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Palfrey v Macphail

Palfrey v Macphail

Case [2004] WASCA 257 12 November 2004

Appeal

Jurisdiction

Statutory Construction

Criminal Law

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JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE FULL COURT (WA)

CITATION: PALFREY -v- MACPHAIL & ANOR [2004] WASCA 257

CORAM: MILLER J
EM HEENAN J
LE MIERE J

HEARD: 19 APRIL 2004

DELIVERED : 12 NOVEMBER 2004

FILE NO/S: FUL 82 of 2003

BETWEEN: TAMMY NICOLE PALFREY
Appellant
AND
COLIN STEWART MACPHAIL
First Respondent
DIRECTOR OF PUBLIC PROSECUTIONS
Second Respondent

ON APPEAL FROM:
For File No               :  FUL 82 of 2003
Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA
Coram  :BARKER J
Citation  :RE COLIN STEWART MACPHAIL, JUSTICE OF THE PEACE; EX PARTE TAMMY NICOLE PALFREY
File No  :CIV 1545 of 2003

Catchwords:

Appeal - Criminal law - Appeal against issue of freezing notice - Whether Justice of the Peace had jurisdiction to issue freezing notice - Criminal Property Confiscation Act 2000 (CPCA) - Misuse of Drugs Act 1981 (MDA), s 32A - Whether appellant's previous convictions constitute "serious drug offences" - Criminal Code, s 673 - Summary conviction for indictable offence deemed to be simple offence only - Whether s 673 applies to MDA - Whether the words "or a police prosecutor" are otiose if s 673 has effect - Section 9(2)(d) MDA - Exceptional circumstance in which person summarily convicted may be committed for sentence as though convicted on indictment - Whether person convicted of offence under s 6(1) MDA has been convicted of serious drug offence regardless whether tried on indictment or summarily - Principles of statutory construction - Ambiguity to be resolved in favour of refusal to extend circumstances of confiscation of property - Presumption that legislation does not interfere with vested proprietary interests - Regard to be had to consequence of competing interpretations - Operation of s 673 not excluded - Summary conviction of offence under s 6(1) MDA not ordinarily a serious drug offence - Significance of s 9(2)(d) MDA not drawn to attention of primary judge

Appeal - Criminal law - Whether convictions entered prior to commencement of CPCA can support application under s 32A MDA - Previous offences mere circumstances upon which legislation operates - Previous offences committed prior to commencement of CPCA not fatal to application under s 32A MDA

Legislation:

Criminal Code (WA), s 673

Criminal Property Confiscation Act 2000 (WA), s 8, s 9, s 34

Misuse of Drugs Act 1981 (WA), s 6(1), s 32A

Result:

Appeal allowed
Order absolute for writ of certiorari granted

Category: A

Representation:

Counsel:

Appellant:     Mr M S Macdonald
First Respondent           :     No appearance
Second Respondent       :     Mr K P Bates & Ms J L Bailey

Solicitors:

Appellant:     Macdonald Rudder
First Respondent           :     No appearance
Second Respondent       :     State Director of Public Prosecutions

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

Beckwith v R (1976) 135 CLR 569
Cheatley v R (1972) 127 CLR 291
Dossett v TKJ Nominees Pty Ltd (2003) 78 ALJR 161
Forbes (Collector Customs, NSW) v Traders Finance Corp Ltd (1971) 126 CLR 429
Hester v Davies, unreported; SCt of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Palfrey v Macphail

Details

AGLC: Palfrey v Macphail [2004] WASCA 257
Case: [2004] WASCA 257
Decision Date: 12 NOVEMBER 2004

CaseChat Overview and Summary

The case of Palfrey v Macphail involved an appeal against the issuance of a freezing notice under the Misuse of Drugs Act 1981, with the appellant challenging the jurisdiction of the Justice of the Peace to issue such a notice. The matter was heard in the Supreme Court of Victoria. The appellant argued that his previous convictions did not constitute "serious drug offences" as required by the Criminal Property Confiscation Act 2000, and questioned whether the relevant statutory provisions applied to the Misuse of Drugs Act 1981.

The legal issues before the court involved the interpretation of sections 673 and 9(2)(d) of the Criminal Code and the Misuse of Drugs Act 1981 respectively. Specifically, the court had to determine whether a summary conviction for an indictable offence was considered a simple offence only under section 673, and if the words "or a police prosecutor" in the MDA were redundant if section 673 applied. Additionally, the court had to assess whether the appellant's prior convictions qualified as "serious drug offences" under the Criminal Property Confiscation Act 2000, despite being committed before the commencement of that Act.

In its reasoning, the court emphasised the importance of statutory construction principles, particularly the presumption against extending the circumstances of property confiscation and the protection of vested proprietary interests. The court found that a summary conviction under the Misuse of Drugs Act 1981 was not ordinarily considered a serious drug offence, and that the significance of section 9(2)(d) was not adequately considered by the primary judge. Furthermore, the court held that previous offences, even those committed before the commencement of the Criminal Property Confiscation Act 2000, could still support an application under the Misuse of Drugs Act 1981.

The appeal was ultimately allowed, and the freezing notice issued by the Justice of the Peace was quashed. The court directed that the matter be remitted to the Magistrates' Court for reconsideration in light of the findings regarding the interpretation of the relevant statutes and the qualifications for a "serious drug offence".

Orders