Dickfoss v Director of Public Prosecutions & Ors

[2012] HCATrans 139

[2012] HCATrans 139

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Darwin   No D1 of 2012

B e t w e e n -

MARK WESLEY DICKFOSS

Applicant

and

DIRECTOR OF PUBLIC PROSECUTIONS

First Respondent

NORTHERN TERRITORY OF AUSTRALIA

Second Respondent

ATTORNEY-GENERAL OF THE NORTHERN TERRITORY

Third Respondent

Application for special leave to appeal

FRENCH CJ
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON FRIDAY, 8 JUNE 2012, AT 9.30 AM

Copyright in the High Court of Australia

MR A. WYVILL, SC:   If it please the Court, I appear with my learned friend, MR E.P. AUGHTERSON, for the applicant.  (instructed by Ward Keller Lawyers)

MR M.P. GRANT, QC, Solicitor-General for the Northern Territory:   May it please the Court, I appear for the three respondents with my friend, MR R. JOBSON.   (instructed by Solicitor for the Northern Territory)

FRENCH CJ:   Yes, thank you.  Mr Wyvill.

MR WYVILL: Thank you, your Honour. Your Honour, we are going to deal with this in relation to, firstly, the merits of importance of the construction points, which is paragraphs 2 and 3 of our draft notice of appeal and, secondly, in relation to the merits of importance of the validity points, which are paragraphs 4 and 5 of the draft notice of appeal. In relation to the construction points, they themselves fall into two parts; firstly, section 11(1)(c), which forms two of the three bases upon which the Court of Appeal held the land was crime‑used and then, secondly, in relation to 11(1)(b), and we can conveniently link that with section 45(1)(b) at the same time.

Straight to section 11(1)(c). The Court of Appeal made at least three constructional choices against the appellant and in favour of a broad application of the Act in relation to this provision. First was to find as to whole that there was no need to find any connection between the land and the forfeiture offence. It was sufficient to show an act or omission which was connected to the forfeiture offence had occurred on the land, and that was enough to attract the definition of the property being crime‑used under 11(1)(c).

That is a more expansive approach than was taken by the learned President in the Western Australian Court of Appeal decision in White where it was accepted – albeit we note that that was not a point for decision in that case – in the discussion in that case that there was a need to qualify that apparent construction of subsection (c) on the basis that the involvement of the land could not simply be merely incidental.  The Court of Appeal here, in our respectful submission, has put a far broader construction on it than that.  We say that it is necessary to establish a connection between not just the act or omission and the forfeiture offence, but also the land in order to satisfy 11(1)(c). 

That then leads to the second point of construction which was in relation to the test to be applied.  Your Honours will see this from page 108 of the application book and particularly the first entire sentence on that page which I would invite your Honours to read.

FRENCH CJ:   What does the word “substantial” do or what would it do if you inserted it into ‑ ‑ ‑

MR WYVILL:   It would create a real use.  “Substantial” would need – and this is what Justice Vanstone said in the decision in George – it is sufficiently substantial to justify the application.  In that case it was an instrument, but here the application of the word “use” to the land, sufficiently substantial to justify the conclusion that it is a use.  Your Honours can see at that first sentence on page 108 that what their Honours in fact have done is not, in our respectful submission, construed “in connection with”, but have left that to be decided in any individual case.  That, in our submission, is contrary to the other authorities around Australia, including the authority mentioned in our reply of Thomas v State of New South Wales which talks about the importance of the court, when construing a provision like that, of identifying the value judgment that the statute requires the court to make in relation to “in connection with”.  It is a value judgment that is made in relation to the statute.  It is not a value judgment that ought to be made in each individual case, in our respectful submission.

The third constructional point which was decided against us is that which is seen at page 112 in paragraph [28] of the judgment of the Court of Appeal, and particularly again the first entire sentence where his Honour the Chief Justice considered it appropriate to include within the acts or omissions which can trigger the application of 11(1)(c) surrounding circumstances to the offence, not facts that go to comprise the offence itself, but surrounding circumstances.  Your Honours, in all of these respects the court favoured a broad application of the Act which saw my client captured by the provisions.  If one and two of those points are ruled in our favour, 11(1)(c) would not apply to the applicant.  If three on its own was ruled in our favour, it would not apply to the applicant and the land would not have been crime‑used.

Your Honours, the errors made by the court in approaching the construction that way reflect a failure to follow the decision of this Court in Murphy v Farmer and we, in addition, rely upon the authority which is set out in our bundle of material we have given to your Honours of Tran v Commonwealth.  I will not take your Honours to it, but for the record, references at paragraph 11 of Justice Lander, paragraphs 75 to 76 of his Honour Justices Rares and paragraph 206 of Justice Besanko, all of which list out in detail the authorities of this Court, not just Murphy v Farmer, but of other courts which require a strict approach to be taken to statutes of a quasi‑penal or penal operation like the present.

FRENCH CJ:   In the end, though, it all depends upon the text and the context and purpose of the statute itself.

MR WYVILL:   Yes.

FRENCH CJ:   If the text uses broad language, why should the court insert words which narrow it, because you are wanting the court to insert a word, are you not?

MR WYVILL:   No, your Honour, we are wanting ‑ ‑ ‑

FRENCH CJ:   You are wanting a criterion of substantiality in relation to connection?

MR WYVILL:   Your Honour, we want the court to identify the criterion which has not been identified in relation to “in connection with” and that is clear from the authorities.  In our respectful submission, the court is required to identify the criterion.  The court has here identified a criterion.  It is somewhere between remote and tenuous and direct and immediate.  That is the criterion it has identified.  We say that is not the correct one, and there are choices here and that is our point.  It is not a question of reading in words.  It is a question of giving meaning to the expression “in connection with”, and that is consistent with the authorities referred to in our reply.  Your Honours, for that reason we say that there were constructional choices here and that those authorities we have identified require the choice to be ruled in favour of the applicant. 

I will deal very briefly with 11(1)(b) and section 45(1)(b). If I can take your Honours to, firstly, paragraph (b) of the definition of “crime‑used property”, your Honours, that is at page 10 of the Act, section 11(1)(b). Subsection (b) says:

the property is or was used for storing property that was acquired unlawfully in the course of the commission of a forfeiture offence –

It was held by the Court of Appeal that in relation to the offence of possession that this paragraph had been satisfied and immediately one can see the anomaly of that finding because the offence of possession does not see anybody acquire anything whether lawfully or unlawfully.  Of course, what the Court of Appeal had to do in order to find that section satisfied in relation to the fact of possession of the cannabis was find an earlier forfeiture offence had been committed in relation to the growing of that cannabis, and that was a forfeiture offence which had not been identified at first instance and had not been the subject of any discussion or any evidence in relation to the trial, in relation to which the trial judge made a specific finding that the applicant had not been called to account for that particular matter and therefore no finding could be made against the applicant.

Your Honours, we say that that shows that the 11(1)(b) finding itself is clearly open to challenge, but what that then leads into is the importance of section 45(1)(b).  Section 45(1)(b), if I can just very briefly show that to your Honours by looking at the sections surrounding it.  Section 43(2)(a) is the section which relates to the making of the restraining order.

FRENCH CJ:   This is the complaint about the inadequacy of the grounds?

MR WYVILL:   Yes.

FRENCH CJ:   Was it open to you to seek further particulars of the grounds?  That is a point made against you, I think, is it not?

MR WYVILL:   It was, your Honour.  It was open for that to happen, absolutely, but this is not a question of looking at procedural fairness.  This is a question of whether the Act is being complied with or not and if not complied with, what the consequences of that non‑compliance are.  Of course, we can see the practical impact in this case because there was a forfeiture offence which was relied upon by the Court of Appeal which ought to have been, if it was going to be relied upon, mentioned in the order.  Your Honours, (2)(a) mentions the:

reasonable grounds for suspecting that the property is crime‑used –

and obviously “grounds” relate to something other than the conclusion that it is crime‑used.  Section 45(1)(b), over the page, requires the order to set out:

each ground that the court finds is a ground on which the order may be made.

Importantly, for the efficacy of the objection procedure, if your Honours turn down to page 42, section 63, provisions like, for example, 63(1)(a)(iii), a basis for getting out of the restraining order or the objector to the restraining order to show that:

the objector was usually resident on the property at the time the relevant forfeiture offence was committed or is most likely to have been committed –

If the relevant forfeiture offence is not identified in the order, it is difficult to see how a respondent to the notice which is served can properly respond and object within time.  Similarly, in relation to an innocent party, section 66(1) which requires not just knowledge of the nature of the forfeiture offence, but also of the facts which are relied upon to make the property crime‑used.  For that reason we say that – and this is no particular burden to be imposing on the prosecuting authorities and it is the only protection that somebody has in this situation, the statute is quite clear – the order needs to fulfil the role of giving enough information to enable someone to properly exercise their rights under the Act as an objector.

Before moving on very briefly to the validity points, we say the special leave points in relation to construction issues, first, there are strong arguments in support of the merits, secondly, these provisions are of general application to Western Australia and the Northern Territory and for that reason attract importance and, finally ‑ ‑ ‑

FRENCH CJ:   This statute is modelled on the Western Australian statute, is it?

MR WYVILL:   Yes, your Honour, in all respects save one important one, which I will come to in relation to Kable.  And, finally, that there appears to be differing approaches in courts at intermediate level between construing this statute, which we see in White and in George and in this case, and the other cases like Tran, the Federal Court case in relation to the Fisheries Management Act and the authorities referred to in that and, of course, the question of Murphy v Farmer.

FRENCH CJ:   The Fisheries Management Act has very different provisions, does it not, about section 106 and 106A and so forth, automatic forfeitures and the like?

MR WYVILL:   Indeed, but both Acts have attracted the description of draconian.  They are draconian in different ways.  The principle of construction should not be different, in our submission.

Your Honours, if I may move on then to the invalidity points. Section 50(1), there is under this provision a single process of characterisation, in our submission. Is the law a law with respect to the acquisition of property otherwise than on just terms? We can see that the Northern Territory Court of Appeal dealt with this argument at pages 124 and 125, particularly paragraphs [61] and [63]. If I can sum up what we respectfully submit their reasoning amounts to, two points; firstly, laws with respect to forfeiture of property used in the commission of an offence fall outside the constitutional guarantee, secondly, that this Act was properly characterised as such a law. We say that oversimplifies the question.

FRENCH CJ:   You are bringing in some kind of proportionality criterion?

MR WYVILL:   No, we are not, your Honour, not directly.  Perhaps if I can explain firstly.  What we say first is that one needs to ask the question, is this properly characterised as a law with respect to the acquisition of property and that means looking at its practical effect as well, and regardless of whether there is a proportional relationship between the forfeitures affected here and the advancement of the criminal law which they are intended to advance, if the substance of the matter is that there is also another object in this Act to acquire property to generate revenue for the government, then it attracts the characterisation. 

The characterisation of a law with respect to forfeiture is not a characterisation of exclusion.  But we go further and do say that in relation to characterisation, that if there is an extent to which the law operates, there is a principle that a law with respect to forfeiture will be a characterisation of exclusion.  That cannot be absolute, otherwise it would render the constitutional guarantee nugatory.  What is important is to look at the relationship between the forfeiture and the advancement of the criminal law which the forfeiture is – or the enforcement of the law which is the law supposed to affect.

Your Honours, we accept that there are forfeiture laws which fall wholly outside section 50(1), and we have given your Honours an example. It is found in our authorities at tab 4, which is section 34 of the Misuse of Drugs Act.  This is the forfeiture provision which is contained in the Act which created the forfeiture offences which were the subject of the proceedings below.  It is a standard form forfeiture offence.  The key provision for today is subparagraph (3) which provides that the sentencing court can, upon a finding of guilt, order forfeiture and the key link is found in the last line, your Honours, having identified all the things that might be forfeited if it “relates to that offence”.  It is a discretion and it is a discretion which the sentencing court exercises.

That is an example of what we accept is a law that falls outside the constitutional guarantee.  It does not do so because all forfeiture laws fall outside the constitutional guarantee.  It does so because, using the words of the plurality in Theophanous, its very nature, the very nature of the exaction is incompatible with its characterisation as a law with respect to the acquisition of property.  The very nature of the acquisition here which makes it incompatible with such a description is the fact, and again to borrow from a dicta from this High Court, that the taking is complete.  The purpose is complete at the moment of acquisition, and I am there using the words of his Honour Justice Toohey in Lawler which were repeated by their Honours Justices Toohey and Dawson in Mutual Pools.  Another way of describing it is, to use the words of his Honour Justice Stephen in Trade Practices Commission v Tooth that there is no financial gain enjoyed by the government for its own sake.

FRENCH CJ:   So this is where you are invoking section 10(2), is it?

MR WYVILL:   Of?

FRENCH CJ:   Of the Northern Territory Act?

MR WYVILL:   That is part of it, your Honour, yes.  We invoke 10(2) as an express indication of that being a purpose ‑ ‑ ‑

FRENCH CJ:   How does that section actually work?  It is not a statement of a – there are statements of objective which are in, I think – there a statement of objective in section 3 “to prevent unjust enrichment”, et cetera, although obviously this goes beyond that.  What does 10(2) actually do?  Is it meant to be a ‑ ‑ ‑

MR WYVILL:   Your Honour, it is an object which contains no further detailed regulations or rules in relation to its achievement afterwards.  It is not, for example, like a victim’s levy scheme, where that is the object and then there is a specific scheme put in place where costs are reasonably and appropriately allocated to persons who generate them.  It is stated as a bald proposition, but it is not the subject of any specific regulation ‑ ‑ ‑

FRENCH CJ:   It does not have a substantive legal operation?

MR WYVILL:   Only insofar as the Act itself achieves the generation of substantial revenue, and that is because, as we put it, it is intended to be an abbreviated summary, very effective asset realisation process.  Your Honours, we rely expressly on that subparagraph, but we also rely in any event on the practical operation of the legislation which we say has that outcome.  The discretion obviously will be exercised to target those forfeitures which are likely to generate a substantial net outcome for the Treasury.

FRENCH CJ:   Just coming back to the proportionality, I think at 21.6, you say:

There is no discretion under s 96(1) to ameliorate disproportionality or other substantive unfairness –

That is a fairly common feature of these sorts of provisions, is it not?

MR WYVILL:   It is not common at all, your Honour.  In fact, the study that we have made of it shows that it is shared really only by – and I stand to be corrected if I have got this wrong because there is a lot of statute law on this ‑ ‑ ‑

FRENCH CJ:   What is the amelioration, for example?  You talked about the Fisheries Management Act.  There is no amelioration of discretion there, is there?

MR WYVILL:   No, but that is not a piece of legislation that targets anything other than something which was the core theme used in the offence.  Here we have a target that goes far broader than that, including particularly by 11(1)(c) where if the construction of a Court of Appeal is correct, it means that you do not need to have any use of the land in the offence and it will be forfeited.  It is far broader than anything that has ever – it is unprecedented in its breadth, this legislation, in our submission.

Your Honours, can I just finish the section 50(1) point by showing what we respectfully suggest was the inadequate attempt to characterise this law by the Court of Appeal. It is found at paragraph [63] on page 125. That, on our reading of the judgment, is the only paragraph where the court attempts the process of characterisation of this unique, difficult and complex piece of legislation. Your Honours, we say that the proper process of characterisation is that which was reflected in our submissions at paragraph 21 where we have listed all the matters that the court ought to have taken into account in undertaking that appropriate characterisation process.

Your Honours, may I just slightly supplement two of the points that are made in paragraph 21 of our submissions, particularly at 21.2.  We did not mention but should have mentioned the fact that this statute operates in the context of a whole range of other forfeiture regimes.  Your Honour the Chief Justice has mentioned the Fisheries Management Act.  We have already taken your Honours to the Misuse of Drugs Act.  There is already a plethora of specific existing forfeiture regimes which are not in any way abrogated by this legislation. 

Secondly, at 21.4, would your Honours note specifically that the point I just made earlier about 21.1 – 11(1)(c) which, if it has been correctly construed by the Court of Appeal here, and even if it is wound back to the position suggested by the Court of Appeal in White v Western Australia, it still means that land will be forfeited even though it has not been deployed or used in that sense, as we would understand it, in the forfeiture offence.  Your Honours, may I move then, if that is in order ‑ ‑ ‑

FRENCH CJ:   I think you are just about out of time, Mr Wyvill.  You have just got the Kable point, I think, as the last ‑ ‑ ‑

MR WYVILL:   Yes, your Honour.  May I just deal with that very briefly, your Honour.  The key points we make about this is the ambit of executive

discretion.  That is the major point at the beginning.  We accept authorities like Palling v Corfield have established that, yes, an executive choice is not going to offend Kable principles, but we have here an extremely broad piece of legislation where the choice that is engaged is left with the Executive.  The court’s role is confined to being a gatekeeper.  It does not have any role beyond that.  Once it is said that somebody falls within the capture of the Act, the court’s role is quite functional after that. 

It is the imposition of a penal or quasi‑penal remedy and, finally, this all occurs entirely separate from and without regard to the exercise of the judicial function of sentencing in relation to these offences.  The resultant outcome is inevitably, in our respectful submission, a significant disparity and inequality of treatment between offenders, inevitably of double punishment, the likelihood of excessive punishment and, indeed, because of that, and this case is a good example, the overwhelming of a significance of the exercise of the judicial function of sentencing and hence the undermining of it.

Your Honours, my learned friend will no doubt rely upon DPP v George as an example of a case where similar legislation was upheld on the Kable point.  I just draw your Honours’ attention – I will not take your Honours to it given the time – to paragraph 140 of her Honour Justice Vanstone’s judgment.  It notes that the Attorney-General in South Australia declared that his government expressly eschewed the more draconian – a draconian legislation in Western Australia and chose a more measured eastern version of the legislation.  Your Honours, for that basis, George, in our respectful submission, is distinguishable.  Unless there is something further, your Honours, they are the submissions.

FRENCH CJ:   Thank you, Mr Wyvill.  We will not need to trouble you, Mr Solicitor.

MR GRANT:   May it please the Court.

FRENCH CJ: The applicant seeks special leave to appeal against a decision of the Court of Appeal of the Northern Territory, which dismissed an appeal against orders made pursuant to section 96(1) of the Criminal Property Forfeiture Act (NT), forfeiting to the Northern Territory land jointly owned by the applicant and his father, who has since died.

The applicant had been convicted of the offence of being in unlawful possession of a commercial quantity of cannabis contrary to section 9(1) of the Misuse of Drugs Act (NT). The cannabis was found in and about the house on the land.

The application raises questions about the construction and operation of sections 11(1)(b) and 11(1)(c) of the Criminal Property Forfeiture Act defining “crime used property”. It also raises a question about the sufficiency of grounds set out in an antecedent restraining order made by a judge of the Court under the same Act. The applicant further contends that section 96 offends against the “just terms” requirement of section 50(1) of the Northern Territory (Self-Government) Act 1978 (Cth), and that it invalidly purports to confer a function on the Supreme Court of the Northern Territory which substantially impairs and distorts its institutional integrity.

In our opinion, none of these grounds warrants the grant of special leave. The application by the Court of Appeal of sections 11(1)(b) and 11(1)(c) to the circumstances of the case under appeal was not attended with sufficient doubt to warrant the grant of special leave. The power of the Commonwealth Parliament to make laws for the penal forfeiture of assets unaffected by the “just terms” requirement of section 51(xxxi) of the Constitution applies also to the power of the Northern Territory Parliament to make such laws outside the scope of section 50(1) of the Northern Territory (Self‑Government) Act.

There is no merit, in our opinion, in the remaining contention about the nature of the functions conferred upon the Court by section 96.  Special leave will be refused with costs. 

The Court will now adjourn briefly to reconstitute.

AT 9.57 AM THE MATTER WAS CONCLUDED