Price v Davies
[2002] WASCA 197
•26 JULY 2002
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: PRICE -v- DAVIES [2002] WASCA 197
CORAM: McKECHNIE J
HEARD: 19 JULY 2002
DELIVERED : 26 JULY 2002
FILE NO/S: SJA 1079 of 2002
BETWEEN: GREGORY LEWIS PRICE
Applicant
AND
DALE ASHTON DAVIES
Respondent
Catchwords:
Misuse of drugs - Order for forfeiture - No opportunity to show cause - No new principles
Legislation:
Misuse of Drugs Act 1981 (WA)
Result:
Application to extend time granted
Appeal allowed
Category: B
Representation:
Counsel:
Applicant: Mr R A Mazza
Respondent: Mr B D Meertens
Solicitors:
Applicant: Mazza & Mazza
Respondent: State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Price v Davies [2001] WASCA 81; (2001) 120 A Crim R 183
Case(s) also cited:
Lam v The Queen (2000) 22 WAR 388
McKECHNIE J: This is an application for leave to appeal against a forfeiture order.
The application, together with an application for extension of time within which to appeal, was filed on 17 June 2002.
The order under challenge was made on 28 February 2002. The applicant deposes:
"I apply for an extension of time to bring this application. I was in prison until my date of release on parole on 29 May 2002. Although I consulted with my lawyer prior to that date about the prospects of an appeal, I found it difficult to turn my mind to the issues until my release. I believe that my appeal has merit and that it would be unjust for leave not to be granted because the appeal is out of time. I submit that there will be no prejudice to the respondent if an extension of time is granted."
Although there may be no prejudice to the respondent, that is not in general a sufficient reason for granting an application to extend time, particularly in circumstances where the applicant clearly addressed the issue of an appeal and made a conscious decision to leave consideration of it until his release. The appeal is substantially out of time and the application for extension is opposed by the respondent.
However, both parties agreed that the relevant principle is that the applicant must show a substantial injustice if the decision appealed from were allowed to stand.
As the argument in relation to this is the same argument as on the appeal, the applicant's solicitor was somehow able to persuade the Supreme Court Registry to list the matter in general chambers for an argument as to both the application for leave and the appeal itself. To this end, an appeal book was prepared. The respondent did not oppose this course. In fact the respondent was prepared to, and did, argue the appeal and the application for leave to appeal.
Subject to a caveat about the matter being appropriate for inclusion in the general chambers list (which requires that matters should take no longer than 20 minutes to argue) the procedure adopted in this case is in fact useful and convenient and avoids a degree of duplication of effort. I turn to the merits of the appeal.
By way of background, on 16 May 2000 the applicant was charged with cultivating cannabis with intent to supply. He pleaded guilty to that charge and was convicted, but a subsequent appeal: Price v Davies [2001] WASCA 81; (2001) 120 A Crim R 183 was successful and the matter remitted to the Court of Petty Sessions for trial.
The trial took place on 11 and 12 February 2002, following which the Magistrate reserved his decision until 22 February 2002, when he found the complaint proved and recorded a conviction against the applicant. The sentencing was adjourned until 28 February 2002 on which date the applicant was sentenced to 9 months imprisonment with a parole eligibility order.
He also made orders for forfeiture of certain property which had been seized under a holding order, including $25,000 in cash. It is this amount of cash which is the subject of the application.
Relevant circumstances of the offence
The applicant owned property at 1305 Mandurah Road, Baldivis. On the property was a steel framed shed under which was an underground bunker containing 47 cannabis plants being grown hydroponically. The applicant had been convicted of growing 50 cannabis plants at an address in Palmyra.
The issue at the trial was whether the 47 cannabis plants found in the underground bunker were grown with intent to sell or supply, the applicant admitting possession.
The applicant's evidence was that as a result of an industrial accident he had received compensation in the amount of $280,000 in 1988 and began to use cannabis for pain relief by preparing a form of butter into which cannabis was infused then mixed into a cake and eaten. In the course of his reasons, the Magistrate dealt with the applicant's financial affairs as follows:
"He also recounted the history of his financial affairs, real estate dealings, and that he was in the habit of keeping a considerable amount of cash in his house, confessing to a little bit of gambling. His land holdings included the property at 34 Tunnicliffe Street, occupied by his mother‑in‑law. He stated that he (sic) no intention to sell or give away the cannabis."
The reference to Tunnicliffe Street was a reference to the premises in Palmyra where the 50 cannabis plants had been found.
The Magistrate considered the credibility of the applicant very carefully before making a series of conclusions, saying:
"All of those issues to my mind suggest that Mr Price's evidence is unreliable. These facts, coupled with the evidence of the date of publication of the newspaper, lead me to the conclusion that the defendant is an untruthful witness.
His statement that he did not intend to sell or supply the cannabis to another, and that the crop was his first, are clearly not true when examining all the other elements in their totality: …"
Proceedings in relation to the forfeiture
The proceedings on 28 February 2002 were marked by some confusion and I should set out all the relevant transcript. The Magistrate sentenced the applicant to a period of 9 months imprisonment, as I have related, and then told him he may be seated when the prosecutor said:
"PROSECUTOR: Sir, there's one outstanding matter and that is the question of the holding order that was tendered as exhibit H during the trial. The Crown moves for an order that those matters be - - those items be confiscated - - forfeited I should say.
HIS WORSHIP: … (indistinct) …
PROSECUTOR: Yes, there is also $25,000 in cash as part of that. Excepting the cash - we move for an order that the other items be destroyed.
HIS WORSHIP: You don't require a further order for destruction of the drugs?
PROSECUTOR: And destruction of the drugs sir, yes.
COUNSEL: On the understanding your Worship, that the order sought by my friend does not include the $25,000 I don't oppose the order sought.
HIS WORSHIP: What was the number of that holding order?
PROSECUTOR: 77 double … (indistinct) … 4. We move for a forfeiture of all the items in it and an order for destruction of all the items except the cash.
COUNSEL: My client's just made the point - the scales I think are part of that and your Worship observed during the course of your reasons, that there may be another reason for scales. Certainly my client instructs me it was another reason, that is in the measuring of gun powder charge.
There's the trailer and the gas bottles belong to CIG. In fact, I've seen some correspondence on - I think - one of my predecessors (sic) files, where CIG are demanding the gas bottles.
PROSECUTOR: Okay; well perhaps I could fix that then with a little more precision sir. We can exclude the scales for the time being. That aspect can be adjourned sine die and we may not proceed with it, depending on what the police view is.
HIS WORSHIP: The scales were item number 6 or 7?
PROSECUTOR: 4. So far as the gas bottles are concerned, perhaps an order for their return to the - - CIG or the appropriate owner. That's item 32. And otherwise an order for the forfeiture of the remaining items and an order for destruction of all except item 2, the cash.
COUNSEL: My client - - I referred to the trailer - -
PROSECUTOR: Oh - -
COUNSEL: Now I realise that - -
PROSECUTOR: The trailer's we would say, apparently used for the purposes of conveying cannabis at some stage and it was part of our case that there was cannabis material found. I leave that to your Worship.
COUNSEL: Your Worship has heard the evidence and I understand … (indistinct) … except to say that the evidence was that there was a minute amount of cannabis material found. I think it was soil which had hydro - - tetrahydrocannabinol in it. Not necessarily consistent with the transportation of cannabis. And my client gave an explanation as to why it might be that there was that minute trace.
In my respectful submission it's still a discretionary matter for your Worship as to whether or not it's connected property. In my respectful submission it's not connected property. But even if it's found that it was - you could exercise a discretion not to forfeit it, given that it's use would've been - - we say, that there was no proven use in the cultivation and even if it was, it was very peripheral to it.
HIS WORSHIP: Well what is it that you're seeking for me to do with these items?
PROSECUTOR: Have them forfeited to the Crown sir, under the Misuse of Drugs Act.
HIS WORSHIP: Are you seeking the order for forfeiture?
PROSECUTOR: Forfeiture and destruction.
HIS WORSHIP: Well I don't believe I can do both. I can do one or the other.
PROSECUTOR: Well destroy the drugs for certain. The - -
HIS WORSHIP: 28(3)(C) (D) and (E) sets out what I can do - order the item to be released to the claimant?, be destroyed or be forfeited to the Crown. They can't do multiple combinations of both in respect to the same property.
PROSECUTOR: Well I've been requested then that certainly the items apart from the money be destroyed. So an order for destruction sir.
HIS WORSHIP: Accepting that CIG - if that's the correct description - is a claimant and that the cylinders in question ought be released to them?
PROSECUTOR: Yes. Or alternatively if they're forfeited to the Crown we'll undertake to have them returned to the appropriate owner.
HIS WORSHIP: I think an order their release … (indistinct) … The trailer was item number?
PROSECUTOR: 55, I think.
HIS WORSHIP: Well there'll be an order to this effect - that of the items seized in holding order number 77554 item number 32, the two gas cylinders are ordered to be released to CIG.
And then with the remainder of the items on that holding order - excluding the set of scales, item number 4 and the trailer, item number 55, which are to be released to the defendant - the remaining items are forfeited to the Crown."
Reading this transcript afresh, and with hindsight, it appears clear that notwithstanding an initial infelicity of expression, the prosecution at all times was seeking to have the $25,000 forfeited.
However, I completely accept that the applicant's counsel was confused by the initial comment:
"Excepting the cash - we move for an order that the other items be destroyed."
and mistakenly proceeded on the assumption that no application was being made for the cash.
No reasons were given by the Magistrate in forfeiting the cash. The grounds of the application are that:
"(a)The learned magistrate gave no reasons or no adequate reasons for his decision to forfeit the sum of $25,000 to the Crown."
It is unnecessary for a court to give reasons if an order is unopposed. In this case, I consider that there was no obligation on the Magistrate to give reasons in the particular circumstances as they appeared to him. There seemed to be a challenge in relation to forfeiture of the scales, the gas bottles and the trailer and the Magistrate resolved that challenge. As there did not appear to be a challenge in relation to the $25,000, he was not called upon to resolve that issue and so did not do so. I do not consider he has made an error.
However, it may be that in the circumstances there was a miscarriage of justice if the applicant was deprived of the opportunity of making submissions as to forfeiture because his counsel had innocently failed to do so because of the events I have outlined. I shall proceed and determine the application on this basis.
The position, as the Magistrate found, was that the applicant had been involved in a sophisticated operation in the cultivation of cannabis. This was not the first cultivation.
The $25,000 was within the Magistrate's contemplation because in the Magistrate's reasons, he recounted the finding of the money and thereafter dealt with the applicant's evidence as to his financial affairs before concluding that he was an untruthful witness.
One part of the money was tested positive for the presence of tetrahydrocannabinoids, but I regard that fact as immaterial.
The Misuse of Drugs Act 1981 provides by s 28(3)(b) that a claimant must be given an opportunity to show cause why the $25,000 should not be released to him before ordering forfeiture.
The Magistrate does not precisely deal with the explanation given by the applicant about the money. It may be that he rejected it as untruthful as he did the other matters raised. However, it was not essential for him to resolve the issue and I am not sure if he did.
Because of the mistake made by the applicant's counsel, the applicant was never given an effective opportunity to show cause why the $25,000 should not be released to him.
The amount of money is significant. For these two reasons, I consider there would be a substantial injustice if the order for forfeiture were allowed to stand.
I propose to grant the application for extension of time and allow the appeal. The appeal will be allowed so that the applicant may have an opportunity to show cause before the Magistrate why the $25,000 should be released to him.
Orders
1.The application to extend time in which to appeal is granted.
2.The appeal is allowed.
3.The order for forfeiture of the sum of $25,000 is set aside.
4.The matter is remitted to the Court of Petty Sessions before R Bromfield Esq, Stipendiary Magistrate, for the applicant to show cause why the sum of $25,000 should not be returned to him.
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