Director of Public Prosecutions for Victoria v Le

[2007] HCATrans 413

[2007] HCATrans 413

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M65 of 2007

B e t w e e n -

DIRECTOR OF PUBLIC PROSECUTIONS FOR VICTORIA

Appellant

and

PHAN THI LE

Respondent

GLEESON CJ
GUMMOW J
KIRBY J
HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT ADELAIDE ON TUESDAY, 7 AUGUST 2007, AT 10.14 AM

(Continued from 6/8/07)

Copyright in the High Court of Australia

GLEESON CJ:   Yes, Mr Grace.

MR GRACE:   Your Honours, if I may, I want to briefly return to the “sufficient consideration” issue.  Could I ask your Honours to look at the submissions of the appellant at paragraph 29 and if I could read that to your Honours, the appellant there says:

It is submitted that the Court of Appeal failed to construe the expression “sufficient consideration” in s 52 in accordance with the legislative policy reflected in the Act, namely that criminals, their associates and their dependents should not obtain any of the proceeds of their crimes, but instead those proceeds should be forfeited, or otherwise dealt with in the public interest in the ways provided for in the Act.

Some points to note in relation to that submission.  Firstly, this property, the real estate that we are talking about, was not acquired through the proceeds of crime.  Secondly, the scheme of section 52 and like exclusion provisions in sections 21, 22, 24, 50 and 54, are designed to protect a person other than the defendant who has an interest in the property.  It is beneficent legislation.  It is aimed at protecting the innocent provided the innocent can establish the matters set out in various subsections.  To interpret the words “sufficient consideration” as meaning adequate consideration in an equitable sense would lead to harsh and arbitrary results.  For example, if a husband transferred a half interest to his wife 20 years before he became involved in drug trafficking and the nature of the consideration was love and affection, the Director’s interpretation of the section, if held to be right, would mean that that transfer would not be sufficient consideration within the meaning of section 52.  That could hardly have been the intention of the legislature. 

HAYNE J:   Why not in the face of section 10(b)(ii)?

MR GRACE:   Is your Honour talking about the gift provisions?

HAYNE J:   Yes.

MR GRACE:   Because natural love and affection is not generally considered to be a gift.  It is considered to be good consideration.  Could I take your Honours in that regard to two decisions of this Court.  The first in point of time is the decision in Cannane which is found in the appellant’s book of authorities behind tab 6.  There is a brief reference to the aspect of good consideration in the dissenting judgment of your Honour Justice Kirby in paragraph 87.  This is a passage in part that is relied upon by the appellant as indicating the intention of the legislation in this case to ‑ ‑ ‑

KIRBY J:   What paragraph?

MR GRACE: Paragraph 87 on page 588 and 589 in (1998) 192 CLR 557. The paragraph commences at 588 and there your Honour Justice Kirby said this:

It is a common experience of life that, in the face of the prospect of bankruptcy, persons affected will quite frequently endeavour to put their assets out of the reach of creditors.  Often they will attempt to do so with the assistance of their spouses, family members or other trusted persons with whom they are connected.  To discourage such conduct or to redress it when it occurs, statutes in our legal tradition, since the Statute of Elizabeth, have provided for the avoidance of such transactions once the purpose of defrauding or delaying creditors is proved.  They have also added a proviso to exempt transfers of property which may be shown to have qualities entitling them to such exemption.  Relevantly, those qualities required proof that good consideration was given and that the property was lawfully conveyed bona fide, that is, with good faith.  It is not so remarkable that these concepts should have survived more than 400 years.

We have, as your Honours are aware, in Victoria, and it is set out at paragraph 42 of the judgment ‑ ‑ ‑

KIRBY J:   You did not read what the passage went on to say:

They represent the endeavour of the law to afford recoupment by creditors of impermissible dispositions but protection of those dispositions deemed proper and innocent of a fraudulent design.

In this case, I must say to you that the sequence of events, the police intrusion and then two weeks later, I think, the steps that were taken to transfer half interest in the property to the wife, one says to oneself, well, you would be lacking in common sense if you did not think that there was a connection between the event and subsequent action.

MR GRACE:   The property was not under restraint, of course, at that stage, as your Honours are aware, but the evidence of the respondent was uncontradicted in that regard, that is, that she had for some time requested that the property or at least a half share so that she could become a joint proprietor, the property be transferred at least in that interest into her name.  As his Honour Judge Campbell commented in that passage I read yesterday, if there was a blatant attempt here to avoid the rigours of this legislation, why did he not transfer the whole of the property?  If I could invite your Honours to turn to page 197 of the appeal book at paragraph 42, there their Honours in the majority said this:

That “valuable consideration” and “good consideration” constitute different categories of consideration (and have different content) has been recognised, for example, by legislation concerned with fraudulent preferences which has its origins in the Fraudulent Conveyances Act 1571 (Imp). Thus, for example, s 172 of the Property Law Act 1958 (Vic) treats both “valuable consideration” and “good consideration” as sufficient (if given in good faith and without relevant notice) for the purpose of taking the impugned transaction out of its operation. Section 172(3) provides:

“(3)This section shall not extend to any estate or interest in property alienated for valuable consideration and in good faith or upon good consideration and in good faith to any person not having, at the time of the alienation, notice of intent to defraud creditors.”

Then there is reference in paragraph 43 to the Bankruptcy Act provision which I referred your Honours to yesterday.  The court concludes at paragraph 44:

Given the ordinary meaning of “sufficient”, and the recognised categories and meaning of “consideration”, it may be assumed that the term “sufficient consideration” in the Act was intended to encompass at least “valuable consideration” and “good consideration”.  Ordinarily, where a word used in an Act – here, “consideration” – has acquired a legal meaning, the presumption is that Parliament intended the word to have that legal meaning unless the contrary intention appears.  In our view, no such contrary intention can be gleaned from the Act.

Notwithstanding the provisions of section 10 that your Honour Justice Hayne raised with me earlier, if it had been the intention of the legislature to regard the consideration that passed in this case as not being sufficient, then it would have been a simple matter for the legislature to have provided for it.

GLEESON CJ:   Actually, that is not where the court concludes.  In the next paragraph, the court says:

In the circumstances of this case as found by his Honour, “natural love and affection” . . . constituted “sufficient consideration” –

What were they referring to when they spoke of “the circumstances of this case as found by his Honour”?

MR GRACE:   It could only be the evidence given by the respondent to the effect that she had asked her husband to transfer the half interest to her to protect her in the event that her husband died and the property would otherwise have passed to his children.

KIRBY J:   It was more than that, I think.  There was the fact that she was a wife of later years that she had come to this country and had no family in this country, that she had given some evidence of being unwell and that she was therefore anxious about her situation.

MR GRACE:   Yes.

GLEESON CJ:   Was it a reference to paragraph 38 of the primary judge’s reasons which appear on page 170 of the appeal book?

MR GRACE:   Is your Honour talking about the marital obligation aspect?

GLEESON CJ:   Yes.  Were the circumstances of the case as found by his Honour referred to in paragraph 45, the Court of Appeal’s judgment, the circumstances referred to by the primary judge in paragraph 38 of his reasons?

MR GRACE:   Of course there is no mention of Judge Campbell’s reasons in paragraph 45.

KIRBY J:   There his Honour says:

it would seem to me to be arguable that what Le was doing in transferring a moiety of his interest in the property was no more than fulfilling a matrimonial obligation –

which is a reference back his relationship with his wife and her situation.

MR GRACE:   Yes.  I have been assisted by my learned friends’ at the Bar table who referred me to paragraph 38 on page 195 in the judgment of the court below and paragraph 39 where there is reference to the affidavit of the respondent:

“I did not pay any money to my husband for the transfer because I am his wife.”

That reference leads me, your Honours, to the decision of this Court in Chief Commissioner of State Revenue (New South Wales) v Dick Smith Electronics Holdings Pty Ltd (2005) 221 CLR 496. In the joint judgment of your Honour the Chief Justice and Justice Callinan at page 505 and particularly at paragraph 24 and following your Honour and Justice Callinan deal with the issue of consideration. Although your Honours were in dissent in that case, it was not in relation to this particular issue. That case may be found in the respondent’s book of authorities, or an extract of it, at least, behind tab 3. It is also in the appellant’s book of authorities behind tab 12 where there is a complete copy of the case. At paragraph 24, this is said:

In order to understand the distinction drawn by Dixon J, and its relevance to that case, it is necessary to recall the meaning and significance of consideration in conveyancing.  An explanation may be found in Elphinstone’s Introduction to Conveyancing.  In conveyancing, marriage, for example, was treated as valuable consideration.  “Money, marriage, doing something which is troublesome to oneself, or of use to the other party . . . are all valuable considerations.”  One significance of the presence or absence of either valuable or good consideration was concerned with equity’s doctrine of uses.  “If, before the Statute of Uses, one man enfeoffed another, the Court of Chancery held that unless the motive was one which was adequate, the feoffor remained entitled to the use; in other words, that the use ‘resulted’ to the feoffor . . . On the other hand, if the motive adequate, if the feoffment was made for consideration, whether valuable or good, the user enured to the feoffee.”  What Elphinstone referred to as motive is what Dixon J described as that which moves the conveyance.  Marriage was valuable consideration.  A motive of natural love and affection was good consideration.

KIRBY J:   Somewhere the Court of Appeal majority say they were acting on the basis that “sufficient consideration” was a technical expression and that there were alternative expressions in bankruptcy law and that Parliament had chosen to use “sufficient consideration” rather than the formuli used in bankruptcy law.  They did not use “good consideration”, they used “sufficient” and in a context which is concerned at attaching property for the purpose of, in a sense, redressing the wrongdoing of people who get involved in particular crimes, because Schedule 2 of the Confiscation Act does not make this an Act of universal application, it is only applied to certain particular nominated crimes, crimes of corruption, crimes involving drug use and so on. 

MR GRACE:   Yes. 

KIRBY J:   So what does “sufficient” mean?  Sufficiency, as I said yesterday, posits some ratio between property and value.

MR GRACE:   In our submission, a synonym for “sufficient” is “adequate” and “adequate”, we say, must include “good” and “sufficient” must therefore include “good”.  Could I also point out to your Honours – and this is in respect of the beneficent intention behind section 52 and other like sections within the Act – that if you look at section 52(1)(b) the same use of the words “sufficient consideration” applies where the property is not tainted property.  So, if there is no connection with the property and the crime, contrary to this case, no connection whatsoever, but the offender, the offending husband, is convicted of a Schedule 2 offence, then the same test has to be satisfied, that is sufficient consideration.  So, how could it be said to be consistent with the intent behind the legislation for an innocent party in respect of property that is not tainted to be met with the same hurdle?  That, in our submission, is a powerful consideration for interpreting the word “sufficient” in the way we have suggested.

KIRBY J:   If the property is tainted, the interest of the wife may not be tainted but the property itself is tainted because it was on that property that the drug transactions took place.

MR GRACE:   Yes and that is why there are those five conditions set out in section 52(1)(a)(i) to (v).

KIRBY J:   Have you searched the Victorian statutes for use elsewhere of the words “sufficient consideration”?

MR GRACE:   There does not appear to be the same words used in the context of conveyancing transactions that I can discern in researches.

KIRBY J:   Does it appear in other Confiscation Acts, that formula “sufficient consideration”?

MR GRACE:   You will find in the appellant’s book of authorities behind tab 22 a comparative table of confiscation legislation across Australia.  You will see under the Proceeds of Crime Act 2002 (Cth) that:

“sufficient consideration” is defined as “a consideration that is sufficient and that reflects the value of the property, having regard solely to commercial considerations”.

So the Commonwealth has seen fit to more clearly define the words “sufficient” and “limited”.

KIRBY J:   Just a very quick glance seems to indicate that the usual formula is valuable consideration, consideration of a market value or the value of the interest. 

GLEESON CJ:   The problem with that is that valuable consideration could be a dollar and they may well have used the words “sufficient consideration” to import a notion of adequacy.  I am not suggesting this argument is necessarily right, but nobody has sought, as I understand it, to relate the word “sufficient” in subparagraph (v) to the word “may” in the second line of subsection (1).  In other words, nobody seems to be arguing that this a discretionary power and the concept of sufficiency is related to the exercise of the discretion.  Indeed, to treat it as a discretionary power would be contrary to an approach that was taken, I think, in some of the judgments below.  But that is an argument we need not concern ourselves with. 

MR GRACE:   No.  We made an assumption that the appellant in this Court may have, in its submissions‑in‑chief, suggested that there was a discretion.  It has now been disavowed.  You will find in our response written submissions where we say that if this Court were to find that there was a discretion, then the matter would have to be returned at least to the Court below, if not to the trial judge, for reconsideration of the exercise of the discretion but the appellant now disavows that the word “may” conveys the existence of a discretion.  It is, to the contrary, regarded as empowering.

GLEESON CJ:   If you put an argument like that to one side, it seems difficult to resist the conclusion that “sufficient” means “adequate”, but there seems to have been a finding in the present case that the consideration was adequate because it was in discharge of matrimonial obligations.

MR GRACE:   It may not need to have descended to that level of particularity but certainly at least to the level of natural love and affection.  The evidence was supportive, although, as your Honour knows, yesterday in answer to the question you asked of me I conceded that I could not elevate his Honour’s comments as to the arguable nature of the marital obligation issue to the level of the finding. 

GLEESON CJ:   You just seem to have withdrawn that concession when your junior has pointed you in the direction of paragraphs 38 and 39 of the Court of Appeal’s reasoning. 

MR GRACE:   The Court of Appeal cannot elevate the words of the trial judge to the level of finding. 

GLEESON CJ:   No, it is the meaning of the words “in the circumstances” or, as they say, “in the circumstances as found by his Honour”. 

MR GRACE:   Yes. 

KIRBY J:   Do you agree with Mr Jackson’s ultimate position yesterday, that is to say that if he only wins on one, the matter goes back for reconsideration by the trial judge or the Court of Appeal, but that if he wins on points two or three, it is a knockout?

MR GRACE:   Yes.  If he wins on points two or three, it is definitely a knockout.  If he wins on one but we succeed on two and three, then the matter does not have to go back anywhere.  There could be simply a substitution of the order of the Court of Appeal that would allow the appeal and the order would be made in substitution that the respondent’s interest in the land only is excluded. 

KIRBY J:   Interest as tenant in common.

MR GRACE:   By reason of the operation of the legislation there will be severance of the joint tenancy and the Minister would hold as tenant in common with the respondent.  There are mechanical provisions as to what the Minister would then do next which are covered by sections 55 and so on. 

KIRBY J:   A special cost order was extracted as a condition of the grant of special leave?

MR GRACE:   Yes. 

KIRBY J:   So you get your costs, whatever the outcome of the case.

MR GRACE:   Yes.  Could I close by mentioning one matter that perhaps had escaped everyone’s attention yesterday.  Section 42 of the Act is an anti‑avoidance provision.  If I could further answer your Honour Justice Hayne in relation to the aspect of section 10 that you raised with me, that section 42 is a further adjunct to having declared as, in effect, a sham any mortgage or charge created which is created to defeat the purposes of the Act.  It is clear that in the context of section 52(1)(a)(v) “sufficient consideration” would not be a consideration that would amount to a sham or in any of the ways in which fraudulent transactions are referred to. 

If Parliament intended that the respondent would have to show consideration in money or in moneys worth, it would have said so, in the same terms as the Commonwealth legislation says so and in the same terms as some of the other pieces of legislation in that comparative table around Australia have said so.  It chose not to.  It could not be said that Parliament was not unaware of those provisions.  We submit that section 52 contemplates a conveyance of real property pursuant to the Transfer of Land Act and the Property Law Act and section 172 of the Property Law Act incorporates the notion of “good consideration”.  The authorities I have

taken your Honours to regard natural love and affection as good consideration.  That is enough to satisfy the definition of “sufficient”.  Those are the matters, your Honours. 

GLEESON CJ:   Thank you, Mr Grace.  Yes, Mr Jackson.

MR JACKSON:   Your Honours, may I deal first with a question I was asked yesterday.  The answer to it is this.  The current legislation being the Duties Act 2000, section 43, exempts from duty all transfers of any interest in land between spouses and it is a provision which reflects various predecessors. Your Honours, could I come to a number of questions. The first relates to our learned friend’s argument concerning the continuing effect of the restraining order. The respondent seeks to mitigate the effect of the order which we would say should be made by saying, “Well, the restraining order remains in force in respect of the defendant’s – that is, the husband’s – interest in the land”.

Your Honours, there are some considerations which militate against a wholesale adoption of that view.  In the first place the restraining order is, in a case such as this, a step on the way to forfeiture.  The tests which section 22 applies to determine whether the property should be excluded from a restraining order, are the same as those applying under section 52.  The same considerations apply.  I would refer your Honours to section 22(b). 

Your Honours, if a person in the position of the present respondent has obtained an order under section 52, then subject to one question to which I will come, at the least, one would expect there to be issue estoppels applying between the Director of Prosecutions and the applicant for an exclusion from the restraining order, which would have the effect of rendering the restraining order inefficacious as a practical matter.  I said there was a qualification to that.  The qualification is that because of the time provisions for applying for such orders under section 20(1A) and section 20(1B), there would need to be an extension of time to bring such an application, but difficult to see, with respect, why such an order would not be granted. 

The second thing, your Honours, is that there are other practical considerations which would need to be taken into account.  The first is that essentially the only purpose suggested for continuation of the restraining order is that it may be used in aid of a pecuniary penalty order.  Your Honours will see that on this occasion, working really against us, there are very short time limits for applying of such an order, which can be seen in sections 63(3) and 63(4) of the Act.  Your Honours will see that those provisions require in the first place that there be under section 63(3) an application for a pecuniary penalty order has to be made:

within the period of 7 days after the making of the restraining order, except with the leave of the Supreme Court.

Then in section (3A):

If a charge has been withdrawn or finally determined –

then within six months after that except with leave.  Then the criteria for granting leave are set out in subsection (4), namely that it cannot be granted unless a number of things occur, one of which being:

(c)      it is otherwise in the interests of justice to do so.

But in circumstances where, for example, a person has been convicted and in effect served the sentence it is difficult to see that that would be extended.  Your Honours, that is that first aspect.

The second aspect I wanted to deal with concerns sections 55(2) and 51(4) and other provisions to which I referred at the start of our argument yesterday.  The respondent’s argument on those provisions is that they are mechanical or machinery provisions or something of that kind, but, your Honours, that is, in a sense, to damn them with faint praise.  They are provisions which in really quite clear terms make it apparent that the all in or all out view of the orders which might be made under section 52(1) is a view which disregards other provisions which support the view for which we contend.

GUMMOW J:   The nature of the interest shifts, does it not?

MR JACKSON:   Yes, it can, your Honour.  Yes.

GUMMOW J:   By reason of the severance, so what the Minister gets is not what was there before.

MR JACKSON:   That is so, your Honour.

GUMMOW J:   How does that work in the language of the sections?  It talks about “an interest” and “the interest”.

MR JACKSON:   Is your Honour talking about section 52?

GUMMOW J:   Section 55(2) and there are sections back in the 40s too, and 41.

MR JACKSON:   I understand.  Your Honour will bear in mind that “interest” is, of course, a term itself widely defined in section 3(1).

GUMMOW J:   Yes.

MR JACKSON:   Your Honour, section 55(2), for example, really works on the underlying assumption, if I can put it that way, that the exclusion order may be made in respect of an interest in property, as I said, a defined term.

GUMMOW J:   Which is a joint interest at that stage.  They are joint tenants.

MR JACKSON:   I am sorry, your Honour.  I am not sure I am disagreeing with your Honour, but what I am seeking to say is that what is the subject of the proceedings, speaking more generally, is, of course, an interest which consists of an interest of two persons as joint tenant.  That being so, the order that might be made is one which is, on our submission, an order excluding the interest of the present respondent.  That interest is one as a joint tenant, to give effect to such an order or to give such an order content.  What it means is, as in the case, say, of bankruptcy and other court orders, that the order severs the joint tenancy, having the result that by the necessary operation of the statute, they would be treated as tenants in common. 

We refer generally, your Honours, to what was said in the Court in Peldan v Anderson [2006] HCA 48. It is behind tab 8 in our volume. Paragraph [48], your Honours, deals with a rather similar issue. I do not know that I need to take your Honours to the detail of that now. Your Honours, could I say ‑ ‑ ‑

HAYNE J:   Just before you part from that, reading “property” in 52(1) in what sense in its application to the facts of this case, what is the property which is the subject of the order under 52(1) in the case of this joint tenancy?

MR JACKSON:   Yes, your Honour.  This is dealing with our first argument, and that is, if the applicant were successful, the property that would be excluded pursuant to section 52(1), bearing in mind the broad definition of property, would be her joint interest.  Having said that, that then becomes subject to the concept of how one makes that efficacious.  By excluding her interest from the forfeiture, that will work the severance of the joint tenancy, resulting in there then being the tenancy in common.

HAYNE J:   Because it points to the fact that the principal motive, reason, for the majority, I think, in the Court of Appeal, is to read the words “in which the applicant claims an interest” as necessarily carving a subset from a more general expression described as property.  Now, that is the essence of the reasoning, I think, in the Court of Appeal.  That is, “excluding property in which the applicant claims an interest” has that subset operation, whereas “excluding property the applicant claims” would not have that subset operation.  That is the debate, I think.

MR JACKSON:   Your Honour, if I might endeavour to put it in perhaps a slightly different way but I think to the same effect, what the majority in the Court of Appeal seemed to say that if the applicant claims an interest, whether it be large or small, in property that is otherwise subject to the section 35 forfeiture and he or she succeeds in satisfying the tests in 52(1)(a), the consequence is, because of the words “make an order excluding property in which the applicant makes an interest”, all the property has to be excluded.  The contention the other way is that the court may make an order which does exclude property, but the property which is excluded is the property to the extent to which the applicant’s interest is established.  The term “property,” of course being the defined term, is capable of bearing the larger or the smaller meaning.

May I just say, your Honours, your Honour Justice Gummow referred, in a sense, to the distributive nature of the definition of “property” in the Act and we would refer in that regard also to the observations of Justice Neave at page 204, paragraphs 65 and 66.

Your Honours, could I come briefly to the question of “sufficient consideration?”  May I say, your Honour Justice Hayne referred to the reference in section 10(b) to “gift?”  The term “gift, your Honours, is defined in a way – it is in section 3(1), page 7 – which seems to be talking in the language of money or money’s worth in the narrower sense.

HAYNE J:   Do you say 10(2)(b) had any engagement in the facts of this case?

MR JACKSON:   Your Honour, it did in a sense.  I hesitate, your Honour, because of the opening words of 10.  There may be some question of its particular operation, but it says that:

property in which the defendant has an interest includes . . . 

(b)any property that was the subject of a gift from the defendant to another person . . . 

(ii)at any time if the applications made for the purposes of automatic forfeiture or civil forfeiture.

It does not seem to have a direct application to the present case.  It has not been relied on in the courts below as having any direct application.  May I say, your Honours, the reliance we would put on it is really only to say that it does tend to confirm, we submit, the impression that when the Act is speaking of consideration, it is speaking of money, in effect.

KIRBY J:   But, Mr Jackson, we were taken to that very helpful schedule which your side prepared behind tab 22.  If one looks at that, one can see that this is the type of legislation which has been enacted in the different jurisdictions of Australia.  It seems that before your statute was enacted, which is 1997, the Tasmanian Parliament had enacted the Crime (Confiscation of Profits) Act.  It uses the words “sufficient consideration” but it gives a definition of it as consideration that is sufficient having regard to solely commercial considerations, which clears the problem, or at least arguably, clears the problem up.

That is a mode of interpretation that has been used in the federal Act, which comes after your statute and elsewhere in statutes which were enacted before yours.  The Western Australian Parliament used the words “valuable consideration” which arguably clears the matter up and that was 1998.  Yet when you got around to drafting your Act in 1997, you used “sufficient consideration”, but without giving it the definition that had already been used in the Tasmanian statute, which would have meant that instead of clasping at straws about gifts and so on, the matter is cleared up. 

So why, if you do not use a formula that has appeared in another State and has since been copied in most of the jurisdictions, South Australia for example, since, why should we be bothered to try to give it a meaning which you restrained yourself from picking up in the Tasmanian Act?

MR JACKSON:   Your Honour, two things I suppose, really.  One is that use of definitions of that kind can itself give rise to additional questions with which the Court might then have to be troubled.  That is the first thing.  The second thing though is that the term “sufficient consideration” is one which you will see is used in the New South Wales enactment and although I just do not have it before me the dates - you will have seen the decision of Justice Grove to which I have referred earlier on that adopted a view which was similar to the one for which we contend and that was, I think, before the current Act came into force in Victoria.  I do not know if I can take it beyond that, but that is what we would say. 

Your Honours, could I just say that on the sufficient consideration issue, the question was raised about whether past services by the wife might have been the consideration for the transfer into joint names.  She gave short evidence about the actual nature of the consideration and it is to be found, your Honours, on really two pages of the book.  The first is at page 11 in her affidavit.  It was in paragraph 11 first of all, and your Honours will see that she asked that she be put on the title because she:

was concerned that if something should happen to him and he should die before me, the house would pass onto his children and I would not have somewhere to live.

My friend has asked me to refer to paragraph 10.  I do so.  Your Honours will see paragraph 13 set out.  The oral evidence about it is to be found at page 151. In two passages about line 36 on the page:

As far as the transfer of the flat into both your name and Roy’s name is concerned, you say you did that because of Roy’s children?---Yes, that’s correct.

Your Honours, that goes through to the bottom of that page and just over the top of the next page.

Your Honours, could I come to the question of suspicion?  Your Honour the Chief Justice referred yesterday to the question of the respondent’s knowledge at the time of the police search, but, of course, that is not the time in the end to which the subsection directs its attention.  Your Honours will see that section 52(1)(a)(iii) speaks of the time of acquisition of the interest and that is the relevant time at which the issue has to be considered.  That was at a time not just after the search of the premises, but also after he had been arrested and charged with the offences.  He was charged on 24 June 2003.  That appears at page 20, paragraph 6.  He saw his solicitor on 23 July.  On 29 August she was registered. 

If your Honours take those facts into account together with the quantity of ironmongery and other items found, some concealed, some not, in a very small, and by the photographs, otherwise very neatly kept unit, the objective test as at the relevant time, in our submission, must have been satisfied.  There was a question, your Honours, was there any cross‑examination about this?  There was some cross‑examination of her about it at the top of page 151.

KIRBY J:   You say that amount of cross‑examination counters the three repeated references by the majority of the Court of Appeal that you did not really contradict or challenge her statements?

MR JACKSON:   She was asked:

it’s only a small two bedroom flat, isn’t it?

She agrees. 

It’s fair to say that you know it pretty well?---Yes.

Your Honours, both of those things were true, but we are not looking at actual knowledge.  We are looking at the reasonable suspicion in terms of ‑ ‑ ‑

KIRBY J:   It is not a very robust cross‑examination.  Maybe that is the Victorian style.  They are ever so polite in Victoria.

MR JACKSON:   Your Honour, whilst I might claim two States, I do not claim three, and I would not pretend to be familiar.  I can ask someone, but I do not think it is the case.  Could I just say, your Honours, if the test is objective, of course, then their cross‑examination is really irrelevant.  Your Honours, if I can just say one final thing in response to what your Honour put to me?  With the provisions of the Judiciary Act and things of that kind, one assumes that there are able people in every Australian jurisdiction.  Your Honours, those are our submissions.

GLEESON CJ:   Thank you, Mr Jackson.  We will reserve our decision in this matter and we will adjourn for a short time to reconstitute.

AT 11.00 AM THE MATTER WAS ADJOURNED