Lam v The Queen - [2000] WASCA 115

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: LAM -v- THE QUEEN [2000] WASCA 115

CORAM: KENNEDY J
IPP J
MURRAY J

HEARD: 15 DECEMBER 1999

DELIVERED : 4 MAY 2000

FILE NO/S: FUL 149 of 1997

BETWEEN: ANDREW LAM
Appellant
AND
THE QUEEN
Respondent

Catchwords:

Criminal law and procedure - Money seized from courier - Charge of conspiracy to possess heroin with intent to sell or supply - Acquittal by direction - Jurisdiction of court of trial to order forfeiture of money to Crown - Evidence required - Statutory power discussed.

Legislation:

Misuse of Drugs Act 1981 (WA) s 28(3)

Result:

Appeal allowed
Order for forfeiture quashed
Matter remitted for rehearing.

Representation:

Counsel:

Appellant: Mr L M Levy
Respondent: Mr D Dempster

Solicitors:

Appellant: Pryles & Defteros
Respondent: State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Briginshaw v Briginshaw (1938) 60 CLR 336
R v De Courtenay (1984) 15 A Crim R 263
R v Lam, unreported; CCA SCt of WA; Library No 980083; 27 February 1998
Scott v Gere [1988] WAR 377

Case(s) also cited:

Byrne v Godfree (1997) 96 A Crim R 197
McDermott v The King (1948) 76 CLR 501
R v Lee (1950) 82 CLR 133
R v Storey (1978) 140 CLR 364

KENNEDY & IPP JJ: We have had the benefit of reading in draft form the reasons to be published by Murray J. The relevant facts and circumstances concerning this appeal are set out in his Honour's reasons. Accordingly, we shall refer only to those facts that are relevant to the conclusion to which we have come.
On 14 January 1997, the Crown presented an indictment alleging that, between 7 and 25 January 1996, the appellant conspired with persons unknown to possess a quantity of heroin with intent to sell or supply it to another. On 26 January 1996, a holding order was granted under s 28(1) of the Misuse of Drugs Act 1981 (WA) authorising the continued detention of certain items found in the possession of the appellant, including the sum of "approximately" $253,800 in cash. The amount was subsequently determined to be $258,800. On 15 May 1997, the Crown presented a further indictment alleging that, during the same period, the appellant conspired with persons unknown to sell or supply heroin to another. On 15 August 1997, at a directions hearing before the trial which was listed to commence on 18 August, the Crown Prosecutor tendered a nolle prosequi in respect of the first indictment and indicated that he intended to proceed with the second. The appellant opposed the nolle prosequi and, on 18 August 1997, the learned trial Judge refused to allow the nolle prosequi to be received. Further proceedings on the second indictment were stayed, permanently.
Upon the appellant's arraignment on the first indictment, the Crown offered no evidence and the appellant was acquitted by direction of the trial Judge.
Immediately thereafter, counsel on behalf of the appellant made an oral application under s 28(3) of the Misuse of Drugs Act for release of the $258,800. The appellant claimed a financial interest in the money. He asserted that he had come into possession of it as bailee for an unnamed person who gave it to him in Perth to convey to an unnamed man in Sydney. No written or oral evidence was adduced. The application was not finally resolved on that day, and counsel for the Crown informed the learned Judge that the Crown itself would apply under s 28(3) for the forfeiture of the $258,800. The matter was then adjourned and came on again on 21 August 1997, when - at the instance of the Crown - the learned Judge made an order for the forfeiture of the things (including the sum of $258,800) that were the subject of the holding order made on 26 January 1996.
Section 28(3) provides:
"If, in the case of a thing to which a holding order relates –
(a)no person is tried with the commission of an offence in relation thereto, a police officer shall apply to a justice of the peace for an order in respect of that thing and the justice of the peace; or
(b)a person is tried with the commission of an offence in relation thereto, the court which so tries the person
may, after having given the claimant an opportunity to show cause why that thing should be released to him, order that that thing –
(c)     be released to the claimant;
(d)     be destroyed; or
(e)     be forfeited to the Crown,
or make such other order as the justice of the case requires."
Although, as indicated, an application for release of the money was first made by the appellant, the appellant now accepts that the appropriate procedure was for the Crown to make an application for forfeiture under s 28(3) of the Misuse of Drugs Act and for the appellant to appear as a claimant under that section and to seek the release of the things detained.
In the course of the application for relief under s 28(3), there was uncertainty as to the basis of the court's jurisdiction to grant the relief sought. It seems that the appellant regarded the application as one being made under s 28(3)(b), whereas the respondent appeared to regard it as brought under s 28(3)(a). The learned Judge referred to both paragraphs (a) and (b) of s 28(3), but did not decide which paragraph was applicable. In our view, as the appellant had been tried with the commission of an offence, the relevant sub-section was s 28(3)(b). That is to say, the appellant had been "tried with the commission of an offence" in relation to "a thing to which a holding order relates", within the meaning of these phrases in s 28(3)(b), and therefore the court had jurisdiction to make an order under s 28(3). His trial commenced when he was called upon to plead to the indictment (see the Criminal Code, s 612), and it ended with his acquittal. That jurisdiction was not affected by the subsequent decision by this Court to set aside the directed verdict of acquittal. That decision did not affect the fact that the appellant had been tried as aforesaid.
The uncertainty as to the court's jurisdiction contributed to uncertainty as to the evidentiary material that was relevant and admissible for the purposes of the s 28(3) application. Order 7 of the rules of the District Court contains rules governing applications under s 28(3) of the Act. Order 7 r 6 concerns the evidence to which the court may have regard in applications under s 28. The rule provides:
"(1)Where a party to the proceedings has been convicted after trial, the court may have regard to the evidence given at the trial but, by leave of the court, such evidence may be supplemented by further oral evidence or by affidavit.
(2)Where a party to the proceedings has been convicted on his own confession the court may have regard to the depositions of witnesses taken at any preliminary hearing and to the written statements tendered in evidence by the prosecution under section 29 (sc s 69) of the Justices Act 1902 and may take such further or other evidence as the circumstances of the case require."
In the normal course, when an application is made under s 28(3)(a), the effect of O 7 r 6 is that the evidence relevant to the application would ordinarily be placed before the Court by way of affidavit. In the normal course, when application is made under s 28(3)(b), the relevant evidence would have been led in the course of the trial. Hence, ordinarily, it would not be necessary for any further evidence to be adduced for the purposes of an application under s 28(3). But in view of the peculiar circumstances that obtained in this case, where the appellant had been acquitted by direction without any evidence having been led, O 7 r 6 did not apply (as there was no party who had been "convicted after trial" or who had "been convicted on his own confession").
Notwithstanding that the appellant had been so acquitted, nothing in O 7 precluded the Crown from adducing evidence in an appropriate manner in support of its application. For example, it was open to the Crown to tender the depositions of witnesses taken at any preliminary hearing and the written statements tendered in evidence by the prosecution under s 69 of the Justices Act 1902, provided that such depositions and statements were properly proved. There was, however, a need for the Crown, as the applicant, to apply to the learned trial Judge for appropriate directions as to the provision of the evidence that was to govern the application.
Order 7 r 2(1) provides that an application under s 28 must be made by way of a notice of motion and O 7 r 3(a) provides that the notice "shall set out clearly and concisely the grounds upon which the application is made. The appellant had not filed a notice of motion when making his application. A notice of motion had been filed by the Crown, but it did not set out the grounds as required by O 7 r 3(a). Order 7 r 3(d) requires the filing of affidavits by the applicant "setting out the facts relied on to support the applications". No affidavit was filed by the appellant. The Crown filed only an affidavit by Detective Higgs. The formal deposition of Detective Higgs was annexed to that affidavit. It referred to a record of interview with the appellant, but it did not annex the record of interview, nor was the record of interview proved by any admissible evidence. Nevertheless, in the course of argument before the learned Judge, both parties proceeded in an informal manner, making reference to the record of interview and to the depositions and the Crown, in particular, sought to rely thereon.
The ambiguity as to what particular evidence was properly before the court was compounded when counsel for the appellant objected to the admissibility of several parts of the record of interview and the depositions, and particularly to admissions allegedly made by the appellant. During the course of argument, counsel said:
"I indicated in the course of argument previously that I didn't address your Honour ultimately on the admissibility of those admissions and the use of those alleged admissions because we didn't reach that stage, although I had over last weekend prepared six pages of submissions in relation to the law and the facts as to the question of those alleged oral admissions.
I am concerned at this stage, your Honour, in relation to whether or not your Honour may rely upon those alleged admissions to form a judgment as to whether or not there was an offence committed in Western Australia as a finding of fact if you are against me in relation to the question of the law."
The learned Judge proceeded to observe:
"I think it should remain on this basis, that there are certain verbal admissions put up by the Crown in circumstances where there has been an acceptance in the committal proceedings by the investigating officers that no caution was given. That's the common fact, isn't it, and that other circumstances existed, namely that the accused was on his own in the presence of [two investigating officers] and without an interpreter, and that therefore there would be the distinct possibility of a challenge made to the admissibility of those what it is said to be confessional material."
His Honour then said:
"Bearing that in mind, I don't think it's possible for me to go beyond that position at this point. All right?"
Counsel for the appellant responded:
"In that case I won't hand these six pages to your Honour and burden you further."
The learned Judge replied by saying, merely: "Thank you".
The inference that arose from these exchanges was that the learned Judge was not going to rely on the material to which counsel had objected. No doubt for that reason, counsel for the appellant did not press the objections further. In the course of his reasons, however, his Honour did base his conclusion, at least partly, on the material to which objection had been taken. This material included, for example, the evidence referred to by his Honour as follows:
"When asked at Eucla what the money in his green carry bag was for, [the appellant] said, 'Is for drugs'. When asked what sort of drugs, he said, 'I think heroin.' [The appellant] was later asked, 'Why was the money paid?' The answer was, 'Drugs.' When asked what sort of drugs, he said he thought heroin, and that was repeated. When asked who were the other people in the restaurant, [the appellant] said, 'I not say. Maybe I get into trouble.' He admitted that he was paid $4,000 for bringing the bag across the Nullarbor."
Additionally, the learned Judge relied on the fact that the appellant's status in Australia was "unknown". It is not clear on what evidence his Honour relied for this conclusion.
Apart from the uncertainty as to the evidence that was relevant and admissible, there was uncertainty as to the particular sections of the Misuse of Drugs Act on which the Crown was relying in asking for a forfeiture order.
By s 28(3), a forfeiture order in terms thereof can only be made in relation to "a thing to which a holding order relates". Section 28 is contained in Pt V of the Act. Section 21 of the Act provides, in effect, that a "holding order" under Pt V means a holding order granted under s 28(1). Section 28(1) provides:
"If, in the case of a thing (other than a prohibited drug, prohibited plant or dangerous substance) which is seized or acquired and detained under section 26 a justice of the peace is satisfied, on the application of a police officer or approved person, that there are reasonable grounds to suspect that that thing is a thing referred to in section 23(1)(a), (b) or (c) grant to the police officer or approved person a holding order authorizing the continued detention of that thing until, the investigation of the case concerned having been completed, that thing is dealt with under subsection (3)."
Forfeiture orders may be made in terms of the Act otherwise than under s 28(3). Section 19(1) provides that a police officer to whom a holding order has been granted and a person aggrieved by the holding order may apply to the District Court for an order in respect of the property to which the holding order relates. Section 19(2)(c) provides that, after considering an application made under s 19(1), the District Court may:
"(i)if it is satisfied that the property to which that application relates or any part thereof is connected property, order that that property or part be forfeited to the Crown, or sold and the proceeds distributed in the manner specified in that order; or
(ii)if it is not satisfied that the property to which that application relates or part thereof is connected property, order that that property or part thereof be released to the person named in that order … ,
or in either case make such other order in respect of the property to which that application relates or part thereof as the justice of the case requires, and may make such ancillary orders, including orders as to costs, as it considers necessary or desirable."
Section 19 is contained in Pt IV of the Act. Section 12(1) of the Act defines a "holding order" under Pt IV to mean a holding order granted under s 17. It is, however, necessary first to go back to s 16, which provides relevantly:
"If there are reasonable grounds to suspect that any property found or received during the exercise of the powers conferred by section 13 or by a search warrant or under any other circumstances is connected property, a police officer may –
(a)seize that property and detain it for a period not exceeding 72 hours from that seizure and shall, if he wishes to detain it for a longer period, apply within 72 hours from that seizure to a justice of the peace for a holding order ….
(b)….
in respect of that property."
Section 17 then provides, relevantly:
"A justice of the peace may, on the application of a police officer and if he is satisfied that there are reasonable grounds to suspect that the property to which that application relates is connected property, grant to the police officer –
(a)a holding order authorizing the continued detention of property seized and detained under section 16 for a period of 21 days from the date of that holding order or, if an application in respect of that property is made to the District Court under section 19 within that period, until that application is finally disposed of …. "
There is a clear distinction between a holding order granted under s 28(1) and holding orders granted under s 17. Unlike the position in regard to s 28(1), property may only be detained under s 16, and a holding order under s 17 can only be granted, if there are reasonable grounds to suspect that the property sought to be detained is connected property. Section 12(1) provides that, unless the contrary intention appears from the Act, "connected property" means:
"property possessed or obtained –
(a)directly or indirectly by way of, as a result of or for the purposes of; or
(b)as or for the consideration for
the commission of an offence."
As regards a holding order under s 28(1), that may only be made if there are reasonable grounds to suspect that the thing sought to be detained is a thing referred to in s 23(1)(a), (b) or (c). The element of connected property is not expressed to be part of the criteria for the making of holding orders under s 28(1), and that element is not part of the express criteria (ie, those set out in s 23(1)(a), (b) and (c)) for the making of orders under s 28(3). Generally, the criteria in s 23(1)(a), (b) and (c) are wider than those for the determination of "connected property".
It is also to be noticed that, under s 19(2)(c), upon the court not being satisfied that the property is connected property, it may order that the property be released to the person named in the order (or make such other order in respect of the property as the justice of the case requires). While, under s 28(3), the court may order the thing detained to be released to the claimant (or, also, make such other order in respect of the thing detained as the justice of the case requires), the words used do not expressly confer upon the court the power to make such an order merely upon some condition or criterion not being met.
In R v De Courtenay (1984) 15 A Crim R 263, Pidgeon J said (at 273), in regard to a forfeiture application under s 28(3), that:
"[I]n order to grant forfeiture I consider that there would have to be a direct connection between the property seized and its use in respect of the offence with which the accused is actually charged or if it is directly used in drug dealing."
In other words, his Honour assumed that the criteria for the grant of a forfeiture order under s 28(3) were the same as the criteria for the grant of a forfeiture order under s 19(2)(c). With respect, we do not agree. We have drawn attention to the plain distinction between s 17 and s 19(2)(c), on the one hand, and s 28(1) and s 28(3), on the other. It seems to us that Parliament intended that the criteria for the making of orders under s 28 should be different from those governing the making of orders under s 17 and s 19(2)(c).
No criteria are expressly set out in s 28(3) for the making of orders thereunder. In our opinion, those criteria are to be determined by reference to s 28(1), as an order may be made under s 28(3) only where a holding order has been made under s 28(1). As mentioned, the criteria for the making of a holding order under s 28(1) are to be found in s 23(1)(a), (b) and (c). Paragraph (a), par (b) and par (c) of s 23(1) are prefaced by the words "subject to the section, if there are reasonable grounds to suspect that anything whatsoever – ". In our view, an order can only be made under s 28(3) if it is established that the suspicions referred to in s 23(1) are well founded.
In making an order under s 28(3), the Court will have to be concerned with the onus of proof. According to general principle, that onus should be proof on a balance of probabilities.

Applications under s 28(1) are made ex parte. It follows, according to general principle, that the requirement in s 28(3) that a "claimant" must "show cause why that thing should be released to him" does not indicate that the onus is upon the claimant to prove anything other than his or her standing as a claimant. In this regard, we agree with the observation of Pidgeon J in De Courtenay (at 273) that "the onus of proof itself is on the person applying for forfeiture", although, as Burt CJ pointed out at 266, an evidentiary onus rests upon the claimant. As regards standing, the onus would be on a person "claiming to have a financial or other interest in the thing to which the holding order relates" to prove, on a balance of probabilities, that he or she does in fact have a financial or other relevant interest in the thing in question.
At the hearing of the application, the Crown sought to justify its argument that a forfeiture order should be granted on the basis that the money was "connected property" within the meaning of s 12(1). That is to say, the Crown contended that the money was property possessed or obtained directly or indirectly by way of, as a result of or for the purposes of, or as or for the consideration for, the commission of an offence. The learned Judge appears to have accepted the Crown's submission in this respect and found that the money "was property which was linked with the commission of an offence for which [the appellant] was tried". We accept that, under s 28(3), a forfeiture order may be made even though the accused person involved is acquitted of the charge pursuant to which the holding order under s 28(1) was made. But, as explained, the criterion stipulated expressly by the Act for the making of a forfeiture order under s 28(3) is not proof that the thing concerned is connected property under s 12(1). Granted that the criteria under s 23(1)(a), (b) and (c) are broader than the criteria for connected property, the fact is that his Honour did not determine the correct question.
In argument before this Court, counsel for the Crown submitted that "the appellant's claim is not a bona fide claim". In support of this submission, counsel relied on the fact that on 2 December 1997 the appellant was convicted of the offence of attempting to pervert the course of justice by using a false name when he appeared in the Court of Petty

Sessions for the offence which became the subject of the first indictment. Counsel also referred to the fact that, in February 1998, the appellant was deported and was returned to Hong Kong. None of these matters was before the learned Judge when the application for forfeiture was made.

Given the lack of attention paid to the appropriate manner in which the relevant evidence should have been put before the court, the reliance by the learned Judge on evidentiary material which he had earlier indicated would not be taken into account by him, and the erroneous construction of s 28(3) that underlay the arguments of both counsel and the reasons of the learned Judge, we have come to the conclusion that it would be unsafe to allow the forfeiture order to stand. In our opinion, that order should be quashed and the matter remitted to the District Court for rehearing.
In view of the confusion that attended the initial making of the applications, it would be appropriate for the present application to be amended to accord with the requirements of O 7 of the District Court Rules. A question also arises as to the proper parties to that application. In his reasons, Murray J has raised the question of whether the Crown is the appropriate party. Furthermore, the name of the appellant in these proceedings is admittedly false. We see no reason why the respondent may not tender the depositions that were referred to by both parties in the course of the application made in August 1997 (provided they are properly proved). The appellant should then be given an opportunity, afresh, "to show cause" why the money should be released to him (as provided by s 28(3)). Should affidavits be filed in the course of such proceedings (as appears inevitable), it would be open to either party to apply for an order that a particular deponent be cross‑examined. With this in mind, the parties should apply to the District Court for directions generally regarding the necessary procedures preliminary to the final determination of this matter.
MURRAY J: This is an appeal from an order made in the District Court, brought pursuant to the District Court of Western Australia Act 1969 (WA), s 79(1)(a). Although the Crown is nominated as the respondent, it may be that the proper respondent would be one David Grant Higgs, who was a police officer when he applied to the District Court under the Misuse of Drugs Act 1981 (WA), s 28(3) for an order that a green bag, a sum of $255,000 in cash, and a sum of $3,800 in cash, the subject of a holding order issued under s 28(1) on 26 January 1996 be forfeited to the Crown. The title of the appeal is a matter of no moment.

The matter arises in the following way, as the evidence before the District Court or the uncontested facts show. It appears that the appellant was observed by police officers who were undertaking surveillance in Perth during January 1996. He later left Perth on a bus bound for Sydney. In the early hours of the morning of 24 January 1996 the bus was stopped at Eucla, just short of the South Australian border. The appellant was searched, as was his luggage, and he was found to be carrying the two separate sums of money in the bag described in the holding order. Those items were seized and the appellant was charged with using a false name, unlawful possession of the sum of $255,000 and conspiracy to possess heroin with intent to sell or supply.
On 26 January 1996 a holding order was granted under the Misuse of Drugs Act, s 28(1) authorising the continued detention of the items in question until they were finally disposed of by the procedure set out in s 28(3). Such an order may be made if there are reasonable grounds to suspect that the item in question is a thing with respect to which an offence has been, or is suspected to have been, committed, or used for the purpose of committing an offence, or which may provide evidence in respect of an offence.
A preliminary hearing was held in respect of the indictable offence, the conspiracy to possess heroin with intent. On 31 October 1996 the appellant was committed to the District Court for trial. Later, on 18 November 1996, he appeared in the Perth Court of Petty Sessions and was fined for using a false name on 24 January. No evidence was offered with respect to the charge of unlawful possession of the $255,000 and that complaint was dismissed.
On 14 January 1997 the Crown presented an indictment alleging that between 7 and 25 January 1996 at Perth and elsewhere, the appellant conspired with persons unknown to possess a quantity of heroin with intent to sell or supply it to another. Subsequently, on 15 May 1997, the Crown presented a further indictment alleging that during the same period at Perth and elsewhere, the appellant conspired with persons unknown to sell or supply heroin to another. The Crown proposed to "substitute" this second indictment for the first, alleging, as the appellant's solicitors were informed by letter, that the Crown would seek to establish that the appellant had been sent from Sydney to Perth for the purpose of taking delivery of the sum of $255,000 and conveying that money to Sydney where it was to be used to pay for heroin to be supplied. It was not alleged that it was part of the conspiracy that the drug was to be given to the appellant and conveyed back to Perth by him.
On 15 August 1997 at a directions hearing before the trial which was listed to commence on 18 August, the prosecutor tendered a nolle prosequi in respect of the first indictment, indicating that the intention was to proceed with the second. That was opposed, and on 18 August the learned trial Judge delivered reasons for his conclusion that the nolle prosequi should not be received because to allow the matter to proceed on the second indictment would constitute an abuse of process. Further proceedings on the second indictment were permanently stayed. Upon the appellant's arraignment on the first indictment, the Crown offered no evidence and the appellant was acquitted by direction of the trial Judge. He was not then released from custody because he was held on remand on a charge that by using the name Andrew Lam, the appellant had attempted to pervert the course of justice, an offence of which he was subsequently convicted.
In the meantime, on 18 August 1997, counsel on his behalf made an oral application under s 28(3) of the Misuse of Drugs Act to recover the $255,000 seized from him on the ground that he claimed a financial interest in the money. As I understand it, the assertion was that he was in possession of the $255,000 as bailee for the person (unnamed) who gave him the money in Perth to convey it to a man (also unnamed) in Sydney. As counsel put it, "the evidence" would establish no more than those facts. Reference was made to a signed record of interview provided by the appellant to two police officers, one of them being Detective Senior Constable Higgs, on the morning of 24 January 1996 in Eucla.
I shall return shortly to the course of those proceedings, but before doing so it is convenient to note that the Crown subsequently appealed against the directed verdict of acquittal. An appeal was heard on 3 November 1997 and allowed on 27 February 1998: R v Lam, unreported; CCA SCt of WA; Library No 980083; 27 February 1998. The court ordered that the nolle prosequi be entered on the record of the District Court and the stay of the second indictment was ordered to be removed.
In the meantime, on 2 December 1997, the appellant was convicted of the offence of attempting to pervert the course of justice on 28 October 1996 when, on appearance in the Court of Petty Sessions for the offence which became the subject of the first indictment, the appellant used the false name, Andrew Lam. By then, of course, the appellant had been in custody on remand for nearly two years. As that period would have exceeded the non‑parole period in respect of any sentence of imprisonment which the court might have imposed, the appellant was discharged without further punishment.
It may be that by then the authorities had discovered that the appellant's true name is Mok Ka Kui and that he had in January 1996 entered Australia illegally. We were informed that in February 1998 this man was deported and returned to Hong Kong. As a result, on 26 March 1998, the Crown filed a nolle prosequi in respect of the second indictment for the conspiracy to sell or supply heroin.
I return now to the question of the applications in respect of the property the subject of the holding order. I have mentioned that on 18 August 1997 counsel for the appellant made an oral application which appears to have been restricted to the $255,000 in respect of which he claimed possession as a bailee. The terms of the application were never made clear. Nor did counsel make clear the evidence upon which the appellant proposed to rely. During the debate between counsel which followed the making of this application, it appeared that reliance was placed upon what was regarded as the limited nature of the information emerging from the signed record of interview, to which I have already referred, and it was made clear that alleged oral admissions in perhaps more extensive form which were said by the police to have preceded the making of the signed record of interview, would have been the subject of objection as to their admissibility at trial and therefore it might be assumed were not proposed to be relied upon by the appellant in respect of the application he made. This application was effectively based on the proposition that if no more appeared from the reliable evidence than that the applicant was apparently in possession of the money as a bailee for some other person, then as counsel put it:
"…there is no proper basis to refuse to release the money back to him or to his solicitor in circumstances where he, prior to having been arrested by the police at Eucla, was a bailee of that money."
In responding to this application on 18 August, counsel for the Crown said that the Crown itself would apply under s 28(3) of the Misuse of Drugs Act for the forfeiture of the money the subject of the holding order. The matter was not then finally resolved. After some inconclusive debate between counsel, the whole matter was adjourned to enable outlines of submission to be filed and exchanged and the formalities attended to before the matter was substantively dealt with. It came on again on 21 August 1997. By then there was a notice of motion by the then Detective Higgs, supported by his affidavit, for the forfeiture to the Crown of all the property the subject of the holding order. That document was dated 21 August.
The appellant's application never seems to have been formalised in that way and the proceedings which were then conducted seem to have raised the question whether, on the balance of probabilities (which was accepted to be the appropriate standard of proof) the property should be returned to the appellant from whom it was originally taken, or whether it should be forfeited to the Crown. It appears from the reasons given by his Honour on 1 September 1997 when he ordered the forfeiture of the property that his Honour dealt with Detective Higgs' application as the primary application opposed by the appellant who, in his turn, sought an order for the return of the money, with interest, to him.
As opened by counsel on 21 August 1997, the Crown's application was based on the proposition that the property was "connected property" within the meaning of s 12 of the Misuse of Drugs Act and secondly, and in any event, that should the court not be satisfied to the required standard that such was the case, "the items should nonetheless be forfeited to the Crown on behalf of the general community, in the interests of justice." In supporting that application counsel invited the court to have regard to the depositions in the criminal proceedings which had been before the court until, as was then the position, there had been a directed verdict of acquittal on the first indictment and a permanent stay of proceedings on the second.
In so doing, counsel relied upon the Rules of the District Court, O 7, which contains rules in respect of various applications under the Misuse of Drugs Act in respect of property the subject of an embargo notice or a holding order. Order 7 r 2 makes it clear that the application is to be made by filing a notice of motion which, under r 3, is to "set out clearly and concisely the grounds upon which the application is made". That was not done in this case. Rule 3 also provides for the application to be supported by affidavit and in this case, as I have mentioned, such an affidavit was filed which recited the seizure and the obtaining of the holding order and to which was annexed the deposition of Detective Higgs, as the applicant then was, a document particularly concerned with the officer's performance of his functions as the exhibits officer for the investigation, but which also says that he was present when the bus was stopped in Eucla on 24 January 1996 at about 3.15 am, when other police officers spoke to the appellant, who was then searched. The deposition does not set out the content of that interview.
In addition the deposition exhibited to Detective Higgs' affidavit says that, also on 24 January 1996, he was present at the Eucla Police Station when a Detective Sergeant Dohmen conducted a record of interview with the appellant after which a Justice of the Peace was introduced. The appellant then read the record of interview to those present and the Justice of the Peace in his turn read the record of interview to the appellant who then signed each page by way of adoption. The document was witnessed by the Justice of the Peace, Detective Sergeant Dohmen and Detective Higgs. Again, the record of interview was not part of the annexure to Detective Higgs' affidavit.
The rules make it clear that the application is to be dealt with upon affidavit evidence, although, under r 5, the party who files an affidavit is to cause the deponent to attend for cross‑examination if so required by the court or by another party. Order 7 r 6 provides:
"(1)Where a party to the proceedings has been convicted after trial, the Court may have regard to the evidence given at the trial but, by leave of the Court, such evidence may be supplemented by further oral evidence or by affidavit.
(2)Where a party to the proceedings has been convicted on his own confession the Court may have regard to the depositions of witnesses taken at any preliminary hearing and to the written statements tendered in evidence by the prosecution under s 69 of the Justices Act1902 and may take such further or other evidence as the circumstances of the case require."
Although that rule was relied upon in this case, clearly it had no application. The rule is no doubt intended to facilitate the introduction into evidence of material in a form which would otherwise not be strictly admissible. There appears to be an hiatus in its application because it does not deal at all with the case where a person has been acquitted of an offence. No doubt it may be desirable to expand the operation of the rule. In a case to which it does not apply, it would seem to me that the rules provide no more than the capacity to introduce evidence by affidavit or orally, subject to the ordinary rules of admissibility or, to the extent to which such rules may be departed from, by consent.
As to that, when counsel for the respondent sought to refer to facts taken from the depositions, counsel for the appellant objected, because of the presence of reporters in the court, to any material which identified any person being read out in open court lest it be reported in such a way as to prejudice those people "who have not had any opportunity to have that evidence tested". Therefore, counsel observed, "although your Honour can read it, it should not be read in open court". It soon became clear that the people to whom counsel was referring were two men in whose company the appellant was seen in Perth before his bus trip, from whom the appellant later admitted he had received the $255,000 in bank notes, wrapped in plastic in five separate bundles. Counsel for the respondent then embarked upon a quite detailed statement of the factual material upon which he relied, without further objection. The source of that material was said on several occasions to be the depositions.
In responding to the application, counsel for the appellant said that the depositions were incapable of establishing the commission of an offence against the Misuse of Drugs Act or, if they were so capable, that was an offence of which the appellant had been acquitted by direction just a few days earlier. Counsel reminded the Judge that the evidence consisted of "objective evidence of surveillance" and "the alleged admissions that were made." Counsel went on to repeat the objection to reliance being placed upon such admissions which were described as the "alleged oral confessions", in respect of which he had already foreshadowed that objection would have been taken at trial. He continued to elaborate upon the grounds of such objection, but in his remarks he made it clear that the objection did not extend to the oral interview recorded in the written record of interview which counsel said was incapable of providing evidence sufficient to lead to forfeiture of the property seized from the appellant.
The purpose of my referring at some length to the course of the proceedings below is to show that there was a potential difficulty for the Judge to know upon what material he could rely to establish the facts as he might find them to be relative to the applications before him. That was a difficulty created by the informality of the proceedings as they were conducted. Whilst the process seems to me to have been undesirable in that regard, it is however, in my opinion, in the end clear that apart from the evidence of the oral confessions, as they were described, to which objection was taken, there was consent to the court using the depositions which had been filed in respect of the offence charged in the indictment of which the appellant had been acquitted by direction, the conspiracy to possess heroin with intent to sell or supply.

In his reasons for making the forfeiture order, his Honour did indeed refer to much of that material including, I should add, statements said to be made by the appellant and not recorded, although not, in my opinion, to paint a factual picture different from that which clearly emerged from the objective surveillance evidence and the record of interview.
The appeal proceeded on eleven separate grounds. I will not set them out here. A number of them were entirely uninformative and cannot be sensibly addressed. For example, the first ground is that his Honour's judgment was wrong in law and the second is that the learned trial Judge erred in law in making the order for forfeiture. Some of the grounds relate to the evidentiary basis upon which his Honour acted and, having reviewed the proceedings and discussed the sources of the evidence which was legitimately available to his Honour, it need only be said I think that to the extent that his Honour did make some reference to material to which objection had been taken and which could not be received as evidence, except by consent, without resolving such objection, I am satisfied that no miscarriage of justice has arisen by his Honour treating as evidence material which was not legitimately before him. Other grounds deal with the statutory provisions under which his Honour acted and these I shall address in the course of discussing those provisions.
The evidence legitimately before his Honour was capable of establishing, and his Honour found it to be the case, that here in Perth, to which the appellant had travelled under a false name, he stayed under another false name, Peter Chan, at the Sebel Hotel. He was observed by surveillance officers. The night before he commenced his bus journey back east, he went to a restaurant with two men. The appellant later admitted that these men gave him the $255,000 packaged in a number of bundles which he was to take back to Sydney. The appellant had come to Perth because he had been hired to do so by a "friend" in Sydney. He was to pick up some money and return with it. He was paid $4,000 and the $3,800 seized from him was what remained of that payment.
The appellant said that his friend's name, he was told, was "Simon" which may have been "Si Mon" because he was also told that the person's name was "Man". Whatever the friend's name was the appellant did not think he had been given "true names". When he came to Perth he was contacted on a mobile phone which the person in Sydney had loaned him for the purpose. The money given at the restaurant was that which had been seized from him. He was to take it back to Sydney and give it to his contact there. He travelled on the bus under the name "Denis" in which name his ticket had been bought.
His friend had told him that the money was for tax, but when asked what he understood the money was for, the appellant said, "I think illegal, he used me to take money to Sydney. Maybe drugs, maybe." He thought he was involved in some such illegal activity and now that the police had the money, when asked what might happen to him, he said, "Maybe ok, maybe I dead."
His Honour referred himself to earlier decided cases on the relevant statutory provisions and expressed his conclusion shortly. He found that the property in question was "linked with the commission of an offence for which [the appellant] was tried." His Honour continued:
"As I have already said, it does not matter that ultimately Mr Lam was acquitted, even by direction, and after the Crown for its own reasons called no evidence. The essential relationship between the money seized and the offence with which Mr Lam was tried remains. I find therefore that there was a proper legal and factual basis on which an order can be made under the section.
As to the appropriate order, a number of important factors exist. Firstly, Mr Lam's status in Australia is unknown. I am not satisfied as to this matter. Secondly, Mr Lam's identity is doubtful. Thirdly, the identity and even the existence of the man Simon ‑ that is, the man who gave Mr Lam the money ‑ is doubtful.
Next, the claim by Mr Lam that he is a bailee of the money for the man Simon, if he exists, is doubtful. Next, the possession of the sum of $3800 for any innocent purpose is highly unlikely. Next, the sum of money of course itself is significant. Next, and finally, the absence of any persuasive basis, if one could even exist, upon which some alternative order to forfeiture could be made exists.
In all the circumstances an order for the forfeiture of the moneys and the bag is proper in this case. Indeed it would be inherently wrong and quite contrary to public policy to allow this money to be returned to Mr Lam. For these reasons I grant the Crown's application to forfeit the goods the subject of the holding order to the Crown."
There are two parts of the Misuse of Drugs Act concerned with the location, seizure, detention and disposal of property. Part IV is concerned with "connected property" which, as defined in s 12(1), is property possessed or obtained directly or indirectly by way of, as a result of or for the purposes of, or as or for the consideration for, the commission of an offence. A person possesses such property within the meaning of the Act, s 12, if he has it in his possession, whether on his own behalf or on behalf or for the benefit of another. Part V is concerned with property or things used in the commission of offences, according to the heading of the Part, and I have mentioned that by s 23 this is property or a thing as to which there are reasonable grounds to suspect that it is a thing with respect to which an offence has been or is suspected to have been or might be committed, or which has been or is suspected to have been or might be used for the purpose of committing an offence, or which may provide evidence in respect of an offence. Clearly under those circumstances there is some overlap between the sort of thing which might be the subject of the provisions in Part V of the Act, and property which might be dealt with under Part IV. I have mentioned that this property was dealt with under Part V, being seized under s 23 of the Act and the subject of a holding order under s 28(1).
Under s 28(2) a police officer or other approved person to whom a holding order has been granted, is generally required to serve a copy of the order "on any person claiming to have a financial or other interest in the thing to which the holding order relates". In the section that person is called "the claimant". The crucial provision for present purposes is s 28(3) which is in the following terms:
"If, in the case of a thing to which a holding order relates -
(a)no person is tried with the commission of an offence in relation thereto, a police officer shall apply to a justice of the peace for an order in respect of that thing and the justice of the peace; or
(b)a person is tried with the commission of an offence in relation thereto, the court which so tries the person,
may, after having given the claimant an opportunity to show cause why that thing should be released to him, order that that thing -
(c)be released to the claimant;
(d)be destroyed; or
(e)be forfeited to the Crown,
or make such other order as the justice of the case requires."
The jurisdictional pre‑conditions for the operation of the section are set out in par (a) and par (b). In this case it is clear that the appellant was tried with the commission of an offence in relation to the things to which the holding order related. This was not therefore a case where a police officer was to apply to a Justice of the Peace, but it is to be noted that in such a case there would have been no trial at all and yet under the section the appropriate order might still be that the thing be forfeited to the Crown if the justice of the case so required. It is also to be noted that in that case, a police officer or approved person having obtained the holding order, it is a police officer who is to apply to a Justice of the Peace. On the other hand it would be possible under par (b) for the trial court to act of its own motion, although as has been seen, under the District Court Rules an application by notice of motion is required and was made in this case by the police officer concerned with the property as the exhibits officer in the investigation. Under the subsection, "the claimant", is to be given an opportunity to show cause why the thing should be released to him by which, I think, the section means that any other interested person apart from the applicant for an order is to be given the opportunity to respond to the application.
I consider that the appellant was tried with the commission of the offence of conspiracy to possess heroin with intent to sell or supply. The trial began when, the court having declined to accept the nolle prosequi, the appellant was arraigned (Criminal Code (WA) s 612). He pleaded not guilty and the Crown declined to offer any evidence in support of the indictment. I agree with the trial Judge that for jurisdictional purposes it matters not that there was an acquittal by direction. The court was still seized of the matter under s 28(3)(b).
The allegation of the Crown initially, which it later sought to abandon when it tried to substitute a new indictment, was that the money was provided to the appellant to pay for the drug as part of a conspiracy in which he was involved to possess that drug. Whether that was an offence which could have been proved is not to the point, although of course, whether there were reasonable grounds to suspect that the property seized was linked to the commission of such an offence in any way described in s 23(1) would clearly have an impact on the lawfulness of the seizure and the subsequent grant of the holding order. Neither process was challenged and no such question is relevant to these proceedings and the appeal taken from the order made.
The jurisdictional preconditions having been established, the court was required to finally deal with the property in question, the things to which the holding order related, by releasing them to the claimant, ordering their destruction, ordering their forfeiture to the Crown, or making such other order as the justice of the case required. Until a final order was made, the holding order would continue to apply. It is not necessary for present purposes to consider what type of order other than those enumerated the justice of the case might require in any given proceeding.
I should say that in my view nothing in R v De Courtenay (1984) 15 A Crim R 263 is to the contrary of the view expressed above. That was a case where the application for forfeiture relied upon s 28(3)(b), but the court concluded that the money seized, not having been established at trial to be linked in any way, as evidence or otherwise, with the possession of heroin with intent to sell or supply, the case was not one where a person had been tried with the commission of an offence in relation to the money to which the holding order related. The reasoning of the majority appears to be that upon the jury's verdict at trial, convicting the appellant of simple possession of heroin, the money had to be taken to have nothing to do with the offence for which the person from whom it was seized was tried. It is unnecessary for the purposes of this case to re‑examine the correctness of that view.
However, Pidgeon J, while agreeing that there was no factual basis for the order of forfeiture, took the view that as the money was at trial said to be evidence of the possession of the heroin with intent to sell, being the proceeds of such sale, that alone would satisfy the jurisdictional question. His Honour agreed, however, that there was no basis for a forfeiture order under this section and thought that the proper enquiry would be whether the money was connected property for the purpose of an application for forfeiture under s 19 of the Misuse of Drugs Act. Scott v Gere [1988] WAR 377 was a case of that kind dealt with under Part IV where the money in question was found to be "connected property".
In this case it was accepted that it was for the respondent applying for forfeiture to make out its case (De Courtenay at 266 and 273) and his Honour directed himself to the legal position that he had to be satisfied that there were proper grounds for the making of a forfeiture order on the balance of probabilities in the sense of Briginshaw v Briginshaw (1938) 60 CLR 336, 368, as it was summarised in Scott v Gere at 388, that:
"the importance and gravity of the question involved must enter into the consideration whether the evidence produces the reasonable satisfaction that is required, and it is only after the exercise of caution and after making a close scrutiny of the evidence that the degree of satisfaction required can be reached."
On that basis his Honour was clearly satisfied that there was no proper factual basis upon which the money could be released to the appellant as the claimant thereto. Clearly there was no reason to destroy the property and apart from forfeiture to the Crown, no other order was suggested to his Honour or would appear to be appropriate to comply with the justice of the case.
As the respondent put its application, the $255,000 was either connected property in the sense that it was given to the appellant for the purposes of the commission of an offence of acquiring an illicit drug for the purpose of resale, given the amount of money involved, and the $3,800 being the balance of the $4,000 remuneration received by the appellant was money paid for his participation in that unlawful enterprise or, alternatively, there being no legitimate claimant to the money, it should be forfeited to the Crown. It could not be contemplated that it would be returned to the appellant on the basis that he was a bailee for some shadowy, incompletely identified "friend" in Sydney. So far as the $255,000 was concerned, it was to be regarded as money to neither the possession or ownership of which any person made or appeared to have a legitimate claim. The appeal should be dismissed.