Director of Public Prosecutions (SA) v Dobie
[2010] SASCFC 7
•23 July 2010
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court: Civil)
DIRECTOR OF PUBLIC PROSECUTIONS (SA) v DOBIE
[2010] SASCFC 7
Judgment of The Full Court
(The Honourable Chief Justice Doyle, The Honourable Justice Bleby and The Honourable Justice Sulan)
23 July 2010
CRIMINAL LAW - PROCEDURE - COSTS - POWER TO AWARD
STATUTES - ACTS OF PARLIAMENT - OPERATION AND EFFECT OF STATUTES - PARTICULAR CLASSES OF STATUTE - PENAL - GENERALLY
Respondent successful in Magistrates Court excluding property from forfeiture under the Criminal Assets Confiscation Act - Magistrate awarded costs against the DPP - whether Magistrate erred in exercising general discretion as to costs - whether s 227 of the Criminal Assets Confiscation Act applies to proceedings to avoid automatic forfeiture under the Act - whether policy behind s 227 was a relevant consideration.
Held: Magistrate properly exercised general discretion as to costs with respect to the respondent's application - Appeal dismissed.
Criminal Assets Confiscation Act 2005 (SA) s 3, s 7, s 24, s 30, s 36, s 40, s 43, ss 46-48, s 52, s 55, s 57, s 61, ss 74-76, s 95, ss 96-98, ss 99-109, s 111, ss 122-123, s 131, s 155, ss 226-227; Magistrates Court Act 1991 (SA) s 37; Proceeds of Crime Act 1987 (Cth) s 30, s 48, s 101; Judiciary Act 1903 (Cth) s 64; Supreme Court Act 1970 (NSW) s 76; Controlled Substances Act 1984 (SA) s 33B, 33C, referred to.
Diez v Director of Public Prosecutions (2004) 62 NSWLR 1, discussed.
DPP v George (2008) 102 SASR 246, considered.
DIRECTOR OF PUBLIC PROSECUTIONS (SA) v DOBIE
[2010] SASCFC 7Full Court: Doyle CJ, Bleby and Sulan JJ
DOYLE CJ: I would dismiss the appeal. I agree with the reasons given by Bleby J. There is nothing that I wish to add.
BLEBY J.
Introduction
So far as is material to this case, the Criminal Assets Confiscation Act 2005 (SA) (“the Act”) provides for a scheme whereby specific property of a person convicted of a serious offence may become the subject of a restraining order.[1] When such an order is made and if no other steps under the Act are taken, the property is forfeited to the Crown at the end of six months after the date of conviction.[2]
[1] Section 24.
[2] Section 74.
This appeal concerns a convicted person’s entitlement to costs where he has obtained an order excluding the property concerned from forfeiture under the Act and has also successfully resisted an application by the Director of Public Prosecutions (“the DPP”) for a pecuniary penalty order under Part 5 of the Act. The DPP argues that the respondent is deprived of any entitlement to costs by the provisions of s 227(1) of the Act.
A magistrate awarded costs of such proceedings to the respondent. The DPP, with permission of a single judge of this Court, has appealed against that order. The same judge has referred the appeal for hearing and determination by the Full Court.
Relevant provisions of the Act
Before relating the relevant facts, it is necessary to examine some of the relevant provisions of the Act.
Commission of a serious offence is not the only basis on which a restraining order may be made. The possible bases are set out in s 24(1) of the Act:
(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.
The question of “literary proceeds” referred to in paragraph (d) is not relevant for the purposes of this case. The expression is defined in s 110 of the Act.
The expressions “proceeds of an offence” and “instrument of an offence” are comprehensively defined in s 7 of the Act. It is not necessary for present purposes to set those provisions out, other than to note that in general terms property is the proceeds of an offence if it is derived or realised from the commission of an offence, and property is an instrument of an offence if it is used in or in connection with the commission of an offence.
A restraining order may be made in respect of property not owned by a suspect or convicted person but in respect of property of another person that is subject to the effective control of the suspect or convicted person or, in the case of a restraining order made under s 24(1)(a) or (b), is proceeds of, or is an instrument of, the serious offence.[3]
[3] Section 24(5).
Section 30 of the Act provides that a registration authority must, on the application of the DPP, record in the register particulars for restraining order covering property of the relevant kind. By definition[4] a registration authority includes the Registrar-General under the Real Property Act 1886 (SA). Effectively, that means that restraining orders, in the case of land, can be registered on the certificate of title.
[4] Section 3.
Section 31(1) of the Act requires the DPP to notify the registration authority if-
(a) the property is no longer covered by the order because –
(i) it is excluded from the order under s 34; or
(ii) the property covered by the order is varied under s 40; or
(b) a condition to which a restraining order is subject is varied under s 40.
Upon such notification s 31(2) requires the registration authority to vary the record of the restraining order accordingly. There is no obligation on the DPP to notify the registration authority if the property ceases to be subject to the restraining order for any other reason or if the restraining order ceases to have any further effect.
Sections 35 and 36 of the Act authorise a person, in certain circumstances, to apply to the court to exclude specified property from a restraining order after being notified of the application[5] or of the order.[6] In either case, the person must give written notice to the DPP of the application and the grounds on which the exclusion is sought,[7] and the DPP must give the person notice of any grounds on which the DPP proposes to contest the application.[8] These sections apply not only to a person suspected of, charged with or convicted of, a serious offence. They also enable a third party whose property is affected by a restraining order to apply for an exclusion order.
[5] Section 35.
[6] Section 36.
[7] Sections 35(2) and 36(4).
[8] Sections 35(3) and 36(5).
So far as is relevant s 34 of the Act provides:
34—Court may exclude property from a 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
(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 under 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.
The nature of a “literary proceeds order” is not relevant for present purposes. The nature of a pecuniary penalty order is discussed below. An instrument substitution declaration is a declaration made under s 48 whereby other property may be substituted for property that was an instrument of the offence.
The making of a restraining order can have serious consequences. They are relevantly set out in s 74 (1) of the Act:
74—Forfeiting restrained property without a forfeiture order if a person has been convicted of a serious offence
(1) Property is forfeited to the Crown at the end of the relevant period if—
(a) a person is convicted of a serious offence; and
(b) either—
(i)at the end of the relevant period, the property is covered by a restraining order that relates to the offence; or
(ii)……………………………….
(c)the property is not subject to an order under section 76 excluding the property from forfeiture under this Division.
(2)For the purposes of this section, it does not matter whether—
(a)the restraining order was made before or after the person’s conviction of the serious offence; or
(b)immediately before forfeiture, the property is the person’s property or another person’s property.
The expression “relevant period” is defined in subsection (6) as follows:
(6) In this section—
relevant period means—
(a) the 6 month period starting on the day of the conviction; or
(b) if an extension order is in force at the end of that period—the extended period relating to the extension order.
The making of an extension order is provided for in s 75:
75— Making an extension order extending the period before property is forfeited
(1) The court that made the restraining order referred to in section 74(1)(b) may make an order (an extension order) specifying an extended period for the purposes of that section if—
(a)an application for the order is made within 6 months after the start of the day of the relevant conviction; and
(b)the applicant has also applied to the court under this Act to exclude property from the restraining order; and
(c)the court is satisfied that the applicant made the application to exclude property from the restraining order without undue delay, and has since diligently followed up that application.
(2) The extended period must end not later than 15 months from the start of the day of the relevant conviction.
(3) The extension order stops being in force if the application to exclude property from the restraining order is finally determined before the end of the 6 month period starting on the day of the relevant conviction.
(4) The extended period ends if the application to exclude property from the restraining order is finally determined before the end of the extended period.
Particular property may be excluded from forfeiture by an application made under s 76. That section provides:
76— Excluding property from forfeiture under this Division
(1) The court that made the restraining order referred to in section 74(1)(b) may make an order excluding particular property from forfeiture under this Division if—
(a) the person referred to in section 74(1)(a)—
(i) applies for the order; and
(ii) owns the property; and
(iii)has been convicted of a serious offence to which the restraining order relates; and
(b) the property is covered by the restraining order; and
(c) the court is satisfied that—
(i) the property is not proceeds of unlawful activity; and
(ii)the defendant’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 such forfeiture.
(2) To avoid doubt, an order under this section cannot be made in relation to property if the property has already been forfeited under this Division.
(3) The person must give written notice to the DPP of both the application and the grounds on which the order is sought.
(4) The DPP—
(a)may appear and adduce evidence at the hearing of the application; and
(b)must give the applicant notice of any grounds on which it proposes to contest the application.
It is to be noted that an application under s 76 can only be made by a person who owns the property and who has been convicted of a serious offence. It does not apply to a third party whose property is subject to a restraining order who has not been convicted of a serious offence. Such a person’s only avenue of relief from automatic forfeiture of the property is to apply under s 35 or s 36 for an order excluding the property from the restraining order.
Apart from automatic forfeiture provided by s 74, there is also provision for forfeiture orders to be made by a court in circumstances described in s 47 of the Act. It is not necessary for present purposes to set those circumstances out. In making such an order the court concerned is exercising a discretion and may have regard to –
(a)any hardship that may reasonably be expected to be caused to any person (other than the suspect) by the operation of the order; and
(b) the use that is ordinarily made, or was intended to be made, of the property; and
(c) the gravity of the offence or offences concerned; and
(d) any other matter the court thinks fit.[9]
This procedure is quite distinct from automatic forfeiture under s 74.
[9] Section 47(4)
Pecuniary penalty orders are provided for in Part 5 of the Act. The circumstances in which a pecuniary penalty order may be made are set out in s 95 (1) of the Act:
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 an amount determined under Subdivision 2 to the Crown if satisfied that the person has been convicted of, or has committed, a serious offence and—
(a)the person has derived benefits from the commission of the offence; or
(b)an instrument of the offence is owned by the person or is under his or her effective control.[10]
[10] It was held in DPP v George [2008] SASC 330; (2008) 102 SASR 246 that s 95(1) should be construed as vesting in Court a discretionary power to make a pecuniary penalty order.
It will be noted that the making of a pecuniary penalty order is not dependent on the making of a restraining order in respect of property which is the proceeds of or is an instrument of a serious offence. On the other hand, the making of a pecuniary penalty order is not excluded by the making of a restraining order.
Sections 99-109 of the Act contain various provisions relating to the assessment of a pecuniary penalty, including reduction by an amount equal to the value, at the time of making the order, of any property that is proceeds of the serious offence if the property has been forfeited under the Act or if an application has been made for a forfeiture order that would cover the property.[11]
[11] Section 107.
Finally, reference must be made to s 46(3) of the Act relating to the cessation of a restraining order. So far as is relevant the subsection provides:
(3)A restraining order ceases to be in force in respect of property covered by the restraining order if—
(a) one of the following occurs:
(i) ………….
(ii) the court excludes the property from a forfeiture order;
(iii)a forfeiture order that covers the property is discharged or ceases to have effect;
(iv)the court excludes the property under section 76 from forfeiture under Part 4 Division 2; and
(b) no application is yet to be determined for—
(i)another confiscation order relating to a serious offence to which the restraining order relates; or
(ii)another confiscation order relating to a related offence; and
(c) no other confiscation order relating to an offence referred to in paragraph (b) is in force.
A confiscation order referred to in paragraphs (b) and (c) includes, by definition, a pecuniary penalty order.[12]
[12] Section 3.
The effect of that subsection is that if the Court excludes the property from forfeiture under s 76 of the Act and there is an outstanding application for a pecuniary penalty order, the restraining order continues in force. It is not automatically terminated upon the disposal one way or the other of the application for a pecuniary penalty order. However, in the case of the subsequent dismissal of such an application the restraining order, although it remains in existence, and may continue to be registered on a certificate of title, has no force or effect.
The facts
On 7 October 2008 the respondent was convicted in the District Court of South Australia of cultivating a commercial quantity of cannabis and possessing a commercial quantity of cannabis contrary to ss 33B(2) and 33C(2) of the Controlled Substances Act 1984 (SA). These offences are “serious offences” for the purposes of s 24 of the Act.
The cannabis was cultivated and stored in a shed on the respondent’s small farming property near Naracoorte (“the property”).
On 4 December 2008 the DPP filed an application for a restraining order in respect of the property pursuant to s 24 of the Act. In that application the DPP also sought a pecuniary penalty order pursuant to s 95 of the Act to be assessed in accordance with s 99.
On 16 January 2009 the Magistrates Court granted a restraining order over the property. The application for the pecuniary penalty order was adjourned to a directions hearing on 13 March 2009. The effect of the restraining order and the respondent’s convictions was that, if nothing else occurred, the property would, by the operation of s 74(1) of the Act, be forfeited to the Crown on 7 April 2009.
On 6 March 2009 the respondent filed an interlocutory application in the Magistrates Court seeking the following:
1.An order pursuant to s 36 of the Act excluding the property from the restraining order;
2.An order pursuant to s 75 of the Act extending the relevant period for the purposes of s 74 (1) of the Act;
3.An order pursuant to s 76 of the Act excluding the property from forfeiture; and
4.An order dismissing the application by the DPP for a pecuniary penalty order.
On 13 March 2009 a Magistrate made an order extending the relevant period for the purposes of s 74(1) of the Act until 7 October 2009, no doubt to enable the respondent’s substantive applications to be heard.
On 25 September 2009 the Magistrate hearing the respondent’s substantive application granted the respondent the relief he had sought, and published reasons. It is not necessary to consider the reasons why the Magistrate granted the relief he did. That is not now in issue. After hearing argument on costs, the Magistrate delivered a judgment on that issue on 23 February 2010, awarding the respondent the costs of the application on a scale fixed at 80% of the Supreme Court scale of costs. In doing so the Magistrate exercised the discretion conferred on the Magistrates Court by s 37(1) of the Magistrates Court Act 1991 (SA) which provides:
37— Costs
(1) Subject to this Act and the rules, costs in any civil proceedings will be in the discretion of the Court and may be awarded against any person (whether a party to or a witness in the proceedings or not).
There was no dispute that these were civil proceedings for the purpose of s 37(1) of that Act.
The DPP argued that the question of costs was governed by the terms of s 227 of the Act. That section provides:
227— Costs
(1) A court may, if—
(a) a person brings, or appears at, proceedings under this Act—
(i)to prevent a forfeiture order or restraining order from being made against property of the person; or
(ii)to have property of the person excluded from a forfeiture order or restraining order; and
(b) the person is successful in those proceedings; and
(c)the court is satisfied that the person was not involved in any way in the commission of the serious offence in respect of which the forfeiture order or restraining order was sought or made, order the Crown to pay the person costs in connection with the proceedings or such part of those costs as is determined by the court.
(2) To avoid doubt, the costs referred to in subsection (1) are not limited to costs of a kind that are normally recoverable by the successful party to civil proceedings
It was argued that because the respondent had been convicted of serious offences in respect to which the restraining order had been made, the Court was precluded from ordering costs in his favour.
The Application of Section 227
The DPP concedes that s 227 does not amount to a code with respect to costs of all proceedings under the Act. Nor does he suggest that it is a code with respect to the circumstances in which an order for costs may be made against the Crown. He acknowledges that there are many judicial proceedings under the Act not mentioned in s 227 which, in respect of costs, remain the subject of the exercise of the general discretion conferred by s 37(1) of the Magistrates Court Act.[13] The question is whether the proceedings in this case, because they included an application to exclude the property from the restraining order or because the other orders sought had that effect, and because the requirement of paragraph (c) could not be fulfilled, the respondent was not entitled to an order for costs.
[13] The list of such proceedings includes:
·an application for a pecuniary penalty order (s 95);
·an application for a literary proceeds order (s 111);
·an application to set aside a disposition (s 32);
·an application varying the conditions of a restraining order (s 40);
·an application for the assumption of custody and control of property by an Administrator and any application as to the manner in which the Administrator is to exercise his or her powers and duties (s 40);
·an application for directions as to the operation of a restraining order (s 40(f));
·an application for ancillary order (s 40(2), s 120);
·an application to revoke a restraining order (s 43);
·an application for an instrument substitution declaration (s 48);
·an application to amend an application for forfeiture (s 52);
·an application for a buyback declaration (ss 55);
·an application for relief for dependants from hardship (s 57);
·an application for a compensation order (s 61);
·enforcements proceedings (s 122);
·a substitution order (s 123);
·an application for an examination order (s 131);
·an application to vary a production order (s 155);
·any appeal under s 226 or subsequent further appeal;
·any application for judicial review.
·
As previously pointed out, there is a difference between a forfeiture order[14] and forfeiture by operation of the Act under s 74. The forfeiture order referred to in s 227(1)(a) can only relate to proceedings under s 47. The respondent has not been involved in any such proceedings. However, his application filed on 6 March 2009 did include an application under s 36 to have the property excluded from the restraining order. On its face, s 227(1)(a)(ii) applied. However, the DPP argued that the order excluding the property from forfeiture also had the same effect. The respondent was successful in those proceedings,[15] but by virtue of his conviction, the Court could never be satisfied that he was not involved in any way in the commission of the serious offence in respect of which the restraining order was made.[16] In those circumstances, the DPP contends that, on the proper construction of s 227, he was not entitled to an order for costs.
[14] Section 47.
[15] See 227(1)(b).
[16] See 227(1)(c).
The respondent succeeded in his application under s 76, and at the same time successfully resisted the DPP’s application for a pecuniary penalty order under s 95. Proceedings under s 76 and s 95 are not mentioned in s 227(1)(a). Proceedings under s 36, in which the respondent was also successful, are.
The criteria for determining applications under each of those sections are different. On application under s 76 the Court must be satisfied that-
(a) the applicant (and no-one else) owns the property;
(b)the applicant has been convicted (and is not merely suspected) of a serious offence to which the restraining order relates;
(c) the property is covered by the restraining order;
(d) the property is not the proceeds of unlawful activity;
(e) the defendant’s interest[17] in the property was lawfully acquired; and
[17] Presumably this means the interest of the applicant under s 76.
(f)it would not be contrary to the public interest for the property to be excluded from forfeiture.
On an application under s 95 the Court must be satisfied that-
(a) the person has been convicted of or has committed a serious offence;
(b) either:
(i) the person has derived benefits from the commission of the offence, or
(ii) an instrument of the offence is owned by the person or is under his or her effective control;
(c)if the property is an instrument of a serious offence, that-
(i)a pecuniary penalty has not been imposed in respect of the instrument; and
(ii)the instrument has not been forfeited or an application has not been made for a forfeiture order that would cover the instrument.
[Emphasis added]
In addition, there may be other factors to be considered which prevent a pecuniary penalty order from being made.[18]
[18] See Sections 96-98.
There are obvious differences in the matters which must be established on these two applications. More importantly, there are obvious differences between the matters to be established on either of these applications, on the one hand, and on an application under s 35 or s 36, on the other hand.
On an application under s 35 or s 36 for removal of the property from a restraining order, s 34 requires that the Court must be satisfied that -
(a)the property is the subject of a restraining order;
(b)that the property is not proceeds of unlawful activity;[19]
(c)the property is not an instrument of unlawful activity;
(d)the owner’s interest in the property was lawfully acquired; and
(e)it would not be contrary to the public interest for the property to be excluded from the order.
There may be other factors to be considered which would prevent an order from being made.[20] Such factors are not relevant for the purposes of s 75. Indeed, had the respondent only applied to exclude the property from forfeiture under s 76 without the DPP’s pecuniary penalty order application being disposed of, s 34(2) of the Act would have prevented the Court from removing the property from the restraining order until after the disposal of the application for the pecuniary penalty order.
[19] “Unlawful Activity” is defined in s 3 as follows;
Unlawful activity means an unlawful act or omission-
(a)that constitutes a serious offence; or
(b)that would, if committed in this state, constitute a serious offence.
[20] See Section 34(2).
Proof of ownership of the property by the applicant is not necessary for the purpose of an order under s 34; it is for an order under s 75. Proof of conviction is not necessary for the purposes of s 34; it is for the purposes of s 75. Proof that the property is not an instrument of unlawful activity is necessary for s 34; it is not for s 75. The relevant public interest for the purpose of s 34 is whether the property should be excluded from the restraining order; the relevant public interest for the purposes of s 75 is whether the property should be excluded from forfeiture. Very different considerations will apply to those questions.
I have said enough to demonstrate that an application under s 75 and an application under s 95 both require very different considerations from an application under s 36. They serve quite different purposes in the scheme of the Act. Success of the respondent in either the s 75 application or the s 95 application will not exclude the property from the restraining order, which is the purpose of an application under s 35 or s 36. It may be a consequence of that combined success that the restraining order, in respect of the property in this case, has no further work to do, but it still remains. If registered on the title to the property it will no doubt affect the respondent’s ability to dispose of or otherwise deal with the property. The point is, however, that the orders made on the respondent’s application had quite different effect from, and the respondent’s applications concerning s 75 and s 95 required quite different considerations from, an application for an exclusion order made under s 34.
For these reasons I conclude that the respondent’s application under s 75 and his opposition the DPP’s application under s 95 were not proceedings to which s 227(1)(a) refers. The Magistrate was therefore at liberty to exercise his general discretion concerning costs in respect of the respondent’s successful application under s 75 and successful opposition the DPP’s application under s 95.
I am comforted in this conclusion by the decision of the New South Wales Court of Appeal in Diez v Director of Public Prosecutions.[21] That case concerned a convicted person’s entitlement to costs under s 101 of the Proceeds of Crime Act 1987 (Cth), a section which is in terms not materially different from s 227 of the Act.
[21] [2004] NSWCA 452; (2004) 62 NSWLR 1.
The scheme of the Act is in many relevant respects similar to that of the Commonwealth Act. Section 30(1) of the Commonwealth Act is equivalent to s 74(1) of the Act. Mr Diez had applied under s 48(3)(g) of the Commonwealth Act for an order varying the property to which the restraining order related to exclude Mr Diez’s interest in the family home from the order, so preventing forfeiture under s 30 of the Act. Such an order would have the same effect as an exclusion order under s 34 of the Act. He also applied under s 48(4) of the Commonwealth Act for an order to declare that the restraining order, to the extent that it related to his family home, should be disregarded for the purposes of s 30. The effect of such a declaration was to obviate automatic forfeiture under s 30. His property was subject to an earlier restraining order and he had been convicted of a serious offence in to relation to which the order was made.
Orders were made in his favour under both sections, the principal order being made under s 48(4). The trial Judge held that s 101 was an exclusive code for the exercise of the court’s discretion in respect of costs against the Commonwealth. He therefore refused to order costs in favour of the appellant. The New South Wales Court of Appeal rejected the argument that s 101 was an exclusive code as the trial Judge had held. Santow JA delivered reasons with which Beazley and Tobias JJA agreed.
Santow JA noted that the Supreme Court’s general discretionary power to award costs against the Commonwealth was derived from s 64 of the Judiciary Act 1903 (Cth) and s 76 of the Supreme Court Act 1970 (NSW), and that s 101 of the Commonwealth Act delineates a particular discretion. His Honour said;[22]
I agree with the appellant’s submission that a convicted defendant who brings or appears at proceedings in order to obtain such an order (an order declaring that a restraining order, to the extent to which it relates to particular property, shall be disregarded for the purposes of s 30) has not sought to have the property “excluded from a … restraining order”. Rather, under s 48(3), the appellant sought to have the restraining order made the subject of a declaration that it is to be disregarded when determining whether the property is automatically forfeited to the Commonwealth under s 30.
[22] Ibid [54], 17.
His Honour rejected a submission of the DPP that the “true legal effect of making such a ‘declaration’ is more accurately characterised (or just as well characterised) as an exclusion of the property from the effect of the restraining order for s 30 forfeiture purposes”.[23]
[23] Ibid [55], 17.
Santow JA added:[24]
However, I do not consider that any ambiguity, if such there be, in s 101(1)
in referring to "excluded" can properly be so resolved by some doctrine of
functional equivalence. Moreover, the sections in addition to s 48(4) cited by
the appellant involve such a degree of contortion to accommodate the result
pressed by the respondent as to be unconvincing in that assertion. …His Honour referred to other sections of the Commonwealth Act which enabled the applicant’s property to be freed from any Commonwealth interest in respect of which the general discretion of the Court would apply with respect to costs. Similar provisions appear in the Act. By parity of reasoning s 227 of the Act has no application to the respondent’s application under s 75 or to his application to dismiss the DPP’s application under s 95.
[24] Ibid [57], 18.
It is clear that the principal purpose and substance of the respondent’s application was to prevent the property from being forfeited to the Crown by the operation of s 74 and to have the DPP’s application for a pecuniary penalty order dismissed. To achieve the former he required an extension order under s 75 extending the relevant period to enable his application under s 76 to be dealt with on the merits. He achieved the required extension order.
There were two reasons why the respondent had to apply also for an order excluding the property from the restraining order. The first was in order to have his application under s 75 for an extension order heard. Without the application to remove the property from the restraining order he would have failed in that application.[25] The second reason for obtaining an order under s 34 for exclusion of the property from the restraining order was in order to ensure that, if the restraining order were registered on the title to the property, the DPP would be required under s 31 to notify the Registrar-General of its removal, and that the record on the title be varied accordingly. There was no other way of ensuring that that would occur.
[25] See Section 75(1)(b).
The application under s 36 was therefore in the nature of a procedural rather than a substantive application. It had to be made if the respondent were to obtain the necessary extension order. The order made under s 34 was merely consequential upon his success on the substantive applications. If there were any additional costs associated with that aspect of the application, they were minimal. They could effectively be ignored by the Magistrate. It is therefore not necessary to deal with the DPP’s argument that s 227 abstracts from s 37(1) of the Magistrates Court Act the power to award costs where the proceeding in relation to which the application is made falls within s 227.
The DPP also argued, however, that, if the Magistrate was able to exercise a general discretion, he failed to take into account a relevant matter, namely the legislative policy evident in s 227. However, the legislative policy evident in s 227 as reflected in par (c) of subsection (1), is only expressed in respect of the very limited and specific proceedings mentioned in subsection (1)(a). There are many other proceedings mentioned in the Act which may involve success on the part of the person convicted of a serious offence in respect of which a restraining order is made. The DPP concedes that those proceedings are outside the purview of s 227. I have concluded that the substantive proceedings in which the respondent was involved were likewise outside the purview of s 227. To take into account what is said to be the legislative policy evidence in s 227 would be to take into account an irrelevant consideration in the exercise of the general discretion under s 37(1) of the Magistrates Court Act.
Accordingly, for these reasons I would dismiss the appeal.
SULAN J: I would dismiss the appeal. I agree with the reasons of Bleby J.
Key Legal Topics
Areas of Law
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Criminal Law
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Statutory Interpretation
Legal Concepts
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Costs
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Appeal
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Statutory Construction
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Remedies
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