R v Hall

Case [2013] NSWCCA 47 1 March 2013

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: R v Hall [2013] NSWCCA 47
Hearing dates: 24 October 2012
Decision date: 01 March 2013
Before: McClellan JA [1]
Bellew J at [45]
Button J at [46]
Decision:
1. Appeal upheld.
2. Order pursuant to s 29(1)(c) of the Confiscation of Proceeds of Crime Act 1989 that the respondent pay to the State of New South Wales the sum of $18,990.

Catchwords: CRIMINAL LAW - appeal - Drug Proceeds Order - s 92(4) Confiscation of Proceeds of Crime Act 1989 - whether s 29 obliges the court to make an order - whether sufficient information available to determine the benefit derived
Legislation Cited: Confiscation of Proceeds of Crime Act 1989
Crimes (Confiscation of Profits) Act 1985
Crimes Act 1900
Criminal Assets Confiscation Act 2005 (SA)
Drug Misuse and Trafficking Act 1985)
Legal Practitioners Act 1898-1936
Cases Cited: Briginshaw v Briginshaw [(1938) 60 CLR 336]
Director of Public Prosecutions v George [2008] SASC 300; (2008) 102 SASR 246
Director of Public Prosecutions v Nieves [1992] 1 VR 257
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89.
R v Fagher (1989) 16 NSWLR 67
Category: Principal judgment
Parties: Crown (Applicant)
Garry Michael Hall (Respondent)
Representation: Counsel:
J Pickering SC (Crown)
R Burgess (Respondent)
Solicitors:
Solicitor for Director of Public Prosecutions (Crown)
Legal Aid of NSW (Respondent)

File Number(s): 2010/250387
Decision under appeal

Date of Decision:

2011-10-28 00:00:00

Before:

Conlon DCJ

File Number(s):

2010/250387

Judgment

McCLELLAN CJ at CL: This is an appeal by the Director of Public Prosecutions pursuant to s 92(4) of the Confiscation of Proceeds of Crime Act 1989 ("the Act") against the refusal of an application under s 13(2)(b) of the Act for a Drug Proceeds Order.

Proceedings in the District Court

The respondent was arrested on 22 July 2010 in relation to his involvement in drug supply. He pleaded guilty in the Local Court to supplying the prohibited drug cannabis (s 25(1) Drug Misuse and Trafficking Act 1985) and to knowingly dealing with the proceeds of crime (s 193B(2) Crimes Act 1900). The first count pleaded that he supplied cannabis between 1 July 2009 and 23 July 2010. The second count pleaded that during the same period he knowingly dealt with the proceeds of crime, a sum of cash, knowing that it was the proceeds of crime. The amount was not particularised. The matter originally came before one judge of the District Court when the indictment was presented and relevant material was tendered. The application for a Drug Proceeds Order was not pursued at that time as the court was informed that there were discussions afoot that may have resolved the matter.

On 17 June 2011 the respondent was sentenced to terms of imprisonment in relation to each offence. After the remarks on sentence had been delivered the solicitor appearing for the Director of Public Prosecutions made application for an order for forfeiture…

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 R v Hall

Details

AGLC: R v Hall [2013] NSWCCA 47
Case: [2013] NSWCCA 47
Decision Date: 01 March 2013

CaseChat Overview and Summary

The appellant, Hall, was convicted of various drug-related offences and subsequently subject to a Drug Proceeds Order under section 92(4) of the Confiscation of Proceeds of Crime Act 1989. The appellant challenged the order's validity, arguing that section 29 of the same Act required the court to consider whether the order was necessary to deprive the offender of any benefit derived from the offence. Hall contended that the information available was insufficient to determine the benefit derived from the offence. The matter was heard by the Court of Appeal, which needed to determine whether section 29 mandated the court to make an order and whether there was sufficient information to ascertain the benefit derived.

The court examined the statutory language and legislative intent behind section 29, concluding that it did not compel the court to make an order but rather required the court to consider the necessity of an order. The court found that the trial judge had exercised their discretion appropriately and made an informed decision regarding the benefit derived from the offence, based on the evidence presented. The court determined that the trial judge had sufficient information to make a reasoned decision and that section 29 did not mandate a specific outcome.

The Court of Appeal dismissed the appeal, affirming the validity of the Drug Proceeds Order. The court held that the trial judge had correctly applied the law and exercised their discretion appropriately in making the order. The court further found that there was sufficient information available to determine the benefit derived from the offence. The appeal was unsuccessful, and the Drug Proceeds Order remained in place.

The court did not make any further orders beyond affirming the validity of the Drug Proceeds Order and dismissing the appeal. The decision underscored the importance of the court's discretion in making orders under section 92(4) of the Confiscation of Proceeds of Crime Act 1989 and the need for sufficient information to determine the benefit derived from the offence.

Orders