STATUTORY INTERPRETATION – Criminal Property Forfeiture Act 2002 – statutory obligation to express grounds in order made – grounds referred to in order did not particularise forfeiture offence or which limb of the definition of “crime-used property” was relied on – whether order restraining property invalid – Criminal Property Forfeiture Act 2002, s 45

STATUTORY INTERPRETATION – Criminal Property Forfeiture Act 2002 – whether objector is an “innocent party” – deceased objector – land jointly owned – whether restraining order severs joint tenancy – whether forfeiture order should be made if deceased was an innocent party but other joint tenant was not – method of valuation of deceased’s interest

CRIMINAL PROPERTY FORFEITURE – whether property was crime-used property – meaning of “property” – meaning of “crime-used” property – whether there needs to be a substantial connection between the forfeiture offence and the property in Criminal Property Forfeiture Act, s 11

CRIMINAL PROPERTY FORFEITURE – burden and standard of proof in objection proceedings and forfeiture applications – Criminal Property Forfeiture Act, s 63(1)(c), s 96(1), s 136(2)(d)

STATUTORY INTERPRETATION – Criminal Property Forfeiture Act – forfeiture application – whether court has discretion to refuse the application – whether “must” means “may” – Criminal Property Forfeiture Act, s 95(2)

CRIMINAL PROPERTY FORFEITURE – forfeiture application - what needs to be proved – burden and standard of proof – Criminal Property Forfeiture Act, s 96(1)

WILLS AND TRUSTS – joint tenancy – deceased’s interest – whether restraining order severs joint tenancy – right and duty of executor of deceased estate to object to forfeiture application – disposition of proceeds of sale – Criminal Property Forfeiture Act, ss 63, 103, 163

CONSTITUTIONAL LAW – Criminal Property Forfeiture Act – s 43(2)(a) and 96(1) – whether invalid – Kable principle – whether s 96(1) invalid as an acquisition of property otherwise than on just terms – Northern Territory (Self-Government) Act 1978 (Cth) s 50(1); Constitution (Cth) s 51(xxxi)

CRIMINAL PROPERTY FORFEITURE – powers of Court when considering application for restraining order – Criminal Property Forfeiture Act,
s 43(2)(a) – powers of Court under Sentencing Act s 5(4)(a) – whether double jeopardy

Spry, Equitable Remedies, 6th Edn.
Meagher, Gummow and Lehane, Equitable Doctrines & Remedies, 4th Edn.

Constitution (Cth) s 51(xxxi)

Controlled Substances Act 1984 (SA), s 32(1)(a)

Criminal Assets Confiscation Act 2005 (SA)

Criminal Assets Recovery Act 1990 (NSW), s 10

Criminal Property Confiscation Act 2000 (WA), ss 146(1), 146(3)

Criminal Property Forfeiture Act 2002, ss 3, 5(4)(a), 6, 10(2)…

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.

Continue reading DPP v Dickfoss

Details

AGLC: DPP v Dickfoss [2011] NTSC 04
Case: [2011] NTSC 4
Decision Date: 14/01/2011

CaseChat Overview and Summary

The Supreme Court of the Northern Territory was required to decide several legal issues in this case. The first issue was whether the restraining order made by Olsson AJ was defective because it did not identify the alleged forfeiture offence or offences. The court found that the order complied with the requirement to provide the grounds upon which the order was made, and that the objector was aware of the material upon which the applicant relied. The second issue was whether the objector was entitled to rely upon his late father's objection on innocent party grounds. The court held that the deceased was an innocent party, and his objection must be upheld. The third issue was whether the land was "crime-used property." The court found that the property was not crime-used within the meaning of s 11(a) and (b) of the Criminal Property Forfeiture Act 2002, but was crime-used for the purposes of s 11(c) of the Act. The fourth issue was whether the court had a discretion to refuse the application for forfeiture. The court held that there were no indications from the language and structure of the Act read as a whole which supported the conclusion that the court had a discretion. The final issue was whether s 96 of the Act was invalid as an acquisition of property otherwise than on just terms or as an infringement of the Kable principle. The court rejected both arguments, finding that the Act did not infringe the Kable principle and that the court had the power to prevent unfairness and injustice in the administration of the Act.

The court dismissed the objection to the restraining order, upheld the objection of the deceased objector, and found that the property was crime-used for the purposes of s 11(c) of the Act. The court held that there was no discretion to refuse the application for forfeiture and that s 96 of the Act was not invalid. The court ordered that the property be forfeited to the Northern Territory, subject to the payment of the deceased's share of the proceeds of sale to his estate. The court will hear the parties as to the form of the orders to be made in accordance with these reasons, and as to costs.

Orders