Director of Public Prosecutions v Nayda & Nayda No. Scgrg-99-961 Judgment No. S436

[1999] SASC 436

DIRECTOR OF PUBLIC PROSECUTIONS  SA

v
NAYDA & NAYDA
[1999] SASC 436

1 MILLHOUSE J.        This appeal boils down to a question of statutory interpretation. 
2 The respondents have been charged with a serious drug offence.  Mr Michael Ward acknowledges that it is a serious drug offence within the meaning of the definition in section 3 of the Criminal Assets Confiscation Act. 
3 It is alleged that the respondents were growing cannabis on their property at Wool Bay.  They acquired the property in 1994, less than six years ago.  I was told by Mr Rod Jensen for the appellant that at the most, the value of the crop and what was found in and around the property is $30,000.  The value of the property is said to be over $90,000. 
4 The Director of Public Prosecutions applied pursuant to subsection 15 (1) of the Act, ex parte, for an order for forfeiture of the property.  The order was made by a magistrate.  The respondents applied to another magistrate to have that order revoked and they were successful.  The Director of Public Prosecutions has appealed against the revocation.  In his reasons revoking the order, the learned magistrate referred to exception two found in subsection 15(5):-
"The court may revoke or vary the order so that it ceases to apply to property if the owner of the property satisfies the court, on an application made before the conversion of the order into a forfeiture order, that the owner acquired the property lawfully or at least six years before the commission of the relevant forfeiture offence and the property is not tainted."
5 In his reasons, the magistrate said:
"In my opinion the first exception is not relevant but Exception 2 would appear to be appropriate.  The applicants have a number of requirements that they must satisfy.  They must make any application prior to any application being made to convert the restraining order into a forfeiture order.  That is the case here and therefore I rule that they may make this particular application.  What Exception 2 then says is that the owners must satisfy the court that they acquired the property lawfully or, at least, six years before the commission of the relevant forfeiture offence and the property is not tainted.
In my opinion there are alternative bases on which this application may go forward. Either the owners, that is the applicants, may indicate and prove to the court, on the balance of probabilities, that they acquired the property lawfully or that they acquired the property at least six years, before the commission of the relevant forfeiture offence and the property is not tainted.  It is my opinion that the applicants cannot meet the second basis.  They did not acquire the property, at least six years before the commission of the relevant forfeiture offence and I would find that the property is tainted.
I therefore turn to the situation as to whether or not the applicants acquired the property lawfully."
6  He then went on to find the respondents acquired the property lawfully.  With respect, the learned magistrate was plainly wrong in his interpretation.  He construed a conjunctive as disjunctive.  The test in exception two is either that the owner acquired the property lawfully or at least six years before the commission of the relevant forfeiture offence (that is disjunctive) and (this is plainly conjunctive) the property is not tainted.  Mr Ward concedes that the property is tainted.  That is the plain sense of the exception.  Literally it would be possible to read it as the second magistrate did, but that does not make much sense.  Most properties are obtained lawfully.  On that magistrate's interpretation, the interpretation Mr Ward is obliged to support, the exception would be very wide indeed.  So I am with the appellant. 
7 However, the respondents have filed a notice of contention to the effect that if I were against them on the appellant's appeal then the learned magistrate was right for the wrong reason.  The grounds of the notice of contention are:
"If the magistrate was wrong in the reasons he gave for revoking the order, the respondents herein contend that the order should be affirmed because he ought to have revoked the order in the exercise of his discretion under subsection 15(2) of the Criminal Assets Confiscation Act."
8 Mr Ward has mounted a careful, detailed argument but I am afraid he is trying to make bricks without straw.  Mr Jensen's reply, correct I think, is that there is no discretion.  Subsection 15(5)(b) reads:-
"The order cannot (subject to the following exceptions) be revoked or varied so that it ceases to apply to property within its ambit."
9 Exception two is the only one which could apply and I have already said that it does not.  Subsection 15(5)(b) is mandatory: there is no room for discretion. 
10 Mr Ward complains that the section may work very harshly indeed. Mr Jensen concedes that. I agree but as Connolly J said in Brauer v Director of Public Prosecutions (1989) 91 ALR 491 at p.495:
"One may sympathise with the apparent desire of the learned judge to mitigate what seems to be the harshness of this provision but I cannot, with all respect accept it as a proper application of the law.  So far as the drug trade is concerned, and I say nothing as to other offences, desperate situations may call for desperate remedies and it is for the Parliament to judge what those should be."
11 I must reject Mr Ward's contention. 
12 The result is that the appeal is allowed, the order of Mr Myers SM set aside, and the restraining order imposed by Mr Gumpl SM on 17 November 1998 is reinstated. 
13 The appellant will have costs of the appeal which I fix at $150.