In the matter of an application under the Confiscation of
[2024] ACTSC 331
•28 August 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | In the matter of an application under the Confiscation of Criminal Assets Act 2003 (ACT) |
Citation: | [2024] ACTSC 331 |
Hearing Date: | 27 – 28 August 2024 |
Decision Date: | 28 August 2024 |
Before: | Berman AJ |
Decision: | (1) Orders are made in accordance with the General Form of Order dated 28 August 2024. |
Catchwords: | CIVIL LAW – CONFISCATION OF CRIMINAL ASSETS – Application for restraining order – commercial cultivation, trafficking and possession of cannabis – automatic forfeiture – whether informations laid pursuant to s 29(1)(a) of the Confiscation of Criminal Assets Act 2003 – where charges not orally read – Court exercising jurisdiction over defendants amounts to laying of informations – reasonable belief that informations have been laid |
Legislation Cited: | Confiscation of Criminal Assets Act 2003 (ACT) ss 13, 22, 26, 27, 29, 31, 33, 39, 243 |
Cases Cited: | Director of Public Prosecutions v Tomas [2015] ACTSC 233 |
Parties: | Director of Public Prosecutions ( Plaintiff) ODU (First Defendant) BUC (Second Defendant) BCQ (Third Defendant) Pepper Finance Corporation Limited Macquarie Bank Limited |
Representation: | Counsel R McCrone ( Plaintiff) None (ex parte) ( Defendant) |
| Solicitors ACT Director of Public Prosecutions ( Plaintiff) | |
File Number: | SC 289 of 2024 |
BERMAN AJ:
Introduction
1․On 22 August 2024, police executed search warrants at premises in Fraser and Flynn in the Australian Capital Territory (ACT). In both premises they discovered a large number of growing cannabis plants. Two men have been arrested by police on charges of commercial cultivation, commercial trafficking and possession offences in relation to those plants. The Director of Public Prosecutions (DPP) now makes an ex parte application for restraining orders under s 31 and related orders under s 39 of the Confiscation of Criminal Assets Act 2003 (ACT) (the Act) in relation to the premises used by the defendants to grow the cannabis.
2․There are five defendants to the application dated 26 August 2024. The first two defendants are the two men who have been arrested. The third defendant is the owner of both premises and the fourth and fifth defendants hold registered mortgages over the property. The stated property (see s 26(1) of the Act) is the third defendant's interests in the Crown leases over both premises. The plaintiff relies on an affidavit of an Australian Federal Police (AFP) officer, Claire Lawler, affirmed on 26 August 2024.
3․Written submissions were provided by the plaintiff which were supplemented by oral submissions yesterday. Those submissions were made in a closed court (s 243(5) of the Act). There is some urgency to this application and some urgency for me delivering the judgment. There has been material tendered today which has demonstrated that publicity has been given to discovery of the cannabis cultivations and there is a risk that the third defendant will do something with the property, the subject of this application, which may frustrate the ability of the prosecuting authorities to seize those assets.
Reasons
4․The application relates to serious offences as defined in s 13 of the Act, alleged to have been committed by the first and second defendants on 2 August 2024. The orders sought by the plaintiff are for a purpose contained in s 22, namely for automatic forfeiture. The Court's power to make the restraining order sought is found in s 31(2) of the Act. The power is not discretionary, though the Court must only make an order if it is satisfied that:
(a)the application meets the requirements of s 26(2) of the Act;
(b)the application is made within the time prescribed by s 27 of the Act; and
(c)the affidavit in support of the application meets the requirements of s 29 of the Act.
5․Section 26(2) provides that the application must state the offence to which the application relates when the offences are alleged to have been committed, the person who is alleged to have committed the offence, the person whose property the application relates to, the property sought to be restrained, including whether it is the property of the offender or someone else, and whether the application is for an artistic profits restraining order.
6․The offences to which the application relates are set out in the application at ground 1. They are for each of the first two defendants to this application, cultivating a commercial quantity of a controlled plant; trafficking in a commercial quantity of a controlled drug; and possessing plant, material, equipment or instructions for cultivating controlled plants (s 26(2)(a) of the Act). The application states that the offences are alleged to have occurred on 22 August 2024 (s 26(2)(b) of the Act). The application identifies the first and second defendants, the person alleged to have committed the offences (s 26(2)(c) of the Act). The application identifies the third defendant as the person to whom the property relates (s 26(2)(d) of the Act). The application states the property sought to be restrained is the property of the third defendant (s 26(2)(e) of the Act). The application makes plain that the application is not for an artistic profit restraining order (s 26(2)(f) of the Act).
7․Section 27(3)(a) has the effect that if an indictment is being presented against the first and second defendants and they have not been convicted or cleared of the offences, this application must be made within two years after the date the indictment was presented. I can ignore s 27(3)(b) because the first and second defendants have not been convicted of the offences. Section 27(3)(c) has the effect that, if an indictment has not yet been presented against the first and second defendants, the application must be made within six years after the date the offence was committed.
8․Whether s 27(3)(a) applies or s 27(3)(c) applies depends on whether an indictment has been presented against the first and second defendants. By reason of the Legislation Act 2001 (ACT), the presentation of the indictment includes the laying of an information. I will come back to this matter shortly, but I simply note at this stage that whether s 27(3)(c) applies, this matter is made within the time limit, whether it be six years or two years.
9․Pursuant to s 31(2)(a) of the Act, the Court must make a restraining order if the Court is satisfied that there are reasonable grounds for AFP Officer Claire Lawler's beliefs and suspicions stated in her supporting affidavit. Section 31(2) of the Act does not require the Court to be satisfied about particular stated facts, but that the grounds for the beliefs and suspicions held by the officer are reasonable. The officer's relevant belief or suspicion may be based upon information that is hearsay evidence and there is no requirement for the officer to disclose the ultimate source of the information. However, according to the facts and exigencies of the matter, the sufficient disclosure sources may be relevant to the Court's assessment under s 31(2) of the Act.
10․Section 29(1)(a) requires that the officer believes that an information has been laid against the first and second defendants in the Magistrates Court of the Australian Capital Territory. Annexed to her affidavit are appropriate bench sheets. They reveal that the first and second defendants appeared before a magistrate on 23 August 2024, but that they were not charged on that occasion as there was no interpreter. Thus, the facts of this case are different to those before McCallum CJ in Director of Public Prosecution v WG(a pseudonym) [2022] ACTSC 266 (DPP v WG). In that case, her Honour satisfied herself that the alleged offenders had in fact been charged with offences in respect of which informations were put before the Magistrates Court (see at [12]). This was because her Honour construed s 29(1)(a):
… where the term 'indictment' is to be read to mean information, there should nonetheless be proof that the relevant information has come to the attention of the defendant as would occur when an indictment is presented.
11․Her Honour came to this conclusion because:
… the consequences that flow for a defendant upon the making of restraining order are draconian and there should be a strict construction of the legislation for that reason so as to protect the interests of persons who might not even be aware of the Director's proceedings.
12․Mr McCrone, who appeared for the plaintiff, invited me to disagree with her Honour, submitting that she was wrong. Mr McCrone repeatedly emphasised that he meant no criticism of her Honour in the circumstances in which her Honour dealt with the matter.
13․There are some points of distinction between the facts in DPP v WG and the present. In the case before her Honour, the alleged offenders were registered proprietors of a property, thus bringing the relevant charges to the attention of the alleged offenders also brought them to the attention of people who had an interest in the property, the subject of the restraining orders. They were the same people. In this case, however, bringing the relevant charges to the attention of the alleged offenders, the first and second defendants, does not bring them to the attention of the third defendant.
14․There are other circumstances of distinction between the case before me and the case before McCallum CJ. In DPP vWG, the defendants had been before the Magistrates Court and were orally charged. In the case before me, the first and second defendants have also appeared before the Magistrates Court but have not been charged. Annexed to the affidavit are the bench sheets which reveal that both the first and second defendants appeared before a magistrate on 23 August 2024, but that they were not charged because no interpreter was present.
15․The question as to whether the s 29(1)(a) requirements have been satisfied was the subject of submissions both yesterday and today. I was greatly helped by the written submissions prepared by Mr McCrone overnight. I am not prepared to find that McCallum CJ was wrong, but I am prepared to find that her Honour's decision is not of application in the unusual circumstances of this case where a defendant appears before the Magistrates Court and where the Court exercised its jurisdiction over that person, although the charge is not orally read to that person because, as in this case, no interpreter was present.
16․Mr McCrone makes the point that I am not deciding whether informations have been laid against the first two defendants, but whether the officer has a reasonable belief that informations have been laid. In circumstances where the officer can have been expected to have familiarised herself with what happened in the Magistrates Court, that distinction is not of much importance. It will not be a reasonable belief for the officer to believe that informations had been laid where a perusal of the court record showed that they had not.
17․McCallum CJ decided that orally charging defendants in the Magistrates Court was enough to prove that an information had been laid. I do not understand her Honour's decision to say that orally charging a defendant in the Magistrates Court is the only way of proving that an information has been laid. The requirement that an information has been laid is one which seeks to ensure that the Magistrates Court has exercised its jurisdiction over the first two defendants.
18․In the unusual circumstances of this case, the Magistrates Court has done that. The bench sheets reveal that the two defendants appeared before the magistrate on 23 August. Ordinarily they would have been charged but as I have repeatedly said, that was not done because an interpreter was not present. The point that Mr McCrone emphasises is that the Magistrates Court has nevertheless exercised its jurisdiction.
19․Mr McCrone referred me to a decision of Miles CJ in R v JB & CH [2001] ACTSC 10. There his Honour said:
If the person has been arrested without warrant ... before the information is laid, then the information may be laid orally before the presiding magistrate and in the presence of the person.
20․His Honour goes on:
A description of the offence and the charging process may be recorded on a bench sheet or charge sheet. It appears that the record so constituted is regarded as an information in writing.
21․Annexed to the affidavit of the AFP officer are the bench sheets. They show that the matter was listed for hearing before the magistrate on 23 August and set out the charges allegedly committed by the two defendants. The handwritten notations on the bench sheets indicate that on 23 August the two defendants did appear before the magistrate.
22․Although Miles CJ and McCallum CJ speak of an information being laid as part of the person being charged, that is only because that is what usually happens, but it is not the oral reading of the charge which amounts to the laying of information. It is the information being put before the Court, thus giving the Court jurisdiction which amounts to the laying of the information. The essential feature is not that the person is orally charged, but that the Court has jurisdiction which clearly it has exercised in the matter before me. The bench sheet itself, even without any notation, shows that the magistrate has accepted the information and proceeded to exercise jurisdiction.
23․I am satisfied, as a matter of combined fact and law, that informations have been laid against the first and second defendants in the Magistrates Court. The belief expressed by the AFP officer in her affidavit has thus been shown to be a reasonable one.
24․In summary on this matter, I am not disagreeing with McCallum CJ whose decision reflected both the facts before her Honour and the usual practice. Her Honour did not deal with the situation before me as I have explained. In the unusual circumstances of this case, oral charging of the defendants is not necessary because the Magistrates Court has exercised its jurisdiction over the first two defendants as regards the offences they are alleged to have committed.
25․Let me move on to other matters under s 29. Under s 29(3), it is necessary to show that the officer believes that the application is being made within the relevant period prescribed by s 27 of the Act and provides grounds for her belief. Those matters are set out in pars 13 and 14 of her affidavit. Under s 29(5)(a) and (8), it is necessary to show that the officer suspects that the property sought to be restrained is the property of the third defendant and that it is tainted property in relation to the offences and provides grounds for her suspicions. Relevant material is to be found in the affidavit of Claire Lawler at pars 15 to 22 and the title searches to be found at annexures C and D of that affidavit.
26․Under s 29(6) and (8), it is necessary to show that the officer believes that the property sought to be restrained may be required to satisfy the purpose mentioned in s 22 of the Act and provides grounds for her belief. Those matters are dealt with in the affidavit at pars 23 and 24. I am therefore satisfied that the matters contained in s 26 of the Act, at the timeframes prescribed in s 27 of the Act, are satisfied, and that the affidavit in support of the application meets the requirements of s 29 of the Act. The application must be granted.
27․Section 39 relevantly provides that the Court may, when it makes a restraining order, make any additional order that the Court considers appropriate in relation to the restraining order or the restrained property. The plaintiff seeks a number of additional orders pursuant to s 39 of the Act. I consider it appropriate to make those additional orders, taking into account the justification provided by the plaintiff of the making of those orders. The justification for the orders is set out in pars 21 to 29 of the written submissions made on behalf of the plaintiff. It is not necessary to discuss this further beyond saying that I consider it appropriate to make the additional orders for the reasons set out in those paragraphs of the written submissions.
28․I should just say something in relation to order 6 which gives the AFP, its employees and its agents a power to deal with two parcels of property. “Deal with” includes the power to sell the property, but it is to be noted that order 6 does not give a general power to deal with a property. It is only for the specific purposes mentioned in the order that the power to deal with the property is given.
29․The plaintiff has handed me a proposed order this morning. It meets the requirements of s 33 as follows. The order states the person must not deal with the property mentioned in the order except in accordance with the order, another order made by the relevant court under the Act, or the Act. That is in accordance with s 33(1).
30․In accordance with s 33(2), the order states that it is a restraining order made under s 31 of the Act. The order states the third defendant is the person whose property the restraining order applies. The order states the property to which it applies and the order directs the Public Trustee and Guardian for the Australian Capital Territory to take control of the restrained property.
31․The plaintiff makes an undertaking. I may refuse to make a restraining order if the plaintiffs did not give an undertaking that the Court considers appropriate about the payment of damages or costs in relation to the making or operation of the order.
32․In accordance with s 31(4) of the Act, the plaintiff provides the following undertaking: to submit to such order, if any, as the Court may consider to be just for the payment of damages or costs, to be assessed by the Court, or as it may direct, to any person, whether or not a party, adversely affected by the operation of a restraining order under s 31 of the Act, and to pay the damages or costs referred to in par (a) to the person there referred to.
33․This is the form of undertaking proposed by Mossop AsJ, as his Honour then was, in Director of Public Prosecutions v Tomas [2015] ACTSC 233. I accept the undertaking by the plaintiff which I consider to be an appropriate one.
Orders
34․For those reasons, I make the following order:
(1)Orders are made in accordance with the General Form of Order dated 28 August 2024.
| I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Acting Justice Berman. Associate: Date: 29 October 2024 |
0
2
2