Hall v Director of Public Prosecutions - [2015] SASCFC 19

SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
HALL v DIRECTOR OF PUBLIC PROSECUTIONS
[2015] SASCFC 19
Judgment of The Full Court
(The Honourable Justice Gray, The Honourable Justice Stanley and The Honourable Justice Parker)
23 February 2015
CRIMINAL LAW - PROCEDURE - CONFISCATION OF PROCEEDS OF CRIME AND RELATED MATTERS - FORFEITURE OR CONFISCATION - APPEAL OR REVIEW
CRIMINAL LAW - PROCEDURE - CONFISCATION OF PROCEEDS OF CRIME AND RELATED MATTERS - FORFEITURE OR CONFISCATION - PROCEDURE - GENERALLY
CRIMINAL LAW - PROCEDURE - CONFISCATION OF PROCEEDS OF CRIME AND RELATED MATTERS - RESTRAINING OR FREEZING ORDER - VARIATION, EXEMPTION OR RELEASE TO FUND DEFENCE OF CRIMINAL CHARGE
LIMITATION OF ACTIONS - EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS - OTHER CAUSES OF ACTION AND MATTERS
Appeal against decision to dismiss an application for the exclusion of property from forfeiture under the Criminal Assets Confiscation Act 2005 (SA). The appellant was arraigned and pleaded guilty to a serious offence on 9 April 2013. At that time, property of the appellant was subject to a restraining order under section 24 of the Act. Section 74 of the Act provides that property subject to a restraining order is automatically forfeited at the expiration of a six month period commencing on the day of the conviction of a serious offence, unless an extension order is in force pursuant to section 75. On 15 November 2013, the appellant applied for an extension of time in which to file an application pursuant to section 76 excluding particular property from forfeiture. The appellant also sought to rely on section 47 of the Limitation of Actions Act 1936 (SA). The Judge dismissed the application on the grounds that it was not made within six months of the appellant’s conviction for a serious offence. The Judge also dismissed the application under section 47 of the Limitation of Actions Act pursuant to section 47(2)(d) on the basis that the limitation of six months is essential to the nature or purpose of the forfeiture regime.
Whether the Judge erred in finding that the day of conviction was the day on which the appellant entered a plea of guilty and the allocutus was administered. Whether the Judge erred in holding that the six month limitation after conviction within which to make an application for exclusion of property from forfeiture is essential to the nature or purpose of the forfeiture regime within the meaning of section 47(2)(d) of the Limitation of Actions Act. Whether the Judge erred in finding that applications to extend the relevant period can only be made within six months of conviction. Whether the Judge erred in failing to consider and apply section 48(1) of the Limitation of Actions Act.
Held per Gray J (Stanley and Parker JJ agreeing) dismissing the appeal:
1. The day of conviction for the purposes of section 74 of the Criminal Assets Confiscation Act was 9 April 2013.
2. The property the subject of the restraining order was liable to automatic forfeiture to the Crown on 9 October 2014.
3. The ground of appeal relating section 48 of the Limitation of Actions Act should be dismissed in the circumstances, including the appellant’s abandonment before the Judge of any reliance on that section.
4. Even if it were accepted that section 47(1) of the Limitation of Actions Act has prima facie application to the Criminal Assets Confiscation Act, the appellant’s application under section 47 is excluded by the terms of 47(2)(d), as the six month limitation is essential to the nature or purpose of the forfeiture regime.
Criminal Assets Confiscation Act 2005 (SA) s 5, s 7, s 24, s 27, s 40, s 74, s 75, s 76, s 77, s 78, s 7992, s 93 and s 209; Limitation of Actions Act 1936 (SA) s 47 and s 48; Criminal Law (Sentencing) Act 1988 (SA) s 10, referred to.
Maxwell v The Queen (1996) 184 CLR 501; Della Patrona v Director of Public Prosecutions (Cth) (No 2) (1995) 38 NSWLR 257; Director of Public Prosecutions v McCoid (1988) 35 A Crim R 222; Director of Public Prosecutions v Nguyen (2009) 196 A Crim R 335; Re Litchfield (1989) 51 SASR 87; Director of Public Prosecutions v George (2008) 102 SASR 246, considered.

HALL v DIRECTOR OF PUBLIC PROSECUTIONS
[2015] SASCFC 19
Full Court: Gray, Stanley and Parker JJ
GRAY J.

This is an appeal against a decision of a Judge of the District Court to dismiss an application brought by Warrick Rodney Hall for the exclusion of property from forfeiture under the Criminal Assets Confiscation Act 2005 (SA).
The principal issue that arises on this appeal is whether an extension of time can be granted pursuant to the Limitation of Actions Act 1936 (SA) in which to bring an application for the exclusion of property, after forfeiture of that property has occurred pursuant to section 74(1) of the Criminal Assets Confiscation Act.
Background
On 9 February 2010, police officers searched residential premises owned by Mr Hall at Daw Park. They located and seized cannabis plants growing hydroponically and cannabis clones. Mr Hall was charged on Information with the offence of cultivating a commercial quantity of a controlled drug, namely, cannabis.
On 17 August 2010, a Master of the District Court made an order on the application of the Director of Public Prosecutions for a restraining order over the real property on which the plants were grown, pursuant to section 24 of the Criminal Assets Confiscation Act. On 18 August 2010, an order was made by a different Master of the District Court varying the restraining order pursuant to section 40 of the Criminal Assets Confiscation Act, permitting the Daw Park property to be sold, selling agents to be appointed and, upon the sale of the property, the discharge of a mortgage and the payment of associated conveyancing costs. Any remaining proceeds were to be paid into the District Court Suitors’ Fund. Following the sale and the discharge of the mortgage the amount of $52,164.32 was paid into the Suitor’s Fund.
On 9 April 2013, Mr Hall was arraigned and pleaded guilty to the charged offence before a Judge of the District Court. The allocutus was administered. The matter was adjourned for sentencing submissions. On 1 August 2013, Mr Hall was sentenced to imprisonment for a period of three years and nine months. A non-parole period of two years was fixed. The Judge declined to suspend the sentence. Mr Hall appealed to the Court of Criminal Appeal, arguing that the sentence imposed was manifestly excessive and that, in the circumstances, an order for a suspended sentence should have been made. The appeal was successful to a limited extent.[1] The sentence imposed was reduced, but the Court confirmed that it was inappropriate to suspend the sentence. As a result, Mr Hall was sentenced to a term of imprisonment of two years and nine months and a non-parole period of 12 months was fixed.
[1] R v Hall [2013] SASCFC 126.
By application filed on 31 October 2013, the Director of Public Prosecutions sought a declaration pursuant to section 77 of the Criminal Assets Confiscation Act that the sum of $52,164.32 standing to the credit of this action in the District Court Suitors’ Fund had been forfeited to the Crown pursuant to section 74 of the Act. A further order was sought that the said sum, together with interest, be provided to the Director of Public Prosecutions by way of cheque and that the Director deposit the sum into the Victims of Crime Fund pursuant to section 209. An affidavit filed in support of the application asserted that the Director’s position was that forfeiture under section 74(1) had occurred on 9 October 2013. The deponent further attested that the Director had not, as at 30 October 2013, received an application for an extension order extending the period before the property was forfeited pursuant to section 75.
By application filed on 15 November 2013, Mr Hall sought an extension of time in which to file an application for an exclusion order pursuant to section 76 of the Criminal Assets Confiscation Act. Mr Hall also sought an order that the monies deposited in the Suitors’ Fund, being the earlier referred to amount of $52,164.32, be excluded from forfeiture pursuant to section 76. In an affidavit filed in support of Mr Hall’s applications, his solicitor set out the history of the matter as follows:
The Defendant’s property situated at 36 Crozier Avenue Daw Park was restrained pursuant to an order of this Court under the provisions of the Criminal Assets Confiscation Act 1975.
The property was subject to a mortgage in favour of the ANZ and a charge by Legal Services Commission.
The ANZ Bank issued proceedings in the Supreme Court of South Australia in January 2013 under its mortgage over the property to sell the property as the defendant had defaulted in making payments secured by the mortgage.
At the time of this application the property was subject to the Restraining Order.
The defendant did not want the mortgagee to sell the property and application was made to the DPP to release the defendant from the provisions of the Restraining Order insofar as it would enable him to sell the property. He intended to undertake work on the property so that a sale would realize more than it was worth at the time of the Mortgagees [sic] application and would possibly realize some money to start his life again.
The DPP were kept informed of the progress of the matter at all times. It was a condition of the release that any monies realized after paying out the ANZ Bank and any other charges and costs associated with the sale would be placed with the court to await finalisation of the confiscation matter. This was done.
The Supreme Court granted the defendant his application under time constraints to sell the property.
Over the months of February-June 2013 the defendant spend [sic] considerable amounts of time in working on the property to upgrade it. At the time that the Restraining Order was in place and the ANZ Bank sought to foreclose the property was in a rundown condition and required considerable work to make it fully habitable. Its value was approximately $320,000. The defendant instructed that all payments on the mortgage had been made from money he was paid from working. Full details and banking records were provided to the DPP for verification. He instructed that no amounts for the purchase of the property were paid for by any proceeds from the matter for which he was convicted in the District Court and there were no submissions made in relation to that to the Court on sentencing.
An affidavit dated 1 August 2013 from the defendant was forwarded to the DPP which dealt with matters set out under s. 76(1)(c) of the Criminal Assets Confiscation Act 2005 and explained Mr Hall’s purchase of the property which had been requested by the DPP before they could consider any resolution. The contents of the affidavits were not accepted by them and they requested further documentation. Full banking records were obtained from the NAB Account for Mr Hall and forwarded to the DPP. These provided full information of transactions and set out all payments into Mr Hall’s account and payments out for payments of the mortgage. These were made available for the DPP to inspect and in support of Mr Hall’s affidavit. …
Warrick Hall was sentenced on 1 August 2013 and an Appeal was lodged shortly thereafter.
A copy of the affidavit from Warrick Hall was sent to the DPP in which these and other matters were set out. At all times through correspondences and telephone conversations MR Gupta of the DPP was made aware of the progress of the matter and Mr. Hall’s intentions with respect to the work on the property.
The defendant made an offer to resolve this matter which was rejected and under instructions I made a further number of attempts to finalise the matter.
The property was sold within the time constraints set by the DPP and the Supreme Court. It sold for $412,000 which meant that after all amounts owed pursuant to the sale an amount of $52,164.32 was paid into court.
I notified the DPP that Mr. Hall would be making an application for the exclusion of this amount from the confiscation and that it be paid to him. Before this could be finalized I needed documentary evidence that the property had been increased in value by the work that the defendant had done.
The solicitor further deposed that he made a mistake as to the time period within which Mr Hall was to lodge the application for an extension of time and the application for exclusion and that, as a consequence of his error, the application was not lodged until more than six months after what he now understood to be the date of conviction. Other affidavit evidence was filed to support Mr Hall’s contention that he was entitled to an exclusion order.
On 21 March 2014, Mr Hall applied for an extension of time under section 47 of the Limitation of Actions Act and for orders allowing expenses to be paid out of the monies paid into Court pursuant to section 27(1) of the Criminal Assets Confiscation Act, on the basis that the expenses were specified debts incurred in good faith and reasonable living expenses.
The applications came on for hearing before the Judge of the District Court in late March 2014, but were adjourned for hearing in May and June 2014. On 18 July 2014, the Judge dismissed Mr Hall’s application for the exclusion of property pursuant to section 76(1) of the Criminal Assets Confiscation Act. The Judge dismissed Mr Hall’s application for an extension of time under section 47 of the Limitation of Actions Act. The Judge dismissed Mr Hall’s application under section 27 of the Criminal Assets Confiscation Act for orders allowing expenses to be paid out of the restrained property. The Judge adjourned for further consideration the Director’s application for a declaration and consequential orders and directions. It does not appear that that application has been further addressed. On the hearing of the appeal, the Court was informed that the subject monies remained in the District Court Suitors’ Fund.
The Judge’s Reasons
Before the District Court Judge, the parties accepted that for the purposes of the Criminal Assets Confiscation Act, Mr Hall’s conviction occurred following the delivery of the allocutus and the recording of a conviction on that day, namely 9 April 2013. In this respect, the Judge observed:
After committal for trial, the defendant was arraigned and pleaded guilty on 8 April 2013, to the offence before another Judge of this court, and the allocotus was administered. Submissions in mitigation and sentence were then adjourned. There is an affidavit of conviction recording Mr Hall’s conviction on that day. Quite apart from that, there can be no doubt that at common law a plea of guilty accompanied by an allocotus, constituted a perfected act of conviction: Griffiths v The Queen.[2] Those steps are likewise held to amount to acts of conviction for the purposes of criminal assets forfeiture: Della Patrona v Director of Public Prosecutions (No 2),[3] Director of Public Prosecutions v Helou,[4] Director of Public Prosecutions v McCoid,[5] Director of Public Prosecutions (SA) v Nguyen and Nguyen.[6]
[2]    Griffiths v The Queen (1977) 137 CLR 293.
[3]    Della Patrona v Director of Public Prosecutions (No 2) (1995) 132 ALR 307, 315.
[4]    Director of Public Prosecutions v Helou (2003) 58 NSWLR 574.
[5]    Director of Public Prosecutions v McCoid [1988] VR 982.
[6]    Director of Public Prosecutions (SA) v Nguyen and Nguyen (2009) 262 LSJS 440, [39-40].
The Judge conducted a survey of the provisions of the Criminal Assets Confiscation Act and concluded that it followed:
… that Parliament intended applications for exclusions of property from restraining orders under s 74, had to be brought without exception within the six month period immediately following conviction and correspondingly, that all orders extending that period made under s 75, had also to be brought within the same timeframe.
In respect of his dismissal of the application under section 27 for the allowable expenses to be paid out of the subject property, the Judge concluded:
Accordingly even though no declaration of forfeiture is yet made by the court pursuant to section 77 of the Criminal Assets Confiscation Act, there is no extant restraining order in place over which s 27 can operate, because of the combined effect of ss 46(4) and 90(1)(b). The court is therefore forced to the unfortunate conclusion that the s 27 application is foreclosed.
On the application in respect of section 47(1) of the Limitation of Actions Act, the Judge noted that the section did not apply in the circumstances postulated under section 47(1)(d), namely:
any other action to the nature or purpose of which the limitation is, in the opinion of the court, essential.
The Judge reasoned:
Section 47(1)(d) of the Limitation of Actions Act ties the essential nature of the limitation to the ‘nature or purpose’ of the limitation itself. This requires the limitation to be indispensible to the efficient working of the statutory scheme of forfeiture itself. The utility of the restraint and forfeiture mechanisms were intended as strong and drastic sanctions: Attorney-General (NT) v Emmerson.[7] Those intentions would be undermined or even frustrated, if forfeiture proceedings became unduly delayed beyond the mandatory six months permitted, other than those already the subject to an extension order made under s 75 of the Criminal Assets Confiscation Act.
The strict nature of the six month time limit prescribed by ss 74(1) and (6), the express and intractable words of s 76(2) ‘to avoid doubt, an order … cannot be made’, reinforcing as it does the absolute nature of the limitation, together with the outer limit of 15 months which pertained at relevant times for extension orders erected by s 75(2), serve to demonstrate Parliament’s intention that the six month period was essential to the nature and purpose of the forfeiture mechanisms contained in Part 4 of the Criminal Assets Confiscation Act.
There is little room for doubt that the six months period was designed to provide for expeditious determinations of forfeiture proceedings, following conviction. In reaching that conclusion it must be borne in mind the purpose of the Criminal Assets Confiscation Act is that orders for forfeiture vest the subject property in the Administrator under s 93(1), being a person appointed by the Minister (in this instance the DPP). The DPP is thereby charged with the obligation of disposing of the seized property ‘as soon as practicable’ for the express purpose of applying the proceeds to the costs of administering the Criminal Assets Confiscation Act and then towards the Victims of Crime Fund, as dictated by s 209(1).
[7] Attorney-General (NT) v Emmerson (2014) 88 ALJR 522, [15].
Although the Judge discussed section 48 of the Limitation of Actions Act in the course of his reasons, he correctly noted that no application was made by Mr Hall under that section and that, accordingly, the matter required no further consideration.
The Statutory Framework
The Criminal Assets Confiscation Act is “An Act to provide for the confiscation of proceeds and instruments of crime; and for other purposes.” Part 1 is concerned with preliminary matters, including, by section 7, defining the meaning of “proceeds and instrument of an offence”.
Part 3 of the Act provides for the making of restraining orders in relation to specified property upon the application of the Director of Public Prosecutions. Section 24 requires the court to make such an order upon satisfaction of certain facts, including that there are reasonable grounds to suspect that the property is the property of, or under the effective control of, a person that has been convicted or charged with a serious offence. Section 27 empowers the court to make an order that the reasonable living expenses of the person or their dependants be met out of the property covered by the restraining order. Sections 34 to 38 empower the court, upon application, to make an order excluding property from a restraining order.

Part 4 of the Act provides for the making of an order that property the subject of a restraining order is forfeited to the Crown. Division 1 of Part 4 provides for the making of a forfeiture order on the application of the Director of Public Prosecutions. Division 2 of Part 4 provides for the automatic forfeiture of property the subject of a restraining order where the relevant person is convicted of a serious offence.
Section 74 provides:
(1)     Property is forfeited to the Crown at the end of the relevant period if—
(a)     a person is convicted of a serious offence; and
(b)     either—
(i)at the end of the relevant period, the property is covered by a restraining order that relates to the offence; or
(ii)the property was covered by a restraining order that relates to the offence, but the property was excluded, or the order revoked, under section 38 or section 44; and
(c) the property is not subject to an order under section 76 excluding the property from forfeiture under this Division.
(2)     For the purposes of this section, it does not matter whether—
(a)     the restraining order was made before or after the person’s conviction of the serious offence; or
(b)     immediately before forfeiture, the property is the person’s property or another person’s property.
…
(6)     In this section—
relevant period means—
(a)     the 6 month period starting on the day of the conviction; or
(b)     if an extension order is in force at the end of that period—the extended period relating to the extension order.
Section 75 provides for an extension to the six month period where an application has been filed to exclude property from the forfeiture order:
(1)The court that made the restraining order referred to in section 74(1)(b) may make an order (an extension order) specifying an extended period for the purposes of that section if—
(a)     an application for the order is made within 6 months after the start of the day of the relevant conviction; and
(b)     the applicant has also applied to the court under this Act to exclude property from the restraining order; and
(c)     the court is satisfied that the applicant made the application to exclude property from the restraining order without undue delay, and has since diligently followed up that application.
(2)The extended period must end not later than 15 months from the start of the day of the relevant conviction.
(3)The extension order stops being in force if the application to exclude property from the restraining order is finally determined before the end of the 6 month period starting on the day of the relevant conviction.
(4)The extended period ends if the application to exclude property from the restraining order is finally determined before the end of the extended period.
[Emphasis added.]
Section 76 provides for the making of an order excluding particular property from a forfeiture order:
(1)The court that made the restraining order referred to in section 74(1)(b) may make an order excluding particular property from forfeiture under this Division if—
(a) the person referred to in section 74(1)(a)—
(i)     applies for the order; and
(ii)    owns the property; and
(iii)has been convicted of a serious offence to which the restraining order relates; and
(b)     the property is covered by the restraining order; and
(c)     the court is satisfied that—
(i)     the property is not proceeds of unlawful activity; and
(ii)    the defendant’s interest in the property was lawfully acquired; and
(iii)it would not be contrary to the public interest for the property to be excluded from such forfeiture.
(2)To avoid doubt, an order under this section cannot be made in relation to property if the property has already been forfeited under this Division.
(3)The person must give written notice to the DPP of both the application and the grounds on which the order is sought.
(4)     The DPP—
(a)     may appear and adduce evidence at the hearing of the application; and
(b)     must give the applicant notice of any grounds on which it proposes to contest the application.
[Emphasis added.]
The Appeal
By his amended notice of appeal, Mr Hall advanced six complaints contending that the Judge had erred:
-in finding that the day of conviction was the day on which Mr Hall entered a plea of guilty and the allocutus was administered, namely 9 April 2013;
-in concluding that the limitation of six months after conviction within which to make an application for exclusion of property from forfeiture under section 76(1) of the Criminal Assets Confiscation Act “is essential to the nature or purpose of the forfeiture regime” and therefore section 47 of the Limitation of Actions Act does not apply by reason of subsection (2)(d);
-in finding that applications to extend the relevant period can only be made within six months of conviction;
-in finding that “the proceeds of the subject property were … ‘forfeited to the Crown’ by force of statute, on 8 September 2013”, at the end of the six month period commencing on the day of conviction;
-in finding that “Despite the manifest unfairness and injustice involved, the application by the [Mr Hall] for exclusion of property pursuant to s 76(1) of the Criminal Assets Confiscation Act must be dismissed as incompetent, as it was not made within six months of his conviction for a serious offence, as required by the combined operation of ss 74(1), 74(6), 76(2) and 91(1)(b), thereof”; and
-in failing to consider and apply section 48(1) of the Limitation of Actions Act.
Day of Conviction
It was not in dispute that the offence of cultivating a commercial quantity of a controlled drug is a serious offence for the purpose of section 74 of the Criminal Assets Confiscation Act. At the outset of the appeal, both parties proceeded on the basis that the defendant had been convicted of the offence on 9 April 2013. During the course of the appeal, attention was drawn to the decision of the High Court in Maxwell[8] and the observations there made about the difficulties that may arise when considering the date of a conviction. As the members of the High Court pointed out, much will depend on the terms of the particular statute under consideration.
[8] Maxwell v The Queen (1996) 184 CLR 501.
Mr Hall sought and was granted leave to amend his notice of appeal to include a complaint that the Judge had erred in concluding that the day of conviction was the day on which he entered a plea of guilty and the allocutus was administered, namely 9 April 2013. He submitted that for the purposes of the automatic forfeiture provisions, the relevant conviction occurred on the date of sentencing, namely 1 August 2013, or, at the earliest, the date of remand for sentence, namely 26 July 2013.
Section 5 of the Criminal Assets Confiscation Act addresses the meaning of “convicted of an offence” as follows:
(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
(b)     the person is charged with, and found guilty of, the offence but is discharged without conviction (and in such a case the conviction day for the purposes of this Act is the day on which the person was discharged without conviction); or
(c)     a court, with the consent of the person, takes the offence, of which the person has not been found guilty, into account in passing sentence on the person for another offence (and in such a case the conviction day for the purposes of this Act is the day on which the court took the offence into account in passing the sentence); or
(d)     the person absconds in connection with the offence (and in such a case the conviction day for the purposes of this Act is the day on which the person is taken to have absconded); or
(e) a court has, under Part 8A Division 2 of the Criminal Law Consolidation Act 1935, recorded findings that—
(i)     the person is mentally incompetent to commit the offence; and
(ii)    the objective elements of the offence are established,
(and in such a case the conviction day for the purposes of this Act is the day on which the court recorded those findings or, if those findings were recorded on different days, the later of the days); or
(f) a court has, under Part 8A Division 3 of the Criminal Law Consolidation Act 1935, recorded findings that—
(i)the person is mentally unfit to stand trial on a charge of the offence; and
(ii)    the objective elements of the offence are established,
(and in such a case the conviction day for the purposes of this Act is the day on which the court recorded those findings or, if those findings were recorded on different days, the later of the days).
(2)     If subsection (1)(d), (1)(e) or (1)(f) applies to a person, the person is taken—
(a)     to have committed the offence; and
(b)     to have been convicted of the offence before an appropriate court.
The Court’s attention was drawn to authorities from New South Wales and Victoria which concluded that, for the purposes of criminal assets confiscation legislation, legislation broadly comparable to the Criminal Assets Confiscation Act, the day of conviction is the day on which a trial judge accepts and proceeds upon a jury’s verdict or a defendant’s plea of guilty. Attention was drawn to the decision of the New South Wales Court of Appeal in Della Patrona[9] and the decisions of the Victorian Court of Appeal in McCoid[10] and Nguyen.[11] In Maxwell,[12] Toohey J cited Della Patrona[13] without any apparent disapproval.
[9] Della Patrona v Director of Public Prosecutions (Cth) (No 2) (1995) 38 NSWLR 257.
[10] Director of Public Prosecutions v McCoid (1988) 35 A Crim R 222.
[11] Director of Public Prosecutions v Nguyen (2009) 196 A Crim R 335.
[12] Maxwell v The Queen (1996) 184 CLR 501.
[13] Della Patrona v Director of Public Prosecutions (Cth) (No 2) (1995) 38 NSWLR 257.
Mr Hall sought to distinguish the interstate authorities, contending that those decisions concerned materially different statutory regimes. It was pointed out that forfeiture for the purposes of the legislation under consideration in McCoid[14] and Della Patrona[15] was a criminal matter, and occurred only upon the order of a court. The legislation provided that sentencing could be deferred pending consideration of a confiscation order. By contrast, forfeiture under the South Australian Confiscation Act is a civil matter and can occur automatically by operation of section 74 of the Act. Mr Hall submitted that the only way to allow coordination between the criminal sentencing and the civil forfeiture proceedings would be to ensure that the forfeiture proceedings occur after sentencing, therefore requiring the day of conviction to be interpreted as meaning the day of sentencing.
[14] Director of Public Prosecutions v McCoid (1988) 35 A Crim R 222.
[15] Della Patrona v Director of Public Prosecutions (Cth) (No 2) (1995) 38 NSWLR 257.
Mr Hall further submitted that the circumstances in which he entered a plea of guilty suggested against a finding that he had been relevantly convicted on that date. Following the administration of the allocutus, defence counsel informed the Judge that both he and his instructing solicitor had recently become involved in the matter and said, “[there is] a considerable amount of material that … we would like to put to your Honour”. Defence counsel requested liberty to apply “on each part” and said, “there’s a problem with that if we can’t sort that out with the DPP”. While it is not immediately clear to what defence counsel was referring, it appears from the transcript of a subsequent hearing that there was an issue with the factual basis of the plea. The factual dispute was heard before the Judge on 11 July 2013. The matter was resolved in that hearing and Mr Hall was remanded for sentencing submissions on 26 July 2013. On the appeal, Mr Hall submitted that the Court’s awareness of the factual dispute as at the date of the plea of guilty meant that there was not a final determination of guilt by the Court on that day and, accordingly, the relevant conviction did not occur on that day.
Notwithstanding considerations that may arise under the South Australian Criminal Assets Confiscation Act, including the discretion of a sentencing judge to have regard to forfeiture under section 10 of the Criminal Law (Sentencing) Act 1988 (SA), comity, at the very least, requires this Court to follow the decisions in Della Petrona[16] and Nguyen.[17] The parties were correct in their initial position that the day of conviction was 9 April 2013. Accordingly, the property the subject of the restraining order was liable to automatic forfeiture to the Crown at the expiration of the six month period, namely, on 9 October 2014.
[16] Della Patrona v Director of Public Prosecutions (Cth) (No 2) (1995) 38 NSWLR 257.
[17] Director of Public Prosecutions v Nguyen (2009) 196 A Crim R 335.
Automatic Forfeiture
Earlier, the terms of section 74 of the Criminal Assets Confiscation Act have been set out. Mr Hall was convicted of a serious offence on 9 April 2013. The subject property, namely the money in the Suitors’ Fund, was covered by a restraining order that related to that offence. That restraining order continued until the end of the relevant period. The property was not, as at 9 October 2013, or at any prior time, the subject of an order under section 76 excluding the property from forfeiture. In these circumstances, it would appear that the property was forfeited to the Crown at the end of the relevant period.
It is to be recalled that the relevant period is defined to mean either the six month period starting on the day of conviction, or, alternatively, if an extension order is in force at the end of that period, the extended period related to the extension order. In the present proceeding, as earlier noted, the six month period commenced on 9 April 2013 and concluded on 9 October 2013. If this definition of relevant period applied then the property was forfeited to the Crown on 9 October 2013.
The alternative definition of relevant period requires an extension order to be in force at the end of the six month period; in the present case, by 9 October 2013. It was common ground that no such extension order was in force by that date.
Section 75 addresses the making of an extension order extending the period before property is forfeited. The section invests the Court with the power to make an extension order specifying an extended period for the purpose of section 74 so as to extend the relevant period beyond six months from the day of conviction. Section 75(1)(a) requires that an application for an extension order is to be made within six months after the start of the day of the relevant conviction. In the present proceeding, Mr Hall’s application for an extension order was not made until 15 November 2013, a time beyond the termination of the six month period. Section 75(2) provides that an extended period must end not later than 15 months from the start of the day of the relevant conviction. In the present proceeding, the extended period if this obligation be mandatory concluded on 9 July 2014.
It is to be understood that if the regime set out in section 74(6) and 75(1) and (2) operates strictly, then Mr Hall has no entitlement to any relief.
Limitation of Actions Act
It is convenient to now turn to Mr Hall’s applications for orders under provisions of the Limitation of Actions Act. The application under section 48 of that Act can be readily resolved. Before the District Court hearing, Mr Hall had foreshadowed an application under section 48. However, Mr Hall’s solicitor wrote to the Director of Public Prosecutions before the hearing commenced advising that such an application would not be pursued. There was no application before the Judge for any orders pursuant to section 48. As the Judge noted in his reasons:
As no application under s 48 of the Limitation of Actions Act is made, that contingency requires no further consideration.
During the hearing of the appeal, the Solicitor-General, appearing for the Director, indicated that not only had the matter not been raised in the Court below, but, in any event, the underlying factual assertions to support such an application were in dispute. It was said that any such application would require evidence from Mr Hall and any supporting witnesses and that evidence would be the subject of investigation and cross-examination. In these circumstances, given in particular the abandonment of any reliance on section 48 before the Judge, this ground of appeal should be dismissed.
Section 47 of the Limitation of Actions Act provides:
(1)Where any Act, regulation, rule or by-law limits the time within which an action to which this section applies may be brought to a period of less than twelve months from the time the cause of action arises, then, notwithstanding that limitation, that action may be brought at any time within twelve months from the time the cause of action arises.
(2)     This section applies to all actions except—
(a)     a criminal action; and
(b)     an action to try the validity of an election or of title to an office; and
(c)     an action to try the validity of an assessment, rate or loan made by or to a local government body; and
(d)     any other action to the nature or purpose of which the limitation is, in the opinion of the court, essential.
Section 47 is a provision of general operation. It does not invest a power in a court to extend time upon application. The section is self-executing. The section operates on a provision that limits the time within which an action may be brought. Section 47 has no application to the combined operation of sections 74(1) or 74(6)(a) of the Criminal Assets Confiscation Act. The effect of these provisions may be described as automatic forfeiture. At the end of the relevant period, property is forfeited by operation of the statute. There is no cause of action to be adjudicated upon in the exercise of judicial power.
Section 47 was said by Mr Hall to apply to section 75 of the Criminal Assets Confiscation Act, and, in particular, to section 75(1)(a). It was submitted that the six month period in section 75(1)(a) of the Criminal Assets Confiscation Act falls within the definition of limitation law in the Limitation of Actions Act. Relevantly, limitation law is defined to mean:
(a)a law of this State (including this Act) that provides for the limitation or exclusion of liability, or the barring of a right of action, if an action is not commenced within a particular time limit;
(b)a law of another State or a Territory of the Commonwealth, or of New Zealand, that provides for the limitation or exclusion of liability, or the barring of a right of action, if an action is not commenced within a particular time limit;
The terms of section 47(2) of the Limitation of Actions Act provide that the section is to apply to all actions subject, however, to four exceptions. The only exception relevant to the present proceeding is that provided by section 47(2)(d), namely, an action to the nature or purpose of which the limitation is, in the opinion of the court, essential. As earlier noted, the District Court Judge considered that section 47 was excluded by reason of section 47(2)(d).
Mr Hall submitted that it could not be said that the six month time limit in section 75(2) was essential within the meaning of section 47(2)(d). It was said that the six month limitation, although a deadline, could not be said to be essential in nature or purpose. Mr Hall contended that, properly characterised, section 74 was the trigger to the forfeiture process and permitted the Crown to commence primarily administrative processes to take property. It was argued that a period of nine or 12 months or more could have been fixed without undermining in any way the legislative scheme or its efficiency. Emphasis was placed on what was described as the provision’s arbitrary and procedural nature. Attention was drawn to the claw back provisions in sections 78 to 82 of the Criminal Assets Confiscation Act. It was further pointed out that the obligations of the administrator under, for example, section 93, were procedural and directive in nature. These obligations were contrasted to the effect of forfeiture, which was described as being a fundamental deprivation of proprietary rights. It was said that the administrator’s obligations could not elevate the arbitrary deadline to the status of being essential.

The Solicitor-General supported the Judge’s conclusion that the six month limitation was essential within the meaning of section 47(2)(d) of the Limitation of Actions Act. It was further contended that, in any event, the restriction in section 76(2) of the Criminal Assets Confiscation Act that an order extending time in which to bring an exemption application “cannot be made in relation to property if the property has already been forfeited” put the issue beyond question.
In relation to section 47(2)(d) of the Limitation of Actions Act, the Full Court in Re Litchfield construed the word “essential” in the following terms:[18]
The word “essential” generally means necessary or indispensable, but that simply poses a further question: necessary or indispensable to what? I think the answer must be, not necessary in some literal or absolute sense, but necessary to the efficient working of the statutory scheme to which a review application under s 95 relates. …
The Solicitor-General submitted that it followed that whether a time limit is essential to the nature or purpose of the legislative scheme cannot be answered by merely positing a different time limit that the legislature might have adopted. Any time limit has an element of arbitrariness to it. The question is whether the legislative scheme, construed as a whole, indicates that the legislature regarded the time limit as an essential component of the efficient working of the statutory scheme.
[18] Re Litchfield (1989) 51 SASR 87, 90.
The Solicitor-General submitted that the Criminal Assets Confiscation Act evidences a comprehensive, integrated scheme for the forfeiture of property, with a staged process bounded by interlocking time limitations for the exclusion of property from statutory forfeiture. Reference was made to the following observations of Doyle CJ in Director of Public Prosecutions v George:[19]
…It can be seen that the [Criminal Assets Confiscation Act] deliberately limits the time within which a person affected by [a restraining order] may attempt to avert the effect of [a restraining order].
[19] Director of Public Prosecutions v George (2008) 102 SASR 246, [20].
The Solicitor-General further contended that the powers vested in a court by the Criminal Assets Confiscation Act that may be exercised after statutory forfeiture has occurred are of a fundamentally different character – empowering the court in limited circumstances to order the administrator to transfer the property forfeited, or to pay compensation if the property has already been disposed of.
The Solicitor-General referred to the requirement under section 93(1)(b) that the administrator, in this case the Director, must “as soon as practicable dispose of property (other than money) specified in the order”. Attention was also drawn to section 90(1)(b), which provides that “property forfeited under section 74 vests absolutely in the Crown at the time of the forfeiture”. It was suggested that the application of section 47 of the Limitation of Actions Act would give rise to inconsistencies within the otherwise integrated statutory scheme of the Criminal Assets Confiscation Act. Under the scheme, property would automatically forfeit six months after a person’s conviction of a serious offence. The administrator would, pursuant to sections 92 and 93, be empowered to immediately deal with the property and would be under a duty to dispose of the property “as soon as practicable” so that the monies could be paid into the Victims of Crime Fund. At any time up until six months after the conviction, however, the person convicted would be able to apply for an extension order. The property might at that time be vested in a third party and, if real property, be subject to statutory indefeasibility of title.
The Solicitor-General submitted that the rationale underlying the six month time period following conviction was to permit an applicant for exclusion to give evidence without jeopardising any defence which they may wish to raise in the criminal proceedings. Accordingly, it was said that the six month period represented a careful legislative choice as to the appropriate balancing of these competing objectives.
It is apparent that Parliament, in enacting the Criminal Assets Confiscation Act was intending to enact a comprehensive and extensive set of new powers targeting the assets and profits of criminals. The proposed legislation was said to be comparable to the Proceeds of Crime Act 2002 (Cth). This was with a view to promoting consistency between State and Commonwealth provisions. This comparable legislation throughout Australia seeks to strike at the heart of major organised crime by depriving persons involved of the profits and instrumentalities of their crimes. The legislative intent is to suppress criminal activity by attacking the primary motive – profit – and to prevent the reinvestment of that profit in further activity. The legislation enacted by the States and Commonwealth parliaments is not identical, but the broad comparability of these provisions is plainly evident.
In my view, there is force in the submission of the Solicitor-General that, having regard to the comprehensive nature of the integrated scheme for the forfeiture of property set out in the Criminal Assets Confiscation Act, the time limits operating are essential to the effective operation of the scheme. As earlier discussed, the Act provides for time limits to be extended so as to avoid undue hardship. In the present proceeding, Mr Hall had the opportunity to make an application to exclude property from the restraining order and had the opportunity to make an application to exclude property from automatic forfeiture. Mr Hall had the opportunity to seek an order extending time in which to pursue an application for exclusion, thereby extending the date on which automatic forfeiture would occur. It is plain that those advising Mr Hall were well aware of the existence of the relevant time limits and were in a position to proceed, but apparently through a misunderstanding as to the day of conviction, did not do so. These circumstances demonstrate that the scheme would have operated fairly had Mr Hall proceeded within time. The failure of Mr Hall to do so cannot be said to be the result of a harsh or oppressive regime.
Part 4 of the Criminal Assets Confiscation Act addresses forfeiture. As earlier discussed, division 1 deals with forfeiture orders, division 2 deals with automatic forfeiture and, through division 3, dealings with forfeited property are addressed. Section 90(1) provides that in the case of a forfeiture order or automatic forfeiture, there is a vesting absolutely in the Crown of the property at the time of forfeiture. Section 91 is concerned with the time at which the Crown can commence dealing with property the subject of a forfeiture order and section 92 is concerned with the Crown dealing with property the subject of automatic forfeiture under section 74. Section 93 provides directions to the Administrator, in this case the Director, concerning the dealings with property. This section in turn refers to section 209 and, in particular, the ultimate destination of forfeited property – the Victims of Crime Fund.
Section 78 of the Criminal Assets Confiscation Act provides for the circumstances in which a person other than the defendant claiming an interest in the property may have that interest recognised and, if appropriate, have the property transferred. Section 79 allows for a person who claims an interest in the forfeited property to seek an order relating to the buying back of the property that has been forfeited.
To allow section 47(1) of the Limitation of Actions Act to have any operation in regard to the provisions the subject of consideration in this proceeding would materially disrupt the comprehensive integrated scheme set out in the legislation. There would be a marked impact on the efficient operation of the scheme in the terms discussed by Cox J in his decision in Re Litchfield.[20] However, I consider that the disruptive effect would go beyond an impairment of efficiency. There would be a clear disruption of the planned legislative scheme. The scheme would no longer operate as intended. Accepting for the moment that section 47(1) has prima facie application to the Criminal Assets Confiscation Act, that application is excluded by the terms of section 47(2)(d).
[20] Re Litchfield (1989) 51 SASR 87, 90.
In these circumstances, it is unnecessary to resolve the question as to whether section 47(1) of the Limitation of Actions Act can have any application at all to the provisions of the Criminal Assets Confiscation Act. Parliament, in enacting the Criminal Assets Confiscation Act, plainly intended a six month time limit to apply. There would appear, it might seem, to be little point in Parliament legislating in these terms if it intended that section 47(1) would have application and automatically extend a six month time limit to a period of 12 months. This issue was raised by Cox J in Re Litchfield, where his Honour observed:[21]
… There must be a question, it seems to me, whether s 47 of the Limitation Act can ever apply to a time limit specified in an Act that was passed after the date (27 March 1975) on which s 47, in its present form, came into force. Section 47, unlike s 48, is expressed in objective or absolute terms — I think one may probably say this of par (d) of subs (2), notwithstanding the reference to the court's opinion — which means that Parliament, whenever it legislates in a special Act for a new time-limit procedure, will be in a position to see whether or not it falls within the exceptive provisions of subs (2). If it does not, then it is hardly to be supposed that Parliament is deliberately engaging in the futile exercise of specifying a time limit of less than twelve months in the realisation that s 47 of the Limitation Act will automatically convert it into something quite different. The better view, one might think, is that when Parliament states, despite s 47, that something has to be done within one month, it means what it says. If that tentative interpretation of s 47 is correct, then it would appear to follow that the section may be applied, in accordance with ordinary rules of statutory construction, only to prior Acts and regulations. But there is no need to decide that now.
There is force to these remarks.
[21] Re Litchfield (1989) 51 SASR 87, 90-1.
One further observation should be made. Under the terms of section 75 of the Criminal Assets Confiscation Act, any extension of time in which to seek an exclusion order cannot extend beyond 15 months from the date of conviction. As earlier noted, in the present proceeding, had the defendant been entitled to obtain an extension order, that time could not extend beyond 8 July 2014. No submissions were advanced in this Court as to how such a circumstance could be addressed.
Conclusion
For these reasons, the appeal against the orders of the District Court Judge should be dismissed.
STANLEY J: I would dismiss the appeal. I agree with the reasons of Gray J.
PARKER J: I would dismiss the appeal. I agree with the reasons of Gray J.