Director of Public Prosecutions v Parker

[1997] QCA 153

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 9581 of 1996

Brisbane

BeforeFitzgerald P.

McPherson J.A.
Moynihan J.

[Director of Public Prosecutions v Parker]

BETWEEN:    

DIRECTOR OF PUBLIC PROSECUTIONS

(Applicant)  Appellant

AND:

AARON JOHN PARKER

(First Respondent)  First Respondent

AND:

KYLIE JANE COLEMAN

(Second Respondent)  Second Respondent

AND:

BRETT CAMERON ARDLEY

(Third Respondent)  Third Respondent

AND:

SHANE RICHARD THOMSON

(Fourth Respondent)  Fourth Respondent

Judgment delivered 13 June 1997

Separate reasons for judgment of each member of the Court; each concurring as to the orders made.

APPEAL DISMISSED WITH COSTS TO BE TAXED.

CATCHWORDS: CRIMINAL LAW - Restraining order - Appellant sought restraining orders for specified property of first respondent and all other property of the four respondents under s.40(3)(c) Crimes (Confiscation) Act 1989 - Application for all other property dismissed - Section 40(15) made provision for orders only with respect to specified property - Whether power to make global order should be implied.

Counsel:Mr P. Kelly for the appellant

Mr T.F. McLaughlin for the respondent Coleman

Ms. C. Holmes for the first respondent Parker and fourth respondent Thomson

Mr G.R. Forward for the respondent Ardley

Solicitors:Queensland Director of Public Prosecutions for the appellant

Gardiners for the respondent Coleman

Boe & Callaghan for Parker and Thomson

Lavery & Associates for Ardley

Hearing Date:              21 May 1997

REASONS FOR JUDGMENT - FITZGERALD P.

Judgment delivered 13 June 1997

The circumstances giving rise to this appeal are set out in the reasons for judgment of McPherson J.A.

Sub-section 40(15) of the Crimes (Confiscation) Act 1989 also omits reference to “property acquired after the order is made”, which is referred to in paragraphs (b), (c) and (d) of sub-s. 40(3) of the Act. It is not clear to me what, if any, orders sub-s. 40(15) empowers in respect of such property, and it might be that sub-ss. 40(3) and (15) are incompatible, perhaps by accident or oversight, although, as is discussed in the judgment of McPherson J.A., the former sub-section might deliberately permit wider applications than the orders for which the latter sub-section grants power. Whatever the reason for the differences between the two sub-sections, I cannot identify any principle of construction which would permit this Court to attribute to the legislature an intention to give an invasive provision such as sub-s. 40(15) a much wider operation than is provided for by its terms. Indeed, as McPherson J.A. has pointed out, the language of sub-s. 40(15) is narrower than that of its predecessor, sub-s. 17(8) of the Crimes (Confiscation of Profits) Act 1989. In such circumstances, if sub-ss. 40(3) and (15) of the Crimes (Confiscation) Act are incompatible through error, the error might be in the former, not the latter, provision.

I agree with the orders proposed by McPherson J.A.

REASONS FOR JUDGMENT - McPHERSON J.A.

By a notice of motion issued on 3 September 1996 the Director of Public Prosecutions applied under the Crimes (Confiscation) Act 1989 for an order or orders against the four respondents Parker, Coleman, Ardley and Thomson to restrain property from being disposed of.  The notice of motion divided the property into two categories.  First, there was property of Parker that was “specified”, in the sense of being identified as: (1) land at Pacific Paradise, of which the title registration number and other particulars were given; (2) a sum of $6,510 found in the possession of Parker on 9 December 1995; and (3) a sum of $12,500 found at Parker’s residence at Alexandra Headlands on the same date.  In addition to that identified property, the Director also sought a restraining order or orders in respect of “all other property” of the four named respondents.

Although these two categories of property were the subject of a single notice of motion, the applications with respect to them were the subject of separate determinations in the Court below.  The application for a restraining order in respect of the specified property was granted.  It is now the subject of appeal no. 470 of 1997 by Parker.  On the other hand, the application for a restraining order in respect of “all other property”, which was sought against all four respondents was dismissed.  It is now the subject of appeal no. 9581 of 1996 instituted by the Director.  Before this Court, the appeals were heard separately, and it is only with this appeal no. 9581 of 1996 that we are here concerned.

Speaking in a general way, the “main object” of the Act is by s.3(1) said to be deterring the commission of serious offences by removing the financial gain associated with their commission. According to s.3(2)(a), this object is “mainly” to be achieved by providing for forfeiture of property (i) used or intended to be used in connection with the commission of serious offences, or (ii) derived from that property. Other remedies, such as tracing, deprivation of benefits, etc., are also provided for or contemplated in paras. (b) to (d) of s.3(2). In addition, s.3(3) provides, although somewhat less emphatically, that it is “also an important object” of the Act to ensure that property rights may be affected by forfeiture or other orders “only through just procedures”, and that the property rights of persons innocent of unlawful activity are protected.

The statutory provision under which the Director applied for an order with respect to “all other property” of the four respondents was s.40(3)(c) of the Act, which is part of the following provision:

“(3) An appropriate officer may apply to the court for an order about 1 or more of the following:

(a)specified property of the defendant;

(b)all the property of the defendant, including property acquired after the order is made;

(c)specified property of the defendant, and all other property of the defendant, including property acquired after the order is made.

(d)all the property of the defendant, including property acquired after the order is made, other than specified property;

(e)specified property of someone else.”

Section 40 proceeds in subsections (6) to (9) to impose a series of evidentiary and other requirements that must be satisfied before an order is made.  In the case of specified property, s.40(7) requires that details of the property must be stated, and s.40(9) prescribes particular evidentiary requirements if the subject of the application is specified as the property of someone else.

Section 40(15) then provides:

“(15) If the court is satisfied on an application that -

(a)the defendant must be treated as having been convicted of a serious offence stated in an affidavit required by subsection (5); or

(b)there are reasonable grounds for holding the beliefs stated in an affidavit required by subsections (6) to (9);

the court may make 1 or more of the following orders -

(c)an order directing that specified property must not be disposed of or otherwise dealt with;

(d)an order directing that specified property be disposed of, or otherwise dealt with, only in a specified way or circumstances;

(e)an order directing the public trustee to take control of specified property;

(f)an order directing the applicant to notify the public trustee of the order.”

In describing the orders that may be made, s.40(15) refers only to property that is specified property. It nowhere in express terms authorises a court to make an order directed to property that is not specified. In that respect, it is to be contrasted with ss.40(3)(b), (c) and (d) of the Act each of which authorises application to be made for an order concerning not only specified property of a defendant but “all property” or “all other property”, or “all the property” of a defendant or someone else. It was because of the absence in s.40(15) of any express power or authority to make an order concerning property that is not “specified property” that the application for restraining orders in respect of “all other property” of the respondents was refused by the primary judge.

On behalf of the Director, Mr Kelly of counsel submitted that the decision under appeal in no. 9581 of 1996 is wrong. Section 40(3)(c) expressly confers a right to apply to the court for an order about specified property of the defendant “and all other property of the defendant”, and yet it fails to invest the court with any power to make such an order when applied for. Such a result is, he contended, absurd and so must be rectified by implying or reading into s.40(15) the power to make what he described as a “global order”, with which the legislation so plainly intended to invest the court.

There are several reasons why this submission should not be accepted. In the first place, it is by no means clear that it was the intention of Parliament that the courts should have power to make a global order of the kind sought. Section 40(3) plainly authorises such an order to be applied for in various cases, of which s.40(3)(c) is one. It is, however, a plausible explanation of the authority to do so that in some, perhaps many, circumstances the Director, at the time the application is initiated by filing and serving the notice of motion, may not be in possession of particulars sufficient to enable the property to be specified. The expression “specified” in this context bears its ordinary meaning of identify by reference to descriptive details, which is the sense in which it is used in s.40(7)(a) of the Act (“state details of the property”). Without possessing and providing such details in the originating process or supporting material, the Director would be at some risk of having the application brought to an immediate halt on the ground that it failed with sufficient particularity to disclose a case calling for an answer from the defendant. Technically, the notice of motion and supporting affidavits constitute a “pleading” within the meaning of the definitions in s.1 of the Judicature Act (now s.241 of the Supreme Court Act 1995), which are applied by O.1, r.1 to the Rules of the Supreme Court under which the Directors’ motion on notice is made. Were it not for the authority conferred by s.40(3), a notice of motion seeking a “global” order might be struck out or stayed at the outset.

What s.40(3) therefore expressly permits is an application which, at least at the time it is instituted, is quite general in its form. The Director’s case for a restraining order is obviously strengthened if it is also possible to identify and point to specified property of the defendant that can be relied on to satisfy the evidentiary and other requirements of sub-ss. (6) to (9) of s.40. But even if those requirements are fulfilled, it is, because of s.40(3), possible for the Director to initiate and sustain an application, as he has done here, for a restraining order in respect of a wider range of other property than is initially capable of being specified within the meaning of the Act. By invoking powers conferred by other provisions of the Act the Director may then be able so to identify and specify that property that an order in respect of it may properly be made by the court under s.40(15).

In the end, however, the only order that the court is authorised to make under paras. (c) to (e) of s.40(15) is one that concerns specified property. Such a result is not, either necessarily or at all, a surprising one. A “global” order comprehending in general terms all the property of the defendant or, in this case, defendants is something that is liable to have far-reaching implications not only for them but also for persons who, to use the expression in s.3(3)(b), are “innocent of unlawful activity”. The Act sets out to protect the rights and interests of such persons; but orders in the “global” form sought here are capable of operating well beyond the limits that are foreseen at the time they are made. It is partly for that reason, among others, that restraining injunctions are not ordinarily made in terms that are unreasonably wide or unduly extensive in scope or effect: cf. Abella v. Anderson [1987] 2 Qd.R. 1; Commissioner of Water Resources v. Federated Engine Drivers & Firemen’s Association [1988] 2 Qd.R. 383.

It may be, as Mr Kelly submitted, that Parliament intended that “global” orders could and should be made under s.40(15) but, by some accident or oversight, simply omitted to say so. We were, however, referred to nothing in the history of the legislation to justify such a conclusion. The Act came into being in 1989 as the Crimes (Confiscation of Profits) Act 1989.  Its title was altered to Crimes (Confiscation) Act 1989 in the course of a series of amendments introduced by the Crimes (Confiscation of Profits) Amendment Act 1995 (No. 3 of 1995).  The provision that now stands as s.40 in the current Reprint no. 2 of the Act was originally to be found in a somewhat different form in s.17 of the original statute of 1989.  It was repealed by s.14 of the amending Act no. 3 of 1995, which substituted a new s.17 since renumbered as s.40, with which we are concerned here.

An examination of the original s.17 discloses that it contained in s.17(1) a provision enabling application to be made for an order in respect of: (a) specified property of a person; (b) all property of that person, including after-acquired property; or (c) specified property of any other person that is tainted. To that extent it corresponded generally, if not in detail, to s.40(3) of the current Reprint no.2 version of the Act. The closest analogue to the present no.40(15) was s.17(8) of the original Act read with s.17(3) of that Act. On one interpretation of those two provisions, the Court was originally invested with a power to make the kind of “global” restraining order that is sought here. However, even if that was the effect of those earlier provisions, it does not follow that, in amending the Act in 1995, Parliament did not intend to remove the power to make an order in that form. As so often happens, there is nothing in the amending Act of 1995 or in the Parliamentary debate or explanatory memorandum that affords any direct or even useful indication of the legislative intention on the matter in question.

The Court is therefore left with little to guide it apart from the wording of s.40(15) itself. In solving the problem which is said to exist, it is of no assistance to refer to broad general provisions like s.14A(1) of the Acts Interpretation Act 1954 to the effect that the interpretation to be preferred is that which will “best achieve the purpose of the Act”under consideration. As s.3 of the Crimes (Confiscation) Act 1989 discloses, the Act has several objects or purposes of which one is said by s.3(2) to be to provide for forfeiture of property, and another (described in s.3(3) as “important”) is that of ensuring that property rights may be affected by forfeiture or other orders only through “just procedures” and protecting from such orders property rights honestly acquired by innocent persons. In stating the “object” of the Act, s.3 does little more than identify competing considerations that influenced the form of various parts of the legislation without condescending to disclose to the Court how, in a case like this, it is expected to choose between them: cf. Chugg v. Pacific Dunlop Ltd. (1990) 170 C.L.R. 249, 262; Gonzo Holdings No. 50 Pty. Ltd. v. McKie [1996] 2 Qd.R. 240, 255-256.

In Watson v. Marshall & Cade (1971) 124 C.L.R. 621, at 629, Walsh J. said that, in the interpretation of an Act affecting personal liberty, “supposition as to the intention of the legislature has no place and ... the function of the Court is limited to interpreting and giving effect to its will as expressed in the statute”. The statute here is not, at least in the particulars now under discussion, one that affects personal liberty; but it is confiscatory and penal in its effects, and comparable considerations therefore apply to it: see Wade v. New South Wales Rutile Mining Co. Pty. Ltd. (1969) 121 C.L.R. 177, 181; American Dairy Queen (Qld.) Pty. Ltd. v. Blue Rio Pty. Ltd. (1981) 147 C.L.R. 677, 683. Section 40(15) should therefore not be given an interpretation that is wider than is justified by its language according to its ordinary meaning.

All of these considerations combine to show that the primary judge was correct in dismissing the applications made by the Director for “global” orders against the four respondents.  Appeal no. 9581 of 1996 by the Director should therefore be dismissed with costs.

After the appeal was heard, the Court was provided with a letter from the appellant explaining that Parliament had passed a further amendment to the Act, which has recently been assented to but has not yet been proclaimed. Its effect, so far as material, is to omit the expression “specified property” in each of subsections (c), (d) and (e) of s.40(15) and to insert the expression “property mentioned in the order”. Courts are, of course, not concerned with legislation that has not yet become law; but the fact that Parliament considered it necessary to make the amendment is some indication that in its present form the legislation calls for the interpretation we have placed upon it in these reasons.

REASONS FOR JUDGMENT - MOYNIHAN J.

The facts and statutory provisions relevant to the determination of this appeal are set out in the reasons for judgment of McPherson J.A. and it is unnecessary for me to repeat all of them in these reasons.  I agree with those reasons and the order proposed.  I have a number of additional observations.
Section 40(3) of the Crimes (Confiscation) Act 1989 as it presently stands allows designated officers to apply to the court for an order–

". . . about 1 or more of the following–

(a)specified property of the defendant;

(b)all the property of the defendant, including property acquired after the order is made;

(c)specified property of the defendant and all other property of the defendant, including property acquired after the order is made;

(d)all the property of the defendant, including property acquired after the order is made, other than specified property;

(e)specified property of somebody else."

The legislation then goes on to provide for the contents of the affidavit which must support the application. Relevantly for present purposes, if specified property (whether of "the defendant or someone else") is the subject of the s.40(3) application, the affidavit must outline details of the property; subs.(7). If the defendant's property is the subject of the application, a belief must be stated that "the property is tainted . . ." or that the "defendant derived a benefit from the commission of the offence . . ", subs.8.
           Section 40(11) and (12) provide for notice of an application for a restraining order to be given to any person whose property is the subject of the application and to anyone believed to have an interest in it.  A person in the latter category is entitled to appear at and to be heard on the hearing of the application, (sub-s.13).  In urgent cases an order may be made without notice but it only has effect for a maximum of seven days. 
           The power to make an order falls to be exercised only if the court is satisfied there are reasonable grounds for holding the beliefs sworn to; subs.(15).  The subsection then provides that the court can make one or more of the following orders–

"(c)an order directing that specified property must be disposed of or otherwise dealt with;

(d)an order directing that specified property be disposed of, or otherwise dealt with only in a specified way or circumstance;

(e)an order directing the public trustee to take control of specified property;

(f)an order directing the applicant to notify the public trustee of the order."

The sub-section makes no provision for what was described in argument as a "global order".
Having regard among other things to the procedural requirements which must be satisfied in an order to obtain, it is far from obviously absurd that s.40(3) permits an application in wider terms than the orders which sub-s.(15) grants power to make. It does not follow that sub-ss.(3) and (15) are incompatible. Nothing has emerged which persuades me that this Court ought to attribute to the legislature an intent to give sub-s.(15) a wider operation than is provided for by its terms. Furthermore as McPherson J.A. has pointed out the language of sub-s.(15) is narrower than the terms of its predecessor, sub-s.17(8) of the Crimes (Confiscation of Profits) Act 1989. The appeal should be dismissed with costs.