D.P.P. (NSW) v King
[2000] NSWSC 394
•5 May 2000
Reported Decision: [2000] 49 NSWLR 727
[2000] 114 A Crim R 14
New South Wales
Supreme Court
CITATION: D.P.P. (NSW) v. KING [2000] NSWSC 394 CURRENT JURISDICTION: Civil FILE NUMBER(S): SC 010586/00 HEARING DATE(S): 13/04/00 17/04/00 18/04/00 JUDGMENT DATE: 5 May 2000 PARTIES :
Director of Public Prosecutions
Rodney KingJUDGMENT OF: O'Keefe J
COUNSEL : W. Roser (DPP)
P. Byrne S.C..SOLICITORS: Solicitor for Public Prosecutions,
Carroll & O'Dea
265 Castlereagh Street, Sydney
19th Level, 111 Elizabeth Street, SydneyCATCHWORDS: Confiscation of property - Restraining order - Revocation of restraining order - Tainted property - Property used in connection with the commission of a serious offence - Meaning of used - Meaning of in connection with - Power of Court to revoke restraining order LEGISLATION CITED: Confiscation of Proceeds of Crime Act,1989, S.4,43,44,54
Criminal Assets Recovery Act,1990 S.10,12 Supreme Court Rules Part 40 Rule 9CASES CITED: Sultana (1992) 74 A Crim R 27
R. v. Hadadd (1989) 16 NSWLR 476
R. v. Bolger (1989) 16 NSWLR 115
R. v. Presta (CCA, NSW, unreported 21 February 2000)
DPP v. Logan Park Investments Pty. Ltd. (1995) 37 NSWLR 118
Murphy v. Farmer (1988) 165 CLR 19
NSW Crime Commission v. Gardner (Supreme Court, NSW, unreported 3 December, 1999, Adams J.)
R. v. Polain (1989) 52 SASR 526
Taylor v.AG (1991) 52 A Crim R 166
Re Ward (1987) 33 A Crim R 60
DPP v. Garner (Victorian County Court 26 April, 1999, unreported, Kelly J.)
R. v. Rintel (1990) 3 WRA 527
DPP for W.A. v. Farley (Supreme Court, W.A., unreported 17 September, 1996, Heenan J.)
United States v. One 1941 Pontiac Sedan (1948) 83 F Supp. 999DECISION: Restraining and other orders revoked; Plaintiff to pay defendant's costs
THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISIONO'KEEFE J
FRIDAY, 5 MAY 2000
010586/00 - THE DIRECTOR OF PUBLIC PROSECUTIONS (NEW SOUTH WALES) v RODNEY JOHN KING
JUDGMENT1 HIS HONOUR: On 14 March 2000 the Director of Public Prosecutions (DPP) applied ex parte for an order that the proceeds of five cheques totalling $136,910 in value and an amount of $1,090 in cash, being the proceeds of sale of the boat Resolution, not be disposed of or otherwise dealt with until further order, that the Public Trustee take control of the property and that Rodney John King (the defendant) furnish a statement to the Public Trustee setting out particulars of the property derived or realised from the sale of such boat.
2 The application was made under s.43 of the Confiscation of Proceeds of Crime Act, 1989 (the Act) on the basis that the boat Resolution was tainted property within the meaning of the Act and that the proceeds of its sale were, as a consequence, also tainted property.
3 The application was supported by an affidavit from a police officer who deposed to the fact that the defendant had been charged with three counts of the serious offence of aggravated indecent assault against a minor and to his belief that the boat Resolution was tainted property within the meaning of the Act.
4 The material annexed to this affidavit alleged that two of the offences had occurred on the boat Resolution, that the defendant had denied the allegations and suggested that they were motivated by the mother of the minor to obtain victim's compensation.
5 When the defendant was served with the process in accordance with s.44(2) of the Act he made application for the discharge of the orders that had been made. This was done on the basis that although the offences alleged against him were said to have occurred aboard the boat Resolution it was not tainted property within the meaning of that term as defined in s.4 of the Act, because it was not "used in, or in connection with, the commission of” any of the serious offences with which he had been charged.
6 At the hearing of the matter it was common ground between the parties that the boat had not been "used in the commission of" any of the alleged offences. However, the case made by the DPP was that it had been "used in connection with the commission of" them.
7 The facts surrounding the commission of the alleged offences were that the defendant, his wife and family including the female the subject of the charges, had been sailing on the boat Resolution, a 43 foot yacht. The first allegation against the defendant was that between 30 December 1992 and 4 January 1993 after the rest of the family had gone ashore at Manly, he was sailing the boat back to Pittwater with the alleged victim and in the course of this journey the sexual assault the subject of one of the charges occurred. The second relevant allegation was that between 1 January 1992 and 30 June 1992 (sic) whilst aboard the boat Resolution the complainant was sexually assaulted by the defendant in the bedroom of that boat.
8 The case made by the DPP was that it was sufficient to constitute use in connection with such offences if the vessel was the locus in quo, the place where the alleged offences occurred. Senior Counsel for the defendant submitted, however, that more than this was required and that the form of the section, especially in the light of its interpretation in the decided cases, required something active to have occurred with or in relation to the boat before it could be said that there was the necessary nexus established between the commission of the serious offence and the property claimed to be tainted.
9 For property to be tainted it must (so far as relevant to the present case) be "used in, or in connection with, the commission of a serious offence" (s.4). The offences with which the defendant has been charged are serious offences within the meaning of the Act.
10 It is instructive to consider the relevant phrase in the context of the legislative scheme embodied in Division 2 of Part 3 of the Act. Part 3 is concerned with the control of property liable to confiscation. Division 2 (ss.43-57) is concerned with restraining orders and matters consequent on the making of such orders. Section 43 provides that:
(1) "If a person (in this section referred to as "the defendant") has been, or is about to be, charged with a serious offence, an appropriate officer may apply to the Supreme Court, ex parte, for an order in respect of:
2) If:
(a) specified property of the defendant; or
(b) all the property of the defendant (including property acquired after the making of the order); or
(c) specified property of the defendant and all other property of the defendant (including property acquired after the making of the order); or
(d) all the property of the defendant (including property acquired after the making of the order) other than specified property; or
(e) specified property of a person other than the defendant.
(a) an application made to the Supreme Court in reliance on the charging, or the proposed charging, of the defendant with the serious offence is supported by an affidavit of an authorised officer stating that the authorised officer believes that:
(i) the defendant committed the offence; and
(ii) the property to which the application relates is tainted property in relation to the offence or the defendant derived benefits because of having committed the offence, or if the offence is a drug trafficking offence, is the defendant's proceeds of drug trafficking; and
(iii) the property is the property of the defendant, and setting out the grounds on which the authorised officer holds those beliefs; and
(b) the Court considers that, having regard to the matters contained in the affidavit, there are reasonable grounds for holding those beliefs, the Court may, by order:
(c) direct that the property or such part of the property as is specified in the order, is not to be disposed of, or otherwise dealt with, by the defendant or by any other person, except in such manner and in such circumstances (if any) as are specified in the order; and
(d) if the Court considers that the circumstances so require - direct the Public Trustee to take control of the property or such part of the property as is specified in the order."11 The section proceeds to provide that where a person has not been charged at the time the application is made, a restraining order shall not be made unless the Court is satisfied that the person is likely to be charged within 48 hours (s.43(3)). In addition, where the application relates to property of a person other than the defendant, the applicant must establish, inter alia, that the property is subject to the effective control of the defendant and that the defendant has derived a benefit, directly or indirectly, from the commission of the serious offence (s.43(4)). By s.44(2) where the authorised officer who has made an application under s.43 has done so without notifying the person in respect of whose property an order has been made, that person is required to be given notice of the making of the order.
12 Provision is made in s.45 for the Court to make ancillary orders including orders varying the restraining order or the conditions to which the restraining order was subject.
13 Finally, the Court is given power to revoke restraining orders on the application of the person against whom the order has been made, if that person gives security satisfactory to the Court for the payment of any pecuniary penalty that may be imposed on the person in respect of the person's commission of the serious offence or offences which form the basis for the making of the restraining order or if such person gives certain undertakings (S.54). The form of this section equates "the person" who may make the application with "the defendant" in s.43. Furthermore, since the reference to "the defendant" in Division 2 of Part 3 of the Act is restricted to s.43, it is clear that the provisions of s.44, like those of s.54, apply to the person the subject of a charge for a serious offence.
14 The fact that the definition of tainted property deals with two different concepts, namely "used in the commission" and "used in connection with the commission" of a serious offence, indicates that the latter phrase has a wider connotation than the former. This view is supported by authority (R v Polain (1989) 52 SASR 526 at 531-532 per Cox J; Taylor v AG (1991) 52 A Crim R 166 at 174-175 per Debelle J). There must however be a relationship between the commission of the offence and the property in question. That relationship need not be substantial or direct (R v Hadadd (1989) 16 NSWLR 476; Sultana (1992) 74 A Crim R 27), but the need for a connection poses questions of proximity and decree "and must be understood in the light of the word 'used'". The resolution of the question of proximity and degree posed by the section is essentially a question of fact (Sultana supra at 39 per Sully J).
15 In Sultana (supra), Sully J, whilst accepting that the words "in connection with" were words of wide import and "that it was not desirable to attempt to define them with...a hyperrefined exactness", was of the view that "there must be demonstrated in a real sense some connection between the particular offence...and the particular property in respect of which the confiscation order is sought" (supra at 39). That connection must, Sully J thought, be "a proximate connection with the commission of the actual offence". It should be noted, however, that whilst Gleeson CJ (with whom Handley JA concurred) agreed with the orders proposed by Sully J, he did not expressly embrace the precise terminology of Sully J. It is nevertheless reasonably clear from the reasons of Gleeson CJ that he agreed with Sully J that the effect of the words "in connection with" in any given case and context will be a question of fact and degree.
16 In Sultana a large amount of cash was found hidden in three different places in the defendant's premises. Having regard to the statutory presumptions that operated in the circumstances (it being a drug case) and the fact that the defendant was an established drug dealer, the Court was of the view that the finding was open that the money represented the proceeds of drug trafficking and that it had been used in connection with the drug offences for which the defendant had been convicted (supra at 31).
17 The facts in R v Polain are similar in essence to those in Sultana. Cox J determined that two small bags found in the defendant's room had been used to store the relevant drug prior to its being adulterated and re-parcelled into smaller amounts for retail sale, that a substantial sum of money in the defendant's purse was her "cash float for the proposed (retail) sales" as well as "working capital", and that a boxed set of scales located in a chest of drawers had been used to check the weight of the re-packaged drug. These findings of fact gave each of the items such "an intimate relationship" as to bring them within the statutory description of tainted property (supra at 527, 532).
18 More difficult is the situation where the property, be it premises or the like, is merely the place where the offence was committed; the locus in quo and no more. In Taylor v AG (supra) the Court of Criminal Appeal of South Australia considered words in the equivalent South Australian confiscation legislation identical to those presently under consideration. In that case a forfeiture order has been made against certain real estate. The trial judge had held that the real estate against which the order was made was used as the place in and from which trading in drugs was carried out. This finding means that the real estate could, in effect, be seen as the drug shop and thus, in the same way as a grocery store is used in connection with the sale of groceries, so too can the premises in question be seen as used in connection with the sale of the relevant drugs.
19 The analysis of Re Ward ((1987) 33 A Crim R) undertaken by Debelle J. in Taylor v. A.G. (supra) highlights that the application of the phrase "used in connection with the commission of the offence" may differ in circumstances that are superficially similar. Thus, in dealing with an example of a pair of trousers in the pocket of which there was an unlawful drug, Debelle J, whilst questioning whether that fact alone would ensure that the trousers were forfeited, added that the answer to the question whether they were forfeited "might well depend on whether the trousers are an ordinary pair commonly available or whether they had been deliberately made for the purpose of concealing drugs" (supra at 175). Furthermore, he suggested (without deciding) that "even if the trousers were quite an ordinary pair but were used as a convenient means of carrying the drugs for the purpose of sale, they might then be properly said to have been used in connection with the commission of an offence and thus liable to forfeiture" (id). In effect, the purpose to which the trousers were put was relevant to the forfeiture or not of those trousers.
20 This analysis in my opinion, shows the importance of considering each of the elements in the composite phrase, namely, the word "used", the phrase "in connection with" and the further phrase "the commission of a serious offence" and to consider such elements in the context of and as together constituting the whole composite phrase. That there will be difficult cases was recognised by Debelle J. The example he quoted in relation to whether a motor vehicle had been used in connection with the commission of an offence highlights this. To reach a conclusion might, he said "require a nice analysis of the factual situation and it may be necessary to consider whether the driving of the motor vehicle had facilitated the commission of the offence" (supra at 176).
21 The consideration of this last mentioned example by Debelle J reveals thinking of a kind like to that undertaken by Kelly J in respect of the houseboat dealt with in DPP v Garner. Although not finally passed upon by Debelle J, his reasoning rather suggests that the fact that the property, (be it motor vehicle, house, country property or boat) was the place where the offence was committed does not of itself mean that such property was used in connection with the commission of the relevant offence.
22 In DPP v Garner (unreported, 26 April 1999, Kelly J, Victorian County Court) a houseboat was forfeited under provisions like those presently under consideration. The forfeiture was ordered because the houseboat had been used in connection with the commission of a number of serious sexual assaults on adolescent males. Kelly J held that the defendant had used the houseboat to provide the adolescent males on whom the offences were committed "with a pleasurable environment and exciting activities" and that the use of the boat in question was not "a mere incident of the crimes or as providing a locus for them but as an efficient tool of seduction of the boys". The decision focuses attention on the word "used", as part of the composite phrase in question in the present case and suggests that being merely the locus in quo and nothing more is not sufficient for the purposes of the statutory definition of tainted property.
23 A like approach was adopted in R v Rintel (1990) 3 WAR 527 by Pidgeon J - an approach referred to with approval by Heenan J in DPP for WA v Farley (Supreme Court of WA, Heenan J. unreported, 17 September 1996).
24 R. v. Rintel (supra) arose out of the forfeiture of a car and a house as a result of their use in connection with drug offences. Malcolm CJ was of opinion that the car was used in connection with the commission of the offences if it was the means for transporting the drugs to a proposed purchaser or if the drugs were concealed in the motor vehicle itself. He contrasted this situation with a situation in which the drugs were concealed on the person of the offender who was a passenger in the vehicle. In such a case the relationship between the commission of the offence and the motor vehicle would be indirect. In relation to the house the subject of forfeiture, its use "as the place to store, prepare or supply the drugs" in question constituted a use of the premises in connection with the relevant drug offences. He pointed out that "the ordinary meaning of the verb 'to use' is to 'employ for a purpose' and the ordinary meaning of use is 'utilisation or employment for or with some aim or purpose'" (supra at 529).
25 Such a meaning, which I respectfully adopt, would gainsay that the boat in question was used in connection with the commission of the offence charged within the meaning of that word in the definition of tainted property in s.4 of the Act.
26 The importance of the word "used" in the phrase "used in connection with the commission of a serious offence" as indicated by Malcolm CJ can perhaps be illustrated by reference to a situation in which a woman is raped in a public street. The street is undoubtedly the scene of the crime; the place where it occurred; the locus in quo. However, it would be a misuse of language to say that the street was used in the commission of the rape or in connection with its commission. If the postulated crime were to be moved to a vacant allotment which people were accustomed to cross, although it was in private ownership, the same reasoning would apply to such land. In no sense could such land be said to have been used in or in connection with the commission of the crime.
27 Pigeon J said:
"In the present case a statute is being interpreted where the result is forfeiture, in some instances, by way of further punishment. In my view it would be going beyond the intent of the legislation to adopt an interpretation that would result in a liability to forfeiture every time an activity is carried out on that land when in ordinary speech would not be regarded as being so carried out. The position can be contrasted if it was shown that the land or house was used in a way equivalent to a warehouse or possibly if the house was used as a 'safe house'. Cultivation would be a clear use of the land. The mere presence of the drug on the land would not, in my view, be sufficient to regard the land as being 'used'." (at 543)
28 Again the focus on the word "used" resulted in mere presence, the fact that the land was no more than the place where the offence occurred, not being sufficient for the purpose of the statute.
29 In DPP for WA v Farley (supra) Heenan J, in my opinion correctly, viewed the above statement by Pidgeon J as being a limitation on the ambit of the forfeiture provisions presently under consideration arising out of the use of the verb "to use" in the context of land. The reasoning of Pidgeon J would apply equally to a boat if all that occurred was the mere commission of the relevant offence on the boat and the boat was nothing more than the locus in quo. As Heenan J pointed out in DPP v Farley "a sense of proportion must be maintained not only in relation to time and period but also as to the part of the property in question".
30 DPP v Farley is on the other side of the line. In it the premises, in which sexual offences against the young boys had been committed, had been used as a place in which activities "to which boys are naturally drawn such as fixing bicycle chains, doing woodwork and tying knots" were undertaken with a view to gradually seducing them. Thus the premises were effectively a tool or a lure used by Farley for the purposes of his offences. This was sufficient nexus to bring the premises within the statutory definition of tainted property.
31 In R v Bolger (1989) 16 NSWLR 115 a motor vehicle was forfeited as tainted property when it was found that "it had been used to take a prohibited drug to a prearranged place for sale" (supra at 128). The essence of that decision was that the car was the medium of transport for the drugs and thus was used in connection with the drug offences there in question, in much the same way as a truck is used in connection with the delivery of goods from retailer to customer.
32 In R v Haddad (supra per McInerney J.) the vehicle the subject of forfeiture was not just the locus in quo, the place where the offence was committed, it "was an operating tool for the dope pedlar's trade". United States v One 1941 Pontiac Sedan (1948) 83 F Supp 999 at 1002 was the source from which the colourful description used by McInerney J was taken. In that case the United States District Court said that although the automobile the subject of forfeiture had not been used for the actual transportation of narcotics, it had been used to enable "the dope pedlar to make himself more elusive in travelling to places where he meets his customers or confederates", that its use made him "more difficult to trail", enabled him to "travel greater distances" and "helped him escape observation, detection and capture". These characteristics fixed the vehicle with the description of "an operating tool of the drug pedlar's trade".
33 In some of the cases referred to above, the nature of the nexus between the property in question and the commission of the crime has been the primary focus of attention. In others, the nature of the criminal activity and its relationship to the subject property has been the primary focus. This has come about because of the particular facts in each of the different cases. However, the over-arching principle that in my opinion can be extracted from the cases in relation to that part of the statutory definition of tainted property presently under consideration is that some activity connected with the relevant crime must have involved the utilisation or employment of the property with the aim or purpose of committing or furthering the commission of the crime in question. In none of the cases referred to has the mere fact that the property in question has been the place of commission of the crime and nothing more been held to result in the property being tainted property within the meaning of the forfeiture statutes. What is more, a number of the decisions are expressly to the contrary.
34 When an examination is made of the various elements that go to make up the composite phrase under consideration and regard is had to the analyses and exergises in the cases referred to above, the outcome supports the submission made on behalf of the defendant.
35 A statement in R v Presta (Court of Criminal Appeal, NSW, 21 February 2000, unreported) by Grove J with whom G James J agreed, is to the contrary. In that case, Grove J, said that premises that were forfeited were "the very location used in the commission of the crime" and that it was "well nigh impossible to conceptualise any sustainable basis on which he (ie the appellant) could resist" the making of the forfeiture order to which he had consented. However, the case before the court was an appeal against sentence. The forfeiture had been effected by consent and was not the subject of any appeal. Furthermore, it is clear from the judgment that the ambit of the phrase "used in connection with the commission of the offence" was not argued before the Court. Furthermore the full facts may not emerge from the judgment. The statements by Grove J were obiter dicta. In view of this, I do not think that such dicta in R v Presta should be seen as standing in the way of the conclusion to which I come in the instant case.
36 For the reasons set out above I am satisfied that the boat Resolution was not used in connection with the two offences which are said to have been committed on the boat. What has been established by the evidence does not bring the boat within the relevant statutory rubric. It was not in any relevant sense "used" in connection with the commission of the offence. It was no more than the place where the alleged offences took place. Furthermore, the necessary nexus between "the commission" of the alleged offences and the boat is not there; the necessary proximity and degree have not been proved.
37 Accordingly, I am of opinion that, subject to the question of the power of the Court so to do, the order made on 14 March 2000 in respect of the proceeds of sale of the boat Resolution should be rescinded.
38 It was submitted by counsel for the DPP that a first instance judge of this Court does not have the power to set aside an order made under s.43 of the Act. The only power to do so, his argument ran, is that contained in s.45 of the Act. This section enables the Court after a restraining order has been made to "make any ancillary orders that the Court considers appropriate" (s.45(1)). The section further provides that:
"Without limiting the generality of this, the court may make any one or more of the following orders:
(a) an order varying the restraining order in respect of the property to which it relates;
(b) an order varying any condition to which the restraining order was subject."39 His argument proceeded, that these provisions read together with the types of ancillary orders referred to in s.45(1)(c) (order for examination);s.45(1)(d) (with respect to any undertakings given); s.45(1)(e) (concerning the Public Trustee) and s.45(2) which enables the court by order to authorise another court to make an order setting aside the restraining order (s.45(2)(a)), result in an appeal being the only way in which a restraining order can be reversed.
40 I do not agree with this argument advanced on behalf of the DPP in relation to the power of the Court, for two principal reasons. The first is the presence of s.54 in the Act. It provides that:
"If in reliance on the charging, or the proposed charging, of a person with a serious offence, the Supreme Court has made a restraining order, the Court may, on the application to it by the person, revoke the order if the person:
(a) gives security satisfactory to the Court for the payment of any pecuniary penalty that may be imposed upon the person under this Act in respect of the person's conviction for the offence; or
(b) gives undertaking to the satisfaction of the Court concerning the person's property."41 The restraining order presently in force was made in reliance upon the charging of a person with a serious offence. As already indicated, I am of opinion that the person referred to in s.54 is the same person as the defendant referred to in s.43. Section 54, in my opinion, clearly gives to the Court power to revoke a restraining order. The court which has that power, namely a judge of the Supreme Court, is the same Court as has the power to make the order pursuant to s.43 in the first place.
42 Second, the rules of the Supreme Court empower a judge of the Court in certain circumstances to rescind orders it has made. The Act establishes a scheme for the making of orders depriving persons of rights of property, rights which the law recognises and protects. As Kirby ACJ pointed out in DPP v Logan Park Investments Pty Limited (1995) 37 NSWLR 118:43 Statutes providing for the forfeiture of property have conventionally been construed strictly (Murphy v Farmer (1988) 165 CLR 19 at 27). Such an approach to their construction applies to such statutes generally and not just to those provisions under which the ultimate forfeiture is made. Again, as Kirby ACJ pointed out in DPP v Logan Park Investments (supra):
"The right to own and to control property is an important civic right in a society such as ours. Indeed, it is an attribute of economic liberty. The ownership of property is recognised in the Universal Declaration of Human Rights. Article 17 provides:
'17.1 Everyone has the right to own property alone as well as in association with others.
2. No-one shall be arbitrarily deprived of his property.'
Although these provisions are not, as such, part of Australian municipal law, they reflect fundamental principles of the law of civilised countries, including principles upheld by the common law in Australia." (at 125)
"It is not unusual for statutes to provide, including in relief against forfeiture, various successive modes of applying to obtain relief. There is nothing inherently unusual in affording an avenue for relief prior to forfeiture and another after forfeiture has occurred. Relief against forfeiture legislation is typically regarded as beneficial and protective of the rights of individuals. It will not be construed narrowly: see Minister for Lands and Forests v McPherson (1990) 22 NSWLR 687 at 699. In the context of an Act which has provided drastic consequences for certain property owners, it is not immediately apparent that the provision of multiple avenues for relief, at staged intervals according to later and better information, might not be the purpose of parliament." (at 127)
44 That being so the exclusion of the Supreme Court Rules in relation to orders made under the Act, as was argued by counsel for the DPP to be the case, would require clear and unambiguous statutory warrant. That does not exist in the Act. Section 54 does not, in my opinion, have this effect.
45 Furthermore, where a statute provides for a substantive right to make a claim and empowers a particular body to grant or enforce such a claim, the expectation would normally be that the procedures and rules of the body would regulate the making, progressing and granting of the claim. In the instant case the jurisdiction in relation to restraining orders is vested in the Supreme Court and absent a clear legislative provision or expression of legislative intent to the contrary, the rules of the Court would govern the proceedings throughout their course. For example, the form of initiating process, the requirements in relation to affidavits, the service of process, the procedure for entering orders, et cetera are all governed by the rules of court. Moreover, the provisions of s.44(2) clearly envisage the rules of court having a role to play. If this were not so, the words of s.44(2) which require notice to be given "as prescribed...by the rules of court" would have no work to do. This is not a proper mode of statutory interpretation.
46 The comparison between s.45(1) and 45(2) is also relevant in the present context. Section 45(2) empowers the Court to make an order authorising another Court to make an order setting aside the restraining order in respect of the whole or part of the property. Counsel for the DPP submitted that the absence of any equivalent provision in s.45(1) should be taken as an indication of legislative intent that the Supreme Court did not have the power to set aside its own restraining orders. The power of the Supreme Court was restricted, so his argument proceeded, to making ancillary orders and these did not include revoking, rescinding or setting aside the restraining order. However, this submission appears to overlook the power referred to in s.54 of the Act, to which I was not referred by counsel.
47 Furthermore, it would be hard to understand why there should be inferred a legislative intent of the kind submitted by counsel for the DPP. It would be a curious construction of the statute if it were to be read as giving the Court power to delegate the revocation or setting aside of a restraining order, while at the same time denying the Court the power to do so itself.
48 Even if s.54 were not in the Act, the absence of an express power of revocation in s.45(1) would, in the light of the provisions in s.45(2), suggest a source of power outside the provisions of the Act, for example the rules of the Supreme Court. That there may be two gateways to revocation is not inappropriate, as Kirby ACJ pointed out in DPP v. Logan Park Investments (supra at 127).
49 In this regard the relevant provision of the Rules is Part 40 Rule 9. It provides:
"(3) The Court may, on terms, set aside or vary an order -
(a) where the order has been made in the absence of a party, whether or not the absent party is in default of appearance or otherwise in default, and whether or not the absent party had notice of motion for the order; or
(4) In addition to its power under sub-rules (1), (2) and (3), the Court may, on terms, set aside or vary any order (whether or not part of a judgment) except so far as the order determines any claim for relief or determines any question (whether of fact or law or both) arising on any claim for relief and accepting an order for dismissal of proceedings or for dismissal of proceedings so far as concerns the whole or any part of any claim for relief."
(b) where notice of motion for the setting aside or variation is filed before entry of the order.50 The restraining order made on 14 March 2000 was taken out the same day. However, it was made in the absence of a party, namely the defendant. As a consequence, Part 40 Rule 9(3)(a) gives the Court the power to set that order aside. Furthermore, the breath of Part 40 Rule 9(4) is such as also to confer a relevant power, since none of the exceptions referred to in that subrule apply in the instant case.
51 Another possible source of power is that it may fall within the scope of ancillary orders. For the purpose of the present case, it is unnecessary to determine the ambit of the ancillary order power conferred by s.45(1), since the presence of s.54 and the applicability of the Supreme Court Rules in respect of the proceedings are sufficient sources of power.
52 In NSW Crime Commission v Gardner (Supreme Court of NSW, 3 December 1999, unreported) Adams J held that there was power in a judge of the Court to set aside an order made under s.10 of the Criminal Assets Recovery Act 1990. Such power was held to be conferred by s.12 of that Act, which is in terms identical to the provisions of s.45 of the Act. The reasoning of Adams J was that an ancillary order was not limited to one which was supplementary or subordinate to the original restraining order, rather it was one which was ancillary to proceedings undertaken pursuant to the Act. That decision was made in relation to a statute which did not have any equivalent to s.54 in it but supports what is set out above in relation to the possible breath or scope of ancillary orders under the Act.
53 For the foregoing reasons, I am of opinion that there is power in the Court to revoke the restraining order made on 14 March 2000. Subject to the defendant making appropriate compliance with s.54, I propose to revoke that order.
54 I will adjourn the matter until Tuesday, 9 May 2000 at 2 pm to enable the defendant to comply with the requirement of s.54. On that day I will make formal orders in the matter.
55 Formal Orders are:
9 MAY 2000
2. The plaintiff pay the defendant’s reasonable costs as agreed or taxed.
1. The restraining order and the other orders made on 14 March 2000 be revoked.**********
14
7
2