DPP v Dam
[2000] VSC 490
•21 November 2000
SUPREME COURT OF VICTORIA
COMMON LAW LIST Not Restricted
No. 1491 of 2000
| DIRECTOR OF PUBLIC PROSECUTIONS | Applicant |
| v | |
| THIEU NIEN DAM | Respondent |
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JUDGE: | Balmford, J. | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 6 November 2000 | |
DATE OF JUDGMENT: | 21 November 2000 | |
CASE MAY BE CITED AS: | DPP v Dam | |
MEDIA NEUTRAL CITATION: | [2000] VSC 490 | |
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Proceeds of crime – Pecuniary penalty order - Value of the benefit derived by the defendant in relation to the offences.
Confiscation Act 1997; ss. 58, 59, 67, 132, 133.
DPP v Delaney (1998) 99 A Crim R 574.
Jones v Dunkel (1959) 101 CLR 298.
Pepin (1996) 86 A Crim R 327.
Tsolacos (1995) 81 A Crim R 434.
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APPEARANCES: | Counsel | Solicitors |
For the Applicant | Mr C Scott | Peter Wood, Solicitor for Public Prosecutions |
| For the Respondent | Mr D Gurvich | Allan McMonnies |
HER HONOUR:
Introduction
This is an application for a pecuniary penalty order under section 58 of the Confiscation Act 1997 (“the Act”). Rule 6.03 of the Supreme Court (Criminal Procedure) Rules 1998 (“the Rules”) provides that an application under that section “is taken to be made when the application is first brought on before a Judge for hearing or for directions”. This application was filed in the Court on 30 August 2000 and was first brought on before the Judge in the Practice Court on 1 September 2000, when it was adjourned to 21 September.
The relevant provisions of the Act are;
3.Definitions
In this Act –
. . .
“relevant period” means the period of six months . . . after –
(a) the day on which the person was convicted of the offence;
58.Application for pecuniary penalty order
.. .
(2)If a defendant is convicted of a forfeiture offence other than an automatic forfeiture offence -
(a)the DPP may apply to a court; or
(b)an appropriate officer may apply to the Magistrates' Court or the Children's Court -
for a pecuniary penalty order.
(3)Except with the leave of the Supreme Court or the court before which the defendant was convicted, an application may only be made under sub-section (1) or (2) before the end of the relevant period (if any) in relation to the conviction.
(4)A court must not grant leave under sub-section (3) unless it is satisfied that -
(a)the benefit to which the application relates was derived, realised or identified only after the end of the relevant period; or
(b)necessary evidence became available only after the end of the relevant period; or
(c)it is otherwise in the interests of justice to do so.
59.Determination of application for pecuniary penalty order
(1)On an application under section 58(1) or (2), the court may -
(a)assess the value of the benefits derived by the defendant in relation to the offence; and
(b)order the defendant to pay to the State a pecuniary penalty equal to the value as so assessed less, if the court thinks it desirable to take it into account, any amount paid or payable by way of restitution or compensation in relation to the same conviction -
.. .
(4)On an application under section 58(1) or (2) a court may, subject to any rules of court, take into account in determining the application any material that it thinks fit including -
(a)subject to section 99(2), a statement or disclosure made during an examination ordered under Part 12; and
(b)evidence given in any proceeding relating to the offence in reliance on the conviction of which the application is made -
and, for this purpose, the whole or any part of the transcript of those proceedings is admissible in evidence as if it were a record of evidence given on the hearing of the application.
67.Assessment of benefits
(1)For the purposes of this Part, the value of the benefits derived by a defendant in relation to an offence may include -
(aa)any money actually received as a result of the commission of the offence, regardless of expenditures incurred in deriving that money;
132.Standard of proof
Any question of fact to be decided by a court on an application under this Act is to be decided on the balance of probabilities.
133.Nature of proceedings
(1)Proceedings on an application under this Act are civil in nature, except as otherwise provided by this Act.
(2)Despite sub-section (1), the rules regulating the practice and procedure of a court in civil proceedings do not apply to a proceeding on an application under this Act.
Section 59 confers on the Court, on an application under section 58, an unfettered discretion to assess the value of the benefits derived by the respondent in relation to the offences and to order payment of a pecuniary penalty equal to the amount so assessed, taking into account any amount paid or payable by way of restitution or compensation. (See section 45 of the Interpretation of Legislation Act 1984 as to the construction of the word “may”.) No question arises in this case of any such amount paid or payable by way of restitution or compensation, and there is no other basis upon which the amount ordered to be paid can be reduced below the value assessed. Thus, if the Court, having assessed the value of the benefits, decides to exercise the discretion to order payment, then the amount ordered to be paid must be the amount so assessed. As Underwood J said in DPP v Delaney (1998) 99
A Crim R 574 at 578-9, “Presumably, the onus of persuading the court to exercise either or both of the discretions conferred by the subsection falls upon the applicant who seeks to activate the discretion(s)”.
On 2 March 2000 the respondent pleaded guilty in the Magistrates’ Court at Melbourne to 32 charges of consigning fish of priority species for sale without being authorised to do so, on dates between 14 May 1998 and 13 July 1999 and one charge of receiving fish of priority species without being authorised to do so between 6 July and 31 August 1999, those being offences under section 40(1) of the Fisheries Act 1995. He was convicted and sentenced to serve a six month Intensive Correction Order and to pay aggregate fines of $60,000. The effect of section 3 and Schedule 1 of the Act is that the offences in question are “forfeiture offences” within the meaning of the Act. The fish in question was abalone.
The applicant claims that the respondent derived a benefit of not less than $1,174,600 from the offences of consigning fish for sale. This is on the basis that the consignments totalled 4195 kilograms of dried abalone, for which the respondent was paid $280 per kilogram. The quantity is not in issue, but the respondent does not accept the price said by the applicant to have been paid.
The respondent further asserts that some of the charges relate to frozen abalone, which was said by counsel for the applicant to be considerably cheaper than dried abalone, although there is no evidence before me to that effect. However, it was said by Mr Scott, for the applicant, and tacitly accepted by Mr Gurvich, for the respondent, to be common ground that the abalone was consigned for transport from Melbourne to Queensland in unrefrigerated compartments located on the underside of ordinary passenger coaches. I am satisfied that it is unlikely that frozen fish would have been transported by that method, and accordingly, on the balance of probabilities, the standard required to be applied by section 132 of the Act, I find that all of the abalone the subject of the 32 charges of consigning was dried, rather than frozen.
The Submission of the Respondent
Mr Gurvich submitted that there were four reasons why the discretion conferred upon the Court by section 58 should not be exercised. First, there was no satisfactory evidence before the Court of benefit derived by the respondent in relation to the offence. Second, the lateness of the application had resulted in difficulties of the kind referred to by the President in Tsolacos (1995) 81 A Crim R 434. And the circumstances of the respondent were such that third, there was no prospect of the realisation of any asserted benefit or the satisfaction of an order; and fourth, the respondent would suffer hardship if it were sought to enforce such an order against him.
The Evidence
In Delaney, Crawford J, in the context of the similar Tasmanian legislation, after referring to the difference between a plea hearing and the hearing of a claim for a pecuniary penalty order said at 586 (in dissent only as to the factual findings below):
Subject to any clear exception to be found in the Act, a judge hearing an application for either a forfeiture order or a pecuniary penalty order should take care to ensure that the relevant facts are established on the balance of probabilities (s 71) from evidence given to the court, or to the court which tried the respondent for the relevant offence, and from any agreement between the parties as to the facts of the case. As was said [by the Queensland Court of Appeal in Gardiner (1992) A Crim R 370], such an agreement may, in some circumstances, be inferred from the course of submissions, but in the absence of agreement, and any expressly contrary provision in the Act, any necessary facts must be proved by evidence in the usual way. It follows in a case such as this, where there was no trial but merely a plea of guilty followed by submissions from counsel both on the sentencing hearing and the hearing of the application for the pecuniary penalty order, with no sworn evidence apart from an affidavit establishing little by way of admissible evidence for the purpose of establishing relevant facts, that the judge hearing the application should take particular care to ascertain what facts are agreed and what facts are not agreed. If facts are asserted by Crown counsel and the respondent does not agree with them, expressly or implicitly, then they must be proved in the usual way in accordance with the rules of evidence, unless there is an express provision in the legislation which permits a different course. . . . Applications for forfeiture or pecuniary penalty orders will commonly be Draconian in effect. Substantial sums of money and property of substantial value will often be involved. In this case the pecuniary penalty order which the Chief Justice might have made, would have been in the sum of $115,000, a very large amount in any person’s terms, and before it is determined whether to make an order for payment of a sum of that magnitude, facts must be properly established.
It may be the case that a respondent wishes to establish facts in opposition to a pecuniary penalty order. The same rules will apply in that case. The facts will need to be established on the balance of probabilities, and if those facts are merely asserted by the respondent or his or her counsel, without being proved by admissible evidence, then they will not be proved unless the applicant admits them.
While what His Honour says may seem obvious, it is worth stating, and is apposite to the present case, which also derives from a plea of guilty. Although it appears that evidence was given before the Magistrate, very little of that evidence is available to this Court. It should be noted, in this context, that section 133(2), providing that “the rules regulating the practice and procedure of a court in civil proceedings do not apply to a proceeding on an application under this Act”, says nothing of the rules of evidence. The exclusion of the rules of evidence is common in legislation creating tribunals and the like, and there are well-known forms of words employed to that effect. If Parliament had intended to provide that the rules of evidence were not to apply to proceedings under the Act, it would have said so expressly.
Rule 6.09(3) of the Rules provides that evidence on the hearing of an application for a pecuniary penalty order may be on affidavit and shall be on affidavit if the court so directs. It appears that no directions were given as to the procedure to be adopted in this matter. The evidence before the Court is contained in two affidavits, one filed by each party (and see paragraph 12 below).
The affidavit of Mr Warren, Chief Prosecutor of the Department of Natural Resources and Environment, exhibits, as well as certified extracts of the convictions, what is described as a “summary”, which was read by Mr Warren to the Magistrates’ Court, and which consists in large part of an account of the investigation which led to the arrest and charging of the respondent. Mr Warren relevantly deposes that at the hearing of the plea:
It was alleged by the prosecution that in relation to the charges of Consigning abalone for sale without being authorised to do so, to which Thieu Nien Dam had pleaded guilty, that he consigned a total of 4,195 kilograms of dried abalone and that Thieu Nien Dam was paid $280 per kilogram for the abalone being a total of $1,174,600.
Mr Gurvich objected to Mr Warren being called to give evidence, on the ground that his instructing solicitor had enquired of the Office of Public Prosecutions as to what witnesses would be called by the applicant, and had been advised in writing “the DPP will rely on the affidavit of Rodney Warren, a copy of which has been provided to you earlier.” Accordingly, Mr Scott properly limited the matters which he put to Mr Warren, after indicating that it was not proposed to take his evidence into areas not already set out within his affidavit.
The only evidence put before me by the applicant as to the amount which Mr Dam was paid for the abalone, was the oral evidence of Mr Warren that at the hearing below evidence was given by one David Lee, a businessman in Surfers Paradise who “would buy dried abalone from Mr Dam and he would pay $280 per kilo to Mr Dam in cash”. That evidence does not appear in Mr Warren’s affidavit. Mr Gurvich did not seek an adjournment in order to obtain instructions or call further evidence, although it had been made clear to him that the Court would have been sympathetic to such an application, and his client was present in Court. That being so, I am entitled, on the basis of the rule in Jones v Dunkel (1959) 101 CLR 298 to draw the inference that evidence from the respondent would not have assisted his case. However, that rule cannot be relied on to provide the evidence which the applicant has not produced.
The other affidavit before the Court was that of Mr McMonnies, solicitor for the respondent, who was also present at the hearing in the Magistrates’ Court, and who deposes on this point:
6. That at the hearing of this matter on 2.3.00 I instructed Mr Daniel Gurvich of Counsel to appear on behalf of the respondent. The hearing proceeded before his Worship, Mr Crisp Magistrate. It was submitted to the Learned Magistrate that the respondent disputed the amounts paid by David Lee to him for the abalone. The Prosecution called David Lee to give evidence. The Learned Magistrate stated words to the effect that he was not concerned as to the amount paid for the abalone as it made little difference to the final outcome. He made no finding of fact as to the amount paid.
7. That a Ms Dubber was also called to give evidence as to the type of abalone consigned. His Worship stated words to the effect that he was not interested as to whether the abalone was dried or frozen and did not make a finding of fact on this point.
8. That the respondent was called by his counsel and gave sworn evidence refuting the assertions made by the prosecution as to the amount received by the respondent for the abalone and the type of abalone consigned.
. . .
10. That immediately following receipt of the Application, I contacted the Melbourne Magistrates’ Court to obtain the tapes of the proceeding. The Court informed me that the tapes are no longer in existence as they are only retained for a period of 3 months before being destroyed.
The initial task of the Court on an application under section 58(2), as provided in section 59(1)(a), is to “assess the value of the benefits derived by the defendant in relation to the offence”. The word used is not “estimate” but “assess”. By virtue of section 67(1)(aa), the value of the benefits so derived may include “any money actually received as a result of the commission of the offence, regardless of expenditures incurred in deriving that money”, and by virtue of section 132 that assessment of that value is to be decided on the balance of probabilities. The only evidence before me which is at all relevant to the assessment of the amount received by the respondent as a result of the commission of the offences is the oral evidence of Mr Warren set out in paragraph 13 above. That is a statement of the evidence given below, as to which the Magistrate made no finding. It does not disclose how much, if any, of the abalone the subject of the convictions, was purchased from Mr Lee at $280 per kilo. There is no evidence as to whether Mr Lee was cross-examined, or as to any other matter which would enable me to form a view as to the value of his evidence, save that Mr McMonnies deposes that he had attended with the respondent at the Australian Taxation Office, his client having been required to attend and give evidence in connection with an investigation of the taxation affairs of Mr Lee. There is no evidence as to any other evidence given at the hearing save for what appears in paragraphs 7 and 8 of Mr McMonnies’ affidavit. Having considered the evidence before me, I find that it does not enable me to “assess the value of the benefits derived by the defendant in relation to the offence.”
The Lateness of the Application
It will be noted that the application was brought at the extreme limit of the “relevant period” provided for in section 58(3); in fact, one day before its expiry (see paragraphs 1 and 4 above). In Tsolacos, Winneke P, with whom Callaway JA and Crockett AJA agreed, said at 437 of an application under the previous legislation, brought three days before the expiry of the relevant period:
Because the application was made within the “relevant period” prescribed by the Crimes (Confiscation of Profits) Act (the Act), and the application was filed and served in accordance with the Rules, it could not be disputed that the application was properly made, although its tardiness and the fact that it was unaccompanied by any supporting affidavit material created difficulties upon the hearing of the application.
And at 440:
. . . these applications ought to be brought either at a time when the relevant matters are fresh in the minds of all concerned (namely, contemporaneously with the trial or plea) or, if they are not, ought to be accompanied by full details of the material upon which the Crown is relying in support of its application.
I would, with respect, adopt that passage.
Similarly in the present case, the tardiness of the applicant in bringing the application, especially when coupled with the brevity of the accompanying affidavit of Mr Warren, has created difficulties. It would appear that all of the material in the application and the affidavit would have been in the possession of the Office of Public Prosecutions at the time of the conviction of the respondent and within the period of three months during which the tapes of the plea hearing were extant. There may, of course, be some reason of which I am not aware as to why the application could not have been brought within that period, when whatever evidence was given at the plea may be assumed to have been available. While the delay is not of itself reason to reject the application, it may explain the failure of the applicant to produce the evidence needed for the application to succeed.
The Circumstances of the Respondent
As to the submission that there was no prospect of the realisation of any pecuniary penalty which might be ordered, Mr Gurvich cited the following passage from the judgment of Underwood J in Delaney at 580, upholding the decision of Cox CJ, with Wright and Crawford JJ agreeing on this point:
. . . the legislature clearly did not intend that a pecuniary penalty order must be made in every case. Had it so intended, it would have provided that the making of the order was mandatory. The fact that a respondent has no prospects, either in the present or in the reasonably foreseeable future of meeting any part of a pecuniary penalty order, is a factor relevant to the proper exercise of the discretion. In such a case there is no point in making an order that the Court knows will never be satisfied even in part.
The same view was taken by the Court of Criminal Appeal of New South Wales in Pepin (1996) 86 A Crim R 327 (see the judgment of Smart J, with whom Hunt CJ at CL and Badgery-Parker J agreed on this point, at 332).
It is apparent from the several judgments of the members of the Court in Pepin that the question of whether hardship is a relevant consideration in an application for a pecuniary penalty order is not yet settled. I note that section 33(5)(b) of the Act provides that hardship is relevant in an application for a forfeiture order, but there is no corresponding provision in the context of a pecuniary penalty order.
In support of his submissions on these two issues, Mr Gurvich sought to rely on evidence contained in the affidavit of Mr McMonnies, and in a psychologist’s report exhibited to that affidavit, as to the financial situation and the health of the respondent. However, the affidavit of Mr McMonnies does not state the source of his knowledge in respect of matters other than events in the Magistrates’ Court, where he deposes to having been present, his own actions, and one matter where he refers to his instructions. Mr Scott submitted, and Mr Gurvich did not contest that submission, that the remainder of the material in the affidavit, concerned with the financial circumstances and health of the respondent, also derived from instructions given to the deponent by his client, rather than from actual knowledge. He does not depose to his belief in that material. An affidavit based on information and belief is permissible in an interlocutory proceeding, but not on the substantive hearing (Rule 43.03 of the Supreme Court (General Civil Procedure) Rules 1996). The material in question can only be hearsay. Needless to say, the factual material in the psychologist’s report on these matters (as distinct from his expert opinion) merely restated the history given to him by the respondent, and was similarly inadmissible, particularly as Mr Gurvich did not seek to rely on that opinion. As has been said, the respondent was present in court, but was not called as a witness, and the inference can be drawn that his evidence would not have assisted his case.
Thus, there being no admissible evidence as to the circumstances of the respondent, it is not necessary for me to consider the question of the relevance of hardship to the determination of this application.
Conclusion
However, as I have said, in the absence of satisfactory evidence as to the value of the benefits derived by the respondent in relation to the offences, I am unable to exercise my discretion to make the assessment provided for in section 59(1)(a). Accordingly, I am unable to exercise my discretion to make any order under section 59(1)(b). The application will be dismissed. Counsel may wish to make submissions as to costs.
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