Donnelly v Director of Public Prosecutions (SA)
[2024] SASCA 45
•10 April 2024
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Civil)
DONNELLY v DIRECTOR OF PUBLIC PROSECUTIONS (SA)
[2024] SASCA 45
Judgment of the Court of Appeal
(The Honourable Chief Justice Kourakis, the Honourable Justice Doyle and the Honourable Justice Blue)
10 April 2024
CRIMINAL LAW - PROCEDURE - CONFISCATION OF PROCEEDS OF CRIME AND RELATED MATTERS - FORFEITURE OR CONFISCATION - OTHER MATTERS
CRIMINAL LAW - PROCEDURE - CONFISCATION OF PROCEEDS OF CRIME AND RELATED MATTERS - FORFEITURE OR CONFISCATION - APPEAL OR REVIEW
This was an appeal against a declaration made pursuant to s 56B of the Criminal Assets Confiscation Act 2005 (SA) (the “Act”) that all of the appellant’s property held as at 8 November 2022 had been forfeited to the Crown.
On 8 November 2022, the appellant entered pleas of guilty in the Magistrates Court to ten counts of trafficking in a controlled drug contrary to s 32(3) of the Controlled Substances Act 1984 (SA). A single allocutus was administered after the entry of those pleas, following which the appellant was committed to the District Court for sentence.
At all relevant times, s 56A(1)-(2) of the Act provided that, upon a person becoming a ‘prescribed drug offender’, the convicting court was deemed to have made a forfeiture order in respect of all property owned by, or subject to the effective control of, the offender on the conviction day for the conviction offence. Section 6A(1) of the Act provided, relevantly, that a prescribed drug offender included a person who has at least 2 other convictions for prescribed drug offences committed on separate occasions to the conviction offence within a general period of ten years. It was not in dispute at first-instance that the offences to which the appellant had pleaded guilty answered the description of prescribed drug offences for the purposes of the Act.
On an application brought by the respondent for the forfeiture of certain property consequent upon the appellant’s convictions, and over the appellant’s objection, the Magistrate at first-instance declared that the property in question had been forfeited by force of ss 56A and 56B of the Act. In so determining the matter, the Magistrate rejected the construction of s 6A advanced by the appellant: namely, that the two other convictions for prescribed drug offences must have preceded, rather than have been entered simultaneously with, conviction for the conviction offence. On appeal, the appellant reagitated that contention.
Held (per Kourakis CJ, Doyle JA agreeing), varying the declaration in part but otherwise dismissing the appeal:
1.Section 6A(1)(b) of the Act requires no more than that the offender has at least two other convictions of the prescribed kind at the date of conviction for the conviction offence. The relevant point in time at which those conditions to the effectuation of a deemed forfeiture order must contemporaneously exist is the making of the order of conviction of a prescribed drug offence committed after the commencement date specified by the Act. Accordingly, when the allocutus was administered to the appellant, he was, at that moment, a person convicted of a prescribed drug offence committed after the commencement date with at least two other convictions for prescribed drug offences.
Blue AJA (in dissent), proposing that the appeal be allowed and that the declaration be set aside:
2.In light of the drastic consequences of the effectuation of a deemed forfeiture order, and of the quasi-penal nature of ss 6A and 56A of the Act, it was incumbent upon the respondent to show that the words of the provisions distinctly enact that forfeiture occurs when the convictions are simultaneous. Where, as here, those words are equally capable of a construction that would not inflict that penalty, the interpretation advanced by the respondent should be rejected.
Criminal Assets Confiscation Act 2005 (SA) ss 5, 6A, 56A, 56B; Criminal Assets Confiscation (Miscellaneous) Amendment Act 2018 (SA); Criminal Property Confiscation Act 2000 (WA) s 5(1); Misuse of Drugs Act 1981 (WA) ss 8, 32A(1)(a), referred to.
Amaca Pty Ltd v Novek (2009) 9 DDCR 199; Harrison v Melhem (2008) 72 NSWLR 380; Robert Bosch (Australia) Pty Ltd v Secretary, Department of Industry, Innovation, Science, Research and Tertiary Education (2012) 206 FCR 92; Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252; SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362, applied.
Murphy v Farmer (1981) 165 CLR 19, considered.
DONNELLY v DIRECTOR OF PUBLIC PROSECUTIONS (SA)
[2024] SASCA 45Court of Appeal – Civil: Kourakis CJ, Doyle JA and Blue AJA
KOURAKIS CJ: Mr Donnelly appeals against a declaration made in the Magistrates Court pursuant to s 56B of the Criminal Assets Confiscation Act 2005 (SA) (the Act) on the basis that he was a ‘prescribed drug offender’ and declaring all of the property held by him on 8 November 2022 to have been forfeited to the Crown. Mr Donnelly appeals against the entirety of that order on the ground that he was not a prescribed drug offender. The property owned by him on that date included land in Port Broughton, which was the subject of a mortgage to the National Australia Bank Ltd, an interested party on this appeal. The respondent, the Director of Public Prosecutions (the Director), and Mr Donnelly consent, with the concurrence of the National Australia Bank, to a variation of the declaration, if it otherwise stands, limiting the forfeiture to Mr Donnelly’s equity in that property.
For the reasons which follow, I would amend the declaration to exclude the interest of the National Australia Bank in the Port Broughton property from forfeiture, in accordance with the parties’ consent, but would otherwise dismiss the appeal.
The convictions
On 8 November 2022, Mr Donnelly pleaded guilty in the Magistrates Court to 10 counts of trafficking in a controlled drug and was committed to the District Court for sentence.
The offences of which Mr Donnelly was convicted comprised a series of sales of methylamphetamine to undercover police officers and others. They were:
·Three counts of trafficking in methylamphetamine on 22 January 2022;
·Two counts of trafficking in methylamphetamine on 4 February 2022;
·Two counts of trafficking in methylamphetamine on 16 February 2022;
·One count of trafficking in methylamphetamine on 22 February 2022;
·Two counts of trafficking in methylamphetamine on 25 February 2022.
The offences were, therefore, committed on at least five separate occasions.
The legislation
Section 56A of the Act forfeits, by force of that statutory provision, certain property owned by a prescribed drug offender on the ‘conviction day’:
56A—Prescribed drug offenders
(1)Immediately on a person becoming a prescribed drug offender, a forfeiture order (a deemed forfeiture order) will be taken to have been made under Subdivision 1 by the convicting court.
(2)A deemed forfeiture order applies to all property owned by, or subject to the effective control of, the prescribed drug offender on the conviction day for the conviction offence other than the following:
(a) protected property of the prescribed drug offender;
(b) property that has been excluded from a restraining order under Part 3 Division 3;
(c) property that is otherwise forfeited to the Crown under this Act.
…
(4)Any power that may be exercised by a court that is hearing or that is to hear an application for a forfeiture order may be exercised, in relation to a deemed forfeiture order, by the convicting court at any time within the period of 6 months (or such longer period as may be allowed by the convicting court) after the conviction day for the conviction offence.
(5)In this section—
convicting court, in relation to a prescribed drug offender, means the court that convicted the prescribed drug offender of the conviction offence.
Two features of s 56A of the Act are important for present purposes. First, the deemed forfeiture order is made immediately upon a person becoming a prescribed drug offender.
Secondly, the court which convicts the prescribed drug offender of the ‘conviction offence’, a term which is defined in s 6A of the Act, is deemed to have made the forfeiture order and is conferred with all the powers of a Court authorised by the Act to make a forfeiture order. That is of some importance, because it suggests that all of the necessary elements of the definition of a prescribed drug offender must be present at the time of the conviction of the conviction offence. There would be little reason, by that deeming provision, to empower the convicting court to exercise the powers available to courts hearing forfeiture applications made under other provisions of the Act, if the forfeiture did not then come into effect on the offender’s conviction for the ‘conviction offence.’
Section 5(1) of the Act provides:
5—Meaning of convicted of an offence
(1)For the purposes of this Act, a person is taken to be convicted of an offence if—
(a) the person is convicted, whether summarily or on indictment, of the offence (and in such a case the conviction day for the purposes of this Act is the day on which the person was convicted, whether or not the court passed sentence on that day); or
…
Section 5 both defines ‘conviction’ to be the adjudication of guilt, whether or not sentence has been passed, and fixes the day for identifying the property which is forfeited to be the day on which the order of the conviction is made. It is common ground that Mr Donnelly was convicted when he pleaded guilty in the Magistrates Court and the allocutus was read to him. That position is plainly right. He could not have been committed for sentence, if he were not convicted.
Sections 6A and 56A of the Act came into legal effect on 10 August 2018 (the Commencement Date). Section 6A of the Act defines a ‘prescribed drug offender’ as follows:
6A—Meaning of prescribed drug offender
(1)For the purposes of this Act, a person is a prescribed drug offender if the person is convicted of a serious drug offence (the conviction offence) committed after the commencement of this section and—
(a) the conviction offence is a commercial drug offence; or
(b) the person has at least 2 other convictions for prescribed drug offences and those offences and the conviction offence were all committed on separate occasions within a period of 10 years, not including any period during which the person was in government custody.
(2)A conviction may be taken into account for the purposes of subsection (1)(b)—
(a) whether the offence to which the conviction relates was committed before or after the commencement of this section; and
(b) whether or not the offence to which the conviction relates has previously been taken into account for the purposes of any proceeding under this Act.
(3)In this section—
commercial drug offence means—
(a) an offence against section 32(1) or (2), section 33(1) or (2), section 33A(1) or (2), section 33B(1) or (2) or section 33C(1) or (2) of the Controlled Substances Act 1984; or
(b) an offence against Part 5 Division 3 of the Controlled Substances Act 1984 involving a commercial quantity or large commercial quantity of a controlled drug;
…
external serious drug offence means an offence against a law or former law of the Commonwealth, of another State or of a Territory of a kind prescribed by regulation;
…
prescribed drug offence means—
(a) a serious drug offence; or
(b) an offence against a former law of the State of a kind prescribed by regulation; or
(c) an external serious drug offence;
serious drug offence means an offence against Part 5 Division 2 or 3 of the Controlled Substances Act 1984 that is an indictable offence.
The offences of which Mr Donnelly was convicted were serious drug offences, but not commercial drug offences. It is therefore sub-s (1)(b) of the definition which governs Mr Donnelly.
The following features of s 6A should be noted.
First, the manifest purpose of s 56A of the Act is to punish prescribed drug offenders severely by forfeiture of all of their property, howsoever acquired, and thereby to deter serious drug offending generally. As much is made clear by the passages of the Second Reading Speech extracted by Blue AJA below at [48], and, accordingly, it is incumbent upon this Court to bear that purpose in mind when approaching the task of interpreting s 56A, as well as s 6A, of the Act. Severe punishment by the deprivation of a prescribed drug offender’s property is the only evident purpose of the amendments identified. Secondly, s 6A of the Act gives the definition of a prescribed drug offender a prospective operation, because the conviction offence must be committed after the Commencement Date. However, the other two convictions for a prescribed drug offence needed to satisfy the conditions of sub-s (1)(b) must be committed on separate occasions within a period of 10 years, whether or not the offences to which those convictions relate were committed before or after the Commencement Date.
Thirdly, the triggering condition of the statutory forfeiture order is the conviction for the conviction offence. The only importance of the date of commission of the conviction offence is to ensure the prospective operation of s 56A of the Act to which I have just referred. That purpose, and the very text of sub-s (1)(b), denies Mr Donnelly’s alternative contention, put for the first time in his written submissions in reply, that the conviction offence must have been committed after convictions had been recorded on the other offences. Subsection (1)(b) requires no more than that the offender has at least two other convictions of the prescribed kind. Put another way, the requirement is that the offender is a person with convictions of the prescribed kind at the time he or she is convicted of a serious drug offence committed after the Commencement Date.
Fourthly, both the term ‘is convicted’ and the term ‘has at least two other convictions’ are in the present tense. The relevant point in time at which those conditions must contemporaneously exist is the making of the order of conviction on a charge of a serious drug offence committed after the Commencement Date, the conviction offence, because the statutory forfeiture order comes into effect, by force of s 56A, immediately on a person becoming a prescribed drug offender. The offender does not become a prescribed drug offender unless, and until, there is a conviction for the conviction offence. It is at that point in time, therefore, that the offender must also ‘have’, that is, be a person with, two other convictions for prescribed drug offences.
When pleas of guilty are given sequentially, but the allocutus is read in respect of all counts after pleas to the last of the pleas of guilty, then the convictions on all counts are entered simultaneously. It follows that, on 8 November 2022, when the allocutus was read to Mr Donnelly he was, at that moment, a person convicted of a serious drug offence committed after the commencement date and a person who had at least two other convictions for prescribed drug offences. It is unnecessary, in the case of simultaneous convictions, to identify which of the convictions is for the conviction offence, and which are the other two convictions for the prescribed offences because, on any permutation, the statutory definition is satisfied.
Any alternative approach to an application of s 56A of the Act to simultaneous convictions would cause much mischief and incoherence in the operation of the statute and defeat the manifest purpose of the statute.
It is a necessary consequence of any construction of s 6A and s 56A of the Act that the order in which convictions for serious drug offences, some of which were committed before, and others after, the Commencement Date are made may affect the liability for forfeiture imposed by s 56A. Most obviously, if an offender elects to have the post-Commencement Date offence dealt with first, by, for example, pleading guilty, but pleads not guilty to the pre-commencement date offences, no forfeiture will occur. That is because, at the time of the conviction of the post-Commencement Date offence, the conviction offence on the conviction day, the offender will not have convictions for another two prescribed offences committed on separate occasions. The forfeiture cannot come into effect on the offender’s convictions for the pre-commencement date offences because to do so would prepone the forfeiture order and conviction day. It is for that reason that the relevant point in time at which the preconditions must contemporaneously exist is the time at which the conviction for the post-Commencement Date offence is entered. However, that anomaly will fall away with the passage of time.
If there are convictions for offences committed after the Commencement Date on separate occasions, whether it be on different parts of the day or some weeks, months, or years apart, then there will eventually be a conviction offence which will result in forfeiture of the property of the offender as at the applicable conviction day.
If all offences are committed after the commencement date, but are not dealt with simultaneously, a forfeiture order will come into effect when there is a conviction for the third prescribed drug offence. That may occur for any number of reasons, including the timing of arrest and charge for the offences, or because a plea or pleas of not guilty have been entered with different trial dates. However, ultimately, a forfeiture order will be made. Of course, it is open whilst awaiting the disposition of the charges to an offender to dispose of the property. A restraining order or injunction in the civil jurisdiction of the court may be available to prevent the dissipation of assets. Accordingly, s 56A of the Act will not have an anomalous operation in those circumstances.
An anomaly might also arise if there are charges for prescribed drug offences in South Australia and in another State. If the conviction for the prescribed drug offence in another State occurs after the conviction for the serious drug offence committed in this State which operates as the conviction offence, the offender does not then become a prescribed drug offender. So much follows from s 56A, which provides that the forfeiture order comes into effect on the day of the conviction of the serious drug offence, the conviction offence. The definition of a prescribed drug offender in s 6A of the Act must operate coherently with the forfeiture provisions of s 56A. However, that anomalous circumstance will not be common and is inherent in Australia’s federated constitutional structure.
In his reasons, which I have had the advantage of reading in draft, Blue AJA refers to the Western Australian scheme – under s 32A(1)(a) of the Misuse of Drugs Act 1981 (WA) and s 5(1) of the Criminal Property Confiscation Act 2000 (WA) – said to be reflected in ss 6A and 56A by the Attorney-General. I agree with Blue AJA that the views expressed by the Attorney-General as to the interpretation and operation of ss 6A and 56A, as distinct from the mischief which those provisions were inserted into the Act to address, are irrelevant to the task presently before this Court.[1] It is, however, telling, in my view, that the reference made by the Attorney-General to the Western Australian scheme was by way of illustration only of statutory forfeiture regimes. It is more telling that the amendments inserted into the Act did not replicate the formulation of their analogues in the Western Australian Acts identified above. In particular, the expression in the Western Australia legislation ‘has … been convicted’ was eschewed and the expression ‘has … convictions’ used instead. The provisions of the Act must, therefore, be interpreted according to their own formulation, the context within which they appear, and the purpose they exist to serve.[2] For the reasons I have given above, the proper interpretation of ss 6A and 56A leads to the conclusion that the appeal must be almost entirely dismissed.
[1] See, eg, Harrison v Melhem (2008) 72 NSWLR 380, 399 [162] (Mason P); Amaca Pty Ltd v Novek (2009) 9 DDCR 199, 215 [74]-[78] (Campbell JA, Giles and Tobias JJA agreeing); Saeed v Minister for Immigration and Citizenship (2010) 241 CLR 252, 264-5 [31]-[33] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ).
[2] See, eg, SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362, 368 [14] (Kiefel CJ, Nettle and Gordon JJ). Cf Robert Bosch (Australia) Pty Ltd v Secretary, Department of Industry, Innovation, Science, Research and Tertiary Education (2012) 206 FCR 92, 111 [71] (Kenny, Edmonds and Robertson JJ).
Conclusion
For the reasons given in [15]-[16], Mr Donnelly was a prescribed drug offender when he was convicted of 10 trafficking charges on 8 November 2022. All of his property on that day, the conviction day, was forfeited.
I would amend the declaration by adding the words ‘save for the interest held in the Port Broughton property by the National Australia Bank Ltd by reason of registered mortgage of [date]’.
I would otherwise dismiss the appeal.
DOYLE JA: I agree with the reasons of the Chief Justice, and the orders he has proposed.
I have had the benefit of reading the draft reasons of both the Chief Justice and Blue AJA. Both accept that the relevant time for determining whether a person “has” at least two other convictions for the purposes of s 6A(1)(b) of the Criminal Assets Confiscation Act 2005 (SA) (the Act) is the moment he or she is convicted of “the conviction offence”. The point of difference is whether, in circumstances where the person’s conviction for the conviction offence occurs simultaneously with the other convictions, it can be said that the person “has” those other convictions at the moment he or she is convicted of the conviction offence.
It seems to me that the structure of s 6A(1) is a product of an intention to give the section the transitional operation described by the Chief Justice; that is, to ensure that the section only operates where the conviction offence is committed after the commencement date, while being ambivalent as to whether the other convictions are for offences that were committed before or after the commencement date.
Bearing in mind this rationale for the structure of the section, I am not persuaded that the condition that a person “has” the other convictions requires, in effect, that the person already has, or has already acquired, those convictions at the moment he or she is convicted of the conviction offence. Rather, I consider that the condition requires only that the person has those convictions, in the sense that he or she is a person with those convictions, at the relevant moment. Understood in this way, the word “has” is descriptive of the person’s status at the relevant moment, rather than a description of what he or she acquired at some earlier point in time. In my view, the present tense reference to a person who “has” the other convictions (as opposed to, for example, reference to a person who “has been” convicted of the other offences, or who “already has” the other convictions) supports this construction.
I accept that there will remain some potential for anomalous outcomes under this construction. However, it avoids the scope for anomalously different outcomes in a case such as the present, depending merely upon whether the convictions are entered simultaneously or sequentially (including in very quick succession). In my view, it is unlikely that Parliament would have intended that the operation of the section turn on what may reflect no more than a change in the form, and not the substance, of what occurred. And, as the Chief Justice explains, the anomalies which will remain will largely reflect the transitional operation of the section, and so dissipate over time.
I have not derived any significant assistance from the Second Reading Speech given the general terms in which the mischief and purpose are described. While the Attorney-General made reference to an intention to reflect the Western Australian legislation, he did so in only general terms, and whilst acknowledging that the South Australian legislation included some “minor modifications”, without specifying what those modifications were.
Finally, it seems to me that in circumstances where the relevant provisions are clearly intended to have a punitive effect, and the only issue is the precise extent of that effect, there is limited scope for the operation of the principle of legality.[3] In any event, for the reasons given by the Chief Justice, elaborated upon above, I am satisfied that Parliament has made its intention sufficiently clear.
[3] Hurt v The King [2024] HCA 8 at [106] (Edelman, Steward and Gleeson JJ).
BLUE AJA: This appeal turns on the construction of the definition of “prescribed drug offender” in paragraph 6A(1)(a) of the Criminal Assets Confiscation Act 2005 (SA) (the Act).
The primary relevance of the definition is for the purpose of section 56A of the Act which provides that, immediately on a person becoming a prescribed drug offender, a deemed forfeiture order will be taken to have been made under Part 4 Subdivision 1 by the convicting court.
Starting with the text of paragraph 6A(1)(b), it provides that:
(1)For the purposes of this Act, a person is a prescribed drug offender if the person is convicted of a serious drug offence (the conviction offence) committed after the commencement of this section and—
…
(b) the person has at least 2 other convictions for prescribed drug offences and those offences and the conviction offence were all committed on separate occasions within a period of 10 years, not including any period during which the person was in government custody.
Paragraph 6A(1)(b) and subsection 56A(1) operate in combination at the instant in time when a person is convicted (after the commencement of section 6A) of a serious drug offence (an indictable offence against Part 5 Division 2 or 3 of the Controlled Substances Act 1984 (SA)) provided that, at that time, the precondition in paragraph (b) is satisfied.
The precondition in paragraph (b) is that, at the time of the conviction, the person has two other convictions for prescribed drug offences committed on separate occasions within the requisite period (the pre-condition offences).
It is common ground that Mr Donnelly was convicted in the Magistrates Court on 8 November 2022 simultaneously of ten counts of trafficking in a controlled drug[4] upon the giving of the allocutus. The Director contends that any one of the ten counts can be regarded as the “conviction offence”, and that any two of the other nine counts can be regarded as the pre-condition offences.
[4] Controlled Substances Act 1984 (SA) subsection 32(3) contained in Part 5 Division 2.
Paragraph (b) requires that, at the time of conviction of the conviction offence, the person has two other convictions for prescribed drug offences. The plain and ordinary meaning of the requirement that the person “has” two such convictions is that the person has been convicted of two such offences at the time of conviction of the conviction offence. At the time that Mr Donnelly was convicted of count 1 or count 10–or any other of the ten counts–he had not been convicted of any prescribed drug offences. On the plain wording of the section, the precondition was not satisfied.
Turning to the context of paragraph (b) within subsection 6A(1), paragraph (a) imposes an alternative precondition that the conviction offence be a commercial drug offence. “Commercial drug offence” is defined by subsection 6A(3). These are those serious drug offences that involve a commercial quantity (or large commercial quantity) of the drug.[5] Under paragraph (a), due to the commercial quantity involved, no other conviction is required forfeiture. Paragraph (a) does not assist in the construction of paragraph (b), other than by way of contrast.
[5] Controlled Substances Act 1984 (SA) subsections 32(1) or (2), 33(1) or (2), 33A(1) or (2), 33B(1) or 33C(1) or an offence against Part 5 Division 3 involving a commercial quantity or large commercial quantity.
Turning to the context of subsection 6A(1) within section 6A, subsections (2) and (3) create in effect a hierarchy of drug offences. There are three categories:
1The broadest category is a “prescribed drug offence”. This offence can be committed before or after the commencement of section 6A (10 August 2018). It can be a serious drug offence or an offence against a law or former law of the Commonwealth, another State or Territory or a former law of South Australia of a kind prescribed by regulation. Although not limited by the Act, presumably the legislature contemplated prescription of an offence equivalent to, or at least similar to, a serious drug offence.
2The middle category is a “conviction offence” being a serious drug offence (not a predecessor statute offence or external offence) committed after 10 August 2018.
3The narrowest category is a “commercial drug offence” being an offence committed after 10 August 2018.
The narrowest category is a subset of the middle category, which in turn is a subset of the broadest category.
Sections 6A and 56A operate in conjunction in a manner in which the order of convictions (regardless of the order of commission of offences) may affect the question whether forfeiture operates. If a person commits two serious drug offences pre-10 August 2018 and is convicted of them and subsequently convicted of a subsequent serious drug offence committed after that date, forfeiture will operate. But, if the person is first convicted of the post-10 August 2018 serious drug offence, forfeiture will not operate.
Similarly, if a person is convicted of two external serious drug offences and is subsequently convicted of a post-10 August 2018 serious drug offence, forfeiture will operate but if the person is first convicted of the post-10 August 2018 serious drug offence, forfeiture will not operate.
These examples demonstrate two matters. First, it cannot be said (as the Director contends) that the order of convictions cannot matter for the operation of sections 6A and 56A. Secondly, it cannot be said (as the Director contends) that the construction advanced by Mr Donnelly results in anomalous operation of the provisions which is avoided by the construction advanced by the Director.
Turning to the evident purpose of the provisions, it may be accepted (as the Director contends) that the sections are intended to operate as both a punishment and deterrence. The paradigm case in which paragraph 6A(1)(b) and section 56A result in forfeiture is a case in which a person commits and is convicted of two serious drug offences, and then commits and is convicted of a third serious drug offence. Forfeiture resulting from the commission and conviction of the third offence should operate as a significant deterrence to the commission of that further offence.
It may be accepted that (contrary to Mr Donnelly’s alternative contention), in accordance with the plain words of the section, forfeiture will also operate if the convictions for the qualifying offences occur after commission of the conviction offence provided that those convictions predate the conviction for the conviction offence. However, this does not entail that paragraph 6A(1)(b) should be construed, as the Director contends, in a manner contrary to its plain meaning as explained above.
It is permissible to have regard to the Second Reading Speech in respect of the Bill which became the Criminal Assets Confiscation (Miscellaneous) Amendment Act 2018 (SA), which inserted sections 6A and 56A into the Act to discern the mischief to which the provisions are directed. The Attorney-General referred to the Criminal Property Confiscation Act 2000 and Misuse of Drugs Act 1981 in Western Australia, which scheme he said the Bill reflected and which legislation he said operated in a more drastic form. In this respect, the Attorney‑General said:
…opposition to this proposal in South Australia seems to be based on the idea that this is a new and unprincipled proposition that is unparalleled in the known universe. In fact, it is enacted and operating in a more drastic form (for some time) in Western Australia, the Northern Territory and Queensland…
…
The idea that all of the property of certain drug traffickers (known as prescribed drug offenders) should be confiscated, whether or not it has any link to crime at all and whether or not legitimately earned or acquired, originated in the Western Australian Criminal Property Forfeiture Act 2000. If a person is taken to be a declared drug trafficker under either s 32A(1) of their Drugs Misuse Act or is declared under s 159(2) of the Confiscation Act, then, effectively, all of their property is confiscated …
The Bill reflects the Western Australian scheme, with minor modifications.
…
An absconding accused aside, there are two situations catered for. First is the repeat offender. The second is the major offender (whether repeat or not).
(a)The repeat offender is caught if he is convicted on a third (or more) offence for nominated offences within a period of 10 years.
…
The Western Australian scheme has been modified so that a court has a discretion to ameliorate the harsh and inflexible application of this scheme if the offender has effectively cooperated with a law enforcement agency relating directly to the investigation or occurrence or possible occurrence of a serious and organised crime offence…[6]
[6] South Australia, Parliamentary Debates, House of Assembly, 7 May 2014, 82-83 (John Rau, Attorney‑General).
Subsection 5(1) of the Criminal Property Confiscation Act 2000 (WA) and paragraph 32A(1)(a) of the Misuse of Drugs Act 1981 (WA) as at 2015 provided:
8. Drug trafficker’s property
(1)When a person is declared to be a drug trafficker under section 32A(1) of the Misuse of Drugs Act 1981 as a result of being convicted of a confiscation offence that was committed after the commencement of this Act, the following property is confiscated —
(a) all the property that the person owns or effectively controls at the time the declaration is made;
(b) all property that the person gave away at any time before the declaration was made, whether the gift was made before or after the commencement of this Act.
…
32A. Drug trafficking
(1)If a person is convicted of —
(a) a serious drug offence and has, during the period of 10 years ending on the day, or the first of the days, as the case requires, on which the serious drug offence was committed, been convicted of 2 or more —
(i)serious drug offences; or
(ii)external serious drug offences; or
(iii)offences, one or more of which are serious drug offences and one or more of which are external serious drug offences;
…
the court convicting the person of the serious drug offence first referred to in paragraph (a) …, shall on the application of the Director of Public Prosecutions or a police prosecutor declare the person to be a drug trafficker.
The Western Australian scheme applied (only) to the paradigm case referred to at [46] above where a person commits and is convicted of two serious drug offences and then commits and is convicted of a third serious drug offence. The fact that the Attorney-General said that the Bill reflected the Western Australian scheme with minor modifications suggests that, in the case of repeat offenders, the mischief to which the Bill was directed was this paradigm case. The Second Reading Speech can be considered to discern the mischief to which the provision is directed, but not the meaning of the provision.
The context of the provisions in question includes the Act as a whole. In broad terms, apart from these provisions, the Act only provides for the forfeiture and confiscation of property which is proceeds or an instrument of crime. Sections 6A and 56A provide for forfeiture and confiscation of all property of the convicted person. This drastic consequence is to be taken into account in the construction of the provisions.
In Murphy v Farmer[7] Deane, Dawson and Gaudron JJ said:
Section 229(1)(i) … imposes forfeiture as the consequence of the giving of “false or wilfully misleading” information in relation to the entry of goods. The provision is, in our view, properly to be seen as penal or quasi-penal in character and as attracting the rule that “[t]hose who contend that [a] penalty may be inflicted, must shew that the words of the Act distinctly enact that it shall be incurred under the present circumstances. They must fail, if the words are merely equally capable of a construction that would, and one that would not, inflict the penalty” (Dickenson v Fletcher).[8]
[7] (1988) 165 CLR 19.
[8] At 28-29. (Citation omitted)
These words apply in the present case. Sections 6A and 56A are quasi-penal in character. The Director must show that the words of the provisions distinctly enact that forfeiture occurs when the convictions are simultaneous. At the very least, the words are equally capable of a construction that would not inflict the penalty.
I would allow the appeal. I would set aside the declaration made by the Magistrate pursuant to section 56B of the Act.
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