Crew & Anor v Mitchell & Anor [2004] QSC 280

SUPREME COURT OF QUEENSLAND CITATION: Crew & Anor v Mitchell & Anor [2004] QSC 280 PARTIES: WAYNE LAWRENCE CREW (applicant) JUDITH ANN CREW (applicant) v IAN MITCHELL (first respondent) STATE OF QUEENSLAND (second respondent) FILE NO: SC No 3064 of 2004 DIVISION: Trial Division ORIGINATING COURT: Supreme Court at Brisbane DELIVERED ON: 1 September 2004 DELIVERED AT: Brisbane HEARING DATE: 27 August 2004 JUDGE: Mackenzie J ORDER: Application dismissed. Application under s 49 JR Act in relation to the payment of costs is reserved CATCHWORDS: CRIMINAL LAW – GENERAL MATTERS – OTHER GENERAL MATTERS – DISABILITITES AND DISQUALIFICATIONS OF CONVICTED PERSONS – FORFEITURE FOR FELONY – where applicants convicted of serious drug offences – where restraining order on house and land – where property forfeited after six months – where Deputy Registrar issued certificate some time later – whether property forfeited to the State – whether Registrar correctly exercised power Crimes (Confiscation) Act 1989 (Qld), s 4, s 12, s 13, s17, s 23, s 25, s 26, s 27, s 44, s 46 Criminal Proceeds Confiscation Act 2002 (Qld), s 162, s 163, Drugs Misuse Act 1986 (Qld), s 8(d), s 216, s 265, s 272 Judicial Review Act 1991 (Qld), s 49 DPP (ACT) v Hiep Huu Le (1998) 156 ALR 110, followed DPP v Vosmaer [2004] QSC 032, considered COUNSEL: D Andrews SC for the applicants M Hinson SC for the respondents -- 1 of 7 -- 2 SOLICITORS: Gilshenan and Luton Lawyers for the applicants Crown Law for the respondents [1] This is an application to review the decision of a Deputy Registrar of this Court to issue a certificate dated 9 March 2004 certifying that pursuant to s 25 of the Crimes (Confiscation) Act 1989 (“CCA”) the applicants’ house and land were forfeited to the State of Queensland on 16 January 2000. [2] The issues in the application may be summarised as follows: i. That the decision that the property was forfeited to the second respondent was one where the first respondent erred in law because a precondition in the form of a restitution order that could properly found a forfeiture had not existed. The argument pointed out that the affidavit in support of the application referred to a shorter period of production than was alleged in the indictment to which the plea of guilty was entered and there was no evidence that more than 500 grams of cannabis had been produced during the shorter period. Arguments as to whether the offences were “related offences” and as to the need for strict compliance with procedures in forfeiture matters were developed. ii. That if the Criminal Proceeds Confiscation Act 2002 (“CPCA”) applied to the decision making process, the first respondent erred in law because the preconditions prescribed by s 162(a)(ii) applying the automatic forfeiture provisions of CPCA were not considered, fulfilled or applied for the same reasons as in the preceding paragraph. iii. That the first respondent erred in law by not considering s 163 CPCA which required the relevant property to have been acquired within six years before the commencement of the serious criminal offence before it is liable for forfeiture. [3] An issue raised in written submissions about disregard of the rights of a mortgagee when the restraining order was made was ultimately not pursued. Another issue which I raised during the hearing, which concerned the limits of the functions of a Registrar or other person in giving a certificate, was also the subject of submissions. Arising from this, counsel for the applicants sought leave to amend the application by adding, as relief sought, a declaration that the property was not forfeited (cf DPP v Vosmaer [2004] QSC 032). [4] The factual background against which the grounds relied on must be determined is that the applicants pleaded guilty on 16 July 1999 to an indictment charging each of them with producing cannabis sativa, the quantity of which exceeded 500 grams, between 1 January 1999 and 22 April 1999, and possession, on 21 April 1999, of hydroponic and electrical equipment used in connection with an offence of producing a dangerous drug. Police had located the drug, in compressed form and in the form of plants, and the associated hydroponic system, at the premises at Mt Tamborine which are the subject of these proceedings (“the relevant premises”). [5] The reference in paragraph [2] to differing periods in the original charge and the indictment to which the accused persons (“the applicants”) pleaded guilty refers to the fact that they were originally charged with an offence of producing cannabis in excess of 500 grams committed between 28 February 1999 and 22 April 1999, whereas the indictment covered a period from 1 January 1999 to 22 April 1999. -- 2 of 7 -- 3 The transcript of the sentencing submissions records that shortly before 28 February 1999, the male applicant had been dealt with for an offence of production of cannabis committed in 1998 and given a wholly suspended two year sentence. [6] The transcript also records that by agreement with then counsel for the applicants, the period in the indictment had been amended to commence on 1 January 1999 to reflect the fact that the production then being dealt with was being carried on both before and after the male applicant was dealt with for the 1998 production. It was an offence that was committed while he was on bail. It appears that there was an apprehension on the part of counsel that, if the indictment reflected the original charge, an appearance that the 1999 production commenced almost immediately after sentencing for the 1998 offence would be capable of the misinterpretation that the male applicant had brazenly commenced production again almost immediately after being given a suspended sentence. [7] Later in the submissions, the sentencing judge said to the applicants’ counsel that the period alleged in the indictment implied that the offence pleaded to involved commission of the offence after the male applicant had been sentenced for the 1998 offence as well as before. Counsel accepted that that was so. It is also the case that the indictment in the form presented was an ex officio indictment to which the prosecution had been aware for some time that both applicants were prepared to plead guilty. In the circumstances, the submission that there was no evidence that during the period 28 February 1999 to 22 April 1999 the offence of production had been committed in respect of more than 500 grams of cannabis is untenable. [8] An application for a restraining order and for forfeiture of the house and land was filed by leave following the entry of pleas of guilty by the applicants during the sentencing proceedings. An affidavit in support of the application was also filed by leave. It recorded the historical fact that the applicants had been charged with an offence of aggravated production between 28 February 1999 and 22 April 1999 and deposed to the facts and circumstances supporting the deponent’s belief that the applicants were guilty of that offence. The Crown Prosecutor told the sentencing judge that he understood that counsel for the applicants would ask for an adjournment of the forfeiture application and that he had no objection. The Crown Prosecutor then said: “The effect of the legislation is that if there is nothing done within six months of this date the Crown can proceed to forfeit the house, but I understand that the Crown and the representatives for the two prisoners will enter into negotiations about what is appropriate”. [9] Later in the proceedings, counsel for the applicants said that he had no objection to the restraining order being made. He asked for the forfeiture application to be adjourned to a date to be fixed. Consequently a restraining order was made in respect of the relevant premises and the forfeiture order was adjourned to a date to be fixed. Since the duration of the restraining order was not specifically stated, it would remain in force for twelve months unless extended or set aside (s 46(2), (3) CCA). [10] Paragraph 4 of the application sought an order pursuant to ss 17 and 23 CCA that the relevant premises be forfeited to the State of Queensland on the ground that they were tainted property. The applicants and their legal advisors therefore had actual notice of the application for forfeiture, and also of the importance of having any -- 3 of 7 -- 4 issues in connection with forfeiture resolved within six months by reason of the statement by the Crown Prosecutor. It appears that nothing was done by either the State of Queensland or the applicants to set the application for forfeiture down for further determination by the court. The evidence is silent as to whether there were any negotiations, but the tenor of the applicants’ affidavits is that there were not. I am prepared to assume that was the case. [11] Under CCA there were two pathways to forfeiture. One was by applying for a forfeiture order under s 23. Prerequisites for that order were: (a) conviction of a serious offence; (b) an application for an order against particular property; and (c) satisfaction by the Court that the property was tainted property in relation to the offence. [12] In considering whether it was appropriate to make a forfeiture order, the court’s attention was drawn, in permissive terms, by s 23(2) and (3) to any hardship that may reasonably be expected to be caused by the order, the use that was ordinarily made or was intended to be made of the property, and the gravity of the offence concerned. There was a presumption upon the hearing, that the property was tainted if no evidence was presented tending to show that the property was not tainted property. Otherwise the court had to be positively satisfied that the property was tainted property. Since the premises were used for the production of cannabis sativa there was no doubt that they fell within the definition of tainted property in s 13. [13] The second pathway to forfeiture, in s 25 CCA, was applicable only to serious drug offences of which the count of producing cannabis sativa in excess of 500 grams was, by virtue of s 8(d) of the Drugs Misuse Act (“DMA”) and s 4 CCA. In such a case, where a restraining order was granted for property in relation to the person’s conviction of a serious drug offence and a restraining order was in force at the end of the period of six months starting on the day of conviction, the property was forfeited to the State at the end of such a period. By s 26, on forfeiture under s 25, the forfeited property vested absolutely in the State of Queensland. [14] Where a person’s property had been restrained on the basis that the person was convicted or charged with a serious drug offence, the person could apply, under s 44 CCA, for an order declaring that the restraining order must be disregarded for the purposes of s 25. The criteria for such an order under s 44(3) were that the Supreme Court was satisfied that the property was not used for or in connection with any unlawful activity and was not derived by a person from unlawful activity, and that the defendant’s interest in the property was lawfully acquired. Satisfaction as to both criteria was necessary. The fact that the original interest in the property was lawfully acquired, standing alone, was of no avail to an applicant. Given the plea of guilty to production of cannabis sativa exceeding 500 grams the element in s 44(3)(a) could not be satisfied. [15] The position therefore is that irrespective of the existence of an unresolved application which, on its face, sought forfeiture under ss 17 and 23 CCA, the consequence of forfeiture followed independently by operation of law, since there was a restraining order in operation at the end of six months after it was made in a case where no extension of the period of restraint (s 46(3) CCA), or of the forfeiture -- 4 of 7 -- 5 period (s25(2) CCA) had been sought, and no application for exclusion under s 44 had been made. [16] It follows that the automatic forfeiture of the property described on the restraining order occurred on 16 January 2000, before enactment of CPCA. Had subsequent steps been taken in a timely way, the procedure under ss 27(5) to (7) CCA for obtaining a certificate from a Registrar and its registration, which have the effect of the judgment in an action for recovery of the property from persons from whom it had been divested, would have been obtained. Since CCA was repealed before those steps were taken and CPCA is now in force, the starting point is the transitional provision in s 272(1). It is also convenient to set out s 272(2) since it is relevant to one of the applicants’ arguments. [17] They are as follows: “272 Automatic forfeiture (1) Property that is liable to automatic forfeiture under the old Act is taken to be liable to automatic forfeiture under this Act and any step necessary to be taken for enforcing the forfeiture may be taken under this Act. (2) For working out when property liable to automatic forfeiture under the old Act is forfeited to the State, section 163 of this Act applies to the property as if it had commenced on the day section 25 of the old Act first applied to the property.” [18] That leads to consideration of what steps are necessary under CPCA for enforcing the forfeiture which occurred under CCA (which is described in CPCA as “the old Act”). Section 265 gives evidentiary effect to a “forfeiture certificate” signed by persons including a Deputy Registrar. The certificate is evidence of what it states. Section 216 provides (inter alia) that when the Registrar of the Supreme Court issues a forfeiture certificate or one is properly produced to him he must file it. On filing, the certificate is a record of the Supreme Court. [19] The applicants’ arguments are based on the assumption that in deciding whether to issue a certificate, the Deputy Registrar had an obligation to satisfy himself that the preconditions for making the restraining order made by a Judge of this Court existed before he could give the certificate. I do not accept this. The Deputy Registrar has no jurisdiction to go behind the order made by the Judge. The only function to be performed is to be satisfied that a restraining order has been made and whether six months, or any extended period from that date, have elapsed. In making that decision, he would have before him an order restraining the property, but not reciting the charge which formed its basis. Even if an order of the Supreme Court were made erroneously it would be of full force and effect until set aside. [20] In DPP (ACT) v Hiep Huu Le (1998) 156 ALR 110 the Full Court of the Federal Court said, in relation to a similar legislative provision, that even if it was uncertain whether a judge had erred in making a restraining order it operates until set aside. In that case nothing had been done to set the restraining order aside. The consequence was that by operation of law, the property was forfeited to the Crown once the statutory period had elapsed. There was nothing the Court could do in the proceedings before it to undo the forfeiture. -- 5 of 7 -- 6 [21] Subject to the argument that there was no forfeiture because of the variance between the basis upon which the restraining order was obtained and the indictment, that disposes of the applicants’ first ground. With regard to the argument that leave should be granted to raise the issue of a declaration that the property was never forfeited, emphasis was placed on the principle that in enforcing legislation which affects property rights, there must be strict compliance with legislative requirements. The critical point in the argument is that it is said that the obtaining of the restraining order over the relevant property, but for a different offence, justifies this course. Since the application was based on charging with, not conviction of, a serious drug offence, it was submitted that s 25(1)(b)(ii) CCA raised the question whether the offence of which the applicants were convicted was a “related serious drug offence”. [22] By s 12 CCA, a “related offence” exists if both offences consist substantially of the same acts or omissions or form part of the same series of acts or omissions. Vosmaer, upon which counsel for the applicants relied, involved an application for a declaration that a forfeiture had not occurred in a case where a husband and wife had been charged with carrying on the business of trafficking in dangerous drugs between 1 January 1995 and 22 February 1999. Eventually, the husband pleaded guilty to carrying on the business of trafficking in dangerous drugs from 31 December 1994 to 20 February 1996. His wife pleaded guilty to two counts of supplying (by offering to supply) dangerous drugs. Restraining orders based on the original charge had been made. The argument advanced was that the property was not automatically forfeited because, although they were convicted of other serious criminal offences, they were not convicted of the serious criminal offence in respect of which the restraining orders were made. This was said to flow from s 163(1), read in isolation, as Helman J said. He accepted as correct a concession that by virtue of s 162(a), the offences that resulted in the granting of the restraining order and in the conviction formed part of the same series of acts so far as the male applicant was concerned. However, he accepted that the two acts of supply, in the wife’s case, did not. Vosmaer provides an example of the operation of that kind of provision, but I am not persuaded that it assists the applicants in the present case. [23] Having regard to the analysis in paras [4]-[10] of the reason why there was a variation between the charge recited in affidavit in support of the application for the restraining order and the terms of the indictment and the reason assigned for the variance by common consensus of both the Crown Prosecutor and defence counsel, it is, in my view, an untenable proposition that the offences were not “related offences”. It should also be noted for the sake of completeness that the making of the restraining order was acquiesced in by counsel for the applicants at the sentencing hearing in full knowledge of the course that the matter had taken, and probably following representations made by him as to the final form of the indictment. Therefore since there is no reasonable prospect of the proposed amended ground succeeding I would refuse leave. [24] With respect to the third ground, the fact that forfeiture to the State of Queensland was complete on 16 January 2001 by reason of s 25(1) CCA, when the time of acquisition of the property was not a limiting factor, means that s 162 has no operation. The forfeiture had occurred before CPCA commenced. All that remained to be done was to take steps to obtain a formal document evidencing that fact for whatever purposes it may be required. Section 272(1) CPCA provides that -- 6 of 7 -- 7 any step necessary to be taken for enforcing an automatic forfeiture, where the process began under CCA, may be taken under CPCA. [25] The applicants’ second ground falls away because it is premised on CPCA applying to the forfeiture itself which, in my view, it does not. The underlying propositions, on the assumption that it did apply, were the same as those upon which the first ground was based. I do not accept those propositions for the reasons previously stated. The result is that no legal remedy is available to the applicants in these proceedings. If there is to be any alleviation of the matters of which the applicants complain, it depends on an administrative decision of the kind alluded to by the Crown Prosecutor in the sentencing proceedings being made. The application must therefore be dismissed. The application under s 49 Judicial ReviewAct 1991 in relation to the payment of costs is reserved. -- 7 of 7 --