Commissioner of the Australian Federal Police v Hatfield, C.S

[1992] FCA 37

Re: COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE
And: C.S. HATFIELD; M.W. THOMAS; D.M. RIBUSH and M.R. AKBARI
No. V G219 of 1988
FED No. 37
Customs - Practice and Procedure
(1992) 106 ALR 335
(1992) 34 FCR 190
(1992) 59 A Crim R 392

COURT

IN THE FEDERAL COURT OF AUSTRALIA

VICTORIA DISTRICT REGISTRY
GENERAL DIVISION
Olney J.(1)

CATCHWORDS

Customs - application to impose pecuniary penalty in respect of prescribed narcotics dealing - prior conviction for trafficking in narcotic goods - dispute as to quantity of narcotic goods trafficked in - finding of sentencing judge adverse to defendant - whether defendant can contest issue as to quantity of goods trafficked in in subsequent proceedings under Customs Act.

Practice and Procedure - abuse of process - application for pecunial penalty under Customs Act - prior conviction for trafficking in narcotic goods - whether evidence can be led by defendant to contract matter of fact on which County Court judge based sentence.

Customs Act 1901, ss. 243B, 243C

State and Territorial Laws and Records Recognition Act 1901, ss. 9, 17

Evidence Act 1958 (Vic.) Part VI

Commissioner of Australian Federal Police v Butler and another 91 ALR 293

Hunter v Chief Commissioner of West Midlands Police (1982) AC 529

Saffron v Commissioner of Taxation (unreported: Full Court of Federal Court: 13 August 1991)

HEARING

MELBOURNE

#DATE 14:2:1992

Counsel for the applicant: Mr Lancy

Solicitor for the applicant: Australian Government Solicitor

Counsel for the second defendant: Mr A.R. Lewis

Solicitor for second defendant: M.E. Foster

JUDGE1

The matter presently before the Court has to do with the admissibility of evidence in proceedings brought pursuant to the provisions of section 243B(1) of the Customs Act 1901.

1. In order to understand the particular issue which falls for decision, it is necessary to establish the legal and factual context in which it arises.
   The Customs Act

2. The following are the relevant provisions of the Customs Act.
   Section 4(1)

3. In this Act except where otherwise clearly intended:
   

...

"Narcotic substance" means a substance or thing that is named or described in column 1 of Schedule VI or any other substance or thing for the time being declared by the regulations to be a narcotic substance.

Section 243A(3)

1. For the purposes of this Division, a person shall be taken to engage in a prescribed narcotics dealing if:
   

(a) he sells or otherwise deals in, or agrees to sell or otherwise deal in, narcotic goods imported into Australia in contravention of this Act;

(b) he imports, or agrees to import, narcotic goods into Australia in contravention of this Act;

(c) he exports, or agrees to export, narcotic goods from Australia in contravention of this Act;

(d) he keeps, or agrees to keep, in his possession narcotic goods imported into Australia in contravention of this Act;

(e) he conspires with another person or other persons to import any narcotic goods into Australia, or to export any narcotic goods from Australia, in contravention of this Act; or

(f) he aids, abets, counsels or procures, or is in any way knowingly concerned in, the sale of, or other dealing in, narcotic goods imported into Australia in contravention of this Act, the importation of narcotic goods into Australia, or the exportation of narcotic goods from Australia, in contravention of this Act, or the keeping in the possession of any person of narcotic goods imported into Australia in contravention of this Act.

Section 243B

(1) ...the Minister, the Commissioner of Police, the Comptroller or the Director of Public Prosecutions may institute a proceeding in the Court, on behalf of the Commonwealth, for an order that a person pay a pecuniary penalty to the Commonwealth in respect of:

(a) a particular prescribed narcotics dealing engaged in by him; or

(b) prescribed narcotics dealings engaged in by him during a particular period.

(2) If, in a proceeding instituted under subsection

(1), the Court is satisfied that the person in relation to whom the order is sought:

(a) has engaged in a particular prescribed narcotics dealing; or

(b) has, during a particular period, engaged in prescribed narcotics dealings; the Court shall assess, in accordance with section 243C, the value of the benefits derived by the person by reason of his having engaged in that dealing, or in prescribed narcotics dealings during 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.

(3) The Court may order a person to pay a pecuniary penalty under subsection (2) in relation to a particular prescribed narcotics dealing, or prescribed narcotics dealings during a particular period, whether or not the person has been convicted of an offence, or proceedings have been instituted in respect of any offence, committed in relation to that dealing or any of those dealings and whether or not any moneys or other goods have been seized under section 229A in relation to that dealing or any of those dealings.

Section 243C

(1) In this section, a reference to the defendant in relation to a proceeding under section 243B shall be read as a reference to a person against whom an order is sought in that proceeding.

(2) In a proceeding under section 243B, the value of the benefits derived by the defendant by reason of his having engaged in a particular prescribed narcotics dealing, or in prescribed narcotics dealings during a particular period shall be assessed by the Court having regard to the evidence before the Court concerning all or 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

(ii) another person at the request or by the direction of the defendant; by reason of the defendant's having engaged in that dealing or in prescribed narcotics dealings during that period;

(b) the value of any benefit, other than a benefit of the kind referred to in paragraph (a) that was provided for:

(i) the defendant; or

(ii) another person at the request or by the direction of the defendant; by reason of the defendant's having engaged in that dealing or in prescribed narcotics dealings during that period;

(c) in the case of a prescribed narcotics dealing that consisted of selling or otherwise dealing in narcotic goods - the market value, at the time of the dealing, of similar or substantially similar narcotic goods;

(d) in the case of a prescribed narcotics dealing that consisted of the doing of any act or thing other than selling or otherwise dealing in narcotic goods - the amount that was, or the range of amounts that were, at the time the dealing occurred, ordinarily paid for the doing of a similar or substantially similar act or thing;

(e) the value of the defendant's property before, during and after he engaged in that dealing, or before, during and after that period, as the case may be; and

(f) the defendant's income and expenditure before, during and after he or she engaged in that dealing, or before, during and after that period, as the case may be.

(3) ...

(4) ...

(5) In a proceeding under section 243B, a police officer or an officer of Customs who is experienced in the investigation of narcotics offences may testify:

(a) with respect to the amount that, to the best of his information, knowledge and belief, was the market value of narcotic goods at a particular time or during a particular period; or

(b) with respect to the amount, or the range of amounts, that, to the best of his information, knowledge and belief, was the amount, or range of amounts, ordinarily paid at a particular time or during a particular period for the doing of an act or thing (not being the selling or other dealing in narcotic goods) comprising a prescribed narcotics dealing; notwithstanding any rule of law or practice relating to hearsay evidence, and his testimony is prima facie evidence of the matters testified to.

(6) In calculating, for the purposes of a proceeding under section 243B, the value of benefits derived by the defendant by reason of his having engaged in a particular prescribed narcotics dealing, or in prescribed narcotics dealings during a particular period, any expenses or outgoings of the defendant in connection with that dealing, or those dealings, shall be disregarded.

The substance cocaine is named in column 1 of Schedule VI.

1. The substance hashish is not named in column 1 of Schedule VI, but the substance cannabis resin is so named. (It is said that the terms hashish and cannabis resin are synonymous).
   The application

2. Two comments are called for in respect to the form of the application. First, although there is no doubt that the Commissioner of Police is entitled to institute the proceedings, it is clear from the provisions of section 243B(1) that his entitlement to do so is on behalf of the Commonwealth and it seems to me that notwithstanding the normal practice which has been followed in this application, the proceedings should have been brought in the name of the Commonwealth. Second, again in accordance with normal practice, the persons against whom the proceedings have been brought are described as defendants rather than respondents as required by Order 4 Rule 2(2) of the Federal Court Rules. I can understand how this practice has arisen given the terminology used in the relevant sections of the Customs Act, but it is nevertheless incorrect.

3. As the matter presently under consideration relates only to the secondnamed defendant, he will as a matter of convenience be referred to hereafter simply as the defendant.

4. The application seeks:
   

An order that the Second Defendant pay to the Commonwealth a pecuniary penalty pursuant to section 243B of the Customs Act 1901, in such an amount as may be assessed by the Court, in respect of having sold or otherwise dealt with, between 1 January 1988 and 21 June 1988, narcotic goods imported into Australia in contravention of the Act, including in particular the following prescribed narcotics dealings:

(a) between 1 January 1988 and 21 June 1988, having dealt with 10 ounces of cocaine imported into Australia in contravention of the Act and having a market value of $43,000.00, by supplying the same to Ian Francis Doig (the Third Defendant) for the purpose of sale to other persons;

(b) between 1 March 1988 and 21 June 1988, having sold 2 pounds of hashish imported into Australia in contravention of the Act, to other persons, for a total price of $22,400.00; and

(c) on 19 March 1988, having dealt with 15 ounces of hashish imported into Australia in contravention of the Act with a market value of $5,700.00.

1. Although the application was commenced on 20 June 1988 the matter has not been completely dormant in the intervening period. It is however not necessary to trace the history of the proceedings. The applicant is now ready to proceed with the application in an amended form in so far as it affects the defendant and has filed affidavit evidence upon which he seeks to rely. The defendant has filed some evidence in reply. Issues have arisen as to the admissibility of some of the evidence relied upon by the applicant but the major issue between the parties is whether the defendant is entitled in these proceedings to give evidence concerning matters previously dealt with in criminal proceedings in the County Court. On 9 August 1991 an order was made that the issue of the admissibility of evidence be tried as a preliminary issue. The exact nature of the preliminary issue was not precisely defined and accordingly I propose to deal initially with the major issue. Until that is resolved the parties cannot adequately address any consequential issues that may arise.
   The previous proceedings

2. On 4 June 1990 in the County Court at Melbourne, the defendant pleaded guilty to each of 5 counts in a presentment charging that he:
   

1. Between the 1st day of January 1988 and the 21st day of June 1988 without being authorized by or licensed under the Drugs Poisons and Controlled Substances Act 1981 or the regulations thereunder to do so trafficked in a drug of dependence namely Cocaine.

2. Between the 1st day of January 1988 and the 21st day of June 1988 without being authorized by or licensed under the Drugs Poisons and Controlled Substances Act 1981 or the regulations thereunder to do so trafficked in a drug of dependence namely Cannabis L.

3. Between the 1st day of March 1988 and the 21st day of June 1988 without being authorized by or licensed under the Drugs Poisons and Controlled Substances Act 1981 or the regulations thereunder to do so trafficked in a drug of dependence namely a resinous substance containing Tetrahydrocannabinol.

4. On or about the 19th day of March 1988 without being authorized by or licensed under the Drugs Poisons and Controlled Substances Act 1981 or the regulations thereunder to do so trafficked in a drug of dependence namely a resinous substance containing Tetrahydrocannabinol.

5. On the 21st day of June 1988 without being authorized by or licensed under the Drugs Poisons and Controlled Substances Act 1981 or the regulations thereunder to do so had in his possession a drug of dependence namely Cannabis L.

Notwithstanding his plea, the defendant contested some aspects of the allegations of fact made by the prosecution in so far as they related to the quantity of cocaine said to have been trafficked. The prosecution case was that 10 ounces had been trafficked at $4,300 per ounce. The defendant's case was that only 2 ounces were involved. The presiding judge heard evidence on what he described as "an issue as to the facts upon which sentence should be imposed". Later, in his sentencing remarks the judge canvassed the defendant's evidence in detail and having concluded that he could not rely on the defendant's testimony said:

In my opinion the conclusion is overwhelming. That is that throughout the relevant period you were engaged in the commercial operation of cocaine trafficking the nature of that operation was that you would purchase from persons not clearly identified, but probably including Heffernan, and either sell to or employ Doig as a distributor. The magnitude of your operation depended largely upon the amount available from your supplier and the amount that you thought could be distributed by Doig. I suspect that the only inhibition upon your level of trafficking in that period is the limit of supply or of distribution.

In so far as these are material facts pertaining to the sentence which I must impose I declare myself satisfied on these factual issues to the standard of beyond reasonable doubt.

1. The defendant was sentenced to terms of imprisonment on each of the 5 counts which amounted to a total effective sentence of 6 years' imprisonment. The judge directed that he serve a minimum term of 4 years before becoming eligible for parole.

2. The defendant (and others with whom he had been jointly charged) unsuccessfully sought special leave to appeal to the Victorian Court of Criminal Appeal against the severity of his sentence. In the course of their reasons given on 26 October 1990 the members of the Court of Criminal Appeal summarised the Crown case against each of the applicants and in respect of the defendant said:
   

The Crown case was that the telephonic interceptions and installation of listening devices operated constantly from 1 January 1988 until the homes of the persons concerned were the subject of police raids and searches on 21 June 1988. During that time it was said that by those means a number of illegal transactions were recorded as having been entered into by various of the persons who were later charged. From the record of such transactions recorded on more than 700 tape recordings it was possible for the prosecution to ascertain at least the minimum quantity of a particular drug which was the subject of a transaction for its sale and the minimum price charged or paid for it.

On the basis of such material it was alleged by the Crown in the case of Thomas that with regard to count 1 the transactions added up to the sale of 10 ounces of cocaine at $4,300 per ounce making an approximate value of $43,000. In the case of the charge in count 2 the Crown alleged that there was a total amount determined by the sale of one pound of cannabis for $4,000. In respect of count 3 the Crown's allegation was that Thomas was selling hashish for $25 a gram which totalled $22,400 for two pounds of hashish and the Crown also said that there was only that quantity of two pounds of hashish which related to the total covered by that count. With regard to count 4, which also related to a charge of trafficking in hashish, the Crown's allegation was that the transaction in question which had taken place was one for the sale of 15 ounces of hashish at $380 an ounce making a total of $5,700 agreed upon for its sale. Finally, it was said with regard to count 5 that 18 grams of hashish had been found in Thomas's home at the time of the execution by the police of a search warrant.

And later:

It should be said that both Thomas and Doig contested the allegations made by the prosecution against each of them with respect to the number of transactions and the quantity and price relating to the transactions that did take place. The faithfulness of the transcriptions of the various recordings was not contested. What was challenged was the interpretation that ought to have been placed upon that material. That challenge was undertaken by both Thomas and Doig's giving evidence on oath at the time of hearing their pleas for leniency. The Judge, however, did not accept the two applicants as witnesses of truth and was unprepared to place any reliance upon the evidence given in an attempt to lessen the seriousness of the crimes in which each was admittedly involved.

The Court then quoted from the sentencing judge's remarks portion of the passage referred to above.

1. The grounds upon which the defendant had based his application for leave to appeal were described thus:
   

It is convenient now to turn to the grounds upon which each applicant relies in support of his application. It is necessary, we think, to give no more than a summary of them and to set them out in the order in which they were argued. Taking first the applicant Thomas he had six grounds in his notice. Grounds 2 and 6 were not pressed. Ground 5 was an allegation that the Judge was in error when he stated (as he did) that he regarded the use and abuse of cocaine as in the same "league" as heroin. The next ground argued was ground 1 which was a complaint that the Judge's sentences operated to produce an unacceptable disparity between those sentences and those imposed by the Judge upon co-offenders. Next, it was said that the Judge had erred when making certain findings of fact, namely, "(a) that the applicant was not a user of cocaine and (b) the extent and nature of the applicant's trafficking activities". This ground, of course, involved a complaint that the Judge erred in rejecting the evidence of Thomas concerning the matters to which we have already referred. Finally, Thomas relied upon an allegation that the sentence was manifestly excessive.

For present purposes it is sufficient to say that the Court of Criminal Appeal did not accept the arguments advanced in support of these grounds and special leave to appeal was refused. It may be observed however that the grounds upon which the defendant sought leave to appeal against his sentence did not raise any issue as to the findings of fact made by the sentencing judge.

The affidavit evidence

1. The preliminary issue came before me for hearing on 12 December 1991. Both parties were represented by counsel.

2. The applicant seeks to rely upon the following affidavit evidence.
   

1. Affidavit of Cedric John Netto sworn 20 June 1988.

2. Affidavit of James Nicholas Irving sworn 18 March 1991 to which is exhibited copies of:

(a) a County Court presentment against the first defendant (which is not presently relevant);

(b) the County Court judge's sentencing remarks;

(c) the County Court presentment against Thomas;

(d) the reasons for judgment of the Court of Criminal Appeal.

3. Affidavit of Michael Ryan sworn 5 June 1991 to which is exhibited a certified copy of the sentencing remarks of the County Court judge.

4. Affidavit of Phillip Ramondo sworn 11 June 1991 to which is exhibited:

(a) a transcript of the proceedings in the County Court;

(b) transcripts of intercepted telephone conversations which were in evidence in the County Court proceedings;

(c) a certified copy of the reasons for judgment of the Court of Criminal Appeal.

5. Affidavit of Peter Sheehan sworn 11 June 1990 to which is exhibited a copy of a record of interview with the defendant.

6. Affidavit of Peter Sheehan sworn 10 July 1991.

7. Affidavit of Peter Sheehan sworn 6 August 1991.

In reply, the defendant has filed his own affidavit sworn 25 July 1991 and an affidavit of Ian Francis Doig sworn 25 July 1991.

The issues

1. The applicant seeks to rely upon the record of the proceedings in the County Court and the judgment of the Court of Criminal Appeal as proof that the defendant trafficked in 10 ounces of cocaine. In his affidavit in reply the defendant denies having dealt in 10 ounces of cocaine but admits to having sold 2 ounces. He also raises other issues which need not be canvassed at this stage. Doig's affidavit supports the defendant's denial.

2. The applicant argues that the defendant is not able in these proceedings to put in issue the quantity of cocaine involved in the prescribed narcotics dealings identified in the amended application.
   Proof of previous proceedings

3. Section 17 of the State and Territorial Laws and Records Recognition Act 1901 (Commonwealth) provides:
   

17. Evidence of any judgment decree rule order or other judicial proceeding of any Court of a State or Territory, including any affidavit pleading or other legal document filed or deposited in any such Court, may be given in all Courts by the production of a copy thereof:

(a) proved to be an examined copy thereof; or

(b) purporting to be sealed with the seal of such Court; or

(c) purporting to be signed by a Judge of such Court with a statement in writing attached by him to his signature that such Court has no seal and without proof of his judicial character or of the truth of such statement.

In the same Act (s.2) the term Court is defined to include inter alia "all Federal Courts and Courts exercising federal jurisdiction". Clearly, a duly certified copy of the presentment in the County Court can be admitted as evidence in these proceedings. So too, I would think, would be the sentencing judge's remarks, they being part of the record of a judicial proceeding. The transcript of evidence given in the proceedings in the County Court, which is duly certified pursuant to Part VI of the Evidence Act 1958 (Vic.), and thus pursuant to section 135(1) of that Act may be received by every Court in Victoria as prima facie evidence of anything therein recorded, would be admissible in these proceedings by virtue of section 9 of the State and Territorial and Records Recognition Act as a public document which by a law in force in a State is admissible in evidence in a Court of that State without further proof.

1. I do not understand it to be said other than that the presentment, the defendant's guilty plea, the evidence given by him during the sentencing process (including the transcripts of the telephone intercepts which were put in evidence by consent), the sentencing judge's remarks including the details of the sentence imposed and the reasons of the Court of Criminal Appeal for refusing special leave to appeal against sentence are all matters which can properly be proved in these proceedings by the method adopted by the applicant. Whether or not they or any of them are admissible as being relevant to these proceedings will depend upon the use sought to be made of them.

2. The question of whether the defendant is bound by any finding of fact made by the sentencing judge in the County Court is another question.
   The argument

3. Section 243C(2) of the Customs Act requires the Court in a proceeding under section 243B, to assess the value of benefits derived from engagement in prescribed narcotics dealings "having regard to the evidence before the Court concerning all or any of" six specified matters. Having regard to the nature of the evidence sought to be relied upon by the applicant the only matters with which the Court will be concerned in this proceeding are the quantity of narcotic goods sold or otherwise dealt in and the market value at the relevant time of those or substantially similar goods.

4. Counsel for the applicant canvassed a number of authorities in the course of his argument in support of the proposition that in this case the defendant could not seek to adduce evidence relating to the quantity of cocaine dealt in by him and this for the reason that a finding has previously been made by a judge in the County Court in relation to that issue.

5. Commissioner of Australian Federal Police v Butler and another 91 ALR 293 involved an application for a pecuniary penalty pursuant to section 243B of the Customs Act. The defendant had previously been convicted on his own plea of 4 offences under State law involving the supply of cocaine and offences under the Customs Act for being knowingly concerned in the importation of cocaine and being in possession of cocaine. The basis upon which the applicant sought to have the Court assess the pecuniary penalty was in accordance with subsections (3) and (4) of section 243C which involved an examination of the increase in the value of the defendant's property over the period in which he had engaged in prescribed narcotics dealings. For reasons which need not be analysed here, but which had a bearing upon the starting date from which the Court could make the necessary calculations the defendant sought to challenge the conviction in respect of one count on the ground that he had pleaded guilty in error and accordingly, it was said, the conviction should be ignored.

6. In response to the defendant's argument that the court was not bound by the convictions but rather must satisfy itself on the totality of the evidence that the defendant had in the relevant period engaged in conduct amounting to "prescribed narcotics dealings", Hill J said at p 301:
   

It is true that the court must be satisfied that a defendant has been engaged in a prescribed narcotic dealing or in a course of prescribed narcotics dealings before it can proceed to impose a pecuniary penalty under the Act, but it does not follow from that that a court must of necessity go behind a conviction which established that fact. Proceedings for pecuniary penalty may be instituted notwithstanding that no prosecution for a criminal offence is in contemplation. In such a case the court must consider for itself the relevant factual circumstances and reach the required level of satisfaction before imposing a pecuniary penalty. But where, however, there has been a conviction for an offence the ingredients of which necessarily comprise the same ingredients as are comprised in the definition of prescribed narcotics dealings then it seems to me that unless the court is permitted generally to go behind the conviction the fact of conviction will itself establish the facts which lead inexorably to the satisfaction of the court. The conviction will not be merely one fact to be put into the scales and weighed up against other evidence in determining whether the court has reached the necessary satisfaction. Accordingly it is necessary to consider whether generally the court can go behind a conviction and set it at naught.

In my view the court is bound by evidence of a conviction and cannot go behind it or permit a collateral attack on some element critical to it.

His Honour then proceeded to examine a number of authorities including Hunter v Chief Commissioner of West Midlands Police (1982) AC 529 and several decisions of the Federal Court involving questions arising under the Migration Act and at pp302-3, continued:

...in my view public policy prevents a court going behind a conviction, that is to say seeking to set it at naught or seeking to challenge a matter upon which the conviction was based. It would indeed be a source of great embarrassment if a court in a civil case could rehear a matter which had been passed upon by a judge and jury and perhaps reach a conclusion contrary to that reached after the trial. If the decision of the judge and jury in a criminal case is to be challenged then that challenge must be mounted by way of an appeal, the appeal being to the relevant court of criminal appeal and not in a collateral way in civil proceedings in another court.

...

A plea of guilty operates as an admission of the essential legal ingredients of the offence admitted by the plea: R v O'Neill (1979) 2 NSWLR 582 at 589. Where the plea avoids the necessity of a trial it is not unusual for facts relevant to sentence to be stated from the bar table or contained in an unsworn statement which is read to the trial judge and provided that those facts are common ground between the parties they may be acted upon: cf R v Tait

(1979) 24 ALR 473 at 483. I do not, however, think that there is any real distinction in principle to be drawn between a case where the conviction follows a trial and where it follows a plea of guilty so far as the present issue is concerned.

It is, however, obvious that the matters upon which no attack can be brought are limited to those matters of fact upon which the conviction was based. These in the present case have to be determined having regard to the offence with which the defendant was charged (it being to that offence that he pleaded guilty) and include the record of interview and statements of facts handed to the sentencing judge which formed the common ground of facts upon which the ultimate sentence was based.

It would seem logical that the final sentence quoted above should apply with equal force to a case in which, although there may be no "common ground of facts upon which the ultimate sentence was based", factual issues relevant to the sentencing process have been the subject of evidence and findings made by the sentencing judge. But that case is not this case.

1. The sentencing transcript in the County Court reveals that the prosecution case was put thus:
   

Originally Mr Rochford referred to a number of conversations suggesting transactions at a certain level. The first recorded conversation to which he referred took place on 30th March 1988. In that, you rang Doig and asked him how he was going. The discussion disclosed that Doig was in the process of selling two ounces of cocaine which he had obtained from you.

Mr Rochford claimed that a subsequent conversation on 11th April 1988, suggested a transaction involving a further ounce of cocaine. A similar transaction occurred on the following day.

On 19th April, the conversation suggested a transaction involving another ounce, took place. There was a minor transaction on 9th May, but on 21st May, the further conversation suggested that Doig was in the process of disposing of two further ounces. The total disclosed in those conversations was something like ten ounces, and the price mentioned was $4,300 per ounce, suggesting a total value of $43,000.

1. The defendant having disputed the magnitude of the alleged trafficking in cocaine, evidence was taken and by consent a bundle of transcripts of telephone conversations was tendered, the accuracy of which was conceded. The judge dealt with each of a number of the recorded conversations and rejected the defendant's evidence in relation to them and other evidence concerning his personal circumstances. However, the judge made no findings as the actual quantity of cocaine trafficked in by the defendant and, although from the general tenor of his remarks he accepted the case put in the opening by the prosecutor, the conclusion that "something like 10 ounces" was involved is not supported. At the most something like 7 ounces could possibly be sustained but there is no such finding. And indeed the passage quoted earlier in these reasons (which was taken up by the Court of Criminal Appeal) suggests that the judge has deliberately avoided making any precise finding on that issue. It was not necessary for the purpose of sentencing to be any more specific than to conclude that the defendant had throughout the relevant period been engaged in the commercial operation of cocaine trafficking. The exact quantity of cocaine trafficked was of no particular importance.

2. In my view, Butler's case is clearly distinguishable from the present case.

3. Counsel for the applicant relies upon the decision in Butler's case to support the proposition that once a court of competent criminal jurisdiction has made findings and passed sentence and the appellate process has been exhausted, no challenge can be mounted to the findings of that court, and that any collateral attack on those findings in civil proceedings would be improper. Reliance was also placed upon the House of Lords decision in Hunter v Chief Constable of West Midlands Police (1982) AC 529 for the general proposition that in a subsequent civil action no collateral attack on a final decision reached by a criminal court can be permitted as to do so would be an abuse of process. The decision in Hunter v Chief Constable has recently been the subject of detailed examination by the Full Court of this Court.

4. In Saffron v The Commission of Taxation (Full Court, 13 August 1991) each of the 3 judges (Davies, Lockhart and Beaumont JJ) made reference to, and did not seek to depart from, the general thrust of the decision in Hunter v Chief Constable. Lockhart J said at p 12 of his reasons:
   

Hunter v Chief Constable is therefore authority from the highest source in England that, where a final decision has been made by a criminal court of competent jurisdiction, it is a general rule of public policy that a civil action cannot be used to initiate a collateral attack on that decision; and, if it does, it is an abuse of the process of the civil court.

On the same page his Honour continued:

The essence of the reasoning of the House of Lords was that the civil proceedings were a "collateral attack" upon the criminal conviction, with the dominant purpose of the civil action being, not to recover damages, but to challenge the foundation of their conviction at a time when it was likely that the principal witnesses called for the prosecution at the trial were either not available or their memories had faded, and that the only witnesses whose evidence would be clear would be that of the plaintiffs, the Birmingham Bombers themselves; that is, the abuse of process lay in the House's opinion that the proceedings were brought for the purpose of collateral attack on the final decision of a court of competent jurisdiction.

Saffron came before the Full Court by way of a case stated in which the question was posed as to whether it was competent in a taxation appeal for the applicant to give evidence which would contradict the factual basis of a prior conviction after trial before a judge and jury on a charge of conspiring to defraud the Commonwealth. The particular question put to the applicant in the taxation appeal to which objection was taken was:

Mr Saffron, do you deny that you and Mr Anderson made an agreement to the effect that not all of the cash received from the conduct of businesses in which you were involved would be declared by an entity which conducted the business?

to which the applicant gave an affirmative answer. The answer clearly contradicted a fundamental fact upon which the earlier conviction was based.

1. In the Full Court, after referring to Hunter v Chief Constable, and quoting a portion of the speech of Lord Diplock at p 541 of the report, Davies J observed at p 8 of his reasons:
   

But in such a case, it is the purpose of the proceedings which constitutes the abuse of process, as his Lordship made clear throughout his speech.

In the present case, so far as appears from the special case, the taxpayer merely wishes to continue with his taxation appeals which were instituted for the purpose of challenging the assessments which issued, which appeals were, moreover, instituted prior to the taxpayer's conviction. It has not been shown that there is any purpose connected with the taxation appeals as would constitute those appeals an abuse of process.

And later at p 9:

I see no element of abuse of process in the taxation appeals. The taxpayer is merely exercising his statutory right of appeal and, indeed, it is in the public interest that he should be permitted to do so untrammelled by his conviction for conspiracy to defraud the Commonwealth. There was no element of abuse of process in the particular question asked and answered or in the evidence of that nature sought to be adduced. Such evidence is relevant to, indeed essential to, a proper consideration of the taxation appeals.

Lockhart J canvassed the facts of Hunter v Chief Constable in some detail and after quoting the same passage from Lord Diplock as did Davies J, said at p 11 of his reasons:

His Lordship held that the proper method of attacking the decision by the trial Judge in the murder trial that the plaintiffs were not assaulted by the police would have been to contend that the Judge's ruling that the confessions were admissible had been erroneous as a ground of his appeal against his conviction to the Criminal Division of the Court of Appeal, but this had not been done. His Lordship plainly held the view that the dominant purpose of the civil action was, not to recover damages, but to establish "long after the event when memories have faded and witnesses other than the Birmingham Bombers themselves may be difficult to trace, that the confessions on the evidence on which they were convicted were induced by police violence, with a view to putting pressure on the Home Secretary to release them from the life sentences that they are otherwise likely to continue to serve for many years to come". His Lordship held that the civil action was a "collateral attack" upon the conviction of the plaintiffs at the criminal trial.

Later at pp 18-20 in his reasons Lockhart J continued:

In the present case, it is clear that the applicant has a genuine interest in challenging the assessments issued against him.

In my opinion it would not be open for the applicant to use the tax appeals before this Court for the purpose of a "collateral attack" upon his prior conviction; but there is nothing before us to suggest that this is the purpose of the present proceeding. The question of the true liability of the applicant to income tax has been alive for many years and existed well before he was charged with the criminal offence that led to the present point being raised. Indeed, the appeals against the assessments had been brought over three years before the applicant was charged with the criminal offence.

...

It is important to emphasise that the conviction of the applicant is not a necessary integer in the tax appeals. Indeed, it seems to me to be a wholly irrelevant matter to the determination of the issues in those appeals. What the applicant seeks to do in the tax appeals, as I understand it, is to deny an agreement between himself and Mr Anderson to the effect that not all of the cash received from the conduct of various businesses in which they were involved would be declared for income tax purposes. This is an assertion of fact which is relevant to the tax appeals; and I can see no good reason why he cannot lead evidence to that effect if he wishes. The respondent may lead evidence to the contrary and in the result the primary Judge can determine the facts. But the Court cannot reach or express a view that the applicant was wrongly convicted of the offence of conspiring to defraud the Commonwealth. The processes of and respect for the criminal law would not be undermined by the applicant leading evidence of the kind which he seeks to lead. The position would be different if this evidence was lead for the purpose of impugning the applicant's conviction or the fairness of his trial.

Beaumont J. also referred to and quoted from Hunter v Chief Constable and clearly adopted the reasoning applied by the House of Lords. After considering other authorities from both Australia and the U.S.A. he posed the question - "Was there an abuse of process in the present case?" In the course of answering that question his Honour said at p 15 of his reasons:

To determine whether process has been abused in the present context is essentially a question of fact: is the process of the Court being used for a legitimate purpose or is it being used for a foreign or ulterior object? (see I.O.C. Australia Pty. Ltd. v Mobil Oil Australia Ltd. (1975) 49 ALJR 176 at 182.) As Sheppard J. pointed out in Gungor, the relevant inquiry is with respect to the real purpose or object in carrying out the examination of the facts underlying the conviction.

And after referring to the particular facts of the case said at p 16:

It is common ground that the taxpayer may legitimately pursue his statutory right of appeal against the assessments. By not objecting to the tender of Ex. A, the commissioner has accepted that the material (now evidence) in that document may properly be advanced by the taxpayer in support. By that evidence, the taxpayer seeks to demonstrate that he did not derive the income assessed. This is the central question in the appeals which, it is common ground, may lawfully be agitated. But the additional matter sought to be put to the taxpayer by his counsel in the course of his examination in chief raises, I think, a question which is collateral to the tax appeals yet, as counsel for the taxpayer now concedes, it was critical to his conviction. In my opinion, there is no legitimate reason for the taxpayer's now pursuing this matter, collateral as it is, in the exercise of his statutory right to challenge the assessments by way of appeal to this Court. The proper inference is that the matter has been raised with a view to setting his conviction at nought.

In an addendum to his reasons, written after reading Lockhart J's judgment, Beaumont J commented that he differed from Lockhart J only in the application of the relevant legal principle, but as to the principle itself, they were in agreement.

1. Butler's case was referred to by each of the 3 judges in the Full Court. Davies J referred to the fact that counsel for the respondent had relied upon the reasoning and dicta of Hill J in Butler and said of that case that in so far as Hill J's reasoning was contrary to his own, he did not accept it. However, he added that he had not considered the correctness of the decision itself. Lockhart J included Butler with a number of other decisions described as "other cases which concern the question before us", but without making any reference to its facts or the reasoning applied by the judge. Beaumont J simply mentioned it as a decision relied upon by the respondent.

2. Although I have been informed by counsel for the applicant that an application for special leave to appeal against the Full Court decision in Saffron has been made to the High Court the application is yet to be heard and in the circumstances I propose to treat the Full Court's decision as an authority binding upon me. It would appear that there are some dicta in Butler's case which may not be wholly consistent with the approach taken by the Full Court although an analysis of the facts in Butler suggests that the proper inference to be drawn from the attack made on the conviction in that case was indeed that the issue was raised with a view to setting the conviction at nought.
   Conclusion

3. In the present case, the Act requires the Court to make an assessment for the purpose of fixing a pecuniary penalty which necessarily involves quantifying the amount of cocaine dealt in by the defendant. The Court is enjoined to have regard to the evidence before it. There can be no question that had the present proceedings gone ahead prior to the criminal proceedings the defendant would have been entitled to call evidence relevant to the question of quantity. And there is no doubt that had he later chosen to plead not guilty to the criminal charges the same question would have been open to be ventilated at his trial. There seems to be no logical reason why a decision by a criminal court ought to be binding on a civil court in subsequent proceedings and not vice versa. Unless of course the purpose of contesting the issue is in fact not bona fide and indeed is an abuse of process. The approach taken by the applicant in this case is that if a party seeks to put in issue one of the relevant facts which in other proceedings elsewhere has been found adversely to the party that amounts to an abuse of process. This is not my understanding of the conclusions expressed in Hunter v Chief Constable and in Saffron. Rather, the rule is that if the previously tried issue is sought to be relitigated not for a bona fide purpose in the subsequent proceedings, but for the ulterior purpose of attempting to set at nought the earlier decision, then that amounts to an abuse of process, and will not be permitted. As, Beaumont J said in Saffron, it is essentially a question of fact to be decided in each particular case.

4. To the extent that I can make a judgment from the material presently before me, I am unable to find any basis upon which the conclusion is open that the defendant's motive is to attempt a collateral attack on his conviction or his sentence. Indeed, his counsel expressly disavows any such intention. It may be that in the course of the proceedings a contrary inference may be drawn, but unless and until there is a proper basis upon which to draw such an inference, the defendant should not be inhibited in leading any evidence he desires to adduce which may be relevant to the issues that arise in this proceeding. Unlike the plaintiffs in Hunter v Chief Constable, he has not initiated these proceedings. He has simply adopted the stance that the applicant must prove his case in the Court upon proper evidence.

5. Following the publication of these reasons I will afford the parties the opportunity to address me on any other questions they may seek to raise concerning the admissibility of evidence.