Dickfoss v DPP & Ors [2012] NTCA 1

 

PARTIES:                                         DICKFOSS, Mark Wesley

 

                                                         v

 

                                                            DIRECTOR OF PUBLIC PROSECUTIONS

 

                                                            AND                       

 

NORTHERN TERRITORY OF AUSTRALIA

 

AND

 

THE ATTORNEY-GENERAL OF THE NORTHERN TERRITORY

 

TITLE OF COURT:                           COURT OF APPEAL OF THE NORTHERN TERRITORY

 

JURISDICTION:                               CIVIL APPEAL FROM THE SUPREME COURT EXERCISING TERRITORY JURISDICTION

 

FILE NO:                                          AP4 of 2011 (20922571)

 

DELIVERED:                                   13 JANUARY 2012

 

HEARING DATES:                           24 to 26 October 2011 and 24 November 2011

 

JUDGMENT OF:                              RILEY CJ, SOUTHWOOD & KELLY JJ

 

APPEALED FROM:                          MILDREN J

 

CATCHWORDS:

STATUTORY INTERPRETATION – Criminal Property Forfeiture Act 2002 – statutory obligation to express grounds in order made – grounds referred to in order did not particularise forfeiture offence or which limb of the definition of “crime-used property” was relied on – whether the learned Judge erred in finding that the order restraining property was not invalid – Criminal Property Forfeiture Act 2002, s 45. 

 

CRIMINAL PROPERTY FORFEITURE – notice of contention -  whether the learned Judge erred in finding the property was not crime-used property – meaning of “property” – meaning of “crime-used” property – whether there needs to be a substantial connection between the forfeiture offence and the property in Criminal Property Forfeiture Act, s 11.

 

CONSTITUTIONAL LAW – acquisition of property - Criminal Property Forfeiture Act – s 43(2)(a) and 96(1) – whether invalid – Kable principle – whether s 96(1) invalid as an acquisition of property otherwise than on just terms – Northern Territory (Self-Government) Act 1978 (Cth) s 50(1); Constitution (Cth) s 51(xxxi).

 

Criminal Property Forfeiture Act, s 11, s 43(2)(a), s 63(1)(c), s 59 and s 136(2); Supreme Court Rules O 92.06.

 

Centurion Trust Company Ltd v DPP (WA) (2008) 179 A Crim R 426; Director of Public Prosecutions v George (2008) 102 SASR 246; DPP (WA) v White (2009) 194 A Crim R 192; DPP (WA) v White (2010) 41 WAR 249; Re Smith: Ex parte DPP (WA) (2004) 146 A Crim R 40, applied.

 

Airservices Australia v Canadian Airlines International Ltd (1999) 202 CLR 133; Australian Capital Territory v Pinter (2002) 121 FCR 509; Burton v Honan (1952) 86 CLR 169; Director of Public Prosecutions (NT) v Green (2010) 239 FLR 278; see also Mansfield v Director of Public Prosecutions (WA) (2006) 226 CLR 486; Re Director of Public Prosecutions; ex parte Lawler (1994) 179 CLR 270; Fardon v Attorney-General (Qld) (2004) 223 CLR 575; Forge v Australian Securities and Investments Commission (2006) 228 CLR 45; Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51.  See North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146; State of South Australia v Totani (2010) 242 CLR 1, Trade Practices Commission v Tooth & Co Ltd (1979) 142 CLR 397, followed.

 

REPRESENTATION:

Counsel:

    Appellant:                                     A Wyvill SC, G Phelps

    Respondents:                                R Jobson

    Intervener:                                    M Grant QC

 

Solicitors:

    Appellant:                                     Ward Keller

    Respondents:                                Solicitor for the Northern Territory

    Intervener:                                    Solicitor-General of the Northern Territory

 

Judgment category classification:    A

Judgment ID Number:                       Ril1201

Number of pages:                             30



IN THE COURT OF APPEAL

OF THE NORTHERN TERRITORY

OF AUSTRALIA

AT DARWIN

 

Dickfoss v DPP & Ors [2012] NTCA 1

No. AP4 of 2011 (20922571)

 

 

                                                     BETWEEN:

 

                                                     MARK WESLEY DICKFOSS

                                                         Appellant

 

                                                     AND:

 

                                                     DIRECTOR OF PUBLIC PROSECUTIONS

                                                         First Respondent

 

                                                     NORTHERN TERRITORY OF AUSTRALIA

                                                         Second Respondent

 

                                                     THE ATTORNEY-GENERAL OF THE NORTHERN TERRITORY

                                                         Intervener

 

CORAM:     RILEY CJ, SOUTHWOOD & KELLY JJ

 

REASONS FOR JUDGMENT

 

(Delivered 13 January 2012)

 

RILEY CJ:

Introduction

[1]      On 12 August 2010 the appellant pleaded guilty to the possession of a commercial quantity of cannabis and to the unlawful cultivation of a commercial quantity of cannabis contrary to the Misuse of Drugs Act.  In the sentencing proceedings it was accepted that the cannabis was possessed for the personal use of the appellant and not for commercial gain.  The appellant was sentenced to imprisonment for 13 months and two weeks with the sentence being fully suspended upon him entering into a home detention order for a period of six months.

[2]      On 27 July 2009 a Judge of the Court made an order under the Criminal Property Forfeiture Act[1] restraining as crime-used property,[2] 9.1 ha of freehold land registered in the name of the appellant and of his father as joint tenants ("the land").  On 28 September 2009, pursuant to the terms of the Act, the appellant and his father filed objections to the restraint of the land.[3]  The father died on 24 March 2010.

[3]      On 8 October 2010 the Director of Public Prosecutions applied for the forfeiture of the land on the ground that it was crime-used property.  By subsequent order the Northern Territory of Australia became a respondent to the objection proceedings.  The Attorney- General of the Northern Territory has intervened in this Court.

[4]      Following amendment, the grounds of objection to the land being restrained were:

(a)      the property was neither crime-used nor crime-derived property;

(b)     the restraining order did not comply with s 45(1)(b) of the Act; and

(c)     the provisions of the Act which provide for the forfeiture of crime-used property are beyond the legislative power of the Northern Territory.

[5]      The matter was heard before the Supreme Court and a judgment was delivered on 14 January 2011 in which the learned trial Judge:

(a)      allowed the appellant's objection in relation to the interest in the land of his deceased father on the ground that the father was an innocent party for the purposes of the Act; and

(b)     allowed the objections in so far as they related to the forfeiture offence of cultivation of cannabis; and

(c)     in relation to the forfeiture offence of possession of cannabis, ruled that the appellant's objection based on the provisions of s 11(1)(a) and (b) of the Act should be allowed; however

(d)     concluded that the appellant had not shown in relation to that forfeiture offence that the offending fell outside the terms of s 11(1)(c) of the Act and, therefore, ruled that the objection must be dismissed.

[6]      In the course of the judgment the trial Judge addressed and rejected two constitutional challenges to the validity of the legislative regime and found that there must be an order for forfeiture.

[7]      By summons dated 18 February 2011 the appellant applied to his Honour for an order setting aside the original restraining order dated 27 July 2009 seeking thereby to avoid the obligation to make an order for forfeiture. Alternatively the appellant sought to reopen the findings of the trial Judge in relation to the conclusion that the appellant's interest in the land was crime-used property.  On 13 April 2011 his Honour delivered further reasons for decision in which his Honour declined to exercise any discretion, which may have existed, to set aside the restraining order.  His Honour declined to change his opinion that the appellant had failed to show that the offence of possession of cannabis fell outside s 11(1)(c) of the Act.  Orders were then made to forfeit the appellant's interest in the land.  The appellant appealed against the making of the order for forfeiture.  The forfeiture order has been stayed pending the outcome of this appeal.

[8]      On the hearing of the appeal, the Court granted the Director of Public Prosecutions leave to file a notice of contention in which it was contended that the trial Judge erred in finding that the property was not crime-used for the purposes of s 11(1)(a) and s 11(1)(c) of the Act on the basis that cannabis was cultivated on the property.  In addition the Director contended that the trial Judge erred in finding that the property was not crime-used on the basis that residential premises were used to store the cannabis the subject of the possession charge for the purposes of s 11(1)(b) of the Act.

The relevant provisions of the Criminal Property Forfeiture Act

[9]      At the time an objection is heard the onus rests upon the objector to establish the basis of the objection including, relevant for present purposes, the ground that it is more likely than not that the property was not crime-used.[4]  In the circumstances of this case the issue of whether the land was crime-used was, initially, limited to the application of s 11(1)(c) of the Criminal Property Forfeiture Act.  Section 11(1) is in the following terms:

For this Act, property is crime-used if:

(a) the property is or was used, or intended for use, directly or indirectly, in or in connection with the commission of a forfeiture offence or in or in connection with facilitating the commission of a forfeiture offence;

(b) the property is or was used for storing property that was acquired unlawfully in the course of the commission of a forfeiture offence; or

(c) an act or omission was done, omitted to be done or facilitated in or on the property in connection with the commission of a forfeiture offence.

 

[10]  A forfeiture offence is defined in s 6 of the Act as an offence against a law in force anywhere in Australia that is punishable by imprisonment for two years or more or any other offence that is prescribed for the purposes of this section.  There is no dispute that the offence of unlawful possession of a commercial quantity of cannabis and the offence of cultivation of cannabis in the circumstances of this matter each amounted to forfeiture offences for the purposes of the legislation.

[11]  Section 84 of the Act provides:

For the purposes of this Act, a person makes criminal use of property if the person, alone or with anyone else (who need not be identified), uses or intends to use the property in a way that brings the property within the definition of crime-used property.

 

[12]  Section 95 of the Act then permits an application for a forfeiture order to be made by the Director of Public Prosecutions and s 96 provides what is to occur on the hearing of such an application.  Section 96 is in the following terms:

(1) A court that is hearing an application under section 95 in relation to property restrained on suspicion the property was crime-used must order that the property is forfeit to the Territory if the court is satisfied that it is more likely than not that the property is crime-used.

(2) A court must order forfeiture of property under subsection (1) despite that no person has been identified as the owner or controller of the property.

 

The land was crime-used

[13]  The appellant submitted that the trial Judge was wrong to conclude that the land was crime-used within the meaning of s 11(1)(c) of the Act in relation to the offence of possession of cannabis.

[14]  The application of s 11(1)(c) of the Act requires a connection between an act or omission in or on the property and the commission of a forfeiture offence.  The nature of that connection has been addressed in a number of cases. In Director of Public Prosecutions (WA) v White[5] the Court of Appeal in Western Australia considered the issue.  McLure P, with whom Owen JA and Buss JA agreed, observed that the words “in connection with” are “of wide import” and are capable of describing “a spectrum of relationships ranging from direct and immediate to tenuous or remote”.  In the context of the Western Australian provision her Honour said:[6]

It is clear from the statutory language that the relationship between the use of, or the act or omission on (the conduct), the property and the confiscation offence does not have to be direct and immediate.  However, having regard to the consequence of falling within the definition of crime-used, it is not sufficient if the relationship be merely tenuous and remote.  The requisite relationship would fall between these two extremes and involve matters of degree and judgment.  In considering whether the relationship is sufficiently proximate, the purpose and effect of the conduct would be relevant considerations.

[15]  The Western Australian legislation differs from s 11(1)(c) of the Act in that s 146(3) of the Western Australian Act provides that property is crime-used if it is property “in or on which an offence” under identified provisions of the Criminal Code “is committed”.  That provision governs the appropriate construction of earlier parts of the section including the equivalent of s 11(1)(c) of the Northern Territory Act.  There is no such provision in the Northern Territory.

[16]  Having considered the various authorities and the legislative context in the Northern Territory, the trial Judge expressed the view that the question of what is meant by the expression “in connection with” is best answered in the present case by asking whether the connection was “direct and immediate”.  It seems his Honour was limiting this observation to what would be sufficient in the particular case under consideration rather than seeking to pose a test of general application.  In my opinion the test of general application is not so limited. 

[17]  I acknowledge that it is necessary to bear in mind that the Northern Territory legislation does not provide the Court with a discretion when dealing with an application under s 96 of the Act to forfeit crime-used property, and also that there is no requirement for proportionality between the relevant forfeiture offence and the value of the property to be forfeited.  In this regard the operation of the Act has been described as draconian.[7]  Nevertheless, in my view, it is not appropriate to read into the section a necessity to find a connection which is direct and immediate.  The words used are capable of wide application and the nature of the Act suggests an intention on the part of the legislature that they be given a wide application.  The expression “in connection with” is of wide effect and, as Doyle CJ observed in relation to similar words used in the South Australian Act:[8]

The composite expression involves practical considerations and matters of degree. There is no point in trying to define the statutory expression, as each case will turn on its own facts.

 

 

[18]  In determining whether property is crime-used within the meaning of s 11(1)(c) of the Act, much will depend upon the circumstances of the particular case.  Consideration of the degree to which a connection between an act or omission in or on the property and the commission of the forfeiture offence is direct or immediate or remote or tenuous will arise in all cases.  It is, as McLure P observed, a matter of degree and judgment in every case.  The requisite relationship will fall between the two extremes of “direct and immediate” on the one hand and “remote and tenuous” on the other.

[19]  In submitting that the necessary connection should also be “substantial” in order to satisfy the requirements of s 11(1)(c) of the Act, the appellant relied upon the dissenting judgement of Vanstone J in the South Australian case of Director of Public Prosecutions v George.[9]  The relevant legislative provisions in South Australia are different from those that apply in both Western Australia and in the Northern Territory in that they refer to the use of the property in connection with the commission of an offence, whereas s 11(1)(c) is not so constrained. 

[20]  I agree with the conclusion of the trial Judge that the connection does not have to be substantial.  In rejecting this submission his Honour referred to the approach adopted by the majority in Director of Public Prosecutions v George which, his Honour observed, is “not inconsistent with the reasoning in Director of Public Prosecutions (WA) v White both at first instance and on appeal”.  In Director of Public Prosecutions v George, Doyle CJ observed that there was no basis for qualifying the statutory definition by requiring that any connection be “substantial”. To take that approach would be to introduce an expression not used in the provision.[10]

[21]  In George, Doyle CJ noted that the offending there under consideration was not merely committed on the land.  His Honour observed that the commission of the offence on the land was not an accident or coincidence,  the land provided a convenient and secure place for the offending and the use of the property could not be regarded as trifling or insignificant.  This approach was different from that of Vanstone J who considered that “a substantial connection is required between the property and the commission of the crime under consideration before it is found to be an instrument of that crime”.  In my opinion the trial Judge in the present proceedings was correct in observing that the approach of Doyle CJ was not inconsistent with that in the Western Australian case of Director of Public Prosecutions (WA) v White, and in addressing the considerations identified by Doyle CJ in the proceedings then before his Honour. 

[22]  In challenging the approach of the trial Judge the appellant also argued that, under the terms of s 11(1)(c), the first task was to identify the “act or omission done, omitted or facilitated in or on the property” which is alleged to have the requisite connection with the commission of the offence of possession of cannabis.  The appellant argued his Honour appeared to have considered the connection between the land and the commission of the offence.

[23]   I do not accept this submission.  Although his Honour did refer to the question “whether the connection between the land and the forfeiture offence was direct and immediate,” taken in context it seems his Honour was in fact referring to the act or omission on the land rather than to the land per se. 

[24]  His Honour posed what he described as the “final” question in relation to s 11 (1)(c) of the Act[11] which he expressed as being "whether the objector has established that ‘an act or omission was not done, omitted to be done or facilitated in or on the property in connection with the commission of a forfeiture offence’, the relevant offence being possession of cannabis".  In so doing his Honour did not err.

[25]  Whilst the trial Judge then observed that “the question resolves itself into whether or not there was a direct and immediate connection with the land”,[12] his Honour did so in the context of resolving the issue then before him.  If his Honour was posing that question as reflecting a test to be applied generally then, as I have observed, that would be in error. However the error would not affect the result of this appeal as that test, if it was indeed posed by his Honour, erred in the direction of being more favourable to the appellant.

[26]  The trial Judge identified the relevant act as being the "act of possession" of cannabis.  However it is to be remembered that to have possession of something is not an act but rather reflects a state of affairs. The activity is the obtaining or acquiring of possession. In Beckwith v The Queen[13] Gibbs J quoted with approval the following observations of Mahon J in Reg v Grant:[14]

But to be in possession or to have an article in possession is neither an act nor omission. It represents not an act but the passive consequences of a prior act, namely the act of acquisition of possession… .

 

[27]  The trial Judge went on to apply the approach adopted by Jenkins J in Director of Public Prosecutions (WA) v White[15] where her Honour distinguished the Western Australian equivalent of s 11(1)(c) from the earlier subsections which require the use of the property.  Section 11(1)(c) of the Act does not require that the property be used in connection with the commission of an offence and only required that an act or omission be done, omitted to be done or facilitated in or on property in connection with the commission of a forfeiture offence. 

[28]  In the circumstances of this case, in order to determine whether the land was crime-used for the purposes of s 11(1)(c) of the Act, the question to be addressed is whether an act was done on the land in connection with the forfeiture offence of unlawful possession of cannabis.  In my view there was ample evidence to suggest a sufficient connection.  The forfeiture offence was the possession of a commercial quantity of cannabis.  The conviction necessarily related to possession on a particular day.  However, for the purposes of a criminal property forfeiture application it is necessary to look at the surrounding circumstances to determine whether an act or omission occurred in connection with the forfeiture offence. In relation to the 1.205 kg of cannabis, which constituted the cannabis referred to in the unlawful possession charge, the appellant acknowledged that “almost all of this was from a plant that I was drying in a chest of drawers inside the house… I was growing the cannabis for my own use… I had grown cannabis from time to time”. He said he "settled into the pattern of growing an amount of cannabis and storing it on the property". The evidence revealed that the appellant grew the cannabis in numerous pots on the land; he harvested it on the land, dried it on the land and then retained it within the building on the land for the ultimate purpose of consuming it on the land.  The acts to which I have referred were activities which all took place on the land.  The connection of those acts with the commission of the forfeiture offence of unlawful possession of cannabis on land was more than incidental.  It was not tenuous or remote.  The acts leading to possession took place on the land over a period of time.  It was not an accident or coincidence that the appellant committed those acts on the land.  The connection of those acts with the forfeiture offence of possession of cannabis was direct.

[29]  The conclusion of his Honour that the appellant had not shown that the forfeiture offence of possession of cannabis fell outside the terms of s 11(1)(c), was correct.

The Notice of Contention

[30]  The Director of Public Prosecutions contended that the trial Judge erred in finding that the property was not crime-used for the purposes of s 11(1)(a) and s 11(1)(c) of the Act on the basis that cannabis was cultivated on the property and, further, that his Honour erred in finding that the property was not crime-used on the basis that residential premises were used to store cannabis for the purposes of s 11(1)(b) of the Act.

[31]  The Director noted the findings of his Honour that 141 cannabis plants had been found growing in pots on the property, cannabis material had been found scattered on the floor of the bedroom and in a chest of drawers in the bedroom and other quantities of cannabis had been found packaged and located in various areas within the house on the land.  The appellant had acknowledged growing one plant to 180 centimetres and that he had watered and fertilized it once per week. 

[32]  In finding that the property was not crime-used for the offence of cultivation of cannabis within the meaning of s 11(1)(a) of the Act his Honour relied upon findings that:

(a)      the plants were not grown on the land but rather in pots which were removable chattels;

(b)     the evidence did not support a conclusion that water supplied to the land was used to water the largest plant whilst the other plants relied upon rain water;

(c)     the plants were in the open and there was no building used to hide them; and

(d)     the pots occupied a miniscule part of a large property.

[33]  His Honour adopted the approach described in Director of Public Prosecutions v George and, by reference to the remarks of Doyle CJ, compared and contrasted the findings in the present case with those in George.  His Honour concluded the property was not crime-used within the meaning of s 11(1)(a) of the Act in relation to the offence of cultivation of cannabis.

[34]  There is no challenge by either party to the approach taken by his Honour in relation to the consideration of this issue.  The Director reviewed the evidence available to the trial Judge and submitted that his Honour erred by failing to have regard to the whole of that evidence.  The evidence is available by virtue of s 141 of the Act.

[35]  The appellant submitted that the offences were said to have been committed on the one day, being 27 April 2009, and that the Judge was limited to a consideration of what happened on that day.  There is nothing in s 11 which would support such a constrained approach to the provision.  Section 11(1)(a) requires a consideration of whether property was used “in or in connection with the commission of a forfeiture offence” which, in my opinion, necessarily involves a consideration of all of the surrounding circumstances relating to the relevant use of the property whether on the day of the offending or at some other time.

[36]  The trial Judge did consider the relevant surrounding circumstances and these had been addressed in the submissions made on behalf of the appellant at that time.  There was no unfairness in so doing.  His Honour concluded that there was no relevant connection between the land and the forfeiture offence of cultivation of cannabis.  This was an exercise of judgement for his Honour and a Court of Appeal will not lightly interfere with a decision requiring a determination of such matters.

[37]  Having reviewed the evidence I consider the conclusion was open on the evidence.  I see no basis for interfering with the conclusion of his Honour that, in relation to the forfeiture offence of cultivating cannabis, the property was not crime-used within the meaning of s 11(1)(a) of the Act.

[38]  In relation to the forfeiture offence of cultivation of cannabis and the contention that this offending fell within the ambit of s 11(1)(c) of the Act, the trial Judge reviewed the relevant evidence.  His Honour proceeded on the basis that the acts of cultivation were performed on the land.  It was accepted that the appellant planted the seeds and watered and cultivated the plants “in pots situated on the land in places where those pots were found by police”.  His Honour noted, inter alia, that the plants were not directly in the soil but rather were in pots, they were not watered from the public watering system and no building was used to hide the pots which were in the open  His Honour then went on to conclude:

There was no specific need for the land to be involved in the commission of the offence other than convenience, which is a factor pointing towards a connection. However looking at all of the factors as a whole, I consider that the connection between the offence and the land was minimal. I therefore find that the offence of cultivation does not fall within s 11(1)(c) of the Act.

 

[39]  In my opinion his Honour erred in considering the connection between the offence and the land. It was necessary for his Honour to consider the connection between acts or omissions on the property and the commission of the forfeiture offence of cultivation of cannabis. In this case the planting of the seeds in the pots, the watering of the plants, the fertilising of those plants and the harvesting of the plants were all acts which occurred on the land in connection with the forfeiture offence of cultivation of cannabis. I consider that the offence of cultivation of cannabis did fall within s 11(1)(c) of the Act.

[40]  In relation to the forfeiture offence of possession of cannabis, and the contention that this offending fell within the ambit of s 11(1)(b) of the Act, the trial Judge pointed out that the section required that the land would be crime-used if it “was used for storing property that was acquired unlawfully in the course of the commission of a forfeiture offence”.  Mere possession is not sufficient to establish that cannabis was acquired in the commission of a forfeiture offence.  As a consequence of the manner in which the Director presented the case, his Honour considered there was a dearth of evidence as to the source of the cannabis plant material.  His Honour determined that the appellant was not put on notice that he may have to account for how he obtained the plant material.  His Honour explored the possibilities in the circumstances of this case and concluded that “there is simply nothing to show that the cannabis (the subject of the relevant charge) was acquired in the course of a forfeiture offence”.

[41]  The Director contended that, contrary to the findings of his Honour, there existed an evidential basis for the Court to find that the cannabis in the possession of the appellant was the cannabis he cultivated on the land and that was the forfeiture offence.  A review of the evidence shows that the cannabis the subject of the charge of possession had been cultivated by the appellant.  There was a strong evidential basis for so concluding and the relevant admissions are referred to in paragraph [28] above.  It matters not that the appellant was not charged or convicted with the cultivation of cannabis that produced the cannabis plant material stored in the house.  Under s 11(2)(d) of the Criminal Property Forfeiture Act, property is crime-used whether or not any person has been charged or convicted of the relevant forfeiture offence.

 

[42]  In my opinion his Honour fell into error in this regard and this contention of the Director should also be upheld.

Failure to comply with s 45(1)(b)

[43]  The appellant complained that the restraining order made on 27 July 2009 failed to comply with the requirements of s 45(1)(b) of the Act and submitted that this was a fatal, invalidating defect in relation to the proceedings which could not be cured by amendment and required that the order be set aside.  Section 45(1)(b) is in the following terms:

(1) If an application is made under section 41 for a restraining order, the court that is hearing the application must:

(a) ....

(b) if the order is made – set out in the order each ground that the court finds is a ground on which the order may be made.

 

[44]  The order made on 27 July 2009 referred to the grounds in two places. Under the heading “Other Matters” in sub-paragraph (2) it was stated that:

The Court found that there are reasonable grounds for suspecting that the property below described is crime-used property, as defined in section 11 and pursuant to s 43(2)(a) of the Criminal Property Forfeiture Act.

 

[45]  The document went on to provide:

The Court Orders that:

Pursuant to s 41(2), 43(2)(a) and 51 of the Criminal Property Forfeiture Act (“the CPFA”) a restraining order is granted in relation to the following property for a period of six months (there then appeared a formal description of the property) the registered joint owners of which are (the objectors).

ON THE GROUNDS THAT the real property is crime-used property pursuant to s 11 of the CPFA.

 

[46]  The appellant submitted that the requirement to set out the grounds was not satisfied by reference to the land being crime-used property pursuant to s 11 of the Act.  Rather what was required included the identification of: the relevant forfeiture offence(s); those suspected of having committed the forfeiture offence(s); the subsections of s11 relied upon and in what way; and of the material facts relied upon as alleged suspected “uses”, “acts” and “omissions” under s 11(1) of the Act.

[47]  It was submitted that all of this information is necessary in order to inform persons affected by the order of the basis upon which the order was made and to enable them to determine whether any suspicion was well founded and whether there was a basis to challenge the order.  It was argued that it is necessary to specify the key facts and matters relied upon to support a suspicion that property is crime-used and hence the basis upon which the Act is invoked as a “check and balance to this summary procedure”.

[48]  The trial Judge rejected the submission noting that the requirement was that the grounds for making the order be identified in the order, not the reasons.  In my opinion his Honour was correct.  Had the legislature intended the decision maker to provide reasons for the decision, it would have used that terminology.  What was required was to identify each statutory foundation upon which the Court made the restraining order.  This was the approach adopted in the Western Australian cases of Re Smith: Ex parte DPP (WA) and Centurion Trust Company Ltd v DPP (WA) in relation to provisions which are in pari materia to the Act.[16]

[49]  In relation to the submission made on behalf of the appellant that the order does not identify the alleged forfeiture offence or offences, it is to be noted that s 140(a) of the Act provides that, inter alia, a finding that property is crime-used, or that there are reasonable grounds for suspecting that it is crime-used, need not be based on a finding as to the commission of a particular forfeiture offence, but may be based on a general finding that a forfeiture offence has been committed.

[50]  It is apparent from the order that the Judge who made the order was satisfied that there were reasonable grounds for suspecting that the appellant had committed a forfeiture offence, and that the property was crime-used property within the meaning of s 11.  When the application and the order were served they were required to be accompanied by the supporting material.[17] In this case a supporting affidavit, which spelled out the basis upon which the order was being sought and identified the facts upon which the applicant relied, were served.  The information necessary to enable any objector to formulate a response was, in this case, and would be in other cases, provided.

[51]  No error has been demonstrated.

Acquisition of property

[52]  The appellant submits that the Criminal Property Forfeiture Act is properly characterised as a law with respect to the acquisition of property within the meaning of s 50(1) of the Northern Territory (Self-Government) Act 1978 (Cth) and is, therefore, invalid as not providing just terms with respect to the acquisition of such property.

[53]  The submission made on behalf of the appellant was that a law will be fairly characterised as a law with respect to the acquisition of property for the purposes of this section if, looking at substance as well as form, and taking into account its legal and practical effect, it can fairly be said to be directed to the taking of property rights held by an individual or group of individuals, and the resultant receipt by the Territory of a financial gain or an identifiable benefit or advantage relating to the ownership or use of property.  It was submitted that s 50(1) of the Self-Government Act requires the provision of just terms in such circumstances whether or not a law may also be characterised as a law with respect to the forfeiture of property used in the commission of an offence.

[54]  Section 6 of the Self-Government Act provides that the Legislative Assembly has power to make laws for the peace, order and good government of the Territory.  Section 50(1) then provides:

The power of the Legislative Assembly conferred by section 6 in relation to the making of laws does not extend to the making of laws with respect to the acquisition of property otherwise than on just terms.

 

[55]  The position in relation to the Northern Territory differs from that under the Australian Constitution in that, subject to the operation of s 50 of the Self-Government Act and some other qualifications not relevant for present purposes, the Legislative Assembly of the Northern Territory has a plenary power to legislate on all subject matters.  The section provides a restriction upon an otherwise plenary legislative power.  It effects an abstraction of power from the general conferral under s 6 of the Self-Government Act.[18]

[56]  The Commonwealth Parliament, on the other hand, has a limited grant of legislative power identified under the terms of s51 of the Constitution including, in s 51(xxxi), the power to make laws for the acquisition of property on just terms from any state or person for any purpose in respect of which the Parliament has power to make laws.  As the Solicitor-General submitted, a Commonwealth law of general application providing for the taking of property for which fair compensation is incongruous or anomalous can be valid only if that law may be fairly characterised as falling wholly within one of the enumerated heads of Commonwealth legislative power. [19]  The question that arises is whether a law is “appropriate and adapted to achieving”, or “reasonably proportionate to”, some object or purpose within one of the enumerated heads of power, including the incidental power in s 51(xxxix) of the Constitution.[20]  If a law is not capable of fair characterisation in that manner, the only other power of the Parliament to make a law with respect to the matter is s 51(xxxi) which provides for the acquisition of property on just terms. 

[57]  The issue of whether a law is appropriate, adapted or proportionate to the exercise of legislative power has no application in the Northern Territory.  In the Northern Territory, where the subject matter of a law is such that the notion of fair compensation for the taking of property effected by the law would be incongruous or irrelevant, the restriction will have no application.  The submission of the appellant to the contrary is misconceived.

[58]  By reference to authorities relating to s 51(xxxi) of the Constitution the Solicitor-General pointed out that it is well established that not every acquisition of property effected by legislation falls within the scope of the constitutional guarantee.  The acquisition of property will fall outside the scope of the constitutional guarantee: (a) where the property is “inherently susceptible” to variation or termination; (b) where the acquisition is such that, by its very nature and object, concepts of compensation are irrelevant or incongruous; and (c) where the law is not one for the acquisition of property as such, but is rather part of and incidental to a general regulatory scheme aimed at the adjustment of competing rights and liabilities.[21]

[59]  In Re Director of Public Prosecutions; ex parte Lawler[22] Deane and Gaudron JJ observed:

However, the power conferred by s 51(xxxi) is one with respect to "acquisition of property on just terms".  That phrase must be read in its entirety and, when so read, it indicates that s 51(xxxi) applies only to acquisitions of a kind that permit of just terms.  It is not concerned with laws in connection with which "just terms" is an inconsistent or incongruous notion.  Thus, it is not concerned with a law imposing a fine or penalty, including by way of forfeiture, or a law effecting or authorising seizure of the property of enemy aliens or the condemnation of prize.  Laws of that kind do not involve acquisitions that permit of just terms and, thus, they are not laws with respect to "acquisition of property", as that expression is used in s 51(xxxi).

 

[60]  In Trade Practices Commission v Tooth & Co Ltd[23] Gibbs J observed that it would be “absurd to say that the legislature could make provision for the exaction of a fine, or for the imposition of a forfeiture of property used in the commission of a crime, only on just terms”.

[61]  It is clear that laws relating to the imposition of fines and forfeiture fall outside the constitutional guarantee.  It has been said that this is “trite law”.[24]  In Lawler[25] Deane and Gaudron JJ (Mason CJ agreeing) observed that a law which effects or authorises forfeiture of property in consequence of its use in the commission of an offence against the laws of the Commonwealth stands outside s 51(xxxi).  This is so even where the owner of the property was not involved in its use in an unlawful activity.[26]

[62]  Similar observations apply in relation to s 50(1) of the Self-Government Act and a law of the Territory.[27]  It follows that a law which effects an acquisition of property is not necessarily a law with respect to the acquisition of property for the purposes of s 50(1) of the Self-Government Act. 

[63]  The Criminal Property Forfeiture Act is not by its nature and object a law to which the guarantee of just terms applies.  It is an Act providing for the forfeiture of property used in or derived from unlawful activity.  Its purpose includes punishing and deterring criminal activity by preventing the illicit use of property by imposing an economic penalty and, in respect of “innocent parties”, by enlisting the owner's participation in ensuring the observance of the law and precluding future use of the thing forfeited in the commission of crime.[28] 

[64]  It is important to bear in mind that the fact that the legislation may operate harshly in a particular case, or that the legislation itself can be described as draconian, is a matter within the exclusive province of the legislature and is not a matter to be addressed by the courts.  As Dixon CJ has noted:[29]

(O)nce the subject matter is clearly within the province of the ... legislature the justice and wisdom of the provisions which it makes in the exercise of its powers over the subject matter are matters entirely for the Legislature and not for the Judiciary.

 

[65]  In my opinion the submission of the appellant should be rejected.

Kable

[66]  The Supreme Court of the Northern Territory exercises the judicial power of the Commonwealth and is subject to the principles discussed in the decision of Kable v Director of Public Prosecutions (NSW).[30]  Legislation which purports to confer powers and functions upon the Supreme Court which substantially impair the institutional integrity of the Court, and which are therefore incompatible with its role as a repository of federal jurisdiction, is invalid.[31]  The institutional integrity of the Court requires both the reality and appearance of independence and impartiality.[32]

[67]  It was submitted on behalf of the appellant that s 96 of the Criminal Property Forfeiture Act and the other provisions in support of the section are invalid on the grounds that they breach the Kable principles. It was argued that they confer powers and functions on the Court which substantially impair and distort its institutional integrity and, further, are inconsistent with the defining characteristics of a court including the reality and appearance of independence and impartiality. 

[68]  The appellant argued that the Act required the Court to effect a forfeiture of innocently generated property in circumstances where the breadth of the provisions did not allow the Court choice.  The Court was required to order forfeiture regardless of whether or not the forfeiture would be manifestly unjust.  It was submitted that the operative decision to order forfeiture was made by the executive and not by the courts.  The trial Judge rejected the submissions concluding that there was nothing to suggest that the Court was to act as a mere instrument of government policy. His Honour concluded that s 96 of the Act, either alone or in concert with other provisions of the Act, did not infringe the Kable principles.

[69]  In this Court the appellant submitted that the breadth of the legislation is such that the intention of the legislature could not have been that the Act would be enforced in accordance with its terms.  It therefore authorised discriminatory enforcement by the executive.  It was submitted that the potential for discrimination extended to the selection of cases to be pursued and to the manner in which they are conducted.  It was argued that the outcome of proceedings, including the present proceedings, was determined more by the Director and the executive than by the courts.

[70]  In my opinion this submission is without merit.  It is not for the courts to determine what proceedings will be brought before the courts and how proceedings will be presented once commenced.

[71]  In my opinion his Honour was correct in determining the legislation does not infringe the Kable principles.  The Court is required to undertake a judicial process consistent with its judicial character.  The functions required of the Court are not incompatible with the proper discharge of judicial responsibilities or with the exercise of judicial power.  An application for a forfeiture order can only be made where there is a valid restraining order in place.  The Court has an unfettered discretion (to be exercised judicially) whether to grant or refuse a restraining order and, once such an order has been made, an application for forfeiture cannot be made until the objection period has expired and any objection has been heard and determined.  To make a forfeiture order the Court must be satisfied that the basis for making such an order has been established on the balance of probabilities.  The rules of evidence apply.[33]  Hearings are conducted in public and in accordance with the ordinary judicial process.  The Court determines the issues on the basis of the evidence placed before it and by reference to the definition sections of the legislation.  It is for the Court to determine the outcome based upon its merits.[34]  There are rights of appeal at each stage of the process.

[72]  In Director of Public Prosecutions v George[35] Doyle CJ observed:

(112) ... It is not uncommon for legislation to provide that, if in proceedings before a court specified matters are established, a particular consequence will follow or a particular order must be made. This feature of s 95 is of no particular significance. The failure to interpose a judicial discretion, or a judicial decision, between the establishment of the criteria and the making of the order is not problematic.

(113) Nor has Parliament “clothed” a forfeiture with the appearance of a judicial process. The judicial process is a reality. The Court does not act at the dictation of the DPP. The DPP must satisfy the requirements of s 95(1). It is the decision of the Court on those matters that determines whether or not a PPO is to be made. There is no merit in the suggestion that the process under s 95 is not a “real judicial process”, involving the exercise of a “real judicial discretion”. That submission merely treats the absence of a judicial decision or discretion as inconsistent with the exercise of a judicial power. There is no basis for doing so.

 

[73]  The exercise of judicial function often involves the making of orders upon determining that a particular fact status exists.[36]  In my opinion there is no impermissible interference with the judicial function. Contrary to the submission of the appellant the legislation does not require the Court to act as a mere instrument of Government policy.

[74]  In my opinion the appeal must be dismissed.

Southwood J

[75]  I agree that the appeal should be dismissed for the reasons given by the Chief Justice.

Kelly J

[76]  I agree that the appeal should be dismissed for the reasons given by the Chief Justice.



[1] Section 43(2)(a) of the Criminal Property Forfeiture Act.

[2] Section 11 of the Criminal Property Forfeiture Act.

[3] Section 59 of the Criminal Property Forfeiture Act.

[4] Section 63(1)(c) of the Criminal Property Forfeiture Act.

[5] DPP (WA) v White (2010) 41 WAR 249.

[6] DPP (WA) v White (2010) 41 WAR 249 at [33].

[7] Director of Public Prosecutions (NT) v Green (2010) 239 FLR 278 at [21]; see also Mansfield v Director of Public Prosecutions (WA) (2006) 226 CLR 486 at [50] regarding the Western Australian legislation.

[8] Director of Public Prosecutions v George (2008) 102 SASR 246 at [57].

[9] (2008) 102 SASR 246 at [167].

[10] DPP v George (2008) 102 SASR 246 at [62].

[11] Par [82].

[12] Par [85].

[13] [1976] 135 CLR 569 at 575.

[14] [1975] 2 NZLR 165 at 169.

[15] DPP (WA) v White (2009) 194 A Crim R 192 at [92]–[96].

[16] Re Smith: Ex parte DPP (WA) (2004) 146 A Crim R 40 at [77]-[91]; Centurion Trust Company Ltd v DPP (WA) (2008) 179 A Crim R 426 at [68]-[73].

[17] Order 92.06 Supreme Court Rules.

[18] Australian Capital Territory v Pinter (2002) 121 FCR 509 at [94].

[19] Airservices Australia v Canadian Airlines International Ltd (1999) 202 CLR 133.at [98]-[99],[148]-[149], [157]-[158],[342],[345],[347],[487]-[490].

[20] Airservices Australia v Canadian Airlines International Ltd (1999) 202 CLR 133 at [343]-[344].

[21] R Dixon, “Overriding Guarantee of Just Terms or Supplementary Source of Power?: Rethinking s 51(xxxi) of the Constitution” (2005) Sydney Law Review 639 at 645.

[22] (1994) 179 CLR 270 at 285.

[23] (1979) 142 CLR 397 at 408.

[24] Re Director of Public Prosecutions; ex parte Lawler (1994) 179 CLR 270 at 278; Burton v Honan (1952) 86 CLR 169 at 180.

[25]  At 285.  Similar observations were made by Dawson J at 291, Toohey J at 291- 292, McHugh J at 293.

[26] Burton v Honan (1952) 86 CLR 169 at 190; Re Director of Public Prosecutions; ex parte Lawler (1994) 179 CLR 270 at 279, 289 and 294.

[27] Australian Capital Territory v Pinter (2002) 121 FCR 509 at [93]-[94], [201], [250], [269].

[28] Re Director of Public Prosecutions; ex parte Lawler (1994) 179 CLR 270 at 279.

[29] Burton v Honan [1952] 86 CLR 169 at 179.

[30] (1996) 189 CLR 51.  See North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146 at [28]-[29].

[31] Forge v Australian Securities and Investments Commission (2006) 228 CLR 45 at [40]

[32] State of South Australia v Totani (2010) 242 CLR 1at [69].

[33]  Section 136(2) of the Act.

[34] Fardon v Attorney-General (Qld) (2004) 223 CLR 575 per Gleeson CJ at [19].

[35] (2008) 102 SASR 246.

[36] Fardon v Attorney-General Queensland (2004) 233 CLR 575 at [34] per McHugh J.