Director of Public Prosecutions for the State of South Australia v Dansie

Supreme Court of South Australia
(Civil)
DIRECTOR OF PUBLIC PROSECUTIONS FOR THE STATE OF SOUTH AUSTRALIA v DANSIE
[2023] SASC 21
Decision of Judge Dart a Master of the Supreme Court
CRIMINAL LAW - PROCEDURE - CONFISCATION OF PROCEEDS OF CRIME AND RELATED MATTERS - RESTRAINING OR FREEZING ORDER - VARIATION GENERALLY
CRIMINAL LAW - PROCEDURE - CONFISCATION OF PROCEEDS OF CRIME AND RELATED MATTERS - FORFEITURE OR CONFISCATION - DISCRETION TO MAKE ORDER - GENERALLY
Respondent owner of property at Waterfall Gully - property subject to a restraining order made in the District Court under the Criminal Assets Confiscation Act - respondent seeks to exclude the property from the operation of the restraining order - s 34 permits exclusion - relevant criteria for exclusion not established by the respondent - application for exclusion dismissed.
Held:
1. Application to exclude the Waterfall Gully property from the operation of the restraining order dismissed.
Criminal Assets Confiscation Act 2005 (SA) s 7(1)(a), s 24, s 34 and s 95(1); Real Property Act 1886 (SA) s 74, referred to.
R v Dansie [2019] SASC 215; Dansie v The Queen [2020] SASCFC 103; Dansie v The Queen [2022] HCA 25; Wright v Gibbons (1949) 78 CLR 313; Cassegrain v Gerard Cassegrain & Co Pty Ltd (2015) 254 CLR 425; Corin v Patton (1990) 169 CLR 540; Re Stone [1989] 1 Qd R 351, considered.

DIRECTOR OF PUBLIC PROSECUTIONS FOR THE STATE OF SOUTH AUSTRALIA v DANSIE
[2023] SASC 21

This is the respondent’s application seeking orders that certain real property owned by him be excluded from the operation of orders made pursuant to the Criminal Assets Confiscation Act 2005 (“the Act”). The application is dismissed.
Background
The respondent was found guilty of the murder of his wife following a trial before a Judge without a jury.[1] An appeal to the Full Court failed.[2] An appeal to the High Court was allowed.[3] The effect of the High Court decision was to set aside the judgment of the Full Court but not the conviction for murder. The High Court remitted the matter back to the Court of Appeal for a rehearing of the appeal. That hearing has not yet taken place. The respondent remains guilty of the murder of his wife.
[1]    R v Dansie [2019] SASC 215.
[2]    Dansie v The Queen [2020] SASCFC 103.
[3]    Dansie v The Queen [2022] HCA 25.
On 10 July 2017 a Judge of the District Court made a restraining order on the application of the Director of Public Prosecutions (“the DPP”). The order restrained the respondent from dealing with:
1.a residential property at 86 Waterfall Gully Road, Waterfall Gully;
2.a rural property at Lot 21 Stone Road, Padthaway; and
3.a rural property at Lot 336 Seppelts Road, Padthaway.
The Waterfall Gully property was the residential property of the respondent and his wife. At the time of her death the respondent and his wife were registered as joint proprietors. After the death of his wife, the respondent had the property transmitted into his name alone.
By application (FDN 41) the respondent sought to have all three properties excluded from the operation of the restraining order. On the day of the hearing the position changed. The respondent only pressed for the release of the Waterfall Gully property (“the property”). That is the only relevant property for present purposes.
The application is opposed by the DPP. It is also opposed by the interested party. He is the son of the respondent. He obtained a grant of letters of administration in respect to his mother’s estate. The grant is limited. It relates solely to the getting in and preservation of the assets of his mother’s estate.
Separate Supreme Court proceedings have been issued by the son in relation to his mother’s estate.[4] Those proceedings are largely dormant and await the finalisation of the criminal proceedings against the respondent. The District Court action in which the restraining order was made has been transferred to this Court to travel concurrently with the Supreme Court action.
[4] Dansie v Dansie SCCIV-19-1530.
The statutory scheme
The initial application made by the DPP sought a restraining order in respect of the property of the respondent. The relevant provision of the Act is:
24—Restraining orders
(1) A court must, on application by the DPP, make an order (a restraining order) that specified property must not be disposed of or otherwise dealt with by any person (except in the manner and circumstances, if any, specified in the order) if satisfied that—
(a)     a person has been convicted of, or has been charged with, a serious offence, or it is proposed that the person be charged with a serious offence; or
(b)     a person is suspected on reasonable grounds of having committed a serious offence; or
(c)     there are reasonable grounds to suspect that the property is the proceeds of, or is an instrument of, a serious offence (whether or not the identity of the person who committed the offence is known); or
(d)     there are reasonable grounds to suspect that a person has committed a serious offence and has derived literary proceeds in relation to the offence.
(2) An application for an order under this section must specify the property to which the application relates.
(3) The DPP may submit evidence in support of the application in the form of an affidavit.
(4) Subject to subsections (5) and (5a) and Division 3, the court must specify in the restraining order all property specified in the application for the order.
(5) The court may only specify property in a restraining order made under subsection (1)(a),(b) or (d) if satisfied that there are reasonable grounds to suspect that the property is—
(a)     in the case of a restraining order made under subsection (1)(a) or (b)—
(i) property of the suspect; or
(ii) property of another person (whether or not that other person's identity is known) that—
(A) is subject to the effective control of the suspect; or
(B) is proceeds of, or is an instrument of, the serious offence; or
(b)     in the case of a restraining order made under subsection (1)(d)—
(i) property of the suspect; or
(ii) property of another person (whether or not that other person's identity is known) that is subject to the effective control of the suspect.
(5a) The court may not specify property in a restraining order that is protected property of a person unless subsection (1)(c) applies to the property.
(6) The court must make a restraining order even if there is no risk of the property being disposed of or otherwise dealt with.
(7) The court may specify that a restraining order covers property that is acquired by the suspect after the court makes the order.
(8) A restraining order may be made subject to conditions.
The application to the District Court Judge was made on an ex parte basis. That is permitted by the Act, presumably to avoid the risk that an accused person, with notice of an application, will deal with property before a restraining order is made.
The respondent’s application accepts that an order was made but seeks to exclude the property from the operation of the restraining order. The Act provides for such an application. The following section is relevant:
34—Court may exclude property from restraining order
(1) The court to which an application for a restraining order under section 24(1)(a) or (b) was made may, when the order is made or at a later time, exclude specified property from the order if—
(a)     an application is made under section 35 or 36; and
(b)     the court is satisfied that—
(i) the property is neither proceeds nor an instrument of unlawful activity; and
(ia) —
(A) if the suspect has been convicted of the serious offence to which the restraining order relates—
• the suspect has not become a prescribed drug offender as a result of the conviction; or
• the suspect has become a prescribed drug offender as a result of the conviction, but the property was not owned by or subject to the effective control of the suspect on the conviction day for that offence or is property that should not be subject to the restraining order in accordance with section 24(5a); or
(B) if the suspect has not been convicted of the serious offence to which the restraining order relates—
• the suspect would not become a prescribed drug offender if convicted of the offence; or
• the suspect would become a prescribed drug offender if convicted of the offence, but the property is not owned by or subject to the effective control of the suspect or is property that should not be subject to the restraining order in accordance with section 24(5a); and
(ii) the owner's interest in the property was lawfully acquired; and
(iii) it would not be contrary to the public interest for the property to be excluded from the order.
(2) However—
(a)     the court must not exclude property from a restraining order unless satisfied that neither a pecuniary penalty order nor a literary proceeds order could be made against—
(i) the person who owns the property; or
(ii) if the property is not owned by the suspect but is subject to his or her effective control—the suspect; and
(b)     the court must not exclude property from a restraining order unless satisfied that the property could not be subject to an instrument substitution declaration if the suspect were convicted of the offence.
(3) Despite any other provision of this section, if a court has, in determining sentence in respect of a person's conviction of a serious offence, taken into account any forfeiture of property under this Act that might result from conviction for the offence, the property cannot be excluded from a restraining order relating to the offence on application made by the convicted person.
If the property is to be excluded from the restraining order, there are four matters which the respondent must establish. He carries the onus of satisfying the Court that:
1.the property is neither proceeds nor an instrument of unlawful activity;
2.the respondent’s interest in the property was lawfully acquired;
3.it not be contrary to the public interest for the property to be excluded from the order; and
4.there must be no prospect that a pecuniary penalty order could be made against the respondent.
The DPP puts each of the four matters in issue. It might be imagined that matters 1 and 2 will often arise on the same facts.
The respondent’s interest in the property
The respondent purchased the property in 1971. The property was at that time registered solely in his name. On 18 January 1980 the property was transferred to the respondent and his wife jointly. That remained the position until Mrs Dansie’s death.
The usual position, where there are joint proprietors, is that they hold their interests as joint tenants. The usual position arises because of the following provision of the Real Property Act 1886.
74—Joint tenants and tenants in common
Two or more persons registered as joint proprietors of an estate or interest in land shall be deemed to be entitled to the same as joint tenants; and in all cases where 2 or more persons are entitled as tenants in common to an estate of freehold in any land, the certificate must state the shares in which they hold the land.
There is no notification on the title and accordingly the respondent and his wife were deemed to be joint tenants. To determine, at least, the first two questions, it is necessary to consider what is meant when someone is described as a joint tenant of real property.
In Wright v Gibbons[5] Dixon J described joint tenancy in the following terms:[6]
The principle thus employed is described by Blackstone, vol. 2, p. 182, as one “of a thorough and intimate union of interest and possession.”
“They [i.e. two joint tenants] have not, one of them a seisin of one-half or moiety, and the other of the other moiety; neither can one be exclusively seised of one acre, and his companion of another; but each has an undivided moiety of the whole, and not the whole of an undivided moiety.”
A sentence in Bracton, taken to be sure from its context, has found its way through Coke into modern books as an expression of the conception: Et sic totum tenet et nihil tenet scilicet totum in communi (or conjunctim as Coke has it) et nihil separatim per se.Bracton, fo. 430, Woodbine's ed., vol. 4, p. 336; Co. Litt., 186a. Nihil tenet et totum tenet became in Littleton per my et per tout, “my,” as it appears now to be agreed, being the mie still shown in some French dictionaries as a negative expletive particle, and not mi, “half” as Blackstone seems to have taught many generations of lawyers to believe. (See Serjeant Manning's notes to Daniel v. Camplin and Murray v. Hall: see further Radcliffe's Real Property Law, p. 33.) There it is said of joint tenants:—“Each of them has a right shared with his co-tenants to the whole common property, but no individual right to any undivided share in it … for this reason, joint tenants should not be spoken of as holding undivided shares.”
Mr. Joshua Williams in his Lectures on the Seisin of the Freehold, (1878), p. 117, went as far as saying that joint tenants in fact were considered by the law as one person for most purposes.
(footnotes omitted)
[5] (1949) 78 CLR 313.
[6] (1949) 78 CLR 313 at 329-330.
Having described joint tenancy in the classic terms, his Honour then noted that there were necessary qualifications:[7]
Logical as may seem the deduction that joint tenants have not interests which in contemplation of law are sufficiently distinct to assure mutually one to another, there are many considerations which show that, to say the least, the consequence cannot be called an unqualified truth. …
[7] (1949) 78 CLR 313 at 330.
In Cassegrain v Gerard Cassegrain & Co Pty Ltd,[8] the High Court in a majority judgment said:[9]
Like so many maxims, great care must be used lest “nihil tenet et totum tenet” or “per my et per tout” be used only as slogans stating an asserted conclusion. But in the present case, particular care must be exercised in applying maxims of the kind described. The issue in this case arises, and can only arise, in the context of a statutory system for title by registration. Questions of indefeasibility of registered title simply do not arise in the general law of real property. And no analogy can usefully be drawn between the issue that must be decided in this case and any issue that can arise in the general law of real property.
[8] (2015) 254 CLR 425.
[9] (2015) 254 CLR 425 at [50].
What the cases establish is that even though, in the classic context, a joint tenant holds an interest in the whole of the property, in practice that can be subject to qualification. As a result of the death of Mrs Dansie, the respondent’s interest in the property necessarily changed.
In Corin v Patton[10] Brennan J described the position as follows:
… The issue is whether, at the time of Mrs. Patton's death, Mr. and Mrs. Patton were joint tenants so that Mr. Patton's interest was enlarged on her death and he took by survivorship (not by transfer or devise) the entire fee simple estate in the land.
[10] (1990) 169 CLR 540.
In the same case, Deane J put the position as follows:[11]
The substance of joint tenancy, while it subsists, lies in the equality and the personal character of the interests of the joint tenants in the undivided rights which constitute ownership of the whole of the relevant property. When one joint tenant dies during the subsistence of the joint tenancy, his interest ceases: the interests of the remaining joint tenants expand by accretion. When there is but one survivor, the joint tenancy has run its course and the survivor becomes the full owner of the whole property. …
[11] (1990) 169 CLR 540 at 575.
In the facts of this matter the interest of the respondent in the property has, as a consequence of his wife’s death, been enlarged or expanded. He is the sole owner of the property. He no longer has the same interest that he previously held.
It should be noted that the interested party seeks, inter alia, a declaration in the other proceedings that Mrs Dansie’s former interest in the property is held by Mr Dansie, on trust, for the benefit of the deceased estate. The claim is based on the common law of forfeiture. The legal principle is that the incidence of survivorship is not affected by the murder of a joint tenant but a constructive trust may be imposed on the enlarged portion of the interest.[12] Whether that arises is a matter in contest in the other proceedings.
[12] Re Stone [1989] 1 Qd R 351 at 352.
Consideration
What is clear is that the respondent’s interest in the property is not the same as it was before the death of Mrs Dansie. It can never revert to that position. The respondent is the sole registered proprietor of the property. Depending on the outcome in the proceedings brought by his son, it might be that part of the property is held on trust for Mrs Dansie’s deceased estate. The respondent’s interest will remain as sole registered proprietor even if a trust is imposed.
The argument put on the respondent’s behalf is that his pre-existing interest in the property is such that it could never be proceeds of, or an instrument of unlawful activity. The respondent contrasts his pre‑existing interest with his present interest in an endeavour to avoid the operation of the Act.
The DPP and interested party assert that the respondent’s interest in the property is either proceeds or an instrument of unlawful activity. The Act defines proceeds as follows:
7—Meaning of proceeds and instrument of an offence
(1) For the purposes of this Act, the following rules apply when determining whether property is proceeds or an instrument of an offence:
(a) property is proceeds of an offence if it is—
(i) wholly derived or realised, whether directly or indirectly, from the commission of the offence; or
(ii) partly derived or realised, whether directly or indirectly, from the commission of the offence,
whether the property is situated within or outside the State;
…
The respondent’s interest in the property is the enlarged interest referred to above. That interest is derived from the murder of Mrs Dansie. The present interest of the respondent arises, at least partly, by reason of the commission of the offence. His present interest in the property is the proceeds of the offence.
The respondent only has one interest in the property and at least part of that interest was derived from the commission of an offence. Based on the definition of proceeds, it is arguable that the whole of his interest in the property is proceeds of an offence. That will be a matter in issue should the action proceed to a forfeiture hearing. The respondent no longer holds the pre-existing interest in the property.
The same argument applies in respect of whether the owner’s interest in the property was lawfully acquired. The expanded interest now held by the respondent was not lawfully acquired. It was acquired by way of the murder of Mrs Dansie. The respondent has not satisfied the Court in relation to the first two matters on which he carries the onus. It follows that the application to exclude the property must be dismissed.
The question of whether it be contrary to the public interest for the property to be excluded from the order need not be considered in the circumstances. Generally speaking, that would only be a consideration if the first two matters were satisfied by the applicant. There is no need to consider what issues might inform the public interest.

For completeness, I consider the fourth point which relates to the pecuniary penalty issue.
The relevant provision of the Act is as follows:
95—Making pecuniary penalty orders
(1) A court must, on application by the DPP, make an order (a pecuniary penalty order) requiring a specified person to pay to the Crown an amount determined under Subdivision 2 if satisfied that—
(a) the person has been convicted of, or has committed, a serious offence; and
(b) the person derived benefits from the commission of the offence.
…
The DPP points to the fact that the provision is mandatory and the Court is required to make an order if it is satisfied of the two matters set out in the section. The Court cannot presently exclude the possibility that a pecuniary penalty order may be made. It is open to the DPP to argue that the respondent derived a benefit from the murder of his wife. He has obtained an enlarged interest in the real property. That is a derived benefit. The respondent has not satisfied the Court that a pecuniary penalty order could not be made.
Of course, all of the above will be rendered academic if the respondent is successful on his appeal. The restraining order will be removed and the common law of forfeiture will not apply. The property should continue to be restrained while the appeal process plays out.
The application to exclude the property from the operation of the restraining order is refused. I will hear the parties on the form of the orders.

[2023] SASC 21

14 February 2023