New South Wales Crime Commission v Le and Luu

[2003] NSWSC 494

CITATION:	New South Wales Crime Commission v Le and Luu [2003] NSWSC 494
HEARING DATE(S):	2 June 2003
JUDGMENT DATE:	11 June 2003
JUDGMENT OF:	Sully J at 1
DECISION:	Plaintiff's Notice of Motion for summary judgment dismissed; Costs of Notice of Motion be costs in proceedings instituted on 17 October 2000 and continued by Third Amended Summons filed on 22 November 2000; Order against first defendant pursuant to par 7 of Third Amended Summons; Order against second defendant pursuant to par 9 of the Third Amended Summons; Defendants to pay plaintiff's costs of Summons proceedings; Plaintiff to apply to Common Law List Judge not later than 28 days from today for directions as to the implementation of orders 3 and 4 above.
LEGISLATION CITED:	Criminal Assets Recovery Act 1990 (NSW) Drug Misue & Trafficking Act 1985 (NSW)
CASES CITED:	Reg v Beck [1985] 1 WLR 22 at 28F Attorney General's Reference (No. 1 of 1975) [1975] QB 773 The Queen v Most (1881) 7 QBD 244 at 258 Reg v Eade [2002] NSWCCA 257 at par 54
PARTIES :	New South Wales Crime Commission Van Tuyen Le Hong Viet Luu
FILE NUMBER(S):	SC 12714/00
COUNSEL:	I. Temby QC - Plaintiff M. Buscombe - Defendants
SOLICITORS:	J. M. Giorgiutti - NSWCC Mark Klees & Assoc. - Defendants

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

SULLY J

11 June 2003

12714/00 – NEW SOUTH WALES CRIME COMMISSION v VAN TUYEN LE & HONG VIET LUU

JUDGMENT

HIS HONOUR:

Introduction

1 By a Third Amended Summons filed on 22 November 2000 the New South Wales Crime Commission, (“the plaintiff”), claims against two named defendants relief pursuant to the Criminal Assets Recovery Act 1990 (N.S.W), (“the C.A.R. Act”). The defendants are Mr. Van Tuyen Lee, (“the first defendant”), and Miss Hong Viet Luu, (“the second defendant”).

2 The relief claimed against the first defendant is a proceeds assessment order pursuant to s 27 of the C.A.R. Act. The relief claimed against the second defendant is an assets forfeiture order pursuant to s 22 of the C.A.R. Act. Section 27 of the C.A.R. Act provides relevantly:

“(1) The Commission may apply to the Supreme Court for a proceeds assessment order requiring a person to pay to the Treasurer an amount assessed by the Court as the value of the proceeds derived from an illegal activity, or illegal activities, of the person that took place not more than 6 years before the making of the application for the order, whether or not any such activity is an activity on which the application is based as required by subsection (2).
(2) The Supreme Court must make a proceeds assessment order if the Court finds it to be more probable than not that the person against whom the order is sought was, at any time not more than 6 years before the making of the application for the order, engaged in:
(a) a serious crime related activity involving an indictable quantity, or
(b) a serious crime related activity involving an offence punishable by imprisonment for 5 years or more.
(3) A finding of the Court for the purposes of subsection (2) need not be based on a finding as to the commission of a particular offence or a finding as to any particular quantity involved, and can be based:
(a) on a finding that some offence or other constituting a serious crime related activity and punishable by imprisonment for 5 years or more was committed, or
(b) on a finding that some offence or other constituting a serious crime related activity was committed involving some quantity or other that was an indictable quantity.
(4) The references in subsections (1) and (2) to a period of 6 years include a reference to a period that began before the commencement of this section.
………………………………………………………….
(6) The making of a proceeds assessment order does not prevent the making under Division 1 of an assets forfeiture order based on the serious crime related activity, or on all or any of the serious crime related activities, in relation to which the proceeds assessment order is made.
……………………………………………………………
(8) If an order under this section is made against a dead person, subsection (7) has effect before final distribution of the estate as if the person had died the day after the making of the order.
…………………………………………………………….”

Section 22 of the C.A.R. Act provides relevantly:

“(1) If a restraining order is in force under Part 2, the Commission may apply to the Supreme Court for an order forfeiting to, and vesting in, the Crown all or any of the interests in property that are subject to the restraining order when the assets forfeiture order takes effect.
(2) The Supreme Court must make an assets forfeiture order if the Court finds it to be more probable than not that the person whose suspected serious crime related activity, or serious crime related activities, formed the basis of the restraining order was, at any time not more than 6 years before the making of the application for the assets forfeiture order, engaged in:
(a) a serious crime related activity involving an indictable quantity, or
(b) a serious crime related activity involving an offence punishable by imprisonment for 5 years or more.
(3) A finding of the Court for the purposes of subsection (2) need not be based on a finding as to the commission of a particular offence or a finding as to any particular quantity involved, and can be based:
(a) on a finding that some offence or other constituting a serious crime related activity and punishable by imprisonment for 5 years or more was committed, or
(b) on a finding that some offence or other constituting a serious crime related activity was committed involving some quantity or other that was an indictable quantity.
(4) When an assets forfeiture order is made it must be made so as to apply to specified interests in property.
…………………………………………………………….
(6) The raising of a doubt as to whether a person engaged in a serious crime related activity or whether a quantity is an indictable quantity is not of itself sufficient to avoid a finding by the Supreme Court under subsection (2).
……………………………………………………………..
(8) The making of an assets forfeiture order does not prevent the making of a proceeds assessment order under Division 2 which assesses the value of the proceeds of, or is based on, the serious crime related activity on which the assets forfeiture order was based.
…………………………………………………………….”

3 In the case of an assets forfeiture order, s 23 of the C.R.A. Act provides relevantly:

“(1) On an assets forfeiture order taking effect in relation to an interest in property:
(a) the interest is forfeited to the Crown and vests in the Public Trustee on behalf of the Crown, and
(b) if the person forfeiting the interest was in possession, or was entitled to possession, of the property, the Public Trustee may take possession of the property on behalf of the Crown.
(2) An interest forfeited under subsection (1) is to be disposed of by the Public Trustee in accordance with the directions of the Treasurer and the proceeds are to be paid to the Treasurer and credited to the Proceeds Account.
……………………………………………………………..
(4) The Supreme Court may, when it makes an assets forfeiture order or at any later time, make any ancillary orders that the Court considers appropriate. For example, the Court may make ancillary orders for and with respect to facilitating the transfer to the Crown of interests in property forfeited to the Crown under such an order”,

and section 25 of the C.A.R. Act provides relevantly:

“(1) If an assets forfeiture order:

…………………………………………………………………………..
(b) has been made – a person whose interest in property was forfeited by the order,
may apply to the Supreme Court for an order (in this section called an exclusion order ) excluding the interest from the operation of the assets forfeiture order or any relevant restraining order.
(2) The Supreme Court must not make the exclusion order applied for unless it is proved that it is more probable than not that the interest in property to which the application relates is not illegally acquired property.”

4 At the commencement of the hearing in this Court learned Queen’s Counsel appearing for the plaintiff moved upon both the Summons earlier herein noted, and a Notice of Motion for Summary Judgment, that latter process having been filed on 17 September 2002. At the conclusion of the hearing it was conceded that the plaintiff could not press, in the events which had happened during the hearing, for relief pursuant to the Notice of Motion. It was submitted by learned Queen’s Counsel for the plaintiff that, in those circumstances, the Notice of Motion should be dismissed, the costs of the motion being costs in the summons. Learned counsel for the defendants did not, of course, dispute the dismissal of the motion, but submitted that the motion should be dismissed with costs. I shall return later herein to this costs dispute.

The Proceedings against the First Defendant: as founded upon Conduct contravening s 25(1) of the D.M.T. Act

5 On 5 September 2000, at about 12 noon, the first defendant was apprehended by two police officers in the vicinity of the rear exit of Growers’ Market in Port Macquarie. According to the police officers the first defendant, when so apprehended, appeared to them to be “very nervous”. The first defendant was asked to empty his pockets; and he responded by producing a set of keys. He said that he had nothing else in the pocket of his jeans. One of the police officers thereupon searched the pocket and found a quantity of “white rock” wrapped in clear plastic. The first defendant was informed that he was under arrest for “the possession and supply of heroin”, and he was correctly cautioned. His immediate response was to say: “It is just for me own use.”.

6 The “white rock” was later analysed and was found to be heroin. Its gross weight was 8 grams. Its purity was 47%.

7 Two charges were preferred against the first defendant. One charge alleged the possession of a prohibited drug contrary to s 10(1) of the Drug Misuse & Trafficking Act 1985 (NSW), (“the D.M.T. Act”). The other charged alleged the supply of a prohibited drug contrary to s 25(1) of the D.M.T. Act.

8 In due course the Director of Public Prosecutions, whom I infer to have taken over the conduct of the prosecutions, withdrew the supply charge; and the first defendant pleaded guilty to the possession charge.

9 Upon the foundation of those basic facts, the plaintiff seeks to build a case constituted by the following related propositions:

[1] Heroin is a prohibited drug for the purposes of the D.M.T. Act.

[2] It is, therefore, a contravention of s 25(1) of the D.M.T. Act to supply heroin.

[3] The notion of supply has an extended ambit by reason of the statutory definition contained in s 3(1), the basic definition section, of the D.M.T. Act.

[4] That extended statutory ambit embraces, relevantly, the act of having heroin in possession for supply.

[5] The 8 grams of heroin which the first defendant undoubtedly had in his possession, exceeds in quantity the traffickable quantity as prescribed in respect of heroin by Schedule 1 to the D.M.T. Act. This fact attracts the provisions of s 29 of the D.M.T. Act.

[6] The effect of s 29 in the present case is that the first defendant’s undoubted possession of that 8 grams of heroin is deemed by statute to have been possession for supply, unless he can prove on the balance of probabilities “that he ………had the prohibited drug in his ……… possession otherwise than for supply” .

[7] The first defendant’s own assertion that his possession of the 8 grams of heroin was possession for the sole purpose of his own use ought not to be merely accepted at face value; but ought to be tested against what is demonstrable about his relevant activities during the 6 year period ante-dating 5 September 2000.

[8] That testing ought to convince this Court that the first defendant has not rebutted the statutory presumption for which s 29 of the D.M.T act provides. In that event, he is to be deemed to have had the 8 grams of heroin in his possession for supply; and to have been thereby involved in a supply within the extended statutory definition earlier herein noted.

[9] Such a supply, because it contravenes s 25(1) of the D.M.T. Act, is a “drug trafficking offence” as defined in s 6(3) of the C.A.R. Act. Such a “drug trafficking offence” is a “serious criminal offence” for the purposes of the C.A.R Act”: s 6(2)(b).

[10] Anything done by a person which constitutes, at the time at which it is done, a “serious criminal offence” , amounts to a “serious crime related activity” for the purposes of the C.R.A. Act; including, in particular, s 27(2)(a) of that Act.

[11] A quantity of 8 grams of heroin is not only greater than the prescribed traffickable quantity; but is, as well, greater than the prescribed indictable quantity. This fact brings the present case within s 27(2)(a) of the C.A.R Act.

[12] Further, a contravention of s 25(1) of the D.M.T Act is punishable by imprisonment for more than 5 years. This fact brings the present case within s 27(2)(b) of the C.A.R Act.

As to the foregoing twelve numbered propositions:

[1] The propositions numbered [1] to [7] both inclusive are, in my opinion, manifestly correct.

[2] If the premise fundamental to the proposition numbered [8] be established, then not only that proposition, but the propositions numbered [9], [10], [11] and [12], also, are in my opinion necessarily established.

[3] As to the proposition numbered [12], I make the following additional observations.

The “small quantity” prescribed for heroin by Schedule 1 to the D.M.T. Act is 1 gram. A contravention of s 25(1), in a case where more than 1 gram of heroin is involved, cannot be disposed of summarily in the manner provided by s 30 of the D.M.T. Act.

The “indictable quantity” so prescribed for heroin is 5 grams. A contravention of s 25(1), in a case where more than 5 grams of heroin is involved, cannot be disposed of summarily in the manner provided by s 31 of the D.M.T. Act.

The end result in a case where 8 grams of heroin is the quantity involved, is that a contravention of s 25(1) falls to be disposed of pursuant to s 33 of the D.M.T. Act, the relevant penalty there provided being imprisonment for up to 15 years.

10 The foregoing analysis entails that the core question of fact now to be determined is whether the Court is satisfied on the probabilities that the first defendant’s possession on 5 September 2000 of 8 grams of heroin was possession “otherwise than for supply”, so as to entail that the s 29 deeming provision has been displaced.

11 In order to answer that core question of fact, it is necessary to look with some care at the evidence given by the first defendant, both by affidavit and orally.

12 The first defendant swore, in connection with the present proceedings, two affidavits, one on 23 September 2002 and the other on 30 May 2003.

13 The first affidavit is very brief. It deposes, simply and essentially, that the 8 grams of heroin in his possession on 5 September 2000 “was for my own use”.

14 The second affidavit is much more detailed. In it the first defendant describes an on-going heroin abuse habit commencing at about Christmas 1995. The affidavit asserts that the progress of that habit was interrupted from time to time by attempts made by the first defendant to detoxify and to break the habit. These interruptions occurred, according to the affidavit, for about a month in March/April 1996; for about 2 months in September/November 1997; from the middle of November 1997 until “about Easter 1998”; from early July 1998 until end-October 1998; for about a month in November/December 1998; from mid-December 1998 until “about Easter 1999”; for about 5-1/2 months in September 1999/February 2000; and for a short period of perhaps 2 weeks or thereabouts in May/June 2000.

15 This history, if accepted, establishes that the first defendant, in the period from Christmas 1995 until his arrest on 5 September 2000, a period of about 4 years and 9 months, was a heroin addict except for odd periods totalling about 22 months.

16 The affidavit deals, also and specifically, with the 8 grams of heroin found in the first defendant’s possession on 5 September 2000. The explanation there advanced is:

“On 4th September 2000 after work at about noon, I drove to Sydney and purchased about 9 grams of heroin for $1200.00. I purchased a little bit more this time because I had more money. I purchased this heroin for my own personal use and did not intend to supply it to anyone. About one or two days prior to this I withdrew about $2000.00 from one of my accounts. I used $1200.00 of this money to purchase the heroin. At about 9 pm on the same day I drove back to Port Macquarie. At about 1.00 pm. I arrived at my house in Port Macquarie and smoked about 0.01 grams of heroin and left the rest in the garage where I smoke. After that I went to work. I came back from work at about 10 or 11 am on 5 September, 2000. I had a shower and went to the garage and had another smoke and put the rest in my pocket and was going to put it away later, but I forgot. I was sitting in the garage for about 15 minutes when my partner Hong Viet Luu called me and on the phone (sic), I went into the house to pick up the phone. She told me to rush me to go dentist at Horton St., Port Macquarie as I was late for my appointment. I took my son, Jayden and left and forgot to put the heroin away. I drove for about 200 metres from my house to Acroyd Street where I stopped in order to shield the sun from shining into Jayden. The police pulled up behind me and came up to me and said “Joey where are you going”. I said “I am not Joey”. They then asked me for my licence. Joey is one of my other brothers, who often get into trouble with the police. I was search (sic) and the heroin was found in my pocket. I told the police then and there that it was for my own use.”

17 By far the greater part of the first defendant’s oral evidence was given in cross-examination. That cross-examination was directed in part to the contents of the affidavit of 30 May 2003; in part to the contents of documents submitted by the first defendant to the Rapid Detox Centre at Liverpool on an occasion in May 2000 when he sought admission to, and treatment at, that facility; and in part to answers given by the first defendant upon his examination on 19 February 2001, and pursuant to the C.A.R. Act, by a Registrar of this Court.

18 Upon the whole of that evidence I am satisfied of the following matters:

[1] The first defendant came to Australia from Vietnam in either 1990 or 1991. He was, upon arrival in this country, practically destitute.

[2] He bought, subsequently, a bakery business in Port Macquarie, in partnership with two of his brothers, and thereafter earned regular, but modest, income. For the year ended 30 June 1994 his taxable income was $5,673. For the following financial years his income was:

1994/95 $11,146

1995/96 $18,188

1996/97 $13,094

1997/98 $15,750

1998/99 $20,200

1999/2000 $23,100

It is not entirely clear whether some of these amounts are taxable income or after-tax income. I treat them on the basis more favourable to the first defendant, that is to say, as after-tax available income.


[3] These earnings were his only demonstrated legitimate income for the given years. For all practical purposes these earnings were all consumed by the normal day-to-day living expenses of the first defendant and his dependents.

[4] During the period of six years prior to the application for a proceeds assessment order, i.e. the period from 18 October 1994 to 18 October 2000, the first defendant became a casual user of heroin; and that casual use developed into a significant, a continuing, and a very expensive heroin addiction.

[5] The evidence, and in particular the oral evidence of the first defendant, is not entirely consistent as to amounts and costs in connection with his heroin habit.

In oral evidence the first defendant gave at one point this evidence:

“Q. *Isn’t it true that from the beginning of 1998 until about May 2000 you were using heroin daily?
A. *Yes.
Q. **Isn’t it true that your habit throughout that period was costing you $500 or $600 a week?
A. **Yes, about that much
Q. ***That was from the beginning of 1998 until you went to the detox clinic, wasn’t it Mr. Le?
A. ***Yes.
Q. Indeed, when you went to the detox clinic your rate of use was up to about 1.5 grams a day?
A. When I fill out the form, yes, on paper”

The flow of that evidence was interrupted at the instance of the first defendant’s solicitor, who was said to be a fluent speaker of Vietnamese. It was suggested that the answers as given had responded to questions that had been misinterpreted by the accredited interpreter through whom the first defendant’s evidence to that point had been given; and through whom the balance of the first defendant’s evidence was thereafter given. After some discussion, in the absence of the first defendant and of the interpreter, as to how the solicitor’s intervention might best be handled, (see T 47-49), the questions and answers noted above were re-read to the first defendant. What then transpired is recorded as follows:

“QUESTION MARKED * READ
HIS HONOUR: Q. Do you understand the question Mr. Le?
A. On and off. I use it on and off.
Q. ANSWER MARKED * READ
HIS HONOUR: Tell Mr. Le that is the answer that was recorded when the answer was given previously.
Q. Do you understand, Mr. Le, the question that was asked and the answer that you are recorded as having given?
QUESTION AND ANSWER MARKED * READ
HIS HONOUR: Q. Do you understand that the question which has just now been translated to you and the answer which has just now been translated to you are recorded as a question that you were asked and the answer that you gave to it?
A. No.
Q. “No” what?
A. Between 1998 and year 2000 I didn’t use it all the way. I use it on and off. I don’t remember exactly. I didn’t use it all the way through.
HIS HONOUR: Does your solicitor want to be heard, Mr. Buscombe?
A. No your Honour.
QUESTION AND ANSWER MARKED ** READ
HIS HONOUR: Q. Do you understand that question?
A. Yes.
ANSWER MARKED ** READ
HIS HONOUR: Q. Do you understand the answer?
A. Yes.
Q. Do you understand that what has just been read to you was a question you were asked a little while ago and an answer you are recorded as having given to that question a little while ago? Do you understand?
A. It was not clearly explained just recently.
Q. What was not clearly explained?
A. Before, it was not interpreted clearly.
Q. What part of it was not interpreted clearly?
A. What you, the interpreter, say about using $500 to $600 a week, that was not true. That’s not what it existed.
Q. Then why did you tell me that it did?
A. I thought when he asked me before, right before, I went into the detox programme, over that period, right before.
HIS HONOUR: Does your solicitor want to be heard Mr. Buscombe?
BUSCOMBE: No your Honour.
QUESTION AND ANSWER MARKED *** READ
HIS HONOUR: Q. Do you understand that that question and answer are recorded as having been a question asked of you and an answer given by you to the question not ten or fifteen minutes ago? Do you understand that?
A. I still don’t understand, I still don’t remember.
Q. What don’t you understand or what don’t you remember?
A. Would you repeat the question please?
QUESTION AND ANSWER MARKED *** READ
HIS HONOUR: Q. Do you understand what has just been translated over to you?
A. Yes.
HIS HONOUR: Does you solicitor want to be heard Mr. Buscombe?
BUSCOMBE: No your Honour.”


I do not accept the first defendant’s revisions of his initial answers. I have no doubt, both from my own subsequent observations of him, and from some actual answers later given by him, that the first defendant has, not a fluent command of cultivated and idiomatic English, but a good, basic functional capacity to understand basic spoken English. I am wholly unconvinced that there was any mis-translation or misinterpretation of a kind or degree that would render it unfair to the first defendant to hold him to his initial answers.

Once that point is reached, then the probabilities are, in my opinion, that for either the whole, or very nearly the whole, of the 2-1/2 years or thereabouts up to May 2000, the first defendant was somehow supporting an entrenched heroin habit that was costing him in the order of $500-$600 per week.

[6] The conclusions noted in [5] above are strengthened, in my opinion, by reference to the papers completed on the first defendant’s behalf on 29 May 2000 when he was admitted to the Rapid Detox Centre at Liverpool.

According to the details furnished in those documents, the first defendant had been using heroin regularly for 5 years; had been using it daily “(b)efore heroin detox and starting Naltrexone treatment” ; and had used, usually, a daily dosage of 1.5 grams.

I accept that these documents, which are printed in English, and which have been completed in English-language handwriting, were so completed by the first defendant’s wife on his behalf. Even allowing for the possibility of error in this or that detail, there can be in my opinion no sensible room for the view that everything in the documents is erroneous; and the unmistakeable thrust of the statements made in the documents is that for a long time prior to May 2000 the first defendant was supporting, somehow, a daily heroin usage of up to 1.5 grams a day.

[7] It is, obviously, a relevant question how a man whose peak available income, in 1998/99 and 1999/2000, was respectively $20,200 and $23,100 could possibly have supported a heroin habit at the level described in paragraphs [5] and [6] above.

There is no evidence to suggest that the first defendant was able to fund his habit directly and exclusively from his lawfully earned income. There is no evidence of supplementary lawful income; of borrowings from sympathetic friends or relatives in order to fund the habit; or of a line of credit with his suppliers. The evidence, indeed, is that the first defendant paid in cash, purchase by purchase, for all of his heroin purchases.

[8] Leaving aside the plaintiff’s contention that the first defendant was a heroin trafficker, there is no evidence whatsoever of any other income-generating activities, whether lawful or unlawful, on the part of the first defendant. There is, however, plenty of evidence that the first defendant had access to regular supplies of heroin for which he paid regularly in cash. Looking only at the first defendant’s demonstrated income position, the inference is, in my opinion, overwhelming that the probabilities are that he was supporting his drug habit, at least between the beginning of 1998 and, say, mid-2000, by buying in and then on-selling quantities of heroin in order to generate the considerable extra income that he needed in order to fund his own heroin habit.

[9] That point once reached, then it seems to me to be the overwhelming inference on the probabilities that the deeming effect of section 29 of the D.M.T. Act has not been displaced. Indeed, the probabilities seem to me to be quite to the contrary.

[10] The conclusion reached in [9] above is strengthened, in my opinion, by the available evidence as to the first defendant’s net asset position as of September 2000.

It must be said that the evidence is not absolutely precise in bare money terms; but it seems to me to be clear that, as of September 2000, the first defendant had beneficial interests in real estate in Port Macquarie; in the bakery business; and in a motor vehicle bought for about $30,000 in cash. I accept the need for caution in assigning precise money values to the first defendant’s beneficial interests in those assets; but allowing for all prudent discounting, it seems to me to be incontestable on the evidence as it stands, that the first defendant was not only living beyond his apparent lawful means, but was also accumulating substantial interests in assets of substantial worth.

This consideration seems to me to strengthen on the probabilities the inference, otherwise available, that during the relevant time-span the first defendant had available to him some illegitimate source(s) of income; and that the only discernible such source was heroin dealing.

19 The reasoning and the findings which I have summarised in the preceding paragraphs numbered [1] to [10] inclusive lead me to the conclusion that the plaintiff has made good its claim to a s 27 order founded upon conduct contravening s 25(1) of the D.M.T. Act.

The Proceedings against the First Defendant; as founded upon Conduct contravening s 27 of the D.M.T. Act

20 This alternative basis upon which the plaintiff’s case was argued depends upon the following provisions of the D.M.T. Act:

“27. A person who aids, abets, counsels, procures, solicits or incites the commission of an offence under this Division is guilty of an offence and liable to the same punishment, pecuniary penalties and forfeiture as if the person had committed the firstmentioned offence.”

21 The plaintiff’s argument can be summarised in the following sequence of propositions:

[1] The first defendant admits to having made a number of particular, discrete purchases of heroin. Some of them were made from a friend who was able and willing to supply heroin to the first defendant. Some of them were made from a supplier recommended by a friend.

[2] Each such purchase by the first defendant was the fruit of conduct contravening s 27 of the D.M.T. Act in that each offer to purchase constituted conduct that procured or solicited a corresponding supply.

[3] That entails that each such supply to the first defendant having been solicited or procured by him, he is to be treated as being “liable to the same ….. pecuniary penalties and forfeiture” as if he had been the actual supplier rather than the actual purchaser.

22 In my opinion:

23 [1] The most common meaning attached to the word “procure” is “to cause or to bring about”: Reg v Beck [1985] 1 WLR 22 at 28F. See also the definition, expressly approved, in Beck, given by Lord Widgery CJ in Attorney General’s Reference (No. 1 of 1975) [1975] QB 773, that definition being:

“To procure means to produce by endeavour. You procure a thing by setting out to see that it happens and taking the appropriate steps to produce that happening. We think that there are plenty of instances in which a person may be said to procure the commission of a crime by another even though there is no sort of conspiracy between the two, even though there is no attempt at agreement or discussion as to the form which the offence should take………..”


[2] As to the notion of soliciting, I am of the opinion that it means, in the context of s 27 of the D.M.T. Act, what it was defined as meaning in the judgment of Huddleston B in The Queen v Most (1881) 7 QBD 244 at 258: that is to say, “…………to importune, to entreat, to implore, to ask, to attempt to try to obtain” .

[3] When the first defendant actively sought and found a supplier to him of heroin, then, in my opinion, he both procured and solicited the commission by the supplier of a contravention of s 25(1) of the D.M.T. Act. Such reasoning seems to me to be consistent with the reasoning of Hodgson JA in Reg v Eade [2002] NSWCCA 257 at paragraph 54.

[4] On that basis, the first defendant undoubtedly both procured and solicited the supply to him of the 8 grams of heroin of which he was in possession on 5 September 2000.

[5] The first defendant’s own exposure to “pecuniary penalties and forfeiture” is assimilated by s 27 of the D.M.T. Act to what his exposure would have been had he supplied the 8 grams of heroin to another.

[6] The consequence of that is to bring the first defendant within the ambit of s 27(2)(a) and (b) of the C.A.R. Act.

[7] The foregoing reasoning would apply equally to any individual purchase made during the period 18 October 1994 – 18 October 2000, and involving a quantity of 5 grams or more. That there were such purchases is clear from paragraph 20 of the affidavit sworn by the first defendant on 30 May 2003.

24 I have come therefore to the conclusion that the plaintiff has made good its claim to a s 27 order under the C.A.R. Act, founded upon conduct contravening s 27 of the D.M.T. Act.

The Proceedings against the Second Defendant

25 It was not controversial at the hearing in this Court that the formal requirements of s 22(1) of the C.A.R. Act had been satisfied; and that the first defendant was the person whose suspected serious crime-related activity had formed the basis of the relevant restraining order.

26 In those circumstances it was not contended, as I followed the submissions of learned counsel for the defendants, that if the Court made the findings contemplated by s 27(2) of the C.A.R Act, then those findings entailed not only that a proceeds assessment order must be made against the first defendant, but that an assets forfeiture order must be made against the second defendant, but subject, of course, to her rights thereupon to make an application for an exclusion order.

Costs

27 So far as concerns the Summons proceedings, there is no reason that I can see for any departure from the basic principle that costs should normally follow the event.

28 So far as concerns the costs of the Notice of Motion for Summary Judgment, I think that it was not unreasonable at the time of the filing of that Notice of Motion for the plaintiff so to move. I think, further, that it was not unreasonable for the plaintiff to keep that motion on foot simultaneously with the summons proceedings until such time as something happened to raise a triable issue as to the plaintiff’s entitlement to summary judgment. That point arrived with the formal reading of the first defendant’s two affidavits.

29 In those circumstances, I think that no injustice is done by making the costs of the formally dismissed Notice of Motion costs in the Summons proceedings.

Orders

30 For the whole of the foregoing reasons I make the following orders:

(1) I dismiss the plaintiff’s Notice of Motion for summary judgment filed on 17 September 2002.

(2) I order that the costs of that Notice of Motion be costs in the proceedings instituted by Summons on 17 October 2000 and continued by the Third Amended Summons filed on 22 November 2000.

(3) I make against the first defendant an order pursuant to paragraph 7 of that Third Amended Summons.

(4) I make against the second defendant an order pursuant to paragraph 9 of that Third Amended Summons.

(5) I order the defendants to pay the plaintiff’s costs of the Summons proceedings.

(6) I direct the plaintiff to apply to the Common Law Division List Judge not later than 28 days from today for directions as to the implementation of the orders (3) and (4).

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Last Modified: 06/12/2003