The Director of Public Prosecutions for Victoria v Lemoussu [2012] HCATrans 201

[2012] HCATrans 201

[2012] HCATrans 201

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne       No M20 of 2012

B e t w e e n -

THE DIRECTOR OF PUBLIC PROSECUTIONS FOR VICTORIA

Applicant

and

ERIC LEMOUSSU

Respondent

Application for special leave to appeal

HAYNE J
CRENNAN J

TRANSCRIPT OF PROCEEDINGS

AT MELBOURNE ON FRIDAY, 17 AUGUST 2012, AT 1.48 PM

Copyright in the High Court of Australia

MR T. GYORFFY, SC:   May it please the Court, I appear with my learned friend, MS E.H. RUDDLE, for the applicant in that matter.  (instructed by Director of Public Prosecutions Victoria)

MR T.J. SOWDEN:   If the Court pleases, I appear for the respondent.  (instructed by Nicholas O’Donohue & Co Lawyers)

HAYNE J:   Yes, Mr Gyorffy.

MR GYORFFY:   Your Honours, the complaint here is a very simple one.  This Court sets down guidance for judges on how to interpret the statute.  There is a long line of authority from Project Blue Sky onwards indicating the processes that should be applied in relation to interpreting the words of a statute of Parliament.  Parliamentary Counsel, when seeking to give intention to Parliament’s policy relies on those rules and the rules that are set out in the Interpretation of Legislation Act being applied by courts.

What we submit here is that when one looks at pages 78 to 80 of the appeal book his Honour’s reasoning was absolutely impeccable; that is the trial judge.  He went through the process of interpreting this statute in the way that this Court requires a statute to be interpreted, looking at the purpose, looking at the context, looking at the background, looking at the meaning of the words.  When the matter went to the Court of Appeal a completely different approach was taken.  The Court of Appeal started with the words of section 35 without putting it into the context of the Act, without looking at the way the Act was structured, without looking at the parts of the Act and how they relate to each other and found an ambiguity.  Well, it is not surprising, if you do not look at the context of the intention of Parliament, words in the statute will be ambiguous.

They then said, well, this is a penalty provision, therefore the ambiguity is decided against the Crown.  We submit that is an improper way of analysing a statute.  The way his Honour did it was the correct way and accords with principle.  What happens here is that that principle way is set aside by the Court of Appeal and the effect is that judges are thrown into disarray and try to work out how they should approach the interpretation of a statute.

Now, this Court has made it clear how it should be done.  The Interpretation of Legislation Act, particularly section 35, makes it clear, and that has not happened.  The problem, your Honours, is that this is not an isolated case in relation to the interpretation of this particular Act, the Confiscation Act.  There are other matters already in this list or coming to this list where exactly the same approach as occurs in paragraphs 24 and 25 of the Court of Appeal’s judgment has been taken.

Now, we say that is not a proper analysis of interpreting the meaning to be given to section 35.  We have set out in great depth the structure of the Act in our submissions, we have set out the purposes and we have set out the plain meaning of section 35.  Within the context of that legislation the purpose to be served by section 35 is to declare when an automatic forfeiture order commences.  In terms of the way it is put, what section 35 recognises is that at the time that the 60 days is up for either the making of the conviction or making of a restraining order there still might be unresolved issues in relation to exclusion orders.

CRENNAN J:   Well, it refers specifically to an application, does it not?

MR GYORFFY:   It does, your Honour.

CRENNAN J:   And one reason why two paths may be in prospect is because a person may not have the need to apply for an exclusion order until the date of conviction comes around.

MR GYORFFY:   No, your Honour, because the gateway to an automatic forfeiture order is the restraining of the property, and once the property is restrained if no action is taken then the situation is that with the effluxion of the 60 days under section 35 a property is automatically forfeited.

CRENNAN J:   Well, I understand that, but the property is only restrained.  An exclusion order really will have effect when the time for forfeiture comes, and what I am saying to you is you seem to be wedded to the idea that there is only one possible pathway and I am just pointing out to you that since section 35 contemplates an application being made for an exclusion order under section 22 there are two pathways and that makes a great deal of sense when one contemplates how restraining orders work, and the fact that an exclusion order may only be required after the date of conviction.

MR GYORFFY:   Well, no, your Honour, because you cannot get a forfeiture order unless there is a restraining order in relation to the property.

CRENNAN J:   Yes, that is right.

MR GYORFFY:   That is the jurisdictional foundation of it.

CRENNAN J:   Yes.

MR GYORFFY:   Then the legislation very clearly sets out the avenues of application for exclusion orders under the different types of application that can be made under Schedule 1 offences, under Schedule 2 offences and under civil forfeiture.  So there are the automatic forfeiture provisions and then that goes down and there is a common point at which one can make an application for exclusion.  Now, there is no reason, your Honour, to delay until after conviction for the application to be made.

CRENNAN J:   Why is not forfeiture a key point in the process – imminent forfeiture, I should say?

MR GYORFFY:   Well, it would be something that would operate on the mind of the person concerned, but from the legal ‑ ‑ ‑

HAYNE J:   Because it has a radically different effect on interests.  Restraint differs from forfeiture, surely.

MR GYORFFY:   But if nothing is done at the time of restraint then the property is forfeited, and the point we make is that there is a very clear structure to this legislation.  Why would it be only in relation to automatic forfeiture that there would be a second gateway when all of these matters are brought together under a particular application?

CRENNAN J:   Well, one could rhetorically ask, why would you expect a person to go to the expense and trouble of applying for an exclusion order in circumstances where forfeiture may never take place?

MR GYORFFY:   Because that is the structure of the Act.  It works on the basis that there is no prejudice to the accused because the proceedings can be stayed once the restraining order is made.  There is no prejudice to the person running their trial because they do not have to put forward the way that they are approaching the matter.  The Act itself by structure, by having those provisions, contemplates that steps will be taken after the forfeiture order is made, it is built into that section, because what it is doing is saying, right, this is the application that is made to restrain the property, we put that on hold until after you have gone through the remaining processes, at that time we then deal with the application.

But the only process which sets out the way the application is to be made is through those particular provisions dealing with the individual types of forfeiture order.  There is no procedure set down in section 35 for it, and what it does is it goes back and incorporates the procedure that has been commenced previously.  So the only effect of section 35, it is submitted, is that it says that what point in time after either conviction or determination of the exclusion order automatic forfeiture occurs.

Insofar as it talks about these other applications on foot that is only to identify that the time stops until those applications are completed.  But it is our submission that the Act is very clear on the procedures and the procedure that needs to be followed for the making of an automatic forfeiture order, there is only one pathway.  All that happens is if section 35 comes into operation prior to that pathway being completed it is suspended, that is the proper meaning of the section and there is absolutely no ‑ ‑ ‑

HAYNE J:   If, as you assert, there is only one pathway what is 35(2) doing when it speaks of, “If, within the period of 60 days”, in effect after conviction, “an application has been made for an exclusion”?

MR GYORFFY:   It does not exclude the possibility of an application being made under section 20 to be dealt with after conviction; it does not exclude that possibility.  But the application is not made under section 35, it is made under section 20 and dealt with under section 22.  We emphasise, your Honours, that the wording of section 35(2) is in the past tense.  It refers to the application having been issued but not completed, in effect.  That is the proper meaning of those words.

HAYNE J:   I just do not understand how that works “If, within the period of 60 days . . . an application has been made”.  I just do not understand how the temporal point you are making emerges.

MR GYORFFY:   Well, we have dealt with this in paragraph 3.27, your Honour, “an application has been made for an exclusion order”.  Those words mean that there is an application on foot at that time, when section 35(2) comes into consideration.  That, your Honours, is to be contrasted with the language in sections such as 21, 49(1), 51(1) and 53(1), because those sections unequivocally grant a right to apply for exclusion.

So this is a special form of property.  Automatic forfeiture relates to those offences which the Act considers to be the most heinous, and it has the intention that it be automatic.  There is the limited approach to it that is open under the legislation and the clear meaning, we submit, of section 35(2) and 35(1) is that there must be an application made under section 20.  If it is not determined under section 22 prior to the 60 days, either from the commencement of the application or the conviction, then automatic forfeiture occurs.

That is how his Honour the trial judge dealt with it, we submit, correctly, and the Court of Appeal has gone about it by simply looking at the words, saying that they are ambiguous; they are only ambiguous if they are not put into the total context of the Act, is our submission.  Thank you, your Honours.

HAYNE J:   Yes, thank you, Mr Gyorffy.

MR GYORFFY:   Just one matter I should deal with.

HAYNE J:   Yes, Mr Gyorffy.

MR GYORFFY:   The late matter that was raised by the respondent.  In relation to that, our submission is, one, the matter needs to be dealt with.  This matter needs to be dealt with on the basis of the law as it stood.  The second point we make in relation to it is that our complaint is about the methodology used in relation to the interpretation of this section.  The amendments referred to by my learned friend do not necessarily change that.  Unless the Court of Appeal changes the method by which it approaches the interpretation to what we submit is the correct method then the same problem is going to arise again, and it is our submission that that meaning is the correct meaning.

HAYNE J:   Yes, thank you.  We will not trouble you, Mr Sowden.

We are not persuaded that an appeal to this Court would enjoy sufficient prospects of success to warrant a grant of special leave.  Special leave is refused with costs.

AT 2.02 PM THE MATTER WAS CONCLUDED