State of Queensland v Lindsay

[2005] QSC 166

SUPREME COURT OF QUEENSLAND

CIVIL JURISDICTION

[2005] QSC 166

FRYBERG J

No S7738 of 2003

STATE OF QUEENSLAND	Applicant
and
HOWARD KERRY LINDSAY	First Respondent
and
LEONIE FAY LINDSAY	Second Respondent
and
ANTHONY HOWARD LINDSAY	Third Defendant
and
PHILLIP DANIEL BARNES	Fourth Defendant
BRISBANE ..DATE 15/06/2005
ORDER

15062005 T41/BLS18 M/T 5/2005 (Fryberg J)

HIS HONOUR: The application which is immediately before me	1
was filed on 8 June and sought orders that the stated property of 'the respondents' being property enumerated in paragraphs (a) through to (j) be excluded from a restraining order made on 17 February this year by Philippides J.

10

The applicants were the respondents in the proceedings in which that property was restrained and it is necessary to refer to the history of the matter in order to gain a more

complete appreciation of it.

20

In 1985, Howard and Leonie Lindsay who are two of the applicants in the immediate application but to whom I shall refer by name purchased land at 311 Tandur Road, Tandur near Gympie. There was a mortgage to the National Australia Bank

30

which was paid out in 1997.

In about 2000 or 2001, they purchased further land at 8
Burrage Road, Tandur and that is the land on which they lived.

They have four children; one son and three daughters, one of

40

whom is still of school age. Their son Anthony, now an adult,
has at all material times occupied the land at Burrage Road
with his partner. That land has an area of some 100 acres,

the land at Tandur Road some 30 acres.

50

In 2002, Mr Lindsay decided to make some additional money by growing marijuana on both of the properties. He planted crops on a number of locations on both properties. The total number of plants was some 12,000. Their value when located by the 15062005 T41/BLS18 M/T 5/2005 (Fryberg J) 2 ORDER 60

police in September 2002 was estimated to be some $68,000 at	1
the stage of growth which was then some seven weeks or so. it might have been worth had it grown to full maturity, been processed and sold on the retail market; they suggest a figure

10

of many millions of dollars.

Mr Lindsay was arrested on 4 September and charged with production of the marijuana with a circumstance of aggravation. The land in question, that is to say both

20

blocks, had at some time been transferred into the names of
not only Mr and Mrs Lindsay but also their son, Anthony who is
one of the parties to the present proceedings. Precisely when

that happened does not matter.

30

In March 2003, the three Lindsays transferred both blocks of
land to Phillip Daniel Barnes. He is also a party to the
present proceedings. He took that land as trustee of the Blue
Ridge Trust. That is a discretionary trust under which Mr

Howard Lindsay has the power of appointment and the trustee,

40

the power to distribute among objects nominated in the
schedules to the deed, both capital and income. It is, I
think, common ground that after that transfer none of the
former owners had a proprietary interest in the land but

merely the expectancy that results from a discretionary trust.

50

The title was vested in Mr Barnes.

Some six months later, the Director of Public Prosecutions
applied to this Court for a restraining order under the
15062005 T41/BLS18 M/T 5/2005 (Fryberg J) 3 ORDER 60

Criminal Proceeds Confiscation Act 2002. The three Lindsays	1
and Mr Barnes were the respondents to that application. All subsequent proceedings have been brought in that originating application.

10

On 15 September 2003, Mackenzie J made such an order. The property restrained consisted of the two blocks of land and a quantity of vehicular equipment consisting of earthmoving equipment and road vehicles and trailers and some tractors.

20

That order was sought and made under Chapter 3 of the Act because Mr Lindsay had been charged with the relevant offence. There is no doubt that the technical requirements for the making of the order were fulfilled and the complex definitions involved in Chapter 3 were all satisfied.

30

The order did not provide for any period during which it was to operate, so consequently it expired 12 months later on either 14 or 15 September 2004 pursuant to s 128 of the Act.

40

On 16 September 2004, Mr Lindsay came before Byrne J for sentence. He was sentenced to imprisonment for five years to be suspended after he had served 20 months. He is still serving that period of 20 months.

50

No relevant application was made at that time for any order
relating to property, although the matter was mentioned to his
Honour and it was envisaged that one would be made. Some five
months later, in February this year, application was made to
15062005 T42/CMP29 M/T 5/2005 (Fryberg J) 4 ORDER 60

the Court for a further restraining order. At the same time,	1
application was made for an order that the property be forfeited to the State of Queensland.
Philippides J made the restraining order and a paragraph of

10

the draft order records that the application for forfeiture
was withdrawn.

The material before me demonstrates that the withdrawal was motivated by the fact that the restraining order was made and

20

that automatic forfeiture would occur and, indeed, that point
was drawn to the Judge's attention and an order was made
extending the automatic forfeiture period by three months from

16 March 2005 when otherwise it would have expired.

30

I am inclined to infer that this was a tactical decision made by the Director of Public Prosecutions to gain the benefit of the automatic forfeiture provisions where otherwise it would
have been necessary to comply with the requirements of making

an application.

40

At some subsequent time, it was realised that the automatic forfeiture provisions in the Act did not apply to the land at Tandur Road because it was purchased in 1985, and therefore, was excluded from those provisions by s 163 of the Act. An

50

application has been filed for a forfeiture order in respect
of that land and that application is presently pending.
Affidavits have been filed. Affidavits in reply are not due
until September, and a hearing will, no doubt, take place
15062005 T42/CMP29 M/T 5/2005 (Fryberg J) 5 ORDER 60

later in the year on that matter.	1
It seems that the consequences of the automatic forfeiture provisions were not immediately appreciated on behalf of those advising the Lindsays. If they were appreciated, then it has

10

certainly taken them a long time to do anything about the
problem. However, eventually, they have moved.

Yesterday, two days before the provisions were due to operate, they applied in chambers to exclude the property the subject

20

of the restraining order from the restraining order. They
estimated that the application would take one hour. The basis
for the estimate has not been explained to me and I can only
presume that those who made it may have been sampling the

product that led to Mr Lindsay's incarceration. It bore no

30

relationship to reality.

By the time of the call-over yesterday the estimate had been increased somewhat grudgingly to one and half hours and when the matter came on before me it was extended to two hours

40

because Ms Brien wished to cross-examine the deponents to
affidavits which had only that morning been delivered to her.

Filled with trust in and goodwill toward counsel, I embarked upon the hearing of the matter. The cross-examination of two

50

of the witnesses took place yesterday. That alone occupied
two hours. Yesterday's proceedings occupied three. The
matter was adjourned until today because the third witness was
15062005 T43/DKD9 M/T 5/2005 (Fryberg J) 6 ORDER 60

Mr Lindsay himself and he was incarcerated somewhere on the	1
Darling Downs. He had to be brought to Brisbane.
He was cross-examined today and the matter has been argued. It has occupied another five hours today. The matter has to be

10

decided in haste and it is now after 6 p.m. in the evening. late to do anything about it. That, it seems to me, is probably correct.

20

The course of the argument has indeed been interesting. I have had discussions with counsel about the various aspects of the Act which I think we have all found enlightening from time to time.

30

One of the questions that I asked in my ignorance yesterday was whether one could validly make a second restraining order in respect of the same person and the same property and the same offence as an earlier restraining order. The sniff of an argument thought of by the Judge was too much for Mr Smith to

40

resist. This morning when the matter commenced, he applied
orally pursuant to s 137 of the Act for an order setting aside
the restraining order. He made that application on behalf of

all four of his clients, the three Lindsays and Mr Barnes.

50

The application required by that section is one which must be
made on notice. The notice which the Director of Public
Prosecutions who acts on behalf of the State of Queensland
was, I think, measurable in seconds rather than minutes or
15062005 T43/DKD9 M/T 5/2005 (Fryberg J) 7 ORDER 60

anything longer. I allowed an adjournment to enable	1
instructions to be taken and evidence to be prepared with a view to s 137 and that has been done. It is not suggested that anything substantial relevant to that section is now missing from the evidence or from the submissions although it

10

must be said that in an affidavit filed on behalf of the Confiscations Unit deposed that in the light of the importance to the state generally it wished to obtain the services of senior counsel experienced with the legislation to make

20

submissions on this application and on the validity of the
second restraining order. She deposed that she had attempted
to obtain the services of senior counsel but had not been

successful.

30

I do not think that the State of Queensland has in any way been disadvantaged by her failure to obtain the services of senior counsel. I have been greatly assisted by Ms Brien's submissions and I doubt that any additional submissions of substance could have been provided by senior counsel retrained

40

at the last minute during the course of today. So the matter
can go ahead.

Before dealing with the aspects of the matter which arise under s 137, I shall deal with the original application. The

50

application is, of course, brought pursuant to s 139 of the application. Mr Howard Lindsay is such a person but I do not understand Mr Smith to have submitted that his other clients 15062005 T43/DKD9 M/T 5/2005 (Fryberg J) 8 ORDER 60

fell under that section. I doubt that they are entitled to	1
any order under it. It probably does not matter as they are entitled to bring an application under s 140 and the material provisions - that is to say s 139(3)and s 140(5) are the same. So are the provisions relating to undertakings in each

10

section.

It is common ground that neither s 139(2) nor s 142 can be availed of in the present case because the land, at least, is tainted property, and Mr Smith, frankly, brought the

20

application under sub-s 139(3). The offence, I think, also is
a serious criminal offence.

The land at Tandur Road is not, on any view of the circumstances, going to be forfeited automatically to the

30

Crown. Mr Smith submits that I should, nonetheless, exclude it from the restraining order because the evidence relating to hardship in relation to it is the same as the evidence in relation to the Burridge Road property, and that all the available evidence is now in.

40

I see no reason why the Tandur Road land should be excluded from the restraining order. That order preserves the position until a decision can be made under the forfeiture application already lodged and that, it seems to me, is a satisfactory

50

state of affairs.

The machinery is in a different position. Ms Brien made some
attempt to suggest that the absence of an explanation might
15062005 T44/CMP29 M/T 5/2005 (Fryberg J) 9 ORDER 60

found a conclusion that at least some of it could have been	1
used in production of the marijuana, but I am not satisfied that this is a proper inference to be drawn.
It is, therefore, property which could be the subject of a

10

declaration under s 141 that it not be subject to automatic
forfeiture. Mr Smith orally applied for such a direction as a
fall-back position. Ms Brien opposed that on the basis that
the evidence had not really been directed toward that

position. The outcome of that fall-back position, I think, I

20

need not now determine. I may revert to it later.

Were I to be deciding this matter purely under s 139, I would
be inclined to make an order that the machinery be excluded.

The factors which lead me to that conclusion are, primarily,

30

the fact that the machinery was not involved in the commission of the offence and automatic forfeiture of it would be unfair.

It will also impose financial hardship on Mr Anthony Lindsay, although the degree of that is hard to establish in the light

40

of the vagueness of the evidence. I have said enough to
indicate that I think the offence was very serious and I would
be prepared to make the order as I have said, particularly in
the light of undertakings offered to preserve the position

should there be an application for a forfeiture order in

50

relation to it.

However, it would seem to me unlikely that in the light of the factors which would have led me to make this order, that there 15062005 T44/CMP29 M/T 5/2005 (Fryberg J) 10 ORDER 60

would have been such an application. That is a hypothesis	1
upon a hypothesis and I shall not take it any further.
As to the land at Burridge Road, I would not have been inclined to order its exclusion from the restraining order.

10

The land was used for the growing of the marijuana, and the purpose of the Act is, it seems to me, primarily to deter people from using their own land to commit offences. I see no injustice in its being automatically forfeited. I am aware of the decisions which Mr Smith has cited, particularly one of

20

Helman J relating to another Lindsay and of the decision of the High Court in Farrah in relation to the meaning of the public interest. I am not satisfied that it would be in the public interest to exclude that land.

30

Mr Smith sought to rely upon the evidence of the three improved by them with money which was not unlawfully obtained. They sought to explain how they dealt with that money and where it came from. Their explanations ranged from biscuit

40

tins buried in the paddock to boxes hidden in the rafters of the house all containing large amounts of cash. They didn't trust the bank, they said.

They all were cross-examined before me. I thought the three

50

of them were palpable liars. I was totally unimpressed by
everything that they had to say. They were internally
inconsistent within their oral evidence. They were
inconsistent with the affidavits which they had made. They
15062005 T45/CMP29 M/T 5-6/2005 (Fryberg J) 11 ORDER 60

were evasive. They were forgetful of things which one is	1
astonished at people forgetting, and they gave explanations which I found incredible. In short, I did not believe them.
Mr Howard Lindsay, in particular, seemed to regard his

10

excursion to Brisbane and the giving of evidence as the
opportunity to play-act and demonstrate what a clever fellow

he was. I thought he failed miserably.

The scale of the operation is apparent from the photographs,

20

Exhibit 3. I have referred already to the amount of money which Mr Lindsay stood to make. I have the greatest scepticism about the evidence of the other Lindsays that they did not know what Mr Lindsay was doing.

30

I am not satisfied that there will be financial hardship suffered by the Lindsays in the event that the Burridge Road property is forfeited.

For all those reasons, I would not make an order in respect of

40

that property. The public interest would not be served by so
doing.

I have been proceeding up until now on the assumption that there will be an automatic forfeiture by reason of the

50

existence of the restraining order. That brings me to the

question raised today by Mr Smith of setting it aside.

That is a question which has caused me considerable concern.
15062005 T45/CMP29 M/T 5-6/2005 (Fryberg J) 12 ORDER 60

At first glance, a restraining order of this sort seems to be	1
an order in the nature of an interlocutory order. The sections dealing with the right to apply for it, and the making of it, use language which resonates with those who are accustomed to granting interlocutory injunctions. However the

10

effect of the order is materially different in one crucial
respect. That is that it can lead to an automatic forfeiture
of property, and it can have that result in a very short time

as the present application demonstrates.

20

The Lindsays have had four months to prepare their application but it is quite possible to imagine a situation where an application could be made for a restraining order after conviction at a time when the period of the automatic forfeiture period was almost expired.

30

The consequence of automatic forfeiture is, with some small exceptions, final. That, to my mind, raises the question of whether the true nature of the order is interlocutory.

40

Mr Smith drew my attention to a number of differences between Chapter 2 and Chapter 3 of the Act. Those are important differences. The structure of those chapters is described in the opening provisions of each chapter. Section 4 in the introductory Chapter 1 states that the Act provides for two

50

separate schemes to achieve its objects. One of the schemes
relies on a person being charged and convicted and is
administered by the Director of Public Prosecutions. That is
the scheme provided for in Chapter 3 with which we are
15062005 T45/CMP29 M/T 5-6/2005 (Fryberg J) 13 ORDER 60

concerned.	1
The other scheme does not depend upon a charge or conviction and is administered by the Crime and Misconduct Commission. Section 4 provides that despite the similarities between the

10

schemes, each is separate and neither scheme is to be
construed as limiting the other unless the Act otherwise

expressly provides.

Proceedings under the Act are civil not criminal. Questions

20

of fact must be decided on the balance of probabilities and the rules of evidence and the Uniform Civil Procedure Rules (save to the extent that they are inconsistent with the Act)
apply to the proceedings; see s 8. An order under the Act is

not a sentence.

30

The scheme of chapter 2 requires the existence of a restraining order as a pre-condition for the making of an application for a forfeiture order. In that respect, the scheme is different from chapter 3 where restraining orders

40

are not required as pre-conditions for an application for a
forfeiture order. In chapter 2, therefore, it can be seen
that a restraining order is a genuine preliminary step in
every case to the making of a forfeiture order as s 13

recites. Somewhat similar statement is made in the opening

50

section of chapter 3, s 94 but it is unclear what a
restraining order is a preliminary to.
15062005 T46/BLS18 M/T 6/2005 (Fryberg J) 14 ORDER 60

At least in cases where automatic forfeiture is available, a	1
restraining order should not in my view be seen as an interlocutory order. Consequently one would not expect that a second order would be available on identical facts. Chapter 2 has foreseen the problem. Section 90 provides that the fact

10

that a restraining order has been made on the basis of a
person's serious crime related activity does not prevent the
making of another restraining order on the basis of that

activity. There is no cognate provision in chapter 3.

20

Section 94(2) and s 117 provide for the making of "an" order, that is in the singular. Mr Smith submitted that this should be construed to mean that only one order can be made. If it
were simply a matter of grammar and the use of the singular, I

would not find that argument very impressive. However, read

30

in conjunction with the matters to which I have already
referred, that is the nature of the order and the absence of
any provision equivalent to s 90, I have come to the
conclusion that the singular meaning is to be preferred. That

is particularly so in an Act which forfeits property without

40

compensation automatically by the effluxion of time. Strict of Public Prosecutions, 79 Australian Criminal Reports 514 at
construction of such an Act is appropriate. For that
proposition, Mr Smith cited the decision of the Court of

50

pp 517-518.

There is no limit to the period for which a restraining order
may be extended under s 136 of the Act, and apparently no
15062005 T47/CMP29 M/T 6/2005 (Fryberg J) 15 ORDER 60

limit to the number of extensions which may be granted. The	1
question whether an extension can be granted nunc pro tunc was not addressed in argument.
No explanation has been offered for why an application to

10

extend was not made in the present case. It would seem to be
an easy matter if it is envisaged that an application for
forfeiture may be made to make an application for a

restraining order and to have it extended, if need be.

20

That process would also ensure that the State gained the benefit of the automatic forfeiture provisions. It does not seem to me that it is necessary for the State to have the right to make an application for a second restraining order on identical facts in order to take advantage of its automatic

30

forfeiture rights. They are substantive rights and the State
has it within its power to preserve them.

A property owner, on the other hand, is in no such fortunate position. He may apply for an extension of the automatic

40

forfeiture period defined in s 161 of the Act, but only one
extension of three months may be given: see s 163.

In support of the proposition that the order was interlocutory, Ms Brien referred me to the decision of the

50

Court of Appeal in Director of Public Prosecutions v Hart
[2004] 2 QdR 1 where the President, with whom McPherson JA
agreed, said of a similar provision in the Commonwealth
Proceeds of Crime Act:
15062005 T47/CMP29 M/T 6/2005 (Fryberg J) 16 ORDER 60

"Despite the argument of the parties, I am not satisfied	1
that the order of 20 October 2003" -

which was, I interpolate, a restraining order -

10

"is a final judgment. It seems to me to be interlocutory
in nature because further applications of a related sort
could be made under the Act at a later time to finally
determine the rights of the parties: Carr v Finance

Corporation of Australia No 1 and Barnes v Australian

20

Telecommunications Corporation."

Her Honour was considering the somewhat different question of whether the order was interlocutory for the purposes of granting leave to appeal to the Court of Appeal from a

30

judgment of the District Court under s 118 of the District
Court Act.

Moreover, she emphasised the fact that further application of a related sort could be made under that Act to finally

40

determine the rights of the parties. In that respect, the
present situation is different. Automatic forfeiture involves

no further application.

For those reasons, I have come to the conclusion that the Act

50

does not empower the Court to make a second restraining order
in circumstances where the order is based upon the same
offence, is in respect of the same property, and is made
against the same person as an earlier order and where the
15062005 T47/CMP29 M/T 6/2005 (Fryberg J) 17 ORDER 60

order exposes the person to automatic forfeiture of his or her	1
property.
In those circumstances, Ms Brien submitted that the State of Queensland should have leave to make an application for a

10

forfeiture order out of time pursuant to s 146(4) of the Act. withdrawal of the application in February this year was linked to the making of the restraining order and the fact that no point then was taken as is taken now. Quite rightly, Mr Smith

20

did not oppose the grant of such leave, and in my judgment
such leave should be granted.

The question of the preservation of the property may be dealt with because I have a discretion about whether or not to set

30

aside under s 137. An order of this Court is valid until set
aside and will operate according to its terms unless set
aside. It seems to me that as part of the price of having it
set aside, and in view of the lateness of the application

which was brought today, it is appropriate to accept the

40

undertakings offered by Mr Smith on behalf of his four clients
to, in effect, provide security, the undertakings being

offered under s 137(5).

That being so, I think the position of the State of Queensland

50

is adequately preserved since the undertakings are effectively
in the terms of the order of February so far as that order is
material.
15062005 T48/DKD9 M/T 6/2005 (Fryberg J) 18 ORDER 60

...	1
HIS HONOUR: The order which I propose is as follows, subject to any submissions I hear.

10

Upon H.K., L.F. and A.H. Lindsay and P.D. Barnes by their counsel undertaking

a.	not to deal with any of the property referred to in para 1 of the order of Philippides J made on 17 February 2005;
b.	to do each of the things set out in paras 4(i) 20

through to 4(v) of that order;

c.	in the event of default in adherence to the undertakings in para b, to deliver the property therein referred to forthwith into the control of the Public Trustee;
d.	to do the things specified in para 5 of that order;

30

e. to consent to the continuation of caveat number 708500092 in relation to Lot 2 on SP102475 and caveat number 708500105 in relation to Lot 3 on Registered Plan 215649, and if asked, to consent to the lodgement of further caveats by the Director of Public Prosecutions over such land,

1. Set aside the order of Philippides J made on 17

40

February 2005,

2. Grant leave to the State of Queensland to apply for a

forfeiture order of the property referred to in

paras 1(a) and 1(c) to 1(j) of that order on or before

50

30 June 2005.

Now, the net effect of that is that the undertakings will
apply to all of the property including that in 1(b) but there
15062005 T48/DKD9 M/T 6/2005 (Fryberg J) 19 ORDER 60

is only a need to make a further application in respect of the	1
other property, not the 1(b) property - that is the Tandur Road property.
...

10

HIS HONOUR: Each side has made application for costs, in the case of the Lindsays for half of their costs. It seems to me that while in form, and I suppose in essence, the Lindsays

have had some success on the application, the result is not

20

one which is a marked and clear-cut victory for either side.

The State of Queensland has not had success at all, and I do not think is entitled to an order for costs. And on balance, particularly having regard to the lateness of the applications

30

that were brought, and particularly the lateness of the costs.

successful application, I do not think the Lindsays and Mr

40

-----

50

20 ORDER 60