Director of Public Prosecutions v Close
[2015] ACTSC 10
•9 February 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Director of Public Prosecutions v Close & Anor |
Citation: | [2015] ACTSC 10 |
Hearing Date: | 12 November 2014 |
DecisionDate: | 9 February 2015 |
Before: | Burns J |
Decision: | See [75] |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – Confiscation of Criminal Assets – penalty order – restraining order – automatic forfeiture order – exclusion order – whether the word “property” in s 31 Confiscation of Criminal Assets Act 2003 (ACT) means a legal or equitable interest in property – HUMAN RIGHTS – whether these proceedings constitute unlawful public authority action – whether the making of a restraining order or automatic forfeiture order in relation to the defendants’ home constitutes unlawful or arbitrary interference pursuant to s 12 of the Human rights Act 2004 (ACT) CONSTITUTIONAL LAW – whether ss 31 and 58 of the Confiscation of Criminal Assets Act 2003 (ACT) are ultra vires the power of the ACT legislature – whether ss 31 and 58 of the Confiscation of Criminal Assets Act 2003 (ACT) impermissibly constrain the discretion of a court capable of exercising federal judicial power contrary to Chapter III of the Australian Constitution |
Legislation Cited: | Australian Constitution Australian Capital Territory (Self Government) Act 1988 (Cth) s 23 Proceeds of Crime Act 2002 (Cth) s 338 |
Cases Cited: Texts Cited: | Attorney-General (NT) v Emmerson [2014] HCA 13 W Hohfeld, ‘Some Fundamental Legal Conceptions as Applied in Judicial Reasoning’ (1913) 23 Yale Law Journal 16 |
Parties: | Director of Public Prosecutions (Plaintiff) Pamela Susan Close (First Defendant) Robert Mark Close (Second Defendant) |
Representation: | Counsel Mr Williamson (Plaintiff) Mr Kukulies-Smith (First Defendant) Mr Purnell SC (Second Defendant) |
| Solicitors Director of Public Prosecutions (Plaintiff) Kamy Saeedi Lawyers (First Defendant) Ken Cush & Associates (Second Defendant) | |
File Number: | SC 864 of 2010 |
Burns J:
Background and procedural history
The first and second defendants are married, although it is suggested that they are currently separated but living under the same roof. They are the registered proprietors as joint tenants of a residential property at Block 9 Section 77 Macgregor in the Australian Capital Territory (ACT), known as 8 Newmarch Place Macgregor (the Macgregor property). They purchased this property in 1974 or 1975 with the aid of a bank mortgage. This mortgage was discharged in January 2010. They are also joint owners of a 2004 Ford Falcon motor vehicle (the motor vehicle). For convenience I will refer to this jointly owned property as the subject property.
Between November 2001 and April 2010, the first defendant was an employee of Australian Capital Territory Totalizator Agency Board Limited (ACTTAB), an ACT owned corporation under the control of a board appointed by the ACT Government. Relying on her familiarity with ACTTAB’s process, during the period stated she processed some 590 dishonest transactions and thereby appropriated to herself a total sum of $1,428,355.20.
Sometime after 23 February 2010, ACTTAB became aware of these dishonest transactions, resulting in a referral of the matter to the Australian Federal Police on 6 May 2010. Criminal proceedings against the first defendant were commenced by way of information in the ACT Magistrates Court on 9 February 2011. A total of 591 charges were laid against her. On 23 June 2011 she pleaded not guilty to the charges and was committed to this Court for trial. An indictment dated 27 May 2013 was filed in this Court, replacing the multitude of charges laid in the Magistrates Court with the following two counts:
FIRST THAT between the 29th day of November 2001 and the 9th day of April 2004 at COUNT Canberra in the Australian Capital Territory PAMELA SUSAN CLOSE defrauded the Territory.
SECOND AND FURTHER THAT between the 15th day of April 2004 and the 9th day of COUNT April 2010 at Canberra aforesaid PAMELA SUSAN CLOSE obtained a financial advantage by deception from someone else.
The first defendant entered pleas of guilty to these charges and on 12 August 2013 was sentenced to imprisonment.
On 15 December 2010 the plaintiff, the ACT Director of Public Prosecutions (the DPP) commenced these proceedings under the Confiscation of Criminal Assets Act2003 (ACT) (the COCA) seeking orders pursuant to s 31 of that Act that the Macgregor property and the motor vehicle be restrained. On 17 December 2010, Master Harper heard an ex parte application by the DPP and ordered that the interest of the first defendant in the subject property be restrained. That order was extended by Master Harper on 25 January 2011 because, at that time, no charges had yet been laid against the first defendant. It is common ground that by operation of the COCA the restraining order made by Master Harper was still in force as at 12 August 2013 when the first defendant was convicted and sentenced. The discordance between the orders sought by the DPP and those made by the Master has been the source of confusion in these proceedings. For reasons I will explain, I am satisfied that the Master approached the issue before him erroneously, in particular with regard to the meaning of the word “property” in s 31.
The DPP asserts that, by operation of s 58 of the COCA, the subject property is liable to automatic forfeiture to the Territory. On 23 August 2013 the first and second defendants filed separate applications seeking exclusion orders pursuant to s 77 of the COCA, with the first defendant relying on s 77 (2) and the second defendant relying on s 77 (4). Both defendants also sought orders under the Human Rights Act2004 (ACT) (the HRA), although the first defendant later abandoned this part of her application. Both defendants also sought orders setting aside the restraining order and striking out the DPP’s application as an abuse of process. The first defendant also filed and served notice of a matter arising under the Australian Constitution as required by s 78B of the Judiciary Act1903 (Cth), raising the argument that s 31 and s 58 of the COCA are ultra vires the power of the ACT legislature as they impermissibly constrain the discretion of a court capable of exercising federal judicial power contrary to Chapter III of the Constitution.
On 28 October 2014, the DPP lodged a further application seeking a penalty order in the amount of $1,098,709.30 be made against the first defendant. It is convenient to consider this application first, as it has consequences for the applications perused by the defendants.
The penalty order application
A penalty order is an order under Division 7.2 of the COCA for the payment by an offender of the value of benefits derived by an offender from the commission of an offence: s 82. An application for a penalty order may be made by the DPP before, after or at the time of any conviction of the offender for the offence: s 83. On application under s 83, the Court must make an order for the payment by the offender of the value of benefits derived by the offender from the commission of a serious offence if the Court is satisfied on the balance of probabilities that the offender committed a relevant offence within the relevant period: s 85 (1). A relevant offence is one punishable by imprisonment for longer than 12 months: s 13 (2). The relevant period, where a restraining order is in place over any property in relation to the serious offence, is six years before the day the application to restrain the property was made: s 85 (5) (a). If a restraining order is not in force over any property in relation to the serious offence, the relevant period is six years before the day the application for a penalty order is made: s 85 (5) (b).
A serious offence is one punishable by imprisonment for five years or longer: s 13 (2). The offences of which the first defendant was convicted each carried a maximum penalty of 10 years’ imprisonment, so they were both relevant offences and serious offences for the purposes of the COCA.
Property or a benefit is derived if it is derived or realised, whether completely or partly and whether directly or indirectly: s 12 (1). Benefits derived by the offender from the commission of an offence include “tainted property” and “any service or other advantage derived from the commission of the offence”: s 80. “Tainted property”, in relation to an offence, is defined in s 10 (1) to mean:
(a)property that was used, or was intended by an offender to be used, in relation to the commission of the offence; or
(b)property that was derived by anyone from the commission of the offence; or
(c)property that was derived by anyone from property mentioned in paragraph (a) or (b)...
One of the examples of tainted property for s 10 found in the COCA is:
4.A house in relation to which a mortgage is partly or completely discharged using money stolen during the commission of [an offence]...
Such an example is part of the Act, is not exhaustive, and may extend, but does not limit the meaning of the provisions in which it appears: see s 126 and s 132 Legislation Act 2001 (ACT).
In the instant case there is no evidence that the first defendant used the subject property in the commission of the offences, or that they were derived, in the sense to which I have referred, from the commission of the offences. There is, for example, no evidence that the first defendant, or anyone else, paid monies derived from the commission of the offences towards discharge of the mortgage over the Macgregor property. In its written submissions the DPP concealed that there “never has been any suggestion that the restrained property is the proceeds of crime”. I am not satisfied that either the Macgregor property or the motor vehicle is “tainted property” for the purposes of the COCA.
The evidence establishes that in the period of six years before the application for the restraining order was made the offences committed by the first defendant yielded to her the sum of $1,098,709.30. This constituted an advantage derived by the first defendant from the commission of the offences, and as such is a benefit derived by her from the commission of her offences for the purposes of s 80.
It is quite clear that the serious offence in the second count on the indictment was committed entirely within the relevant period of six years before the application for the restraining order was made as provided by s 85 (5) (a). I am satisfied that the first defendant committed a serious offence in the period of six years prior to the commencement of the application for a restraining order over the Macgregor property and the nominated motor vehicle. I am further satisfied that she derived a benefit from that serious offence, being a sum of $1,098,709.30. I am satisfied, for the reasons I shall give, that there is a restraining order in force over the subject property. I am therefore obliged by the provisions of s 85 of the COCA to make a penalty order.
What was the “property” restrained by the Master?
The word “property” is susceptible to many meanings. W.Hohfeld, in his article ’Some Fundamental Legal Conceptions as Applied in Judicial Reasoning’ (1913) 23 Yale Law Journal 16 (quoted in “Australian Property Law”, 9th Edition 2013) said about the varying senses in which the word may be used:
Sometimes it is employed to indicate the physical object to which various legal rights, privileges etc relate: then again – with far greater discrimination and accuracy – the word is used to denote the legal interest (or aggregate of legal relations) appertaining to such physical object.
The term “property” is defined in the Dictionary to the COCA, for present purposes, by reference to property of a person, as including property in which a person has a beneficial interest. The term is also defined in Part 1 of the Dictionary to the Legislation Act as “any legal or equitable estate or interest (whether present or future, vested or contingent, or tangible or intangible) in real or personal property of any description”. The Master, in making a restraining order which restrained only the first defendant’s interest in the subject property, clearly utilised the meaning of the term as denoting the bundle or aggregate of legal interests or relations pertaining to the physical property. In my opinion this approach was incorrect and the term as used in Division 4.2 primarily denotes the physical object itself, although the meaning throughout the COCA may be ambulatory.
Problems arise with respect to the operation of the COCA if the approach utilised by the Master is adopted. These problems primarily arise in the application of provisions of the COCA concerning the rights of innocent third parties after forfeiture of property by operation of the legislation. For example, if the “property” is the first defendant’s interest in the subject property, it is doubtful whether the second defendant “has an interest in the property” so as to entitle him to seek an exclusion order under s 77 (4), as it is nonsensical for the second defendant to have an interest in the first defendant’s interest in the subject property. Similarly, it is doubtful whether he would be entitled to apply for payment out of the proceeds of the sale of the forfeited property under s 119, no matter what his and the first defendant’s relative contribution to the purchase, maintenance, and improvement of the property. These apparent anomalies are avoided if the term “property” is interpreted as primarily meaning the physical property, and not the rights at law or in equity attaching to that physical property.
I note that the definition of “property”, as it relates to a person, in the Dictionary to the COCA, specifically includes “property in which the person has a beneficial interest”, which also suggests that the term is intended to refer to physical property.
In Director of Public Prosecutions (Cth) v Hart (No.2) [2005] 2 Qd R 246, the Queensland Court of Appeal (McPherson and Williams JJA, Chesterman J) considered the meaning of the term “property” in s 338 of the Proceeds of Crime Act 2002 (Cth). That section provides, relevantly for present purposes:
In this Act, unless the contrary intention appears:
...
interest, in relation to property or a thing, means:
(a)a legal or equitable estate or interest in the property or thing; or
(b)a right, power or privilege in connection with the property or thing;
whether present or future or vested or contingent.
...
property means real or personal property of every description, whether situated in Australia or elsewhere and whether tangible or intangible, and includes an interest in any such real or personal property.
Whilst the Proceeds of Crime Act2002 provides a definition of “property” and “interest” within the Act itself, whereas the COCA largely relies on a definition found in the Legislation Act, the definitions are effectively the same. The issues in Hart have parallels to the present case. The Proceeds of Crimes Act permitted a court, under specified circumstances, to make a restraining order against specified property of a person that is “under the effective control of the suspect”. The Court, in proceedings in which Hart was nominated as the “suspect”, made a restraining order over property consisting of several aircraft and allotments of land. Several corporations sought exclusion orders in relation to this property on the basis that they were the owners of the property and that Hart did not have effective control of the property. After referring to the definitions of “property” and “interest” in s 338 of the Proceeds of Crime Act, McPherson JA said, at [19] to [20]:
However, the appellants submitted that his Honour erred in approaching the “property” in this case as being the thing or object itself – the individual aircraft or allotments or land or other objects – rather than the particular legal or beneficial interest held by someone in that thing or object. This error was said to be implicit in the fourth sentence in para 166 of his Honour’s reasons in which he found that Hart “continues to treat the companies’ property as his own”.
In support of this contention, reference was made to Yanner v Eaton (1999) 201 C.L.R 351, 365-366, where Gleeson CJ, Gaudron, Kirby and Hayne JJ said:
“The word ‘property’ is often used to refer to something that belongs to another. But in the Fauna Act, as elsewhere in the law, ‘property’ does not refer to a thing; it is a description of a legal relationship with a thing. It refers to a degree of power that is recognised in law as a power permissibly exercised over the thing”.
It followed, or so the appellants said, that the word “property” as defined in s 338 of the Act means not the aircraft or land or “thing” itself but some right or interest in it over which Hart, if at all, exercised effective control, and this the DPP had failed to specify or establish. I am, however, quite unable to accept this proposition. The word “property” is plainly capable of meaning either or both of the thing owned or ownership of the thing; as when one says of something that “that property is my property”. In Yanner v Eaton, the relevant provision under consideration, which was s 7 (1) of the Fauna Conservation Act1974, provided that all fauna, meaning or including wild animals, “is the property of the Crown”. In that context, “property” referred to ownership, and not to the wild animal itself which was, or was claimed by the Crown under the Act to be, the subject of its ownership. It is plainly not in this sense, but in the sense of a thing or object (or res as the Roman lawyers would have called it) that the word “property” is used in s 338. To ascribe to it in that context the meaning “ownership” would make nonsense of the statutory definition, as well as of the related definition of the word “interest”, which speaks of an estate or interest “in the property or thing”. Indeed s 29 (4) speaks of “property” that is “owned” or “not owned”; and one does not naturally speak of ownership being owned. Taken together, the statutory meanings of “property” and “interest” are perhaps capable of referring to either or both of the object owned and the ownership of or an interest in it. But the primary meaning of “property” in s 338 (1) is the thing itself.
In my opinion, the primary meaning of “property” in the definition in the Legislation Act, and accordingly in the COCA, is “the thing itself” and not the legal or equitable interest that an individual may have in the thing.
In the instant case, the first defendant was the joint proprietor of the subject property. When the Master restrained the first defendant’s interest in the subject property, he effectively restrained the entirety of the physical property. Any forfeiture of the subject property affected by the COCA therefore affects the forfeiture of the property as a whole.
Was the property the subject of automatic forfeiture?
The DPP asserts that the subject property is subject to automatic forfeiture to the Territory by virtue of the operation of s 58 of the COCA. I am satisfied that the subject property is not subject to automatic forfeiture, but it will be necessary to refer to the provisions of the COCA in some detail to explain why.
The purposes of the COCA are set out in s 3:
3Purposes of Act
The purposes of this Act include the following:
(a)to encourage law abiding behaviour by the community;
(b)to give effect to the principle of public policy that a person should not be enriched because of the commission of an offence, whether or not anyone has been convicted of the offence;
(c)to deprive a person of all material advantage derived from the commission of an offence, whatever the form into which property or benefits derived from the offence may have been changed;
(d)to deprive a person of property used, or intended by an offender to be used, in relation to the commission of an offence, whatever the form into which it may have been changed, and to prevent the person from using the property to commit other offences;
(e)to enable the effective tracing and seizure by law enforcement authorities of property used, or intended by an offender to be used, in relation to the commission of an offence and all material advantage derived from the offence;
(f)to provide for the enforcement in the ACT of orders, notices or decisions (however described) made under corresponding laws.
In the explanatory memorandum to the Confiscation of Criminal Assets Bill 2002 (ACT) (which became the COCA), after referring to the 1999 Australian Law Reform Commission paper “Confiscation that Counts”, it is said about clause 3 (now s 3):
The most significant purpose in clause 3, in terms of the underlying philosophy of the Bill, is giving effect to the principle that a person should not enriched by crime. In formulating its recommendations to reform, the ALRC asked whether this principle “is a concept limited to recovery of the profits of criminal conduct in respect of which a conviction has been recorded or is capable of wider application to unjust enrichment as a result of unlawful (as opposed to strictly criminal) conduct in the broad”. The ALRC went on to observe, at paragraphs 2.63 to 2.66 of the Report:
“The answer to this question is of pivotal importance in addressing the key issue whether the current conviction based scheme might justifiably be complemented by a non-conviction based civil scheme similar in concept to the non-conviction based schemes in the Criminal Asset Recovery Act (NSW) and in the Confiscation Act (VIC).
If the conclusion is reached that the justification for confiscation of profits springs from conviction for a criminal offence, the establishment of a complementary civil regime under which confiscation would follow from a civil finding of unlawful conduct on the balance of probabilities could be seen to give rise to civil liberties concerns. Specifically, the question might be raised whether what was seen as in essence a remedy ancillary to a finding of proven criminality beyond a reasonable doubt could now be brought to bear on a defendant without such a finding, i.e. by the discharge of the lower civil burden of proof.
If, on the other hand, the better analysis is that the denial of profits is to be regarded as rooted in a broader concept that no person should be entitled to be unjustly enriched form any unlawful conduct, criminal or otherwise, conviction of a criminal offence could properly be seen as but one circumstance justifying forfeiture rather than as the single precipitating circumstance for recovery of unjust enrichment.
It is the Commission’s considered opinion that the latter analysis is to be preferred. Its assessment is based on public policy considerations, taking into account a clear pattern of developing judicial and legislative recognition of a general principle that the law should not countenance the retention by any person, whether at the expense of another individual or society at large, of the profits of unlawful conduct”.
It should be noted that punishment of offenders is not included among the purposes of the proposed Act. In paragraph 2.74 of its report, the ALRC drew the following distinction between confiscation and punishment:
“The concept that a person should not be entitled to be unjustly enriched by reason of unlawful conduct is distinguishable from the notion that a person should be punished for criminal wrongdoing. That is to say that, while a particular course of conduct might at the one time constitute both a criminal offence and grounds for the recovery of unjust enrichment, the entitlement of the state to impose a punishment for the criminal offence, and the nature of that punishment, are independent in principle from the right of the state to recover the unjust enrichment and vice-versa”.
This distinction is given expression in the Bill by the inclusion of proposed section 236, which confirms that confiscation proceedings under the proposed Act are to apply the rules and principles of evidence and procedure that govern other civil proceedings. It is also reflected in item 1.10 of Schedule 1 of the Bill. This item amends section 344 of the Crimes Act 1900 to make it clear that a court, in sentencing an offender, must not reduce the severity of the sentence that would otherwise be imposed because of any forfeiture order or penalty order under the proposed Confiscation of Criminal Assets Act 2002.
I note that clause 236 in the Bill, referred to in the extract above, became section 237 in the COCA.
What is very clear from the above is that the focus of the COCA is on the avoidance of enrichment of offenders by reason of their offences. It is not a purpose of the COCA to punish offenders. In interpreting the provisions of the COCA, the interpretation that best achieves the purposes of the Act is to be preferred to any other interpretation: s 139 (1) Legislation Act.
It is useful to consider the circumstances in which the COCA anticipates forfeiture of property may occur, and the circumstances in which it provides that property may be restrained. There are three general ways in which property may be subject to confiscation under the COCA:
(a)confiscation on conviction;
(b)confiscation without conviction (civil forfeiture orders); and
(c)penalty orders.
A conviction forfeiture order may be made on application by the DPP where a person is convicted of a relevant offence, but such an order is restricted to “tainted property”: s 53 and s 54. It follows that a conviction forfeiture order requires the court to be satisfied that there is a connection between the property to be forfeited and the offence committed by the offender.
Another form of confiscation on conviction is an automatic forfeiture order under Division 5.2 of the COCA, which occurs where a person is convicted of a serious offence and a restraining order is made, whether before or after the conviction, over property in relation to the offence, or a related serious offence, committed by the person. The phrase “in relation to” may imply a number of different relationships. Inclusive definitions of the phrase are found in the Dictionary to both the COCA and the Legislation Act. The phrase, as used in s 58 (1) of the COCA, dealing with automatic forfeiture, may be interpreted as requiring a connection between the property to be forfeited and the offence committed by the offender, or it may simply refer to property specified in a restraining order made in respect of, or with regard to, a serious offence, or related serious offence, which is the basis of the restraining order. In my opinion, the latter interpretation is to be preferred. If the first of these interpretations were adopted, it would require the establishment of some form of connection between the property to be forfeited and the acts of the offender that constitute the serious offence. The DPP are not required to assert such a connection in the application for a restraining order, and the COCA does not provide for a judicial determination of any such connection prior to forfeiture. The provisions of s 59 permit the DPP to apply to the court for an order declaring that the property has been automatically forfeited, but this, it appears, is a machinery provision directed towards facilitating enforcement procedures, which is supported by the section granting the power to make such a declaration to the registrar of the court. In addition, it is difficult to imagine how s 77 (2) of the COCA, relating to applications for exclusion orders by offenders, could operate in such circumstances.
A civil forfeiture order may be made with respect to restrained property where the court is satisfied on the balance of probabilities that a person has committed a serious offence within a period of six years before the day the application to restrain the property is made, or such further period as is allowed by the court: s 67. It is very clear from the provisions concerning civil forfeiture orders that no connection between the property to be forfeited and the offence committed by the offender needs to be established before a forfeiture order can be made.
I have already considered the circumstances in which a penalty order can be made. A penalty order may be satisfied out of the property of an offender, even where there is no connection between the offending and the acquisition of the property. The proposition that property of an offender may be subject of confiscation by the State without proof of connection between any offence committed by the offender and the property may appear surprising to contemporary lawyers, but this is not a novel proposition, as was observed by the majority (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) in Attorney-General (NT) v Emmerson [2014] HCA 13, at [16]:
Forfeiture or confiscation of property, in connection with the commission of serious crime, has a long history in English law. Until its abolition by statute in 1870, a felon incurred general forfeiture of property, a sanction stretching back to medieval times.
[footnotes omitted]
The COCA does not provide for confiscation of all property owned by those who commit serious offences. To the extent that it allows confiscation of property not demonstrated to be the product of criminal offending, or used in such offending, it provides mechanisms to ameliorate any harsh or unjust result. I will refer to those mechanisms later.
Not surprisingly, the COCA also makes provision for restraining orders. A restraining order may be made to preserve property so that it will be available for one or more of the following purposes, as set out in s 22:
22Restraining orders – purposes
A restraining order may be made to preserve property so that the property will be available for 1 or more of the following purposes:
(a) for forfeiture under a conviction forfeiture order;
(b) for automatic forfeiture;
(c) for forfeiture under a civil forfeiture order;
(d) to satisfy a penalty order.
The provisions of s 26 of the COCA allow the DPP to apply to a court for a restraining order, nominating the offence to which the application relates; when it is alleged the offence was committed; the person alleged to have committed the offence; the person whose property the application relates to; and the property to be restrained. The application must be supported by an affidavit by a police officer stating, relevantly for present purposes, that the officer suspects that the offender has committed a stated relevant offence, and that it is intended, within a stated period, to present an indictment against the offender for the offence or a related serious offence: s 29. The affidavit must also state that the police officer believes that the property sought to be restrained may be required to satisfy a purpose mentioned in s 22 of the COCA, although no specific purpose need be stated in the affidavit. The reference to the presentation of an indictment in s 29 includes the commencement of proceeding by information: see the definition of “indictment” in Part 1 of the Dictionary to the Legislation Act.
The Originating Application of 15 December 2010 sought an order that the subject property be restrained. It was supported by an affidavit by a police officer stating that the officer “alleged” the first defendant had dishonestly appropriated the sum of $1,441,865.90 in Australian currency from ACTTAB. The provisions of s 29 require an affidavit in support to depose to the fact that the police officer making the affidavit “suspects” that the offender has committed a stated relevant offence. Whilst it is always wise to use the language of the statute, I am satisfied that nothing turns upon this apparent discrepancy. A willingness to allege that an offender has committed an offence speaks of a higher degree of certainty in the mind of the officer than mere suspicion. The officer’s state of mind, as stated in the affidavit, encompasses and goes beyond that which is required to be stated by s 29.
The police officer, in this affidavit, said that he believed the subject property may be required to “satisfy one or more of the purposes mentioned in section 22 of the [COCA]”, and then, somewhat unnecessarily, also stated that he believed it may be “required to satisfy a penalty order”.
The first defendant argued that there were aspects of the application for a restraining order “that may have put it outside the requirements of” the COCA. There is much to be said for the submission of the DPP that the defendants are not entitled, in these proceedings, to challenge the validity of the orders made by the Master, but I will nevertheless consider each of the objections raised by the first defendant to the validity of the order. This is, I think, an appropriate approach where the first defendant has sought an order under s 43 revoking the restraining order.
First, she says, there is a discordance between the offence referred to in the application and that alleged in the supporting affidavit. The Originating Application alleges that the first defendant “dishonestly and by deception” obtained money from ACTTAB, but it goes on to say that the precise charges would be particularised in indictments to be laid. In any event, s 29 (2) does not require a police officer to specify a particular offence, and it is sufficient if the police officer “suspects that the offender has committed a particular kind of offence and the affidavit describes the nature of the offence in general terms”. It is obvious that an application for a restraining order will frequently be made, of necessity, so as to preserve property at a time when the police, or the DPP, have not had an opportunity to thoroughly investigate alleged criminal activity and to formulate precise charges. The provisions of the COCA concerning restraining orders recognise this fact and do not require precision in setting out the charges the offender is suspected of committing.
Second, the first defendant argues that the application does not comply with the requirements of s 26 of the COCA in that it does not state when the first defendant’s offences are said to have been committed. There is some merit in this complaint, as the application does not specify when the offences were allegedly committed, and this is a requirement of s 26 (2). I note, however, that the affidavit in support does set out the dates between which the offences were allegedly committed, so that the Master was aware of those dates. The legislative purpose in requiring an application to include this information is to provide the Court, and any respondent upon whom the application is served, with relevant particulars. In the present case this was achieved through particularising the dates of the offending in the supporting affidavit. The failure of the DPP to strictly comply with the requirements of s 29 does not invalidate these proceedings or the restraining order made by the Master.
The above should not be taken as an endorsement of the DPP’s failure to draft the application in accordance with the provisions of s 29 (2). Where an application is to be made ex parte, as here, the DPP should be especially vigilant to ensure that it strictly complies with the relevant legislative requirements.
Third, the first defendant complains that the application did not state that the property sought to be restrained was jointly owned by the first and second defendants. There is no merit in this complaint. The COCA does not require such information to be pleaded in the application (s 26), nor is it information required to be included in the supporting affidavit: s 29. The first defendant’s complaint is that the subject property was described as her property, rather than property which was jointly owned. Under a joint tenancy, each tenant shares the rights of the tenancy equally. If a joint tenant dies during the terms of the tenancy, the remaining tenants continue to hold the entire estate granted under the tenancy. Similarly, each joint owner of a chattel such as a motor vehicle may be property described as the owner. In this sense, it was accurate to describe the subject property as property of the first defendant.
The first defendant next submits that the property at Macgregor is not property “owned” by the first defendant, as in the ACT the underlying ownership of land remains with the Commonwealth. The use of the word “owned” in this context by the first defendant is misconceived. The provisions of s 31 require a court to be satisfied before making a restraining order that there are reasonable grounds for the belief and suspicions stated by a police officer in the affidavit in support of the application. The belief and suspicions required to be stated by the police officer are set out in s 29, which makes no reference to ownership of property. Relevantly, the officer must state that he or she holds a suspicion that the property specified in the application “is either the offender’s property or the property of someone else”. As I noted earlier, the meaning of the term property in the COCA is ambulatory, and the phrase “the offender’s property” in s 29 includes property in which the person has a beneficial interest: see definition of property in the Dictionary to the COCA. As a joint registered proprietor it is beyond question that she has a beneficial interest in the property at 8 Newmarch Place, Macgregor.
The first defendant also complains that the affidavit in support of the application “placed the offending behaviour between 15 January 2010 and 9 April 2010”, and that the value of the property obtained by the first defendant during that period was only $60,567.90. The first defendant suggests “this may have significance given the terms of s 27 (3) of the COCA”, which relevantly provides that an application for a restraining order in relation to a serious offence must be made, where no indictment has been presented against the offender for the offence, within six years after the day the offence was committed. I confess to having some difficulty in understanding the point the first defendant is raising in this complaint. At the time that a restraining order is sought it will frequently be the case that police or other official investigations into the conduct of the owner (in its commonly understood sense) of the property will be ongoing. The purpose of a restraining order is to preserve property so that it will be available for forfeiture or to satisfy a penalty order: s 22. With regard to conviction forfeiture orders (Division 5.1), automatic forfeiture (Division 5.2) and civil forfeiture orders (Division 5.4), any discrepancy between the offending as alleged in the application for restraining order, or the supporting affidavit, and the offences ultimately established against the offender is not determinative of any confiscation proceedings. A conviction forfeiture order may be made on conviction of the offender of a relevant offence: s 53 and s 54. Automatic forfeiture occurs where an offender is convicted of a serious offence and a restraining order is made over property in relation to the offence or a related serious offence committed by the person. An offence is related to another offence if the physical elements of the two offences are the same, or substantially the same, acts or omissions: s 13 (3). A civil forfeiture order may be made where the court is satisfied that a person has committed a serious offence. None of these provisions require that the offence which underpins the making of the order of forfeiture, or the automatic forfeiture, be precisely the same offence alleged in any application for a restraining order or an affidavit in support of such an application.
In any event, in the present case the application for a restraining order makes no reference to the date or dates of the offending conduct of the first defendant, and the affidavit of Detective Acting Sergeant Bradley Kenneth McEwan in support of the application refers to an allegation that “between 20 November 2001 and 9 April 2010 [the first defendant] did dishonestly appropriate...Australian currency from ACTTAB to the sum of $1,441,865.90”. There is no substance to this complaint.
The first defendant also complains that the orders made by the Master did not specify the nature of the first defendant’s interest in the Macgregor property, nor the extent of that interest vis a vis the second defendant. Further, she says that the Master’s order with respect to the motor vehicle does not identify which defendant’s interest is restrained. The first defendant submits:
In these proceedings the failure to properly identify the property to which the application relates means that this Court should not have been and cannot now be satisfied for the purposes of section 31 (2) (a) of [the COCA] “that there are reasonable grounds for the officer’s beliefs and suspicions stated in the affidavit. As a consequence the mandatory requirement for the making of restraining order (sic) was not and is not made out. Having regard to the fact that the restraining order was made without notice to the First Defendant this means that the Court should be satisfied for the purposes of section 43 of [the COCA] that “there were not and are no longer, sufficient grounds for the making of the order” and hence the order should be revoked under section 43.
The provisions of the COCA do not require a restraining order to specify the precise interest an offender or alleged offender has in the property to be restrained. Often the precise nature of any such interest will not be known to the DPP at the time of the application. As I have said, the primary meaning of the word property as used in the provisions of the COCA concerning restraining orders is the physical property itself.
One of the mechanisms provided by the COCA to avoid harsh or unjust outcomes is found in s 43, which allows a person with an interest in restrained property to apply for revocation of a restraining order made ex parte, but the court cannot make an order revoking the restraining order unless it is satisfied that “there were not and are no longer, or there are no longer, sufficient grounds for making the order”. The first defendant seeks an order under s 43. If the restraining orders were to be revoked, the subject property would not be subject to automatic forfeiture. I will now consider the application under s 43.
In her application the first defendant relied upon the alleged invalidity of s 31 and s 58 of the COCA by virtue of their alleged contravention of s 23 (1) (a) of the Australian Capital Territory (Self Government) Act 1988 (Cth) (the Self Government Act) as a ground for this Court to make an order under s 43 of the COCA. Section 23 (1) (a) of the Self Government Act provides that the ACT Legislative Assembly has no power to make laws with respect to the acquisition of property otherwise than on just terms. The first defendant did not formally address this contention in her submissions, but nor did she formally abandon it. The same arguments now raised by the first defendant were rejected by the High Court in Attorney-General (NT) v Emmerson with respect to the Criminal Property Forfeiture Act (NT). I am satisfied that these provisions do not contravene s 23 (1) (a) of the Self Government Act.
I have already addressed a number of complaints made by the first defendant concerning the validity of the restraining order made by the Master, but there is a further matter to which I should refer in the context of the first defendant’s application under s 43, and which could have some bearing upon whether there had been sufficient grounds for the making of the restraining order. In his affidavit in support of the application for a restraining order, Detective McEwan deposed to his suspicion that the first defendant had committed a stated relevant office and that he believed the subject property may be required to satisfy a purpose mentioned in s 22, consistent with the requirements of s 29. It is, however, a further requirement of s 29 that the officer state in the affidavit that it is intended, within a stated period, to present an indictment against the offender for the offence, or a related serious offence: s 29 (1) (b) (ii) (A). Unfortunately, the affidavit of Detective McEwan does not comply with that requirement, merely stating: “At this stage the Police investigation is still ongoing in relation to the allegation... and it is anticipated that [the first defendant] will be charged with offences that relate to this allegation”. This does not comply with the requirement that the officer state that it is intended, within a stated period, to present an indictment against the first defendant.
This omission on the part of Detective Acting Sergeant McEwan does not assist the first defendant. Even if I were to be satisfied that there were no sufficient grounds for the Master to make the restraining order, s 43 (2) prohibits me from revoking the order unless I am satisfied that there are no longer sufficient grounds for making the order. I am not so satisfied. The first defendant has been convicted of an offence that was committed within six years before the DPP applied for a restraining order. She received a benefit from that offence in the amount of $1,098,709.30. She is now the subject of a penalty order in that sum. She has an interest in the subject property which may be utilised to satisfy one of the purposes of a restraining order (s 22), being to satisfy a penalty order. The application to revoke the restraining order must be refused.
The second defendant has taken somewhat different objections to the continued operation of the restraining order made by the Master. The second defendant contends that these proceedings constitute unlawful public authority action by the DPP in that it is contrary to the second defendant’s rights found in s 12 of the HRA. The relevant provisions of the HRA, as relied upon by the second defendant, are:
12Privacy and reputation
Everyone has the right –
(a)not to have his or her privacy, family, home or correspondence interfered with unlawfully or arbitrarily; and
(b)not to have his or her reputation unlawfully attacked.
40BPublic authorities must act consistently with human rights
(1)It is unlawful for a public authority –
(a)to act in a way that is incompatible with a human right; or
(b)in making a decision, to fail to give proper consideration to a relevant human right.
(2)Subsection (1) does not apply if the act is done or decision made under a law in force in the Territory and –
(a)the law expressly requires the act to be done or decision made in a particular way and that way is consistent with a human right; or
(b)the law cannot be interpreted in a way that is consistent with a human right.
NoteA law in force in the Territory includes a Territory law and a Commonwealth law.
(3)In this section:
human rights do not include the economic, social and cultural rights in part 3A.
public authority includes an entity for whom a declaration is in force under section 40D.
40CLegal proceedings in relation to public authority actions
(1)This section applies if a person –
(a)claims that a public authority has acted in contravention of section 40B; and
(b)alleges that the person is or would be a victim of the contravention.
(2)The person may –
(a)start a proceeding in the Supreme Court against the public authority; or
(b)rely on the person’s right under this Act in other legal proceedings.
(3)A proceeding under subsection (2) (a) must be started not later than 1 year after the day (or last day) the act complained of happens, unless the court orders otherwise.
(4)The Supreme Court may, in a proceeding under subsection (2), grant the relief it considers appropriate except damages.
(5)This section does not affect –
(a)a right a person has (otherwise than because of this Act) to seek relief in relation to an act or decision of a public authority; or
(b)a right a person has to damages (apart from this section).
NoteSee also s 18 (7) and s 23).
(6)In this section:
public authority includes an entity for whom a declaration is in force under section 40D.
I will assume for present purposes that the Macgregor property is the second defendant’s home for the purposes of s 12 of the HRA. I will also assume that the DPP is a public authority for the purposes of s 40B and s 40C of the HRA. I will further assume that the making of the restraining order, and any forfeiture of the property, or sale of the property to satisfy the penalty order against the first defendant, amounts, or will amount, to an interference with the second defendant’s home for the purposes of s 12. The question is whether, as the second defendant submits, such interference is arbitrary (it being clear it is not unlawful).
Senior counsel for the second defendant referred me to a number of formulations of the meaning of the term “arbitrary” in human rights law. In Minister for Immigration and Multicultural and Indigenous Affairs v AI Masri (2003) 126 FCR 54 the Full Court of the Federal Court (Black CJ, Sundberg and Weinberg JJ) said regarding the prohibition on arbitrary arrest or detention in Article 9 of the International Covenant on Civil and Political Rights:
[W]e conclude that the text of Art 9... requires that arbitrariness is not to be equated with “against the law” but is to be interpreted more broadly, and so as to include a right not to be detained in circumstances which, in the individual case, are “unproportioned” or unjust.
In Nolan v MBF Investments PtyLtd [2009] VSC 244, the plaintiff was the owner of three adjoining parcels of land which were mortgaged to the defendant. The plaintiff defaulted under the mortgage, leaving all three blocks subject to the exercise by the defendant of its statutory power of sale. Two of the parcels comprised vacant land, however the plaintiff’s home was sited on the third parcel. The plaintiff claimed that sale of the two vacant parcels would be sufficient to satisfy the mortgage, however the defendant sold all three at public auction. The plaintiff claimed that the defendant, by selling the parcel on which his home was sited when it was unnecessary to do so, breached its obligation under s 77 (1) of the Transfer of Land Act1958 (VIC) to act in good faith and have regard to the interest of the mortgagor in any sale. In finding in favour of the plaintiff, Vickery J referred to Article 12 of the Universal Declaration of Human Rights which prohibits arbitrary interference with a persons home, and to Article 8 which provides individuals have a right to respect for, inter alia, his home, before considering the concept of “arbitrary interference”:
168 In the international law instruments to which I have referred, the right to protection afforded to a person’s home is provided where the interference is either “unlawful” or “arbitrary”. It is clear that conduct may be lawful in the sense of being in conformity with the domestic law, but still be arbitrary and thus contrary to the conventions and the Charter: Saadi v United Kingdom .
169 The Human Rights Committee in Hugo van Alphen v The Netherlands, [81] considered the complaint of a Dutch solicitor that he was the victim of a violation by the Netherlands of a number of articles of the ICCPR which included Article 9(1) (providing for protection against arbitrary arrest or detention). The Committee said as to the concept of “arbitrariness”:
The drafting history of article 9, paragraph 1, confirms that “arbitrariness” is not to be equated with “against the law”, but must be interpreted more broadly to include elements of inappropriateness, injustice and lack of predictability. This means that remand in custody pursuant to lawful arrest must not only be lawful but reasonable in all the circumstances.
This formulation is not dissimilar to the Oxford Dictionary definition of “arbitrary” which gives it the meaning: “based on or derived from uniformed (sic) opinion or random choice; capricious; despotic”.
[footnotes omitted]
The reference to “uniformed opinion” in the Oxford Dictionary definition quoted above is apparently a typographical error, as the Dictionary definition in fact refers to “uninformed opinion”.
In the present case the second defendant submits that the interference with his home by reason of the restraining order made by the Master, and the interference which will be occasioned by any forfeiture and disposal of the Macgregor property, is arbitrary because of the following “cumulative features” of the DPP’s conduct:
(a)It involves reliance upon the provisions of COCA which have the following features:
(i)the definition of “tainted property” is so broad and the functions of the Court unlimited at the practical operation of the law is determined not by the legislature but by the discretion of the officer with the power to invoke it;
(ii)the provisions authorise forfeiture indiscriminately without regard to any proportionality between the offence committed and the punishment imposed by the forfeiture;
(iii)the provisions authorising forfeiture operate without regard to whether or not the person whose property is to be forfeited is being or will otherwise be punished for the offence;
(iv)the discretionary decision to invoke the provisions of COCA Act is (except for the HRA) entirely legislatively unconstrained;
(v)there are no publicly available guidelines or policies as to how or when the powers will be invoked; and
(vi)the court has no capacity under the COCA Act to consider the impact of the forfeiture on persons (including children) who are innocent of wrongdoing.
(b)It involves the following particular features in the present case:
(i)the forfeiture of the whole property is entirely disproportionate where there is no involvement of the property in the offending conduct;
(ii)the second defendant has contributed money and effort to the improvement of his property which will be restrained and/or forfeited; and
(iii)the second defendant and his granddaughter (currently 13 years old) will be deprived of their home in circumstances where they are entirely innocent of any wrongdoing.
I note that there is no suggestion by the DPP that the subject property is tainted property, so that the second defendant’s submission that the conduct of the DPP was arbitrary by reason of reliance on the provisions of the COCA dealing with tainted property has no basis.
With respect to feature (a) (ii) above, the purpose of forfeiture under the COCA is not to punish an offender, but, relevantly for present purposes, to ensure that an offender does not profit from their crimes. In some cases, such as the present, the confiscation of a benefit derived from criminal offending will feel like a punishment to the offender because she did not use the benefit she derived from her crimes to acquire an asset. If she had used the money she appropriated in these offences to purchase shares, for example, it could not be suggested that forfeiture of the shares under the COCA constituted a punishment. The fact that the first defendant apparently used the benefits derived from her crimes to gamble unsuccessfully does not mean that she derived no benefit from her crimes. Without the money she appropriated by her crimes, she would have had to utilise her own funds to gamble as she did. In any event, it is beyond doubt that she derived a substantial benefit from her crimes. To the extent that proportionality between the value of the benefit derived by the offender from criminal offending and the value of the property subject forfeiture is relevant, s 77 of the COCA provides for the making of an exclusion order excluding property from forfeiture if the court is satisfied it was lawfully acquired by the offender and the property is not tainted property. The same section also provides for the court to make an exclusion order, but to order that any restraining order remain in place over the property for the purpose of satisfying a penalty order. In this way it provides a mechanism for avoiding harsh or unjust outcomes.
For the same reasons, the first defendant’s reference to the forfeiture provisions operating without regard to other punishment imposed for the offence (feature (a) (iii)), is misconceived.
Feature (a) (iv) identified by the first defendant is unremarkable. As the majority of the High Court observed in Attorney-General (NT) v Emmerson with respect to the equivalent legislation in the Northern Territory, the fact that the DPP is given a discretion to bring proceedings for the confiscation of criminal assets “is a familiar procedural necessity in the adversarial system and is subject to the Supreme Court’s inherent jurisdiction to take whatever steps are necessary to avoid any abuse of process”.
Turning to feature (a) (v) advanced by the second defendant, in an affidavit affirmed 23 October 2014 by James Ronald Walker, a legal practitioner employed by the DPP, stated that the DPP has published guidelines which are considered when initiating proceedings under the COCA. A copy of the most recent edition of these guidelines, dated November 2011, are annexed to his affidavit. There is no factual basis for feature (a) (v) alleged by the first defendant.
With respect to feature (a) (vi), the legislature has not given this Court any discretion in the making of forfeiture orders based on hardship to innocent third parties, such as children. This was undoubtedly a deliberate decision of the legislature reflecting a reconciliation of conflicting policy considerations. The guidelines published by the DPP acknowledge that orders under the COCA may cause hardship to innocent third parties, and are the subject of limited judicial discretion. The guidelines state:
6. Neither the DPP nor the respondent will be able to rely on the exercise of judicial discretion to mitigate or temper the effect of orders that might otherwise be seen as excessively “harsh” or “draconian”. Accordingly, it is incumbent on prosecutors to ensure that applications under the COCA are not pursued in circumstances that may cause injustice.
It is true that the practical effect of a forfeiture order may be that the Macgregor property will have to be sold, resulting in it being unavailable for occupation by the second defendant and his granddaughter. This is not inevitable. The provisions of the COCA allow a person who has an interest in forfeited property immediately before its forfeiture to apply to the court for a “buyback order” allowing them to buy an interest in forfeited property from the Territory: Division 9.6. As I understand it, the DPP has invited the second defendant to seek such an order, but the second defendant, to this point, has not responded.
Some might consider the forfeiture of a jointly owned residence because of the default of one of the joint owners only to be harsh or unjust. It should not be overlooked that there is a variety of lawful conduct which the first defendant could have engaged in which could lead to the loss of property jointly owned with the second defendant, and in circumstances where the second defendant is entirely innocent. For example, if the first defendant has accrued lawful debts that she was unable to pay without the knowledge of the second defendant and was made bankrupt, the vesting of her property in the trustee in bankruptcy pursuant to s 58 (1) of the Bankruptcy Act1966 (Cth) effects a severance of the joint tenancy in land: Sistrom v Urh (1992) 40 FCR 550. Joint ownership of property always carries with it the risk that the interest of one of the proprietors may be adversely affected by the actions of another, and in circumstances where the first proprietor is entirely innocent.
The decision of the DPP to bring the present proceedings cannot be described as arbitrary in any sense of the word. The application was based on a reasonable suspicion that the first defendant had committed relevant offences. She has now been convicted of those offences. By committing those offences she derived a significant benefit, amounting to more than $1 million. The decision of the DPP to commence these proceedings cannot, in any way, be described as “based on or derived from uninformed opinion or random choice”, nor can it be described as “capricious” or “despotic”. The decision of the DPP to commence and prosecute these proceedings is consistent with the objectives of the COCA, and represents a proportionate response to the first defendant’s criminal conduct: see s 28 HRA. In In the Matter of an Application for Bail by Isa Islam [2010] ACTSC 147; 175 ACTR 30, Penfold J, after examining a number of authorities, said that to be proportionate, a limitation on a human right must:
(a)pursue a purpose of “sufficient importance” to justify limiting or interfering with the right;
(b)be rationally connected to that purpose;
(c)intrude upon or limit the right and no more than necessary to achieve the purpose; and
(d)strike a fair balance between the interests of the individual and the interests of the state.
The purposes of the COCA, as expressed in s 3, are important in maintaining a safe, stable and equitable society, and amply justifies the power given to the DPP by the COCA which may intrude upon the human rights of others. The extent to which the exercise of those powers may intrude upon the rights of innocent third parties is limited. Such a party may apply for revocation or variation of a restraining order under s 43. They may apply for an exclusion order under s 77. Where forfeited property is jointly owned and is sold by the Territory after forfeiture, an innocent joint owner may apply to the court for payment of part or all of the nett proceeds of the sale: s 119.
It is difficult to see how the objects of the COCA could be achieved in any less intrusive way than the course that has been pursued by the DPP. The defendants did not suggest any alternative course. The community has a tangible interest in the suppression of crime, and an effective way of deterring crime is to ensure that criminals do not profit from their crimes. In the instant case there is the additional consideration that the first defendant effectively stole over $1 million of community money. The action taken by the DPP in commencing and pursing these proceedings clearly strikes a fair balance between the rights of the defendants and those of the community.
The scheme of the COCA, pertaining to automatic forfeiture under Division 5.2, permits confiscation of property without the DPP being required to establish that the property is “tainted property” or is in some other way connected to the offender’s offences. But the COCA provides mechanisms to ameliorate any harsh or unjust results. Where an application for a restraining order is made ex parte, the order (which could lead to an automatic forfeiture order) may be revoked or varied by the court under s 43. Where property is subject to automatic forfeiture, an exclusion order may be made under s 77. Where jointly owned property is forfeited, an innocent joint owner may seek an order for payment of all or part of the nett proceedings of sale under s 119, which also enables the court to have regard to different contributions made by the individual joint owners to the purchase, maintenance and improvement of the property.
The HRA accepts that human rights have limitations: s 28 (1) of the HRA. The limitations imposed on the right of the defendants guaranteed by s 12 of the HRA by the COCA can demonstrably be justified in a free and democratic society. The actions of the DPP have not breached the human rights of the defendants and the provisions of s 40B of the HRA and not engaged.
Neither defendant sought to advance arguments in support of the allegation that the DPP’s application was an abuse of process, and I reject that proposition.
I have ranged widely in the above discussion, addressing specific submissions made by the defendants, but the purpose of the discussion was to demonstrate that the restraining order made by the Master in December 2010, and which remained in force on 12 August 2013 when the first defendant was convicted, was validly made. What flows from that finding, and the undisputed fact of the first defendant’s conviction of relevant serious offences in August 2013, is that the subject property is subject to automatic forfeiture under Division 5.2 of the COCA, subject to the applications made by the defendants for exclusion orders.
The first defendant’s application for an exclusion order can only be partially successful. The provisions of s 77 (2) prohibit the making of an exclusion order upon the application of an offender unless the court is satisfied, amongst other things, that the property is not required to be restrained to satisfy a penalty order. The first defendant presented no evidence that she has the funds or other assets upon which she can call to satisfy the penalty order, so that I am not satisfied that the property is not required to satisfy a penalty order. The provision of s 77 (3), however, requires me to make an exclusion order declaring that the property is not subject to automatic forfeiture but ordering it to remain restrained for the purpose of satisfying a penalty order if I am satisfied the property is not tainted property and was lawfully acquired, but that it may be required to satisfy a penalty order. In the present case the DPP accepts that the subject property is not tainted property and was lawfully acquired. I will therefore make an exclusion order declaring that the subject property is not subject to automatic forfeiture, but it is to remain restrained for the purpose of satisfying the penalty order.
The effect of this order is that the second defendant’s application for an exclusion order must also fail. The effect of an exclusion order, as stated in s 74, with respect to restrained property that has not been forfeited is that the restraining order “stops applying to the property”. Clearly that cannot occur where the COCA, in s 77 (3), requires the court to order that the restraining order remain in place.
I make it clear that I have not been required, in these proceedings, to address those provisions of the COCA concerned with the satisfaction of penalty orders, and I make no comment about those provisions.
Orders
I make a penalty order requiring the first defendant, Pamela Susan Close, to pay a penalty in the sum of $1,098,709.30. I make an exclusion order on behalf of the first defendant concerning 8 Newmarch Place, Macgregor and the 2004 Ford Falcon motor vehicle the subject of the restraining order declaring that the property is not subject to automatic forfeiture under the provisions of the Confiscation of Criminal Assets Act, but it is to remain restrained for the purpose of satisfying the penalty order. Otherwise, the first defendant’s application is dismissed. The second defendant’s application is dismissed.
| I certify that the preceding seventy five [75] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: Date: 9 February 2015 |
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