DPP (NT) v Hennig - [2005] NTSC 41

[Back to Main List] [Back to NTSC 2005 List] Director of Public Prosecutions v Hennig [2005] NTSC 41

PARTIES: DIRECTOR OF PUBLIC PROSECUTIONS

COLIN JONATHAN HENNIG

TITLE OF COURT: SUPREME COURT OF THE NORTHERN TERRITORY

JURISDICTION: SUPREME COURT OF THE NORTHERN TERRITORY exercising Territory jurisdiction

FILE NO: 20113016, 20423270

DELIVERED: 04 August 2005

HEARING DATES: 18 April, 21 April, 16 June 2005

JUDGMENT OF: THOMAS J

CATCHWORDS:

CRIMINAL LAW -- PROCEDURE -- DECLARATION UNDER THE MISUSE OF DRUGS ACT -- S36A DRUG TRAFFICKER

Operation of legislation – statutory interpretation – Misuse of Drugs Act 2003 – Criminal Property Forfeiture Act 2002 – restraining orders – restraint of property – forfeiture of property – declaring a person to be a drug trafficker

REPRESENTATION:

Counsel:
Appellant: E Armitage
Respondent: P Elliott

Solicitors:
Appellant: Office of the Director of Public Prosecutions
Respondent: Northern Territory Legal Aid Commission

Judgment category classification: C
Judgment ID Number: tho200504
Number of pages: 28

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

Director of Public Prosecutions v Hennig [2005] NTSC 41
20113016, 20423270

IN THE MATTER OF the Criminal Property Forfeiture Act and
IN THE MATTER OF
Colin Jonathan Hennig

BETWEEN:

DIRECTOR OF PUBLIC PROSECUTIONS
Applicant

AND:

COLIN JONATHAN HENNIG
Respondent

CORAM: THOMAS J

REASONS FOR JUDGMENT

(Delivered 4 August 2005)

[1] The applicant applies for the following declaration(s) and/or orders against Colin Jonathan Hennig:
“1. Pursuant to Sections 41(2) and 44(1)(a) of the Criminal Property Forfeiture Act 2002, and subject to paragraphs 2 & 3 hereof, the following property (“the Property”) be restrained:
(a) personal property:
(i) ANZ Bank Account Number 015 901 5995 – 05012 and the Australian currency held therein, namely $33,333.17.
(b) all or any property that is owned or effectively controlled by Colin Jonathon (sic) Hennig as at the date of this application and not currently identified or described in this application.
ON THE GROUNDS THAT
A. Colin Jonathan Hennig was convicted of an offence on 23 March 2005, namely, cultivate a commercial quantity of cannabis, which could lead Colin Jonathan Hennig to be declared a drug trafficker under section 36A of the Misuse of Drugs Act.
2. Any income or other property derived from the Property the subject of this Restraining Order while the Order is in force is to be treated as part of the Property (Section 49(2)).
3. The Property is restrained for a period of 3 months or until further order of this Court (Section 51(1)).
4. Pursuant to section 36A of the Misuse of Drugs Act, a declaration that the respondent, Colin Jonathan Hennig, be declared a drug trafficker.
5. Pursuant to section 94(3) of the Criminal Property Forfeiture Act, a declaration that the property of the respondent, Colin Jonathan Hennig, has been forfeited by operation of section 94(1) of the Criminal Property Forfeiture Act.”
[2] The application is supported by an affidavit of Elisabeth Helen Armitage sworn 21 April 2005. The background to this application is as follows:
[3] On 6 June…

Grounds of appeal

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

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

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

Consideration

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

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

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Details

Case: [2005] NTSC 41
Decision Date: 04 August 2005

CaseChat Overview and Summary

In the Supreme Court of the Northern Territory, the Director of Public Prosecutions applied for a restraining order under the Criminal Property Forfeiture Act 2002 against Colin Jonathan Hennig, a person convicted of cultivating a commercial quantity of cannabis. The Court was required to decide whether the applicant had established a basis for the restraining order under section 44(1)(a) of the Criminal Property Forfeiture Act. The applicant had to demonstrate that Hennig was charged, or would be charged within 21 days of the application, with an offence that could lead to him being declared a drug trafficker under section 36A of the Misuse of Drugs Act 2003. The Court held that Hennig could not be declared a drug trafficker under section 36A(3)(b)(ii) of the Misuse of Drugs Act, as it required two prior incidents of offending which were completely separate and dealt with by the court on the one occasion. The Court interpreted section 36A(3)(b)(ii) to mean that the offender must have been found guilty in respect of offences referred to in section 36A(b) arising from two separate previous incidents in the 10 years prior to the commission of the offence. As Hennig's conviction was the second incident, the application for a restraining order was refused.

Orders