Silbert v Director of Public Prosecutions Western Australia

[2003] HCATrans 515

[2003] HCATrans 515

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Perth  No P16 of 2002

B e t w e e n -

STUART ANTHONY SILBERT (AS EXECUTOR OF THE ESTATE OF STEPHEN RETTEGHY DECEASED)

Applicant

and

DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA

Respondent

GLEESON CJ
McHUGH J
GUMMOW J
KIRBY J
HAYNE J
CALLINAN J
HEYDON J

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON TUESDAY, 9 DECEMBER 2003, AT 10.21 AM

Copyright in the High Court of Australia

__________________

MR M.J. BUSS, QC:   May it please the Court, with my learned friend, MS M.M.N. BYRNE, I appear for the applicant.  (instructed by Talbot & Olivier)

MR R.J. MEADOWS, QC, Solicitor‑General for the State of Western Australia:   May it please the Court, I appear with my learned friend, MS C.J. THATCHER, for the respondent and on behalf of the Attorney‑General for Western Australia intervening.  (instructed by Crown Solicitor’s Office Western Australia)

MR H.C. BURMESTER, QC, Acting Solicitor‑General of the Commonwealth of Australia:May it please the Court, I appear with my learned friend, MR C.J. HORAN, on behalf of the Attorney-General for the Commonwealth intervening.  (instructed by Australian Government Solicitor)

MR P.A. KEANE, QC, Solicitor‑General for the State of Queensland:May it please the Court, I appear with my learned friend, MR G.R. COOPER, for the Attorney-General for the State of Queensland intervening in support of the respondent.  (instructed by Crown Law Division, Department of Justice)

MR M.G. SEXTON, SC, Solicitor‑General for the State of New South Wales:If the Court pleases, I appear with my learned friend, MS K.M. GUILFOYLE, for the Attorney-General for New South Wales intervening.  (instructed by Crown Solicitor for New South Wales)

GLEESON CJ:   Yes, Mr Buss.

MR BUSS:   Thank you, your Honour.  Your Honours should have been provided by the respondent with copies of the repealed Act, the Crimes (Confiscation of Profits) Act 1988. This volume represents a compilation made by parliamentary counsel for Western Australia and it has been examined and found to be correct by the applicant and by the respondent.

KIRBY J:   What time does it speak at?

MR BUSS:   It speaks as at 6 February 1988, which is the date stipulated in the third line on the cover page, your Honour, being the date that is, in our submission, relevant for the purposes of these proceedings.

KIRBY J:   What is the relevant date in these proceedings?  How does one fix it?

MR BUSS:   It is the date upon which an application was made to the Supreme Court for ‑ ‑ ‑

KIRBY J:   Is it the date of the application or the date of the order that is governing it?  It may not matter in respect of this draft or this form of the statute.

MR BUSS:   Yes.  It was the date on which the respondent commenced proceedings in the Supreme Court under section 6 of the Act and sought orders for the confiscation of Retteghy’s property and the payment of a pecuniary penalty and such sum as the court may think fit and that, in our submission, is the applicable date for the purposes of determining the operation of the legislation in relation to the applications that the respondent brought.

GUMMOW J:   This statute has been repealed, has not it?

MR BUSS:   Yes, it has, your Honour.

KIRBY J:   You say in your footnote that the new statute is in similar terms.  It does include the deeming provision on death?

MR BUSS:   There are a number of provisions which are still in point and include a deeming provision on death.  They are set out in a comparative analysis of applicable confiscation legislation in each of the States, Territories and the Commonwealth, dated 3 December 2003, which we have provided to the Court.  That sets out in tabular form a comparison between the repealed Act in Western Australia of 1988, the current Act in Western Australia of 2000 and the statutes in various other States and Territories.  To deal with your Honour Justice Kirby’s question of me, the salient provisions of the 2000 Western Australian Act have been summarised in pages 5 to 7 of that comparative analysis.  In particular, it provides that ‑ ‑ ‑

GUMMOW J:   Anyhow, the text appears at page 53, does it not, of the material? 

MR BUSS:   That is right.  We have endeavoured to annex the relevant text that is applicable to the provisions that are still in force, your Honour.  For example, just dealing with Justice Kirby’s question, section 5(2), set out on page 5 of the booklet, summarises the provisions of analogous sections in the 2000 Act compared with the 1988 repealed Act. 

GUMMOW J:   When did it come into force? 

MR BUSS:   It came into force on 1 January 2001, your Honour.

GUMMOW J:   Thank you.

MR BUSS: The repealed Act was repealed with effect from that date by section 4 of the Criminal Property Confiscation (Consequential Provisions) Act 2000. That is a matter that is set out on page 19 of our submissions to your Honours in the case.

KIRBY J:   The line‑up is still much the same as in your written submissions, that half the States and the Commonwealth do not have this provision and half of them do?

MR BUSS:   Generally speaking that is accurate, your Honour, in the relevant respects.

KIRBY J:   Have you looked at the legislation overseas?  Is this a common feature?  It would not be entirely surprising if it were because it takes on some features of the old corruption of the blood and confiscation of property of convicted felons.

MR BUSS:   Yes.  It does have some counterpart in England at least that we have been able to ascertain and we have referred in our authorities to the decision of the House of Lords in McIntosh v Lord Advocate but we have been unable to find an authority which is precisely on the point, which enables an application for confiscation of property to be made to the High Court in circumstances where the Crown Court could have made such an order where a person has been charged with an offence and has died before a plea of guilty or conviction.  That finds its way in 1994 legislation dealing with drug trafficking and the confiscation of property.  If my learned junior can hand me a copy of McIntosh v Lord Advocate, I can give your Honours the precise statutory provision.

KIRBY J:   Perhaps that can be given later. 

MR BUSS:   Yes.

KIRBY J:   It does not really touch on our constitutional problem because, though the English are generally reluctantly moving towards some form of written Constitution, and perhaps even a separation of powers, they have not got there yet.

MR BUSS:   Yes, quite, your Honour. The critical issue in this application, in our submission, is whether those provisions of the repealed Act which deemed a deceased to have been convicted of a serious offence infringe Chapter III of the Constitution. We propose, your Honours, to develop our submissions in three stages.

First, we propose to summarise and characterise the functions of the Supreme Court under the repealed Act in relation to the making of pecuniary penalty orders and confiscation orders.  Secondly, we propose to identify the relevant principles under Chapter III and their application to State courts.  Thirdly, we propose to endeavour to apply those principles to the functions of the Supreme Court under this repealed Act, first in relation to pecuniary penalty orders and then in relation to forfeiture orders.  We do that separately, your Honours, because it is our submission that each of the sets of provisions dealing with pecuniary penalty orders and forfeiture orders need to be examined differently and that the same result may not necessarily obtain in relation to both sets of provisions.

If I can take your Honours first to section 15(1) of the repealed Act.  This provision empowered the Supreme Court, if it considered it appropriate, to “assess the value of the benefits derived” by the deceased “as a result of the commission of the serious offence” with which he had been charged, or as a result “of any other unlawful act”, whether or not that other unlawful act had been the subject of a conviction, and to order the personal representative of the deceased:

to pay to the Crown a pecuniary penalty equal to the value of those benefits . . . less –

any amounts referred to in subparagraphs (i) and (ii) of paragraph (b) of the subsection.

Now, your Honours will see in subsection (1)(a) a reference to “any other unlawful act”.  The term “unlawful act” is defined in the legislation and is to be found at page 6.  The definition provides that, unless the contrary intention appears:

“unlawful act” means act or omission that constitutes a serious offence, whether or not that act or omission is the subject of a conviction.

So, turning back to section 15(1), the court was empowered to:

if it considers it appropriate –

(a)  assess the value of the benefits derived by the person against whom the application is made as a result of the commission of the serious offence in reliance on which the application is made or of any other unlawful act ‑ ‑ ‑

GUMMOW J:   Is there a definition of “the court”?

MR BUSS:   “The court” is not expressly defined, but in section 6(1) provision is made for applications for confiscation orders.  Section 6(1) provides: 

Where a person is convicted of a serious offence, an appropriate officer may, subject to subsections (2) and (3), apply to the Supreme Court or the court before which the person was convicted of the offence for one or both of the following orders ‑ ‑ ‑

GUMMOW J:   That is the starting point, is it not? 

MR BUSS:   That is the starting point.  In relation to pecuniary penalty orders, your Honour, the same provision obtains because subsection(1)(a) refers to forfeiture orders and paragraph (b) to pecuniary penalty orders.  So the reference to “Court” in the context of the legislation, at least with a capital C, is to the Supreme Court of Western Australia, in our submission. 

GLEESON CJ:   There is no capital C in section 15. 

MR BUSS:   Yes.  Well, where there is no capital C, that would include the Supreme Court of Western Australia or: 

The court before which the person was convicted of the offence –

in our submission, because section 6(1), which is the provision that provides for applications to be brought for forfeiture orders and pecuniary penalty orders, expressly provides that application may be made: 

to the Supreme Court or the court before which the person was convicted –

So, relevantly, in the context of the operation of the legislation, if “court” is used with a small C, it would include the Supreme Court or the court before which the person was convicted, and no doubt in a particular instance that would be the court that would be exercising the particular powers consequent upon an application having been made for those orders. 

GLEESON CJ:   In Western Australia, are Magistrates Courts called Local Courts? 

MR BUSS:   They are.  They are called Magistrates Courts and Local Courts, your Honour, and the Court of Petty Sessions. 

GLEESON CJ:   They would be included? 

MR BUSS:   They would be included. 

HAYNE J:   Would they have jurisdiction over what is called a “serious offence”? 

MR BUSS:   Well, the first limb of the definition of a “serious offence” means: 

(a) an indictable offence against the laws of Western Australia –

and indictable offences in Western Australia are not dealt with before Magistrates Courts or Courts of Petty Session, except in relation to preliminary matters. 

GLEESON CJ:   Are there not indictable offences punishable summarily in Western Australia as, for example, with the consent of the accused?

MR BUSS:   There are indictable offences that are punishable summarily, but ‑ ‑ ‑

GLEESON CJ:   How would they fit in the definition?

MR BUSS:   Well, an indictable offence, your Honour, does not cease to be an indictable offence merely because it is punishable summarily; it would still be described as, ordinarily, in ordinary parlance, as an indictable offence against the laws of Western Australia and would therefore be a serious offence if an indictable offence could be punished summarily in consequence of a plea of guilty or the like before a Magistrates Court or Court of Petty Sessions.

GUMMOW J:   Any regulation?

MR BUSS:   Not relevantly, your Honour.

GUMMOW J:   I am referring to the definition of “serious offence” in paragraph (b).

MR BUSS:   Yes.

GUMMOW J:   Perhaps the Solicitor‑General will tell us in due course.

MR BUSS:   Yes.  I am not aware of any regulations having been made, your Honour, but that is something I will certainly check and let your Honours know after the luncheon adjournment.

One feature of section 15 of the Act, your Honours, is that it did not expressly enumerate the matters to be taken into account by the court in determining whether it was appropriate for the court to exercise its powers in relation to pecuniary penalty orders.  In a sense, section 15 can be contrasted to section 10 of the Act, which deals with forfeiture orders, because section 10 has similar language to section 15(1).  Section 10(1) provides:

Where an application is made to a court under section 6(1)(a), the court may, if it considers it appropriate, order that the property be forfeited to the Crown if it is satisfied that the property –

(a)  was used ‑

et cetera.  Then, it has a subsection (2) which provides that:

in considering whether to make an order under subsection (1) in respect of particular property, the court may have regard to –

(a)  the use that is ordinarily made, or had been intended to be made, of the property; and

(b)  any hardship that may reasonably be likely to be caused to any person by the order.

Subsection (2) of that nature does not appear in the context of section 15 and no doubt one determines the matters that a court may take into account under section 15(1) by reference to the principles enunciated in Minister for Aboriginal Affairs v Peko-Wallsend.

But the type of matters that the Supreme Court might consider relevant in the context of an application and might move the court to determine not to assess benefits or to impose a penalty can be readily thought of.  For example, one might be dealing with a serious offence under which there had been the theft of a substantial amount of money and the offender that subsequently invested that amount of money in a variety of ways, some of which produced gains, some of which produced losses, but the overall losses exceeded the gains, and a question might arise in those circumstances as to whether it was appropriate for the court to exercise its power.

Another example might be where a particular person who had committed a serious offence and subsequently had become impecunious and disabled and had a number of young children to provide for and in circumstances the court may consider it inappropriate to assess the benefits and make a pecuniary penalty order.  Our prime submission is, whatever facts and matters the court could take into account in determining whether it considered it appropriate to exercise the power to assess the value of benefits and make a pecuniary penalty order under section 15, whatever facts and matters it could take into account for that purpose, those facts and matters did not include whether the deceased actually committed the serious offence with which he had been charged and in relation to which he had died, having pleaded “not guilty”, before trial.

McHUGH J:   What about section 53?

MR BUSS:   Section 53, your Honour, is certainly relevant to forfeiture orders but, in our submission, the absence of a comparable provision to section 53(2) is telling in relation to the role of the court under section 15(1) in relation to pecuniary penalty orders.  Section 53(2) provides:

If a person is, by reason of section 3(2)(d), to be taken to have been convicted of a serious offence, a court must not make a forfeiture order in reliance on that conviction unless it is satisfied, beyond reasonable doubt, that the person committed the offence.

KIRBY J:   This is the court in the sense of a judge?

MR BUSS:   That is right.

KIRBY J:   Not a jury.

MR BUSS:   Well, the court before whom the application for forfeiture was brought.

McHUGH J:   You would not have a feather to fly with, would you, if section 6 had said, “(a)  where a person has been charged and has died; (b)  where a person has been charged and has absconded; (c)  where a person has been convicted of an offence, the police officer, or an appropriate officer, may apply to the Supreme Court or the court”, et cetera, “for a forfeiture order or a pecuniary penalty order”?

MR BUSS:   Your Honour, one can imagine that there may be ways in which legislation can be drafted without infringing Chapter III in order to reach what some might regard as a permissible and desirable purpose in relation to the forfeiture of property.

McHUGH J:   How does this offend Chapter III?

MR BUSS:   It offends Chapter III, your Honour, because in relation to applications for pecuniary penalty orders, the court before whom the application is brought is required to proceed on the basis that a person charged with a serious offence who has pleaded not guilty and died was guilty of the criminal offence.

McHUGH J:   It is to be taken as – it is merely just a condition precedent to the exercise of the power.  What was in there to stop the legislature that wanted to say every white person shall be deemed to be a grey person and the powers under section 6 may be exercised against every grey person.  It is exactly the same thing, is it not?  It is just a deeming provision.  It is just a condition precedent.

KIRBY J:   I hope we never see legislation of that kind.

GLEESON CJ:   That would be for the legislators to decide.

CALLINAN J:   Mr Buss, the Australian people rejected at a referendum an acquisition on just terms a constitutional provision in respect of the States.  What is there to stop the States from acquiring this man’s property on other than just terms?  Is that not at most what happened here?  Assuming that the terms or the conditions are unjust, what is to stop a State from doing it?

MR BUSS:   Can I answer that question this way ‑ ‑ ‑

GUMMOW J:   It is not his property any more anyway.  He is dead.  The persons who are going to take the property are volunteers, are they not?

MR BUSS:   Yes, that is right.

GUMMOW J:   You have an imposition by the Crown, the State, through this legislation.

MR BUSS:   Yes.

GUMMOW J:   That is the policy parameters of it all.

MR BUSS:   Yes.

CALLINAN J:   But, regardless of who it is, what is to stop a State acquiring it?  You might not like the fact that States may be able to acquire property on other than just terms, but what is to stop it from happening?

MR BUSS:   The answer to your Honour’s question would appear to be this, that the decision of this Court in Durham indicates that the Parliament of Western Australia may legislate to deprive a person of property without just compensation, but it is our submission that although that is so and that principle is not challenged before your Honours today, the Parliament cannot impose a penalty or deprive a person of property where a necessary precondition ‑ ‑ ‑

GUMMOW J:   You keep saying “deprive a person”.  Who is the person?

MR BUSS:   In the case of a dead person, it would be his personal representative, your Honour, as executor of his estate and also the beneficiaries potentially under the will.

GUMMOW J:   Those having the right to enforce administration of the estate?

MR BUSS:   Yes.

GUMMOW J:   All right.  Anyhow, in the Commonwealth sphere this would be valid as well, would it not?  Assume this is all done in aid of the customs power, for example.

MR BUSS:   Yes.

GUMMOW J:   Well?

MR BUSS:   Well, that is right, and we do not challenge the fact that the Parliament may legislate ‑ ‑ ‑

GUMMOW J:   Unjust terms is no answer to these rather rigorous customs provisions that have been there for a long while and upheld continually.

MR BUSS:   Yes, I accept that and there are a number of decisions of this Court that have been referred to, I think, by the Commonwealth in this case.  Our answer to that is that although the Parliament of Western Australia has the power to deprive a person of property without compensation, the Parliament cannot do so where a necessary precondition to the penalty or deprivation involves an infringement of Chapter III.

GLEESON CJ:   Your argument, I presume, is exactly the same in relation to the New South Wales legislation that appears on page 215 of your comparative analysis.  Section 5(1)(d) does not talk about people dying but it does talk about people absconding.

MR BUSS:   Yes.

GLEESON CJ:   I presume that is subject to exactly the same argument?

MR BUSS:   Less so, less strong in relation to someone who has absconded than someone who has died.

GLEESON CJ:   Why?

MR BUSS:   Because it may be that someone who has absconded has at least determined or made a voluntary decision to put themselves out of the process that they could have participated in.

GLEESON CJ:   But that is a matter of legislative policy.  As a matter of legal principle in relation to the argument you are putting, what is the difference between the case of a person who has absconded and a person who has died?

MR BUSS:   In principle there should be no difference.

McHUGH J:   Or a person who commits suicide.

MR BUSS:   Or, indeed, a person who has committed suicide.  It does not have to be by natural causes.

McHUGH J:   Mr Buss, the problem you face is this, is it not?  What is there to stop the Parliament of Western Australia, if it wanted to, passing an Act tomorrow which said, “Stephen Retteghy was guilty of the following crimes:  (a), (b), (c), (d)”?

MR BUSS:   If it passed a piece of legislation in those terms tomorrow and Stephen Retteghy had not been convicted of those offences, a question would arise as to whether that was a proper exercise of, or whether the Parliament was in any sense usurping the judicial power by seeking to enact a piece of legislation for the sole purpose of recording in law in perpetuity ‑ ‑ ‑

McHUGH J:   But there is no doctrine of separation of powers in Western Australia.

MR BUSS:   That is true, there is not.

McHUGH J:   The State Parliament of Western Australia can exercise judicial power if it wants to.

MR BUSS:   That is true, but subject to Chapter III, because ‑ ‑ ‑

McHUGH J:   That is only about Supreme Courts.  It cannot require its Supreme Court to do something that is incompatible with the vesting of federal jurisdiction in the Supreme Court.

KIRBY J:   That is the question here because here the provision has been made which is directed to what the Supreme Court can do and I understand is your argument that attracted Justice Wallwork.

MR BUSS:   Yes, that there was jurisdiction, albeit not exclusive jurisdiction, conferred on the Supreme Court and the Supreme Court did exercise that jurisdiction in this case.  The application by the State DPP was brought in the Supreme Court and was heard at first instance by Justice Scott.

On the issue of the other courts, your Honour, that, with respect, raises an interesting question as to whether or not, although the State Parliaments may not be able to abolish the Supreme Courts conformably with the Constitution ‑ ‑ ‑

GUMMOW J:   We have said they cannot, so that is enough for you, I would have thought.

KIRBY J:   It is pretty hard to see how they can, given that they exist in the Constitution.

MR BUSS:   I was only endeavouring to deal with Justice McHugh’s point, that there may be other courts ‑ ‑ ‑

KIRBY J:   You say that that sort of law might be viewed by this Court as a virtual abolition of the Supreme Court given that conviction of that sort of offence is one traditionally performed by a Supreme Court constituted as is appropriate to the particular case.

MR BUSS:   Yes, that is true, your Honour.

GLEESON CJ:   Does the argument have the same application in relation to magistrates?

MR BUSS:   In our submission, the principle that has already been articulated by this Court in relation to Supreme Courts depends in part at least upon the Supreme Courts being part of an integrated structure within the Australian court system and, if that is so, it does not depend solely upon the words of Chapter III to make that principle applicable to other courts in Western Australia, including the District Court, which is a court of inferior jurisdiction but one in which indictable criminal offences are tried.

In other words, the Parliament cannot endeavour to undermine what this Court has said in relation to the role and the continuity of the State Supreme Court by either creating a new court which has different functions, but nonetheless functions which, as a matter of public policy, are as important and as significant as the Supreme Court within the Australian judicial structure.

GLEESON CJ:   Now, have we got to this stage, that in terms of legal principle, the attack you make on that part of the legislation that says a dead person is taken to have been convicted is no different in terms of legal principle from the criticism you would make of that part of the legislation that says a person who has absconded is taken to have been convicted?

MR BUSS:   That is right.

KIRBY J:   Well, do you accept that?  I thought your submissions said that with a live person, an absconded person, they can still answer at their charge of being guilty of the offence, whereas a dead person cannot.

MR BUSS:   Our position ‑ ‑ ‑

KIRBY J:   That that is an essential attribute of the exercise of judicial power in this country.

MR BUSS:   Perhaps I have not made it very well, but our point is that the principle is at its highest in relation to a dead person, but the principle can also be seen to have some extension to a person who has absconded, albeit the position of the dead person is forever irretrievable.  The position of the person who absconds may well be that the person ultimately delivers him or herself up for being dealt with according to law or is otherwise apprehended, but while the person has absconded, the same principle applies, in our submission.

Now, your Honours, it is our submission that pecuniary penalty and confiscation legislation which is dependent upon an actual conviction will infringe Chapter III where a lawful conviction has not been actually recorded.  In other words, where a conviction, actual or deemed, is the starting place for the legislation, there will be an infringement of Chapter III to the extent that the legislation purports to deal not only with an actual conviction according to law but also a deemed conviction.

The reason for that, we submit, is that the Act, the repealed Act to the extent it depended upon a deemed conviction, required and authorised the Supreme Court to proceed upon the statutory fiction that there had previously been an exercise of judicial power which culminated in a lawful conviction.  That was the fiction that the Supreme Court and the other courts were required to proceed upon.  In our submission, although the Parliament may legislate to deprive a person of property without compensation, the Parliament may not do so where that deprivation of property springs from an infringement of Chapter III in relation to the starting point of the legislation, that is the starting point which marks out a particular citizen as subject to or at risk of an application from the DPP under section 6 or not.

GLEESON CJ:   Mr Buss, you said that section 53 applies only to a forfeiture order. 

MR BUSS:   Yes. 

GLEESON CJ:   Section 15 refers not to the conviction of a serious offence, but to the “commission” of a serious offence.  Is there any deeming provision that deems a serious offence to have been committed, as distinct from a provision that deems a person to have been convicted of a serious offence? 

MR BUSS:   The salient provisions are to be found in section 3, your Honour. 

GLEESON CJ:   I was simply raising for your consideration and comment the possibility – I have no idea whether it is right or wrong – that you would have to find, for the purpose of making an order under section 15, that a benefit has been derived “as a result of the commission” of an offence. 

MR BUSS:   Yes, that is so.  It is necessary to decide on a balance of probabilities that there were: 

benefits derived by the person against whom the application is made as a result of the commission of the serious offence ‑ ‑ ‑

GLEESON CJ:   Now, that would be a fact to be proved, not something that is deemed.  Is that right? 

MR BUSS:   Well, ordinarily, absent certain provisions in section 3 that I will come to in a moment, for example, if one looks at section 3(2)(d) of the Act, it provides that: 

For the purposes of this Act, a person is to be taken to have been convicted of a serious offence if –

. . . 

(d)  the person has been charged with the offence but before the charge is finally determined, the person has absconded. 

So that is a requirement for the purposes of the Act, namely, that a person is to be taken to have been convicted of a serious offence if the person has been charged but before the charge is finally determined the person has absconded.  Then under section 3(5): 

For the purposes of this Act a person shall be taken to abscond in connection with an offence if, and only if, –

. . . 

(c)   one of the following occurs –

(i)  the person dies without the warrant being executed or after the execution of the warrant or, in the case of a person arrested without warrant, after that arrest ‑ ‑ ‑

GLEESON CJ:   Is that the one we are concerned with? 

MR BUSS:   Yes, we are, your Honour. 

GLEESON CJ:   And it is the second part of that, is it? 

MR BUSS:   That is right. 

GUMMOW J:   Now, looking at that section 3(5)(c): 

one of the following occurs –

(i)  the person dies without the warrant being executed or after the execution of the warrant –

That is what we are worried about. 

MR BUSS:   Yes. 

GUMMOW J:   Am I right in thinking that the federal Act, the Proceeds of Crime Act 1987, which appears at page 128 of this bulky folder, in section 6(c)(i) simply has death without execution of the warrant. It does not have the additional circumstances in (c)(i) of the Western Australian Act. Is that right?

MR BUSS:   Yes, I think that is right. 

GUMMOW J:   Is that right?  Has that been amended at some stage?  Mr Burmester will tell us. 

MR BUSS:   Yes. 

GUMMOW J:   But it would seem to me your submissions would read down the federal Act, would they not? 

MR BUSS:   To that extent, yes, your Honour.  What we have endeavoured to do in our comparative analysis is to provide a bird’s eye view of the position and the language that is used ‑ ‑ ‑

GUMMOW J:   Because section 5(1)(d) of the federal Act at page 127 says:

a person shall be taken to be convicted of an offence if:

. . . 

(d)  the person absconds – 

and then that takes you to section 6 and then that takes you to death before execution of a warrant.

MR BUSS:   Yes.

GLEESON CJ:   Is there any of this Commonwealth or State legislation that your submission would not bring down, at least in part?

MR BUSS:   Yes, there are some States that would not be caught.

GLEESON CJ:   Any State that had absconding would be caught, would it not?

MR BUSS:   It would, yes.  I was thinking, really, of ones where there had been a death, but the principle that we espouse can be driven further than what is necessary for the simple disposition of this case.  But any legislation that would have within it a deemed conviction, notwithstanding death prior to trial, and also on a wider application of that principle, any State or Territory where the legislation dealt with someone who had absconded before trial and that person was deemed to have been convicted would also be caught.  Our prime focus of attention, your Honours, had been on the question of death and that is not uniform, but ‑ ‑ ‑

McHUGH J:   In New South Wales, Tasmania and the Northern Territory the legislation deems a person to have been convicted if the person absconds, but in none of those jurisdictions does it deem a person to have absconded if the person dies.

MR BUSS:   Yes.

HAYNE J:   Can I just take you back to the matter the Chief Justice put to you.  If the application had been confined to an application under section 15(1)(a), would it have been a necessary step in the judge’s reasoning to conclude on the balance of probabilities that the deceased had committed the serious offence alleged?

MR BUSS:   No, in our submission, it would not.

HAYNE J:   How could the judge reach any conclusion about the value of benefits made as a result of the commission of the offence, that is, the value of benefits derived by the deceased as a result of the commission of the offence, without determining the role which the accused played in connection with the events constituting the offence?

MR BUSS:   It would be very difficult, your Honour, and the reason why it would be difficult is that the starting point for the judge in relation to the serious offence is that there has been a deemed conviction.  If there has been a deemed conviction of a specified offence, that must carry with it certain essential findings of fact necessary to give rise to the conviction.

HAYNE J:   What I am offering to you for your comment is an alternative construction of the Act which sees the deeming being employed as the gateway to section 6(1), but then leaving for judicial fact finding, amongst other things, the finding of what the accused did with what consequences by way of derivation of benefits.

MR BUSS:   We submit that that is a construction which is not open, and we say it is not open having regard to the terms of section 3(2), section 3(5)(d) and also the absence in the legislation of a comparable provision to section 53(2).

GLEESON CJ:   What is it in the Act that deems any benefit to have been derived at all?

MR BUSS:   There is no provision which deems a benefit to have been derived at all.  There needs to be some fact finding.

GLEESON CJ:   That is why we have the judge in the present case apparently poring over some books of account that were kept by the deceased and matching them with his bank records.

MR BUSS:   Yes.  There needs to be an attempt made by the judge to assess the value of the benefits but, in our submission, the ordinary fact finding that might be expected to take place to determine what benefits have been derived and are those benefits referable to the serious offence that the deceased has been deemed to have been convicted will inevitably distort the fact-finding process, because the court to whom the application under section 6 is made does not have power or authority to investigate the fact of the conviction, the fact of the deemed conviction, or such of the facts which are essentially bound up with that conviction.

GLEESON CJ:   I think you are being asked to consider how a judge could assess the value of benefits derived from the commission of an offence without investigating whether the offence had been committed.

MR BUSS:   It could not properly be done, in our submission, and the legislature ‑ ‑ ‑

HAYNE J:   If that is so, there is then the exercise of the judicial function in determining whether an offence has been committed and a determination of the role of the deceased in its commission, as one of the steps necessary to determine the value of the benefits derived.

MR BUSS:   Yes.

HAYNE J:   Where then is there contrariety between that process and any notion of sufficiency or propriety of the Supreme Court as a vessel for reception of federal jurisdiction?

MR BUSS:   The difficulty is this, that the Supreme Court, on the construction of the Act we advance, is not authorised or permitted to undertake that fact-finding task ‑ ‑ ‑

McHUGH J:   That cannot be right, can it?  Let us take a concrete case.  Let it be assumed that somebody is deemed to have been convicted of an armed hold‑up of the National Australia Bank at such and such a place.  The question for the judge is then, what moneys of the accused, what property of the accused can be said to be derived from that armed hold‑up, and that puts you immediately into a factual issue.  The accused has $200,000 sitting in another account somewhere.  The judge has to determine that $200,000 was derived from that deemed armed hold‑up.  If he cannot, there is no order.

MR BUSS:   On those facts, yes, but the judge is in no position to make any form of assessment as to any defences or any exculpatory matter that the deceased might have been able to bring before the court to explain what it was he was doing.  One can readily think of ‑ ‑ ‑

McHUGH J:   Doing in respect of what?

MR BUSS:   Doing in respect of the circumstances pertaining to the offence.

McHUGH J:   But surely, on any construction of this legislation, the accused is entitled to say, “Here I stand.  You can deem me guilty of any offence you like, but you can’t prove that one cent of this money, or any part of my property, was derived from that deemed offence”.

MR BUSS:   Well, that is rather more difficult when he is dead and it may well be that had he not been dead and he were dealing with something which was a deeming provision which enabled him to question the validity and the justification for the deemed conviction he may well be able to put before the court some exculpatory material.

McHUGH J:   Maybe he could, but supposing he had been convicted before a jury and died straight after the verdict, or suicided straight after the verdict like Whittaker Wright, the same problem arises from your point of view.

MR BUSS:    It is not quite the same problem, in our submission, because there is a deemed conviction of a man who has pleaded not guilty and who has not had a trial.  He is deemed to have been convicted of those offences.

GUMMOW J:   Yes, but for what purpose?

MR BUSS:   He is deemed to have been convicted for the purpose of enabling a pecuniary penalty order to be made against him and, before that is made, an order to enable an assessment to be made of the proceeds that have been derived from the deemed crime.

GLEESON CJ:   There is an earlier step, is there not?  The court only gets into this if it considers it appropriate.

MR BUSS:   Yes.

GLEESON CJ:   What are the circumstances in which a court might consider it inappropriate to make an assessment under section 15(1)(a)?

MR BUSS:   I touched on this very, very briefly at the beginning of my submissions, your Honour, and the submission that I was seeking to develop was that there were no express matters enumerated in section 15 that might be taken into account and I compared that with the existence of section 10(2) in the case of forfeiture orders.  One endeavours obviously to discern that from the object of the Act.

The two examples I gave were perhaps where a person had committed theft, had stolen a very large sum of money and had then proceeded to invest it in various forms of investment, had made a series of gains and losses with the money, had not done anything else with the money and when an account was taken the losses significantly outweighed the gains.  The question for the judge then would be, “Should I make an order just simply aggregating the gains and disregarding the losses, or having regard to the extent to which the losses outweighed the gains, is it appropriate then to make an order in relation to pecuniary penalty?”.

The other example I gave where it might not be considered appropriate related to matters personal to the person convicted who may well have fallen on hard times, may have become impecunious, severely disabled and have a number of dependants looking after him and then in those circumstances the court may consider his personal circumstances mean that out of general considerations of mercy that no pecuniary penalty ought to be made against him.

GLEESON CJ:   Would it also be within the power of a court to consider it inappropriate to make an order because the person had died and there appeared to be a serious factual issue relating to the person’s guilt or innocence and it was impossible for there to be a fair determination of that issue in the circumstances of the particular case?

MR BUSS:   No, not in our submission.

GLEESON CJ:   Why not?

MR BUSS:   In our submission, the language and structure of the Act does not permit that approach and we point to the language of section 3(2)(d) and also section 3(5)(c)(i).  In other words:

For the purposes of this Act, a person is to be taken to have been convicted of a serious offence if –

certain things happen.

HAYNE J:   So, for example, if Mr Retteghy, on interview by the police, steadfastly maintained that he thought he was tending tomato plants for a friend, he is not there to assert that and you say it would not be a matter that the court could take into account?

MR BUSS:   No, not if, for the purposes of the Act, he has been taken to have been convicted of the serious offence of cultivating cannabis with the intent to sell or supply.  The other indication that the power of the kind mentioned by his Honour the Chief Justice would not be available in relation to pecuniary penalty orders can be seen from the structure of section 53(2).  The Parliament has seen fit to say in that subsection:

If a person is, by reason of section 3(2)(d), to be taken to have been convicted of a serious offence, a court must not make a forfeiture order in reliance on that conviction unless it is satisfied, beyond reasonable doubt, that the person committed the offence.

There is no similar provision at all in relation to pecuniary penalty orders, as distinct from forfeiture orders.

GLEESON CJ:   Is that not because property that can be forfeited does not have to be property that was, as it were, an ill‑gotten gain.  You can forfeit a motor vehicle because some cannabis was transported in the boot of the car, can you not?  That is what happened in relation to those customs offences.  I recollect a motor vehicle was forfeited because there were some illegal imports or exports being transported in the boot.

MR BUSS:   Yes.  In the cases I think your Honour is referring to it was possible for a person’s car to be forfeited, even if the person did not commit the offence and was not an accessory to the offence.

GLEESON CJ:   The point I am raising for your comment is that forfeiture does not require proof that the property forfeited constitutes the proceeds of crime.

MR BUSS:   That is true.

GLEESON CJ:   Whereas an order under section 15(1) requires proof that benefits have been obtained as a result of the commission of an offence.

MR BUSS:   That is true, and what is required under section 10(1) in relation to forfeiture orders is the satisfaction of the court that:

the property –

(a)  was used in, or in connection with, the commission of the offence; or

(b)  was derived or realized, directly or indirectly, by the person convicted of the offence or another person, or is subject to the effective control of the person convicted of the offence, as a result of the commission of the offence or of any other unlawful act.

So it is true that pecuniary penalty orders in substance require the court, if it thinks it appropriate, to assess the value of benefits, in other words, the profit that the person has made out of the commission of the serious offence, and they are then the subject of assessment and ultimately a pecuniary penalty order.

Our point is that in terms of making that assessment under section 15, there is no warrant for reading the Act as conferring some power upon the Supreme Court to inquire into the accuracy of the facts underpinning the deemed conviction, the reliability of the deemed conviction or whether ‑ ‑ ‑

KIRBY J:   What does that expression “if it considers it appropriate” in section 10(1) import then?

MR BUSS:   What does it import?

KIRBY J:   Yes.  It is obviously intended to do some work.  What work is it intended to do?

MR BUSS:   Perhaps I can come to that in just a moment, with respect, your Honour, but just simply complete by saying that those words “if it considers it appropriate” do not allow it to revisit the conviction or whether or not the deceased might have had available defences in relation to the conviction or any of the other facts which underpin the conviction which was not recorded after a fair trial but which is deemed.

KIRBY J:   I understand that.  You say that work is done by Parliament in its statutory fiction, but ‑ ‑ ‑

MR BUSS:   That is right, and the statutory fiction is at the heart of the legislation and there is a peremptory direction in section 3(2):

For the purposes of this Act, a person is to be taken to have been convicted of a serious offence ‑

so it is ‑ ‑ ‑

HAYNE J:   That is a deeming which does not operate in relation to forfeiture orders - see section 53(2).

MR BUSS:   It does, in our submission.

HAYNE J:   How?

MR BUSS:   It does operation in relation to forfeiture orders if the person is deemed to have been convicted of the serious offence.  What section 53(2) does is it requires the court not to make a:

forfeiture order in reliance on that conviction unless it is satisfied, beyond reasonable doubt, that the person committed the offence.

That is not the same thing.

HAYNE J:   Yes.  What is the deeming doing in the case of a forfeiture order?

MR BUSS:   Again, the legislation, in essence, is conviction based.  It is either an actual conviction or it is a deemed conviction, and by deemed conviction gets the person who is deemed to be convicted at risk, that a forfeiture order will be made against him.  The comfort he does have is under 53(2):

a court must not make a forfeiture order in reliance on – 

the deemed – 

conviction unless it is satisfied, beyond reasonable doubt, that the person committed the offence.

At that stage the person of course is dead.  There has never been a trial and there will never be a trial in the ordinary way, and so the judge, not the jury, but the judge has to be satisfied beyond reasonable doubt and, in essence, that has a substantial watering down of the rights of the deceased because the deceased is not present for the hearing, is unable to give evidence, unable to explain material ‑ ‑ ‑

GUMMOW J:   The deceased does not have any rights at all.

MR BUSS:   All right, correct, but the ‑ ‑ ‑

GUMMOW J:   It is just fundamental.

MR BUSS:   Correct.  I have been speaking in a colloquial manner, but it is the personal ‑ ‑ ‑

GUMMOW J:   I know; you cannot do that here.

MR BUSS:   Yes.  The personal representative is placed in a position of substantial disadvantage where the personal representative is unable to call evidence in the form of the deceased to explain that which requires an explanation.

GUMMOW J:   What is the significance of section 15(1)(a)?

MR BUSS:   Dealing with pecuniary penalty orders?

GUMMOW J:   Yes.

McHUGH J:   There Crown has to make a showing that the benefits may have been derived and then the presumption arises.

MR BUSS:   There will be a series of facts, no doubt, in any case which are integral with and an essential part of the conviction.

McHUGH J:   Well, not in any case; it may be in some cases or it may not be in any other cases.  I mean, at least in New South Wales people successfully resist these orders.  The Crown does not always win.

GLEESON CJ:   Lawyers particularly strenuously resist them; that is where the money for costs comes from.

KIRBY J:   They might be assisted in New South Wales by the presence of the accused.

GLEESON CJ:   Not if the accused absconded, they are not.

KIRBY J:   He might return to defend his property.

MR BUSS:   There are provisions of course in the Act which deal with a rehearing, where a person has absconded and has then returned and that is dealt with in section 19, but sticking with section 15 ‑ ‑ ‑

KIRBY J:   Assume that the State Parliament enacted a law which said, “Where any person is charged with an offence against the Drugs Act, that person shall forfeit all of his or her property to the Crown”, period.  Now, would that be unlawful under the Constitution?  Is your complaint that what is wrong about this Act is dragooning the court into having a role in this forfeiture, or is your complaint more fundamental, suggesting that this form of forfeiture is unconstitutional without involving the court?

MR BUSS:   It is more fundamental, your Honour.  I suppose it boils down to this proposition, that Parliament may not use an impermissible statutory fiction to achieve what may be a permissible result.  In relation to the deemed conviction provisions in relation to pecuniary penalty orders and forfeiture orders, the fiction there presupposes that there has been a trial of the accused in the ordinary way ‑ ‑ ‑

KIRBY J:   The word “conviction” is the language of litigation.  It is the language of a process, a court process.  So I can understand your proposition, that you get a leg up to the constitutional argument by the involvement of the court and the use of the language of courts, but I am asking you, having regard to what was decided by the Court in Durham, would there be any offence to the Constitution of taking a step back and saying, “We are going to enact a law that if a person is charged with a criminal offence or if a police officer reasonably suspects a person to be guilty of that criminal offence and records that in a certificate lodged in the Registrar‑General’s office, all that person’s property will be forfeited to the Crown”.  Would that run into any problems?  I am testing the depths of your proposition and its contour. 

MR BUSS:   Yes, there would, in our submission, because the criterion against which the forfeiture operates is the suspicion of the commission of a criminal offence in respect of which the person at risk of the forfeiture has not been convicted, may not have been charged ‑ ‑ ‑

KIRBY J:   You say under our Constitution that imports a requirement of some form of due process or determination by an independent court.

MR BUSS:   Yes, where what underpins the forfeiture is the smell or the suggestion of criminality, that criminality needs to be established by means of judicial process offering traditional ‑ ‑ ‑

McHUGH J:   If that proposition is right, then some criminal legislation which has been in force for a long time must be constitutionally invalid.  Take the case of a person who is reasonably suspected of being in possession of stolen goods.  That is all you have to prove.  In New South Wales in the Vagrancy Act, and probably in other States, they used to have a provision ‑ maybe still do – that says if you are a suspected person in a particular context you could be sentenced to prison. 

MR BUSS:   In our submission, the particular examples that your Honours are putting to me involve a consideration of the reach of judicial power and the extent to which consistency with the exercise of judicial power by courts invested with Commonwealth jurisdiction requires that where allegations are made of criminal offences the courts are not required, other than by means of due process, to make findings which go beyond mere practice and procedure, but which are required to make findings relating to the very substratum of facts that will give rise to liability. 

McHUGH J:   I think there has even been a case in this Court from Western Australia which dealt with goods reasonably suspected of being stolen and the general terms of that sort of legislation is, “Whosoever being in possession of goods reasonably suspected of being stolen shall be guilty of an offence unless” and then it puts the onus on the accused to give some explanation.  Now, on your theory, that legislation is invalid. 

MR BUSS:   Perhaps what is important is that I confine the theory that I have been advancing of the circumstances where you are dealing with an application against, or proceedings against, a person who is dead, which is precisely the position that we are dealing with here, but in the end the operation of the legislation is qualitatively different, where you are not dealing with an actual conviction and where you are dealing with a person who is dead.  So that where an application is made against the personal representative of the deceased’s estate and the conviction is not able to be reopened and, even if it could, one can never have a trial according to law in the context one could during the life of the deceased, and it is our submission that under sections 6 and 15 of this repealed Act in relation to pecuniary penalties, the assessment of the benefits derived by the person is flawed because the fact-finding is flawed; the fact-finding does not permit there to be an investigation into whether or not the accused had in fact committed the offence.

The accused, axiomatically, was never able to be tried for the offence following his death and the court simply has a direction from the Parliament that, for the purposes of the Act, it is to taken that the deceased did commit the offence and the best effort is to be made to endeavour to assess the value of benefits derived by the deceased.  In those circumstances, there is what is really the vice of this legislation, that it presupposes that there has been a lawful exercise of the judicial power in relation to the statutory deeming provision and there has been no lawful use of the judicial power in relation to that statutory deeming provision; none whatever.

KIRBY J:   The majority in the Court of Criminal Appeal said that that was merely a statutory shorthand by which this result was achieved.  What is your answer to their proposition?

MR BUSS:   The majority of the Full Court, with respect, begged the question.  The issue is not what the Parliament was trying to achieve in the sense of what was described as a shorthand device for broadening the reach of the Act or a shorthand device for reducing its verbiage in rendering not only persons who have been convicted of serious offences but also persons who have died after being charged but, before being tried, liable to pecuniary penalties and forfeiture orders.  So the Full Court, with respect, did not deal adequately with this issue.  This was not merely a shorthand device and the provisions went further than merely regulating the method or burden of proving facts.  What the majority of the Full Court failed to appreciate was that the Act, to the extent it required the Supreme Court to determine rights and liabilities under the Act, upon the statutory fiction that there had previously been an exercise of judicial power which culminated in lawful convictions, infringed Chapter III.

McHUGH J:   Yes, but you keep referring to this notion of “judicial power”.  It comes out very clearly in paragraph 51 of your submissions, where you say: 

The Supreme Court of Western Australia, as one of the judicial institutions invested with federal jurisdiction, may not act in a manner inconsistent with the requirements of Chapter III. 

Now, that does not seem to me to be an accurate account of Kable.  What Kable held was that it was an implied prohibition of Chapter III of the Constitution that a State cannot vest in the Supreme Court a function or a power that is incompatible with the vesting of federal jurisdiction in the Supreme Court. Some of us held, or at least I did, that it will always be incompatible with the vesting of federal jurisdiction in the Supreme Court if the vesting will result in public confidence in the impartiality of the Supreme Court being lost or undermined. This case seems to me to be a long way removed from that, but you have to show that what this Act does is to vest in the Supreme Court a power that is incompatible with the vesting of federal jurisdiction in the Supreme Court.

MR BUSS:   Your Honours, it is our submission that it is inconsistent with the vesting of federal judicial power in the Supreme Court for the Supreme Court to be authorised to proceed in the way in which it is in relation to pecuniary penalties and forfeiture provisions where in relation to pecuniary penalty provisions it is required to act upon a fiction which presupposes that there has been an exercise of judicial power and a conviction in the ordinary way.  So the statutory fiction has the effect of lining up the deceased person along with everyone else who is still alive and has been convicted in the ordinary way and meting out the same treatment.

GLEESON CJ:   But it would have been perfectly all right if, instead of doing it this way, what the legislature had said was, in the case of a person who has been charged with a serious offence and died before the trial has come on, it is unnecessary for that person to have been convicted for the provisions of section 15 and the forfeiture provisions are to apply.

MR BUSS:   That may be right, but the question then becomes the basis upon which the pecuniary penalty provisions at least would operate in circumstances where all that is necessary is that a person be tried and have died before trial.

GLEESON CJ:   Well, section 15 could operate according to its terms, could it not?

MR BUSS:   It could, but it would be ‑ ‑ ‑

GLEESON CJ:   In the case of an application for pecuniary penalty against such a person you have to prove on the balance of probabilities that the benefits were the proceeds of the commission of an offence and you have the assistance of subsection (2) and in the case of an application for forfeiture you have to prove beyond reasonable doubt what is required by section 53 and you do not have to be convicted.

MR BUSS:   That is true, although there may be some inquiry as to whether or not that person committed a serious offence in the sense that section 15(1)(a) requires an assessment of:

the value of the benefits derived by the person against whom the application is made as a result of the commission of the serious offence –

So that in itself suggests that part of the fact‑finding function of the court will be determining whether the deceased person actually committed that crime or not.

GLEESON CJ:   That has already been put to you for discussion.

MR BUSS:   And, in our submission, if that took place, if there was provision to that effect, we would still be in the situation where, at that time, there would need to be a judicial determination of the guilt or innocence of the deceased in relation to whether or not he had committed the crime.  There would not be the deemed conviction which, in our submission, prevents this type of inquiry at the moment under the way the legislation is framed.  Some different question may arise, however, that if in the course of ascertaining whether someone has committed a serious offence that can properly be done in circumstances where mental element is a critical issue of the serious offence and the person is dead and unable to give any evidence or ‑ ‑ ‑

GLEESON CJ:   But there is nothing repugnant to any constitutional provision or concept, is there, in conducting a judicial inquiry after a person has died for the purpose of ascertaining whether an amount of money in a bank account in the name of that person represented the benefit of the commission of a serious crime?

MR BUSS:   The key point is whether, in those circumstances, anything in Chapter III would have the effect that no such inquiry can be embarked upon to the extent that it involves establishing that a deceased person did, in fact, commit a serious crime.

GLEESON CJ:   There is nothing repugnant constitutionally, is there, to the notion that you might now conduct a judicial inquiry for the purpose of determining whether an amount of money in a Swiss bank account in the name of Hermann Goering represented the benefit of a serious crime committed 60 years ago?

MR BUSS:   No, there would not be.  The key point, I suppose, is that that situation does not apply here where what is sought to be the basis of this legislation is either the recording of an actual conviction according to law, failing that, a deemed conviction.  There may well be a way in which this legislation could be differently drafted which would not give rise to a Part 3 difficulty, but in the end the Parliament in its wisdom chose to proceed on the basis that it was to be conviction based and if there could not be an actual conviction, a regular conviction according to law, then there was going to be a deemed conviction in relation to people who had died and people who absconded.

MR MEADOWS:   They were. 

GLEESON CJ:   This is only a quibble, but it is not entirely accurate, is it, to say that on an application for a forfeiture order all the facts have to be proved beyond reasonable doubt?  Section 53 requires you to prove the commission of the offence beyond reasonable doubt, but there are other facts that you would need to prove to get a forfeiture order. 

MR MEADOWS:   Yes, and they are on the balance of probabilities, as a result of 53(1). 

GLEESON CJ:   Yes. 

KIRBY J:   Do you know of any other statute by which a person is deemed to be convicted of a serious offence, other than this form of legislation, any other Australian legislation? 

MR MEADOWS:   No, your Honour, apart from, of course, the ones of like form, which are in the book that has been handed up.  In fact, just going through it very briefly – I think his Honour Justice McHugh has summed it up – the jurisdictions where a person is deemed to be convicted are Western Australia, Victoria, South Australia and Queensland.

GLEESON CJ:   You are talking about deceased persons, are you?

MR MEADOWS:   Yes I am, your Honour.  The Commonwealth, your Honour Justice Gummow was referring to the 1987 Act; it has been replaced by the Proceeds of Crime Act 2002 (Cth), which speaks in terms of “not being amenable to justice”.

GLEESON CJ:   Earthly justice.

HAYNE J:   That really seems to raise a Kable issue.

MR MEADOWS:   On our construction of the Act, it would not encompass a deceased person.  I am not sure whether my learned friend, Mr Burmester, would agree with that.

GUMMOW J:   That would be a withdrawal from the 1987 legislation if it did.

MR MEADOWS:   It is, I think, your Honour.  I will let my learned friend answer for the Commonwealth, but that is the way ‑ ‑ ‑

GUMMOW J:   It is unusual for them to give away ‑ ‑ ‑

MR MEADOWS:   That is the way we perceived it at least, your Honour.  Of course that means that, as his Honour Justice McHugh observed, it is New South Wales, Tasmania and the Northern Territory as amongst the States and Territories that do not provide anything in relation to deceased persons.  I might say that when it comes to the burden of proof and the standard of proof, this particular legislation that is under consideration here is, certainly compared to current legislation, the only legislation that would require proof beyond reasonable doubt in relation to a forfeiture order.

The passage that I was going to refer to in relation to the factual findings is paragraph 19 of Justice Scott’s judgment which is at page 17 of the application book, where he said:

Apart from some minor challenges to the factual material placed before the court, the defendant’s position is that the application by the plaintiff, insofar as it seeks either a forfeiture order or a pecuniary penalty order, is based upon unconstitutional provisions –

If I could briefly just finish what I was going to say about deeming devices, just to refer to what was said in R v Hughes (2000) 202 CLR 535, and what your Honours Chief Justice Gleeson and Justices Gaudron, McHugh, Gummow, Hayne and Callinan said in paragraphs 23 to 24 and what your Honour Justice Kirby said in paragraphs 85 to 90, that the effect of a deeming device of this sort is to not suggest that the person has been convicted of the offence, but to demonstrate that the person has not been convicted of the offence, otherwise it would have been unnecessary to deem it to be so.

It falls into that category of what Bennion calls asifisms.  If I could refer the Court to Bennion on Statute Law, 3^rd edition, at page 274, where he says that this device saves the drafter:

spelling out again (usually with modifications) statutory provisions which may be lengthy and complicated.  In his constant search for brevity he jumps at it.  Yet it contains the dangers which lurk in any form of pretence.

It is probably fair to say that it is one of those dangers that has brought us here today.  But once the provisions in question are properly construed in the way in which both Justice Scott and the majority in the Full Court did, it is apparent that it is no more than a drafting device.

If I could then briefly deal with Kable.  First of all, let me say that if the appropriate test is public confidence in the integrity of the judiciary, it would not be a matter which is in issue in this case.

GUMMOW J:   You can say if this was a law of the Commonwealth it would be okay under Chapter III and could be given to a Federal Court.

MR MEADOWS:   Absolutely, your Honour, and we do say that.

GUMMOW J:   End of problem.

MR MEADOWS:   Yes.  Maybe that is all I should say.  But there was an invitation to go to those passages in Kable’s Case which dealt with diminishing public confidence, and perhaps if I could just refer to them and just make a few brief observations:  first of all, Justice Toohey at page 98, where he spoke of diminishing public confidence, which is halfway down that page; Justice Gaudron at pages 100 and 103, where she talked first of repugnancy.  This is at the top of page 100, “repugnant to or inconsistent with”, which we say is the appropriate test.  At page 103, two‑thirds of the way down the page, she talked about repugnancy and incompatibility.  But then at pages 107 and 108 – 107 halfway down the page, and in particular two‑thirds down the page, and in the final third she talked about public confidence being maintained, and at 108, a third of the way down the page, she spoke of weakening public confidence.

So far as Justice McHugh is concerned, at page 109 you spoke of – this is halfway down the page – the question of it being one of incompatibility.

McHUGH J:   I think in the critical passage in my judgment at 118 it is open to the criticism that it conflates proof of breach of the implication with the implication itself.  The implication is really that a State cannot vest in the Supreme Court a function or a power that is incompatible with the vesting of federal jurisdiction in the Supreme Court but it follows almost as a matter of course that there will be that incompatibility if the function or power would lead to a loss of public confidence, but they are two different things.  The implication is that you cannot vest some function or power that is incompatible.  That is the basic implication from ‑ ‑ ‑

MR MEADOWS:   I think that is where we would come from as well, your Honour, and that you really have an implication on an implication, as we have said in our ‑ ‑ ‑

McHUGH J:   Yes.  What I said at 118 tends to conflate proof of a breach of the implication with the implication itself.

MR MEADOWS:   Yes.  It may be a way in which a judicial officer could measure a degree of incompatibility but you still have to have the incompatibility.

McHUGH J:   Exactly, yes.

MR MEADOWS:   If I could say, with respect, your Honour, that at page 116, where you said, in the middle of the page:

Given the central role and the status that Ch III gives to State courts invested with federal jurisdiction, it necessarily follows that those courts must also be, and be perceived to be, independent of the legislature and executive government in the exercise of federal jurisdiction.  Public confidence in the impartial exercise of federal judicial power would soon be lost if federal or State courts exercising federal jurisdiction were not, or were not perceived to be, independent of the legislature or the executive government.

We would say you got it right there, with the greatest of respect, but that later on you strayed into looking at public confidence as the test rather than the consequence.

McHUGH J:   Yes.  I think there is a great deal of force in that criticism.

MR MEADOWS:   I do not think I should take it any further.

GLEESON CJ:   Is that a convenient time, Mr Solicitor?

MR MEADOWS:   It is, your Honour.

GUMMOW J:   Mr Solicitor, we might be supplied at some time with Order 81F of your Supreme Court Rules in Western Australia.  It deals specifically with this Act and, interestingly enough, Order 81F deals not only with the 1988 Act of your State, but the very same procedures apply in the exercise of federal jurisdiction under the 1987 Commonwealth Act, so it rather assumes that it is all of a kind.

MR MEADOWS:   All of a kind, yes, I accept that, your Honour.

GLEESON CJ:   We will adjourn until 2.15 pm.

AT 12.46 PM LUNCHEON ADJOURNMENT

UPON RESUMING AT 2.19 PM:  

GLEESON CJ:   Does that cover what you wanted to say, Mr Solicitor? 

MR MEADOWS:   With two exceptions, your Honour.  One is that your Honour Justice Gummow did ask a question about parties.  We have made available to the Court a copy of a decision of Justice Desmond Heenan on 12 November 1998, where that was dealt with.  Mr Silbert stayed in as the executor of the estate and the beneficiaries were struck out of the proceedings. 

Your Honour asked for a copy of Order 81F; we have made that available as well. The only amendment to it is one which was affected by an amendment to the Supreme Court Amendment Rules (No 2) 2002, which changed the heading of the order and introduced a new 81FA, which dealt with the 2000 Act.

GLEESON CJ:   And there is no question of costs, I understand, in relation to this application? 

MR MEADOWS:   No, your Honour. 

GLEESON CJ:   It is probably convenient just to hear what Mr Buss has to say in reply to the Solicitor‑General at this stage. 

MR BUSS:   Thank you, your Honours.  His Honour Justice Kirby raised some questions about the extent to which some of the judgments in Kable had referred to the concept of “public confidence” as being a relevant aspect of the principles to be ‑ ‑ ‑

KIRBY J:   The Solicitor took us to these.  Do you have anything to add to the passages?  It does seem that each of the Justices referred to it though, for my own part, I think Justice McHugh clarified the position in what he said during the argument in this case.

MR BUSS:   Yes, I think that adequately dealt with it in the sense that all four members of the majority appear to refer to this context and essentially I would be just giving a short note of particular page references, and that may not be necessary.  At the end of the day, having heard the submissions of my learned friend for the respondent and also for the Attorney-General for Western Australia, it reveals that the applicant and the respondent are in furious agreement in relation to a number of issues.

The critical points are really the points that I summarised at the end of my opening submissions, namely whether the construction that we advance in relation to section 15 is correct in the sense whether that section does preclude a judge in carrying out the task of assessing and determining benefits and making a pecuniary penalty order is able to embark upon an investigation of any of the facts which are necessarily subsumed within the deemed conviction.  The deemed conviction, on our construction of the Act, in the context of section 15 being one that is unreviewable, alternatively binding upon the judge who is considering the application for a pecuniary penalty under section 6.  That is impermissible.

KIRBY J:   What did the Full Court say on that point?  Did their Honours deal in terms with the question of preclusion or not?

MR BUSS:   With respect, they do not appear to have dealt in terms with the question of preclusion.  There were essentially four bases upon which the majority decided the case, but it was decided in the context that there was nothing in the Act which precluded the ordinary operation of the judicial function in relation to fact finding but did not, as we read their reasons, focus upon this particular point which I endeavour to raise before this Court.

The second aspect and the second limb of the challenge to section 15 is, if we are right about that contention, it has two aspects.  First, it has the aspect that there has been a fictional and assumed exercise of judicial power and, in our submission, the fictional quality of that exercise of judicial power is one of the features which involves an infringement of Part 3.

KIRBY J:   Is it unusual for the judicial power to be exercised, in State jurisdictions, certainly, and also I think in federal jurisdiction, on the basis of fictions?  We had a case recently of Maroney which involved a drug statute which contained a provision defining circumstances in which the person could supply the drug to himself.

MR BUSS:   Yes, and that was a case where there was a supply by a person to that same person.

KIRBY J:   That is right.  The Act said “supplied to another”, I think, and by reason of the way the statute was framed it was held that that could involve a supply to himself.  The provision of fictions is not at all unknown in the law and is quite commonly given effect by judges, and has been forever or for a very long time, as long as legislation has contained fictions.  So what is so offensive to the judicial power to require a judge to exercise yet another power based on a fiction?

MR BUSS:   The key feature of this legislation is the deeming of a person to have committed a criminal offence.  That, in our submission, is an impermissible deeming or statutory fiction for the purpose of giving rise to the potential for the personal representative of the estate of the deceased to be the subject of penalty orders and pecuniary and forfeiture orders.  It does that because it is anathema to the common law system of criminal justice that a dead person could be tried for a criminal offence and in this form of legislation, which has its starting-off point at there having been a conviction, either a conviction according to law or in the case of a person who has absconded or died a deemed conviction, and that deemed conviction cannot be questioned, in our submission, at least in the context of section 15 and section 16 of the Act. 

That is a given with which the judge determining the case must work and not only is that an affront to Chapter III of the Commonwealth Constitution, it also carries with it significant difficulties in terms of fact‑finding, because if the deemed assumption is to be made, there are certain facts which are subsumed within or an integral part of the deemed conviction and the task of endeavouring to attempt to assess the benefits that have been derived is not the ordinary manner in which traditional judicial process would be invoked to determine the benefits that are derived from a particular course of conduct.

KIRBY J:   The Solicitor told the Court that he was unaware of any other area of legislation where there was such a deeming of guilt of a serious offence.  Have your researches turned up any other area of statutory provision in Australia or elsewhere where there is such a provision?

MR BUSS:   We are unaware of any, your Honour, and the closest that we have found in a slightly different context is in England and we refer to the judgment in McIntosh in our original outline of submissions where there was some discussion of some similar legislation and the interaction of European treaties in relation to that legislation.

McHUGH J:   The legislation dealt with in Hughes’ Case deemed a person guilty of an offence against the Commonwealth.  Did not the legislation there say that a person who was guilty of an offence against the law of Western Australia was taken to be guilty of an offence against the laws of the Commonwealth?

MR BUSS:   Yes, in substance it did, but the key distinguishing feature, in our submission, is in the case of a person who is a dead, where criminal proceedings ordinarily abate, and in circumstances where there are penalties or consequences which are to be visited on the personal representatives of his estate, it is our submission that that qualitatively distinguishes it from the type of provision under consideration in Hughes.

In relation to the position on forfeiture, our position is less strong than it is in relation to pecuniary penalties, and it is less strong because of the provisions of section 53(2) relating to the court being required to be satisfied beyond reasonable doubt that the deceased has committed the offence.  The difficulty with that again, of course, is that we are dealing with a situation where property is to be forfeited from the estate of a deceased held by the personal representative, and it is a curious concept that there should be, in effect, a trial to satisfy a Supreme Court judge that a deceased has in fact committed a criminal offence in circumstances where the deceased was never tried during his lifetime for that offence, where during his lifetime or upon his death the proceedings abated at common law, and there was also a nolle prosequi which was entered and accepted by the court prior to the application under section 6 being brought against the personal representative of his estate.

KIRBY J:   But if you take as a criterion of consideration of what our Constitution requires, why would not an ordinary person say the man is dead and therefore he cannot be tried, but in his lifetime it is strongly arguable that he committed serious offences, gained property from it and his intervening death should not deprive the community of access to those ill‑gotten gains. I do not know if the criterion is what would lower the court in the estimate of others, if that is simply a step in the court’s order that the community would be offended by that, and say that is something that judges should not do.

MR BUSS:   Well, that may fall into a different category, your Honour, if we are not dealing with the situation where we have legislation which is

conviction based or an assumed conviction-based system and we are moving to a system where, irrespective of whether a person is alive or dead or whether that person has been convicted of a criminal offence, that certain property, be it proceeds of a crime or property used in the commission of some unlawful act, has been used and is sought to be forfeited by the State or the subject of a pecuniary penalty order, it may be that the legislation can be drafted in a way which would lawfully permit both of those things to be done by reference to whether or not there had been some form of unlawful activity stopping short of making a deemed conviction against the deceased or stopping short of otherwise using a statutory fiction in relation to conviction under the criminal law.

But that is not this case, and it is not part of our case that that would be necessarily an impossible task, although one would need to examine carefully whether the legislation necessarily involved determining whether or not a dead person was guilty, even if for the purposes of the Act only, of serious criminal offences said to have been committed during his lifetime.  The legislation that we are dealing with here is not of that ilk and has not sought to be sustained by the legislature other than by reference to actual or deemed conviction of the person concerned, with, in the case of a deceased person, the particular consequences that I have outlined for his estate and his personal representatives.  Those are our submissions in reply, thank you, your Honours.

GLEESON CJ:   We will adjourn for a short time to consider the course we will take in this matter.

AT 2.33 PM SHORT ADJOURNMENT

UPON RESUMING AT 2.34 PM:

GLEESON CJ:   We do not need to hear counsel for the interveners.  At least a majority of the Court is of the view that the application should be dismissed.  The order of the Court is special leave to appeal is refused.  We will publish our reasons in due course. 

We will adjourn until 10.15 tomorrow.

AT 2.35 PM THE MATTER WAS CONCLUDED