Director of Public Prosecutions v Jonathan Andrew Willis No. SCGRG 94/2 Judgment No. 5696 Number of Pages 8 Criminal Law (1996) 66 Sasr 590

[1996] SASC 5696

COURT IN THE SUPREME COURT OF SOUTH AUSTRALIA DEBELLE J

CWDS
Criminal law - confiscation of profits - application for forfeiture of property - sum of money seized from the respondent when arrested - respondent cannot be found respondent had not already been convicted whether money liable to forfeiture - respondent held to be guilty of prescribed offences - serious drug offences - application granted. Crimes (Confiscation of Profits) Act ss3, 5; Summary Offences Act, 1959 s78; Controlled Substances Act, 1984s32, referred to. Briginshaw v Briginshaw (1938) 60 CLR 336, applied.

HRNG ADELAIDE, 30 March 1996 #DATE 9:7:1996 #ADD 28:10:1996
Counsel for applicant:        Mr M Hinton
Solicitors for applicant:     Mr P J Rofe QC
Respondent:                 No attendance

ORDER
Application granted.

JUDGE1 DEBELLE J This application is made pursuant to s5 of the Crimes (Confiscation of Profits) Act 1986 ("the Confiscation of Profits Act") for forfeiture of a sum of money seized from the respondent at the time of his arrest for alleged drug offences.
2. On 20 November 1993 the respondent was arrested and charged. On 8 April 1994, he was committed for trial in the District Court. He was charged with three offences. They were
Count 1 - Possessing 3,4-Methylenedioxymethamphetamine for Sale. (Section 32(1)(e) of the Controlled Substances Act, 1984).
Particulars On 20 November 1993 at Glenelg South, he had 3,4-methylenedioxymethamphetamine (known as Ecstasy), a prohibited substance, in his possession for the purpose of selling it.
Count 2 - Possessing N-ethyl-alpha-methyl-3,4-(methylenedioxy) phenethylamine for Sale. (Section 32(1)(e) of the ControlledSubstances Act, 1984).
Particulars On 20 November 1993 at Glenelg South, he had N-ethyl-alpha-methyl-3,4-(methylenedioxy) phenathylamine (known as Ecstasy), a prohibited substance, in his possession for the purpose of selling it.
Count 3 - Possessing Amphetamine and Methylamphetamine for Sale. (Section 32(1)(e) of the Controlled Substances Act.
Particulars On 20 November 1993 at Glenelg South, he had a substance containing amphetamine and methylamphetamine, drugs of dependence in his possession for the purpose of selling it.
The respondent was on bail. On 9 May 1994 he was arraigned. He pleaded not guilty. He was permitted to remain on bail. He failed to attend a pre-trial conference on 26 July 1995. A warrant for his arrest was issued on 28 July. Since then the police have not been able to locate him. Obviously, there has been no trial of the offences with which the respondent was being charged.
3. When the respondent was arrested, police officers found cash amounting to $14,450 in his possession. They seized it. On 14 January 1994 Legoe J made a restraining order, pursuant to s6 of the Confiscation of Profits Act, prohibiting the respondent from dealing with the money and directing the Commissioner of Police to pay the money into an interest bearing account. The Director of Public Prosecutions now applies for an order for forfeiture of the money.
4. Section 5 of the Confiscation of Profits Act permits an order for forfeiture of property to be made notwithstanding that an accused person has not been convicted of an offence. For present purposes it is sufficient to refer only to the terms of s5(1)(3) and (4) of the Act.
    "(1) Where the appropriate court is satisfied, on the
    application of the Director of Public Prosecutions -
    (a) that a prescribed offence has been committed;
    (b) that the person by whom the offence was committed -
     (i) has been convicted of the offence; or
     (ii) is dead, cannot be found, or is for some other reason,
    not amenable to justice; and
    (c) that a person is, in consequence of commission of the
    offence, liable to forfeit property under this Act,
    the court may make an order for forfeiture against the person so
    liable.

(3) Subject to subsection (4), any question of fact to be
    decided by a court on an application for forfeiture shall be
    decided on the balance of probabilities.

(4) An allegation that a person was involved in the commission
    of a particular offence must, if that person has not been
    convicted of that offence or some other offence establishing the
alleged involvement, be proved beyond reasonable doubt." This Court is an appropriate court to hear the application: s3 of the Confiscation of Profits Act. A prescribed offence includes an indictable offence: s3 of the Act. The offences with which the respondent was charged were all indictable offences. Thus, in the circumstances of this case, an order can be made if this Court is satisfied
    (a) that the respondent committed the offences with which
    he has been charged,
    (b) that the respondent cannot be found, and
    (c) that, in consequence of the commission of one or more
    of the offences, the respondent is liable to forfeit
    property under the Act.
Directions 5. This is the first application in this State for an order for forfeiture when the respondent had not already been convicted following a trial or on his plea of guilty. The Director of Public Prosecutions applied for directions as to the course he should take in prosecuting the application.
6. Section 5 of the Confiscation of Profits Act provides for the standard of proof. For obvious reasons, the commission of the offence must be proved beyond reasonable doubt: s5(4). Other questions of fact are decided on the balance of probabilities: s5(3). Given that the order sought is an order for forfeiture of property and that the order is made in the absence of the person to whom the property belongs, I believe that it is appropriate when determining whether a matter has been proven on the balance of probabilities to apply the standard of proof as expressed in Briginshaw v Briginshaw (1938) 60 CLR 336.
7. Section 5(5) of the Confiscation of Profits Act provides that notice should be given of the application. Section 5(5) is expressed in these terms:
    "A person who has an interest in property alleged to be
    liable to forfeiture -
    (a) is entitled to such notice of the application as may be
    determined by the court to which the application is made;
    and
    (b) is entitled to appear and be heard on the application." When it is asserted that the person by whom the offence was committed cannot be found, there is a manifest difficulty in giving notice of the application. There is nothing to indicate that any person other than the respondent had an interest in the property. As it was cash, it was unlikely that any other person would have an interest in it. In all the circumstances, the only appropriate manner to give notice could be given was to publish notice of the application in a newspaper circulating in the State. As there was every likelihood that the respondent might not be in South Australia, I directed that notice should also be given in a newspaper circulating throughout Australia. I ordered, therefore, notice of the application be published in "The Advertiser" and "The Australian" newspapers. The notice was in these terms:
    "To JONATHON ANDREW WILLIS whose last known address was 31
    Hastings Street, Glenelg North, in the State of South Australia,
    and

To ANY OTHER PERSON who may have an interest in the sum of
    $14,450.00 seized from the said Jonathon Andrew Willis,

TAKE NOTICE that the Director of Public Prosecutions of the
    Mercantile Mutual Centre, 45 Pirie Street, Adelaide in the State
    of South Australia, has instituted proceedings by summons under
the Crimes (Confiscation of Profits) Act, 1986 in the Supreme
    Court of South Australia in action number 2 of 1994 seeking an
    order that the $14,450.00 seized from the said Jonathon Andrew
    Willis by police and any interest earned thereon be forfeited to
    the State of South Australia.     The application for forfeiture arises out of offences against
    the Controlled Substances Act, 1984 alleged to have been
    committed by Jonathon Andrew Willis for which he is yet to be
    convicted. The Supreme Court will determine whether:-
     i. beyond reasonable doubt a prescribed offence as defined by
the Crimes (Confiscation of Profits) Act, 1986 and contrary to
    the Controlled Substances Act, 1984 has been committed by
    Jonathon Andrew Willis;
     ii. Jonathon Andrew Willis cannot be found or is not amenable
    to justice;
     iii. Jonathon Andrew Willis is liable to forfeiture
    proceedings, and
     iv. Jonathon Andrew Willis should forfeit to the State of
    South Australia the said sum of $14,450.00 and any interest
    earned thereon.

If you, JONATHON ANDREW WILLIS, or ANY OTHER PERSON who may have
    an interest in the said $14,450.00, desire to defend this action
    you must within 21 days after the date of publication of this
    advertisement enter an appearance at the Office of the Registrar
    of the Supreme Court of South Australia at Adelaide. In default
    of such appearance the action may proceed and judgment may be
    entered or orders may be made against you in your absence.

Documents relating to the proceedings in the action may be
    inspected at the Registry of the Supreme Court of South
    Australia in Adelaide, or are available from the Director of
    Public Prosecutions at the Mercantile Mutual Centre, 45 Pirie
Street, Adelaide SA 5000." The notice was published in "The Advertiser" on 9 March 1996 and in "The Australian" on 11 March 1996. No appearance or other court document had been filed in response to either of the notices. The application for forfeiture was heard on 30 April 1996. The Confiscation of Profits Act does not prescribe the period for which notice should be given. As a general rule, it is appropriate that not less than 21 days' notice of the application should be given.
8. In circumstances such as these, there is a high degree of likelihood that the accused person is not likely to come forward. However, there may be other persons who are in a position to give evidence concerning interest in the property the subject of the application. In a case where the property is real property, it will be possible to search at the Lands Titles Office to ascertain whether there are persons with a registered interest to whom notice should be given. Public notice should also be given even if there is no registered interest, lest there be an unregistered interest.
9. There is another area of difficulty. The absence of the accused deprives the Court of the benefit of submissions by a party opposing the application. It is unlikely that the evidence will be tested in cross-examination. Thus, counsel for the applicant has a duty to disclose all matters which might bear upon the adequacy of the prosecution case. I considered the desirability of appointing a person to represent the interests of the accused. On balance, I did not believe it appropriate to do so. If an accused person absents himself, he must suffer the consequences prescribed by the Confiscation of Profits Act.
10. The application was determined on affidavit evidence, on the declarations made by witnesses, and on the evidence taken at the committal hearing. The evidence was straightforward and the prosecution was able to rely on a statutory presumption. However, as a general rule, the evidence of witnesses should be given viva voce. It is, of course, proper to prove facts by certificates and documents which are admissible by statute.
11. Therefore, as a general rule and subject to any order of the Court to the contrary, the following procedure should be adopted in applications of this kind:
    1. Notice in writing of the application should be given to
    every person who is known to have an interest in the property by
    sending a pre-paid letter to that person.

2. In addition to a notice pursuant to para1, notice of the
    application should be published in a newspaper circulating
    generally throughout the State of South Australia and in a
    newspaper circulating throughout the Commonwealth of Australia.

3. The notices to be published pursuant to para3 should be in
    the form of the notice published in this case.

4. The applications will be made in open court.

5. Subject to proof of facts by certificate and other documents
    which are admissible by statute or by statutory instrument,
    evidence of witnesses should be given viva voce. As already mentioned, counsel for the applicant has a duty to disclose all matters which might bear upon the adequacy of the prosecution case.
Preliminary Issues 12. Mr Hinton, who appeared for the Director of Public Prosecutions, properly drew attention to two issues which the respondent might have sought to raise at the trial concerning the admissibility of evidence. The first concerned the admissibility of the record of the interview of the respondent by the police. The transcript of the committal hearing suggested that the respondent might have sought to establish that he had been induced to co-operate in the interview by an offer of bail. The police officers who interviewed the respondent were Detectives Cardwell, Sheldon and Garrity. Detectives Cardwell and Sheldon were cross-examined concerning the alleged inducement. Both firmly denied it. In addition to that fact, the respondent spoke to his solicitor before agreeing to be interviewed. It is unlikely, therefore, that the respondent would have participated in the interview unless he wished to do so. That conclusion is reinforced by the evidence in cross-examination of both Detective Sheldon and Cardwell, who said that the respondent's attitude was different after he had spoken to his solicitor. He had not been willing to co-operate until then. Finally, the interview was video taped. For what it is worth, there is nothing in the record of interview which gives any hint of an inducement. Having regard to all of these facts, I am not satisfied that there is any ground which would render the record of the interview inadmissible.
13. The second issue concerned the lengthy time for which the respondent had been in custody before being charged. Section 78 of the SummaryOffences Act 1953 prescribes the procedures to be followed where a person has been apprehended without warrant. The general rule is that a person who is apprehended without warrant must be delivered forthwith to a police officer in charge of the nearest police station: s78(1). That requirement is subject to s78(2) which permits detention for a period sufficient to enable completion of the investigation into the suspected offence or for the prescribed period, whichever is less. The prescribed period is a period of four hours calculated from the time of the apprehension but, in calculating that period, any delays occasioned by arranging for a solicitor to be present during the investigation will not be taken into account. Further, the time that would have been reasonably required to convey the person to the nearest police station will be subtracted from the time that has actually elapsed from the time of apprehension: s78(6). The respondent was arrested at Glenelg. There is a police station at Glenelg. He was, however, taken to the City Watch House. When a person is arrested within 30 kilometres of the General Post Office at Adelaide, the nearest police station is defined by s78(6) to include the City Watch House. The respondent was arrested at 6.10pm. After he had been taken to the City Watch House for interview, attempts were made to contact his solicitor. The respondent spoke to his solicitor before the interview. The interview concluded at 10.31pm. The respondent was charged at 10.46pm. Thus, a period of 4 hours and 36 minutes elapsed between the time of the respondent's arrest and the time when he was charged. There was evidence at the committal that it took the police officers 20 minutes to drive from Glenelg to the City Watch House. A further 45 minutes elapsed when attempts were made to contact the respondent's solicitor. The respondent was, therefore, charged within the prescribed period as extended in accordance with s78(6).
Two Prescribed Offences are Committed 14. The case for the prosecution in respect of Counts 1 and 2 was that the respondent knowingly had in his possession more than the prescribed amount of a prohibited substance. The drugs methylenedioxymethamphetamine and the N-ethyl-alpha-methyl are both prohibited substances: see Reg 4 and the First Schedule of the Controlled Substances (Declared Prohibited Substances) Regulations 1985 ("the Regulations"). The drugs seized from the respondent were analysed by an analyst and the results of those tests were proved by certificates tendered pursuant to s61(2) and (3) of the ControlledSubstances Act. I am satisfied beyond reasonable doubt that the drugs seized from the respondent were the drugs which were analysed on this occasion.
15. A person who knowingly has in his possession more than a prescribed amount of a prohibited substance shall, in the absence of proof to the contrary, be deemed to have that substance in his possession for the purpose of the sale or supply of that substance to another person: s32(3) of the Controlled Substances Act. The prescribed amount in the case of both of these prohibited substances is one-half of one gram: see Reg 5 in the Second Schedule of the Regulations. The respondent had in his possession 12.47 grams of the substance the subject of the first count and 1.52 grams of the substance the subject of the second count. By reason of s32(2) he is guilty of the offences charged in both Counts 1 and 2 if he knowingly had those substances in his possession.
16. I turn to examine the question whether the respondent knowingly had these substances in his possession. At about 5.50pm on 21 November 1993 five police officers went to a house at 31 Hastings Street, Glenelg. The house was occupied by Mr and Mrs Hoffmann. The respondent was staying with the Hoffmanns. The police officers were Detectives Cardwell, Sheldon, Garrity, Patterson and Hunter. The respondent permitted them to enter. After identifying themselves and asking a few questions, the police officers began to search the room occupied by the respondent. The police officers did not have a search warrant. Soon after the police officers had identified themselves and indicated that they wished to search premises, the respondent asked if they had a search warrant. The police officers produced their general search warrant. Detective Cardwell found a suit bag. The suit bag contained a pair of shoes in which Detective Cardwell located a plastic bag with pink tablets. Other pink tablets were found in other parts of the suit bag.
17. The bag had a baggage tag affixed to it which bore the respondent's name and address. It read, "J A Willis, 31 Hastings Street, Glenelg". It contained his clothing as well as some personal papers which bore his name. The personal papers included a British passport with his name. The respondent holds a British passport. The police officers also found cash amounting to $14,450 in the suit bag. The respondent admitted that the contents of the bag other than the drugs and the money belonged to him. The respondent denied that the suit bag was his. However, when asked to whom it belonged, he did not reply.
18. The police officers found other personal papers bearing the name "Ellis" in the suit bag. The respondent said that they belonged to a friend of his. He denied using the name "Ellis". There was evidence from Mr Hoffmann that the respondent used the alias "Ellis". It is unnecessary to examine the implications of the use of the alias in any detail. For present purposes it is sufficient to note that the respondent's denial that he used the name adversely reflects upon his credit.
19. When interviewed by the police at the City Watch House, the respondent said that he had been residing at 31 Hastings Street, Glenelg, for the past week. He had just returned from a visit to England and Europe. He said that the suit bag belonged to a person called Andrew Singleton; that Singleton was a drug dealer; that Singleton had visited him the previous night at about midnight; that Singleton had come to the back door of the house; that he had knocked on the back door; that Singleton had come to change clothes; that Singleton went into the room in which the suit bag was located; and that he changed and then left. The respondent said that while Singleton was at the house, he made him a cup of coffee. The respondent also said that, after Singleton had left, he went into the room and checked the suit bag. He saw some drugs and the money. He said that he wondered whether he should call the police but, out of loyalty to his friend, he decided not to do so. He decided he would contact Singleton later and ask him to come and pick up the drugs and the money. According to the respondent, Singleton was at the house for about 25 minutes. When asked where Singleton could be located, the respondent was unable to say where he lived and he did not have any telephone number.

20. Mr and Mrs Hoffmann were in the house for the whole of that night. Their evidence was that the respondent came home shortly after midnight. The Hoffmanns then chatted with him for a short while. They had a cup of coffee. They all then went to bed at about the same time. Mr Hoffmann said that they all went to bed at about 1.30am. Mrs Hoffmann did not give an estimate of the time they went to bed but she did state that the respondent arrived home at about 12.30am. Mr Hoffmann said that the front door of the house was locked. The only other means of entry would have been through the back door. However, he would have heard anyone enter through the back door. The Hoffmanns did not hear any person come to the house that evening. The Hoffmanns do not know any person called Andrew Singleton. Mr Hoffmann had known the respondent for about eight years. He was aware that the respondent used the alias "Ellis" and that he had registered his motor vehicle in that name. They both identified the suit bag as a bag belonging to the respondent.
21. I find beyond reasonable doubt that there is no person called Andrew Singleton. The story concerning Singleton is a complete fabrication by the respondent. When asked how Singleton might be contracted , the respondent did not know his address or even a telephone number. The lie to this story is given by the evidence of the Hoffmanns who not only deny that any person other than the respondent came to the house that evening but also their evidence is inconsistent with the time given by the respondent as the time when Singleton came to the house. The evidence is clear that the suit bag belonged to the respondent. Not only did it have a name tag bearing his name but the Hoffmanns also identified it as belonging to the respondent. The respondent must have known of the presence of the drugs in the suit bag. It defies the bounds of ordinary credulity to reach any other conclusion.
22. For these reasons, the respondent knew he had the drugs in his bag. By virtue of the terms of s32(3) of the Controlled Substances Act, as the respondent knowingly had possession of these prohibited substances and they were in amounts in excess of the prescribed amount, he is deemed to have had those substances in his possession for the purpose of sale or supply. For all of these reasons I find beyond reasonable doubt that the respondent is guilty of the offences alleged in Counts 1 and 2. It is unnecessary, therefore, to examine whether he would be convicted of the offence alleged in Count 3.
The Respondent Cannot be Found 23. Senior Constable Bell has sworn an affidavit deposing to the enquiries made by the police in an attempt to locate the respondent. It is unnecessary to recite all of the steps which have been taken. I incorporate into these reasons the contents of his affidavit. It is sufficient to state that I am well satisfied that the police have made extensive enquiries to locate the respondent but without success. I, therefore, find that the respondent cannot be found. Liability to Forfeiture
24. Finally, it must be proved that, in consequence of the commission of the offences alleged in Counts 1 and 2, the respondent is liable to forfeit the cash. A person who has committed a serious drug offence is liable to forfeit all property except property as to which the Court is satisfied, on evidence given or adduced by that person, that the property is not and was not derived from the proceeds of offences against the law of South Australia or any other law: s4(3) of the Crimes (Confiscation of Profits) Act. A "serious drug offence" is defined to mean an offence involving trade in a drug: s3 of the Act. The respondent is, therefore, liable to forfeit his property. I find that the cash is the property of the respondent. There is no evidence from the respondent to the effect that the property was not derived from the proceeds of offences. The respondent is, therefore, liable to forfeit the cash.
Conclusion 25. The Director has, therefore, proved
    (a) that the respondent has committed two prescribed offences;
    (b) that the respondent cannot be found; and
    (c) that in consequence of the commission of the prescribed
    offences, the respondent is liable to forfeit the cash found in
    his possession. There will, therefore, be an order for forfeiture of the cash sum of $14,450 and the interest earned on that sum.