Director of Public Prosecutions v Tomas
[2015] ACTSC 233
•3 August 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Director of Public Prosecutions v Tomas |
Citation: | [2015] ACTSC 233 |
Hearing Dates: | 31 July and 3 August 2015 |
DecisionDate: | 3 August 2015 |
Before: | Mossop AsJ |
Decision: | The application filed 23 July 2015 is dismissed. The plaintiff is to pay the costs of the defendant and the first interested party of the application. |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – Confiscation of Criminal Assets Act 2003 (ACT) – application for restraining order – legislative requirements of application and affidavit in support of application – whether failure to meet statutory requirements for affidavit prevents making of order – identification of real property – failure to establish reasonable grounds for deposed beliefs and suspicions relevant to application – application dismissed |
Legislation Cited: | Confiscation of Criminal Assets Act 2003 (ACT) ss 3, 13, 22, 26, 27, 29, 31, 33, 43, 54, 58, 66, 77, 85, 109, 114, 116, 118, 119 Criminal Code 2002 (ACT) ss 603, 616 Australian Capital Territory (Self-Government) Act 1988 (Cth) s 27 |
Cases Cited: | Director of Public Prosecutions v Close and Close [2015] ACTSC 10 Director of Public Prosecutions (Cth) v Hart (No 2) [2005] 2 Qd R 246 Woodcroft v Director of Public Prosecutions [2000] NSWCA 128 |
Parties: | ACT Director of Public Prosecutions (Plaintiff) Tomislav Tomas (Defendant) Anna Tomas (First Interested Party) National Australia Bank Ltd (Second Interested Party) Nissan Financial Services Australia Pty Ltd (Third Interested Party) Tom’s Carpet Laying Pty Ltd (Fourth Interested Party) |
Representation: | Counsel Mr K Lee (Plaintiff) Mr K Saeedi (Defendant and First Interested Party) |
| Solicitors ACT Director of Public Prosecutions (Plaintiff) Kamy Saeedi Law (Defendant and First Interested Party) | |
File Number: | SC 265 of 2015 |
The application
The Director of Public Prosecutions (‘DPP’) has made an application under s 26 of the Confiscation of Criminal Assets Act 2003 (ACT) (‘COCA Act’) for a restraining order under s 31 of the COCA Act.
The property identified in the application is set out in some detail in the application. In summary it is:
(a)a residential property in Fisher identified as having a value of $500,000;
(b)a residential property in Gordon identified as having a value of $1,000,000;
(c)a motor vehicle with an estimated value of $35,000;
(d)34 categories of equipment related to the cultivation of marijuana with an estimated value of $17,235.40.
The total estimated value of the property sought to be the subject of the restraining order is $1,552,235.40.
While the application could have been made without notice to any person with an interest in the property, notice, albeit relatively short notice, was given of the application to the defendant and four interested parties. The defendant and the first interested party, his partner, appeared by their solicitor on the application. By giving notice of the application the DPP avoids the operation of s 43 of the COCA Act which permits a restraining order made without notice to be set aside.
I initially heard the application last Friday 31 July 2015. The argument on the application could not be completed on that afternoon and I adjourned the matter until today, Monday. I made an interlocutory order restraining the defendant and the first interested party from dealing with the property identified in paragraphs (a) and (b) of the list of property in the application until today.
The facts
There are two charges that have been brought against the defendant:
(a)one count (CC2015/5075) of cultivating a trafficable quantity of cannabis for sale, committed on 23 May 2015, contrary to s 616(5) of the Criminal Code 2002 (ACT) (‘Criminal Code’);
(b)one count (CC2015/5076) of trafficking in a commercial quantity of cannabis, committed on 23 May 2015, contrary to s 603(3) of the Criminal Code.
Both offences are alleged in the charges to have occurred on 23 May 2015. The fact that the offences are alleged to have occurred on a single day is significant for reasons which will appear shortly.
They are both serious offences for the purposes of the COCA Act. They arise out of the operation of what can be described as a cannabis grow house at the house in Fisher, paragraph (a) in the list of property above. The residence at Gordon is the home of the defendant and the first interested party. It is not alleged to have been involved in the cultivation of cannabis. Some cannabis was found there on 26 May 2015, three days after the date of the alleged offences.
The solicitor for the defendant and the first interested party made submissions directed to the making of the order in relation to the house at Gordon. In particular he submitted that it could not be tainted property for the purposes of the COCA Act because:
(a)nothing is alleged to have occurred there on 23 May 2015 that would mean that it was used or intended to be used in the commission of the offences;
(b)there was no evidence that the property was derived from the commission of the offences because if the offences occurred on 23 May 2015 it was impossible for the house to have been paid for by the proceeds from the offences as opposed to some previous unspecified conduct in relation to the cultivation or sale of cannabis.
He made various other submissions about the adequacy of the evidence to establish reasonable grounds for the suspicions of the officer in the officer’s affidavit. Other than those submissions he submitted that it was for the Court to be satisfied of those matters which it was required to be satisfied under the COCA Act if it was to make restraining orders in relation to the property the subject of the application.
The scheme for the making of restraining orders
The consequences of the making of a restraining order are very significant. The most obvious example of the significance is that where property is subject to restraint and a person is convicted of a serious offence then that property will be automatically forfeited to the Territory within 14 days of the conviction or 14 days of the restraining order whichever is the later unless that property is the subject of an exclusion order: COCA Act s 58(2). Thus the default position would be that the property is forfeited. Where an exclusion order is applied for the applicant for that order bears the onus of proving the matters required by the statute.
The COCA Act both:
(a)imposes a low threshold for the making of restraining orders; and
(b)imposes a series of detailed requirements in relation to the application for the order, the affidavit in support of it and the matters to be contained in any order.
The COCA Act imposes requirements that relate to:
(a)the content of the application itself (s 26);
(b)the time in which the application must be brought (s 27);
(c)the content of the affidavit in support of the application (s 29);
(d)the matters of which the Court must be satisfied before it is obliged to make an order (s 31);
(e)the content of the order (s 33).
The application and affidavit in support are linked. Fundamental to the making of the order is the satisfaction by the Court that there are “reasonable grounds for the officer’s beliefs and suspicions stated in the affidavit”: s 31(2)(a). While it should be noted that, for the purposes of being satisfied that there are reasonable grounds for the officer’s beliefs and suspicions, other evidence may be put before the Court (see s 31(2) and the reference to “any other evidence before the court”) it is important to note that what the Court must be satisfied of is that there are reasonable grounds for the officer’s beliefs and suspicions stated in the affidavit and not for the beliefs and suspicions that might otherwise exist. What beliefs and suspicions must be deposed to are determined by s 29 and the subject matters of those beliefs and suspicions depend upon the terms of the application.
The legislature has, in order to further the purposes set out in s 3 of the COCA Act, permitted a relatively low threshold for the making of restraining orders. It has confined the role of the Court to the determination of the reasonableness of the beliefs and suspicions of a police officer rather than anything more onerous for the executive government. It has made the making of restraining orders mandatory rather than discretionary. The price for this has been the requirements as to what must be stated in the application (s 26), when it may be brought (s 27), what must be in the affidavit supporting it (s 29) and the giving of an appropriate undertaking to protect persons who may be affected by the making of the order (s 31(4)).
The requirement for satisfaction required by s 31(2)(a) is a fundamental matter which cannot simply be determined by the consent of the parties: Woodcroft v Director of Public Prosecutions [2000] NSWCA 128 at [74]-[77]. It can only be achieved if the matters required by s 29 to be the subject of a belief or suspicion have been deposed to in the affidavit. If they have not then, in my view, the Court cannot reach the satisfaction required by s 31(2)(a). It is not open to the Court to simply peruse for itself the evidence available and make its own judgment about the matter or whether or not it is likely that the officer would have the relevant belief or suspicion. The legislature has made a deliberate choice to empower the making of very significant orders if certain matters are satisfied and to exclude any discretion from the making of those orders. In those circumstances it would be inconsistent with the scheme of the COCA Act to permit the Court to consider matters for itself with a view to making an order when the apparently mandatory requirements of the COCA Act have not been met.
That conclusion is reinforced by the terms of s 33(4) of the COCA Act which addresses the consequences of a failure to comply with that section. Section 33 relates to the content of restraining orders. Section 33(4) provides:
(4)A failure by a relevant court to comply with this section in relation to the restraining order does not invalidate the restraining order or any forfeiture order or automatic forfeiture made in relation to the property restrained under the restraining order.
The absence of any equivalent provision in, in particular, ss 26, 29 or 31 reinforces the conclusion that the use of the word “must” in each of those sections imposes a requirement, the failure to comply with which precludes the making of an order under s 31. Thus, looking at the COCA Act as a whole and attempting to give its provisions a harmonious operation, the COCA Act should be interpreted as requiring the relevant beliefs and suspicions set out in s 29 to be set out in the affidavit in support of the application and precluding the Court from reaching the state of satisfaction in s 31 where there has been non-compliance with the requirements of s 29. Further, where there has been compliance with s 29, whether or not there are reasonable grounds for the officer’s beliefs and suspicions stated in the affidavit must be determined having regard to the subject matter of the application which is required to be stated in the application itself under s 26(2).
Does the application comply with s 26 of the COCA Act?
Section 26 of the COCA Act imposes a series of requirements in relation to an application for a restraining order over property that is not unclaimed tainted property. The requirements of that section and my assessment of whether or not they are met are as follows.
Is the application in relation to one of the categories of property identified in s 26(1)?
Section 26(1) permits an application to be made in relation to:
(a) stated property of a person;
(b)stated property of a person and all other property of the person (including property acquired after the making of the order);
(c)all property of a person (including property acquired after the making of the order);
(d)all property of a person (including property acquired after the making of the order) other than stated property.
I note that s 26(6) permits an application to be made in relation to an interest or interests in property.
Of the paragraphs in s 26(1) it is clearly s 26(1)(a) that can be the only one that is relevant because the property said to be the subject of the application is stated and there is no application to restrain all the property of a person.
The application must be made in relation to the property of a person. The Legislation Act 2001 (ACT) (‘Legislation Act’) means that it may be property of one or more persons (see s 145 of the Legislation Act) and that is made express by s 26(6)(c) of the COCA Act.
In the present case categories (a) and (b) of the property identified in the application are described as follows:
(a)“x xxx Street, Fisher, ACT also known as Block xx, Section xx, Fisher, ACT, estimated value $500,000.00”;
(b)“xx xxx Street, Gordon, ACT also known as Block x, Section xxx, Gordon, ACT, estimated value $1,000,000.00”.
The definition of “property” in the COCA Act is, relevantly:
property–
…
(b) of a person, includes property in which the person has a beneficial interest.
The Legislation Act also contains a definition of “property” which applies “except so far as the contrary intention appears”: Legislation Act s 155. That definition, which is in the Dictionary to the Legislation Act, provides:
property means any legal or equitable estate or interest (whether present or future, vested or contingent, or tangible or intangible) in real or personal property of any description (including money), and includes a thing in action.
NoteA thing in action is an intangible personal property right recognised and protected by the law. Examples include debts, money held in a bank, shares, rights under a trust, copyright and right to sue for breach of contract.
As McPherson JA recognised in Director of Public Prosecutions (Cth) v Hart (No 2) [2005] 2 Qd R 246 at [20] (‘Hart’) “[t]he word “property” is plainly capable of meaning either or both of the thing owned or ownership of the thing; as when one says of something that “that property is my property”.” The definition in the Legislation Act clearly describes property by reference to the legal relationship with the thing.
The inclusive definition in the COCA Act is directed not at the meaning of “property” but rather the meaning of “property of a person”. It makes it clear that where there is a reference to “property of a person” it includes a reference to a beneficial interest in the property which is not reflected in the legal interest in the property. That would appear to be superfluous if the Legislation Act definition applied because if the sense in which “property” was used was to describe the relationship to the thing rather than the thing itself it would obviously include a beneficial interest in a thing. The definition in the COCA Act suggests that the sense in which the word “property” is being used is as a reference to a thing. That appears to be reinforced by the terms of s 26(6)(a).
While the way in which the term is used in the COCA Act is somewhat inconsistent with the definition in the Legislation Act, in my view, it is not sufficient to demonstrate an intention to exclude the definition in the Legislation Act by manifesting a contrary intention.
In Director of Public Prosecutions v Close and Close [2015] ACTSC 10 Burns J made some comments by way of obiter dicta on the approach taken by Master Harper in the formulation of the terms of a restraining order granted under the COCA Act. The first defendant was the registered proprietor of a joint tenancy of, I presume, a Crown lease. The DPP brought proceedings under the COCA Act seeking orders pursuant to s 31 of the COCA Act that the property and a motor vehicle be restrained. Although it is not clear from the judgment, it appears that the order sought was to restrain the property described in a similar manner to the present case namely by street address and block and section number. Master Harper heard the application and ordered that the interest of the first defendant in the subject property be restrained. Burns J was of the view that the Master approached the issue before him erroneously, in particular with regard to the meaning of the word “property” in s 31.
His Honour appeared to consider that if the order was confined to the first defendant’s interest in the property (namely a joint tenancy in the Crown lease) then there would be difficulties with the operation of provisions involving exclusion orders (s 77(4)) or of the provisions relating to payment out of the proceeds of a sale (s 119). The latter provision is within div 9.4 which deals with jointly owned forfeited property and permits payment out of the proceeds of sale to an “innocent joint owner”.
His Honour referred to the decision of the Queensland Court of Appeal in Hart. In that case McPherson JA rejected a contention that for the purposes of the Commonwealth Act a judge had erred by treating the property the subject of an order as the physical thing rather than a legal relationship with a thing. In the circumstances of that case the finding was that the judge had not erred in considering whether an aircraft was “under the effective control of the suspect” rather than considering some identified right or interest in the aircraft. Burns J concluded:
21.In my opinion, the primary meaning of “property” in the definition in the Legislation Act, and accordingly in the COCA, is “the thing itself” and not the legal or equitable interest that an individual may have in the thing.
22.In the instant case, the first defendant was the joint proprietor of the subject property. When the Master restrained the first defendant’s interest in the subject property, he effectively restrained the entirety of the physical property. Any forfeiture of the subject property affected by the COCA therefore affects the forfeiture of the property as a whole.
In the present case the DPP relied upon this decision to support its submission that the “property” sought to be restrained was appropriately described in the application namely by referring to a street address and block and section numbers.
The point made by Burns J was that it was erroneous to identify the interest in the property rather than the thing. In my respectful opinion that conclusion is difficult to sustain in the light of the terms of the definition in the Legislation Act. Although it receives some support from the terms of the COCA Act, those terms do not, at least expressly, purport to exclude the Legislation Act definition. Contrary to the view that his Honour expressed, the definition in the Legislation Act is more consistent with the defined term “property” referring to the interest in the thing rather than the thing itself.
It is important to note that the definition in the COCA Act is different to that which was considered in Hart and hence the decision in that case, while usefully discussing the different ways in which the term “property” is used, is not of significant persuasive value in determining how the COCA Act should be interpreted.
Further, in my respectful opinion, if “property” bears its defined meaning as set out in the Legislation Act that would not cause difficulties for the operation of the COCA Act. An exclusion order could still be made in relation to identified property so as to protect the position of a mortgagee. No exclusion order would be required in relation to an innocent joint owner because the joint owner’s interest would not be restrained. Further, div 9.4, which contains s 119 to which Burns J referred, rather than precluding the innocent joint tenant, specifically accommodates the situation where the innocent joint tenant’s interest in the property has been the subject of restraint and where it has not: see ss 114(1), 114(2), 116 and 118.
The issue arises in the present case because the DPP’s application, if it identifies any form of property, identifies the thing rather than the interest in the thing. That is because it attempts to identify a piece of land rather than any proprietary interest in that land. Thus, if the Legislation Act definition requires that the interest in the thing be identified then the present application is clearly defective. On the other hand, if the Legislation Act definition permits the identification of simply the real or personal property, that is, the thing, and does not mandate the specification of the legal or equitable estate or interest in that thing then the issue will be simply whether the current application is sufficient to identify some real property.
For the purposes of determining the present application I have proceeded on the basis that an application under the COCA Act may identify a thing or a legal or equitable interest in a thing. Both can be property for the purposes of the COCA Act. I do so for the pragmatic reason that there are conflicting indications in the definitions in the Legislation Act and the COCA Act and even the definition in the Legislation Act itself makes use of the word “property” in both senses. It recognises that both concepts are within the ordinary meaning of the word.
Proceeding on the basis that I have indicated, namely that it is permissible under the COCA Act to identify a thing, in this case a piece of real estate, rather than a legal or equitable interest in that real estate, the question is whether the application satisfies that requirement. In my view it is only by implication that a street address and block and section numbers identify a piece of property in the sense of a thing. Presumably the thing sought to be identified is land. If it is land that is identified and restrained then all interests in that land are, subject to constitutional constraints, restrained. In the Territory that creates complexities because the land is land of the Commonwealth leased by the Territory on the Commonwealth’s behalf: see Australian Capital Territory (Planning and Land Management) Act 1988 (Cth) s 29. If the land is forfeited, then it is forfeited not to the Crown in right of the Commonwealth but to the Crown in right of the Territory: COCA Act s 109. This is something that the Territory legislature has no power to do: Australian Capital Territory (Self-Government) Act 1988 (Cth) s 27. It is only through a reading down pursuant to the Legislation Act (s 120) of the forfeiture provisions and any restraining order made under them that such a result can be avoided and the validity of the provisions preserved.
In relation to other interests in the land, the restraint of the land rather than an interest in the land requires the interests in the land of all persons other than the defendant to be potentially forfeited unless subject of exclusion applications. While this course might be necessary in cases where there is uncertainty as to the ownership of the land, it imposes upon innocent owners and interest holders such as banks costs which would be avoided if the restraint was more narrowly targeted. It also builds in the necessity for the DPP to establish additional matters in order to get the benefit of a restraining order, in particular, the requirement to comply with s 29(5)(b) namely that the officer must suspect on reasonable grounds that the property is tainted property or subject to the offender’s effective control.
On the other hand, if, consistently with the definition in the Legislation Act, the legal or equitable estate or interest in the real or personal property was identified then in a case such as the present that could be done by identifying the property as the “joint tenancy in the Crown lease of Gordon section xxx block x on deposited plan xxxx of which the defendant is a registered proprietor”. That would have the benefit of precisely identifying the property to be restrained and avoiding the involvement of at least some other interested parties. It would reduce the obligations of the police officer to state matters under s 29 of the COCA Act. Alternatively it would in my view also be within the scope of the COCA Act to identify the property in question as the Crown lease over the property. In this case that could be done by identifying the property as “the Crown lease over land described as Gordon section xxx block x on deposited plan xxxx recorded in volume xxxx folio xx of the register kept by the Registrar General of the Australian Capital Territory”. In such a case the restraint would cover the interests of both joint tenants and the position of an innocent joint tenant would need to be the subject of an application for an exclusion order. It would not be broad enough to cover any greater interest than the Crown lease and hence avoid the complexities associated with the underlying Commonwealth title.
The application in the present case identifies a street address and the cadastral boundaries which define the particular block. It is only by implication that it can be determined that what is identified is a piece of land. However because that implication is a reasonably obvious one and the one for which the DPP contended I find that the application is sufficient for the purposes of the COCA Act even if less than ideally drafted.
How the property is identified is of significance not only because the property described must be property known to law but also:
(a)because it will determine whether property other than that of the offender is the subject of restraint and hence potentially subject to forfeiture, therefore determining the other parties who may be compelled to make an application for exclusion;
(b)because, as a consequence of the requirements of s 26(2) and s 29, it will determine the matters that must be stated in the application and the affidavit in support and hence the matters of which the Court must be satisfied under s 31(2).
Does the application state the matters referred to in s 26 (2)?
Section 26(2) provides that the application must state various things. I will set out the matters which the subsection requires to be stated and my assessment of whether or not they are in fact stated in the application.
(a) the offence to which the application relates
I note that s 26(4) provides that “the application need not specify a particular offence and it is sufficient if the application states that some offence or other was committed”. The application identifies two offences in the terms that I have set out above. It therefore complies with s 26(2)(a).
(b) when it is alleged the offence was committed
I note that s 26(5) provides that “the application need not specify a particular time or day and it is sufficient if the application states a period within which the offence was committed”. The application in at least one instance identifies that it is alleged that the offences were committed on 3 May 2015. The application therefore does identify the particular day upon which the offences were committed even though it was not required to do so. I note that the date identified is wrong, the actual charges being of offences alleged to have occurred on 23 May 2015. I would grant leave to the DPP to amend the application so as to specify the correct date except for the fact that the error is repeated in the affidavit of the police officer which I will refer to below, no application was made to amend the application and no alternative or supplementary affidavit was filed by the police officer to correct the error.
(c) the person who is alleged to have committed the offence
The application identifies that the person who is alleged to have committed the offences is the defendant and I am satisfied that the application complies with s 26(2)(c).
(d) the person whose property the application relates to
The application identifies the person to whom it relates as the defendant and the first interested party in relation to the two residential properties in categories (a) and (b) set out above. It identifies the fourth interested party, Tom’s Carpet Laying Pty Ltd, as the person whose property the application in relation to the vehicle in category (c) above relates to. It identifies the defendant as the person to whom the application in relation to the property described in paragraph (d) above, namely the various items of equipment, relates to. In my view s 26(2)(d) is complied with.
I note that the application therefore relates to the property of the offender and at least two other persons, the first interested party and the fourth interested party who are not alleged to be offenders.
(e) the property sought to be restrained (including whether it is property of the offender or someone else)
The application identifies the property sought to be restrained and hence complies with s 26(2)(e). The terms in which it refers to real property are set out above. It is not necessary to set out the terms in which it identifies the property in the categories (c) and (d). It also by implication identifies whether the property is property of the defendant or of someone else.
(f) whether the application is for an artistic profits restraining order
The application identifies that it is not for an artistic profits restraining order and hence complies with s 26(2)(f).
Conclusion on compliance with s 26
Therefore the application complies with each of the requirements of s 26 although, as I have noted above, there is an error of some significance in relation to the requirements of s 26(2)(b).
Is the application made within the time specified in s 27?
In the present case the application is made in relation to two charges each of which is a “serious offence” because the offence in question is punishable by imprisonment of five years or longer. The charge against s 616(5) of the Criminal Code carries a maximum penalty of 10 years’ imprisonment, the charge against s 603(3) of the Criminal Code carries a maximum penalty of 25 years’ imprisonment.
Section 27(3) requires that the application be made before the end of the longer of the following periods:
(a)if an indictment has been presented against the offender for the offence, and the offender has not been convicted or cleared of the offence—2 years after the day the indictment was presented;
(b)if the offender has been convicted of the offence—2 years after the day of the conviction;
(c)in any case—6 years after the day the offence was committed (or is alleged to have been committed).
I note that the Legislation Act defines the term “indictment” as including an “information”: Dictionary to the Legislation Act.
In the present case the defendant appears to have been charged on 25 May 2015. Therefore the requirements of s 27(3)(a) are satisfied.
Is the application supported by an affidavit under s 29?
Section 26(3) requires that the application be supported by an affidavit under s 29. There is an affidavit which has been filed in support of the application which purports to comply with s 29. I will make an assessment of whether or not it in fact complies with s 29 below.
Section 29 of the COCA Act imposes a number of mandatory requirements upon the affidavit in support of the application. Those requirements and my assessment of compliance with them are as follows.
The opening words of s 29 require the affidavit must be by “a police officer”. This is satisfied because Michael John Woodburn identifies himself as a Detective Senior Constable of the Australian Federal Police.
There are various requirements as to the matters which must be stated in the affidavit. Section 29(8) requires that “[t]he affidavit must state the grounds for each belief or suspicion of the police officer stated in the affidavit”. I will address whether or not the requirements of s 29(8) are satisfied when I address each of the requirements of the section. The subtleties of precisely what is required in order to “state” the grounds as required by s 29(8) need not be explored in the present case.
Section 29(1)
Section 29(1) requires that the affidavit must state:
(a)that the officer believes that an indictment has been presented against the offender for a stated relevant offence, or that the offender has been convicted of a stated relevant offence; or
(b)that the officer suspects that the offender has committed a stated relevant offence, and that it is intended, within a stated period—
(i) ...
(ii) for a serious offence—
(A)to present an indictment against the offender for the offence (or a related serious offence); or
(B)to apply for a civil forfeiture order or a penalty order in relation to the offence (or a related serious offence).
“Relevant offence” is defined in s 13(2) as an offence punishable by imprisonment for longer than 12 months and includes an offence of the Commonwealth, State or another Territory that may be dealt with as an indictable offence.
For the purposes of paragraph (b) the police officer is not required to “specify a particular offence in the affidavit and it is sufficient if the police officer suspects that the offender has committed a particular kind of offence and the affidavit describes the nature of the offence in general terms”: s 29(2).
In the present case the requirements of paragraph (a) are relevant and the affidavit complies with these requirements at paragraph 2 of the affidavit which states the officer’s belief that the defendant was charged on 3 May 2015. The affidavit does not state the grounds of that belief in terms but annexes some charge sheets relating to the offences which identify the charges being before the Court on 25 May 2015.
Section 29(3)
Section 29(3) requires that the affidavit must state “that the police officer believes that the application is being made within the relevant period mentioned in [s 27] for the offence to which the application relates”. In relation to a serious offence the police officer may state that it was committed within the s 27 period and it is not necessary for the police officer to believe that the offence was committed on any particular day or time within that period: s 29(4).
This is complied with in paragraph 3 of the affidavit which states the officer’s belief that the application is being made within the relevant period mentioned in s 27 “as the application is being made within six years of the offences being committed”. While the general statement is correct in that s 27(2)(a) is complied with, the reference to the six year period is erroneous.
The difficulty with the affidavit is that although it is not required to identify any period it identifies the period of six years which is not the relevant period. However despite that it is possible to determine from the material in the affidavit that the statement that the application is brought within the period mentioned in s 27 is a statement made on reasonable grounds.
Section 29(5)
Section 29(5) requires that the affidavit must state, for the property mentioned in the application, or for each stated part of the property:
(a)that the officer suspects that the property is either the offender’s property or the property of someone else; and
(b) for property that the officer suspects is the property of someone else—
(i) that the officer suspects that the property is tainted property; or
(ii)that the officer suspects that the property is subject to the offender’s effective control.
In the present case the property stated in the application includes the real estate at Fisher and Gordon. That property is identified as belonging to both the defendant and the first interested party. The vehicle is owned by the fourth interested party. The relevant belief of the officer is stated in paragraphs 4, 5 and 6 of the affidavit which provide:
4.I believe that the properties referred to in sub-paragraphs 1(a-b) are owned jointly by the Defendant and Interested Party One. Interested Party two has a registered mortgage interest over the properties.
5.I believe the vehicle listed at sub-paragraph 1(c) is owned by Tom’s Carpet Laying Pty Ltd, Australian Company Number (ACN): 115129701. The Defendant and Interested Party 1 are the sole directors and shareholders of this company.
Attached hereto and marked Annexure “C” is a copy of the Australian Securities and Investment Commission (ASIC) historical company extract for Tom’s Carpet Laying Pty Ltd.
6. I believe that the property listed at sub-paragraph 1(d) is owned by the Defendant.
Insofar as the property is property of someone other than the offender the officer is obliged to state his suspicion that it is tainted property or subject to the offender’s effective control. The affidavit does neither even though the application states that the property is tainted property. I note that s 29(5) appears to proceed on the basis that there is a clear dichotomy between the interests of the offender and the interests of someone else. However where the DPP chooses to identify a thing in relation to which there are multiple property interests there is no strict dichotomy. In my view s 29(5) does require that where property is jointly owned that the police officer have and state the suspicion referred to in one of the paragraphs of s 29(5)(b).
Because there is no statement in the affidavit that the property is tainted property it is not possible to say that the grounds for the suspicion are set out even if it is clear that the facts stated could lead to the conclusion that the officer suspected that the property was tainted property: see paragraph 35 of the affidavit in relation to the real property and note that in relation to the vehicle the affidavit discloses facts which could lead to a suspicion that it was tainted property or property under the effective control of the offender.
In summary, insofar as the affidavit identifies that the property mentioned in the application is property that the officer suspects is the property of someone else there is no statement of suspicion as required by s 29(5)(b).
Section 29(6)
Section 29(6) requires that the affidavit must state that the police officer believes that:
(a)the property sought to be restrained may be required to satisfy a purpose mentioned in section 22 (Restraining orders—purposes); and
(b)...
The purposes of a restraining order set out in s 22 are to preserve property so that the property will be available for one or more of the following purposes:
(a) for forfeiture under a conviction forfeiture order;
(b) for automatic forfeiture;
(c) for forfeiture under a civil forfeiture order;
(d) to satisfy a penalty order.
Section 29(7) makes it clear that for the purposes of s 29(6)(a) no particular purpose need be stated in the affidavit. The requirement in s 29(6)(a) is satisfied by paragraph 7 of the officer’s affidavit. The requirement to state the grounds for the belief is potentially met by paragraphs 8 to 37 of the affidavit. I will return to the question of the reasonableness of the belief below.
Is the Court obliged by s 31 to make a restraining order over the property?
Section 31(2) obliges the Court to make a restraining order over the property to which the application relates if, having regard to the police officer’s affidavit supporting the application and any other evidence before the Court:
(a)the court is satisfied that there are reasonable grounds for the officer’s beliefs and suspicions stated in the affidavit; ...
Section 31(4) gives the Court a discretion to refuse to make a restraining order “if the DPP does not give the relevant court any undertaking that the court considers appropriate about the payment of damages or costs in relation to the making or operation of the order”.
In the present case the DPP has offered an undertaking in the following terms:
In accordance with s 31(4) of the Act the plaintiff undertakes to pay such damages or costs in relation to the making or operation of the order as the court considers appropriate.
This undertaking is in relatively general terms.
I consider that an undertaking more in the form equivalent to the usual undertaking as to damages would be more appropriate such as:
The Director of Public Prosecutions undertakes:
(a)to submit to such order (if any) as the Court may consider to be just for the payment of damages or costs, to be assessed by the Court or as it may direct, to any person, whether or not a party, adversely affected by the operation of a restraining order under section 31 of the Confiscation of Criminal Assets Act 2003 (ACT); and
(b)to pay the damages or costs referred to in (a) to the person there referred to.
Counsel for the DPP indicated that if the Court required an undertaking in terms equivalent to those which I have just indicated he would seek to be further heard on those terms. Having regard to the conclusions that I have reached it is not necessary to finally resolve the issue, if any, as to the terms of the undertaking to be given. Because of the failure to comply with s 29(5) I cannot be satisfied of any suspicion of the officer in relation to the matters there set out.
Further, in relation to the Gordon house I am not satisfied that there are reasonable grounds for the officer’s beliefs and suspicions stated in the s 29 affidavit in relation to the Gordon house in two respects:
(a)I am not satisfied that even if there was a statement that the officer suspected that the property, insofar as it belonged to the first interested party, was tainted property or under the effective control of the defendant (which he did not) that would have been based on reasonable grounds. That is because there is nothing either in the affidavit or in the oral evidence given that indicates how it could be tainted property in relation to the specific offences charged and relied upon in the application. That is because both offences charged are not alleged to have occurred over a period but are alleged to have occurred on one day 23 May 2015. There is nothing in the material in the affidavit or otherwise that discloses any connection between the offences on 23 May 2015 and the Gordon property. Further, there is nothing that indicates that the Gordon property could reasonably be suspected to be “derived by anyone from the commission of the offence”. Rather the material in the affidavit is targeted at the property being derived from a course of conduct that occurred prior to 23 May 2015 which is not charged in the two charges upon which the application is based. While it is perfectly possible that the property could be tainted property in relation to other different or alternative offending conduct to that which has been charged, that is not what is before the Court. I accept that the DPP was not obliged to specify any date upon which the offences occurred but having done so and based its application upon those charges it is not possible to invite the Court to determine the application on some other basis. There was nothing to provide a reasonable basis for the suspicion, had it been stated, that the Gordon property was under the defendant’s effective control.
(b)I am not satisfied that the belief that the property is required for one or other of the purposes in s 22 was based on reasonable grounds insofar as it related to the first interested party’s interest. In relation to each of the potential purposes in s 22 my findings are set out in the following paragraphs.
A conviction forfeiture order must be made in relation to tainted property: s 54(1). In the present case, insofar as a conviction forfeiture order is concerned there is currently no reasonable basis for a belief that the Gordon property is tainted property because:
(a)the only evidence as to its use post dates the offences;
(b)there is no evidence to suggest that it was derived from the commission of the offences relied upon namely the offences on 23 May 2015 as opposed to some earlier offending conduct.
Automatic forfeiture is dependent upon the property being the subject of a restraining order: s 58. There is an obvious element of circularity in the requirement for a belief in order to get a restraining order that the property may be required for automatic forfeiture which could only occur if a restraining order is obtained. However it can be said that it may be necessary for such a purpose if the officer could reasonably believe that it may be the case that an exclusion order would not be made in relation to the property. In the present case such a belief would be reasonable in relation to the property of the defendant. However because automatic forfeiture depends upon property being restrained it is dependent, in the case of the first interested party’s property, upon there being at least a suspicion on reasonable grounds that the property is property of the offender, under the offender’s effective control or tainted property: ss 29(5) and 31. For the same reasons as set out above it could not be said that there are reasonable grounds for considering it tainted property. There is no evidence to suggest that the first interested party’s interest is under the defendant’s effective control.
A civil forfeiture order relates to restrained property (s 66) and hence picks up the requirement that there is at least a suspicion on reasonable grounds that the property is property of the offender, under the offender’s effective control or tainted property: ss 29(5) and 31. As pointed out above, there is no basis for such an order in relation to the first interested party’s interest in the Gordon property.
A penalty order in relation to a serious offence requires proof of “the value of benefits derived by the offender from the commission of a serious offence”: s 85. Because of the date of the offences alleged and the arrest of the defendant on that date there is no reasonable basis for a belief that restraint may be necessary for this purpose.
Therefore there is not a reasonable basis for the beliefs and suspicions in the affidavit in relation to the Gordon property insofar as it relates to the interest of the first interested party.
Consequences of defects
In summary I am not satisfied that the requirements for the making of an order under s 31 have been met because:
(a)the date of the offences identified in the application and in the affidavit is not correct and there is no reasonable basis for a belief that the defendant committed the specified offences on that date;
(b)insofar as the application relates to property that is also owned by someone else, namely property in categories (a), (b) and (c), the affidavit in support does not comply with s 29(5) and hence I cannot be satisfied of those matters for the purposes of s 31(2)(a);
(c)insofar as the Gordon property is owned by the first interested party, having regard to the date of the offences actually charged, even if s 29(5) had been complied with and it was alleged that the property was tainted property, I could not be satisfied having regard to the terms of the charges that there was a reasonable basis for that suspicion.
For these reasons the application must be dismissed. I accept that the deficiencies which have been fatal to the present application are matters which may be cured in the event that greater attention is paid in the preparation of the application and affidavit in support to the requirements of the COCA Act.
Orders
The orders that I will make are:
(1) that the application filed 23 July 2015 is dismissed;
(2) that the plaintiff is to pay the costs of the defendant and the first interested party of the application.
| I certify that the preceding eighty-nine [89] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Associate Justice Mossop Associate: Date: 14 August 2015 |
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