

e m : SYDNEY

By Act Number 92, 1979, Parliament inserted into the

Customs Act, 1901, a new Division (Division

3 , Part XIII)

providins for the recovery bv the Commonwealth

of Australia of

pecuniary penalties from persons proved to have dealt in narcotic

soods in contravention of

that Act.

The operation of the

Division does not depend upon the prior conviction, or even

prosecution. of the defendant for

a narcotics offence. It is

sufficient that, in proceedings in this Court.

the defendant be

shown to have been involved either in

a sinale “prescribed

narcotics dealing” or else in a series of “prescribed narcotics

dealinas" within a particular period.

The term "prescribed

narcotics dealinu" is defined bp s.243A(3)

so as to Include

sellinu. dealina in, importina. exportina. keepinu in possession.

consplrinu to import

or to export narcotlc aoods

or aidina and

abetting the sale, dealina

in. importation or exportation of

narcotic aoods: in each case In contravention of the Act. The

apparent concept behind the leuislation was to enable

the

Commonwealth to deprive persons enuauinu in narcotics dealinus of

the fruits of their activities: whether or not thev have been, or

vi11 be, made subiect to criminal penalties. In R e Smithers; ex

Darte-McMillan ( 1982) 57 ALJR 125 the Hiuh Court of Australia

upheld the constitutional validity of

the leaislation but that

applicatlon has not proceeded further in this Court.

So far as I

am aware the present applicatlon is the first application under

the Divislon to fall for determlnatlon.

Section 2438 authorises the Hlnister. the Commissioner

of the Australian Federal Police

or the Comptroller-General of

Customs. within six years of

the relevant dealinu or perlod. to

institute a proceedinu in this Court.

on behalf of the

Commonwealth. for an order that a person pav a pecuniary penaltv

to the Commonwealth in respect of

a particular prescribed

narcotics dealinu or in respect of prescribed narcotics dealinus

enaaaed in by him durinu a particular period. If the Court is

satisfied that the person

has enaaued In the particular dealinu

or series of dealinus then "the Court

shall assess. in accordance

with section 243C. the value of

the benefits derived bv the

3 .

person by reason of his havina enuaued in

that dealina, OK in

prescribed narcotics dealinas durinu

that period. as the case may

be. and order the person to

pay to the Commonwealth

a pecuniary

penalty equal to the value as so assessed".

A n amount so ordered

to be pald is deemed to be

a civil debt due

by the person to the

Commonwealth and the Order may be enforced as If it were an Order made by the Court in civll vroceedinas.

Section 243C provides for the assessment of the amount

of the pecuniary penalty.

Relevantly. in relation to a sinale

dealina OK a series of dealinus resultinu in money comina into

the possession of a defendant. it provides:

"(1) In this section, a reference to the

defendant in relation to a aroceedina under

section 243B shall be read as a reference to

a person aaainst whom an Order 1s souaht in

that proceedina.

(2) In a proceedinu under sectlon 243B. the

value of the benefits derived by the

defendant by reason of his havina enaaaed in

a particular prescribed narcotics dealina.

in prescribed narcotics dealinas durina a

particular period shall be assessed bv the

Court havina reaard to the evidence before

the Court concernina all	OK any of the
following matters:

(a)

The moneys. or the value of the property Other than moneys. that

came into the possession

or under

the control of -

( i )

the defendant; or

(11) another person at the request

or by the direction of the

defendant.

by reason of the defendant's havinu

4 .

enaaaed in that dealinu or In

prescribed narcotics dealinus durinu

that period: ...

( 6 )

In calculatina, for the purposes of a

QKOceedinu under 3.2438, the value of benefits derived bv the defendant by reason

of his havina enaaaed

in a prescribed

narcotics dealina. or in prescribed narcotics

dealinas durinu a partlcular period. anv

expenses or outaoinas of the defendant in

connection with that dealinu

OK those

dealinus, shall be disregarded".

Speakina of s.243C. in the context of a submission that the section invalidly seeks to impose upon the Court

non-ludicial function. the Hiah Court in McMillan at

Q 129 said:

"The statutorv provislons. in requirina the

Court to assess the value

of the benefits

derived. do not impose upon the Court

administrative discretion. The concept

aross benefits. like that of net benefits. is

sufficientlv certain. In essence

the

function reposed in the Court is closely

analoaous to the task undertaken by a court

when. in the exercise of ludlclal power. it

is called upon to assess the damaaes

sustained bv a plaintiff in tort or contract.

In that case the court asseses detriment. In

this case the Court

is required to assess

benefits.

Of course. it has been said that

the assessment of damages involves the makina

of a sound diSCretiOnarv iudaement.

No doubt

the same comment may be made about the makinu of a sound discretionary juduement is

entirely consistent with the exercise

judicial power.

The exercise of that power

often calls for the exercise	of a iudicial
discretion.

The absence of a limitation upon the amount

of the pecuniary penalty for which the

sections provide is of no siunificance.

There is. of course. an implied limitation -

the amount of the penaltv is not to exceed

the Court's assessment of the value of the

aross benefits which the person has derived

5 .

from enuaainu in the relevant transaction or

transactions.

Division 3 aoes on to make provision for the appointment

of the Official Trustee to take control of propertv and for ancillary matters but it is not necessary to consider those

provisions in relatlon to the

present application.

On 25 July 1983. the respondent. Clifford Ceorae Fraser Curran. pleaded auilty in the Svdnev District Court to a charae

that between 1 Mav 1981 and 2 November 1981 he conspired with

David Moncrieff BaKrOn. Gerhard Sattler and other persons to import into Australia prohibited imports. namely a quantity of

heroin. Heroin

is a "narcotic substanze" within the meaninu of

3 . 4 of the Customs Act.

The quantity of heroin therefore

constituted "narcotic aoods" within the meanina

of the Act so

that the conspiracy amounted to a "prescrlbed narcotics dealina"

for the purposes of Division 3 of Part XIII:

see s.Z43A(3)(e).

In an affidavit filed in these Proceedinas the

respondent has expressly admitted the accuracv

of a Statement of

Facts submitted to the District Court.

That Statement, which is

supplemented by the respondent's own evldence In the Distrlct

Court and, in minor respects. by the affidavits of the respondent and his wife in these prOCeedinU5. indicates the circumstances of

the transaction.

It appears that. in about June 1981. Mr Curran

was asked bp MK Sattler to ao to Penana. Malaysia. €OK the

purpose of purchaslnu on behalf of Mr Sattler a quantity of

heroin.

The plan was that the heroin would be imported into

Australia inside the wooden leu of MK Barron.

In early October

1981 HK Barren went from Svdney to Penana. On 14 October 1981 MK

Curran left Australia for Penanu. travellino on a ticket supplied

by MK Sattler and taking with

him $11,000 in cash which had been

handed to him by HK Sattler at Sydnev airport. He met up with MK &KrOn in Penanu but. in the event. no heroin was purchased. The reason, it appears. was that MK Curran became aware that he was

under police surveillance.

He left Penanu and went to Honu

Konu.

In Honu Konu. on 28 October. he converted the Australian currencv to $HK72.710.00 and, on the same day. he remitted that amount bv telearaphic transfer from the Honu Konu and Shanuhai Banking

Corporation, Kowloon branch. to the account

of his wife.

Christme. held wlth the Rural Bank

of New South Wales

at its

Balmain branch.

The amount received in MKS Curran's account was

SA10.896.

The difference, no doubt, is attributable to bank

charues and commissions.

Mr Curran returned to Australia,

arrivinu in Svdnev on 30 October 1981.

He was questioned at the

alroort bv officers of the Federal Police and later charued

with

conspirinu to import prohibited imports.

He was released on bail

on the followina dav and in due course committed for trial.

his trial he pleaded uulltv and was sentenced

to a term of 5

years imprisonment with

a minimum term of imDrisonment not to

expire before 24 July 1985.

HK ChristOpheK Hurphv. a sole practitioner solicitor.

acted on behalf

of HK Curran durinu the

early stages of his

prosecution.

His records were produced to the Court on subpoena

and both he and his

Clerk. Mr Georue Ikners. were called bv

counsel for the respondent to uive oral evidence before me.

is not the practice of Mr Murphy to keep diary notes

of the

action taken by him on behalf of clients and he claimed

to have

little or no recollection of instructions received from, or of work actually performed on behalf of, the respondent. However.

his records do reveal some

of the history of his involvement.

Exhlbit 4 is a note taken by one of Mr Murphv's staff -

the precise person not beino identified - of the terms of an

instruction to act on behalf of Mr Curran.

The instruction was

conveyed by telephone by Mrs Curran. MK Curran beino then

In Honu

Kono. The note indicates that money had been transferred to Mrs Curran's account with the Rural Bank

at Balmain and saps that

Curran will be "cominu throuuh immiuration tomorrow, will probably be questioned". The instruction was presumably taken on

Thursday 29 October, the day before

Mr Curran's return to Sydney.

On Tuesday. 3 November 1981. Mrs Curran attended

MurDhv's office at 187 Macquarie Street. Svdney.

Mr Murphy

instructed MK Ikners to accompany Mrs Curran to the Rural Bank

Balmain, tellins him that "she had some money to pick

up". Mr

Ikners did so.

Mrs Curran cashed a cheque in the value

$11,920.70, closinu the account. She paid to

Mr Ikners the sum

of $11.140.70 - Mrs Curran could

not account for the additional

$780.00 - and she received in return a receipt siuned

by Mr

Ikners. That recelpt reads:

3.11.1981

Received from C. Curran the sum of

Eleven

thousand one hundred and forty dollars	70c -
$11,140.70 - CHRISTOPHER MURPHY TRUST

ACCOUNT.

(Siuned) Georae Ikners"

The file contains an authority, dated

3 November 1981

and siuned by MKS Curran, directed to MK

Murphy and reading:

"I. Christine Curran do hereby authorise and

direct you to place the sum of $11,140.70

held bv you in pour Trust Account on

behalf with anv Buildina Society that you	may
nominate .

A card held bv MK Murphv ( E x F1) and entitled "Curran -

crlminal matter" refers to the receipt

of $11.140.70 and the

pavment of the same amount on the followina day to the Fidelity Permanent Buildina Society. The trust account leduer contains no reference to either the receipt OK pavment of the monev.

MK Murphy acted for MK Curran onlv brieflv.

He was In

attendance durinu a two hour interview of Mr Curran bv pollce

officers on 3 November 1981.

(Ex 5) MK Murphv had no

recollection of any further work

but MKS Curran said that on two

occasions either HK Murphy or a solicitor emploved bp him

mentioned the matter in the magistrate's court. So far as

appears from the

evidence. and a perusal of MK Murphy's file.

that was the totality

of the work performed

by MK Murphv on

behalf of Mr Curran. Accordinu to

MK Murphy, he "sacked" MK

Curran, who then enuaued

a different solicitor. Mr Haxwell

Knibbs.

(I note in passing evidence of an unsatisfactory

position in relation to Mr Murphv's costs.

Mr Murphy required

from Mr Curran. and was paid. a fee of $1,000 for his services.

This money was paid directly to him

by Mr Curran: it did not come

from the money which had been received

by Mr Ikners from Mrs

Curran. By two separate letters. after he had commenced to act for Mr Curran. Mr Knibbs requested a Statement

of Account from Mr

Murphv. None

was sent and no reason was

ever uiven for the

failure to supply an account.

Mr Murphy told me that no account

was ever brouaht into existence and that he did not know what

had done to earn

$1,000.

He described himself as "verv slack on

costs".

)

Mr Knibbs was retained on 28 Julv 1982.

On the

followinu day he forwarded to

Mr Murphv an authority and

requested payment to him of the sum of $11,140.70 received by Mr

Murphv from Mrs Curran. Mr Hurphy. in a telephone conversation

with an emplovee

of Mr Knibbs. challenued Mr Curran's entitlement

to the money. Notwithstandinu. on

10 Auuust 1982 Mr Knibbs

renewed the claim. stating that. upon his instructions. the money belonaed to Mr Curran. No response was received. Eventually. Mr

Curran instructed Mr Knibbs to accept

in satisfaction of his

claim auainst Mr Murphy the sum of $5,692.70. Mr Murphv was so

advised in a letter dated 16 November.

The letter indicated how

the amount had been

calculated.

10.

$11.140.70

244.70

$10,896.00

Fifty per cent of balance	5,448.00
Plus moneys belonuinu to

my client

244.70

Amount payable

$5,692.70"

Thereafter MK Murphv arranaed for the repavment bv the

buildinu societv of the deposit which had been made the prevlous

vear OK part of it. On 13 December 1982 the sum

of $8,430.00 was

brouaht into his trust account to the credit of

MK Curran. On 21

December 1982 the sum of $5.692.70 was paid

to MK Knibbs. The

L-

uaraix=

of $2.?3?.9!2 v 2 5 . accord!na

t n Mr Hurohv's trust account

ledaer "pd. to C. Murphy Gen

A/c Costs".

The money paid to

MK Knibbs was received by him on

behalf of Mt- Curran and deposited bv him. for a time and upon Mr Curran's instructions. with a finance companv. The deposlt was

repaid with interest in April 1983 and then paid in full to

Curran. MK Knibbs acted for

MK Curran at the committal

proceedings and at the trial. in respect of both

of which he

briefed counsel. but the costs of his

so actina - In relation to

which detailed accounts were rendered	- were paid directlv to him
by MK Curran.

The claim made by the applicant is

that MK Curran is a

person who enuaued in a particular prescribed narcotics dealinu.

namely the conspiracy with MeSSrS Barron and Sattler to import

11.

heroin. and that the sum of $10.896.00 represents the moneys that

came into the possession or control of MK Curran Or another

person at his

request OK by his direction by reason of his havlnu

engaged in that dealina.

It I s necessary to consider the

applicant’s claim separately

in relation to that portion

of the

money which eventually reached the respondent throuah

HK Knibbs

and that portion which did

not.

The position taken

by MK Murphy in his evidence before

me was that no part of the monev paid to him bv MKS Curran

belonged to her or to her husband and that he had

at all material

times known this to

be so.

He said that the money was. upon his

lnstructlons. held by her only “as a bailee for another person“.

The instructions to which he

referred came from the other

person.

He did not recall havlna ever met MKS Curran and he denied

receivinu any instructions from her

OK from MK Curran in relation

to the monev.

Under protest. he identified the “other person“ as

a woman named Colleen Longnore. a person for whom he had acted for a number of years and who. at least in more recent times, has

been assoclated with

MK Sattler.

MK Murphy said that MKS

Lonamore had told him

that “someone had monev

of hers and the

money would be arrlvina at

mv office and would I hold it in trust

for her“. He described himself as belnu “very happy to aet hold

of MKS Lonqrmore’s money because I had done lots of work for her

and she had never paid

me“. At that time. he said, fees

amountina to thousands of dollars were owlna: $3.000 had been

outstanding for two to three years.

...

LL.

Mt- Hurphv had no trust account entry for

MKS Lonqmore in

his ledger.

He was asked why it was that, if the money was

received on behalf of MKS Lon-ore.

he had not credited it to

her.

I find hls answer Incomprehensible:

"The reason for

it is MKS Curran was holdina

Hrs Lonumore's funds.

I opened the account

in her name.

I was then holdina her funds

behalf of MKS Lonamore from HKS Curran.

The

simple nexus for me was that

MKS Curran had

control of the funds but they belonued to MKS

Lonmore"

It is not difficult to understand that, in the

circumstances of her lona stanama lnaeLirdfies.a to X = . Ur !+xFhy

would have welcomed receivina into his

trLrst account monevs

belonuinu to MKS ton-ore.

It I s difflcult to understand that.

in those circumstances. he was content immediatelv to deposlt the

whole amount with a buildina society.

If he had really believed

the money to belonu to

MKS Longnore. he would have been likelv to

have insisted on deductins the fees before makina the deposit.

Further. it is difficult to reconclle his

claim that he believed

the money to belong to

MKS Lonamore with the execution

by MKS

Curran. and not MKS Lonamore. of an authoritv to deposit the

funds with the buildina societv.

MK Murphy's evidence was

evasive. confused and inconsistent with his

own contemporaneous

documents. His evidence as to his belief in the ownership of the

money is unsupported by Other evidence, by documents or by the

probabilities. On

the contrary. these all point to an

understanding by him. when the money was first received. that

13.

belonued to one OK both of MK or MKS Curran.

I do not accept

that. at the time of the deposit. MK Murphv believed the money	to
belonu to Mt-S Lonwore.

The amount put on deposit with

the buildina society was

$11.140.70.

The bulk of the money, at least. was on deposit for

over 12 months. Interest would

have amounted to a significant

sum: but only $8,430.00 was shown in the trust account

leduer as

havina been received by way of repayment.

The difference.

accordina to MK Murphv. was taken by him at some staae in payment of fees owina by MKS Lonumore: as. apparently. was the balance of

$2,737.80.

transferred to the ueneral account after the

payment

to MK Knibbs.

By that latter time, of course. MK Murphp was

aware of the arranaement between

MK Curran the and

other person -

preSUmablp either MKS Lonamore or MK Sattler - to split the

$11.140.70.

There are aspects of the above facts which

uive rise to

concern.

The first is the circumstances under which the monev

was received into the trust account. The initial instructions to

Mt- Murphy's office included the information that

$11,000 was

beina transferred by MK Curran in Hona Kona to the bank account

of Mrs Curran in Sydney and that

MK Curran was expectinu to be

questioned when he arrived

in Sydney the followinu

day. A

possibility, obvious to anv experienced solicitor. was that the

transfer was beinu made

in order to forestall the probability of

MK Curran beinu apprehended with the

money in his possession.

14.

According to Mrs Curran's affidavit, Mr Sattler rang her on the

day before her husband's return and told her that her husband was

in some SoKt of trouble and that if she received money from hlm

"it was to be placed into Mr Murphy's" trust account to pay for

'leval fees"'

but she did not act on this instruction until

Murphy took the extraordinary step

of sendinu Mr 1knet-S out to

the bank to receive the

proceeds of the account; an amount much

hiuher than anv reasonable estimate of the leual fees likely to

be incurred in the foreseeable future.

If Mr Murphv believed

that the monev was

owned by Mrs Longnore. by whom he was owed

substantial amount, the action is understandable.

If Murphv

received the money believina

it to belona to

Mr or Mrs Curran, it

1s difficult to resist the suspicion that

Mr Murphv took this

action in order

to assist Mr Curran in concealinu the positlon

from the police. In his affidavit filed in these proceedinas MK Curran sald that. after appearinq In court on Mondav 2 November. he had a conversation with Mr Murphy in which Mr Murphy suuaested

that the monev be withdrawn from the bank and placed in his trust

account "because. if vou leave It there the COPS will aet it".

Serious questions arise

In relation to Mr Murphv's

compliance with the trust account reuulations. Thev arise even

if the true position 1 s that the monev was received on behalf of

Mr or Mrs Curran: a fortiori if the monev was received on behalf

of Mrs Loncrmore.

It is not necessary for the resolution

of this case for

15.

me to reach final conclusions upon the matters

of concern to

which I have referred.

If it be the position. as to which I

express no view,

that Mr MUrphy OK any person in hls employ has

committed an offence then the

present applicant is an appropriate

person to consider what. if any. action should be taken.

This

Court has no direct function

in relation to the supervision of

the professional conduct of solicitors.

I make no findinu as to

such conduct but I agree with the submission made

by counsel for

both parties that there are matters which require the

consideration of. and possibly investigation by, those who are

concerned with such conduct.

Counsel submitted that I should

refer the matter to the Law Society

of New South Wales.

propose to accede to

that submission and to direct the RemlStKaK

of the Court to forward

a copy of these reasons to the Law

Society of New South Wales and to make available

to the Societv.

as required, copies	of the affidavits. exhibits and transcript	of
proceedings.

The relevant question. in relation to the present

application. is whether it can be said. upon the above evidence, that the one half of the money transmitted from Hona Konu which

was not paid to MK Knibbs was

money In relation to which

pecuniary penalty should be ordered.

Section 243B is framed in mandatory terms.

Once it is

established that a person has engaged in a particular prescribed

narcotics dealing "the Court shall assess. in accordance with

16.

section 243C. the value of the benefits derived bv the person by

reason of his havinu enuaued

in that dealina ... and Order the

person to pay to the Commonwealth

a pecuniary penalty equal to

the value as so assessed". Section 243C(2) requires the Court,

in assessina the "value

of the benefits" derived

by the

defendant, to have reqard to the evidence concerninu the moneys

that came into the possession or under the control of the

defendant or another person at his request

or bv his direction by

reason of the dealina. Counsel for

the applicant araues that the

whole of the moneys received by MK Murphy from Mrs Curran was the money on behalf of Mrs Longmore should be disbelieved and

monevs which came into the control of MK Murphv by the direction

of Mr Curran as a result of MK Curran's havina ensased in the

conspiracy with MK Barron and Mr Sattler to import heroin.

that it should be held

that MK Murphy remains liable to pav to Mr

Curran that part of the monevs which was not paid to MK Knibbs. It follows, so it is said. that the total value of the benefits

derived from the transaction was $10.896.70, not the one half of

that sum actuallv received.

The applicant seeks an Order that

the respondent pay to the Commonwealth the

sum of $10,896.70.

I have already indicated that

I relect Mr MUKphv'S

evidence that the money was initially received

bv him on behalf

of MKS Lonumore. However. that is not the end of the matter. It

is probable that. at some time after the deposit of the money

with the buildinu society,

Mr Sattler or MKS Lonumore discovered

17.

what had happened to the

money and asserted a claim.

It must be

remembered that. accordina to Mr Curran, it was MK Sattler who provided to him the oriainal $11,000. By mid-November 1982. at

least, an arranaement had been reached between

Mr Curran and that

claimant for an equal division between them

of the sum of

$10,896.70.

Mr Murphy was probablv informed of the position bp

the other claimant but the situation was confirmed.

from MK

Curran’s point of view, bp the letter from MK Knibbs of 16

November 1982.

Mr Murphy would thereafter be entitled. indeed

obliqed. to hold one

half of the sum on behalf of the other

claimant.

He apparently acted on this entitlement by

appropriatina that sum to the payment of costs owinu to him bp

that person.

Even leavina aslde any questlun or public policy it

would not now be open to

MK Curran to recover

that one-half from

MK MUKphv.

In the result the net benefit to Mr Curran from the

transaction is limlted to the one

half retained bv him and paid

to Hr Knibbs on his

behalf.

Section 243C(2) refers to the monevs that “came” into

the possession of the defendant.

It does not. in terms. require

that the defendant ultimately be advantaaed to the extent

those moneys. Indeed, s.243C(6) expressly requires the Court to disregard any expenses or outaoinus incurred in connection with

the dealing.

As the High Court pointed

out in McMillan. the

section I s concerned with the assessment of the gross proceeds of the crime. not the net proceeds after expenses. However. subject to one matter, s.243Ac7). the assessment relates to the ‘value of

18.

the benefits' derived by a particular defendant.

That must be

his share of the uross proceeds.

There 1s a difference between a

division between individuals

of Uross proceeds and the deduction

of an Individual's expenses.

It i s not enouah that at some

staqe. before division of the spoils, the particular defendant

had in his hands a areater proportion of the gross proceeds.

The sum remitted by MK Curran from Honu Konu, and

ultimately paid to Mt- Murphy, was not the proceeds of the crime:

the dealina was aborted

by MK Curran's awareness of police

surveillance.

The money was a capital fund intended to

outlaid on the purchase of heroin.

But. from Mr Curran's point

of view, to the extent that any part of that sum ultimately

remained under his control.

it was a reward to him for his

involvement. a benefit derived bv him as a consequence of hls

having enuaaed in the conspiracy.

It is the value of that

benefit which must be assessed and that benefit	does not include
the one half of the money retained by MK Murphv.

Section 243A(73 enacts a qualification upon the

'division of spoils' principle to which I have referred.	That
sub-section reads:

" ( 7 )

Where. by reason of a person's havinu

been enaaued in a particular prescribed

narcotics dealinu. or in prescribed narcotics

dealinus durinu a particular period. benefits

have been derived

by another person at the

request, or by the direction, of the

first-mentioned person. those benefits shall.

for the purposes of this Division. be deemed

19.

to have been derived

by the first-mentioned

person by reason of his havina been enmaaed

in that prescribed narcotics dealinu,

or in

prescribed narcotics dealinus durinu	that
period, as the case may be".

Where. therefore. a defendant who has enuaaed in a

narcotics dealinu. or series of narcotics dealinas, arranaes that

some other person will derive benefits from

that dealinu the

defendant is to be deemed himself to have derived the

benefit.

In any case of shared profits of a dealina or series of dealinss

the defendant will be liable for

a pecuniary penalty to the

extent of benefits paid to another at his request or direction.

In a case of receipt of a capital sum the question whetner there

1s a benefit must depend upon the identity

of the recipient. The

return of his capital fund to

a person who has

laid out that fund

cannot accurately be described as a "benefit" derived

by that

person bv reason of the defendant's havinq enqaued in a narcotics deallnq Or series of narcotics dealinas: he is merely restored to

the position in which he would have been	if no dealinu or series
of dealinss had ever been contemplated.	If, on the other hand,

the capital fund, or part of it, is paid to a stranaer at the

request, or by the direction. of a defendant who obtains control

of it only by reason of his havina enaaaed

in the dealinu

series of dealinas. the stranger derives

a benefit from the

dealinu or series of dealings.

To apply to the facts of this

case:

if it were shown that the beneficiary of the one half

share of the money retained

by Mr Murphy was Mrs Longmore, who

had not apparently provided the fund in the first

place. Mrs

20.

Loncrmore could be said to have derived

a benefit from HK Curran’s

engagement in the conspiracy.

If. on the other hand, the

beneficiary of the share was HK Sattler. who initially provided

the whole fund,

it could not be said that he derived a benefit

from MK Curran’s participation; he would simply have part of his

money back.

As the evidence does not establish whether

It was MK

Sattler OK Mrs Longmore who eventually obtained control

of the

one half share of the moneys retained by

HK Murphy the applicant

has not broucrht the case, In relation to that one

half share.

within

S . 243A( 7)

In relation to the one

half paid to HK Knibbs the

Position is quite different. Whllst MK Knibbs held the money it

was under the control

of Mr Curran and was shortly thereafter

paid to him. with interest.

The value of that money was clearlv

a benefit derived from the dealins. The small part of the

pavment to Hr Knibbs which was

money alwavs held by MKS Curran

should be disresarded. The value of the benefit was one half of

the sum of $10.896.00 viz $5.448.00 .

Counsel for the respondent submits

that notwithstanding

that fact no Order should in this case be made. He points out

that his client has been convicted of, and punished for, the

conspiracv and contends that in those circumstances the Court

should exercise a discretion. which he argues exists, in favour

of his client and decline to make an order for

recovery. In aid

of this submission counsel refers to views expressed durins the

21.

Parliamentary debate upon the Bill which added Division

3 to Part

XI11 of the Act:	House of Representatives Debates 30 May 1979,
pp 2608-2612.

Section 15AB of the Acts Interpretation Act 1901 permits a Court in the interpretation

of a provision of an Act, to

have

reaard, inter alia. to a report of a relevant Parliamentary

debate if that report is capable of assistina in the

ascertainment of the rneanina of the provision for the purpose

confirmina that the meanina

of the provision is the ordinarv

meanina conveyed by the text of the provision. takina into

account its context in the Act and the purpose

or object

underlyinu the Act. or to determine the meaninu of a provision which is ambiguous or obscure or where the ordinary meanina conveyed by the text, takina into account its context in the Act

and the purpose or oblect underlyinu the Act, leads to a result

that is manifestly absurd or unreasonable.

The effect of the

section may be to extend

not onlv the ranae of the material

avallable to be consulted

but also the circumstances of

consultation. In Duaan

v Mirror Newspapers Limited (1978) 142

CLR 583 at pp 599-600 Stephen J commented that "leaislative

history should never be resorted to when the leaislation

is clear

on its face".

See also the note in 57 Australian Law Journal pp

129-131 and the cases cited therein. Where reference

is made in

relation to the first

of the circumstances envisaued in s.15AB.

that is to confirm that the meaninu

is the Ordinary meanina

conveyed by the text, the leaislation

may be "clear on its

face"

22.

so that the reference is to confirm apparent certainty	rather
than to resolve ambiuuity.

As I have said, s.243B is framed In mandatory terms. On

its face the legislation does not give to the Court a discretion

whether an order for a pecuniary penalty shall be made.

On the

contrary. s.243B(2) provides that where the Court 1s satisfied of

the relevant dealinus it "shall assess ... the value of the

benefits derived" by the defendant and order payment

of a

pecuniary penalty.

Section 243C(23 provides that the value of

the benefits "shall

be assessed" havlnu reaard to the evidence

the matters stipulated in that sub-section.

The word "shall"

slunifies the imposition of a duty. not the urant of a

dlscretion.

I have read the portion of the Parliamentary debate

referred to bv counsel for the respondent.

It consists almost

entirely of contributions made by members of the House other than

the responsible Minister. There must be some doubt as to the

assistance to be obtained

by reference to such speeches.

It is

not an unusual event for a member to be under a misconception of

the object. or even the proper interpretation. of draft

legislation. If the purpose of a reference to the Parliamentary debate is to determine what was the intention

of those who framed

the draft, assistance

is not likely to be uained outslde

of the

sDeech of the responsible Minister or other informed

proponent of

that draft.

But. in this case. even reference to the ueneral

23.

debate does not assist the arqument for the respondent.

It is

true that there were participants

in that debate who favoured the

grant of a discretion to, rather than the imposition of a dutp

upon. the Court. However. slunificantly. they spoke In support

of an amendment - which was not accepted by the Government and

which was defeated - desianed to achieve that purpose.

It was

recoanised on all sides that the effect

of the provision as

framed in the Bill, and ultimately enacted, would be to impose a

duty.

I add that, in any event. I see no basis upon which anv

discretion should be exercised favourably

to the respondent.

There is nothins before me to indicate that the fact

that a

portion of the money had remained with

Mr Curran affected the

nature or lensth of the sentence imposed upon him.

Division 3

was enacted to reduce the attractiveness to individuals

involvement in the international druu trade;

an attractiveness

which - havinu regard to the size

of the possible rewards - may

survive even the fact of a aoal sentence.

I see no unfalrness in

applvina that lesislative policy to Mr Curran so as to deprive

him of the pecuniary advantaae he would otherwise reap from his

involvement in this project to Import heroin.

Finally, counsel for the respondent submitted

that

credit should be given to his

client for the amount of the leaal

fees he has incurred in connection

with his prosecution for the

conspiracy.

In fact. neither the costs paid to Mr Murphy or to

24.

MK Knibbs came out of the money remitted from Hona Kong

or the

one half share of that money which represented

the uross proceeds

to him of his involvement in the criminal conspiracy.

In each

case the costs were paid diKeCtlV bv MK Curran. Sectlon 243C(6) makes clear that, in any event. a deduction by way of expenses OK outgoings is to be disreaarded.

No submission has been

put to the Court

that the

pecuniary penalty should include the interest earned on the

$5,448.00 whilst on deposit throuuh

MK Knibbs, probably because

t h e axount was sn amall.

It is not, therefore. necessary to

consider any question of remoteness which miaht be araued to

arise in relation to interest. There should be Orders that the

respondent pap to the Commonwealth a pecuniarv

penalty in the sum

of $5.448.00 and that the respondent pap the costs of the

applicant.

I certify that this and the

K-+

.;+-j

- + L - ’ L L

(

preceding paaes are a true

copy of the

Reasons for Juduement herein	of his
Honour MK Justicp Wilcox.

[1984] FCA 302

29 Sep 1984