Commissioner of the Australian Federal Police v Tran (Ruling)
[2015] VCC 1360
•1 October 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
CONFISCATION LIST
Case No. CI-11-01892
| COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE | Applicant |
| v | |
| LAN PHUONG THI TRAN (aka THI PHUONG LAN TRAN) | Respondent |
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JUDGE: | HER HONOUR JUDGE MORRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 and 18 September 2015 | |
DATE OF RULING: | 1 October 2015 | |
CASE MAY BE CITED AS: | Commissioner of the Australian Federal Police v Tran (Ruling) | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1360 | |
RULING
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Subject: CONFISCATION
Catchwords: Proceeds of crime – the respondent pleaded guilty to one charge of trafficking in a controlled drug, namely heroin and was sentenced – more than two years before the respondent’s trial was listed, the Commonwealth Director of Public Prosecutions made an application under s17 of the Proceeds of Crime Act 2002 (Cth) (“POCA”) that certain property (the “Mount Pritchard property”) in which the respondent was said to have an interest be restrained – the Commissioner of the Australian Federal Police, the applicant in these proceedings, then took over the conduct of the proceedings – the applicant made further applications for restraining orders in respect of personal property (items of jewellery) and money – a judge ordered that the Mount Pritchard property be excluded from forfeiture but the jewellery and cash be forfeited – the applicant subsequently applied for a Pecuniary Penalty Order (“PPO”) under s134 of the POCA to be made against the respondent – Court satisfied that the application for the PPO was filed within the statutory time limit pursuant to the operation of s134(2)(b) of the POCA – the respondent seeks an order that the application for a PPO be struck out – whether s134(2)(b) of the POCA constitutionally invalid – whether the application for the PPO was filed within the statutory time limit – whether Anshun estoppel applies – whether making a PPO in the circumstances would infringe the rule against double punishment.
CONSTITUTIONAL LAW – whether the statutory time limit for filing an application for a PPO as provided by s134(2)(b) of the POCA is constitutionally invalid on the ground that it breaches Chapter III of The Constitution – Court satisfied the principle in Kable v Director of Public Prosecutions (NSW) (1997) 189 CLR 51 not engaged – International Finance Trust Company Limited v NSW Crime Commission (2009) 240 CLR 319 distinguished – provisions of the POCA not tainted with the same vices contained in the legislation struck down by the High Court in International Finance Trust – respondent not able to identify any provision of the POCA which denies procedural fairness – provisions of the POCA do not deprive the Court of judicial process or require it to act contrary to principles of natural justice – Court not satisfied that the POCA offends Chapter III of The Constitution – Court not satisfied s134(2)(b) of the POCA constitutionally invalid.
ESTOPPEL - whether Anshun estoppel applies – s134(5) of the POCA allows for a PPO to be made notwithstanding that a forfeiture order has been made – POCA permits multiple applications to be made – Court satisfied that to read into clear and unambiguous legislation that Anshun estoppel applies would subvert the statutory scheme
ABUSE OF PROCESS – whether making a PPO in the circumstances would infringe the rule against double punishment – no evidence that respondent has already faced PPO proceedings – no evidence that prior proceedings will prejudice respondent in her defence of a PPO application – premature to hold that the respondent is in jeopardy of “double punishment”
Legislation Cited: Criminal Code Act 1995 (Cth); Proceeds of Crime Act 2002 (Cth); Judiciary Act 1903 (Cth); Community Protection Act 1994 (NSW); Evidence Act 2008; Criminal Assets Recovery Act 1990 (NSW); Interpretation of Legislation Act 1984 (Vic); Crimes Act 1914 (Cth); Criminal Assets Recovery Act 1990 (NSW); Crimes (Confiscation of Profits) Act 1988 (WA); Confiscation Act 1997 (Vic); Criminal Assets Recovery Act 1990 (NSW); Misuse of Drugs Act (NT); Criminal Property Forfeiture Act (NT).
Cases Cited:Port of Melbourne Authority v Anshun Pty Ltd (No 1) (1980) 147 CLR 35; Port of Melbourne Authority v Anshun Pty Ltd(Anshun case) (1981) 147 CLR 589; International Finance Trust Co Ltd v New South Wales Crime Commission (2009) 240 CLR 319; General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125; Pearce v R (1998) 194 CLR 610; Electric Light & Power Supply Corporation Ltd v Electricity Commission of New South Wales (1956) 94 CLR 554; Barton v R (1980) 147 CLR 75; Neill v County Court of Victoria [2003] VSC 328; Rogers v R (1994) 181 CLR 251; Gray v Motor Accident Commission (1998) 196 CLR 1; Daniels v Thompson [1998] 3 NZLR 22; Environment Protection Authority v Floyd [2004] NSWLEC 2014; Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89; Dupas v R (2010) 241 CLR 237; Batistatos v Roads and Traffic Authority of New South Wales (2006) 226 CLR 256; Tran v Commissioner of the Australian Federal Police [2014] VCC 2044; R v Carroll (2002) 213 CLR 635; City of Collingwood v State of Victoria & Collingwood Football Club Ltd [1994] 1 VR 652; Green v United States 355 US 184; R v Storey (1978) 140 CLR 364; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; R v Getachew (2012) 248 CLR 22; X7 v Australian Crime Commission (2013) 248 CLR 92; Attorney-General (NT) v Emmerson (2014) 307 ALR 174; Leeth v The Commonwealth (1992) 174 CLR 455; Silbert v Director of Public Prosecutions (WA) (2004) 217 CLR 181; H A Bachrach Pty Ltd v Queensland (1998) 195 CLR 547; Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532; Slaveska v State of Victoria [2015] VSCA 140; Director of Public Prosecutions (Vic) v Ali [2009] VSCA 162; French v Queensland Premier Mines Pty Ltd [2006] VSCA 287; Murphy v Farmer (1988) 165 CLR 19; Director of Public Prosecutions v Logan Park Investments Pty Ltd (1995) 37 NSWLR; Jeffrey v Director of Public Prosecutions (1995) 121 FLR 16; (1995) 79 A Crim R 514; Clissold v Perry(Minister for Public Instruction) (1904) 1 CLR 363; R & R Fazzolari Pty Ltd v Parramatta City Council (2009) 237 CLR 603; Director of Public Prosecutions (Cth) v Gay [2015] TASSC 15; Momcilovic v R (2011) 245 CLR 1; New South Wales Crimes Commission v Kelaita (2008) 75 NSWLR 564; Gray v Motor Accident Commission (1998) 196 CLR 1; Helton v Allen (1940) 63 CLR 691; Commissioner of the Australian Federal Police v Fysh (2013) 224 A Crim R 523; Director of Public Prosecutions (WA) v Mansfield [2006] WASC 246; Studman v Director of Public Prosecutions (Cth) (2007) 177 A Crim R 34; Australian Securities and Investments Commission (ASIC) v Lindberg (No 2) (2010) 26 VR 355.
Judgment: The respondent’s application to dismiss the application for a PPO is dismissed. The respondent’s application to permanently stay the application for a PPO must also be dismissed. None of the grounds in support of a “strikeout” or a permanent stay are established.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr T Gyorffy QC | Commonwealth Office of Public Prosecutions |
| For the Respondent | Mr M Hume | Haines & Polites |
Table of Contents
Page
Background........................................................................................................................................ 1
Overview of this interlocutory application................................................................................. 4
The hearing......................................................................................................................................... 5
The Respondent’s grounds for relief.......................................................................................... 5
The issues for determination and summary of findings........................................................ 7
The issues deferred for further hearing and determination at trial.................................... 8
The evidence...................................................................................................................................... 8
The submissions............................................................................................................................... 9
The Respondent’s Submissions................................................................................................. 9
The Applicant’s submissions..................................................................................................... 18
Determination of the issues......................................................................................................... 32
(1).... Is the statutory time limit for filing an application as provided by s134(2)(b) of the POCA invalid on the grounds that it breaches Chapter III of The Constitution? – Ground 2(c) ....... 32
(2).... Was the application for a PPO filed within the statutory time limit? – Ground 2(c).... 45
(3).... Does “Anshun” estoppel apply so as to prohibit the further prosecution of the application for a PPO? – Ground 1 (4) Would making a PPO in the present case infringe the rule against double punishment? – Grounds 2(a) and (b) .......................................................................... 51
Other points raised by Mr Hume................................................................................................ 59
The respondent will be prejudiced because she is unable to deduct “expenses”
from the benefit derived............................................................................................................. 59
His Honour Judge O’Neill made adverse findings about the respondent’s credit............ 60
These proceedings constitute an abuse of process............................................................. 60
Conclusions..................................................................................................................................... 61
Orders................................................................................................................................................ 61
HER HONOUR:
Background
1 On 19 July 2013, in the County Court, the respondent, Lan Phuong Thi Tran (aka Thi Phuong Lan Tran) (“Tran”) pleaded guilty before his Honour Judge Allen to one charge of trafficking in a controlled drug, namely heroin, contrary to s302.4 (1) of the Criminal Code Act 1995 (Cth).[1] For the purposes of the Proceeds of Crime Act 2002 (Cth) (“POCA”), this offence is defined in s338 of the POCA as a “serious offence”.
[1]Indictment dated 19 July 2013 filed in Case No CR-12-01046 is exhibit EN-01 to the affidavit of Emily Nicholson affirmed 18 September 2014 tendered as exhibit 2 in these proceedings.
2 On 7 October 2013, his Honour Judge Allen sentenced the respondent to be imprisoned for three years. His Honour further ordered, under s20(1)(b) of the Crimes Act 1914 (Cth), that the respondent be released after serving two years of the term of imprisonment upon giving security by way of recognisance in the sum of $1,000.00 on condition that she be of good behaviour for a period of two years. His Honour declared a period of 175 days be reckoned as time already served under the sentence.[2]
[2]Reasons for Sentence is exhibit EN-02 to the affidavit of Emily Nicholson affirmed 18 September 2014 tendered as exhibit 2 in these proceedings.
3 More than two years before the respondent’s trial was listed before his Honour Judge Allen, the Commonwealth Director of Public Prosecutions (“CDPP”) made application that certain property (real estate known as the “Mount Pritchard property”) in which the respondent was said to have an interest, be restrained under s17 of the POCA. On 9 August 2012, the applicant, the Commissioner of the Australian Federal Police, took over the conduct of those proceedings.
4 Further applications for restraining orders were made by the applicant on 26 July 2013 in respect of personal property (various items of jewellery) and money seized under warrant on 15 April 2011.
5 On 6 August 2013, the respondent applied for exclusion from forfeiture order pursuant to s31 of the POCA in respect of the Mount Pritchard property which was the subject of a Restraining Order made by his Honour Judge Murphy on 20 August, 2013.
6 On 30 August 2013, the respondent applied for a further exclusion order in respect of personal property (various items of jewellery) and money seized under warrant on 15 April 2011.
7 On 18 March 2014, the respondent applied for an extension order under s93, extending the period before which the restrained property was to be excluded. On 1 April 2014, pursuant to s93(1) of the POCA, his Honour Judge Parsons ordered, by consent:
“… the period at the end of which the property restrained pursuant to Restraining Orders made on 29 April 2011 and 20 August 2013 is forfeited, is extended to 6 January 2015.”
8 Accordingly, by virtue of this Order, time within which an application for a PPO could be made was extended under s134(2)(b):
“if an *extension order is in force at the end of [the period of nine months after the conviction day] - the end of the period of three months after the end of the extended period relating to that extension order.”
9 As a consequence, time to bring the application for a Pecuniary Penalty Order (“PPO”) was extended to 5 April 2015.
10 The relevant statutory time limit for making application for a PPO is defined in s134 of the POCA. I have just mentioned ss(2). Had an Extension Order not been made, then ss(1) would have limited the time within which to have been made before the end of the period of nine months after the conviction day[3] (defined in s338 and s333 for the purposes of the present application as the day sentence was passed, ie 7 October 2013), meaning time to file the application expired on 6 June 2014.[4]
[3]Section 134(2)(a)
[4]Section 134(2)(b)
11 On 18 September 2014,[5] before the respondent’s applications for exclusion orders were heard and determined, the applicant applied for a Pecuniary PPO under s134 of the POCA against the respondent.[6] Counsel for the respondent has quite properly conceded that the application for a PPO was brought within time.[7]
[5]Note that the applicant’s counsel states that the date of the application is 18 April 2014 (see paragraph 2v) of exhibit 7, but that does not accord with the sealed application tendered as exhibit 1
[6]Exhibit 1
[7]Transcript 35. See also paragraph 17 of the respondent’s submissions. Also, in exhibit 6, paragraph 11, Mr Hume concedes that the application was served on 18 September 2014, prior to the trial of the respondent’s exclusion applications before his Honour Judge O’Neill.
12 The particulars of application plead:
“1.THE JURISDICTION to make the order sought arises because [the respondent] has been convicted in the County Court of Victoria at Melbourne on 7 October 2013 of the [relevant offence], which is a serious offence as defined by [the POCA].
2.The applicant applies for the following orders:
(a) Pursuant to section 116 (1) of [the POCA], the respondent pay to the Commonwealth a pecuniary penalty, being an amount determined by the Court under Division 2 of Part 2-4 of [the POCA] (Penalty Amount);
(b) Pursuant to section 282 (1) of [the POCA], the Official Trustee be directed to pay the Commonwealth, out of the property of the respondent which is the subject of restraining orders made in these proceedings on 29 April 2011 and 20 August 2013 (the property), the Penalty Amount, after paying the costs, charges, expenses and remuneration of the Official Trustee, pursuant to section 284 of [POCA];
(c) Pursuant to section 283 (1) of [the POCA], direct the Official Trustee to sell or otherwise dispose of such of the property as is required to satisfy the penalty amount.
(d) Pursuant to section 283 (1) of [the POCA], the Official Trustee be appointed to execute any deed or instrument in the name of the respondent and/or any person or entity who owns or has an estate, interest, right, power or privilege in the property and to do any act or thing necessary to give validity and operation to any such deed or instrument, as may be necessary or convenient for giving effect to paragraphs (b) and (c) above.
(e) Such further orders as may be necessary.
3.THE APPLICANT is the Commissioner of the Australian Federal Police.
4.THE RESPONDENT to this application is the person who has been convicted of the [relevant offence].
5.THE GROUNDS on which this application will be made is that the respondent has derived a benefit as a result of the commission of the offence.
6.A TIME LIMIT APPLIES under section 134 (2) of [the POCA] and this application is made before the end of the relevant period.”
13 The application for a PPO was served on the respondent on 18 September 2014,[8] meaning that all parties were aware of the Commissioner’s intention to seek a PPO well before the contested hearing of the respondent’s application for exclusion from forfeiture orders.
[8]See concession made in respondent’s submissions, exhibit 6, paragraph 11
14 On 17 and 18 November 2014, the applications for exclusion from forfeiture (pursuant to s94 of the POCA) and for compensation for the proportion of property not derived or realised from the commission of any offence (pursuant to s94A of the POCA) were heard by his Honour Judge O’Neill. On 18 November 2014, his Honour made a number of Restraining Orders by consent in respect of various items of property pursuant to s17 and s25 of the POCA.
15 On 12 December 2014, his Honour Judge O’Neill determined the respondent’s applications made pursuant to s94 and s94A of the POCA relating to the “Mount Pritchard property” and certain items of jewellery. Ultimately, his Honour ordered that the Mount Pritchard property be excluded from forfeiture but that all the items of jewellery be forfeited.
16 Despite numerous applications and hearing dates, neither party sought that the applications made under s94 and s94A be heard at the same time as the applications for a PPO.
Overview of this interlocutory application
17 The application for the PPO is listed for trial before me commencing on 9 November 2015. The respondent, Tran, now seeks an order that the application for a PPO be struck out (on the grounds of Constitutional invalidity), or, in the alternative, that the proceedings be stayed permanently on the grounds that they constitute an abuse of process, or further in the alternative, that a form of estoppel (“Anshun” estoppel[9]) applies.
[9]Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
18 The respondent seeks other orders, but I have determined that I shall only hear and determine the applications that would result in a dismissal of the PPO application or in the grant of a permanent stay.
19 The applicant Commissioner opposes the orders, submitting that no constitutional matter arises, the proceedings do not constitute any abuse of process, and no estoppel applies to prevent prosecution of the PPO application.
The hearing
20 The hearing commenced on 17 September 2015 and continued on 18 September. Mr M Hume appeared on behalf of the respondent, Tran. Mr T Gyorffy QC appeared on behalf of the applicant Commissioner. The parties filed written submissions, which they augmented by oral argument.
The Respondent’s grounds for relief
21 In the respondent’s Amended Notice of Opposition to the Application for a PPO,[10] the following grounds are pleaded:
[10]Exhibit 5
“1)The Application breaches the rule in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 by traversing matters raised in the trial between the Applicant and Respondent on 17-18 November 2014.
2)a) The Application is made contrary to the prohibition on double punishment by virtue of being filed after the sentencing of the Respondent on 07 October 2013, or
b)The Application is made contrary to the prohibition on double punishment by virtue of being after the trial between the Applicant and Respondent on 17-18 November 2014, or
c)s134(2)(b) of the Act[11] is a law contrary to the Commonwealth Constitution, and the Application has been filed out of time.
[11]The POCA
3)a) The Application for a Pecuniary Penalty Order filed on 18 September 2014 sought an amount of $65,000.00 as a pecuniary penalty from the respondent, and
b)On 26 May 2015 a further affidavit in support or sworn by Colin Hicks (the Affidavit) and on or about that date the Applicant filed and served the Affidavit on the Respondent, and
c)The Affidavit alleges $257,892.00 of ‘Funds from unexplained sources’, with such funds capable of being used to increase the amount sought under the Pecuniary Penalty Order to $322,892.00, and
i)The Affidavit is inadmissible as its admission would amount to an amendment of the Application increasing the value of the Pecuniary Penalty Order sought without the Applicant having been granted leave pursuant to section 137 of the Act, and leave to amend the Application should be denied as the Applicant cannot satisfy s137(2)(a) or (b) of the Act, or
ii) The Affidavit should be excluded in the exercise of the Court’s discretion under s138 of the Evidence Act 2008.
Particulars
The Affidavit should be excluded by application of section 138(1) of the Evidence Act 2008 as having been obtained in consequence of an impropriety. The expert evidence in the Affidavit was not created and served with the Pecuniary Penalty Order application on 18 September 2014 pursuant to s134 of the Act, and the desirability of admitting the evidence outweighs the undesirability of admitting the evidence.
4)The Applicant’s Pecuniary Penalty Order is reduced to nil by virtue of s130 of the Act following the forfeiture of various property as part of prior proceedings under the Act.
Particulars
The following property has been forfeited by the Respondent, and it should be subtracted from the sum of $65,000.00 that the Respondent otherwise obtained from the offending:
a) Cash worth $27,600.00
b) Jewellery worth $86,870.00
5)In so far as the Application relates to funds in ANZ Account 012253 570946834
a)The Applicant cannot prove that the Respondent has any beneficial interest in the funds, and as such no valuation can be made in relation to the Respondent’s ‘property’ under s124(1)(c) of the Act; and/or
b)The Applicant cannot prove that the funds were derived during or after events referred to in s124(i) or (ii) or (iii) of the Act; and/or
c)The amount treated as the value of benefits under s124(1) is reduced to nil by virtue of s124(2)(a), (b) and (c) of the Act; and
d)S124(3) does not apply as the Applicant pursues his claim under s124(1) of the Act.
6) In so far as the Application relates to funds in other accounts:
a) The Applicant cannot prove that the funds were derived during or after events referred to in s124(i) or (ii) or (iii) of the Act; and/or
b) The amount treated as the value of the benefits under s124(1) is reduced to nil by virtue of 2124(2)(a), (b) and (c) and/or
c)S124(3) does not apply as the Applicant pursues his claim under s124(1) of the Act.”
The issues for determination and summary of findings
22 The issues raised in the respondent’s interlocutory application and a summary of my findings is as follows:
(1) Is the statutory time limit for filing an application as provided by s134(2)(b) of the POCA invalid on the grounds that it breaches Chapter III of The Constitution? – No (Ground 2(c)).
(2) Was the application for a PPO filed within the statutory time limit? – Yes (Ground 2(c)).
(3) Does “Anshun” estoppel apply so as to prohibit the further prosecution of the application for a PPO? – No (Ground 1).
(4) Would making a PPO in the circumstances of the present case infringe the rule against double punishment? – No (Grounds 2(a) and (b)).
23 For the reasons set out below, the respondent’s application to strike out the application for a PPO is dismissed. The respondent’s application to permanently stay the application for a PPO must also be dismissed.
The issues deferred for further hearing and determination at trial
24 As I mentioned to counsel during the hearing, issues that do not justify either immediate dismissal or permanent stay of the proceedings must be deferred for determination at the ultimate hearing of the application for a PPO. These matters concern the admissibility of evidence at trial and the quantification of a PPO, should such an order be made. For this reason, I declined to entertain any arguments in support of grounds 3, 4, 5 and 6 set out above and more fully detailed below. These grounds can be ventilated more conveniently at the trial, since their success will depend on the evidence to be adduced or tendered at that time.
The evidence
25 The following exhibits were tendered:
Number and Identifying Mark on Exhibit Short Description of Exhibit Date tendered
One Application for the Pecuniary Penalty Order dated 18 September 2014 18 September 2015 2 Affidavit of Emily Nicholson dated 18 September 2014 18 September 2015 3 Notice of Opposition to Application for a Pecuniary Penalty Order dated 11 August 2015 18 September 2015 4 Notice of Constitutional Matter 78B notices dated 17 August 2015 18 September 2015 5 Amended Notice of Opposition to Application for a Pecuniary Penalty Order dated 28 August 2015 18 September 2015 6 Tran’s submissions in support of Summary Judgment dated 8 September 2015 18 September 2015 7 Commissioner’s submissions in opposition to Summary Judgment dated 14 September 2015 18 September 2015 8 Brief skeleton outline of submissions 18 September 2015 9 Affidavit of John Reinhold Schuller dated 17 September 2015 18 September 2015 10 Affidavit of John Reinhold Schuller dated 16 September 2015 18 September 2015 11 Affidavit of John Reinhold Schuller dated17 September 2015 attaching two unauthorised transcripts of which no objection is taken 18 September 2015 12 Copy affidavit of Tam McLaughlin dated 24 August 2015 18 September 2015 13 Application to add further ground to application for summary dismissal 18 September 2015
The submissions
26 I shall set out in full the parties’ written submissions:
The Respondent’s Submissions[12]
[12]The submissions were tendered as exhibit 6. They appear in their original form.
“SUBMISSIONS FOR RESPONDENT ON RESPONDENT’S APPLICATION FOR SUMMARY JUDGEMENT ON QUESTIONS OF LAW
Summary
1.These submissions are filed in support of an application for summary judgement by the Phuong Thi Lan Tran (Tran), respondent to an application for a Pecuniary Penalty Order (PPO) made by the Applicant, the Commissioner of the Australian Federal Police (the Commissioner). The application for a PPO was made pursuant to section 134 of the Proceeds of Crime Act 2002 (Cth) (the Act) on 18 September 2014. These submissions are filed pursuant to orders of his honour Judge Murphy on 01 September requiring that submissions be filed in support of the strike out application by Tran on 07 September 2015, in preparation for a hearing on the argument on 17-18 September 2015.
2.The Commissioner attempts to compel Tran to defend against or submit to a PPO despite:
a. her not having had notice of the PPO as at the time of her sentencing, and thus being compelled to defend against potential double punishment by virtue of the imposition of civil penalties that she was entitled to have considered herself to be free from, and
b. her having previously litigated the same or similar issues in a trial against the Commissioner, which occurred on 17 and 18 November 2014, with judgement having been provided on 12 December 2014, and
c. her having been previously given initial notice of a claim of only $65,000.00 being made against her by the Commissioner in his application for a PPO made on 18 September 2014, and her already having forfeited at least $114,470.00, an amount that ought be set off against the claim for a PPO pursuant to section 130 of the Act.
3.Tran’s complaints of double punishment are pursued under cover of Ground 2a, and as an alternative, Ground 2c in her Amended Notice of Opposition to the PPO filed on 01 September 2015. Tran argues that the application for a PPO should be dismissed as an abuse of process due to it being filed in a manner contrary to the prohibition on double punishment. However, should the Court be of the view that the Act explicitly compels the Court to allow an application in breach of the rule against double punishment, then Tran argues in the alternative that section 134(2)(b) of the Act, which extends the time for the making of a PPO, should be declared void as contrary to the Commonwealth Constitution (the Constitution) on the grounds that it breaches the Kable principle as re-enunciated in International Finance Trust Company Limited v New South Wales Crime Commission[13].
[13] (2009) 240 CLR 319
4.Tran’s complaints in relation to her having to be involved in two separate trials involving same or similar issues as noted in paragraph 3b above, is pursued under cover of Ground 1 and Ground 2b of her Notice of Opposition. Tran firstly argues that the Application for a PPO should be dismissed as an abuse of process under the (civil) principle of issue estoppel. And further, because the application for a pecuniary penalty order is a further attempt by the Commissioner to ensure the imposition of a civil penalty on Tran, Tran also argues that the ordinary principles relating to double punishment also prohibit the Commissioner from pursuing its application after not having pursued it in its first trial involving Tran.
5.Finally, Tran argues that the Commissioner should be held to its initial Pecuniary Penalty Order application value of $65,000.00 rather than the maximum of $322,892.00 capable of being claimed were the Affidavit of Colin Hicks (the Contested Affidavit) be allowed to be used in support of the Application. Tran argues that leave to amend the Commissioner’s initial application should be denied pursuant to section 137 of the Act, and that in the alternative the Contested Affidavit be excluded by virtue of section 138 of the Evidence Act 2008 as being evidence gained by virtue of an impropriety. The expert evidence in the Contested Affidavit was created 8 months after the initial application for a PPO was made, despite section 136 of the Act providing that an application for a PPO has to be served on the Respondent together with any affidavit in support.
Facts[14]
[14]The facts appear adequately in the Sentencing Reasons of His Honour Judge Allen published on 07 October 2013, which are exhibited as EN-02 in the affidavit of Emily Nicholson filed in these proceedings by the Commissioner
6.In the preceding criminal proceedings, the Director of Public Prosecutions alleged that Tran trafficked heroin between 01 June 2009 and 21 August 2009, contrary to 302.4(1) of the Criminal Code (Cth).
7.Tran pleaded guilty to the offending shortly before trial, and on 07 October 2013 was convicted and sentenced to a term of imprisonment of 3 years, with the sentencing judge ordering that she be released on recognisance after two years, with an undertaking to be of good behaviour for two years upon release. As part of her sentencing reasons, the court found that Tran had received $65,000.00 as a result of part of her offending.
8.The DPP obtained a restraining order on 29 April 2011 in relation to Tran’s home at 382 Elizabeth Street, Mt Pritchard, and then on 20 August 2013 obtained further restraining orders over items of cash and jewellery found at the home[15].
[15]Order of Judge Parsons dated 29 April 2011 and Order of Judge Murphy dated 20 August 2013
9.Tran filed applications for exclusion over the various restrained items, but ultimately consented to the withdrawal of her application over various amounts of cash and jewellery[16]. Tran also successfully excluded various items of jewellery from the restraining order as a result of consent orders entered into with the Commissioner[17].
[16]Applications for exclusion filed on 06 August 2013 and 30 August 2013 and for exclusion and compensation orders pursuant to sections 94 and 94A of the Act filed 19 September 2014
[17]Order of Judge O’Neill made on 18 November 2014.
10.On 17-18 November 2014 a trial occurred before His Honour Judge O’Neill in the County Court, and his honour gave his reasons for judgement on 12 December 2014. Tran was successful in excluding her interest in her home from the restraining order, but was unsuccessful in her application to exclude various remaining items of jewellery.
11.Prior to the trial, on 18 September 2014, Tran was served with an application for a PPO by the Commissioner, together with an affidavit in support. The only material in the Affidavit in support useable for the valuation of benefits under the application was the finding by the sentencing judge that Tran had obtained $65,000.00 as a result of her offending.
12.On 26 May 2015 the Commissioner filed several other affidavits in support of his application, most notably the Contested Affidavit, in which a further $257,892.00 was sought to be added to the valuation of the PPO. The Contested Affidavit revealed that the instructions for the preparation of the Affidavit were only provided by the Commissioner on 20 March 2015.
Application for Summary Judgement
13.Tran’s application for summary judgment is in the nature of a demurrer and is made pursuant to the common law[18] – the Civil Procedure Act 2010 does not apply to these proceedings[19] and Order 10 of the County Court Miscellaneous Rules 2009 do not make specific provisions for such an application.
[18]General Steel Industries Inc v Commissioner for Railways (NSW) [(1964)]112 CLR 125
[19]Section 4(2) of the Civil Procedure Act 2010
14.This court should provide summary judgement for Tran should it consider that in relation to any of the Grounds argued below, the application for a PPO by the Commissioner ‘discloses a case which the Court is satisfied cannot succeed’[20]. Grounds 1 and 2(a)-(c) allege abuse of process by the Commissioner, and if made out plainly satisfy this test. Ground 3 if made out should result in the Contested Affidavit being struck out, and leave being denied for Commissioner to amend his PPO application. Ground 4 if made out should then result in summary judgement for Tran in that the Commissioner cannot obtain any practical relief as a result of his application.
[20]General Steel Industries Inc v Commissioner for Railways (NSW) [(1964)] 112 CLR 125 at 129
Ground 2a – The application for a pecuniary penalty order should be summarily denied because it is made contrary to the prohibition on double punishment by virtue of being filed after the sentencing of the Respondent on 07 October 2013
15.The common law provides that prosecutions contrary to the prohibition on double punishment are liable to be struck out as an abuse of process[21]. The filing of the PPO application by the Commissioner on 18 September 2014, nearly a year after Tran’s sentencing on 07 October 2013, is an attempt to further punish Tran in relation to offending relating to her convictions on 07 October 2013, and as such should be struck out. Ultimately, the only appropriate time applications such as this PPO to be brought is after conviction, but prior to the imposition of sentence – for example during the plea in mitigation.
[21]Pearce [v R] (1998) 194 CLR 610
16.The Commissioner’s PPO application is made pursuant to section 134(2)(b), which provides that:
‘If the application relates to a person’s conviction of a serious offence, the application must be made before (a) the end of the period of 9 months after the conviction day; or (b) if an extension order is in force at the end of that period – the end of the period of 3 months after the end of the extended period relating to that extension order.’
17.By agreement between the parties conviction for the purposes of the Act occurred on 07 October 2013. As a result of an extension order being made on 01 April 2014, the application for a PPO is formally made within the time period specified within section 134(2)(b) of the Act.
18.However, in interpreting the provisions of the Act, allowance must be made for ordinary common law principles to continue to exist. As Dixon CJ wrote in Electric Light and Power Supply Corporation Limited v Electricity Commission of New South Wales[22]:
[22](1956) 94 CLR 554 at 560
‘When the legislature finds that a specific question of a judicial nature arises but that there is at hand an established court to the determination of which the question may be appropriately submitted, it may be supposed that if the legislature does not mean to take the court as it finds it with all its incidents including the liability to appeal, it will say so. In the absence of express words to the contrary or of reasonably plain intendment the inference may safely be made that it takes it as it finds with all its incidents and the inference will accord with reality.’
19.His honour’s reasons are to be considered alongside the principle that this court, as all courts, have an implied or inherent jurisdiction to prevent its process being abused[23], and the prohibition on double punishment is one of the grounds through which an abuse of process may be established[24].
[23]Barton v R (1980) 147 CLR 75, Neill v County Court of Victoria [2003] VSC 328
[24]Rogers v R (1994) 181 CLR 251
20.As a result, section 134(2)(b) of the Act should not be interpreted to abrogate the prohibition on double punishment. Just as applications for PPOs made within the legislatively specified period of time also need to comply with other common law rules and principles relating to pleadings, or evidence, such applications must also comply with the principles relating to double punishment.
21.There is unambiguous authority that a later civil punishment engages the principles relevant to double punishment. In Gray v Motor Accident Commission (1988) [scil 1998][25], the High Court confirmed that exemplary damages sought after the imposition of criminal punishment were subject to this principle. The joint judgement of Gleeson CJ, McHugh, Gummow and Hayne JJ noted that ‘there seems to be much to be said in favour of the views reached by a majority of the Court of Appeal of New Zealand in Daniels v Thompson that for a civil court to revisit a sentence imposed in a criminal court for the purpose of deciding whether the criminal received his or her just deserts is ‘contrary to principle’ and must ‘undermine the criminal process’ ’[26].
[25](1998) 196 CLR 1
[26](1998) 196 CLR 1 at 46, citing Daniels v Thompson [1998] 3 NZLR 22 at 48. See also Environment Protection Authority v Floyd [2004] NSWLEC 2014 at paragraphs 63-65
22.It is clear that facts relevant to the PPO application were part of the circumstances considered by the learned sentencing judge. The $65,000.00 referred to in the initial application by the Commissioner is specifically referred to in the judge’s reasons, and Tran was as a result presumably punished for her obtaining this amount.[27]
[27]See exhibit EN-02 in the affidavit of Emily Nicholson sworn 18 September 2014 Reasons for Sentence of his Honour Judge Allen, Paragraph 8
23.Finally, the name of the order sought by the Commissioner as well as section 126 of the Act make it clear that the order being sought is punitive. The order sought is a ‘Pecuniary Penalty’ order, and section 126(a) of the Act provides that expenses or outgoings of the person are not be used to reduce the value of the PPO calculation, a fact that ensures that, for example, an order for $65,000.00 against Tran would amount to the imposition of a substantial additional penalty as compared with merely disgorging the benefits of the offending from her.
24.As a result, the Court should strike out the application for a PPO as an abuse of process.
Ground 2c- As an alternative to Ground 2a, the application for a pecuniary penalty order should be summarily denied as s134(2)(b) of the Act is a law contrary to the CommonwealthConstitution, and the Application has been filed out of time.
25.Ground 2c is argued in the alternative to Ground 2a – and is to be considered should the previous ground for a stay be denied on the basis that section 134(2)(b) of the Act is to be interpreted as requiring the abrogation of the common law principle of double punishment in relation to applications for a PPO under the Act.
26.In the alternative to the court striking out the PPO application under ground 2a, the Court should declare s134(2)(b) of the Act a law contrary to Chapter 3 of the Constitution as required by the Kable[28] principle. The court should then rule the application for a PPO to have been made out of time as a result of not having been made prior to the sentencing of Tran, and thus should again, grant summary judgment for Tran.
[28]Kable v DPP (NSW) (1996) 189 CLR 51
27.This court should make such orders because the principle protecting subjects from double punishment is one incident of a court’s power to prevent the abuse of its own processes[29], and the principle of considered dicta in relation to High Court judgements requires that this court rule s134(2)(b) as beyond the legislative power of the Commonwealth if it is persuaded that the section allows for the breach of the ordinary principles of double punishment[30].
[29]Barton v R (1980) 147 CLR 75
[30]Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at 151-2
28.Of course, the High Court has never explicitly ruled on whether the power to prevent an abuse of its processes is an essential attribute of the Judicial Power of the Commonwealth[31]. However, it has made considered obiter comments in relation to the issue, noting in Dupas v the Queen (2010) that ‘Having regard both to the antiquity of the power and its institutional importance, there is much to be said for the view that in Australia the inherent power to control abuse of process should be seen, along with the contempt power, as an attribute of the judicial power provided for in Ch III of the Constitution’.
[31]Batistos [scil Batistatos] v Roads and Traffick (sic) Authority (NSW) (2006) 226 CLR 256 at [13] per Gleeson CJ, Gummow, Hayne and Crennan JJ
29.These reasons compel this court to defer to the High Court’s view as to the likely correct result at law, and as a result, s134(2)(b) should be declared void, and the application for a PPO struck out.
Ground 1 – The application for a pecuniary penalty order should be summarily denied because the application breaches the rule in Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 by traversing matters raised in the trial between the Applicant and Respondent on 17-18 November 2014.
30.Not only has Tran been subjected to an application for a pecuniary penalty order despite not having notice of such at sentencing, but the Commissioner also seeks to compel Tran to undergo a second trial in relation proceeds of crime matters, with a 2 day trial in relation to an application for an exclusion order previously having occurred.
31.As a result of the previous trial, this court should rule the PPO application as being estopped by virtue of the principles enunciated in Anshun[32]. The matters raised in the PPO application are so closely connected to the relevant issues in the exclusion application that it is to unreasonable for the PPO application not to have been pursued during the exclusion application.
[32]Port of Melbourne Authority v Anshun Pty Ltd [(No 1)] (1980) 147 CLR 35
32.The previous trial and the PPO application involved a multiplicity of similar factual and evidentiary issues, and it is unreasonable for the Commissioner to choose to run the PPO application at a later trial rather than alongside the application for an exclusion order under the Act. The identity of issues between the matters litigated in this trial and the PPO include:
a. The question of Tran’s credibility[33], which is again clearly relevant in her defending the PPO application through her obtaining relevant ill gotten gains alleged by the Commissioner
[33]Reasons for Judgement in Tran v Commissioner [of the Australian Federal Police], [2014] VCC 2044 at [42]
b. The issue of whether Tran had sources of income other than her government benefits and minor salary gathered from working as a nail technician and seamstress[34] – relevant here in relation to whether she can show legitimate sources of income in relation to amounts alleged to have been acquired by her during the ‘relevant period’[35].
[34]Id
[35]As defined in Section 124(5) of the Act
c. The issue of whether Tran can provide lawful sources of income through which she obtained various bundles of cash found in her possession during Police operations[36] – a matter relevant to the PPO application as there are allegations of unsourced cash deposits into bank accounts said to be controlled by her.
[36]Ibid at [42]
d. The issue of whether certain friends of Tran were capable of having given her large sums of money based upon their own incomes[37] – again relevant as shown by the Commissioner having filed a number of fresh affidavits seeking to show that Tran’s associates did not have large amounts of taxable income.
[37]Id
e. The jurisdictional issue of whether Tran has been convicted of a ‘serious offence’ as defined in section 338 of the Act, an element required to be proven for exclusion under s94(1) of the Act. The application for a PPO also traverses this issue as the Commissioner may prove that Tran has been convicted of a ‘serious offence’, with the same element under s116(1)(b)(ii) of the Act being one way of enlivening the court’s power to make a PPO.
33.The court should also find it telling that the application for exclusion and the PPO are applications made under the very same act, and indeed have been filed in the very same proceeding. The Commissioner’s decision to delay his application for a PPO is apt to cause unnecessary costs and delay for both Tran and the court.
34.The only advantage that can arise out of the delay is a tactical one – allowing the Commissioner to take advantage of having previewed rulings that have been made in a very similar matter prior to electing to proceeding with his PPO application. Such an advantage is an illegitimate one. The second trial court is put in an embarrassing position, as either it has its powers limited by the rulings of the first court, or there exists the possibility of creating disparate rulings leading to potentially inconsistent rulings.
35.On the basis of the above matters, the court should strike out the Application for a PPO on this ground as well.
Ground 2b – The application for a pecuniary penalty order should be summarily denied as the Application is made contrary to the prohibition on double punishment by virtue of being pursued after the trial between the Applicant and Respondent on 17-18 November 2014.
36.The principles and facts related above also give rise to a claim that the attempt to obtain a PPO after the exclusion order trial is a breach of res judicata principles developed in the criminal law, which are still applicable in circumstances where there is an attempt to impose civil punishment[38]. As a result, the application should be dismissed as being an abuse of process contrary to the principles of double punishment.
[38]See Environment Protection Authority v Floyd [2004] NSWLEC 2014 at paragraphs 63-65
37.This argument is pursued principally on the limb that such litigation is vexatious and oppressive. The court should rule that the Commissioner, having been involved in attempting to compel forfeiture by resisting Tran’s exclusion application, ought to have pursued their application for a PPO during that trial, rather than having saved up their application for what amounts to further unnecessary litigation[39].
[39]Rogers v R (1994) 181 CLR 251 and R v Carroll (2002) 213 CLR 635
38.The application should be ruled an abuse of process particularly relying upon the following features of the Commissioner’s further prosecution:
a. The application includes the leading of evidence relating to transactions which occurred in May of 2005, being now more than 10 years old; and
b. The re-trial will involve a repetition of Tran’s extensive cross-examination from the first trial; and
c. The re-trial was further delayed by the filing by the Commissioner of the Contested Affidavit on 25 May 2015 – being about 19 months after Tran’s sentencing, and about 8 months after the initial application for a PPO was filed; and
d. Such has been the delay in the Commissioner’s application that Tran has already served the immediate imprisonment portion of her sentence; and
e. The Commissioner had no legitimate reason for delaying the PPO application, as the nature of the charges and lack of conflicting co-offenders were such as to allow both applications to run in the one trial; and
f. Finally, in the exclusion order litigation Tran was successful in excluding her house from potential forfeiture, but the Commissioner’s application, if successful would maker hers a pyrrhic victory, as the house would be forfeited to the Commissioner anyway for the purposes of paying the PPO.
Grounds 3 and 4 – The application for a pecuniary penalty order should be summarily denied because the Commissioner should be denied leave to amend its application for a pecuniary penalty order AND the court should declare that pursuant to section 130 of the Act, the Commissioner’s application for a pecuniary penalty order is worth nil.
39.Finally, the application for the PPO ought to be denied on a further basis – being that the PPO application may only proceed for a claim of up to $65,000.00 as amendments to the figure sought are not in the interests of justice pursuant to section 137 of the Act, or as a result of section 138 of the Evidence Act 2008. Therefore, when considered in combination with the large forfeitures of moneys and jewellery that Tran has already suffered, the amount calculated as being the relevant value of the PPO ought be reduced to nil by virtue of section 130 of the Act.
40.Prior to the filing of the Contested Affidavit, the amount claimed by the Commissioner in its application for a PPO was $65,000.00. However, some 8 months later, the Commissioner filed and served the Contested Affidavit, seeking to increase the amount sought by a further $257,892.00. As deposed to by Tran[40], the approach pursued by the Commissioner has occasioned her significant further legal expenses.
[40]Paragraph 10 of Affidavit of Phuong Tran sworn 11 August 2015
41.Section 136(2) of the Act compels the Commissioner to provide notice of the PPO application by providing a copy of the application and ‘any affidavit supporting the application’ with the notice. Section 136(3) and (4) make provision for the delay of the service of a supporting affidavit upon application to the court to which the application is made; no such application has been made by the Commissioner.
42.Further, section 137(1) and (2) of the Act govern the making of amendments to the application, with subsection (2) providing that the court should not amend the application to include an additional ‘benefit’ unless the court is satisfied that ‘(a) the benefit was not reasonably capable of identification when the application was originally made; or (b) necessary evidence became available only after the application was originally made.’
43.The result of the above provisions should be that the court ought deny the use of the Contested Affidavit in amending the application for a PPO beyond $65,000.00. Sections 136 and 137 of the Act together create statutory protections designed to ensure that applications for PPOs against respondents do not have any unnecessarily oppressive effect by virtue of late increases in the punishment sought to be imposed. There is nothing in the material filed by the Commissioner which would allow the court to find that an order pursuant to section 137 ought to be made allowing leave to amend.
44.Moreover, pursuant to section 138 of the Evidence Act 2008, the court ought to rule that the expert evidence in the Contested Affidavit was obtained as a result of an impropriety. The Commissioner only provided the relevant instructions for the creation of the affidavit on 20 March 2015, despite the requirement under section 136 of the Act to serve any affidavit relied upon in support of its application for a PPO at the time of the making of the application. There is nothing in the material filed by the Commissioner which would allow it to argue that the importance of admitting the evidence is greater than the importance of ruling it as inadmissible.
45.Finally, if the Court were to rule in Tran’s favour that the maximal claim for the PPO application was $65,000.00, then the Court ought also consider and allow Tran’s argument that the value of the PPO should be reduced to less than zero. Tran has forfeited at least $114,470.00 worth of cash and Jewellery, with relevant forfeited Jewellery having been sold for far less than the amounts deposed to in the expert valuation affidavit filed by the Commissioner in the first trial.
46.The effect of section 130(a) of the Act is to reduce the total claimable as a result of a reduction ‘by an amount equal to the value, as at the time of the making of the order, of any property that is proceeds of the offence to which the order relates if: (a) the property has been forfeited, under this Act … in relation to the offence to which the order relates’[41].
[41]Section 130 of the Act
47.As a result, the PPO is reduced to less than zero, and thus the Commissioner’s application for a PPO should be summarily dismissed.
Orders Sought
48.Should Tran be successful in any of her 5 grounds for summary dismissal, then the application for a PPO should be dismissed.
49.The Respondent will seek to be heard on costs upon the court making its ruling.”
The Applicant’s submissions[42]
[42]Exhibit 7 appears in its original form
“APPLICANT’S OUTLINE OF SUBMISSIONS IN OPPOSITION TO SUMMARY JUDGEMENT
A.INTRODUCTION
1.The Commissioner of the Australian Federal Police (Commissioner), opposes the application by Phuong Thi Lan TRAN (Tran) for summary judgment seeking to strike out the Commissioner’s application for pecuniary penalty orders (PPO) pursuant to section 116 of the Proceeds of Crime Act 2002 (Cth) (POCA). The reasons for that opposition are set out below.
B.FACTUAL BASIS FOR TRAN’S APPLICATION
2.The following are the material facts relevant to this application:
a)In March 2009 Tran came to the attention of police who believed she was involved in the importation of heroin into Australia from Vietnam;
b) She became a person of interest in Operation Raptor being an investigation by Victoria Police into heroin trafficking which included Tran’s activities;
c) The criminal activity of Tran identified in Operation Raptor was a number of deliveries of heroin from Sydney by Tran and delivered in Melbourne for her by Kim Thuy Quach ostensibly for sale through Hanh Nguyen to others;
d) In August 2010 a joint operation between Federal, Victorian and NSW police named Operation Rattlesnake further investigated the activities of Tran and the group of people she was acting together with in the commission of the drug trafficking;
e) On 15 April 2011 New South Wales police executed a search warrant at 382 Elizabeth Drive, Mount Pritchard, NSW, which was the residence owned by Tran;
f) There were a large number of items of property belonging to Tran seized pursuant to that warrant including two amounts of cash which totalled Aud $27,000 and numerous items of jewellery including rings, bracelets, necklaces, earrings and precious stones;
g) Following her arrest, Tran was charged with a single charge of between dates trafficking based on her conduct as discovered during Operation Raptor;
h) That charge was:
‘Between 1 June 2009 and 21 August 2009 in Victoria and New South Wales, Phuong Thi Lan Tran did traffic in a controlled drug, namely heroin, contrary to section 302.4 (1) of the Criminal Code (Cth).’
i) The evidence relied on by the prosecution in support of that charge was 3 transactions occurring in the specified period each of approximately 6 oz and in total amounting to 18 ½ oz (518 g) with a total of pure heroin of not less than 100g;
j) In respect of those three transactions the total sale price was expected to be $203,000, and $65,000 was proven to have been received by Tran;
k) On 28 April 2011 the Commonwealth Director of Public Prosecutions sought a restraining order over the Mount Pritchard property pursuant to S.17 of POCA;
l) The Commissioner took over those proceedings on 9 August 2012;
m) On 19 July 2013 Tran pleaded guilty to the trafficking charge and the matter proceeded on an agreed statement of facts;
n) On 26 July 2013 the Commissioner made application for a further restraining order pursuant to S.17 of POCA which was in relation to the personal property and money seized under warrant on 15 April 2011;
o) On 6 August 2013 Tran made application for an exclusion order pursuant to S.31 of POCA in respect of the Mount Pritchard property;
p) On 20 August 2013 His Honour Judge Murphy granted a restraining order over the personal property and real estate specified in the two applications referred to above;
q) Tran was represented at the hearing and did not oppose the making of the restraining order;
r) On 30 August 2013 Tran made application for an exclusion order pursuant to S.31 of POCA in respect of the money and jewellery that was seized on 15 April 2011;
s) On 18 March 2014 (after several extensions of time for Tran to file material) the exclusion applications were listed for hearing on 16 October 2014;
t) Pursuant to S.92 of POCA automatic forfeiture after conviction was to occur on 7 April 2014;
u) On 1 April 2014 consent orders were made extending the time for automatic forfeiture to 6 January 2015;
v) On 18 April 2014 the Commissioner filed an application pursuant to S.134 of POCA seeking a pecuniary penalty order;
w) On 16 October 2014 the hearing date for the exclusion application was vacated and a new date of 17 and 18 November 2014 was set;
x) No request was made by Tran for consolidation of those proceedings with the pecuniary penalty application;
y) Tran’s applications for exclusion (and a compensation order pursuant to S.94A which was filed on 19 September 2014) were heard by His Honour Judge O’Neill on 17 and 18 November 2014;
z) During the hearing orders were made by consent dealing with some of the property which was the subject of the restraining orders;
aa) On 12 December 2014 His Honour Judge O’Neill handed down his decision in respect of the Mount Pritchard property and the remaining personal property;
bb) On 17 March 2015 Her Honour Judge Cohen set down the hearing of the pecuniary penalty order application for 17 September 2015;
cc) On 11 August 2015 a Notice of Opposition was served on the Commissioner raising the matters in dispute in this application;
dd) On 17 August 2015 a Notice of Constitutional Matter pursuant to S.78B of the Judiciary Act 1903 (Cth) was served on the Commissioner;
ee) On 28 August 2015 an amended Notice of Opposition was served on the Commissioner; and
ff) On 1 September 2015 His Honour Judge Murphy gave directions in respect of the hearing of this ‘strike out’ application.
C.WHAT IS THE NATURE OF TRAN’S APPLICATION?
3.In para 13 of Tran’s submissions, this application is described as an application ‘for summary judgment’. It is described as being in the nature of a demurrer ‘pursuant to common law’.
4.A demurrer is a historical concept of ancient pleadings which was abolished in 1883 in Victoria. The concept underpinning it was the ending of an action on a point of law where otherwise parties might incur great expense in trying issues of fact which, when decided, would not determine their rights. In modern times this is achieved by pleading an objection of law and in a sufficiently clear case making application under Court Rules dealing with Summary Judgment see: Odgers Principles of Pleading and Practices, Stevens, 21st ed, 135.
5.In para 13 the concession is made, quite properly, on behalf of Tran that the Civil Procedure Rules of this Court do not apply to proceedings under POCA. Thus there is no jurisdiction to hear an application for summary judgment in these circumstances.
6.Tran purports to rely on the case of General Steel Industries Inc v. Commissioner for Railways NSW (1964) 112 CLR 125. In that case Barwick C J said at p 127:
‘The defendants, by the three separate summonses now heard by me, seek to set aside the writ and the statement of claim in this action, or alternatively, to stay further proceedings thereon upon the grounds that the plaintiff neither has nor discloses a reasonable, or for that matter any, cause of action against the defendants or any of them. For this purpose the defendants each calls in aid the inherent jurisdiction of the Court to prevent the abuse of its process, the provisions of Order 26, r. 18, and those of Order 63, r. 2, of the Rules of this Court.’
7.The only basis for jurisdiction in this case is the analogous power that this Court has to the Supreme Court power dealing with abuse of process. That is used quite sparingly where the consequence is the failure to determine a dispute between the parties.
8.At p 129 Barwick CJ considered the principles applying which are all tests that apply to summary judgements:
‘…the plaintiff ought not to be denied access to the customary tribunal which deals with actions of the kind he brings, unless his lack of a cause of action - if that be the ground on which the court is invited, as in this case, to exercise its powers of summary dismissal - is clearly demonstrated. The test to be applied has been variously expressed; ‘so obviously untenable that it cannot possibly succeed’; ‘manifestly groundless’; ‘so manifestly faulty that it does not admit of argument’; ‘discloses a case which the Court is satisfied cannot succeed’; ‘under no possibility can there be a good cause of action’; ‘be manifest that to allow them’ (the pleadings) ‘to stand would involve useless expense’.’
9.Tran’s application here appears to be based on the principles of double jeopardy, estoppel and the Kable principle.
D. WHAT IS THE KABLE PRINCIPLE
10.The Kable principal was succinctly and clearly defined in the plurality judgment in Attorney-General for the Northern Territory v. Emmerson [2014] HCA 13 at [40]:
‘…The principle for which Kable stands is that because the Constitution establishes an integrated Court system, and contemplates the exercise of federal jurisdiction by State Supreme Courts, State Legislation which purports to confer upon such a court a power or function which substantially impairs the Court’s institutional integrity, and which is therefore incompatible with the Court’s role as a repository of federal jurisdiction, is constitutionally invalid.’
11.The critical point is that the Kable principle is used to strike down State Legislation where a court is one which exercises federal jurisdiction, if the powers or functions in that legislation are incompatible with that Courts institutional integrity. The Kable decision modified a line of authority which held that no constitutional doctrine of separation of powers applied to affect State power over State Courts eg. City of Collingwood v. State of Victoria (No 2) [1994] 1 VR 652.
12.In this case the powers vested in the Court are as a result of POCA which is Commonwealth and not State legislation. Tran has not sought in the submissions to argue that POCA should be struck down because of the principle of separation of powers inherent in the Commonwealth Constitution. Neither is there any basis to do so.
E.WHAT IS THE PRINCIPLE OF DOUBLE JEOPARDY?
13.The most authoritative exposition of the concepts of double jeopardy as they apply to Australia is to be found in Pearce v. The Queen [1998] HCA 57; (1998) 194 CLR 610. In that case at [66] Gummow J made the observation that:
‘…The submissions for the appellant rather assumed that in this country ‘double jeopardy’ was an independent doctrine of avoidance which of itself would found a stay application. That is not the position. Somewhat like notions of unjust enrichment, double jeopardy is a ‘concept’ rather than a definitive legal principle according to its own terms.’
14.Those observations are apposite to Tran’s submissions in this case.
15.The analysis of McHugh, Hayne and Callinan JJ’s represents the orthodox approach to the analysis and application of the concept of double jeopardy. Their Honours made the following critical observations:
a)At [9] their Honour’s state that, ‘The expression ‘double jeopardy’ is not always used with a single meaning. Sometimes it is used to refer to the pleas in bar of autrefois acquit and autrefois convict; sometimes it is used to encompass what is said to be a wider principle that no one should be punished again for the same matter’;
b)At [10] they describe the underlying rationale by adopting Black J’s dictum in Green v. United States 355 US 184, 187-188 (1957):
‘… the State with all its resources and power should not be allowed to make repeated attempts to convict an individual for alleged offence, thereby subjecting him to embarrassment, expense and ordeal and compelling him to live in a continuous state of anxiety and insecurity…’
c)At [11] – [13] they observed that that rationale was subject to three others arising from modern criminal practice;
d)At [15] they said:
‘… it is helpful to consider the stages in the criminal justice process separately, and to deal with issues of double prosecution separately from issues of double punishment…’
e)At [20] they make the critical point that pleas in bar operate through the elements of the crime and not the evidence led:
‘the test for whether a plea in bar would lie as being ‘whether the evidence necessary to support the second [charge or prosecution] would have been sufficient to procure a legal conviction upon the first’. At first sight this might suggest that it is appropriate to consider what witnesses would be called and what each of those witnesses could say about the events which gave rise to the charges. Closer examination reveals that the enquiry suggested is different; it is an enquiry about what evidence would be sufficient to procure a legal conviction. That invites attention to what must be proved to establish commission of each of the offences. That is, it invites attention to identifying the elements of the offences, not to identifying which witnesses might be called or what they could say’; and
At [25]:
‘Shifting attention to whether the offences arise out of the same conduct, or of a single event or connected series of events, would be to substitute for a rule prohibiting prosecution twice for a single offence a rule that would require prosecuting authorities to bring at one time all the changes that it is sought to lay as a result of a single episode of offending. That would raise still further questions. How would a single episode of offending be defined? Would its limits be temporary or would they be founded on the intentions of the actor?’
f)At [31] in considering whether an abuse of process occurred in that case they concluded:
‘There was, however, no abuse of process in charging this appellant with both counts 9 and 10… because the offences are different (and different in important respects) the laying of both charges could not be said vexatious or oppressive or for some improper or ulterior purpose…’
g)At [34] – [39] their Honours consider the underlying policy consideration that informed the application of double jeopardy in the punishment phase;
h)At [40] they stated the general principle which applied to the sentencing phase:
‘To the extent to which two offences of which an offender stands convicted contain common elements it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention, but the punishment to be exacted should reflect what an offender has done…’
16.In the same case Gummow J, while agreeing with the reasoning of McHugh, Hayne and Callinan JJ made some additional observations which are fundamental to the existence of this principle and which inform how it should be applied:
(a) At [53] and [54], His Honour adopted the observation from Rogers v. The Queen as to the legal maxims that underpinned the principles:
i.The public interest in concluding litigation by a judicial determination which is final, binding and conclusive;
ii.the need to accept orders of the Court (unless set aside or quashed) as incontrovertibly correct, and by doing so limiting the scope for conflicting decisions; and
iii.the rule that a man shall not be twice vexed for one and the same cause.
(b) At [66] he set out the application of the rule in Australia: see para 14 above.
F.DO PRINCIPLES OF ESTOPPEL APPLY TO POCA PROCEEDINGS?
17.It is to be noted that while proceedings under POCA are civil in nature they do arise from criminal conduct and in cases involving some matters require a criminal conviction as a foundation. There can therefore be the interaction of principles of both criminal and civil law to be considered.
18.It is well established that civil principles of estoppel do not apply in the criminal law: R v. Storey [1978] HCA 39; (1978) 140 CLR 364. The principle reason being that in criminal trials it is not possible to determine from a general verdict what issues were determined or were not determined: see Storey, 380 (per Gibbs J), 400 (per Mason J) and 424 (per Aicken J [scil Aickin J]).
19.Here Tran seeks to rely on Anshun estoppel. The relevant principles are stated in Port of Melbourne Authority v. Anshun Pty Ltd (1980) 147 CLR 35. That was an action in negligence where the plaintiff sued his employer, Anshun Pty Ltd, and the Port of Melbourne Authority had provided the employer a crane that was involved in his injury. The plaintiff succeeded against both defendants and an order for apportionment was made by the trial judge, on the basis that each defendant was equally liable.
20.The Port of Melbourne Authority then brought a subsequent action against Anshun claiming indemnity from it for the damages it was liable for under the orders in the previous action. That claim was based on a clause in the contract of hire of the crane.
21.The trial judge permanently stayed those proceedings on the basis that the claim could and should have been raised in the first action claiming damages.
22.It is important to note that:
(a) The issue of contribution between the defendants in the first action arose directly out of that action; and
(b) At that trial, a decision was made as to contribution between the defendants which formed part of the Court’s orders.
23.In effect therefor, what the Authority sought to do was to re-litigate the issue of contribution by introducing further evidence that was available at the time of the original determination and could have been relied on then. While this later action may have been on a contract, it was still inextricably linked to the issue of contribution.
24.Ultimately the decision made by the High Court was that the order made in the negligence proceedings in relation to contribution was a final order which disposed of the rights of the parties. This is the touchstone of the Anshun principle – to bring finality to legal proceedings.
25.It has no application where considerations in the two competing actions are such that they are materially different. It is not sufficient that there be common evidence in the two proceedings, what is required is commonality of issues in a context where the decision in the first case bindingly disposes of it in the second.
26.This latter point was made in Storey v. The Queen by Aickin J at 424:
‘…it must always be borne in mind that issue estoppel applies only to issues. There is no estoppel as to evidentiary facts found in the course of determining an issue. There is nothing to prevent a party in a later proceeding in relation to a particular issue of fact negatived in an earlier proceeding, tendering evidence of those same facts directed at a different issue.’
G.STATUTORY INTERPRETATION PRINCIPLES
27.Law in Australia is now dominated by statute law and as a result there has been a shift in approach to the interpretation of statutes since the High Court’s decision in Project Blue Sky Inc v. Australian Broadcasting Authority (1998) 194 CLR 355.
28.The modern approach was stated clearly in R v. Getachew [2012] HCA 10; (2012) 248 CLR 22 at [11]:
‘Since the enactment of the Crimes (Rape) Act 1991 (Vic) (‘the 1991 Act’), the elements of the offence of rape – including that most important of elements, the absence of consent – have been statutorily defined. Consideration of any question about the law of rape in Victoria must [8]* begin and end in consideration of the relevant statutory provisions. Reference to decisions about the common law of rape (whether those decisions were made before or after the enactment of the 1991 Act) is useful only if such reference assists in construing the applicable statutory provisions.’
*Footnote [8] to that paragraph sets out a long line of High Court decision in support of the propositions.
29.Former High Court Justice, Michael Kirby, in a paper entitled ‘STATUTORY INTERPRETATION: THAT MEANING OF MEANING’ 35 MULR 113 examined the development of Statutory interpretation in Australia. After considering some general principles he said at 116:
‘During the past decade or so, the High Court of Australia has unanimously endorsed other principles as necessary to the accurate reading of legislation. Amongst the most important of these principles have been:
·That where the applicable law is expressed in legislation the correct starting point for analysis is the text of the legislation and not judicial statements of the common law or even judicial elaboration of the statue;
·That the overall objective of statutory construction is to give effect to the purpose of Parliament as expressed in the text of the statutory provisions;
·That in deriving meaning from the text, so as to fulfil the purpose of Parliament, it is a mistake to consider statutory words in isolation. The proper approach demands the derivation of the meaning of words from the legislative context in which those words appear. Specifically, it requires the interpreter to examine at the very least the sentence, often the paragraph, and preferably the immediately surrounding provision (if not a wider review of the entire statutory context) to identify the meaning of the words in the context in which they are used.’
Each of these propositions is supported by authorities in footnotes 10 to 12 inclusive.
30.Tran in this case seeks to rely on the principle of statutory interpretation now referred to as the ‘principle of legality’. Recently in X7 v. Australian Crime Commission [2013] HCA 29, French C J and Crennan J at [24] said:
‘The rule of construction… that statutory provisions are not to be construed as abrogating important common law rights and immunities in the absence of clear words or necessary implication to that effect, applies to the examination provisions, involving as they do the abrogation of the privilege against self-incrimination. The rule is based in part, on a ‘working assumption about the legislatures’ respect of the law…’’
31.This is a rule of statutory interpretation and it does not have the effect of making such a provision invalid. It is open to Parliament to abrogate a common law principle so long as the language of the statute makes it clear that that is what is being done.
H.THE GROUNDS
Ground 1 – The application for a pecuniary penalty order should be summarily denied because the application breaches the rule in Port of Melbourne Authority v. Anshun Pty Ltd (1981) 147 CLR 589 by traversing matters raised in the trial between the Applicant and Responder on 17 - 18 November 2014.
32.Tran asserts that issues in the forfeiture application of November are so closely related to those of the PPO application that the two matters should have been heard together. In para 32 of Tran’s submission the alleged identical issues are set out.
33.This ground is misconceived for a number of reasons.
34.First, the proceedings in November 2014 were applications brought by Tran pursuant to S.94 and 94A of POCA to exclude certain items from the restraining orders made 28 April 2011 and 26 July 2013, and for damages for restrained property that is not an instrument of the offence. Thus, in these applications the question was related to determining whether the property that was restrained was used in the commission of the crime or the property was derived from the commission of an offence: see SS.94 (1) and 94A (1) of POCA.
35.Proceedings for PPOs are concerned with determining the value of the benefits the person derived from the commission of the offence and reducing it by reference to various matters e.g. property forfeited by the person as a result of the offending, tax paid on the income and the amount of any fines, etc. paid. The enquiry is aimed at determining the income derived from the criminal activity and converting it to a fine: see S.121 POCA.
36.The two types of proceedings are not related, they deal with different subject matters and may proceed entirely independently of each other.
37.Second, all the matters of similarity pointed to by Tran are evidentiary matters and not issues in the sense of the matters that must be found to make out the elements of a proceeding. As pointed out above at para 27, estoppel applies only to issues not evidentiary facts. Tran seeks to rely on estoppel because of the overlap of evidence not issues, none of which are identified.
(7) The respondent has the right to give and call other evidence;
(8) The applicant bears the burden of proof;
(9) A standard of proof known to the law, the balance of probabilities, applies;
(10) When considering the value of the benefit derived, the Court must take account of the statutory provisions and make its assessment upon its determination of the facts; and
(11) The quantification of the PPO is not arbitrary, it bears a direct nexus to the benefit the offender derived from committing the offence.
50 I am not satisfied that the Kable principle is engaged. Nor am I satisfied that the POCA requires the Court to act at the behest of the Executive without reference to judicial process. There is no basis to find that the POCA offends Chapter III of the Constitution. I am not satisfied that s134(2)(b) is constitutionally invalid. Mr Hume has not explained satisfactorily how the provision of a statutory time limit within which to bring an application for a PPO engages the Kable principle or offends any provision in the Constitution. Nor has he explained how the imposition of a statutory time limit or an extension of that time limit is beyond the power of the Commonwealth.
51 Accordingly, this ground must fail.
(2)Was the application for a PPO filed within the statutory time limit? – Ground 2(c).
52 I have already set out the chronology of relevant events. Since the respondent successfully obtained an “Extension Order”, s134(2)(b) of the POCA prescribed the relevant statutory period within which the applicant could apply for a PPO:
“… if an *extension order is in force at the end of [the period of nine months after the conviction day] - the end of the period of three months after the end of the extended period relating to that extension order.”
53 The enlargement of time provided for in s134(2)(b) accommodates the rights of respondents to forfeiture orders to seek an extension of time within which to seek exclusion of property from forfeiture on the one hand, while also ensuring that the time within which to apply for a PPO does not expire before a determination has been made whether to exclude property from forfeiture on the other. Section 134(2)(b) serves to strike an appropriate balance between the rights of the parties – it ensures that neither party is prejudiced in the event of a respondent successfully seeking an extension order.
54 In the present case, the respondent successfully applied for an exclusion order. By virtue of her adjournment applications, an Extension Order was made. The application for a PPO was made before the expiration of the period referred to in this subsection.
55 Moreover, the respondent has conceded that the application was brought within time,[68] and that if the constitutional validity of s134(2)(b) is upheld, this ground must be dismissed.[69]
[68]T35
[69]T35
56 I am satisfied that the application for a PPO was filed within time. Accordingly, this ground must also be dismissed.
(3)Does “Anshun” estoppel apply so as to prohibit the further prosecution of the application for a PPO? – Ground 1
57 Under cover of this ground, Mr Hume submits, in effect, that the applicant has fragmented the trial process and is now seeking to re-agitate issues that could and should have been litigated and disposed of in earlier proceedings.
58 He invokes the reasoning in “Port of Melbourne Authority vAnshun Pty Ltd”,[70] arguing that issues to be raised in the PPO proceedings were the same as, or similar to, those raised and decided in the sentencing hearing and/or in the forfeiture proceedings. Further, he submits that if permitted to re-agitate these issues, it is possible that inconsistent findings of fact may be made, and that this will bring the administration of justice into disrepute.
[70]Supra
59 Anshun estoppel was recently considered by the Court of Appeal in Slaveska v State of Victoria:[71]
“[194] The test for the application of an Anshun estoppel is one of reasonableness. A party cannot raise an issue in subsequent proceedings in circumstances where that issue was so relevant to the first proceeding that it was unreasonable not to have raised it there. In Gibbs v Kinna, Kenny JA held that the question ‘[w]hether or not it is unreasonable for a party asserting a cause of action in a later proceeding not to have done so in an earlier proceeding depends almost entirely on the particular circumstances’. However, her Honour considered that ‘there are two matters which must first be established before it can be said that the failure to raise a cause of action earlier might be said to have been unreasonable’. First, the cause of action must be one that could have been raised in the previous proceeding. Secondly, it must appear that the same or substantially the same facts will arise for consideration in the second as in the first proceeding.”[72]
[71][2015] VSCA 140
[72]Per Warren CJ, Tate JA and Ginnane AJA – citations omitted
60 Turning first to consider whether any Anshun estoppel arises from the plea and sentence, I note that although it was possible to have invited the sentencing judge to entertain an application for a PPO,[73] no such application was made. However, it could not be said that the same facts or issues arose in the sentencing hearing. At the sentencing hearing, the Court was concerned with imposing a sentence of a severity appropriate in all the circumstances of the offence.[74] As discussed below, his Honour was prohibited, as a matter of law, from taking account of a relevant PPO as a mitigating factor. The issue could not have arisen, in the Anshun sense, as part of the plea and sentence, because s320(d) of the POCA, expressed in mandatory terms, applied:
[73]Section 117(2) of the POCA
[74]Section 16A Crimes Act 1914 (Cth) – and see discussion under next ground regarding matters the sentencing judge was obliged to consider and those he was prohibited from taking into account when determining sentence.
“320A court passing sentence on a person in respect of the person’s conviction of an *indictable offence:
…
(d) must not have regard to any *pecuniary penalty order … that relates to the offence.”
61 Moreover, Mr Hume has not referred to any authority that supports the creation of any civil Anshun estoppel arising from the criminal proceedings against the respondent.
62 In any event, Mr Hume has not explained satisfactorily how, if the application for a PPO was not before his Honour Judge Allen, the subsequent hearing of such an application would traverse issues that either were, or should have been previously determined. I note that there is no mention of any potential forfeiture or PPO proceedings in his Honour’s sentencing remarks,[75] although the prosecution statement of facts, referred to as exhibit A in his Reasons for Sentence, was not tendered before me.
[75]The Reasons for Sentence are attached to exhibit 2, the Affidavit of Emily Nicholson dated 18 September 2014 as “EN-02”
63 Turning to whether any Anshun estoppel applies because of the previous proceedings under POCA, I note that at the time of the hearing before his Honour Judge O’Neill for forfeiture and exclusion from forfeiture orders (17 and 18 November 2014), both parties were aware of the pending application for a PPO, it having been issued and served two months earlier. Neither party sought to have the cases heard together. But that is beside the point. The simple answer to Mr Hume’s argument is that the legislation allows for a PPO to be made notwithstanding that a confiscation order (for these purposes a forfeiture order)[76] might already have been made.[77] Section 134 of the POCA provides:
[76]Section 338 defines a confiscation order as a forfeiture order, a pecuniary penalty order, a literary proceeds order or an unexplained wealth order.
[77]Section 134(5)
“134 (1)A *proceeds of crime authority may apply for a *pecuniary penalty order.
…
(5) An application may be made for a *pecuniary penalty order in relation to an offence even if:
(a) a *forfeiture order in relation to the offence, or an application for such a forfeiture order, has been made; or
(b) Part 2-3 (forfeiture on conviction of a serious offence) applies to the offence.”
64 Further, s116, the same section that confers power on the Court to make a PPO, provides:
“(4) The court’s power to make a pecuniary penalty order in relation to an offence is not affected by the existence of another *confiscation order[78] in relation to that offence.”
[78]See above footnote for definition of “*confiscation order”.
65 The POCA also envisages the possibility of multiple applications for PPOs (if the Court’s leave is granted), although the statute limits the circumstances in which such applications may proceed.[79]
[79]Section 135 of the POCA
66 Mr Hume has not suggested that any one of these provisions is ambiguous. Nor has he explained how Anshun estoppel can override the clear words of the statute.
67 I refer to Director of Public Prosecutions (Vic) v Ali,[80] a case involving the Confiscation Act 1997 (Vic). That case concerned restraining orders under the State scheme. The relevant restraining order had lapsed, and the Director of Public Prosecutions sought further orders in respect of the same property previously restrained. At first instance, the trial judge refused the orders on three grounds, two of which are echoed in the arguments made by Mr Hume. The two relevant grounds were:
[80][2009] VSCA 162
(a) The statute permitted the making of one only restraining order in respect of the same property; and
(b) As the Act interferes with common law property rights, the relevant section must be construed strictly.[81]
[81]At paragraph [5]
68 On appeal, the trial judge’s order refusing the further restraining orders was overturned. In their joint judgment, Maxwell P, Weinberg JA and Kyrou AJA noted the legislative purpose of the Act:
“[36]It can thus be seen that, consistently with the stated purposes of the Act, s 16(2) quite deliberately creates a multiplicity of options for the DPP’s restraining order application. The evident legislative intent was to maximise the opportunities for the DPP to seek a restraining order in respect of particular property, provided always that the DPP could demonstrate a sufficient link between the property and a Schedule 2 offence.”
69 And, later, their Honours observed:
“[39]This interpretation of s 16(2) arises from a plain reading of the provision. It does not require reading in words that are not there, or ignoring any words that are there. Nor does it rely on any inferences being drawn from the order in which the paragraphs appear. His Honour’s construction could have been sustained if s 16(2)(a) had commenced with the words ‘where no charges have been laid and’ or if s 16(2) had contained a statement to the effect a paragraph was applicable only if a later paragraph did not apply. But such qualifications do not appear in s 16(2), and there is no warrant for reading them in.”[82]
[82]Footnotes omitted
70 On the question of whether multiple applications could be made, their Honours stated:
“[47]With respect, we can discern nothing in the language of the Act or in its stated purposes that would justify, let alone require, construing s 16(2) as permitting only a single ‘once and for all’ application for a restraining order in relation to property. As has often been said, it is a strong thing to read words into a statute and in the absence of clear necessity, it should not be done.[83]
[48]For reasons given earlier, the scheme of the Act and the language of s 16(2)(a) convey, unambiguously, Parliament’s intention to maximise the opportunities for the DPP to obtain (subject to proper proof of the qualifying circumstances) a restraining order over property as a precondition of forfeiture. In the circumstances, there can be no warrant for reading into s 16(2)(a) words of limitation which Parliament itself has not included. To do so would be to subvert the scheme which Parliament has enacted.”
[83]French v Queensland Premier Mines Pty Ltd [2006] VSCA 287 at paragraph [32]
71 And, regarding strict interpretation of the Act, their Honours noted that before any question of statutory construction arises, ambiguity in the meaning of the statute must first be identified:
“[55]We have already concluded, for reasons set out earlier, that there is no ambiguity in the language of s 16 of the Act. It follows that there is no room for the application of principles dealing with strict interpretation of ambiguous legislative provisions dealing with forfeiture of property.[84] Likewise, the plain and unambiguous meaning of the provisions leaves no room for the operation of the presumption against legislative interference with vested property rights.[85]
[56]Plainly enough, the Act does interfere with property rights, and modifies many common law protections. Equally clearly, Parliament has done this deliberately. It has enacted a statute which contains its own procedures and protections. The fact that these procedures and protections are not as fair or comprehensive as those under common law does not mean that the courts are at liberty to modify them so that they accord with traditional values.”
[84]Murphy v Farmer (1988) 165 CLR 19 at 27 – 29; Director of Public Prosecutions v Logan Park Investments Pty Ltd (1995) 37 NSWLR 118 at 125 – 127, 130; Jeffrey v Director of Public Prosecutions (1995) 121 FLR 16 at 19; (1995) 79 A Crim R 514 at 517 – 518
[85]Clissold v Perry(Minister for Public Instruction) (1904) 1 CLR 363 at 373; R & R Fazzolari Pty Ltd v Parramatta City Council (2009) 237 CLR 603 at paragraphs [42] – [43]
72 In the circumstances, this ground must fail. The POCA permits multiple applications to be brought as described above. Legislative intent is clear in this regard,[86] and Mr Hume does not submit otherwise. Absent ambiguity in the meaning of any of these provisions, there is no room to read in that Anshun estoppel applies. To do so would subvert the statutory scheme.
(4)Would making a PPO in the present case infringe the rule against double punishment? – Grounds 2(a) and (b)
[86]Further discussion of the objects of the POCA are discussed below
73 Mr Hume submits that because the respondent has been sentenced in respect of the crime to which she pleaded guilty, any further sanction arising from conviction would constitute unjustified “double punishment”. A brief analysis of what is meant by “double punishment” in the criminal law will show that no element of “double punishment” arises.
74 Section 4C of the Crimes Act 1914 (Cth) provides:
“(1) Where an act or omission constitutes an offence:
(a)under 2 or more laws of the Commonwealth; or
(b)both under a law of the Commonwealth and at common law;
the offender shall, unless the contrary intention appears, be liable to be prosecuted and punished under either or any of those laws of the Commonwealth or at common law, but shall not be liable to be punished twice for the same act or omission.”[87]
[87]A similar provision is contained in the Interpretation of Legislation Act 1984 (Vic), s51
75 This section protects a person from double punishment if that person stands charged of multiple offences in respect of the same transaction, yet allows for it “if the contrary intention appears”.
76 Section 4C of the Crimes Act represents the embodiment of a similar principle at common law.[88]
[88]Pearce v R (supra)
77 Here, the respondent pleaded guilty to a single offence and was sentenced in respect of that offence. Neither party appealed.
78 The respondent does not stand charged of any other offence in respect of the transaction(s) that formed the basis of the charge on Indictment. Accordingly, neither the statutory nor the common law principle is engaged.
79 Although an application for a PPO arises from a criminal proceeding, it is not a criminal proceeding and involves no imposition of criminal sanction.[89]
[89]See Director of Public Prosecutions (Cth) v Gay [2015] TASSC 15 at paragraph [71]
80 At the time of sentence, the respondent was not in jeopardy of a PPO being made against her, and no “double jeopardy” point can be maintained either.
81 When sentencing the respondent, his Honour Judge Allen was obliged to apply s16A of the Crimes Act. Subsection (1) provides:
“In determining the sentence to be passed the court must impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence(s).”
82 Subsection (2) then sets a non-exhaustive list of factors that the Court must take into account as are relevant and known to the Court. However, s320 of the POCA also applied. That section provided:
“320 Effect of the confiscation scheme on sentencing
A court passing sentence on a person in respect of the person’s conviction of an *indictable offence:
(a) May have regard to any coorporation by the person in resolving any action taken against the person under this Act; and
(b) must not have regard to any *forfeiture order that relates to the offence, to the extent that the order forfeits *proceeds of the offence; and
(c) must have regard to the forfeiture order to the extent that the order forfeits any other property; and
(d) must not have regard to any *pecuniary penalty order, or any *literary proceeds order, that relates to the offence.”[90]
[90]Items designated with “*” in the POCA indicate that the term is defined in the dictionary contained in s338
83 At the time of sentence, neither a forfeiture order nor a PPO were made, although the respondent was aware that at the very least, forfeiture was sought, the restraining order having been made under s17 of the POCA more than two years earlier.
84 Under cover of this ground, Mr Hume argued that had an application for a PPO been made at the time of sentence, the sentencing judge would have taken it into account in mitigation of penalty. Further, he submitted that because the application for the PPO was not made at that time, the respondent has lost the benefit of a powerful mitigating factor. The simple answer to this submission is that even if a PPO was made at the time of sentence,[91] because of s320 of the POCA, as a matter of law, it could not have counted as a factor in mitigation of penalty. Accordingly, the respondent has not been prejudiced by delay.
[91]See s117 of the POCA – in certain circumstances, a PPO may be made at the time of passing sentence
85 The respondent gave no evidence before me, and I have no explanation of the course that the respondent would have taken had the applications under the POCA been made before the sentencing judge. Be that as it may, the potential loss of this factor as a mitigating factor does not serve to invalidate the provisions of Part 2-4 of the POCA. A harsh outcome is not necessarily an unlawful one.[92]
[92]Director of Public Prosecutions (Cth) v Gay (supra) at paragraph [88], per Estcourt J, when ruling on various provisions of the POCA
86 Apart from the constitutional ground previously raised in respect of s134(2)(b), Mr Hume has not otherwise argued that Chapter 2, Part 2-4 of the POCA, or any provision contained within it, is beyond the power of the Commonwealth.
87 In my view, the problem with Mr Hume’s argument is that it omits a vital step in its development. First, Mr Hume assumed that to deprive a person who has been sentenced in respect of a crime of the benefit derived from that crime constitutes “double punishment”. Then, he jumped to common law principles that he said protected an offender against such “double punishment”. However, if Part 2-4 of the POCA is valid, and I am satisfied that it is, then a discussion about implied common law rights cannot be entertained unless there is ambiguity in the meaning of the relevant provision(s). It seemed to me that much of Mr Hume’s argument focussed on the “principle of legality”, while none of it focussed on any words of any provision said to give rise to more than one interpretation.
88 The “principle of legality” applies only where there is ambiguity in the interpretation of a statute. And, as I stated, Mr Hume has not pointed to any particular provision in which any ambiguity is said to reside, let alone elaborate on the competing interpretations available. Rather, his main complaint seems to be that he considers the legislation harsh on or unfair to his client.
89 As just mentioned, if no ambiguity is present in an otherwise valid, albeit harsh statutory provision, the principle of legality is not engaged. As was observed by French CJ in Momcilovic v R:[93]
“[43]The principle of legality has been applied on many occasions by this Court. It is expressed as a presumption that Parliament does not intend to interfere with common law rights and freedoms except by clear and unequivocal language for which Parliament may be accountable to the electorate. It requires that statutes be construed, where constructional choices are open, to avoid or minimise their encroachment upon rights and freedoms at common law. The range of rights and freedoms covered by the principle has frequently been qualified by the adjective ‘fundamental’. There are difficulties with that designation. It might be better to discard it altogether in this context. The principle of legality, after all, does not constrain legislative power.Nevertheless, the principle is a powerful one. It protects, within constitutional limits, commonly accepted ‘rights’ and ‘freedoms’. It applies to the rules of procedural fairness in the exercise of statutory powers. It applies to statutes affecting courts in relation to such matters as procedural fairness and the open court principle, albeit its application in such cases may be subsumed in statutory rules of interpretation which require that, where necessary, a statutory provision be read down so as to bring it within the limits of constitutional power. It has also been suggested that it may be linked to a presumption of consistency between statute law and international law and obligations.”[94]
(emphasis added)
[93](2011) 245 CLR 1 at [43]
[94]Citations omitted
90 Similarly, as was earlier observed by Allsop P in New South Wales Crimes Commission v Kelaita,[95] a case involving confiscation orders, forfeiture orders and proceeds assessments orders under the Criminal Assets Recovery Act 1990 (NSW):
“[57]From the above provisions, it can be seen that all States, other than New South Wales, have made some provision in relation to possible double counting. Under the Commonwealth provision the property must relate to the offence to which the order relates. The Victorian provision is in relation to an offence. The Queensland provision gives a power to the Court. The South Australian Act requires a relationship between the forfeiture and the proceeds of a particular offence.
[58]The provision by each of the States and Commonwealth reflects the underlying proposition in the reasons above that the matter is one for the express attention of Parliament. It was, and remains, open to the Parliament of New South Wales to legislate in relation to this issue. It is not a matter, in my view, legitimately within the province of interpretation and construction of the statute.
[59]To the extent that the operation of the Act is or remains unfair that is a matter for Parliament to remedy.”[96]
[95](2008) 75 NSWLR 564
[96]Giles and Bell JJA agreeing at paragraphs [62] and [63]
91 Mr Hume argues that a PPO carries an element of punishment, even if it is not punishment under the criminal law. However, the statute seeks to fulfil at least one stated object:
“5 Principal objects
The principal objects of this Act are:
(a) To deprive persons of the *proceeds of offences, the *instruments of offences, and *benefits derived from offences, against the laws of the Commonwealth … .”
92 The PPO provisions of the POCA were recently considered in Director of Public Prosecutions (Cth) v Gay.[97]Estcourt J referred to the Second Reading Speech for the Proceeds of Crime Bill 2002 on 13 March 2002 in the House of Representatives, where –
[97]Supra
‘[71] … the Attorney-General said, amongst other things:
‘The need for strong and effective laws for the confiscation of proceeds of crime is self-evident. The purpose of such laws is to discourage and deter crime by reducing profits; to prevent crime by diminishing the capacity of offenders to finance future criminal activities and to remedy the unjust enrichment of criminals who profit at society's expense ... The provisions are all about accounting for unlawful enrichment in civil proceedings, not the imposition of criminal sanctions. The object or focus of the proceeding is the recovery of assets and profits, not putting people in jail.’”[98]
(emphasis added)
[98]At paragraph [71]
93 Estcourt J ultimately concluded:
“[88]I readily accept that the objects of the Act are to punish and deter and to deprive persons of the proceeds of offences. Equally I accept that it has been frequently observed that the Act and its predecessor the Proceeds of Crime Act 1987 are deliberately draconian. Obviously it is no aid to construction therefore to observe that the outcome of the requirement that the expenses or outgoings a person incurs in relation to an illegal activity are to be ignored may be harsh.”
94 Mr Hume has not explained how, at common law, or as a matter of public policy, an offender is or should be entitled to retain the proceeds of their crime,[99] or the benefits derived therefrom.
[99]To the contrary, at common law, an offender could not benefit from the commission of certain crimes “ex turpi causa non oritur actio”. See also the history of confiscation/forfeiture law as explained by the High Court in Attorney-General (NT) v Emmerson (supra) at paragraphs [15] – [21]. See also Helton v Allen (1940) 63 CLR 691 at 709 – 710
95 The terms of the PPO sought in this case ask the Court to do no more than translate into a dollar value the benefit that the respondent derived from the commission of the offence and order her to pay it. The applicable provisions ensure that there is no “double counting”,[100] and the value of any property subject to a forfeiture order (if referrable to the benefit derived from the offence) is deducted.[101]
[100]Section 132 of the POCA
[101]Section 130 of the POCA
96 The manner in which PPOs are to be determined is governed, principally, by s121 – s132 of the POCA. It may well be that if there is any ambiguity in the interpretation of any of these provisions at trial,[102] I will be called upon to apply the principle of legality, but that is no reason to find, at this interlocutory stage of the proceedings, that any rule against “double punishment” has been infringed. There is no evidence before me to say that the respondent has already faced PPO proceedings, that she will be denied the benefits of reduction of any PPO contrary to the statutory scheme, or that she has been or will be prejudiced in her defence of the application.
[102]As was done in both Director of Public Prosecutions (Cth) v Gay (supra); in Commissioner of the Australian Federal Police v Fysh (2013) 224 A Crim R 523 (the conviction of the offender was subsequently quashed) and in Director of Public Prosecutions (WA) v Mansfield [2006] WASC 246. See also Studman v Director of Public Prosecutions (Cth) (2007) 177 A Crim R 34 at paragraph [34], where the principle of legality although not described as such was held to apply.
97 I should refer to Mr Hume’s argument that Gray v Motor Accident Commission[103] is “unambiguous authority that a later civil punishment engages the principles relevant to double punishment”.[104] In that case, in which exemplary damages were sought, the original defendant had been convicted and sentenced in respect of the conduct the subject matter of the civil proceedings. Mr Hume relies on paragraph [46] of the High Court’s judgment:
“[46]… At first sight, however, if criminal charges, alleging the same conduct as is alleged in a civil proceeding, have been brought and proved, it would be a most unusual case in which it was open to a civil court to conclude that the outcome of those criminal proceedings did not take sufficient account of the need to punish the offender and deter others from like conduct. There seems to be much to be said in favour of the views reached by a majority of the Court of Appeal of New Zealand in Daniels v Thompson that for a civil court to revisit a sentence imposed in a criminal court for the purpose of deciding whether the criminal received his or her just deserts is ‘contrary to principle’ and must ‘undermine the criminal process’.”[105]
[103](1998) 196 CLR 1
[104]Respondent’s submissions at paragraph [21]
[105]Footnotes and citations omitted
98 It is of no assistance to liken the award of exemplary damages to the grant of a PPO. As the High Court observed in Gray, exemplary damages, which are awarded only in the most exceptional cases, are not designed to compensate the plaintiff. That is the purpose of compensatory damages – pain and suffering and pecuniary loss damages. The purpose of exemplary damages is to punish the wrongdoer and deter others from like conduct, but they are not exacted by or paid to the State.[106]
[106]Gray (ibid) at paragraphs [15] and [31]
99 In determining whether to award exemplary damages, the Court must take account of whether their purpose has already been served. In Gray, because the wrongdoer had been convicted and sentenced for his conduct, no relevant purpose could be served by an award of exemplary damages. Further punishment by way of an award of such damages would, in effect, constitute double punishment:
“[40]Where, as here, the criminal law has been brought to bear upon the wrongdoer and substantial punishment inflicted, we consider that exemplary damages may not be awarded. We say ‘may not’ because we consider that the infliction of substantial punishment for what is substantially the same conduct as the conduct which is the subject of the civil proceeding is a bar to the award; the decision is not one that is reached as a matter of discretion dependent upon the facts and circumstances in each particular case.
[41]There are at least two reasons in principle why that is so.
[42]First, the purposes for the awarding of exemplary damages have been wholly met if substantial punishment is exacted by the criminal law. The offender is punished; others are deterred. There is, then, no occasion for their award.
[43]Secondly, considerations of double punishment would otherwise arise. In R v Hoar, Gibbs CJ, Mason, Aickin and Brennan JJ said that there is ‘a practice, if not a rule of law, that a person should not be twice punished for what is substantially the same act’. That practice or rule would be breached by an award of exemplary damages in the circumstances described.”[107]
[107]Footnotes and citations omitted
100 No claim for exemplary damages is sought against the respondent. It is no part of the application for a PPO. The moral turpitude of the offender has nothing to with a PPO. Unlike the assessment of an award for exemplary damages, the quantification of a PPO is reckoned by reference to the benefit derived from the offence in accordance with the method prescribed by statute.
101 If an award of exemplary damages has been made against the respondent, it is a factor that can be accounted for in the PPO. Section 132 of POCA provides:
“The court may, if it considers it appropriate to do so, reduce the *penalty amount under a *pecuniary penalty order against a person by an amount equal to the amount payable by the person by way of fine, restitution, compensation or damages in relation to an offence to which the order relates.”
102 If, at trial there is evidence that the respondent has been fined, ordered to pay restitution, compensation or damages, then these matters will no doubt be raised. But there is no such evidence before me.
103 The relief sought in this interlocutory application can only be granted if there is sufficient evidence before me to find that the applicant’s case is utterly hopeless and foredoomed to fail. At this stage, it is premature to hold that the respondent is in jeopardy of “double punishment” until all the evidence is in. It is only then that an assessment can be made of the dollar value of the benefit derived by the respondent from the offence, the value of any amounts to be deducted (for example from the forfeiture order, or from any fines or award of damages[108]) or the value of other deductions permitted under the statutory scheme. But at the present time, a serious issue is yet to be tried, the evidence is not yet before the Court and it is not possible to say whether the application is utterly hopeless and foredoomed to fail.
[108]Section 132 of the POCA
104 Similarly, at this stage, in respect of this ground, it is not open to find that the PPO proceedings constitute any abuse of the Court’s process.
105 For these reasons, I find there is no substance to this ground.
Other points raised by Mr Hume
The respondent will be prejudiced because she is unable to deduct “expenses” from the benefit derived
106 When asked what expenses the respondent would seek to claim, Mr Hume had no answer, other than to say he would need to seek instructions. Absent evidence about the alleged expenses that the respondent might claim, it is difficult to see how the theoretical possibility of prejudice equates to actual prejudice.
107 Even if the respondent incurred expenses in order to derive a benefit from the commission of her crime, her inability to claim them does not mean the law is invalid or that some other unspecified common law principle is in play.
108 I note that the provisions of the POCA set out a statutory regime and method of calculating the benefit derived. No challenge has been made to the validity of that regime, and Mr Hume has not yet asserted any ambiguity in its meaning.
His Honour Judge O’Neill made adverse findings about the respondent’s credit
109 Mr Hume is concerned that because one judge has found the respondent was not creditworthy, I will be compelled to reach the same conclusion.
110 As I pointed out in discussion with counsel, I will reach my own conclusions about the respondent’s credit based on all of the evidence that will be presented before me. It is to be noted that in the exclusion proceedings before Judge O’Neill, the respondent (as applicant for exclusion) bore the onus of proof. She did not discharge that burden in those proceedings. However, in the proceedings before me, the applicant will carry the overall burden of proof.
111 The elements of the two proceedings – exclusion from forfeiture and PPO – are quite distinct. Although there may be some overlap in the evidence, the principal issue in the PPO hearing, as I apprehend it, will be quantification of the respondent’s benefit derived from the commission of the offence. The principal issue in the exclusion application, on the other hand, was described by his Honour Judge O’Neill:
“[54]The parties have accepted the real issue in this application is whether [Tran’s] interest in the property is not the proceeds of unlawful activity and further, that [Tran’s] interest was lawfully acquired.”
These proceedings constitute an abuse of process
112 Mr Hume submits that I should permanently stay the proceedings on the grounds that they constitute an abuse of process. There is no basis to do so. It is a drastic step “to prevent a litigant from ever prosecuting a particular claim ... especially when that party is a public authority acting in the public interest”.[109] Such an order can be made only in exceptional circumstances, and only where there is no other appropriate remedy to overcome prejudice.
[109]Australian Securities and Investments Commission (ASIC) v Lindberg (No 2) (2010) 26 VR 355
113 This is not a case that brings the administration of justice into disrepute or that undermines confidence in the administration of justice. Having rejected the grounds argued by Mr Hume, there is no other basis to call a halt to these proceedings in which no technical, or other flaw has been identified.
Conclusions
114 None of the grounds advanced by Mr Hume in support of striking down s134(2)(b) as constitutionally invalid are made out.
115 None of the grounds in support of summary dismissal or a permanent stay are established.
Orders
116 The application for summary judgment is dismissed.
117 The application for a permanent stay is dismissed.
118 I will hear the parties on the question of costs.
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