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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: 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
Case: [1996] SASC 5696
Decision Date: 9 July 1996

CaseChat Overview and Summary

The case involves the Director of Public Prosecutions (DPP) seeking an order for the forfeiture of money seized from Jonathan Andrew Willis during his arrest on drug-related charges. Willis, who was unable to be located, had not been convicted of the offences with which he was charged. The court needed to determine whether the money was liable for forfeiture under the Crimes (Confiscation of Profits) Act 1986. The central legal issues revolved around whether the respondent had committed the prescribed offences, whether he could be found, and if he was liable to forfeit the property in question.

The court addressed these issues by first establishing that the standard of proof required for the commission of the offences was beyond reasonable doubt, while other factual matters were decided on the balance of probabilities. It was determined that notice of the application should be published in newspapers due to the unavailability of the respondent. The court examined the evidence, including witness statements and police records, and found that Willis had committed the offences of possessing prohibited substances for sale, beyond reasonable doubt. The respondent could not be found, as extensive police efforts had been unsuccessful. Finally, the court concluded that Willis was liable to forfeit the cash, as it was derived from the proceeds of his drug-related offences.

The Supreme Court granted the application for forfeiture, ordering that the sum of $14,450, along with any accrued interest, be forfeited to the State of South Australia.

Orders