Director of Public Prosecutions for Western Australia v Stuart Anthony Silbert as Executor of the Estate of Stephen Retteghy (Dec)
[2000] WASC 209
•25 AUGUST 2000
DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- STUART ANTHONY SILBERT as Executor of the Estate of STEPHEN RETTEGHY (Dec) [2000] WASC 209
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASC 209 | |
| Case No: | CIV:1131/1998 | 19-20 JUNE 2000 | |
| Coram: | SCOTT J | 25/08/00 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Judgment for the plaintiff | ||
| PDF Version |
| Parties: | DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA STUART ANTHONY SILBERT as Executor of the Estate of STEPHEN RETTEGHY (Dec) |
Catchwords: | Criminal law and procedure Crimes (Confiscation of Profits) Act 1988 Application for forfeiture and pecuniary penalty orders Statutory conviction for purposes of Crimes(Confiscation of Profits) Act 1988 without right of appeal Constitutional law Operation and effect of the Commonwealth Constitution The executive government Constitutions, powers and laws of the states Restrictions on Commonwealth and State legislation Judicial exercise of power by Parliament Usurpation of judicial power Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 Constitutional point not made out High Court and Federal Judiciary Jurisdiction and powers of the High Court generally Appellate jurisdiction of the High Court |
Legislation: | Crimes (Confiscation of Profits) Act 1988, s 6, s 3(2), s 3(5), s3, s 10, s 15(1)(b) Misuse of Drugs Act 1981 Offender Community Corrections Act 1963, s 20 Sentencing Act 1995, s 39 |
Case References: | Director of Public Prosecutions for Western Australia v The Public Trustee on behalf of the Estate of Stephen Retteghy and Ors, unreported; SCt of WA; Library No 980660; 12 November 1998 Fencott v Muller (1983) 152 CLR 570 Kable v The Director of Public Prosecutions (NSW) (1996) 189 CLR 51 Leeth v The Commonwealth (1992) 174 CLR 455 Liyanage v The Queen [1967] 1 AC 259 Nicholas v The Queen (1988) 72 ALJR 456 Nicholas v The Queen (1998) 193 CLR 173 Polyukhovich v The Commonwealth (1991) 172 CLR 501 Actors and Announcers Equity Association of Australia v Fontana Films Pty Ltd (1982) 150 CLR 169 Bowman v R (1995) 14 WAR 466 Building Construction Employees' and Builders Labourers' Federation of NSW v Minister for Industrial Relations (1986) 7 NSWLR 372 Butera v Director of Public Prosecutions of Victoria (1987) 164 CLR 180 Director of Public Prosecutions v Blattman (1990) 101 FLR 195 Director of Public Prosecutions v Toro-Martinez (1993) 119 ALR 517 Durham Holdings Pty Ltd v State of NSW [2000] 6 Leg Rep SL 1 HCA 10 March 2000 Durham Holdings Pty Ltd v State of NSW (1999) 166 ALR 500 Durham Holdings Pty Ltd v State of NSW [1999] NSWCA 324 Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477 Frisina v R (1987) 32 A Crim R 103 H H Bacharach Pty Ltd v The State of Queensland (1998) 195 CLR 547 Hill v East and West India Dock Co (1884) 9 App Cas 448 Lewis v R [2000] WASCA 9 Lim v Minister for Immigration (1992) 176 CLR 1 Macquarie Bank v Fociri Pty Ltd (1992) 27 NSWLR 203 McGuinness v Attorney-General (Vic) (1940) 63 CLR 73 McLeary & Ors v Commonwealth Director of Public Prosecutions (1998) 20 WAR 288 Newcombe v AME Properties Ltd (1995) 14 WAR 259 Nicholas v R (1998) 193 CLR 219 Polyukhovich v The Commonwealth (1991) 172 CLR 501 Pyneboard Pty Ltd v Trade Practices Commission (1983) 1 CLR 328 R v Associated Northern Collieries (1910) 11 CLR 738 R v Bolger (1989) 16 NSWLR 115 R v Hughes (2000) 171 ALR 155 R v Keiley (No 2) [1994] 3 All ER 246 R v Rintel (1991) 3 WAR 527 Refrigerated Express Lines (Australia) Pty Ltd v Australian Meat and Livestock Corporation (1979) 42 FLR 208 Rowe, The Employment Advocate v Transport Workers' Union of Australia & Ors [1998] 1646 FCA 17 December 1998 S (a child) v The Queen (1995) 12 WAR 392 Smith Kline & French Laboratories (Aust) Pty Ltd v The Commonwealth (1991) 173 CLR 194 Stephens v West Australian Newspapers (1994) 182 CLR 211 Union Steampship Co of Australia Pty Ltd v King (1988) 166 CLR 10 Victoria v Australian Building Construction Employees and Builders Labourers Federation (1982) 152 CLR 25 Webb v Chief Constable of Merseyside Police and Porter & Anor v Chief Constable of Merseyside Police [2000] 1 All ER 209 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
STUART ANTHONY SILBERT as Executor of the Estate of STEPHEN RETTEGHY (Dec)
Defendant
Catchwords:
Criminal law and procedure - Crimes (Confiscation of Profits) Act 1988 - Application for forfeiture and pecuniary penalty orders - Statutory conviction for purposes of Crimes(Confiscationof Profits) Act 1988 without right of appeal
Constitutional law - Operation and effect of the Commonwealth Constitution - The executive government - Constitutions, powers and laws of the states - Restrictions on Commonwealth and State legislation - Judicial exercise of power by Parliament - Usurpation of judicial power - Kable v Director of Public Prosecutions(NSW) (1996) 189 CLR 51 - Constitutional point not made out
(Page 2)
High Court and Federal Judiciary - Jurisdiction and powers of the High Court generally - Appellate jurisdiction of the High Court
Legislation:
Crimes (Confiscation of Profits) Act 1988, s 6, s 3(2), s 3(5), s3, s 10, s 15(1)(b)
Misuse of Drugs Act 1981
Offender Community Corrections Act 1963, s 20
Sentencing Act 1995, s 39
Result:
Judgment for the plaintiff
Representation:
Counsel:
Plaintiff : Mr K M Tavener
Defendant : Mr E M Heenan QC, Mr J P T Olivier & Ms M M Lim
Solicitors:
Plaintiff : State Director of Public Prosecutions
Defendant : Talbot & Olivier
Case(s) referred to in judgment(s):
Director of Public Prosecutions for Western Australia v The Public Trustee on behalf of the Estate of Stephen Retteghy and Ors, unreported; SCt of WA; Library No 980660; 12 November 1998
Fencott v Muller (1983) 152 CLR 570
Kable v The Director of Public Prosecutions (NSW) (1996) 189 CLR 51
Leeth v The Commonwealth (1992) 174 CLR 455
Liyanage v The Queen [1967] 1 AC 259
Nicholas v The Queen (1988) 72 ALJR 456
Nicholas v The Queen (1998) 193 CLR 173
Polyukhovich v The Commonwealth (1991) 172 CLR 501
(Page 3)
Case(s) also cited:
Actors and Announcers Equity Association of Australia v Fontana Films Pty Ltd (1982) 150 CLR 169
Bowman v R (1995) 14 WAR 466
Building Construction Employees' and Builders Labourers' Federation of NSW v Minister for Industrial Relations (1986) 7 NSWLR 372
Butera v Director of Public Prosecutions of Victoria (1987) 164 CLR 180
Director of Public Prosecutions v Blattman (1990) 101 FLR 195
Director of Public Prosecutions v Toro-Martinez (1993) 119 ALR 517
Durham Holdings Pty Ltd v State of NSW [2000] 6 Leg Rep SL 1 HCA 10 March 2000
Durham Holdings Pty Ltd v State of NSW (1999) 166 ALR 500
Durham Holdings Pty Ltd v State of NSW [1999] NSWCA 324
Environment Protection Authority v Caltex Refining Co Pty Ltd (1993) 178 CLR 477
Frisina v R (1987) 32 A Crim R 103
H H Bacharach Pty Ltd v The State of Queensland (1998) 195 CLR 547
Hill v East and West India Dock Co (1884) 9 App Cas 448
Lewis v R [2000] WASCA 9
Lim v Minister for Immigration (1992) 176 CLR 1
Macquarie Bank v Fociri Pty Ltd (1992) 27 NSWLR 203
McGuinness v Attorney-General (Vic) (1940) 63 CLR 73
McLeary & Ors v Commonwealth Director of Public Prosecutions (1998) 20 WAR 288
Newcombe v AME Properties Ltd (1995) 14 WAR 259
Nicholas v R (1998) 193 CLR 219
Polyukhovich v The Commonwealth (1991) 172 CLR 501
Pyneboard Pty Ltd v Trade Practices Commission (1983) 1 CLR 328
R v Associated Northern Collieries (1910) 11 CLR 738
R v Bolger (1989) 16 NSWLR 115
R v Hughes (2000) 171 ALR 155
R v Keiley (No 2) [1994] 3 All ER 246
R v Rintel (1991) 3 WAR 527
Refrigerated Express Lines (Australia) Pty Ltd v Australian Meat and Livestock Corporation (1979) 42 FLR 208
Rowe, The Employment Advocate v Transport Workers' Union of Australia & Ors [1998] 1646 FCA 17 December 1998
S (a child) v The Queen (1995) 12 WAR 392
Smith Kline & French Laboratories (Aust) Pty Ltd v The Commonwealth (1991) 173 CLR 194
Stephens v West Australian Newspapers (1994) 182 CLR 211
(Page 4)
Union Steampship Co of Australia Pty Ltd v King (1988) 166 CLR 10
Victoria v Australian Building Construction Employees and Builders Labourers Federation (1982) 152 CLR 25
Webb v Chief Constable of Merseyside Police and Porter & Anor v Chief Constable of Merseyside Police [2000] 1 All ER 209
(Page 5)
1 SCOTT J: On 2 April 1996 police executed a search warrant on approximately 5 acres of land registered in the name of Stephen Retteghy ("Retteghy") of 52 Fenton Way, Hillarys. The address of the land was 69 Nicklaus Avenue, Woodridge (also known as Guilderton). The land is described in the certificate of title as Portion of Swan Location 1374 and being Lot 69 on Plan 13246 and being the whole of the land in certificate of title No 1568 Folio 766 ("the Guilderton land").
2 In the course of executing the search warrant, the police uncovered what was a medium to large-scale cannabis growing and harvesting business. When the police executed the search warrant, Retteghy, the owner of the property, was in the process of watering some cannabis plants on the Guilderton land. A detailed search of the land revealed 598 mature cannabis plants growing in several plots on the property. In addition, 26.1 kgs of cannabis was found being dried in a shed on the property. Inside the house, three large drums of cannabis material were located containing 1.795 kgs of cannabis. There were also 8 dried cannabis plants weighing 2 kgs and 5 glass jars of cannabis seeds with a total weight of 450 gms. The total weight of the harvested cannabis located on the property was 30.345 kgs.
3 The search also revealed scales, a marijuana grower's guide (exhibit JD8 to the affidavit of John Patrick Diviney ("Diviney") of 11 February 1999), a number of diaries, $1,750 in cash and sundry other papers. In addition, in the boot of a Honda Prelude sedan, registration No 8FL 359, traces of cannabis leaf material were located in the spare tyre well.
4 At the scene and during the course of the search, a comprehensive video recording was made of the items located and seized. In addition, a number of photographs were taken by Diviney, some of which are exhibited to his affidavit of 11 February 1999. The video recording of the search revealed the nature and extent of the cannabis growing operation that was under way on the property at the time. The evidence illustrates that the plants were between 3 and 7 feet in height. There was also clear evidence that a large quantity of plants had already been harvested.
5 In a shed on the property, which could best be described as a drying shed, a large quantity of cannabis plants were found hanging from the roof drying. In addition, in a spare room in the house, cannabis plant and leaf material had been stripped and placed in paint tins. The search also revealed a quantity of jars containing cannabis seeds and fertiliser suitable for the growing of cannabis plants.
(Page 6)
6 Following the search, Retteghy was charged with cultivating cannabis with intent to sell or supply it to another and with possession of cannabis with intent to sell or supply it to another. The police obtained holding orders with respect to the identifiable property of Retteghy and ultimately, on 25 February 1997, Templeman J in the Supreme Court, made restraining orders over Retteghy's assets.
7 On 17 May 1996, Retteghy appeared in the Perth Court of Petty Sessions and following the election of a hand-up brief, was committed to stand trial in the District Court at the sittings commencing on 8 July 1996. When Retteghy appeared in the District Court on that occasion, he answered an indictment containing two counts which alleged that:
"(a) Between 1 September 1995 and 2 April 1996 at Guilderton he cultivated a quantity of cannabis plants with intent to sell or supply cannabis to another; and
(b) On 2 April 1996 at Guilderton he had in his possession a quantity of cannabis with intent to sell or supply it to another."
8 Retteghy was remanded in the District Court on a number of occasions so that his trial could be scheduled. However, before he was brought to trial he died from a cancer related illness on 7 August 1997.
9 On 24 October 1997 the Crown presented a nolle prosequi to dispose of the indictment.
10 Police examiners went through the diaries kept by Retteghy and prepared an analysis of them. The diaries reveal details of what were said to be sales of cannabis and in summary disclosed:
Financial year ending 30 June 1994 $ 51,395
Financial year ending 30 June 1995 $ 90,605
Financial year to April 1996 $123,100
Total: $265,100
11 In addition, in the course of the police inquiry, Retteghy answered a detailed questionnaire as to his legitimate sources of income and, armed with that material and independent of the diary analysis, a financial investigator, Peter John Quinlan ("Quinlan") prepared an analysis of Retteghy's unaccounted for assets. That report, to be found as exhibit A to
(Page 7)
- the affidavit of Quinlan of 14 January 1999, revealed that Retteghy had derived income and/or receipts from unknown sources in a total amount of $250,750.
12 An analysis of the banking records of Retteghy comparing the cash deposits with the amounts recorded in the diary entries, revealed a remarkable correspondence, as shown in the comparison charts prepared by Stephen John Francis, a constable attached to the Asset Investigation Squad of the Western Australian Police Force. That correspondence is best illustrated in Charts D, E and F to his affidavit of 19 March 1999.
13 It should also be noted that the diaries of Retteghy, as uncovered during the search, were, in part, written in the Hungarian language and were translated by Anna Maria Arnold, as deposed to in her affidavit of 17 February 1999. Importantly, in her translator notes, shown as exhibit H to her affidavit, she points out that in the Hungarian language, the letter "u" can be used as an abbreviation for "uncia", which is Hungarian for ounce and, "f" can be used as an abbreviation for "font", Hungarian for pound. Those symbols are to be found throughout the diaries.
14 As at 2 April 1996, Retteghy had an unencumbered house, which he valued at $105,000, in addition to the Guilderton land valued at $94,000. He also owned a Honda motor vehicle referred to earlier. This vehicle was valued at $15,000. In addition, there is furniture of $20,000 and a second vehicle valued at $8,000. He also owned shares, had money in bank accounts and with stockbrokers and other assets, all of which have been restrained. In broad terms, the assets restrained would approximately equate the amount of money which the plaintiff in this action maintains were the proceeds of Retteghy's illegal dealings in cannabis.
15 It should be added that in an affidavit of Quentin John Williams of 31 March 1999, it is said that Retteghy never filed an income tax return between 1 July 1988 and 30 June 1995 and that between 1 July 1993 and 30 June 1995 he was in receipt of a government aged pension.
16 With that factual background it is necessary to turn to the process by which this action originated.
17 By originating summons the plaintiff in this action seeks the following orders:
(Page 8)
- "1 The benefit derived by the late Stephen Retteghy as a result of the commission of the offences of cultivation of cannabis with intent to sell or supply it to another and possession of cannabis with intent to sell or supply it to another contrary to the Misuse of Drugs Act 1981 of which the late Stephen Retteghy is taken to have been convicted on 7 August 1997, or of any other unlawful act be assessed in such sum as the Court thinks fit.
2 The estate of the late Stephen Retteghy pay forthwith to the Crown a pecuniary penalty in such sum as the Court thinks fit.
3 The estate in fee simple in portion of Swan Location 1374 and being Lot 69 on Plan 13246 and being the whole of the land comprised in Certificate of Title Volume 1568 Folio 766 and subject of Embargo Notice 2292 be forfeited to the Crown on the grounds that it was used in, or in connection with, the commission of the offences of cultivation of cannabis with intent to sell or supply it to another and possession of cannabis with intent to sell or supply it to another contrary to the Misuse of Drugs Act 1981 of which the late Stephen Retteghy is taken to have been convicted on 7 August 1997 and/or that it was derived or realised, directly or indirectly, by the late Stephen Retteghy as a result of the commission of the offences of cultivation of cannabis with intent to sell or supply it to another and possession of cannabis with intent to sell or supply it to another contrary to the Misuse of Drugs Act 1981 of which the late Stephen Retteghy is taken to have been convicted on 7 August 1997 or of any other unlawful act.
4 All the following property, namely: -
(a) Honda Prelude Coupe motor vehicle registration number 8FL 359 and subject of Holding Order number 4291; and
(b) electronic scales, newspapers, marijuana growing book, 2 business cards and $1750 in cash, all the subject of Holding Order number 47875;
(Page 9)
- be forfeited to the Crown on the grounds that it was used in, or in connection with, the commission of the offences of cultivation of cannabis with intent to sell or supply it to another and possession of cannabis with intent to sell or supply it to another contrary to the Misuse of Drugs Act 1981 of which the late Stephen Retteghy is taken to have been convicted on 7 August 1997 and/or that it was derived or realised, directly or indirectly, by the late Stephen Retteghy as a result of the commission of the offences of cultivation of cannabis with intent to sell or supply it to another and possession of cannabis with intent to sell or supply it to another contrary to the Misuse of Drugs Act 1981 of which the late Stephen Retteghy is taken to have been convicted on 7 August 1997 or of any other unlawful act.
5 The following property, namely:-
(a) the estate in fee simple in portion of Swan Location 8689 and being Lot 25 on Plan 10389 and being the whole of the land comprised in Certificate of Title Volume 1341 Folio 41;
(b) the whole of the monies standing to the credit of the late Stephen Retteghy in Potter Warburg Cash Management Trust Account number 740752 in the name of the late Stephen Retteghy and subject to Embargo Notice 2122;
(c) the whole of the monies standing to the credit of the late Stephen Retteghy in Perth Commodities and Futures Brokers Pty Ltd Account number 7P017220 in the name of the late Stephen Retteghy and subject of Embargo Notice 2123;
(d) the whole of the monies standing to the credit of the late Stephen Retteghy in Challenge Bank Account number 476 219 321355 in the name of the late Stephen Retteghy and subject of Embargo Notice 2125;
(e) Nissan Patrol motor vehicle registration number 6LJ 653;
(Page 10)
- (f) the whole of the monies standing to the credit of the late Stephen Retteghy in Challenge Bank Account number 481 001 3812 in the name of the late Stephen Retteghy;
(g) the whole of the monies standing to the credit of the late Stephen Retteghy in ANZ Bank Account number 016 494 3542 in the name of the late Stephen Retteghy;
(h) all monies held on trust by Messrs Talbot & Olivier in the account on behalf of the late Stephen Retteghy;
(i) all shares, stocks, options or bonds or rights in any shares, bonds, options or stock owned by the late Stephen Retteghy including all shares and options held in the following companies, namely:-
Australian Goldfields Ltd
Australian Hydrocarbons NL
Burdekin Resources
Carter Holt Harvey Ltd
Consolidated Investments and Finance Ltd
Cultus Petroleum NL
First Australian Gold Fund
Goldfields Ltd
Goldmines of Australia
Goldmines of Kalgoorlie Ltd
Innerhadden Ltd
Leo Shield Exploration NL
Lihir Gold Ltd
Nexus Minerals NL
Offset Alpine Printing Group
Orbital Engines Co
Pelsart Resources
Pima Mining
Posgold Ltd
Qantas Airways Ltd
SGIO Ltd
St Barbara
Stirling Resources
Zephyr Minerals; and
(Page 11)
- (j) all other property owned by the late Stephen Retteghy; be forfeited to the Crown on the ground that it was derived or realised, directly or indirectly, by the late Stephen Retteghy as a result of the commission of the offences of cultivation of cannabis with intent to sell or supply it to another and possession of cannabis with intent to sell or supply it to another contrary to the Misuse of Drugs Act 1981 of which the late Stephen Retteghy is taken to have been convicted on 7 August 1997 or of any other unlawful act."
18 It is to be noted that in par 3 and par 4 of the originating summons the plaintiff seeks forfeiture orders but in the other paragraphs the plaintiff seeks a pecuniary penalty order to the extent that the court finds that the deceased acquired assets from the criminal activity in which it was said that he was engaged.
19 Apart from some minor challenges to the factual material placed before the court, the defendant's position is that the application by the plaintiff, insofar as it seeks either a forfeiture order or a pecuniary penalty order, is based upon unconstitutional provisions of the Crimes (Confiscation of Profits) Act 1988 ("the Act").
20 It is to be noted that Retteghy, in an affidavit filed in response to the plaintiff's application for a restraining order and tendered in these proceedings, denied involvement in any criminality and said that the indictable charges laid against him would be defended. It is to be noted that he pleaded not guilty in the District Court and was awaiting trial at the time of his death.
21 As can be seen from the terms of the originating summons, and as previously outlined, the plaintiff seeks two different types of orders, namely:
(a) forfeiture orders in relation to the property referred to in par 3 and par 4; and
(b) pecuniary penalty orders with respect to the amount of money said to have been made by the deceased from his illegal activity in relation to trading in cannabis.
22 In order to understand both the plaintiff's claims and the defence raised to them, it is necessary to examine the relevant provisions of the Act.
(Page 12)
23 The first thing to note about the Act is that it is "conviction based". The Act by s 6 provides that where a person is convicted of a serious offence, application may be made for one or both of:
"(a) a forfeiture order in respect of particular property;
(b) a pecuniary penalty order."
24 It is to be noted that the term "confiscation order" is defined in s 3 and is a generic term which encompasses both a forfeiture order and a pecuniary penalty order.
25 Importantly, for the purposes of the present application, s 3(2) provides:
"For the purposes of this Act, a person is to be taken to have been convicted of a serious offence if -
(a) the person has been convicted of the offence, whether or not -
(i) a spent conviction order is made under s 39 of the Sentencing Act 1995 in respect of the conviction; or
(ii) a conviction was deemed not to be a conviction by s 20 of the Offenders Community Corrections Act 1963;
(b) the person has been charged with and found guilty of the offence but is discharged without conviction;
(c) the offence was taken into account by a court sentencing the person for another offence; or
(d) the person has been charged with the offence but before the charge is finally determined the person has absconded."
26 Section 3(5) provides:
"For the purposes of this Act, a person shall be taken to abscond in connection with an offence if, and only if, -
(c) one of the following occurs:
(Page 13)
- (i) the person dies without the warrant being executed or after the execution of the warrant or, in the case of a person arrested without warrant, after that arrest;"
27 It is common ground that the deceased died after he had been arrested for the offences referred to earlier in these reasons and thus he is taken to have "absconded" within the meaning of s 3(5). As a consequence it is said by the plaintiff that the deceased came within the provisions of s 3(2)(d) and by that provision, in statutory terms, was thereby "taken to have been convicted". I would add that it is common ground that the offences the subject of the indictment come within the definition of "serious offence" in the Act.
28 It is to be noted from the provisions of s 3(2)(a), s 3(2)(b) and s 3(2)(c) that other dispositions of matters are taken to be convictions for the purposes of the Act. The effect of the provision in my opinion is to deem certain matters which would not otherwise constitute convictions to be convictions "for the purposes of this Act". It follows, in my opinion, that the Act creates a statutory scheme which has the effect of deeming a person to be convicted of a serious offence in circumstances where he or she would not otherwise be convicted. Significantly, however, as will become apparent later in these reasons, that provision is confined to its opening words, namely, "for the purposes of this Act", so that the statutory fiction created by the provision is confined exclusively to the Act.
29 Section 53 of the Act provides:
"(1) Subject to subsection (2), any question of fact to be decided by a court on an application under this Act is to be decided on the balance of probabilities.
(2) If a person is, by reason of s 3(2)(d), to be taken to have been convicted of a serious offence, a court must not make a forfeiture order in reliance on that conviction unless it is satisfied, beyond reasonable doubt, that the person committed the offence."
30 As can be seen from the terms of the application set out earlier in these reasons, the Crown seeks a forfeiture order with respect to certain property, so that s 53(2) requires the court to be satisfied beyond reasonable doubt that the person committed the offence before such an order can be made. In relation to the pecuniary penalty order sought with
(Page 14)
- respect to the balance of the property of the deceased, it is only necessary for the court to be satisfied on the balance of probabilities that the necessary ingredients for such an order to be made have been established.
31 In relation to the forfeiture order, the evidence, in my view, establishes beyond reasonable doubt that the Guilderton land was being used by the deceased for the cultivation and processing of cannabis and on a significant scale. I have already indicated the evidence which supports that conclusion which was uncovered during the execution of the warrant. When interviewed on videotape, the deceased readily acknowledged his involvement in the cultivation of cannabis on the property, although he denied any intention to sell the cannabis grown. In addition, the Honda Prelude motor vehicle in the garage had traces of cannabis in the boot, consistent with the vehicle having been used for the transportation of cannabis. When all of the evidence is taken into account, including the matters to which I have referred earlier in these reasons, in my view the inevitable conclusion is that the deceased committed the offences alleged in the indictment, both by way of the use of the Guilderton land and the Honda Prelude motor vehicle so that a forfeiture order with respect to those two items of property is appropriate.
32 Section 10 of the Act provides:
"(1) Where an application is made to a court under s 6(1)(a), the court may, if it considers it appropriate, order that the property be forfeited to the Crown if it satisfied that the property -
(a) was used in, or in connection with, the commission of the offence; or
(b) was derived or realised, directly or indirectly, by the person convicted of the offence or another person, or is subject to the effective control of the person convicted of the offence, as a result of the commission of the offence or of any other unlawful act."
(Page 15)
34 As to the pecuniary penalty order sought, as I have already indicated in these reasons, there are two separate bases upon which that application is made. In the affidavit of Quinlan of 14 January 1999 in exhibit A, an examination of the banking records of the deceased revealed unaccounted for income in the sum of $250,750.
35 Similarly, an analysis of the diary entries of the deceased, to which I have earlier referred, reveal sales of cannabis in the sum of $265,100. See par 10 of the affidavit of Stephen John Travers ("Travers") of 19 March 1999. As I have said, an analysis of the sales of cannabis and the deposit slips in relation to the bank account of the deceased reveal a close relationship.
36 Bearing in mind that in relation to the pecuniary penalty order, as I have already outlined, the standard of proof is the balance of probabilities, in my opinion, the evidence establishes that the deceased profited from the sale of illegal drugs at least to the sum of $250,750, being the lesser of the two figures. It is common ground that any pecuniary penalty order should give credit for any property the subject of a forfeiture order so that the true market value of the Guilderton land and the Honda Prelude motor vehicle should be deducted from the amount of the pecuniary penalty order.
37 Section 15(1)(b) of the Act provides:
"If an application is made to a court under s 6(1)(b), the court may if it considers appropriate -
(a) assess the value of the benefits derived by a person against whom the application is made as a result of the commission of the serious offence in reliance on which the application is made or any unlawful act; and
(b) order the person referred to in par (a) to pay to the Crown a pecuniary penalty equal to the value of those benefits as assessed under this subsection, less -
(i) the value as at the time of making of that order of any property in respect of which a forfeiture order has been made in reliance on; and
(ii) if the court thinks it desirable to take into account, any amount payable by way of restitutional
(Page 16)
- compensation in relation to, the unlawful act referred to in that paragraph."
38 It follows from that provision, in my opinion, that the court is required to deduct the value of the property the subject of the forfeiture order with the valuation being determined as at the date of the making of the order. If the parties are unable to agree upon such a valuation, it may be necessary for further evidence to be called to update the evidence presently before this Court.
39 As I have indicated earlier in these reasons, apart from some minor challenge to the valuation evidence, the defendant's position is that the relevant provisions of the Act are unconstitutional. It is necessary to examine briefly the way upon which that argument is put in order to deal with it, but in view of the conclusion that I have reached, it is unnecessary to deal with that argument in detail.
40 Senior counsel for the defendant presented a thoroughly researched, well-presented and detailed argument to support the constitutional propositions advanced by him. However, I have come to the conclusion that the fundamental premise upon which the argument is based is fallacious. It follows that it is not necessary for the constitutional argument to be dealt with in depth other than to explain generally the way in which it is formulated.
41 As the history of this matter set out earlier in these reasons indicates, the deceased passed away before he came to trial in the District Court. As a result, a nolle prosequi in relation to the indictment presented against him was tendered to that court on 24 October 1997. It follows that the deceased was never convicted by a court of law of any offence in relation to the matters now under discussion. It is said that by reason of the provisions of s 3(2) of the Act, set out earlier in these reasons, the deceased is now "taken to have been convicted" of a serious offence, namely, the offences contained in the indictment. It is submitted that this "conviction" can never be the subject of review by an appellate court so that the deceased has been deprived of his right to a fair trial.
42 The provisions of the Act make it clear that where a person has been charged with an offence and dies before the charge is finally determined, he is by the statute "to be taken to have been convicted of a serious offence". As explained previously in these reasons, it is common ground that the provision applies to the deceased in this case. Senior counsel for the defendant rightly pointed out that such a conviction could never be set
(Page 17)
- aside and the deceased would never have the opportunity of clearing his name. Whilst it may be that an appeal against a confiscation order could result in the confiscation order being set aside, that would not have the effect of setting aside the statutory conviction. It was said by the defendant that the deceased would remain convicted of a serious offence within the meaning of the statute. The defendant contended that s 3(2) of the Act is an exercise of a judicial power by Parliament in such a manner as to contravene Ch 3 of the Federal Constitution in that it takes away the judicial power of the courts to exercise supervisory jurisdiction over convictions. It was contended that the Act operating in this way contravenes the provisions of Ch 3 of the Federal Constitution in that the power to convict a person can only be exercised by a court which satisfies the requirements of Ch 3 of the Federal Constitution. See Nicholas v The Queen (1998) 193 CLR 173 per Brennan CJ at 186 and 192 and McHugh J at 219, citing with approval, Fencott v Muller (1983) 152 CLR 570 at 608.
43 Those authorities have been followed in Leeth v The Commonwealth (1992) 174 CLR 455 and Polyukhovich v The Commonwealth (1991) 172 CLR 501.
44 Senior counsel for the defendant submited that the provision of the Act under discussion, which deem the deceased to be guilty of a serious criminal offence notwithstanding his denial of guilt and in circumstances where he never had a trial in a court of law, is a usurpation of judicial power and therefore unconstitutional.
45 It was said that such a conclusion is supported by the decision of the High Court in Kable v The Director of Public Prosecutions (NSW) (1996) 189 CLR 51.
46 It was contended that the provision presently being considered constitutes a usurpation of the function of a court exercising judicial power.
47 The defendant contended that the High Court of Australia effectively exercises judicial supervision over all of the Supreme Courts of the States and Territories of this country with respect to criminal convictions. Admittedly that jurisdiction is now exercised by way of special leave. Nonetheless it remains a supervisory jurisdiction of the High Court of Australia. It was contended that the Act would prevent, and prevent forever, that supervisory jurisdiction from being exercised in the case of the statutory conviction of the deceased. The defendant submitted that it
(Page 18)
- followed that the provision is beyond the legislative competence of the Parliament of Western Australia: see Liyanage v The Queen [1967] 1 AC 259 and Nicholas v The Queen (1988) 72 ALJR 456 and Kable v The Director of Public Prosecutions (NSW) (supra).
48 I should add that in relation to this issue notices were served upon the Attorneys General as required by s 78B of the Judiciary Act1903. However, no Attorney General sought to intervene.
49 As I have already indicated, in my view the constitutional argument does not fall for consideration in this case. The reason, in my view, is that the conviction under s 3(2) of the Act is in terms of the section itself "for the purposes of this Act" and for that purpose only. The other provisions of s 3(2), which I have set out earlier, are indicative of the way in which the section is to work. For example, where a person has been found guilty of an offence and discharged without conviction, for the purposes of s 3(2), that person is to be taken to have been convicted providing the offence is a serious offence. It is clear from these provisions that the section is creating a fiction. In the various circumstances created by s 3(2)(a) to s 3(2)(d), persons are taken to have been convicted in circumstances where the law would not otherwise have recorded a conviction. Importantly, that conviction is only a conviction for the purposes of the Act and, in my view, for no other purposes. It follows that the submissions, well presented by senior counsel for the defendant, do not fall for consideration.
50 I would add that both counsel were unable to refer to any decision in which this issue had been previously decided, although it would appear that legislation of this type is common in the various States of Australia: see Director of Public Prosecutions for Western Australia v The Public Trustee on behalf of the Estate of Stephen Retteghy and Ors, unreported; SCt of WA; Library No 980660; 12 November 1998 per Heenan J at 9.
51 I will hear from the parties as to the formal orders necessary to give effect to these reasons.
0
32
4