RJP v The Queen

[2011] VSCA 203

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCR 2011 0091

RJP	Applicant
	V
THE QUEEN	Respondent

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JUDGES	BONGIORNO JA and BELL AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	20 May 2011
DATE OF JUDGMENT	20 May 2011
MEDIUM NEUTRAL CITATION	[2011] VSCA 203
JUDGMENT APPEALED FROM	R v Roper (Unreported, County Court of Victoria, Judge Gullaci, 4 May 2011)

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CRIMINAL LAW – Interlocutory appeal – Application for review of trial judge’s refusal to certify – Whether charges on indictment foredoomed to fail – Proper construction of s 116 of Excise Act 1901 (Cth) – Powers v Maher (1959) 103 CLR 478 – Question raised by application inappropriate for determination on an interlocutory appeal – Application refused.

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Appearances:	Counsel	Solicitors
For the Applicant	Mr C Thomson	Mr S English
For the Crown	Mr R Pirrie	Mr C Craigie SC, Director of Public Prosecutions (Commonwealth)

BONGIORNO JA

1. This is an application for review of a decision of his Honour Judge Gullaci to refuse to certify as appropriate for appeal an interlocutory decision made by his Honour on 4 May 2011. This application is made pursuant to s 296(1) of the Criminal Procedure Act 2009.

1. The interlocutory decision made by his Honour was a decision to refuse to permanently stay charges 3 and 7 on the indictment upon which the applicant is to be tried.[1]

   [1]A refusal to permanently stay a proceeding is an ‘interlocutory decision’ for the purposes of the Criminal Procedure Act 2009.

1. Those charges allege that the applicant stole bales of tobacco leaf between September 2002 and January 2003.  The tobacco leaf is alleged to have been the property of the Commonwealth.  The charges were laid pursuant to s 131.1 of the Commonwealth Criminal Code.

1. The Crown contends that the Commonwealth’s proprietary interest in the tobacco leaf arose by operation of s 116 of the Excise Act 1901 (Cth). Section 116 provides as follows:

(1) The following goods shall be forfeited to the Crown:

(a)all excisable goods manufactured or partly manufactured by a person who is not a licensed manufacturer;

(b)all tobacco seed, tobacco plant or tobacco leaf found on any premises where the manufacture of excisable goods is unlawfully carried on;

(ba)all tobacco seed, tobacco plant or tobacco leaf that has been moved without permission under section 44;

(bb)all tobacco seed, tobacco plant (whether or not in the ground) or tobacco leaf found in the possession, custody or control of a person (other than a licensed producer, licensed dealer or licensed manufacturer) without permission;

(bc)all tobacco seed, tobacco plant (whether or not in the ground) or tobacco leaf kept or stored at a place that is not specified in a producer licence, dealer licence or manufacturer licence;

…

1. Mr Thomson, who appeared for the applicant, submitted before this Court that s 116 did not, in fact, operate to make the Crown the owner of the tobacco leaf. He argued that s 116, properly construed, does not automatically vest in the Crown a proprietary interest in any tobacco leaf in respect of which one or more of its subsections is satisfied. Rather, that section merely permits the Crown to seize such tobacco leaf. Upon seizure, the tobacco leaf becomes the property of the Crown. Thus, he argued, the applicant’s trial on charges 3 and 7 was foredoomed to fail and should be permanently stayed.

1. In support of his submission, Mr Thomson referred to the judgment of Kitto J in Powers v Maher.[2] In that case, Kitto J considered the proper construction of s 229 of the Customs Act 1901 (Cth), which also provides for certain goods to be forfeited to the Crown. His Honour stated:

…it may be observed that ‘forfeited’ is an ambiguous word: it may mean either taken from a man or liable to be taken from him: In re Levy’s Trusts; Attorney-General v. Parsons. In order to decide which meaning it has in s. 229, that is to say whether it is on the occurrence of the stated facts or on seizure that the change of ownership occurs, one would need to consider carefully the judgments of the present Chief Justice in Willey v. Synan; Willey v. Synan and Burton v. Honan and the dicta of O’Connor J. and Isaacs J. in their respective judgments in Lyons v. Smart. In addition, it would be necessary to consider whether the case of Wilkins v. Despard went as far as was suggested in The Annandale; whether cases such as Robert v. Witherhead and United States v. 1960 Bags of Coffee depended on the terms of statutes distinguishable from the Customs Act; and whether the position under that Act is not that which was stated by Willes J., speaking for the King’s Bench in Lockyer v. Offley… But whatever be the true view as to this, clear it is that whenever a state of affairs arises in which anyone of the descriptions of goods contained in the eighteen paragraphs of s. 229 is satisfied, that section intends to effect at once some change in the legal situation with respect to those goods, be it a transfer of ownership to the Crown or only the creation of a right in the Crown to bring about such a transfer by immediate seizure.[3]

[2](1959) 103 CLR 478.

[3]Ibid 483 (citations omitted).

1. Powers v Maher does not provide support for the applicant’s submission.  First, Kitto J was considering a provision of the Customs Act 1901 (Cth), a different piece of legislation. Secondly, his Honour did not actually decide whether s 229 effected an

immediate transfer of ownership to the Crown or merely gave the Crown the right to bring about such a transfer. He simply noted the distinction between these two ways of understanding the effect of s 229.

1. In any event, I consider that the question raised by this application is not appropriate for determination on an interlocutory appeal. To form a view regarding the proper construction of s 116, this Court would need to consider the provisions of the Excise Act 1901 (Cth) in detail. It would also need to consider the cases referred to by Kitto J in Powers v Maher and, in all likelihood, extrinsic materials relating to the history and purpose of the Excise Act 1901 (Cth) and probably the Customs Act 1901 (Cth) as well. All of that makes this question unsuitable for determination on an interlocutory appeal. Interlocutory appeals are intended to be a relatively expeditious procedure to determine a point which can be decided before or during a trial to the advantage of the trial process. The correctness of the applicant’s argument in this case will be determined by the trial judge according to law on its merits in the ordinary way in the course of the trial. Should he be convicted, the question he wished to agitate on his proposed interlocutory appeal will be able to be determined finally by this Court in the ordinary appeal process.

1. Judge Gullaci refused to certify pursuant to s 295(3) of the Criminal Procedure Act 2009 that his decision to refuse to permanently stay charges 3 and 7 was appropriate for an interlocutory appeal.  It was correct to do so.  No basis has been demonstrated for reviewing that decision.   The application should be refused.

BELL AJA:

1. I agree with the presiding judge for the reasons he has given.

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