Director of Public Prosecutions v Devine

[2001] TASSC 8

[2001] TASSC 8

CITATION:             Director of Public Prosecutions v Devine [2001] TASSC 8

PARTIES:  DIRECTOR OF PUBLIC PROSECUTIONS
  v
  DEVINE, Steven Robert

TITLE OF COURT:  COURT OF CRIMINAL APPEAL (TAS)
JURISDICTION:  APPELLATE
FILE NO/S:  CCA 37/2000
DELIVERED ON:  9 February 2001
DELIVERED AT:  Hobart
HEARING DATE/S:  2 November 2000
JUDGMENT OF:  Underwood, Crawford and Slicer JJ

CATCHWORDS:

Crime - Jurisdiction practice and procedure - Judgment and punishment - Orders for compensation, reparation, restitution, forfeiture and other matters relating to disposal of property - Forfeiture or confiscation - Meaning of tainted property - Effect of statutory presumption.

R v Polain (1989) 52 SASR 526; R v Hadad (1989) 16 NSWLR 476; Taylor v Attorney-General for South Australia (1991) 52 A Crim R 166, referred to.

Crime (Confiscation of Profits) Act 1993 (Tas), ss4, 11 and 16.

Aust Dig Crime [927]

REPRESENTATION:

Counsel:
             Appellant:  H Virs
             Respondent:  P A Warmbrunn
Solicitors:
             Appellant:  Director of Public Prosecutions
             Respondent:  Piggott Wood & Baker

Judgment ID Number:  [2001] TASSC 8
Number of paragraphs:  40

Serial No 8/2001

File No CCA 37/2000

DIRECTOR OF PUBLIC PROSECUTIONS v STEVEN ROBERT DEVINE

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

UNDERWOOD J
CRAWFORD J
SLICER J
9 February 2001

Order of the Court

Appeal dismissed

Serial No 8/2001

File No CCA 37/2000

DIRECTOR OF PUBLIC PROSECUTIONS v STEVEN ROBERT DEVINE

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

UNDERWOOD J
9 February 2001

1. This is a Crown appeal against an order dismissing an application for a forfeiture order made pursuant to the Crime (Confiscation of Profits) Act 1993 ("the Act"), s11.

1. The respondent was convicted upon his own plea of guilty to one count of trafficking in a narcotic substance, namely methylamphetamine, contrary to the Poisons Act 1971, s47(1)(b). This is a serious offence within the meaning of the Act, ss4 and 11.

1. The Crown case, as put to the learned judge at first instance, was that the crime was committed on 15 December 1998 when police officers went to the respondent's home at New Norfolk.  The respondent was there at the time and inside a suitcase taken from under a bed in the main bedroom, the police seized a box of glucose, a box of "Glad" snap lock bags, a set of digital scales, a small coffee grinder, a toothbrush and a total of 80.6 grams of powder in three plastic bags which was later determined to be 5 per cent methylamphetamine and 95 per cent glucose.  Police officers also found an "M & M container" which contained a snap lock bag.  Inside the bag was 22.6 grams of a brown substance which, by later analysis, was found to be 55 per cent pure methylamphetamine. 

1. A further search of the main bedroom revealed $1,780 in a drawer of a bedside unit. 

1. The respondent denied any knowledge of the drugs.  With respect to the money found in the bedside unit, he told the police that about three to four weeks earlier, he sold a motor bike for $2,000 and $1,780 was the remains of the proceeds of sale. 

1. The respondent's fingerprints were later detected on the box of glucose and, as I have said, he pleaded guilty to trafficking.

1. By pleading guilty to the count of trafficking, the respondent was not admitting that he had in fact made any sales of the methylamphetamine.  In fact he denied having done so.  The Crown accepted his denials and counsel for the Crown advised the learned judge that it was not suggested that the $1,780 came from earlier sales or that there had in fact been any prior sale.  The Crown accepted that the respondent's plea of guilty had been made only upon the basis that he was in possession of methylamphetamine for trafficking, and the Crown did not attempt to prove otherwise.  Under the Poisons Act 1971, a person can be guilty of trafficking by merely being in possession for trafficking. That is because s3 provides that, "'traffic' includes have in possession for trafficking'."

1. The Crown made application for a forfeiture order with respect to the money found in the bedside unit.  The application was opposed by counsel for the respondent.  The Crown put to his Honour that sentence should be imposed upon the basis that it was the respondent's intention to break down the methylamphetamine that was 55 per cent pure until it, too, was 95 per cent glucose and 5 per cent methylamphetamine.  The Crown submitted that the respondent's intention was to make a commercial profit from the sale of the drug.  Through his counsel, the respondent disputed this assertion.  The respondent claimed that he was a user of methylamphetamine and that he purchased the 55 per cent pure amphetamine firstly, to satisfy his own need for the drug and, secondly, to sell the balance without making any profit.  It was the respondent's claim that he bought 28 grams of 55 per cent pure methylamphetamine and took from that 5.4 grams which he broke down to make up three bags of 5 per cent pure methylamphetamine.  The respondent claimed that his intention was to use the three bags of methylamphetamine and glucose himself and to sell the balance of the 55 per cent pure methylamphetamine, in its uncut state, for the same price that he paid for 28 grams of the drug.  Thus, he would make no profit other than by way of supplying himself with the narcotic free of cost. 

1. In order to resolve these disputes, the learned judge at first instance heard evidence from a police officer and the respondent.  During the course of his evidence, the respondent said that he lied to the police officers with respect to the source of the money found in his house.  In his evidence, the respondent said that he had saved $5,000 over a number of years, that he used $3,000 to buy the methylamphetamine and that $1,780 was the balance left over.  Consistent with the statement made by Crown counsel to the learned judge at first instance and set out above, it was not put to the respondent, in cross-examination, that the methylamphetamine found in his possession for the purpose of trafficking was the balance of a larger consignment, some of which he had sold prior to the police finding it.  Nor was it put that the money found in his possession was a "float" which was used for the trafficking in methylamphetamine.

1. At the conclusion of the evidence, the learned judge at first instance invited counsel to make submissions "arising from that".  Both counsel accepted the invitation, but the submissions were confined to the issue of the respondent's alleged intention to make a commercial profit from the sale of the narcotic.

1. The learned judge at first instance rejected the evidence of the respondent and found that his intention was to sell the bulk of the methylamphetamine found in his possession at a profit.  Having so found, the learned judge at first instance then turned to the application for a forfeiture order in relation to the money.  His Honour said:

"Pursuant to the Crime Confiscation of Profits Act, section 11(1)(a) a forfeiture order may be made against tainted property, that is property used in or in connection with the commission of the offence or the proceeds of the offence or property that constitutes a commercial benefit in relation to the offence. It is not suggested by the Crown that the seventeen hundred and sixty dollars (sic) found in Mr Devine's possession formed part of any proceeds derived from the particular trafficking offence for which Mr Devine appears before the Court or that it constitutes a commercial benefit in relation to that offence. There is no evidence that the cash was used in connection with the commission of the offence. On the evidence before me it is likely that the cash represents proceeds from prior trafficking. That is not a basis upon which I can order the forfeiture of the cash in relation to the offence for which Mr Devine is before the Court. The application for a forfeiture order is refused."

1. There are four grounds of appeal, namely:

"(1)His Honour erred in law and in fact in failing to make a forfeiture order in respect of the amount of $1,780.00;

(2)His Honour erred in law in failing to allow the authorised officer who made the application the opportunity to make submissions in law as to why the order should be made;

(3)His Honour erred in law in failing to hold that the money, the subject of the application, was tainted property within the meaning of the Crime (Confiscation of Profits) Act 1993;

(4)His Honour erred in law in failing to apply s16(5) of the Crime (Confiscation of Profits) Act 1993."

1. I should say at the outset that there is no substance in ground 2.  The application for a forfeiture order was properly made by Crown counsel.  Facts relevant to that forfeiture order were canvassed in the disputed fact hearing.  At the conclusion of the disputed fact hearing, the learned judge at first instance invited counsel to make submissions with respect to the evidence that had just been given.  Both counsel were therefore given ample opportunity to make any submission that they wished to make with respect to the application for a forfeiture order.  Further, even if there was substance in the complaint that the authorised officer was denied an opportunity to make submissions, this Court heard full submissions in support of the making of a forfeiture order so the appeal cannot succeed on ground 2 unless one of the other grounds is made out and it is shown that the learned judge at first instance ought to have made the order sought.

1. The Act, s16(5) provides:

"If, at the hearing of an application made under section (11)(a) in reliance on the conviction of a person of a serious offence, evidence is given that property to which the application relates was in the possession of the person at, or immediately after, the time the offence was committed, then ¾  

(a)if there is no evidence given tending to show that the property was not used in, or in connection with, the commission of the offence - the court is to presume that the property was used in, or in connection with, the commission of the offence; or

(b)in any other case - the court is not to make an order under this section in relation to the property unless it is satisfied that the property was used in, or in connection with, the commission of the offence."

1. On behalf of the appellant, Mr Virs submitted that error occurred in that the learned judge at first instance failed to apply the provisions of the above subsection.  He submitted that as his Honour rejected the account given by the respondent, there was no evidence tending to show that the money was not used in connection with the commission of the offence and, accordingly, the statutory presumption enacted in par(a) above applied.  In support of his submission, he relied upon a passage (obiter dicta) in the judgment of Sully J in R v Sultana NSWCCA unreported 20 July 1994 at 19.

1. In that case, the relevant statutory provision, Confiscation of Proceeds of Crime Act 1989 (NSW), s18(4)(a), is identical to the Act, s16(5). There had been a trial and the respondent was found guilty of supplying heroin. Subsequent to the trial, the learned trial judge entertained an application for a forfeiture order with respect to certain property alleged to have been used in connection with the commission of the crime. No evidence was led upon the hearing of the forfeiture order. Upon this basis, Sully J held that the statutory presumption applied. In the passage relied upon by counsel for the appellant, his Honour speculated that the learned judge at first instance may have had regard to the evidence given in the trial. He further speculated that the trial judge may have rejected the evidence given at trial to support the proposition that the property in respect of which a forfeiture order was sought was not used in connection with the commission of the crime and therefore the presumption came into operation. He said:

"In that event, it is clear that his Honour did not accept that evidence, as, indeed, the jury at trial plainly did not.  It was, in my opinion, open to his Honour so to reject that evidence; and in that event, also, the statutory presumption earlier mentioned was not displaced."

1. With great respect to his Honour, I find that I am unable to agree with that proposition.  The statutory provisions are quite clear.  The presumption comes into operation when "no evidence [is] given tending to show that the property was not used in, or in connection with, the commission of the offence".  Evidence was given in the present matter, and was given on the trial of Sultana, tending to show that the property was not used in, or in connection with, the commission of the offence. In both cases such evidence was rejected, but that does not mean that no such evidence was given. If the prescribed evidence is given, the fact finder is obliged to find the facts in accordance with all the evidence given. There is no room for the operation of the presumption when the relevant evidence is given. It only comes into operation when no evidence, as is described by s16(5)(a), is given. That evidence is evidence tending to show that property was not used in, or in connection with, the commission of the offence.  The statute does not provide for the operation of the presumption where no acceptable evidence is given which shows that the property was not used in, or in connection with, the commission of the offence.  The argument advanced by Mr Virs amounts to a contention that upon an application for an order of forfeiture, the onus of proof is reversed with respect to what is tainted property.  That is clearly not the case.  It may be noted that in Sultana, the appellant applied for special leave to appeal to the High Court.  The application was heard on 11 May 1995.  See High Court Database.  Counsel for the appellant sought special leave (inter alia) upon the basis that there was evidence (given on the trial) tending to show that the impugned property was not used in connection with the commission of the crime and that Sully J was wrong when he said that the presumption operated upon the rejection of that evidence.  The Court did not grant special leave and with respect to that point, observed that the majority in Sultana, Gleeson CJ and Handley JA, were of the view that the evidence warranted the making of the order of forfeiture.

1. The Act, s16(1) provides:

"If a person has been convicted of a serious offence, and an application is made to a court under section (11)(1)(a) in relation to particular property, the court may, if it is satisfied that the property is tainted property in relation to the offence, order that the property is forfeited to the State."

1. "Tainted property" is defined by s4(1) to mean:

"(a)    property used in, or in connection with, the commission of the offence; or

(b)     proceeds of the offence; or

(c)     property that constitutes a commercial benefit in relation to the offence ¾

and when used without reference to a particular offence means tainted property in relation to a serious offence;"

1. In the present case, it was submitted on behalf of the appellant that the money found in the respondent's house was tainted because it was used in connection with the commission of the offence. By virtue of s16(1), "the offence" means the offence of which the respondent to the application has been convicted. In this case, the elements of that offence were being in possession of methylamphetamine for trafficking. As put to the learned judge at first instance, "that crime [was committed] on the basis that the accused was in possession of [sic] sale, not suggesting that there had been prior sales." The learned judge at first instance said, "on the evidence before me it is likely that the cash represents proceeds from prior trafficking". Mr Virs submitted that the money was still tainted even though it was gained from, or used in connection with, the commission of a prior crime, and even though the Crown expressly eschewed the proposition that the money came from sales of a consignment, the balance of which was the subject matter of the indictment.

1. The meaning of the expression "in connection with" is, as Cox J pointed out in R v Polain (1989) 52 SASR 526 at 532, a popular one with the legislators. With respect to its use in the South Australian equivalent to the Act, ss4(1) and 16(1), Cox J said at 531 - 532:

"The defendant was convicted of possessing the drug with a particular purpose in mind, and the only property that was used in committing that offence was the drug itself and perhaps the plastic bags in which it was contained. However, 'in connection with' the commission of the offence is a wider expression than merely 'in' the commission of the offence. It is hardly possible to define the ambit of the phrase with any more precision. Clearly it poses questions of proximity and degree … There was such an intimate relationship, therefore, between the money and the possession of the two remaining bags as to constitute a use of the money 'in connection with' the possession charged that satisfied the nexus requirement of s4."

1. That construction of the expression "used in connection with" when employed in the same or similar statutory context, was approved in Sultana (supra) and referred to with approval by the South Australian Full Court in Taylor v Attorney-General for South Australia (1991) 52 A Crim R 166. In R v Hadad (1989) 16 NSWLR 476, it was put to the New South Wales Court of Criminal Appeal that "used in connection with" was a reference to a substantial connection. Thus it was argued that the trousers worn by the convicted person when he committed the relevant offence were not property used in connection with the commission of the offence, and similarly, the car used by the appellant to drive himself to and from the point where the drugs were supplied was not used in connection with the commission of the offence. The argument was rejected, the Court adopting the view that the expression was one of wide ambit and should not be read down as counsel urged the Court to do. In Western Australia, a majority of the Court of Criminal Appeal in R v Rintel (1991) 52 A Crim R 209 took the view that it was necessary to show that there had been a substantial connection with the commission of the offence and dissented from the contrary view expressed in Hadad.  The necessity for a substantial connection between the drug and the property alleged to be tainted was upheld by Carter J in Ward, Marles and Graham v R (1987) 33 A Crim R 60. However, this issue does not arise on the facts of this case and an attempt to reconcile the competing views need not be pursued. In R v Milienou (1991) 53 A Crim R 271, Lee CJ at CL considered that the words "in or in connection" with the commission of a serious offence required a temporal connection or contemporaneous association with the commission of the relevant crime.

1. In this case there was plenty of evidence that the respondent intended to traffic in the narcotic, but there was no evidence that he had, at the date the crime was committed, sold any of the narcotic that he bought from another.  In Polain there were findings that although the respondent was only convicted of being in possession of the drug for sale, she had made prior sales of the drug and that the money said to be tainted property, was the respondent's "working capital" or "cash float".  Further, in Polain there was evidence that the money was found under a mattress and with documents suggestive of drug transaction records.  In this case there were no such findings and no such evidence.  Although the learned judge at first instance found that the money probably was income from prior sales, that does not mean that it was used in connection with the commission of the crime charged.  It was simply money found in the same room as the narcotic was found.  It was held to have been the proceeds of criminal activity.  But the evidence did not warrant a finding that the money was working capital used in connection with the trafficking of the narcotic which was the subject of the charge. 

1. I would dismiss the appeal.

   File No CCA 37/2000

DIRECTOR OF PUBLIC PROSECUTIONS v STEVEN ROBERT DEVINE

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

CRAWFORD J
9 February 2001

1. I agree with the reasons for judgment of Underwood J.

File No CCA 37/2000

DIRECTOR OF PUBLIC PROSECUTIONS v STEVEN ROBERT DEVINE

REASONS FOR JUDGMENT  COURT OF CRIMINAL APPEAL

SLICER J
9 February 2001

1. The respondent was convicted of the crime of trafficking in a narcotic substance contrary to the Poisons Act 1971, s47(1)(b). The elements of the crime alleged were that the respondent was in possession of a narcotic substance for the purposes of sale. Police searched the respondent's property and located 103gms of amphetamine, items associated with its sale and $1,780 in cash. At the time of search, the respondent claimed that the money had been obtained from the sale of a motor cycle, a claim not accepted by the prosecution or the learned sentencing judge. The prosecution applied for forfeiture of the money pursuant to the Crime (Confiscation of Profits) Act 1993 ("the Act"), s11. Crown counsel advised the Court that the plea to the indictment was accepted:

" … on the basis that the accused was in possession of sale [sic], not suggesting that there had been prior sales."

and that the application of forfeiture was made on the basis of the assertion:

" … that the property is tainted property, that is that it was used in connection with the commission of the crime."

1. Defence counsel noted on his plea in mitigation:

" … that it's not the Crown's assertion that the seventeen hundred and eighty dollars arose out of any selling of amphetamines."

The prosecution did not challenge the accuracy of this statement, nor produce any evidence or material in support of its original assertion.  Instead it challenged:

" … any suggestion that there was no intention to make any profit and that he was intending to keep the remainder for personal use."

1. The Crown called evidence on the disputed facts hearing as to the value of the seized narcotics and the likelihood that, given the analysed purity of the drug, it was for commercial use.  The respondent gave evidence which included a repetition of his earlier claim that the seized money had been legitimately obtained but gave a different account as to how the money had been acquired.  The learned sentencing judge did not accept the respondent as a witness of the truth and rejected the claim.  He found, consistent with the plea, the original assertion by the Crown and the evidence that:

"It is not suggested by the Crown that the seventeen hundred and sixty dollars found in Mr Devine's possession formed part of any proceeds derived from the particular trafficking offence for which Mr Devine appears before the Court or that it constitutes a commercial benefit in relation to that offence.  There is no evidence that the cash was used in connection with the commission of the offence.  On the evidence before me it is likely that the cash represents proceeds from prior trafficking.  That is not a basis upon which I can order the forfeiture of the cash in relation to the offence for which Mr Devine is before the Court.  The application for a forfeiture order is refused."

1. The Notice of Appeal claims error in that:

"1   His Honour erred in law and in fact in failing to make a forfeiture order in respect of the amount of $1,780.00;

2    His Honour erred in law in failing to allow the authorised officer who made the application the opportunity to make submissions in law as to why the order should be made;

3    His Honour erred in law in failing to hold that the money, the subject of the application, was tainted property within the meaning of the Crime (Confiscation of Profits) Act 1993.

4 His Honour erred in law in failing to apply s16(5) of the Crime (Confiscation of Profits) Act 1993."

1. In so far as the appeal claims error in relation to the failure to find that the property was tainted, it is misconceived.  The finding was consistent with the evidence and the appeal is against a finding of fact and consistent with the principles stated in House v The King (1936) 55 CLR 499, and ought not succeed. Rejection of the evidence of the respondent did not warrant a finding that the money was obtained from the sale of the amphetamine which was the subject of the indictment. The indictment alleged possession for the purpose of sale on 15 December 1998, and the Crown's assertion was that there had been no prior sale. On the Crown case, the money did not form part of any of the proceeds of sale of the amphetamine which was the subject of the charge.

1. Accepting that it was a reasonable inference, given the rejection of the respondent's evidence, that the cash represented proceeds from prior trafficking, the issue becomes whether property or proceeds derived from a different but uncharged crime can be the subject of a confiscation order.  In this regard, the appeal is also misconceived.  No definitive finding was made by the learned primary judge that the money was the product of a previous sale.  However, given that the appellant claims that the issue raised is of some wider import, it will be assumed, for the purpose of this determination, that such a finding was made.

1. The Act, s4, defines a forfeiture order as meaning "an order under s16(1)". Section 16(1) refers to "tainted property in relation to the offence", whilst s16(5) provides:

"(5) If, at the hearing of an application made under section 11(1)(a) in reliance on the conviction of a person of a serious offence, evidence is given that property to which the application relates was in the possession of the person at, or immediately after, the time the offence was committed, then ¾

(a)  if there is no evidence given tending to show that the property was not used in, or in connection with, the commission of the offence ¾ the court is to presume that the property was used in, or in connection with, the commission of the offence; or

(b)  in any other case ¾ the court is not to make an order under this section in relation to the property unless it is satisfied that the property was used in, or in connection with, the commission of the offence."

1. The appellant's contention is that since the respondent gave no credible evidence "tending to show that the property was not used in, or in connection with, the commission of the offence", the Crown was entitled to rely on the presumption.  Two answers may be made to this reasoning.

1. The first is that evidence was given tending to show non-connection. The fact that the evidence was not believed is beside the point. The presumption is designed to permit resolution of an issue where an opposing party remains silent. Where that person gives an account, the court is required, in the ordinary way, to consider the evidence and if possible to make a finding. But, as the Act, s16(5)(b), provides, it must be affirmatively satisfied as to connection with the offence. In the circumstances of this case, there was evidence or assertion contrary to such a finding in that the Crown did not contend that a prior sale had occurred.

1. The second answer is that produced by the terms of the Act, s16(1), which permits forfeiture of "tainted property in relation to the offence". The money had not been derived from the sale of the amphetamine for which the offender had been charged. It might have been the product of an earlier sale of the narcotic, but, if so, that related to a different offence. Whilst property can be tainted by contemporaneous association (R v Milienou (1991) 53 A Crim R 271, R v Hadad (1989) 16 NSWLR 476), that association is an evidentiary or presumptive means of establishing a nexus between the crime or offence and its product. In the circumstances of this case, had the indictment alleged a course of trafficking which included a period prior to the date of seizure, it could be said that the money was associated with the course of conduct. The association is temporal but remains confined to a product derived from or associated with the criminal conduct. Money used as a "float" or retained for future sale might be subject to forfeiture, but not that confined to a separate course of conduct.

1. Grounds of appeal 1, 3 and 4 are not made out.

1. The appellant also claims error in that counsel was denied an opportunity to make submissions in support of the application.  Counsel had not sought to rely on the presumption and did not seek to make further submissions.  She concentrated on establishing that the respondent was intending to profit by the future sale of the narcotic.  This is not a case such as that considered by the High Court in R v Lewis (1988) 165 CLR 12.

1. The Court did not decline to entertain submissions (Ex parte Fealey (1897) 18 NSWLR (L) 282, approved by Gaudron and Gummow JJ in Re Refugee Review Tribunal & Anor; ex parte Aalal [2000] HCA 57 at 13, par35).

1. Counsel had put the Crown case on the basis that the money had not been derived from the sale of the narcotic and did not contend that it was used for the purpose of "a float" or similar end. Counsel argued the presumptive effect of the Act, s47(7), in relation to the issue of commercial use and did not seek to advance further argument in relation to forfeiture. At the conclusion of the submissions, the learned sentencing judge announced that he would reserve his decision. Crown counsel did not seek, at that stage, time to make further argument. The complaint appears to be retrospective in nature. There was no failure "to allow an authorised officer … the opportunity to make submissions". Ground 2 is not made out.

1. In my opinion, the appeal should be dismissed.