Commonwealth Director of Public Prosecutions v Chan

[2001] NSWSC 151

Reported Decision: (2001) 160 FLR 230
(2001) 183 ALR 575
[2001] NSWSC 151
[2001] ACL Rep 325 NSW 142

New South Wales

Supreme Court

CITATION:	COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS v. CHAN [2001] NSWSC 151
CURRENT JURISDICTION:	Common Law
FILE NUMBER(S):	SC No. 12088 of 1998
HEARING DATE(S):	12 - 13 March 2001
JUDGMENT DATE:	13 March 2001
PARTIES :	COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS v. CHAN, Alex - aka - CHAN, Ngoo
JUDGMENT OF:	Greg James J at 1

COUNSEL :	Plaintiff: D.J. Fagan, SC./C.A. Webster Defendant: C. Steirn, SC./G. Jones
SOLICITORS:	Plaintiff: Commonwealth Director of Public Prosecutions Defendant: W. Chan & Co.
CATCHWORDS:	Proceeds of crime - Commonwealth regime - forfeiture six months after conviction - extension of time application - necessity for order before expiration of original waiting period
LEGISLATION CITED:	Proceeds of Crime Act 1987 Crimes & Other Legislation Amendment Act 1997 Acts Interpretation Act 1901
CASES CITED:	Della Patrona v. CDPP (No. 2) (1995) 38 NSWLR 257 CDPP v. Webb [1999] NSWSC 405 DPP v. Lee (1991) 109 FLR 228 CDPP v. Jeffrey (1992) 58 A. Crim. R. 320 DPP v. Logan Park Investments Pty. Limited (1995) 37 NSWLR 118 DPP v. Kant (Badgery-Parker, J., unreported 2 March 1994) NSWCC v. Davies [1999] NSWSC 354 Project Blue Sky Incorporated v. Australian Broadcasting Authority (1998) 72 ALJR 841 Emanuele & Anor v. Australian Securities Commission & Ors (1996-97) 188 CLR 114 Barwick v. Law Society of NSW [2000] HCA 2 Young (1999) 107 A. Crim. R. 1 CIC Insurance Limited v. Bankstown Football Club Limited (1997) 187 CLR 384 Re Bolton ex parte Beane (1987) 162 CLR 514 Saraswati (1991) 100 ALR 193
DECISION:	Order for extension of time made, notwithstanding expiry of original waiting period.

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

No. 12088 of 1998

GREG JAMES, J.

TUESDAY 13 MARCH 2001

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS v.
ALEX CHAN aka CHAN NGOO

JUDGMENT

1   HIS HONOUR: The application and the evidence

2 Application is made by notice of motion dated 15 September 2000 for, inter alia, an extension of time for the making of orders under the Proceeds of Crime Act 1987 (the Act) in consequence of restraining orders having been made in respect of the property of the defendant in favour of the plaintiff, the Commonwealth Director of Public Prosecutions.

3   The application for extension is opposed. It is asserted that the time within which such an application might be granted under the Act has passed. It is necessary for me to decide if any power remains to extend time. I am assured there is no authority on point.

The Act

4   The directly relevant statutory provisions of the principal Act after the amendments to which I will later refer are:-

"s.30(1) If:-
(a) a person (in this subsection called the 'defendant') is convicted of a serious offence (otherwise than by reason of paragraph 5(1)(d));
(b) a restraining order is or was granted in respect of property (whether property of the defendant or of some other person) in reliance on:
(i) the defendant's conviction of that offence; or
(ii) the charging or proposed charging of the defendant with that offence or a related offence;
(c) the restraining order, to the extent to which it relates to the property, is not the subject of a declaration under s.48(4); and
(d) the restraining order is in force at the end of:-
(i) the period of six months commencing on the day of the conviction;
(ii) if an order under s.30A is in force at the end of that period - the end of the extended period;
the property is, under this subsection, forfeited to the Commonwealth at the end of that period, or that extended period, as the case may be.
(2) Subject to subsection (3), where property is forfeited to the Commonwealth by virtue of subsection (1), the property vests absolutely in the Commonwealth.
(3) Where registrable property is forfeited to the Commonwealth by virtue of subsection (1):-
(a) the property vests in equity in the Commonwealth but does not vest in the Commonwealth at law until the applicable registration requirements have been complied with;
(b) the Commonwealth is entitled to be registered as owner of the property; and
(c) the Minister has power, on behalf of the Commonwealth, do so, or to authorise the doing of, anything necessary or convenient to obtain the registration of the Commonwealth as owner, including, without limiting the generality of this, the execution of any instrument required to be executed by a person transferring an interest in property of that kind.
(3A) If registrable property has been forfeited to the Commonwealth because of subsection (1):-
(a) the DPP has power, on behalf of the Commonwealth, to do anything necessary or convenient to give notice of, or otherwise protect, the equitable interest of the Commonwealth in the property; and
(b) any such action by or on behalf of the Commonwealth is not a dealing for the purpose of paragraph (4)(a).
(4) Where property is forfeited to the Commonwealth under this section in respect of a person's conviction of a serious offence:-
(a) the property shall not, except with the leave of the court that made the relevant restraining order and in accordance with any directions of the court, be disposed of, or otherwise dealt with, by or on behalf of the Commonwealth, before the end of the appeal period in respect of the conviction; and
(b) if, at the end of the appeal period in respect of the conviction, the conviction has not been quashed, then, subject to any direction under subsection (4A), the Official Trustee must, as soon as practicable after the end of the appeal period:-
(i) if the property is money - after paying the Official Trustee's remuneration and other costs, charges and expenses of the kind referred to in s.55(1) payable to or incurred by it in connection with the restraining order, pay the remainder of the money to the Reserve as required by s.34B; and
(ii) if the property is not money - sell or otherwise dispose of the property and, after paying the Official Trustee's remuneration and other costs, charges and expenses of the kind referred to in s.55(1) payable to or incurred by it in connection with the restraining order or the sale or disposition, pay the remainder of those proceeds to the Reserve as required by s.34B.
(4A) Where property is forfeited under this section because of a person's conviction of a serious offence, the Attorney-General, or a prescribed officer authorised by the Attorney-General for the purposes of this subsection, may, at or after the end of the appeal period in respect of the conviction but before the property is dealt with under paragraph (4)(b), direct the property be disposed of, or otherwise dealt with, as specified in the direction.
(5) Without limiting the generality of subsection (4A), the directions that may be given pursuant to that subsection include a direction that property is to be disposed of in accordance with the provisions of a law specified in the direction.
(6) Where property is forfeited to the Commonwealth under subsection (1), the Minister may give all directions that are necessary or convenient to realise the Commonwealth's interest in the property.
(7) Without limiting the generality of subsection (6), where registrable property is forfeited to the Commonwealth under subsection (1), the Minister may direct an officer of the Department or a police officer to do anything necessary and reasonable to obtain possession of any document necessary for the transfer of the property.
(8) A reference in this section to the appeal period in relation to the conviction of a person of an offence is:-
(a) in a case where the person is to be taken to have been convicted of the offence by reason of paragraph 5(1)(b) - a reference to the appeal period in relation to the finding of the person guilty of the offence; and
(b) in a case where the person is to be taken to have been convicted of the offence by reason of paragraph 5(1)(c) - a reference to the appeal period in relation to the conviction of the person of the other offence referred to in that paragraph.
(8A) Where a court makes a restraining order in reliance on:-
(a) a person's conviction of a serious offence; or
(b) the charging or proposed charging of a person with such an offence;
a person may apply to the court for a declaration that property that was subject to the restraining order has been forfeited to the Commonwealth under subsection (1) and the court, if satisfied that the property has been forfeited to the Commonwealth under that subsection, shall make a declaration accordingly.
(9) In this section 'appeal period' in relation to a person's conviction of an offence, means the period ending:-
(a) if the period provided for the lodging of an appeal against the conviction has ended without such an appeal having been lodged - at the end of that period; or
(b) if an appeal against the conviction has been lodged - when the appeal lapses or is finally determined.
30A(1) If:-
(a) a person (the 'defendant') is convicted of a serious offence; and
(b) a restraining order is or was granted in reliance on:0
(i) the defendant's conviction of the offence; or
(ii) the charging or proposed charging of the defendant with the offence or a related offence; and
(c) a person makes a s.48 application in relation to the restraining order;
the person mentioned in paragraph (c) may apply to the court for an order extending the waiting period in relation to the defendant's conviction.
(2) Subsection (1) does not apply if the person is taken to have been convicted of the serious offence because of paragraph 5(1)(d).
(3) An application under this section must be made before the end of the waiting period concerned.
(4) Subject to subsection (5), the court may, on an application made under this section, extend the waiting period for such further period as the court specifies. The further period must not, however, be longer than nine months from the end of the waiting period concerned.
(5) The court must not grant an application under this section unless satisfied that the applicant made the s.48 application without undue delay, and has since diligently prosecuted that application.
(6) If the court extends a waiting period, the extended period ends:-
(a) when the period specified by the court ends; or
(b) when the s.48 application is finally determined;
whichever happens first.
(7) If:-
(a) the court makes an order under this section; and
(b) the s.48 application is finally determined within the period of six months starting on the day of the defendant's conviction;
the order under this section stops being in force on the day the s.48 application is finally determined.
(8) In this section:-
's.48 application' means an application under subsection 48(2), (3) or (4).
'waiting period', in relation to a person's conviction of an offence, means the period of six months mentioned in subparagraph 30(1)(d)(i)."

The materials

5   The parties have filed written submissions and a chronology. I have regard to them and to the bundle of documents, Exhibit B, which is an agreed tender bundle, and the transcript of the defendant's conviction, Exhibit C. I set out from that material what I was told by consent by counsel and what appears in transcripts and court record sheets to which I was able to refer by consent during the progress of the matter.

The motion

6   It sought orders varying the restraining order so as to allow for the extension of a mortgage over a restrained asset so as to allow for reasonable legal expenses of the defendant; for the Official Trustee to take custody and control of those proceeds; varying the restraining order to allow for the payment of reasonable past and future legal expenses in defending the proceedings and in respect of any criminal appeal; and for payment of those monies from the monies held by the official trustee; seeking to exclude from the effect of the restraining order certain property of the defendant and by order six as follows:-

"6. Pursuant to s.30A of the Act the 'waiting period' in relation to the defendant's conviction be extended for a period of nine months beyond the end of the existing waiting period."

7   The orders seeking variation invoked s.48.

8   On the notice of motion there was an additional paragraph headed, "Notes - Waiting Period". The note read:-

"9. In relation to extending the 'waiting period' the defendant was convicted on 11 August 2000, the existing waiting period ends 10 February 2001 and the extended waiting period ends 9 November 2001."

9   As to that note it becomes apparent in accordance with my decision in Commonwealth Director of Public Prosecutions v. Webb [1999] NSWSC 405, following the decision in Della Patrona (supra), that the defendant stood convicted on 11 August 2000. Although the learned District Court judge apparently did not administer the allocatur and may not have made a formal note of the conviction, following the jury returning a verdict of guilty, he proceeded that day to remand the accused in custody for sentence at the invitation of the accused's counsel.

The history of the application

10   It appears that prior to the filing of the motion, but after the filing of the summons and granting of the restraining order, on 25 August 2000, by letter sent on behalf of the Director of Public Prosecutions to the solicitor for the applicant, notice was given both of the effect of Della Patrona v. Commonwealth Director of Public Prosecutions (No. 2) (1995) 38 NSWLR 257 and to the construction of ss.30 and 30A contended for, now before me, by the Director of Public Prosecutions. In particular, the Director asserted that an application under s.48(4) (I interpolate, being an application for the variation of the effect of the restraining order) must be heard and determined by the court before forfeiture occurs under s.30, ie. before the expiration of the six month period following conviction. The letter continued:-

"I also draw your attention to s.30A of the Act which provides, inter alia, that a person seeking a s.48 application (defined as an application under ss.48(2), (3) or (4) of the Act) may apply to the court for an extension of the period under s.30 governing the forfeiture of property, for any time up to a maximum of nine months commencing at the expiration of six months from the date of conviction (this six month period is termed 'the waiting period') s.30A(8). An application for an extension of the waiting period must be made and determined before the end of the waiting period concerned (see s.30A(3))."

11   Subsequently, the motion was filed initially returnable at 9.00 am on 9 October 2000.

12   The motion was stood over by consent on 9 October 2000, when it came before Kirby, J. on terms that the plaintiff was to notify what orders sought in the motion he might agree to.

13   The motion came before Hidden, J. on 26 October 2000. It was stood over by consent on the application of the defendant to 23 November 2000 upon terms that the defendant was to serve affidavits in support of the motion by 22 November 2000. There was some correspondence between the parties. On 23 November 2000 affidavits were filed in court. On that day, by consent and on the plaintiff's application, the defendant being ready to proceed, so the court was informed, the matter was by O'Keefe, J., by consent, stood over to 7 December 2000.

14   On 7 December 2000, there was an attendance on behalf of both the Director and the applicant. Sully, J., was informed the application was for legal expenses to enable counsel to be briefed to appear before the Court of Criminal Appeal and that the first return date of the appeal was Monday 11 December 2000. It was noted that the defendant/applicant had filed the material it sought to rely on, that the application was ready to proceed and an early hearing date was sought. His Honour expressed the view that the matter should stand over to 1 February 2001, that being the next day in which the matter could proceed. His Honour referred to a timetable. There was no suggestion put before his Honour as recorded on the transcript that the immediacy of any time bar arising under the legislation had to be considered.

15   Following the appearance before Sully, J. the motion was stood over to 1 February 2001. His Honour had directed that the parties file and serve not later than 4.00 pm on Friday, 15 December 2000, any affidavit or other material upon which they would wish to rely when the matter was next listed and his Honour listed the matter for mention on the adjourned date.

16   There was subsequent correspondence between the solicitors. The letter of 9 January 2001 on behalf of the Director made no reference to the expiry of the time limit under the Act. It did refer to the necessity to file and serve evidence as directed by his Honour. An affidavit was forwarded. There was some problem about the annexures. That led to a further letter from the Director drawing attention to that matter, seeking assistance as to the provision of financial documents and seeking the date by which they would be provided.

17 On 1 February 2001 the matter came before James, J. On that day there were appearances on behalf of the Director and by his solicitor on behalf of the applicant. His Honour was informed by the representative of the Director that the matter was in the list for directions and that there had been a direction for the filing of evidence prior to that date; that although there had been discussion as to information being provided voluntarily, that had not occurred and production orders had been issued returnable the following week, that is, during the week during which, on the Director's submissions, the six month period provided by s.30 of the Act for the making of any relevant order would expire. The representative of the Director sought an adjournment "to give us time".

18   On behalf of the applicant/defendant, the solicitor said:-

"We need to have this matter to be heard as soon as possible. My client is in another matter in the Court of Criminal Appeal. He has no money and needs money that is frozen to pay counsel's fees for the other matter."

19   His Honour was informed that the Director was willing to consent to some exclusion of property but that it would be necessary to prepare orders to be made by consent and "ratified" by the court. Those orders would be made in respect of the matters referred to in the motion as the orders sought numbers 1, 2, 3 and 4. The legal representative of the defendant said, "That should be okay ... I think it should be okay".

20   On behalf of the Director there was an offer made to write to the defendant's solicitors setting that out. His Honour indicated he would make the order and that should be attended to today. His Honour was apparently referring to making the proposed variation, as consented to, urgently. Ms. Sloane for the Director of Public Prosecutions said:-

"The six month waiting period is going to expire this month. The defendant seeks to move and make his application for the extension of that restraining order."

21   The solicitor for the defendant/applicant said, "I have no instruction on that". His Honour stood the matter over for a fortnight to 15 February. On behalf of the Director, Ms. Sloane, said:-

"Might there be an order for the parties to apply on 48 hours notice in view of that expiry date?"

22   His Honour acceded to her application.

23   At this point I note some matters. They are that although Ms. Sloane might have been in error in failing to define with greater precision the expiry date of the waiting period to which she referred as being in the coming week rather than merely during the month, she had taken almost every action she could take, except directing the court's attention to the possibility of the making of an interim order or to the making immediately of an extension order, that she could. His Honour showed an appreciation of the urgency. It appears that the legal representative who attended on behalf of the defendant on that day had simply been ignorant of the imminent expiry of the period and the possible effect of a failure to have the extension order made by the end of the six months.

24   Subsequent to that mention there was correspondence which led to a letter being sent by the defendant's solicitors dated 6 February in respect of a controversy concerning the subject matter of the consent orders by which the defendant's solicitor gave notice of his proposing to have the motion re-listed for further consideration before the duty judge on the Friday immediately following. It is common ground that the date of such proposed listing was 9 February 2001. No mention was made in that letter of any suggestion that an extension would be sought, much less that it needed to be granted that day and it cannot be contemplated that the defendant's solicitor had turned her attention to that matter at all. The six months waiting period from conviction as referred to in the notice of motion under the heading "Notes" and as referred to in the contention of the Director of Public Prosecutions as noted in the letter of 25 August 2000 was due to expire that weekend.

25   By letter faxed on 7 February 2001, Ms. Sloane for the Director referred to the terms of the dispute concerning the matters that it had been expected would be the subject of consent orders and enclosed draft short minutes of order providing for an order for the release of one of the properties in question. She discussed the obtaining of the sought financial documents and an asserted failure that they be supplied. In those circumstances she expressed the view that she was unaware of the basis for the proposed listing of the matter on 9 February and that in the absence of further details of the application to be made on that day, of which she indicated she expected to be told at least 48 hours before any approach to the duty judge, suggested that any further application could wait until the matter was next before the court on 15 February 2001. In both parties' submissions before me it has been accepted that that letter should not be construed as though the writer were at the time of writing the letter conscious of the imminent expiry of the waiting period.

26   On 15 February the matter came before Grove, J. At that point counsel for the defendant for the first time raised the matter which has now led to the question to be decided by me, that is, that the statutory forfeiture of the defendant's property may have occurred at midnight on 10 February whilst the application for extension of time was pending and that therefore no extension could be granted. Ms. Sloane on behalf of the Director so submitted. Counsel appearing for the defendants contended that submission should not be accepted and raised issues including whether or not an effective consent had been given to the variation of the order so as to exclude the property to which I have referred. Counsel referred to the draft short minutes of order provided by Ms. Sloane to the defendant's solicitor. He submitted that the time should run from the date of sentencing of the accused rather than the date which, in accordance with Della Patrona (supra), was the date of conviction which, as I have referred to, was the date of remand for sentence and further set out what had occurred in the efforts of the defendant's solicitor to have the matters dealt with by various judges.

27   It was contended that the defendants had been informed when they sought to have the matter listed "last week" that there was "no time". This is apparently a reference by the defendant's counsel to the attempt to list the matter for hearing on Friday 9 February, but it is apparent when one examines the letters from the solicitors, each to the other, that whatever it was sought to do on that occasion, it had not been then envisaged that the extension of time application would proceed on that occasion.

28   Counsel sought an adjournment "to be able to present a constructive argument based upon evidence and also with legal authority to be able to overcome the position of the Commonwealth". He expressed the view the matter needed to be determined as a matter of urgency. Grove, J. expressed the view, entirely understandably, that if forfeiture had occurred the matter was not a matter of urgency.

29   His Honour granted the adjournment sought by counsel standing the matter out of the list for that day to 1 March. The matter was listed before James, J., on that day. The correspondence between the solicitors thereafter indicated a point of view on behalf of the defendant's solicitor that the orders sough in the motion had to be dealt with as quickly as possible.

30   On 20 February, the original summons initiating the proceedings in which the motion was filed came before James, J. who stood it over to 23 February.

31 In correspondence the Commonwealth Director of Public Prosecutions was notified by the defendant's solicitor that the grounds of appeal, and presumably the written submissions from counsel in respect of the criminal appeal, were required by the court by 16 March 2001. It appears that the urgency to which the defendant's solicitor had referred arose from the lack of other funds to brief counsel on the appeal; from the imminence of that appeal and the dates by which essential steps were required to be taken in order to prosecute the appeal and because even if an extension was granted, as appears from s.30A of the Act, a maximum of a further nine months beyond the expiry of the six months is all that the Act provides by way of extension of time within which to vary the restraining order.

32   On 23 February, James, J. stood the matter before him over for mention on Tuesday, 6 March, reserving the matter of costs. On 1 March, Hulme, J. married the progress of the summons and the motion by standing the matter before him over to 6 March so that the motion and the proceedings on the summons for the restraining order were now before the court simultaneously. On 6 March, James, J. referred the whole matter to the duty judge and it came before me on that day sitting in that capacity. Since it appeared, on one side's contention at least, that it required urgent decision, I arranged for its hearing before me on the following Monday when there was time available to hear it.

The issue

33 It is in that context that the issue of construction presents itself. On that question of construction depends whether the defendant has lost the right to avoid forfeiture of his property. On the Director's submission, no order avoiding that effect can now be made and there is no discretion involved. It can be noted that the plaintiff makes no submission that the defendant's s.48 application was unduly delayed or not diligently prosecuted. Both parties are of the view that s.30A(5) is not to be taken as disqualifying the plaintiff.

34 It is necessary now to turn to the parties' submissions and the legislation. The issue, at least ultimately, appears more starkly than was suggested in the submission propounded by the defendant. It may now be stated with some precision. The issue is whether or not at midnight on 10 February 2001 the property of the defendant, the subject of the restraining order, was forfeited absolutely to the Director by reason of the application of s.30 of the Proceeds of Crime Act 1987 in circumstances precluding any extension of time so as to avoid that effect.

The legislation

35 I have already set out the legislative provisions which are directly relevant. The Act provides for restraining orders to be made in respect of the property of a person charged with certain criminal offences or about to be charged with such offences. Division 2 of Part 3 of the Act deals with the making of such orders and particularly by s.48 with the making of ancillary orders including orders varying the property to which the Act applies. Under s.48(4), the court may, where the property was not used in or in connection with any unlawful activity and was not derived directly or indirectly by any person from any unlawful activity and the defendant's interest in the property was lawfully acquired, by order declare the restraining order, to the extent to which it relates to the property, be disregarded for the purposes of s.30, that is, for the purposes of forfeiture. Such an order would exclude the property from the forfeiture effected by s.30.

36 As the Act stood prior to the amendment effected by the Crimes and Other Legislation Amendment Act 1997, No. 20 of 1997, s.30 provided that in the event of conviction of a serious offence, where a restraining order had been granted, the property restrained was not the subject of a declaration under s.48(4) and the restraining order is in force at the end of the period of six months commencing on the day of the conviction; the property was forfeited to the Commonwealth at the end of that period.

37 Section 30(2) provided that subject to subsection (3), the property, if forfeited under subsection (1), vested absolutely in the Commonwealth. This provision was carried forward after the amendments.

38   As well as being subject to relevant registration requirements deferring vesting, the property will be divested under s.31 or as a consequence of a quashing of the conviction. The subsection does not expressly provide for an absolute indefeasible irreversible forfeiture.

39   Subsection (3) dealt with deferral of the vesting of legal title to permit registration. Subsection (4) provided that, absent the leave of the court, although the property was forfeited it was not to be disposed of or otherwise dealt with by the Commonwealth until the expiry of the appeal period. Subsection (8A) provided for a declaration to be made in favour of the Commonwealth that property had been forfeited. Section 31 provided for a person who claimed an interest in the property where property had been forfeited to apply to the court that had made the restraining order or orders declaring the nature, extent and value of the applicant's interests and if the interest was still vested in the Commonwealth after the forfeiture, directing the Commonwealth to transfer the interest to the applicant; alternatively, declaring an amount equal to the value of the interest to be paid by the Commonwealth to the applicant.

40   It has been persuasively argued that last provision does not indicate some de-feasibility of forfeiture but confirms that forfeiture has occurred and provides for particular statutory machinery for restoration or compensation because of that. It is pointed out that this provision has significance for that reason on the construction question but also because its utility is unavailable to the defendant as an alternative to avoid the effect of the forfeiture since existing authority in Director of Public Prosecutions v. Lee (1991) 109 FLR 228 establishes that it is only available to an applicant who is not the relevant defendant to a restraining order. It is submitted it suggests a statutory scheme providing for a final loss of rights of an applicant on forfeiture. But the effect of s.32, which provides for restoration of forfeited property on the quashing of a conviction, is somewhat of a counter-balance to that submission.

41   Nonetheless, as I pointed out in Webb (supra) and as Hunt, J. pointed out in Commonwealth Director of Public Prosecutions v. Jeffrey (1992) 58 A. Crim. R. 320 at 326, the effect of that legislation, as it was understood to be prior to the amendment, was that notwithstanding an application had been made to the court, and through no fault of the applicant left not dealt with, forfeiture would occur automatically. The inconvenience of this is manifest. The effect on court lists would be to confer on such matters, and they proliferate under both Commonwealth and State statutes, priority, causing a great burden on the efficient management of court time and the risk of inadvertent forfeiture and injustice.

42 It was in recognition of this effect, as appears from the Explanatory Memorandum and the Second Reading Speech, that the amendments to the Proceeds of Crime Act 1987 made by ss.21 to 28 of the Crimes and Other Legislation Amendment Act 1997 were enacted. Essentially two provisions of those amendments as inserted by that Act are of direct relevant. By s.24 of that Act, paragraph 30(1)(d) of the principal Act was amended, by repealing that paragraph and substituting:-

"(d) the restraining order is in force at the end of:-
"(i) the period of six months commencing on the day of the conviction;
(ii) if an order under s.30A is in force at the end of that period - the end of the extended period."

43 Section 30A was also inserted in the Act. It provides for the extension of the waiting period. It provided by subsection (1) that a person who has made a s.48 application, as the applicant/defendant had here, might apply to the court for an order extending the waiting period. This was the order the applicant sought in his motion. By subsection (3), it was provided that an application under this section must be made before the end of the waiting period concerned. Subsection (4) provided that subject to subsection (5) (which, as I have said, dealt with the necessity to act without undue delay and to diligently prosecute the application), the court may on an application for an extension extend the waiting period for such further period as the court specifies, no longer than nine months, from the end of the original waiting period. The section contained provision for the earlier termination of the extended period in the event of the s.48 application being determined. The waiting period as defined by the section means the period of six months mentioned in s.30(1)(d)(i).

44 There are a number of other matters to which attention should be directed. Section 30(1)(d), as inserted by the amending Act, specifically refers to the necessity for the existence of an order under s.30A to be in force at the end of that period. Section 30A makes no express reference to the necessity for that order to be made before the end of the period. It does expressly refer to the application being made before the end of the period. The language does not contemplate and reject the prospect that an order nunc pro tunc or with retrospective effect made after the expiry of the period, on an application lodged prior to expiry of the period but having effect from a time earlier than its making but so that it is thereafter to be considered as having been in force as at the expiry of the period, could be made. It does not expressly rule such an order out. The inclusion of the express reference to an application being made within the period indicates that attention was given to expressing what must necessarily occur in the period. The omission of express attention to the making of the order is of substantial significance.

The arguments

45 Yet, it is the submission of the Director that the necessity for the order to be made within the period, although implicit is clear, as deriving from the words of s.30(1)(d).

46 It is urged upon me by the parties that I should have regard to the provisions of the Acts Interpretation Act 1901 and in particular s.15AA which requires me to construe the legislation so as to promote its purpose. However, they differ as to the precise purpose. It is also submitted that I should turn to s.15AB of that Act which permits me to have regard to the Second Reading Speech and the Explanatory Memorandum to construe the relevant provision in the event that it is ambiguous or obscure or the ordinary meaning, taking into account the context in the Act of the provision and the purpose or object underlying the Act, leads to a result that it is manifestly absurd or is unreasonable.

47 It is urged by Mr. Steirn of senior counsel for the applicant that the provision, that is to say, s.30(1)(d), is ambiguous or obscure in the context of the whole of the amending legislation, considered in the context of the provisions of the principal Act. He says that the purpose or object of the Act, as amended, is to provide for forfeiture of the property but after a reasonable opportunity to be heard in court and that the amending legislation has as its purpose to extend the time within which such proceedings could be heard, ie., the intent was to benefit applicants in the context of a fiscal statute of draconic effect. So he contends that to interpret it as the Director would assert is to deny its essential character and potentially to require a fully contested extension application to have to be heard thus within the already limited time merely to present one further hurdle to having the matter heard within the time, so that if the contested extension was not granted, the variation application would still have to be heard and still within the six months. He contends that the result of such a construction is manifestly absurd or unreasonable and unjust.

48 On the other hand, it is contended for the Director that the provision is clear by reason of s.30(1)(d) since the order cannot be in force unless made and that, entirely reasonably, requires it to be made within the period. It is submitted that the extension application must be made as s.30A(1)(3) requires and also determined in favour of the applicant within the period so as to give effect to the requirement of s.30(1)(d)(ii) and that all that was intended was to provide a limited right to seek an extension.

Extrinsic aids

49   Looking at the Second Reading Speech and the Explanatory Memorandum gives little help. The Attorney's speech at Hansard 7713 refers to the automatic forfeiture and the application to vary the restraining order. He says:-

"But that application must be listed, heard and decided before the end of six months after conviction because many defendants await the outcome of the trial before applying for a variation of the restraining orders. Applications need to be heard and determined within six months and that often places considerable pressure on court lists. The amendments are designed to alleviate that pressure. Where an application for a variation of a restraining order is made within the statutory six month period, the amendments will stay the forfeiture of restrained property until that application has been judicially determined."

50 Mr. Steirn, SC. for the defendant, submits that last sentence confirms that it was intended by the amendments that if one lodged an application for an extension in accordance with s.30A, the effect would be that no order was necessary within the existing waiting period time to preserve the right to proceed on the application for variation provided that the order was made for extension in due course.

51 The Second Reading Speech makes no mention of what appears in the Explanatory Memorandum in addition to what the Attorney said in the House. The Memorandum refers to certain other amendments and in particular in items 24, 25 and 26 refers to the mechanisms for extension of the waiting period. In the discussion of s.30A appears the following:-

"An application for an extension of the waiting period must be made before the end of the waiting period concerned (new s.30A(3)). The application would have to be decided also before the end of the waiting period as once the property is forfeited under s.30(1) an order extending the waiting period cannot be made."

52   The Explanatory Memorandum goes on to refer to the necessity for the extension period always to run from the end of the six months waiting period. It is to be noted that not only does the Attorney-General not refer to these matters but that, as was conceded by senior counsel for the Director, both the Explanatory Memorandum and the Second Reading Speech, when they refer to the amendments staying the forfeiture of restrained property until an application for a variation of a restraining order has been initially determined, seem to be utilising at least loose language as to the incontestable effect of the amendments or are, perhaps more accurately, wrongly describing the effect of the amendments.

53   It is urged by senior counsel for the Director that the Attorney-General simply omitted to refer to the relevant matter and that no guide of utility can be derived from that omission. On the other hand, the matter which is omitted deals with the very matter of substance to which the Attorney is speaking and the provision which display one would expect to the purpose and nub of the amendment.

54   Mr. Steirn of senior counsel for the defendant submits that the Explanatory Memorandum is not stating the purpose ascertained from the language of the legislation but is implying into the legislation words and a concept that are not to be found there. He says that implication is contrary to recognised presumptions of construction and in particular those referred to in Statutory Interpretation in Australia by D.G. Pearce and R.S. Geddes (4th ed.), such as the presumption that legislation will not, in the absence of clear words or necessary intendment, be construed to operate so as interfere with liberty or to deprive a person of their property without adequate compensation or as to interfere with vested proprietary rights. He points to what is referred to in that text at paragraphs 5.11 to 5.17. He cites the observations of Kirby, P. in Director of Public Prosecutions v. Logan Park Investments Pty. Limited (1995) 37 NSWLR 118 at 125-127 emphasising the importance of having regard, in accordance with international obligations as well as the assumptions of domestic law, to the importance of property rights and the necessity to observe the language of the legislation in preference to inconsistent Speeches or Explanatory Memoranda even where there is ambiguity.

55   I find little assistance can be derived from the extrinsic aids of support for the Director's submission. So far as they assist, they appear to support the contention as to the purpose made on behalf of the defendant.

56   Whether there is obscurity, ambiguity or manifest absurdity I am required to give effect to the language in the context of the purpose of the legislation under scrutiny. Even if the construction I regard as appropriate to fit the words and the purpose, might be not in accord with the Attorney's Speech or the Explanatory Memorandum, if that is the construction which best accords with the intention of Parliament as expressed in the language I must prefer it. An example of such an approach can be found in the judgment of Badgery-Parker, J. in Director of Public Prosecutions v Kant & Anor (unreported 2 March 1994).

Recognised principles and presumptions

57   In seeking to find the proper construction, since the language is at least obscure, I should have regard to the recognised principles of statutory construction which can be used to aid a court embarking on the task that I am seeking to perform to determine the purpose of the legislation, that is, both the purpose of the amending Act and the purpose of the principal Act and the effect which, as revealed by the language of Parliament, was intended to be achieved by the effect of the amending Act on the principal Act. In New South Wales Crime Commission v. Davies [1999] NSWSC 354, Studdert, J. applied such an approach in the construction of New South Wales Act there in question and in particular in such a context to consider when a forfeiture would be effected.

58 The position is complicated since this is not merely a case of ambiguity or obscurity here, s.30A and s.30(1)(d) are not apparently in accord.

59   In Project Blue Sky Incorporated v. Australian Broadcasting Authority (1998) 72 ALJR 841, the High Court held that the relevant process of statutory construction must begin by examining the language of the provision in question and that where conflict arises it is to be alleviated, so far as is possibly consistent with the language, by adjusting the meaning of competing provisions to achieve the result best giving effect to the language of those provisions while maintaining the unity of all the statutory provisions. That decision points out that it may be necessary to adopt a hierarchy of provisions by giving value to differing provisions of the legislation in order to achieve the overall purpose and the particular purpose of the provisions and sometimes it is necessary to give each provision the meaning best giving effect to that purpose and the language. That can be done here by having regard to those presumptions referred to by Kirby, P. in Logan Park (supra). Such an approach would permit a construction of s.30(1)(d) allowing for a nunc pro tunc order. Forfeiture in itself does not necessarily negate such a construction.

60   Senior counsel for the Director has drawn my attention to decisions on other statutes construed, so he submits, in accordance with what he submits is the proper approach. He has referred to such cases as Emanuele & Anor v. Australian Securities Commission & Ors (1996-97) 188 CLR 114 which dealt with whether an order nunc pro tunc might be made in circumstances where a requirement for a prior order could be described as a mere procedural mechanism. It is submitted that where the purpose of a provision is not merely procedural or mechanical but substantive, the conclusion must be reached that no nunc pro tunc order might be made. I am not persuaded of the validity of that reasoning. Indeed, an extension of the kind here provided for is not entirely dissimilar to that he refers to.

61   But, it is always the case that one has to have regard to the particular provisions. I am as little assisted by such a categorisation as I was by the applicant/defendant's argument that the matter might be considered by analysing the provisions to see if they were directory or mandatory. In both cases the effect that is referred to is not the starting point of the enquiry but the consequence of the decision as to what the provisions means.

Modern approaches to construction

62   I drew to the attention of the parties various recent authorities on statutory interpretation. These included what had been said by the High Court and in particular by Kirby, J. in Barwick v. The Law Society of New South Wales [2000] HCA 2 (3 February 2000) where his Honour referred to the contemporary endeavour by the courts to avoid excessively literalist construction of statutes to prevent the misfiring of the Parliamentary purpose and the adoption of an approach seeking to promote a purposive interpretation of the legislative text, also what had been said in the Sir Ninian Stephen Lecture delivered at the University of Newcastle on 23 March 1999 by the Chief Justice. In addition I referred the parties to what had been said by the Chief Justice in Regina v. Young (1999) 107 A. Crim. R. 1 at 3 to 9 and what was said by James, J. at 57 to 58.

63   I was not, however, assisted by any specific submission by either counsel referring to the application in this case of what had been there said. Nor do those decisions precisely apply to the problem with which I am presently concerned. However, what his Honour, the Chief Justice, says in Young (supra) in reliance on such cases as CIC Insurance Limited v. Bankstown Football Club Limited (1997) 187 CLR 384 and Project Blue Sky (supra) concerning the necessity for the court to promote the purpose detected in the statute by supplying words omitted so as to permit the clear reflection of the purpose where the purpose would otherwise be obscured by ambiguous or obscure words, is of application to the problem here. His Honour said:-

"If a court can construe the words actually used by the Parliament to carry into effect the Parliamentary intention, it will do so, notwithstanding if the specific construction is not the literal construction and even if it is a strange construction. The process of construction will, for example, sometimes cause the court to read down general words, or to give the words used and ambulatory operation. So long as the court confines itself to the range of possible means or of operation of the text - using consequences to determine which meaning should be selected - then the process remains one of construction.
The construction reached in this way will often be more clearly expressed by way of the addition of words than words actually used in the legislation. The references in the authorities to the court 'supplying omitted words' should be understood as a means of expressing the court's conclusion with clarity, rather than as a description of the actual reasoning process which the court has conducted. In all cases what the court has done is to construe the words actually used in their total context."

64   His Honour does discuss the reading down process in the context of identifying the draftsman's linguistic register further in that decision and concluded that it was not in his opinion appropriate to take an expression of intention from extrinsic materials to supply the omission by the draftsman when the result cannot reasonably be deduced from the words actually used by a recognised technique of construction. In particular he makes reference to Re Bolton ex parte Beane (1987) 162 CLR 514 and the reference in the words of Mason, CJ., Wilson and Dawson, JJ. at 518 to the necessity not to substitute the words of the Minister for the text of the law, particularly where the intention stated by the Minister but unexpressed in the law, is restrictive of the liberty of the individual, one of the matters for the upholding of which those prescriptions of construction, I have referred to, developed. The passage his Honour cites continues:-

"It is always possible that through oversight or inadvertence the clear intention of the Parliament fails to be translated into the text of the law. However unfortunate it may be when that happens, the task of the court remains clear. The function of the court is to give effect to the will of Parliament as expressed in the law."

65   I apply to these provisions those observations.

Conclusion

66   Where, as here, whether there be an omission or conflict, ambiguity or obscurity but to construe the provisions as the defendant contends can fit the language and avoid offending against such recognised important presumptions, where the purpose of the provision I detect from the language of the statute would be served by the construction, I should prefer it.

67 In my view the language of s.30(1)(d) does not unequivocally, unambiguously exclude the prospect that an order might be made outside the operation of the original waiting period. Nor, in my view, does that of s.30A. The purpose of the amending legislation was to permit of an extension to the period being granted so that the pressure on court lists might be alleviated and so that an application might properly be brought. It was not, in my view, to pose an additional hurdle.

68   In accordance with the accepted presumptions and in the light of the inconvenience of the automatic forfeiture effect that had been referred to in the case law prior to the amendment, which was the mischief the amendment sought to cure, I find it difficult to accept that the legislation had as its purpose automatic forfeiture when a court, for whatever reason, had been unable to deal with an application made well within time. That would be inconsistent with the presumptions concerning the effect of statutes operating to confiscate, without compensation, property. If it were necessary to supply some deficiency to resolve an ambiguity or obscurity, it is perfectly clear on the authorities that in order to accord with the purpose, as I understand it, of the legislation, I should do so. Even where the language was clearer than here, McHugh, J. in Regina v. Saraswati (1991) 100 ALR 193 said that it was open to a judge where the literal or grammatical meaning of a provision did not conform to the legislative purpose as ascertained from the statute to give effect to the purpose by addition to, omission from, or clarification of a particular provision.

69 Notwithstanding what is submitted by the Director, I am of the view that s.30(1)(d)(ii) does not by its express language exclude, nor should it be considered by implication, in context, to exclude the making of an order after the expiration of the initial six month period when construed in accordance with the purpose, as I have determined it to be, of the amendments and having regard to the purpose of the principal Act. I hold that the provision should be construed so as to permit the application for extension to be granted notwithstanding the expiry of the original waiting period.

70   Therefore I make an order in accordance with paragraph 6 of the notice of motion. I note that the waiting period so extended would expire on 9 November 2001.

Costs

71   On the costs question it has been submitted that the applicant/defendant should have the costs not only before me but of an aborted hearing which extended for a day before James, J. In response it has been put that although it is conceded that the Director should pay the costs of the argument before me, that is, of one argument on this question, it having fought on the one question and been unsuccessful, it is not conceded that it should pay the costs, including the costs of that aborted hearing.

72   It is submitted that, firstly, the necessity to have a contested hearing of this kind entirely arose from the failure of the legal representatives of the applicant/defendant to bring on the application for extension of time prior to the expiry of the six months waiting period in which case this question would not have had to be resolved. It is submitted that in any event the urgency with which the matter has had to be dealt with by James, J. (who ran out of time when he had to commence another matter) and in consequence, by me, which has occasioned me having to furnish this decision extempore immediately following on the conclusion of the additional argument this morning, were entirely of the making of the applicant/defendant or his legal representatives. It is submitted that the aborted hearing would not have had to occur nor abort absent the urgency which had been created by the applicant/defendant or his legal representatives.

73   On the other hand, it is clear that the Director knows the parlous position in which a party can be placed as to costs bearing in mind that this is an application for legal expenses to be paid out of the restrained property of the applicant/defendant. It is a curious position that the opponent can deny out of the estate of another the provision of legal expenses for the very litigation between them but that is, of course, how this Act is designed to have effect. Suffice it to say that the Director joined issue before James, J. without seeking that the matter be removed to some other judge who might have had more time and in any event it must have been clear that there would have been a real problem in obtaining any such judge considering the court's normal commitments.

74   I cannot see that those costs therefore should be exempted out of the general overall provision for costs and I therefore order that the Commonwealth Director of Public Prosecutions pay the costs not only of the hearing before me but also of the hearing before James, J. subject to, however, the Director making such application as it may be advised for some such relief that might be afforded, for instance, under the Suitors Fund Act.

********

Last Modified: 03/19/2001