Re Shield
[2006] VSC 59
•24 February 2006
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1612 of 2005
IN THE MATTER of the Confiscation Act 1997
| IN THE MATTER of the deemed conviction of GARY MICHAEL SHIELD (deceased) |
| IN THE MATTER of an application by the DIRECTOR OF PUBLIC PROSECUTIONS |
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JUDGE: | HABERSBERGER J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 February 2006 | |
DATE OF JUDGMENT: | 24 February 2006 | |
CASE MAY BE CITED AS: | Re Shield | |
MEDIUM NEUTRAL CITATION: | [2006] VSC 59 | |
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Criminal Law – Confiscation of profits – Person charged with an automatic forfeiture offence – Person died before charge finally determined – Application for order that the evidence against the deceased person is of sufficient weight to support a conviction – Question as to what degree of proof that test requires – ss. 4(1) and (2), 5(a) and (d), 35 and 132 of the Confiscations Act 1997.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr C Juebner | Stephen Carisbrooke, acting for Solicitor for Public Prosecutions |
| For the Estate of Shield | Mr JB Saunders | Hill Legal Lawyers |
HIS HONOUR:
This is an application by the Director of Public Prosecutions ("the DPP") under the Confiscation Act 1997 ("the Confiscation Act") for a deemed conviction of Gary Michael Shield of the offence of trafficking a drug of dependence, namely cannabis, in a quantity that was not less than a commercial quantity applicable to that drug contrary to s.71AA of the Drugs Poisons and Controlled Substances Act 1981 ("the Drugs Act"), and for a declaration pursuant to s.35(3) of the Confiscation Act that the date of conviction is the date on which the order is made.
The Background
On 14 May 2004 Shield was charged that at Frankston on that day he did "traffick a drug of dependence namely cannabis in a quantity that is not less than a commercial quantity applicable to that drug "contrary to s.71AA of the Drugs Act 1981 ("the Drugs Act"). This is an "automatic forfeiture" offence as defined in Schedule 2 of the Confiscation Act. Shield was also charged with stealing electricity and dealing with property suspected of being the proceeds of crime.
On 17 June 2004 a Judge of the County Court of Victoria made a restraining order pursuant to s.18 of the Confiscation Act in respect of certain property in the name of Shield or his wife Vianna Shield or jointly in both their names, including seven real estate properties in Frankston. The restraining order was subsequently varied on three occasions.
Shield died on 25 June 2004, before he was committed to stand trial. Probate of Shield's estate was granted to his brother, the executor named in his Will, on 28 February 2005.
By an application filed on 29 December 2005 the DPP sought a declaration pursuant to ss.4(1)(d), 5(a) and (d) of the Confiscation Act that for the purposes of that Act Shield is deemed to have been convicted of the automatic forfeiture offence of which he was charged, and for an order pursuant to s.35(3) of the Confiscation Act concerning the date of conviction. The application was supported by an affidavit sworn on 30 November 2005 by Scott Jamie Hanley, a Detective Senior Constable with the Victoria Police.
At the commencement of the hearing, counsel for the DPP sought leave to file an amended application dated 1 February 2006, which made certain minor changes to the expression of the relief sought. A further affidavit by Detective Hanley sworn on 27 January 2006 had also been filed. In this affidavit, Detective Hanley corrected certain matters in his earlier affidavit and referred to some additional matters.
The Confiscation Act
The relevant provisions of the Confiscation Act are as follows:
"4. Meaning of 'conviction'
(1)For the purposes of this Act, a person is deemed to have been convicted of an offence if -
…
(d)the person has been charged with the offence but, before the charge is finally determined, the person absconds.
(2)For the purposes of this Act, a person who, because of sub-section (1), is deemed to have been convicted of an offence, is deemed to have committed that offence.
5. Meaning of 'absconds'
For the purposes of this Act, a person is deemed to abscond if -
(a)the person is charged with an offence but dies without the charge having been determined;
…
and either -
(c)the person was committed for trial for the offence; or
(d)a court makes an order that the evidence is of sufficient weight to support a conviction for the offence.
…
35.Automatic forfeiture of restrained property on conviction of certain offences
(1) If -
(a)a person is convicted of an automatic forfeiture offence; and
(b)a restraining order is or was made under Part 2 in respect of property for the purposes of automatic forfeiture in reliance on—
(i) the defendant's conviction of that offence; or
(ii)the charging or proposed charging of the defendant with that offence or a related offence that is an automatic forfeiture offence; and
(c)the restrained property is not the subject of an exclusion order under section 22—
the restrained property[i] is forfeited to the Minister on the expiry of 60 days after—
(d) the making of the restraining order; or
(e) the defendant's conviction—
whichever is later.
(2)If, within the period of 60 days referred to in sub-section (1), an application has been made for an exclusion order under section 22 in respect of restrained property, the property is forfeited to the Minister—
(a)if the application is refused or dismissed, at the end of the period during which the person may appeal against the refusal or dismissal or, if such an appeal is lodged, when the appeal is abandoned or finally determined without the order having been made; or
(b)if the application is withdrawn or struck out, on that withdrawal or striking out.
(3)If a person is, by reason of section 4(1)(d), deemed to have been convicted of an automatic forfeiture offence, the DPP may apply to the Supreme Court or the County Court for an order declaring the date of conviction for the purposes of this section.
(4)On an application under sub-section (3), the court must not make an order declaring the date of conviction of a person of an automatic forfeiture offence unless it is satisfied that the person has absconded.
…
132. Standard of proof
Any question of fact to be decided by a court on an application under this Act is to be decided on the balance of probabilities."
A conviction under s.4 of the Confiscation Act is a "fictional conviction". In Re Moran, which I was told was the first decision by this Court concerning these "deemed conviction" provisions, Teague J stated:
A 'deemed conviction' pursuant to ss.4(1)(d) and 5 of the Act is made solely for the purposes of the Act, namely, making provision in relation to forfeiture of property. The deeming provisions in the Act are solely a legal fiction. That is made clear by the words in s.4 of the Act "a person is deemed to have been.' The conviction is made solely '[f]or the purposes of this Act.' An order under s.5(d) therefore does not have the consequence, in fact or law, that Moran has been convicted of the offences."[1]
[1][2004] VSC 421 at [12]. See also Silbert v Director of Public Prosecutions (WA) (2004) 217 CLR 181 at [41]-[43] and [45] per Kirby J.
The Evidence
I have read both affidavits of Detective Hanley and the exhibits thereto and perused the actual hand-up brief. The evidence discloses that on 14 May 2004 the police searched three properties in Frankston. At the first property at 145 Heatherhill Road, Frankston ("the Heatherhill Road property"), which was registered in the names of Shield and his wife, the police ascertained that:
(a)inside the house and garage there were 90 cannabis plants growing in a sophisticated hydroponic setup and approximately 100 severed stems from recently harvested cannabis plants still in hydroponic tubs;
(b) the electricity meter had been by-passed; and
(c)the empty house contained very basic living arrangements including a mattress on the floor, a television and a refrigerator with only basic items of food, but there was no evidence of permanent occupation such as clothes.
In his interview with the police Shield admitted that the Heatherhill Road property belonged to him, that he was responsible for the cannabis plants found at the property, for the cultivation of the cannabis plants and for the hydroponic system and that he took full responsibility for the cannabis plants grown in the garage and bedrooms of the property.
At the second property at 156 Overport Road, Frankston ("the Overport Road property"), which was registered in the name of Shield alone and which was his residential address, the police ascertained that:
(a) in the garage there were:
(i) 101 growing cannabis plants;
(ii) 167 cannabis seedlings;
(iii) 8 trays of dried cannabis;
(iv) 1 plastic bag containing cannabis;
(v) loose dried cannabis on the floor;
(vi) a set of scales; and
(vii) 55 resealable plastic bags containing cannabis; and
(b) in the outbuilding (adjacent to the garage) there were;
(i) 188 growing cannabis plants;
(ii) 330 cannabis seedlings;
(iii) 1 bag of dried cannabis; and
(iv) a set of large electronic scales; and
(c) the electricity meter had been by-passed.
In his interview with the police Shield admitted that the Overport Road property was his residential address, that the back section of a shed on the property housed two rooms dedicated to the cultivation of cannabis, that the cannabis in the shed was grown hydroponically by a system he set up, that he took full responsibility for the cultivation of the cannabis and the hydroponic set up and that he was responsible for the cannabis found drying at the property.
At the third property at 16 Gattinara Drive, Frankston ("the Gattinara Drive property"), which was registered in the names of Shield and his wife, the police located 211 mature cannabis plants growing in the garage. They also found two boxes of prescription pills with Shield's name on them at the property. In his interview with the police Shield admitted that he owned the Gattinara Drive property, but said that it was rented out. He said that he had not been at the property for in excess of a year. Shield denied any involvement in the cultivation of cannabis at the Gattinara Drive property.
Further, Shield provided "no comment" answers to the allegations of trafficking in cannabis grown at the Heatherhill Road and Overport Road properties. According to the statement of Susan Elizabeth Fiddian, a Forensic Scientist and the Botany Branch Manager at the Victoria Police Forensic Services Centre, the cannabis found at these two properties weighed approximately 45 kilograms and that at the Gattinara Drive property weighed nearly 25 kilograms. Part of the evidence against Shield was a number of photographs taken by the police of the three locations, which clearly showed that the cultivation carried out at each property was a sophisticated setup, designed to produce a large quantity of cannabis.
Consideration of the Issues
The main issue raised for my determination is whether the evidence relied on by the DPP "is of sufficient weight to support a conviction for the offence." A preliminary issue is just what degree of proof that test requires. For example, does s.132 apply so that the question of fact "is to be decided on the balance of probabilities?" Or is it something akin to satisfaction beyond reasonable doubt?
In Silbert v Director of Public Prosecutions (WA) the High Court of Australia considered certain provisions of the Western Australian Crimes (Confiscation of Profits) Act 1988, which were similar to ss.4(1)(d) and 5(a) of the Confiscation Act. In the course of his judgment, Kirby J referred to the fact that:
"… the outcome of an application made under the Act remains to be determined by a court in accordance with the normal procedures of a court, decided by independent judicial officers, applying rigorous standards of proof."[2]
Later his Honour said:
"… the legislation bears numerous normal hallmarks of judicial assessment, discretion, judgment and reconsideration. It has judicial substance. It does not impose on judges functions that make them effectively the agents of the other branches of government."[3]
[2](2004) 78 ALJR 464 at [47]
[3](2004) 78 ALJR 464 at [48]
In Moran it was submitted on behalf of the DPP that a court, called on to make an order under s.5(d) that the evidence was of sufficient weight to support a conviction for the offence, was deciding a question of fact, and therefore that it was to be decided on the balance of probabilities. On the other hand, it was submitted by counsel representing the brother of the deceased that the test under s.5(d) was higher than that faced by a magistrate in deciding whether or not to commit for trial and that the evidence had to be such that a jury probably would convict. The passages from the judgment of Kirby J in Silbert referred to above were referred to in support of that submission.
Teague J said that the DPP's submission "troubled" him. Having referred to the contrary submission by counsel for the deceased's brother and to the passages from Silbert, his Honour continued:
"Does the test under s.5(d) require the court to make a decision on a question of fact, so that the decision is made on the balance of probabilities? Alternatively, is the decision one that is not as to a question of fact, but, like the decision of a magistrate as to whether or not to commit for trial, amounts to an expression of opinion as to whether the evidence is or is not sufficient to place the person on trial? See Potter v Tural (2000) 2 VR 612 at 618 [20]. If what is required is the forming of an opinion, is it as to whether the jury probably would convict, or is it as to some other question? I do not have to form a concluded view. These matters have not been argued before me. Because of the strength of the evidence presented to me, I am satisfied that even if the test were: 'Would the jury probably convict?', the answer would be yes."[4]
[4][2004] VSC 421 at [17]
In the present case, Mr Juebner of counsel, who appeared on behalf of the DPP, repeated the submission made on behalf of the DPP in Moran. Nevertheless, he helpfully pointed out that the wording of s.5(d) of the Confiscation Act was identical to that contained in cl.23(2) of Schedule 5 of the Magistrates' Court Act 1989. This suggests to me that the test being adopted in s.5(d) is the same test required to be applied when a court is considering whether to commit a person for trial.
However that may be, Mr Juebner submitted in the alternative that I did not need to determine this point because, even if the appropriate test is "would the jury probably convict?", the answer would be "yes" given that the evidence against Shield was so strong. Mr Saunders of counsel, who appeared on behalf of the estate of Shield, agreed that I did not need to decide this point. He stated that, whatever test was the correct one to apply, he did not submit that I could not be satisfied that the evidence relied on by the DPP was "of sufficient weight to support a conviction for the offence."
The following provisions of the Drugs Act are relevant to any consideration of whether the evidence relied on by the DPP is of sufficient weight to support a conviction of Shield of the offence in question. Section 70 provides that, in the relevant part of the Drugs Act unless inconsistent with the context or subject matter, "traffick" in relation to a drug of dependence includes:
"(a) prepare a drug of dependence for trafficking;
(b) manufacture a drug of dependence; or
(c)sell, exchange, agree to sell, offer for sale or have in possession for sale, a drug of dependence."
Section s.73(2) of the Drugs Act provides:
"(2)Where a person has in his possession, without being authorized by or licensed under this Act or the regulations to do so, a drug of dependence in a quantity that is not less than the traffickable quantity applicable to that drug of dependence, the possession of that drug of dependence in that quantity is prima facie evidence of trafficking by that person in that drug of dependence.”
In respect of cannabis, a "traffickable quantity" is 250 grams or 10 plants and a "commercial quantity" is 25 kilograms or 100 plants (s.70 and Part 2 of Schedule Eleven of the Drugs Act).
Section 5 of the Drugs Act provides that:
"Without restricting the meaning of the word 'possession', any substance shall be deemed for the purposes of this Act to be in the possession of a person so long as it is upon any land or premises occupied by him or is used, enjoyed or controlled by him in any place whatsoever, unless the person satisfies the court to the contrary."
I have also looked at a number of cases dealing with these sections, including in particular R v Clarke and Johnstone[5], R v Giretti and Giretti[6], R v Kardogeros[7], R v Pisano[8], R v Bandiera and Licastro[9], R v Wright[10] and R v Nguyen[11].
[5][1986] VR 643
[6](1986) 24 A Crim R 112
[7][1991] 1 VR 269
[8][1997] 2 VR 342
[9][1999] 3 VR 103
[10][2005] VSCA 79
[11][2005] VSCA 172
As the matter has not been fully argued before me, I am reluctant to decide the issue of what degree of proof the test in s.5(d) requires. Like Teague J in Moran, I consider that I do not need to decide that issue because I am satisfied that, whatever the answer, the evidence is "of sufficient weight to support a conviction for the offence." In reaching this conclusion I have taken into account that even without s.5 of the Drugs Act there were admissions by Shield that the cannabis found at the Heatherhill Road property and the Overport Road property was in his possession and control. On the question of whether Shield had the cannabis in his “possession for sale” within the definition of “traffick” in s.70 of the Drugs Act I have taken into account the following matters which it was submitted on behalf of the DPP led to a strong presumption of trafficking:
(a)Shield's admissions in relation to the cultivation of cannabis at the Heatherhill Road property and Overport Road property.
(b)the quantity of cannabis being cultivated at these two properties was so large as to lead to a strong presumption of trafficking;
(c)the fact that a crop had been harvested and was being dried suggested that it was being made ready for sale;
(d)the electronic scales and resealable plastic bags suggested that cannabis was being weighed and packaged for sale;
(e)the fact that there were cannabis seedlings, growing mature cannabis plants and harvested plants suggested a continuing source of supply;
(f)the fact that the hydroponic setup was sophisticated, involving an electricity meter by-pass suggested that it would have been costly to install; and
(g)the fact that the Heatherhill Road property appeared to be used only for the specific purpose of cultivating cannabis.
Finally, by virtue of s.73(2) of the Drugs Act, there is prima facie evidence of trafficking by Shield and the amount of cannabis found at the Heatherhill Road and Overport Road properties was well in excess of the weight and number of plants required for it to be a “commercial quantity”.
As I have said, Mr Saunders, on behalf of the estate of Shield, did not submit that I could not be satisfied that the evidence relied on by the DPP was "of sufficient weight to support a conviction for the offence." What he did submit, however, was that any such finding should be limited in its terms to the Heatherhill Road property and the Overport Road property, without any reference to the Gattinara Drive property. Counsel for the DPP did not oppose that course.
The evidence connecting Shield to the Gattinara Drove property was limited. Although it was registered in the joint names of Shield and his wife, there was evidence that the property was tenanted and that another person had been charged. Shield made no admissions in respect of the third property. Apart from ownership of the property, the only other connection with Shield were the two boxes of prescription pills with his name on them found at the Gattinara Drive property. I do not consider that this evidence was "of sufficient weight to support a conviction for the offence" of trafficking cannabis, whatever the test to be applied. I have, therefore, not made any reference to the Gattinara Drive property in my above findings.
Conclusion
Contrary to the wording of the application and the amended applicaton, it appears to me that the correct procedure is to make an order under s.5(d) and a declaration under s.35 of the Confiscation Act. This change was recognised in the actual order sought by the DPP at the hearing. I therefore propose to
(a)Order that for the purposes of the Confiscation Act 1997 the evidence against Gary Michael Shield in relation to the property at 145 Heatherhill Road and the property at 156 Overport Road is of sufficient weight to support a conviction against him for the offence of traffick a drug of dependence namely cannabis in a quantity that is not less than a commercial quantity applicable to that drug contrary to s.71AA of the Drugs Poisons and Controlled Substances Act 1981; and
(b)Declare that for the purposes of s.35 of the Confiscation Act 1997 the date of conviction in respect of the said offence is the date on which this order is made.
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