Henderson v State of Queensland

[2013] QCA 82

SUPREME COURT OF QUEENSLAND

CITATION:

Henderson v State of Queensland [2013] QCA 82

PARTIES:

JOHN WILLIAM HENDERSON
(appellant)
v
STATE OF QUEENSLAND
(respondent)

FILE NO/S:

Appeal No 10039 of 2011
SC No 1246 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

16 April 2013

DELIVERED AT:

Brisbane

HEARING DATE:

5 November 2012

JUDGES:

Holmes and White JJA and Daubney J
Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed with costs.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – CONFISCATION OF PROCEEDS OF CRIME AND RELATED MATTERS – where police seized $598,325 in Australian currency over which the appellant claimed ownership – where the State successfully applied for a restraining order, under Part III of the  Criminal Proceeds Confiscation Act 2002 (Qld) – where the State applied for a forfeiture order, under Part IV of the Confiscation Act – where the appellant applied for an exclusion (from forfeiture) order, under Part IV of the Confiscation Act – where $598,325 in Australian currency was deposited into the Queensland Police Service Collections Account – where applications for restraining and forfeiture orders were amended because the $598,325 in Australian currency had not been retained in specie – whether amendments amounted to new applications

CRIMINAL LAW – PROCEDURE – CONFISCATION OF PROCEEDS OF CRIME AND RELATED MATTERS –FORFEITURE OR CONFISCATION – SERIOUS CRIME RELATED ACTIVITY OR CONFISCATION OFFENCE – where the appellant failed to prove on the balance of probabilities that it was more probable than not that the property was not illegally acquired – where exclusion order refused – where forfeiture order granted – whether the standard of proof relating to exclusion orders, provided for in s 68(2), is lower than the standard of proof otherwise relating to the Act, provided for in s 8(3) – whether the primary judge erred in applying the wrong standard of proof

CRIMINAL LAW – PROCEDURE – CONFISCATION OF PROCEEDS OF CRIME AND RELATED MATTERS – FORFEITURE OR CONFISCATION – SERIOUS CRIME RELATED ACTIVITY OR CONFISCATION OFFENCE –where expert for respondent gave opinion about age and origin of property from sketch of property – whether open to primary judge to be satisfied on the balance of probabilities that more probable than not that the property was not illegally acquired

CRIMINAL LAW – PROCEDURE – CONFISCATION OF PROCEEDS OF CRIME AND RELATED MATTERS – FORFEITURE OR CONFISCATION – DISCRETION TO MAKE ORDER – GENERALLY – where appellant eschewed reliance on public interest aspect of s 58(4) at trial – where primary judge expressed concerns pertaining to the public interest in his Honour’s judgment – whether primary judge erred in failing to apply s 58(4) of the Confiscation Act to refuse to make the forfeiture order on the basis that it was not in the public interest to do so

Acts Interpretation Act 1954 (Qld), s 36
Criminal Proceeds Confiscation Act 2002 (Qld), s 4(1), s 4(2)(b), s 8(2), s 8(3), s 8(4), s 8(5), s 9, s 13(1), s 13(4), s 15, s 16, s 17, s 18, s 19, s 22, s 22(1), s 28, s 28(2), s 28(3), s 28(3)(a)(i), s 29(1)(a), s 31(1), s 36, s 56, s 56(1), s 58(1), s 58(1)(a), s 58(4), s 58(9), s 65(2), s 65(6), s 65(7), s 68(2)
Currency Act 1965 (Cth), s 8
Police Powers and Responsibilities Act 2000 (Qld)
Uniform Civil Procedure Rules 1999 (Qld)

Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34, considered
Chu Kheng Lim v Minister for Immigration, Local Government and Ethnic Affairs (1992) 176 CLR 1; [1992] HCA 64, considered
International Finance Trust Co Ltd v NSW Crime Commission (2009) 240 CLR 319; [2009] HCA 49, considered
Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28, considered
Sinclair v Brougham [1914] AC 398, considered

COUNSEL:

M J Croucher SC, with J A Fraser, for the appellant
M D Hinson SC, with J S Brien, for the respondent

SOLICITORS:

Laschko Criminal Lawyers for the appellant
Office of the Director of Public Prosecutions for the respondent

1. HOLMES JA: I have had the advantage of reading the judgment of White JA and agree with her Honour’s conclusions and the orders she proposes. I would simply add, in relation to ground 1, that the variation of the restraining order amounted, in my view, to no more than a greater particularisation of the original. The appellant’s argument assumes that the expression “$598,325.00 in Australian currency” was such as to identify the actual notes seized from the appellant. I do not think that is so. The expression, as White JA has indicated, can properly be regarded as a description of the medium of exchange; that is, as describing the value of the money seized in the currency provided for by s 8 of the Currency Act 1965 (Cth). (An alternative way of putting it might have been, “$A598,325.00”.) That description said nothing about the form in which the money was held. The amendment identified the money in more detail by reference to its form as at 23 April 2002, as funds deposited in a bank account.

1. WHITE JA: On 7 October 2011 Peter Lyons J dismissed an application by the appellant (“Mr Henderson”) for an exclusion order in respect of $598,325, which was the subject of a restraining order, and ordered the forfeiture, sought by the respondent (“the State”) of that amount of money.  Those orders were made under the Criminal Proceeds Confiscation Act 2002 (Qld) (“the Confiscation Act”).

1. On 22 November 2011, after the parties had made written submissions about the form of the orders and costs, his Honour ordered that Mr Henderson pay the State’s costs for both applications. 

1. An applicant who seeks to have all or part of restrained property excluded from a forfeiture order pursuant to the Confiscation Act must show, to the civil standard, that the restrained property is not illegally obtained property.[1]

   [1]See Confiscation Act, s 68.

1. On 20 April 2002, bank notes in Australian currency, to the approximate amount forfeited, were found by police officers in a blue sports bag belonging to Mr Henderson in the boot of a car which he had hired, parked outside the Reef Palms Motel in Cairns.  Mr Henderson claimed ownership of the notes and notes found on his person.

Grounds of appeal

1. The appellant was given leave to substitute new grounds of appeal for those appearing in the Notice of Appeal.  Proposed Ground 4 was abandoned at the hearing.  Before turning to those grounds it is necessary to set out the background which led to the applications.

Background

1. As found by the primary judge, Mr Henderson was born on 25 June 1955.  His birth name was William Marijancevic but he changed his name to John William Henderson by deed poll.  He had two brothers, Joseph and Frank Marijancevic, referred to as “Joseph” and “Frank” below, and a sister, Dianne Murphy (“Ms Murphy”).  Another sister had no involvement in these proceedings, or, indeed, with the family.

1. Their father was Franjo Marijancevic (“Mr Marijancevic”).  He was born on 25 October 1923 in Yugoslavia and died at the age of 78 years on 29 April 2001 at Shepparton in Victoria.  He had previously been living at Picola in Victoria.

1. In his affidavit sworn on 22 April 2010, and filed for the purpose of his application[2] for an exclusion order, Mr Henderson deposed that, at a date he was unable to specify more particularly between 1995 and 1997, he was visiting his father at his house in Picola, Victoria.  His father told him that he wished him to have some jewellery as part of his inheritance.  In cross-examination Mr Henderson identified the occasion more particularly as close to Christmas 1996.  His father handed him a pair of gold earrings encrusted with “a couple of diamonds”; a gold bracelet surrounded totally with diamonds of similar sizes; a gold necklace with a diamond pendant; and a broach encrusted with varying sized diamonds.  In his cross-examination he provided some more detail of the occasion.  He said his father was wandering around the house in his pyjamas and called him into the bedroom, got down on his knees, pulled a box from under the bed and took out those pieces of jewellery.  As he handed over the jewellery, the father said “look after your family”.  In his evidence Mr Henderson recalled his father having said, “take this and look after your brothers and sisters with this”.  Mr Henderson said that he always regarded himself as holding the jewellery on behalf of his siblings and himself in equal parts.

   [2]AR 1030.

1. When Mr Henderson returned home he showed the jewellery to his wife.  Because she concluded that it was valuable they put it in her safety deposit box with a branch of the ANZ Bank in Collins Street, Melbourne.  According to Mr Henderson, there it remained. 

1. After the death of Mr Marijancevic on 29 April 2001, Mr Henderson said he showed his siblings the jewellery for the first time at a meeting at his house.  A decision was made to have the jewellery valued, sold and the proceeds invested.  Joseph, Frank and Ms Murphy supported Mr Henderson in this evidence.

1. In about December 2001 Mr Henderson took the jewellery to a Theodosis Komianos for valuation.  Mr Komianos was the owner of a jewellery business, T K Castings Pty Ltd, at an address in Little Collins Street, Melbourne.  He told Mr Henderson that he valued the jewellery at $1,000,000 retail and between $600,000 and $700,000 wholesale.  Mr Komianos swore an affidavit in April 2010[3] deposing that in December 2001 a person attended at his office requesting a valuation of certain items of jewellery.  The items were said to be contained in a red box and a red velvet bag.  He did not previously know the man who identified himself as John Henderson.  He described the items of jewellery as:

   [3]Only his much earlier statutory declaration made on 30 October 2002 is in the Appeal Record.  The affidavit was filed on 28 February 2010 and relied on by Mr Henderson in the proceedings.

“Pair of large diamond ear-rings.

Big diamond pendant.
Broach circled with a large number of diamonds.
A bracelet full of diamonds in a circle.”[4]

Mr Komianos said that he cleaned the items and assessed the colours that could be seen as a result of the cleaning.  He made a sketch of the items, which was attached to his affidavit.

[4]AR 1041.

1. Mr Henderson deposed that “in or around late 2001” a man, whose first name was “Daniel”, telephoned him regarding the sale of the jewellery.  When he swore his affidavit Mr Henderson could not recall Daniel’s full name.  He remembered his first name because he, Mr Henderson, has a son of that name.  Mr Henderson gave this account of the sale:

“Shortly thereafter, Daniel came to my home at … on two occasions.  On the first occasion he looked at the jewellery and asked me how much I wanted for it.  I told him that I wanted $1M.  He said something to the effect that jewellery is always marked up.  He haggled me down and we came to a figure of $620,000.00.  After looking at the jewellery, Daniel pulled out a chequebook.  I told him that I wouldn’t accept a cheque and that I wanted cash.  He said that it would take sometime [sic] to raise that sort of cash.  I asked him why didn’t he just go to the bank and withdraw the money.  He said and I believe something to the effect that it would still take time for this to happen.  I said that was OK and that when he had the money the jewellery would be here for his collection.”[5]

[5]AR 1033.

1. “[S]ometime later” Daniel returned carrying cash in a cardboard box full of 50 dollar notes.  He and his wife counted out $620,000.  The purchaser asked for a receipt “and I wrote something out on a piece of paper.  I did not keep a copy of this receipt.”[6]  Mr Henderson asked the purchaser for his phone number and wrote the purchaser’s full name and mobile phone number on the top of a 50 dollar note.

   [6]AR 1034.

1. Subsequently Mr Henderson telephoned Mr Komianos and asked him had he told Daniel about the jewellery.  He responded that he had told a few people about the sale but could not recall if he told anyone by the name of Daniel.

1. After receiving the cash, Mr Henderson and his wife went to different banks and a casino to exchange the 50 dollar notes for 100 dollar notes as the amount of cash “was far too bulky”.  The cash was kept in a safety deposit box.  He deposed that since the cash had been deposited by the State in a bank after it was seized he no longer had access to the notes to locate Daniel’s contact details.

1. During another family meeting, Mr Henderson and his siblings decided that the cash should be invested in the Queensland property market.  Neither Mr Henderson nor his siblings were able to recall the date of that meeting.  In early 2002 he became aware of a retail shop property in Coondoo Street, Cairns owned by a company associated with a man named Dredge.  According to Mr Henderson, in January and February 2002, he travelled to Cairns several times to meet with Mr Dredge and to look at some other properties.  Mr Dredge swore that he conducted negotiations with a Mr Arris about the sale of the shops and that it was not until June 2002 that he actually met Mr Henderson in Cairns after having received a formal offer to purchase the property through Mr Arris.  Mr Dredge recalled that all the serious negotiations for the sale occurred after police had seized the cash on 20 April 2002.

1. Mr Henderson said that while there was a verbal agreement to purchase, he continued to negotiate with Mr Dredge about the price.  They arranged to meet in Cairns in early April 2002 in a coffee shop in a shopping plaza.  Mr Henderson said he thought he could use the cash as a bargaining tool to get the property as cheaply as possible.  When he arrived in Cairns he hired a white Toyota car and placed the cash in a bag in the boot.  His former wife and daughter came to Cairns to meet him the following day but, since he thought the transaction would be finalised shortly, they flew back to Victoria a few days after their arrival.

1. Mr Henderson said while he was in Cairns he met with an old acquaintance.  They met with some other people at the Reef Palms Motel “for social reasons”.[7]  He and his acquaintance then left to buy beer and groceries in the Toyota.  He did not tell his acquaintance of the cash in the boot of the car.  When they returned police were at the unit investigating other matters related to the occupants.  A quantity of illegal drugs associated with the occupants was found.  As a consequence, an emergent search was conducted of each person present and the vehicle.  Initially Mr Henderson denied any connection with the car. 

   [7]AR 1036.

1. About $5,000 in cash was found on Mr Henderson in a bum bag.  He claimed possession of the blue sports bag in the boot of the car.  A small quantity of cannabis was found in the side pockets of that bag.  At the police station police discovered the cash.  Mr Henderson declined to explain its origin except to say that it was not unlawfully obtained and was not related to police enquiries.  He was then arrested and charged with possession of tainted property in respect of the cash and possession of cannabis. 

1. The money was described as appearing new, “straight out of the Reserve Bank”[8].

   [8]Detective Sergeant Mark Andrew, AR 22.

1. Even without that cash, Mr Henderson was able to settle on the Coondoo Street property.  He provided evidence of this purchase, financed in part by a bank loan and the sale of other property.

1. The counting of the money in the blue bag commenced in Mr Henderson’s presence.  However, to speed the process an arrangement was made to use the note counter at the Cairns Casino.  Thereafter police returned with the cash to the police station where it was photographed note by note.  Notwithstanding Mr Henderson’s evidence that he and his wife changed the $50 notes received from Daniel into $100 notes, the photographs depict many of the notes being of $50 denomination.  Mr Henderson did explain that there was “mixed” money involved.  When the total of all the money found on him and in the bag was mentioned to Mr Henderson he maintained it was some $30,000 less than expected.  This “allegation” was reported by the investigators to their seniors.  Mr Henderson was issued with a receipt for the cash.

1. The money was retained on police premises until the afternoon of Monday, 22 April 2002.  It was then left, sealed, in a strong room at the Lake Street branch of the Commonwealth Bank in Cairns.  The following day it was counted by bank employees and deposited into the Queensland Police Service Collections Account at the bank.  This was in accordance with directives in the Police Operational Procedures Manual[9] dealing with “Australian currency” coming into the possession of police.  There was nothing to suggest that its retention in its original form was required by law or considered necessary.

   [9]AR 1478.

The proceedings

1. On 10 February 2003 an application was made for a restraining order against Mr Henderson’s property pursuant to s 28(3)(a)(i) of the Confiscation Act .  It was made in respect of all his property but the supporting affidavit sought an order only in respect of property described as “cash to the value of $598,325 in Australian currency”.[10]  There was no reference to the fact that the money had been deposited in the Queensland Police Service Collections Account.  The restraining order handwritten onto the typed order (presumably by the judge) identified the restrained property as “$598,325.00 in Australian currency”.  Following paragraphs of the restraining order permitted the restrained property to be dealt with and authorised the Chair Person of the Crime and Misconduct Commission (“the CMC”) to authorise any such dealing.

   [10]Affidavit of JE Richardson filed 10 February 2003, AR 316.

1. On 5 March 2003 the State made an application pursuant to s 56(1) and s 58(1) of the Confiscation Act for an order for the forfeiture of Mr Henderson’s property described as “$598,325.00 in Australian currency”.  On 30 May 2003 Mr Henderson filed an application for the exclusion from forfeiture of his property, similarly described.  In 2004 the then chairperson of the CMC authorised the Public Trustee to take control of the property and invest it, which occurred.  The State does not argue that this authorisation is the answer to Mr Henderson’s first ground of appeal about the existence of his property, the subject of the restraining order, as it occurred after the order was made.

1. At the commencement of the hearing of the applications Mr Henderson sought a stay of the proceedings because there was no longer property which fitted the description in the restraining order.  He also contended that the banking of the notes meant that the particular note on which he had written Daniel’s details was no longer available to him to assist his exclusion application and he was thereby prejudiced.

1. Mr Henderson’s adjournment application was refused.  That application drew attention to the fact that the money which had been seized had not been retained in specie. The State applied for a variation of the restraining order and for leave to amend the forfeiture application. Mr Henderson argued they amounted to new applications which would run foul of s 58(1)(a) and s 58(9) of the Confiscation Act because he had not engaged in serious crime related activity during the proceeding six years – a condition precedent for granting a restraining order. 

1. His opposition was unsuccessful and the restraining order was varied by substituting the words “$598,325 in Australian currency” with the words:

“cash to the value of $598,325 in Australian currency deposited on 23 April 2002 in the Queensland Police Service Collection Account numbered 4804 0006 0429 held at the Commonwealth Bank of Australia” .[11]

The making of those orders constitutes Ground 1.  Leave was also granted to amend the forfeiture application by substituting the words “the property restrained by the restraining order made on 10 February 2003 as varied by the order made on 8 June 2011” for the words “$598,325 in Australian currency”.[12]

[11]AR 1518.

[12]AR 1495, 1498; see AR 1518-1519, reasons [12]-[15].

1. Mr Henderson then applied for an adjournment to enable him to appeal those rulings, which was also refused.  An application was made for leave to amend the exclusion application, in order to make it consistent with the varied restraining order and forfeiture application, which was granted.

Statutory provisions

1. Before considering the grounds of appeal the statutory framework for the applications by the State and Mr Henderson need to be set out.

Restraining order

1. Part III of the Confiscation Act relates to restraining orders. Section 28 provides, relevantly, that the State may apply to the Supreme Court for an order restraining any person from dealing with property described in the order other than in a stated way or in stated circumstances. By s 28(3):

“The application may relate to all or any of the following property –

(a)for property of a person suspected of having engaged in 1 or more serious crime related activities (a prescribed respondent)–

(i)        stated property …”

1. Section 16, appearing in Pt II “Interpretation” of the Confiscation Act, attributes the following meaning to “serious crime related activity”:

“(1)Anything done by a person that was, when it was done, a serious criminal offence, is a serious crime related activity.”

That provision applies whether or not the person has been charged with the offence.

1. Section 17 defines a “serious criminal offence”, amongst other things, as an offence under the law of the Commonwealth, or a place outside Queensland (including outside Australia), that if committed in Queensland would be an indictable offence for which the maximum penalty is at least five years imprisonment.

1. An application for a restraining order must be supported by an affidavit of an authorised officer of the CMC or police officer.[13]  That officer must state that they relevantly suspect that “the prescribed respondent” has engaged in one or more serious crime related activities and give reasons for their suspicion.[14]

   [13]Confiscation Act, s 28(2).

   [14]Confiscation Act, s 29(1)(a).

1. The Supreme Court is required to make a restraining order in relation to property if, after considering the application and the affidavit, “it is satisfied there are reasonable grounds for the suspicion on which the application is based”.[15]

   [15]Confiscation Act, s 31(1).

Forfeiture order

1. Part IV of the Confiscation Act relates to forfeiture orders.  The State may apply to the Supreme Court for a forfeiture order over particular property restrained under a restraining order.[16] By s 58(1), the court is required to make such an order:

“… if the court finds it more probable than not that –

(a)…the prescribed respondent mentioned in that application engaged during the limitation period in a serious crime related activity …”

By s 58(9) the limitation period is the period of six years before the day the application for the order was made.

[16]Confiscation Act, s 56.

1. On the making of a forfeiture order, the property the subject of the order is forfeited to the State and vests absolutely in it.[17]

   [17]Confiscation Act, s 59(1).

1. A court may refuse to make the order if it is satisfied that it is not in the public interest to do so.[18]  The failure of the primary judge to decline to make the order for that reason constitutes Ground 5 of the appellant’s Grounds of Appeal.

   [18]Confiscation Act, s 58(4).

Exclusion order

1. Subdivision 4 of Pt 4 of the Confiscation Act concerns the exclusion of property from forfeiture by an exclusion order.  Where an application for a forfeiture order has been made but not determined, a person (including a prescribed respondent) who claims an interest in property to which the application relates may apply to the Supreme Court for an exclusion order.[19]  If the State proposes to oppose the application it must give the applicant notice of both its intention to do so and the grounds upon which it intends to rely.[20] 

   [19]Confiscation Act, s 65(2).

   [20]Confiscation Act, s 65(6) and s 65(7).

1. By s 68(2) the Supreme Court:

“… must, and may only, make an exclusion order if it is satisfied –

(a)the applicant has or, apart from the forfeiture, would have, an interest in the property; and

(b)it is more probable than not that the property to which the application relates is not illegally acquired property.”

1. The meaning of “illegally acquired property” is set out in s 22. It provides:

“(1)Property is illegally acquired property if it is all or part of the proceeds of an illegal activity.

(2)Property is also illegally acquired property if –

(a)it is all or part of the proceeds of dealing with illegally acquired property; or

(b)all or part of it was acquired using illegally acquired property.

(3)For subsection (2), it does not matter whether the property dealt with or used in the acquisition became illegally acquired property because of subsection (1) or subsection (2).

(4)Subsections (1) and (2) apply whether or not the activity, dealing or acquisition because of which the property became illegally acquired property happened before the commencement of this section.

(5)Also, if the proceeds of dealing with illegally acquired property are credited to or placed in an account, the proceeds do not lose their identity as proceeds because they are credited to or placed in an account.”

1. The expression “illegal activity” in s 22(1) is defined in s 15 as an activity that is a serious crime related activity; an act or omission that is an offence against the law of Queensland or the Commonwealth; or an act or omission committed outside Queensland that is an offence against the law of the place in which it is committed and would be an offence mentioned in (b) if committed in Queensland.

1. “Proceeds in relation to an activity” is defined to include property and other benefit derived because of the activity either by the person who engaged in the activity or by another person at the direction or request (whether direct or indirect) of the person who engaged in the activity.[21]

   [21]Confiscation Act, s 18.

Nature of proceedings

1. Section 8 of the Confiscation Act describes the nature of proceedings under the Act.  By subsection (2) such a proceeding is not a criminal proceeding.  Questions of fact must be decided “on the balance of probabilities”.[22]  The rules of evidence applying to civil proceedings apply to the proceeding.[23]  The rules of construction applying only to the criminal law do not apply to the interpretation of the Confiscation Act for the proceeding.[24]  The Uniform Civil Procedure Rules 1999 (Qld), to the extent that they are not inconsistent with the Confiscation Act, apply to the proceeding.  Orders under the Act restraining or forfeiting property are not punishment for any offence.[25]

   [22]Confiscation Act, s 8(3).

   [23]Confiscation Act, s 8(4).

   [24]Confiscation Act, s 8(5).

   [25]Confiscation Act, s 9.

The evidence below

1. Mr Henderson and his two brothers, Frank and Joseph, and their sister, Ms Murphy, gave evidence about the provenance of the jewellery.  They broadly agreed that they had been told by their parents that the jewellery was given to an ancestor at some time in the past for services rendered, but there were considerable differences in the detail of their accounts.  To test the correctness of that story the age of the jewellery assumed significance. 

Mr Komianos

1. Mr Komianos was not available to give his opinion of the age of the jewellery.  Three medical certificates about Mr Komianos were tendered by Mr Henderson.  The effect was that Mr Komianos was unfit to give evidence by virtue of multiple medical conditions, including cognitive deficits, and because he was an alcoholic.  A medical practitioner in Victoria wrote that Mr Komianos became mentally unfit “a few years ago” and developed chronic brain damage “a while ago”.[26]

   [26]AR 1476.

Mr Penfold

1. The State called Mr Kenneth Penfold, a registered valuer and jeweller operating his business in Brisbane, to give his opinion of the age of the jewellery based on Mr Komianos’ sketch.  On the basis that the sketch related to actual jewellery, Mr Penfold concluded that all of the items of jewellery were relatively modern and post-1950.  He noted that Mr Komianos was not, and never had been, a registered valuer. 

1. Mr Penfold considered the markings on the jewellery as sketched.  The hallmarks that they represented, he concluded, were typical of European, Asian or American manufacture but not specific to any of them.  He observed that older European jewellery and Russian jewellery would have had a different hallmark – the mark “750”.  He considered that the designs of the jewellery shown in the sketch were not consistent with Russian styles of the early twentieth or late nineteenth century.  He said, for example, of the drawing of a pendant:

“Well, you’ve got a stone that’s hanging from a straight simple bail.  Now, if it was over 100 year [sic] old, whether it be Russian or German or English or American, it doesn’t matter what it would be, for a start the bail would be more embellished.”[27]

Mr Penfold explained that the bail was where the chain slid through the pendant.

[27]AR 109.

Joseph Marijancevic

1. Joseph gave evidence that in about 1996 or 1997 his brother told him that their father had given him jewellery to hold for himself and his siblings.  He said he knew the jewellery was very valuable as he had been told by his parents about the jewellery “which had been passed down from my great grandfather who had received it as a reward when he performed transportation services for Russian royalty.”[28]  In cross-examination Joseph said that, in fact, he thought that the jewellery had been passed to his great-grandfather from his father for assisting Russian nobility by transporting them across borders in around the 1900s or late-1800s. 

   [28]Affidavit of Joseph Marijancevic sworn April 2010, AR 1028.

1. He saw the jewellery for the first time when it was shown to him by Mr Henderson a year or two after their father had died.  Joseph was unable to recall exactly when his father died and he did not attend his funeral because they were estranged.  Joseph recalled that after his father’s death the four siblings met at Mr Henderson’s house, although he was uncertain when, and decided that the jewellery should be valued and sold.  After Mr Henderson had told him that the jewellery had been sold for $620,000 in cash, Joseph organised a meeting amongst the family at Mr Henderson’s house to discuss what should be done with the money.  It was decided that it should be invested in the Queensland property market.  Joseph claimed an entitlement to one-quarter of the money. 

Frank Marijancevic

1. Frank gave evidence that in or about 1996 or 1997 Mr Henderson told him that their father had given him jewellery and described it to him.  He was told by Mr Henderson that he was holding it for Mr Henderson, Frank, Joseph and Ms Murphy.  Frank said that he was aware from accounts given to him by his parents that the jewellery was very valuable and had been in his father’s family for decades.  He said he was told that the jewellery came into the possession of his great-grandfather for a service he performed for members of the Russian royal family.  Like Joseph, he first saw the jewellery some time after his father died at a meeting at “John’s house” where they decided to have the jewellery valued and sold.  Mr Henderson told him in late 2001 that he had sold the jewellery for $620,000 paid in cash.  At a subsequent meeting the siblings decided that Mr Henderson should invest the cash in property in Queensland.  He was advised in April 2002 that Cairns police had seized the cash and, like Joseph, that almost $30,000 had been “stolen”. 

1. In cross-examination Frank recalled that the jewellery was often mentioned in conversation when his parents were alive but that he had never seen it until Mr Henderson showed it to him after their parents had died.  He thought it looked like old junk jewellery when he saw it at Mr Henderson’s house.

Dianne Murphy

1. Ms Murphy, Mr Henderson’s sister, gave almost identical evidence in her affidavit to her brother Frank.  She was particularly vague in her recollection about the meeting between the siblings and any details of the provenance of the jewellery beyond what she had deposed to.  She said she knew that the jewellery was very valuable because it looked valuable, the diamonds were very big and it looked very expensive.[29]  After the money had been seized by Cairns police she said she became bitter and estranged from Mr Henderson.

   [29]AR 179.

Other evidence

1. There was a considerable body of evidence adduced by the State about the investigations including relating to safety deposit boxes mentioned by Mr Henderson and other matters which need not be elaborated.  It was not challenged.

Findings below

(i)          Was Mr Henderson a prescribed respondent?

1. The primary judge concluded that Mr Henderson was a prescribed respondent within the meaning of the Confiscation Act.  His Honour noted that there had been no suggestion that Mr Henderson’s criminal history was not “probative of the conduct constituting the offences recorded in it”.[30]  Of Mr Henderson’s criminal history his Honour said:

   [30]AR 1522, reasons [33].

“[32]Mr Henderson has a criminal history in both Queensland and Victoria.  In Queensland, it extends back to 1980.  In Victoria, excluding convictions as a minor, it extends back to 1974.  Some offences are drug related.  Some involve violence.  A number are property related, including theft, burglary, and receiving stolen property.  The list of offences is lengthy …

[34]Mr Henderson’s Victorian criminal history shows that, on 5 March 1999, he was convicted on a charge of recklessly causing injury to a person without lawful excuse.  He was sentenced to 21 days imprisonment.  The offence was committed on 4 June 1997.  On 18 June 2001, Mr Henderson was convicted of an offence described as “THEFT – FROM SHOP (SHOPSTEAL)”, an offence committed on 22 October 1999.  For this he was fined $200.  On 4 April 2002, Mr Henderson was convicted of a charge of possession of cannabis, resulting in a fine of $600.  The offence was committed on 20 February 2001.  On 6 September 2002, Mr Henderson was convicted of the offence of going equipped to steal or cheat, resulting in a sentence of four months imprisonment, wholly suspended.  The offence was committed on 3 November 2001.  On 6 September 2002, Mr Henderson was also convicted of a charge of intentionally damaging property, and was ordered to pay $650 compensation.  A sentence of two months imprisonment was imposed, suspended for 18 months.  That offence was also committed on 3 November 2001.

[35]It should be mentioned that property related offences of which Mr Henderson was convicted in 1997 and 1998 resulted in the imposition of prison sentences, the longest being two years and nine months.  It is not clear when any of these offences was [sic] committed, and in particular, whether any was committed after 4 March 1997.” [31]

The 4 March 1997 date being the day before the commencement of the six year prescribed limitation period.[32]

[31]AR 1522.

[32]AR 1522, reasons [36].

1. After discussing the relevant legislation his Honour continued:

“[43]“The offences which have been mentioned so far were all committed in Victoria.  However, on 20 April 2002, 23.3 grams of cannabis was found in Mr Henderson’s blue sports bag …”[33]

[33]AR 1523, reasons [43].

1. The criminal histories of Mr Henderson’s siblings were tendered.  As his Honour found, they all had some criminal convictions including convictions for property related offences.  Although not mentioned by the primary judge, Mr Komianos has a criminal history for weapons offences and minor drug offences.

1. None of these findings were challenged.

(ii)         Did Mr Henderson discharge his onus of proving that the jewellery was not illegally obtained?

1. The primary judge concluded that notwithstanding the limited nature of the information available to Mr Penfold, his opinion as to the probable age of the jewellery depicted in the sketches should be accepted.

1. His Honour noted that no objection was taken to the account of the provenance of the jewellery by Mr Henderson and his siblings on the ground of hearsay.  The issue was whether that account could be true.  His Honour concluded:

“On Joseph’s evidence, the jewellery had to be manufactured prior to 1920.  This would be consistent with the making of the gift to the great grandfather of Mr Henderson, his brothers and sister.  There was no evidence as to the date of the birth or death of this person; but since Mr Marijancevic was born in 1923, there great grandfather is likely to have been an adult at least by 1900.”[34]

His Honour continued:

“Assuming the truth of the evidence of Mr Henderson, his brothers and his sister that they were given an account by their parents of the provenance of the jewellery, that account cannot be true.”[35]

[34]AR 1525, reasons [52].

[35]AR 1525, reasons [53].

1. The primary judge accepted the evidence of Mr Komianos that in December 2001 Mr Henderson produced to him the jewellery depicted in the sketch which he then valued.

1. The State had challenged whether the money seized was the proceeds of the sale of the jewellery, noting that the only evidence to that effect came from Mr Henderson.  His Honour was mindful of the need to treat Mr Henderson’s evidence with suspicion but nonetheless observed:

“However, I note that the amount of cash seized in April 2002 is broadly consistent with the valuation provided by Mr Komianos and Mr Henderson’s evidence about the sale.  The evidence does not identify any other potential source of the funds.”[36]

His Honour concluded that the nature of Mr Henderson’s criminal activity identified in his criminal history was of the kind that was easy to detect and not likely to enable him to aggregate some $600,000 in cash.  Hs Honour concluded:

“On balance, therefore, I accept that the money seized in April 2002 was the product of the sale of the jewellery valued by Mr Komianos.”[37]

[36]AR 1526, reasons [57].

[37]AR 1526, reasons [57].

1. His Honour concluded further:

“Similarly, I am prepared to accept that the jewellery was given to Mr Henderson by his father, and shown by him to his brothers and his sister shortly after his father’s death.  There is corroboration of Mr Henderson’s evidence to this effect, from the evidence of his brothers and his sister.”[38]

His Honour continued:

“There was a submission that the evidence of Joseph, Frank and Ms Murphy should be rejected because they have an interest in the proceedings; but the only identified interest is that shown by the evidence which is challenged, namely, that the jewellery was given by Mr Marijancevic to Mr Henderson for the benefit of the four of them.  The other criticisms of their evidence, and the concerns about its reliability because of their criminal convictions, obviously cast some doubt on this explanation for the source of the jewellery; but again, there was no better explanation.”[39]

[38]AR 1526, reasons [58].

[39]AR 1526, reasons [58].

1. Others might have reached a different conclusion, but this was very much the province of the primary judge.  The State does not argue that the evidence did not allow him to reach this conclusion.  His Honour concluded: 

“Since Mr Henderson has been unable to establish how Mr Marijancevic came into possession of the jewellery, and consequently that the jewellery was not illegally acquired property, it follows that the property the subject of the exclusion application has not been shown on the balance of probabilities not to be illegally acquired property, and the exclusion order sought by Mr Henderson cannot be made.”[40]

The application for an exclusion order was refused.

[40]AR 1527, reasons [61].

1. His Honour noted the interests of Joseph, Frank and Ms Murphy and that they were content for Mr Henderson to represent these interests.  He also noted that no submissions were made on Mr Henderson’s behalf that it would not be in the public interest to make the forfeiture order and it was thus unnecessary to consider that question.  His Honour expressed some concern that because Mr Henderson was unable to discharge the onus of proof and because the true provenance of the property could not be obtained, it was liable to confiscation. 

1. The forfeiture order was made.

Ground 1

1. Mr Henderson contends that the primary judge erred in granting the State’s applications to amend the restraining order and the application for forfeiture, or in failing to treat those applications as if they were fresh applications.  This was because the character of the amendments amounted to a new restraining order application and a new forfeiture order application.

1. It was common ground between the parties that if the State’s application were to be characterised as a new application for a restraining order it would be caught by the six year limitation period, because it could not be demonstrated that Mr Henderson had engaged in serious crime related activity during that period (he was, mostly, in prison). 

1. It was also uncontentious that while bank notes themselves are characterised as a chose in possession, once deposited in a bank account, those notes change their character and become a chose in action.  That is, the right to recover from the bank the balance standing to the depositor’s creditor in an account with the bank at the date of demand.[41]  That right would not be Mr Henderson’s right.

   [41]Croton v The Queen [1967] HCA 48; (1967) 117 CLR 326 per Barwick CJ at 330-331.

Discussion

1. A restraining order in respect of property may relate to “stated property”.[42]  The Confiscation Act provides additional meanings for “property”[43] to those given by s 36 of the Acts Interpretation Act 1954 (Qld). Those additional meanings are of no assistance here including, as they do, interests in licences and goodwill and the like. The Acts Interpretation Act defines “property” as:

“…any legal or equitable estate or interest (whether present or future, vested or contingent, or tangible or intangible) in real or personal property of any description (including money), and includes things in action.”[44]

[42]Confiscation Act, s 28(3)(a)(i).

[43]Confiscation Act, s 19.

[44]Acts Interpretation Act, s 36.

1. As the State submits in supplementary submissions, until the money was seized by the police pursuant to the Police Powers and Responsibilities Act 2000 (Qld) Mr Henderson had the right of a person in possession to the money. If he were lawfully entitled to its possession then he could seek to recover it by an action for trespass to goods from police. When the money was banked in the Queensland Police Service Collections Account, police acquired a chose in action but Mr Henderson continued to have a right to recover the money from police.

1. Mr Henderson argued that once the money was deposited in the bank account it was no longer possible to make a restraining order in respect of the Australian currency for it ceased to exist as “property”.  The State contended that it was not the notes which constituted the restrained property but the Australian currency to that value. 

1. There is an important distinction between corporeal money (coins and bank notes) and incorporeal money – essentially debt claims.[45]  The position argued for Mr Henderson is that the reference to “$598,325 cash in Australian currency” was a description of corporeal money and the “variation” was to substitute entirely different property – incorporeal money.  Furthermore, because the corporeal money had been mingled with the Commonwealth Bank’s money it had ceased to exist as identifiable property.

   [45]David Fox, Property Rights in Money, Oxford University Press (2008) at 2.

1. Money is defined, commonly, according to its economic functions as “a medium of exchange, a unit of account, and a store of economic value”.[46]  It may readily be concluded that the cash seized from Mr Henderson was of this character.  The use of the descriptor “currency” in the original restraining order was a description of the medium of exchange circulating in Australia.[47]

   [46]Fox, op cit, referring to JM Keynes A Treatise on Money (London 1936) at 6.

   [47]It is unnecessary to analyse the status of Australian bank notes provided for in the Reserve Bank Act 1959 (Cth) or the Currency Act 1965 (Cth).

1. In Sinclair v Brougham[48] Viscount Haldane LC observed:[49]

“In most cases money cannot be followed.  When sovereigns or bank notes are paid over as currency, so far as the payer is concerned, they cease ipso facto to be the subjects of specific title as chattels.  If a sovereign or bank note be offered in payment it is, under ordinary circumstances, no part of the duty of the person receiving it to inquire into title.  The reason of this is that chattels of such a kind form part of what the law recognizes as currency, and treats as passing from hand to hand in point, not merely of possession, but of property.  It would cause great inconvenience to commerce if in this class of chattel an exception were not made to the general requirement of the law as to title.”

[48][1914] AC 398.

[49]At 418.

1. Although the concept of “money” can be elusive, the meaning of the order is not.  The words are sufficient to describe Australian notes (and/or coins) having that total value, rather than the specific notes seized which, when their face value was added together, would amount to the sum described.  If there were any ambiguity in the short form of words used in the order, the supporting affidavit made clear the intent of the order sought.

1. It follows that his Honour did not err in varying the original restraining order and the terms of the application for a forfeiture order.

1. Ground 1 is not made out.

Ground 2 – standard of proof

1. Ground 2 is in these terms:

“The learned trial judge erred in applying the wrong standard of proof, or the wrong statutory test, to the question whether the jewellery was not illegally acquired property.”

Mr Henderson contends that the standard of proof which obtains in s 68(2) of the Confiscation Act is of a lower threshold than the standard of proof provided for in s 8(3), that is: “Questions of fact in the proceeding must be decided on the balance of probabilities.”

1. This is, so the argument proceeds, because s 68(2) provides for a composite standard. The section has already been set out, but it is worthwhile to do it again:

“The Supreme Court must, and may only, make an exclusion order if it is satisfied –

(a)the applicant has or, apart from the forfeiture, would have, an interest in the property; and

(b)it is more probable than not that the property to which the application relates is not illegally acquired property.”

Mr Henderson contends that this means that a judge hearing an exclusion application:

“…must be satisfied on the balance of probabilities that it is more probable than not that the property to which the exclusion application related is not illegally acquired property.”[50]

[50]Outline of submissions, para 23.

1. The contention is that by the employment of “two” standards of proof – “satisfied” and “more probable than not” – a lesser threshold of proof obtains than being satisfied on the balance of probabilities that a state of affairs exists.  As a consequence, Mr Henderson contends, either the primary judge failed to appreciate this subtle distinction or, having done so, failed to apply it.  If this error had not occurred, having accepted much of Mr Henderson’s evidence and that of his witnesses and, in the absence of any evidence that his father had unlawfully acquired the property as well as the limitations in Mr Penfold’s evidence, “he could not have failed to be satisfied on the balance of probabilities that it was more probable than not that the jewellery was not illegally acquired”.

Discussion

1. There are two things to say about this contention.  In Australian law, subject to statute, there are two standards of proof, the criminal and the civil.[51]  In Briginshaw Dixon J quoted Wigmore as stating the rule for civil cases:

“… Professor Wigmore says: – “In civil cases it should be enough to say that the extreme caution and the unusual positiveness of persuasion required in criminal cases do not obtain.  But it is customary to go further, and here also to attempt to define in words the quality of persuasion necessary.  It is said to be that state of mind in which there is felt to be a ‘preponderance of evidence’ in favour of the demandant’s proposition.  Here, too, moreover, this simple and suggestive phrase has not been allowed to suffice; and in many precedents sundry other phrases – ‘satisfied,’ ‘convinced,’ and the like – have been put forward as equivalents, and their propriety as a form of words discussed and sanctioned or disapproved, with much waste of judicial effort” (Wigmore on Evidence, 2nd ed. (1923), vol v., sec 2498). … The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found.  It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality”[52]

[51]Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 361; Cross on Evidence, Australian Edition, DM Byrne and JD Heydon at [9085].

[52]At 361.

1. The second is an aspect of the first. Inherent in Mr Henderson’s contention that a “third” standard of persuasion is to be found in s 68(2) is the statutory presumption that there are no superfluous words in a statute and that work must be found for all of them. That is, that both “satisfied”, which means “on the balance of probabilities, and “it is more probable than not” must be given their full meaning. In Project Blue Sky Inc v Australian Broadcasting Authority[53] the plurality observed:  “Furthermore, a court construing a statutory provision must strive to give meaning to every word of the provision.”[54]  Their Honours also referred to observations of Mason CJ in Chu Kheng Lim v Minister for Immigration Local Government and Ethnic Affairs.[55] His Honour said that the presumption was “of limited application”.[56]

   [53][1998] HCA 28; (1998) 194 CLR 355 at 382[71].

   [54]At 382[71].

   [55][1992] HCA 64; (1992) 176 CLR 1.

   [56]At 13.

1. It is consistent with principle and a sensible reading of s 68(2), keeping in mind governing s 8(3), and informed by the authorities, that a judge, hearing an exclusion application, must be persuaded by the proponent that it is more probable than not that the property to which the exclusion application related was not illegally acquired property. Read that way there can be no error in his Honour’s conclusion. As the learned authors of Cross comment:

“… the judge is not bound always to make a finding one way or the other.  The judge can, and in appropriate cases should, decide on the basis that the party bearing the burden of proof has failed to discharge it.”[57]

[57]Cross on Evidence at [9015].

1. There was no error in his Honour’s approach to the standard of proof.  This ground is not made out.

Ground 3 – a manifestly wrong decision on the exclusion application

1. Ground 3 is in these terms:

“In all the circumstances – including the learned judge’s acceptance of the evidence of the appellant and his siblings, the absence of any evidence that the appellant’s father had unlawfully acquired the jewellery and the inherent limitations in the evidence of Kenneth Penfold – it was not open to fail to be satisfied on the balance of probabilities that it was more probable than not that the jewellery was not illegally acquired.”

1. Mr Henderson, in effect, reverses the onus of proof in submitting that, in the absence of any evidence that Mr Henderson’s father had unlawfully acquired the jewellery (as well as the limitations in the evidence of Mr Penfold), it was not open to the judge to fail to be satisfied to the requisite standard.[58]

   [58]Appellant’s outline of submissions para 33.

1. The submission focuses on Mr Penfold’s evidence and the limitations under which he operated in reaching his opinion evidence.  The contention is that it was not open to the primary judge to accept that opinion evidence.  It is said that Mr Penfold did not see the jewellery but only sketches.  And, that while he opined that the jewellery was made post-1950, he conceded that “it could be somewhat older”.  The State points to the context in which Mr Penfold said that about the age of the jewellery.  The following exchange occurred in cross-examination:

“There’s nothing in the drawing to say what the age is? – Not really, but you can go by the basic description of the way that the setting is drawn for the earring and that’s a relatively recent style of design.

Could it be the case it could be older than relatively recently?  Could it be 50, 100 years old? – I doubt it.

What if it is from another country, say some European country or America, for example? – Well, it would generally be done slightly different to that.  When I say, “Slightly different”, depending what period the setting would be more ornate.  That sort of style of setting there is only last 40 or 50 years maximum.  That’s my opinion.

So it is the case that it could be somewhat older, but in your opinion you say it is 40 or 50 years? -- Yes.”[59]

As can be seen, there is no concession that the jewellery could be “somewhat older”.

[59]AR 109 at 10-26.

1. The other alleged weakness in Mr Penfold’s evidence was his opinion that the jewellery could have been from Europe, Africa or the United States “[a]nywhere bar the Commonwealth”.[60]  This was evidence given in explanation of the carat marks on the jewellery.  The letter “K” was on the sketches (as being on the jewellery) and not “CT” which was a Commonwealth designation.  This takes the age of the jewellery no further.

   [60]AR 111 at 24.

1. To the extent that Mr Henderson argues that “[t]here was no evidence that Mr Komianos would have included features in his sketches that might have given a greater clue to the age of the jewellery”,[61] that reverses the onus of proof.  It was for Mr Henderson to advance evidence which allowed the inference to be drawn that the jewellery derived from an era when the jewellery had allegedly come into the family.

   [61]Appellant’s Outline of Submissions, para 35.

1. Mr Henderson contends that even if what he and his brothers and sister were told was not accurate there was no reason to fail to be satisfied on the balance of probabilities that the jewellery was not illegally acquired:

“Their parents may have been told the same stories.  Families often have legends or stories that are less than accurate, that grow with time or in the telling.”[62]

That may well so, but it was for Mr Henderson to persuade his Honour that his father had not unlawfully acquired the jewellery.  The primary judge was quite entitled to conclude that Mr Henderson had not discharged that onus.

[62]Appellant’s Outline of Submissions, para 43.

Ground 5 – the public interest

1. In Ground 5 the appellant contents that the primary judge erred in failing to apply s 58(4) of the Confiscation Act to refuse to make the forfeiture order on the basis that it was not in the public interest to do so. 

1. As is acknowledged by the appellant, when the issue of s 58(4) was raised by the primary judge, defence counsel eschewed any reliance upon it and made no submissions. Mr Henderson now submits that “having reached the conclusions that he did, it was incumbent on the learned judge to invite the parties to make submissions on whether s 58(4) was engaged”. The conclusions to which Mr Henderson refers are the following observations made by the primary judge toward the end of his judgment:

“No submissions were made on Mr Henderson’s behalf that it would not be in the public interest to make the forfeiture order. It is accordingly unnecessary to consider this question. However, it would appear to be anomalous that property may be confiscated, because the ultimate origin of the property is beyond the knowledge of, and means of proof available to, a prescribed respondent. Such a case would appear to be well outside the intended scope of the legislation, as identified in s 13(1) and s 13(4) of the Confiscation Act.”[63]

[63]AR 1527, reasons [65].

1. The submission is that not having addressed the public interest his Honour fell into error.  The public interest identified by Mr Henderson is failing to make an exclusion order when the primary judge was persuaded that the jewellery had been in Mr Henderson’s family, at least since he was a boy, and had been passed down to Mr Henderson’s father and that there was no suggestion that it was illegally acquired property.  That submission misstates the findings.  His Honour went no further than to find that the jewellery was given to Mr Henderson by his father and that he and his brothers and sister had been told, variously, how it had come into the family.  His Honour did not find that that was a true account of its origins. 

1. The contention that it would not be in the public interest to make a forfeiture order, once the want of illegality on the part of Mr Henderson and his siblings had been accepted, is said to be supported by the objects of the Confiscation Act, namely:  “…to remove the financial gain and increase the financial loss associated with illegal activity …”;[64] and “to protect property honestly acquired by persons innocent of illegal activity from forfeiture …”.[65] At the heart of this submission is the assertion that, in fact, the jewellery was not illegally obtained property. This was the very issue on which Mr Henderson failed. The relevant public interest is not about fairness or how difficult it might be to obtain sufficient evidence to discharge the evidentiary burden in s 68(2). It is as expressed in the objects.[66]  And, to give effect to those objects a person such as Mr Henderson, who falls within the jurisdiction of the legislation because he is a prescribed respondent, is required to satisfy the court that the property was not obtained through illegal activity.

   [64]Confiscation Act, s 4(1).

   [65]Confiscation Act, s 4(2)(b).

   [66]For a discussion of the purposes of relevantly similar legislation see International Finance Trust Co Ltd v NSW Crime Commission [2009] HCA 49; (2009) 240 CLR 319; at [81] and following, at 361 and following.

1. This ground has not been made out.

Conclusion

1. The appeal should be dismissed with costs.

Orders

1. I would order that the appeal be dismissed with costs.

1. DAUBNEY J: I respectfully agree with White JA.