Revised
Not Restricted
Suitable for Publication
IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
COMMON LAW DIVISION
CONFISCATION LIST
Case No. CI-11-01892
COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE
Applicant
v
LAN PHUONG THI TRAN (aka THI PHUONG LAN TRAN)
Respondent
--JUDGE:
HER HONOUR JUDGE MORRISH
WHERE HELD:
Melbourne
DATE OF HEARING:
17 and 18 September 2015
DATE OF RULING:
1 October 2015
CASE MAY BE CITED AS:
Commissioner of the Australian Federal Police v Tran
(Ruling)
MEDIUM NEUTRAL CITATION:
[2015] VCC 1360
RULING
---
Subject:
CONFISCATION
Catchwords:
Proceeds of crime – the respondent pleaded guilty to one charge of
trafficking in a controlled drug, namely heroin and was sentenced –
more than two years before the respondent’s trial was listed, the
Commonwealth Director of Public Prosecutions made an application
under s17 of the Proceeds of Crime Act 2002 (Cth) (“POCA”) that
certain property (the “Mount Pritchard property”) in which the
respondent was said to have an interest be restrained – the
Commissioner of the Australian Federal Police, the applicant in these
proceedings, then took over the conduct of the proceedings – the
applicant made further applications for restraining orders in respect of
personal property (items of jewellery) and money – a judge ordered
that the Mount Pritchard property be excluded from forfeiture but the
jewellery and cash be forfeited – the applicant subsequently applied for
a Pecuniary Penalty Order (“PPO”) under s134 of the POCA to be
made against the respondent – Court satisfied that the application for
the PPO was filed within the statutory time limit pursuant to the
operation of s134(2)(b) of the POCA – the respondent seeks an order
that the application for a PPO be struck out – whether s134(2)(b) of the
POCA constitutionally invalid – whether the application for the PPO
was filed within the statutory time limit – whether Anshun estoppel
applies – whether making a PPO in the circumstances would infringe
the rule against double punishment.
!Und efined Boo km ar k, I
CONSTITUTIONAL LAW – whether the statutory time limit for filing an
application for a PPO as provided by s134(2)(b) of the POCA is
constitutionally invalid on the ground that it breaches Chapter III of The
Constitution – Court satisfied the principle in Kable v Director of Public
Prosecutions (NSW) (1997) 189 CLR 51 not engaged – International
Finance Trust Company Limited v NSW Crime Commission (2009) 240
CLR 319 distinguished – provisions of the POCA not tainted with the
same vices contained in the legislation struck down by the High Court
in International Finance Trust – respondent not able to identify any
provision of the POCA which denies procedural fairness – provisions of
the POCA do not deprive the Court of judicial process or require it to
act contrary to principles of natural justice – Court not satisfied that the
POCA offends Chapter III of The Constitution – Court not satisfied
s134(2)(b) of the POCA constitutionally invalid.
ESTOPPEL - whether Anshun estoppel applies – s134(5) of the POCA
allows for a PPO to be made notwithstanding that a forfeiture order has
been made – POCA permits multiple applications to be made – Court
satisfied that to read into clear and unambiguous legislation that
Anshun estoppel applies would subvert the statutory scheme
ABUSE OF PROCESS – whether making a PPO in the circumstances
would infringe the rule against double punishment – no evidence that
respondent has already faced PPO proceedings – no evidence that
prior proceedings will prejudice respondent in her defence of a PPO
application – premature to hold that the respondent is in jeopardy of
“double punishment”
Legislation Cited:
Criminal Code Act 1995 (Cth); Proceeds of Crime Act 2002 (Cth);
Judiciary Act 1903 (Cth); Community Protection Act 1994 (NSW);
Evidence Act 2008; Criminal Assets Recovery Act 1990 (NSW);
Interpretation of Legislation Act 1984 (Vic); Crimes Act 1914 (Cth);
Criminal Assets Recovery Act 1990 (NSW); Crimes (Confiscation of
Profits) Act 1988 (WA); Confiscation Act 1997 (Vic); Criminal Assets
Recovery Act 1990 (NSW); Misuse of Drugs Act (NT); Criminal
Property Forfeiture Act (NT).
Cases Cited:
Port of Melbourne Authority v Anshun Pty Ltd (No 1) (1980) 147 CLR
35; Port of Melbourne Authority v Anshun Pty Ltd (Anshun case) (1981)
147 CLR 589; International Finance Trust Co Ltd v New South Wales
Crime Commission (2009) 240 CLR 319; General Steel Industries Inc v
Commissioner for Railways (NSW) (1964) 112 CLR 125; Pearce v R
(1998) 194 CLR 610; Electric Light & Power Supply Corporation Ltd v
Electricity Commission of New South Wales (1956) 94 CLR 554;
Barton v R (1980) 147 CLR 75; Neill v County Court of Victoria [2003]
VSC 328; Rogers v R (1994) 181 CLR 251; Gray v Motor Accident
Commission (1998) 196 CLR 1; Daniels v Thompson [1998] 3 NZLR
22; Environment Protection Authority v Floyd [2004] NSWLEC 2014;
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51;
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89;
Dupas v R (2010) 241 CLR 237; Batistatos v Roads and Traffic
Authority of New South Wales (2006) 226 CLR 256; Tran v
Commissioner of the Australian Federal Police [2014] VCC 2044; R v
!Und efined Boo km ar k, II
Carroll (2002) 213 CLR 635; City of Collingwood v State of Victoria &
Collingwood Football Club Ltd [1994] 1 VR 652; Green v United States
355 US 184; R v Storey (1978) 140 CLR 364; Project Blue Sky Inc v
Australian Broadcasting Authority (1998) 194 CLR 355; R v Getachew
(2012) 248 CLR 22; X7 v Australian Crime Commission (2013) 248
CLR 92; Attorney-General (NT) v Emmerson (2014) 307 ALR 174;
Leeth v The Commonwealth (1992) 174 CLR 455; Silbert v Director of
Public Prosecutions (WA) (2004) 217 CLR 181; H A Bachrach Pty Ltd v
Queensland (1998) 195 CLR 547; Gypsy Jokers Motorcycle Club Inc v
Commissioner of Police (2008) 234 CLR 532; Slaveska v State of
Victoria [2015] VSCA 140; Director of Public Prosecutions (Vic) v Ali
[2009] VSCA 162; French v Queensland Premier Mines Pty Ltd [2006]
VSCA 287; Murphy v Farmer (1988) 165 CLR 19; Director of Public
Prosecutions v Logan Park Investments Pty Ltd (1995) 37 NSWLR;
Jeffrey v Director of Public Prosecutions (1995) 121 FLR 16; (1995) 79
A Crim R 514; Clissold v Perry (Minister for Public Instruction) (1904) 1
CLR 363; R & R Fazzolari Pty Ltd v Parramatta City Council (2009) 237
CLR 603; Director of Public Prosecutions (Cth) v Gay [2015] TASSC
15; Momcilovic v R (2011) 245 CLR 1; New South Wales Crimes
Commission v Kelaita (2008) 75 NSWLR 564; Gray v Motor Accident
Commission (1998) 196 CLR 1; Helton v Allen (1940) 63 CLR 691;
Commissioner of the Australian Federal Police v Fysh (2013) 224 A
Crim R 523; Director of Public Prosecutions (WA) v Mansfield [2006]
WASC 246; Studman v Director of Public Prosecutions (Cth) (2007)
177 A Crim R 34; Australian Securities and Investments Commission
(ASIC) v Lindberg (No 2) (2010) 26 VR 355.
Judgment:
The respondent’s application to dismiss the application for a PPO is
dismissed. The respondent’s application to permanently stay the
application for a PPO must also be dismissed. None of the grounds in
support of a “strikeout” or a permanent stay are established.
---
APPEARANCES:
Counsel
Solicitors
For the Applicant
Mr T Gyorffy QC
Commonwealth Office of
Public Prosecutions
For the Respondent
Mr M Hume
Haines & Polites
!Und efined Boo km ar k, III
TABLE OF CONTENTS
Page
Background .......................................................................................................................... 1
Overview of this interlocutory application ........................................................................ 4
The hearing .......................................................................................................................... 5
The Respondent’s grounds for relief ................................................................................. 5
The issues for determination and summary of findings .................................................. 7
The issues deferred for further hearing and determination at trial ................................. 8
The evidence ........................................................................................................................ 8
The submissions ................................................................................................................. 9
The Respondent’s Submissions ....................................................................................... 9
The Applicant’s submissions .......................................................................................... 18
Determination of the issues .............................................................................................. 32
(1)
Is the statutory time limit for filing an application as provided by s134(2)(b) of the
POCA invalid on the grounds that it breaches Chapter III of The Constitution? –
Ground 2(c) ............................................................................................................. 32
(2)
Was the application for a PPO filed within the statutory time limit? – Ground 2(c). ... 45
(3)
Does “Anshun” estoppel apply so as to prohibit the further prosecution of
the
application for a PPO? – Ground 1 (4)Would making a PPO in the present case
infringe the rule against double punishment? – Grounds 2(a) and (b) ..................... 51
Other points raised by Mr Hume ...................................................................................... 59
The respondent will be prejudiced because she is unable to deduct “expenses”
from the benefit derived .................................................................................................. 59
His Honour Judge O’Neill made adverse findings about the respondent’s credit ........... 60
These proceedings constitute an abuse of process ....................................................... 60
Conclusions ....................................................................................................................... 61
Orders ................................................................................................................................. 61
!Und efined Boo km ar k, IV
HER HONOUR:
Background
1
On 19 July 2013, in the County Court, the respondent, Lan Phuong Thi Tran
(aka Thi Phuong Lan Tran) (“Tran”) pleaded guilty before his Honour Judge
Allen to one charge of trafficking in a controlled drug, namely heroin, contrary
to s302.4 (1) of the Criminal Code Act 1995 (Cth).1 For the purposes of the
Proceeds of Crime Act 2002 (Cth) (“POCA”), this offence is defined in s338 of
the POCA as a “serious offence”.
2
On 7 October 2013, his Honour Judge Allen sentenced the respondent to be
imprisoned for three years. His Honour further ordered, under s20(1)(b) of the
Crimes Act 1914 (Cth), that the respondent be released after serving two
years of the term of imprisonment upon giving security by way of
recognisance in the sum of $1,000.00 on condition that she be of good
behaviour for a period of two years. His Honour declared a period of 175
days be reckoned as time already served under the sentence.2
3
More than two years before the respondent’s trial was listed before his Honour
Judge Allen, the Commonwealth Director of Public Prosecutions (“CDPP”)
made application that certain property (real estate known as the “Mount
Pritchard property”) in which the respondent was said to have an interest, be
restrained under s17 of the POCA. On 9 August 2012, the applicant, the
Commissioner of the Australian Federal Police, took over the conduct of those
proceedings.
4
Further applications for restraining orders were made by the applicant on 26
July 2013 in respect of personal property (various items of jewellery) and
money seized under warrant on 15 April 2011.
1
2
Indictment dated 19 July 2013 filed in Case No CR-12-01046 is exhibit EN-01 to the affidavit of Emily
Nicholson affirmed 18 September 2014 tendered as exhibit 2 in these proceedings.
Reasons for Sentence is exhibit EN-02 to the affidavit of Emily Nicholson affirmed 18 September 2014
tendered as exhibit 2 in these proceedings.
VCC:JM/AS
1
RULING
Commissioner of the Australian Federal Police v Tran
5
On 6 August 2013, the respondent applied for exclusion from forfeiture order
pursuant to s31 of the POCA in respect of the Mount Pritchard property which
was the subject of a Restraining Order made by his Honour Judge Murphy on
20 August, 2013.
6
On 30 August 2013, the respondent applied for a further exclusion order in
respect of personal property (various items of jewellery) and money seized
under warrant on 15 April 2011.
7
On 18 March 2014, the respondent applied for an extension order under s93,
extending the period before which the restrained property was to be excluded.
On 1 April 2014, pursuant to s93(1) of the POCA, his Honour Judge Parsons
ordered, by consent:
“… the period at the end of which the property restrained pursuant to
Restraining Orders made on 29 April 2011 and 20 August 2013 is
forfeited, is extended to 6 January 2015.”
8
Accordingly, by virtue of this Order, time within which an application for a PPO
could be made was extended under s134(2)(b):
“if an *extension order is in force at the end of [the period of nine months
after the conviction day] - the end of the period of three months after the
end of the extended period relating to that extension order.”
9
As a consequence, time to bring the application for a Pecuniary Penalty Order
(“PPO”) was extended to 5 April 2015.
10
The relevant statutory time limit for making application for a PPO is defined in
s134 of the POCA. I have just mentioned ss(2). Had an Extension Order not
been made, then ss(1) would have limited the time within which to have been
made before the end of the period of nine months after the conviction day 3
(defined in s338 and s333 for the purposes of the present application as the
day sentence was passed, ie 7 October 2013), meaning time to file the
application expired on 6 June 2014.4
3
4
Section 134(2)(a)
Section 134(2)(b)
VCC:JM/AS
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RULING
Commissioner of the Australian Federal Police v Tran
11
On 18 September 2014,5 before the respondent’s applications for exclusion
orders were heard and determined, the applicant applied for a Pecuniary PPO
under s134 of the POCA against the respondent.6 Counsel for the respondent
has quite properly conceded that the application for a PPO was brought within
time.7
12
The particulars of application plead:
“1.
2.
3.
5
6
7
THE JURISDICTION to make the order sought arises because
[the respondent] has been convicted in the County Court of
Victoria at Melbourne on 7 October 2013 of the [relevant offence],
which is a serious offence as defined by [the POCA].
The applicant applies for the following orders:
(a)
Pursuant to section 116 (1) of [the POCA], the respondent
pay to the Commonwealth a pecuniary penalty, being an
amount determined by the Court under Division 2 of Part 2-4
of [the POCA] (Penalty Amount);
(b)
Pursuant to section 282 (1) of [the POCA], the Official
Trustee be directed to pay the Commonwealth, out of the
property of the respondent which is the subject of restraining
orders made in these proceedings on 29 April 2011 and 20
August 2013 (the property), the Penalty Amount, after
paying the costs, charges, expenses and remuneration of
the Official Trustee, pursuant to section 284 of [POCA];
(c)
Pursuant to section 283 (1) of [the POCA], direct the Official
Trustee to sell or otherwise dispose of such of the property
as is required to satisfy the penalty amount.
(d)
Pursuant to section 283 (1) of [the POCA], the Official
Trustee be appointed to execute any deed or instrument in
the name of the respondent and/or any person or entity who
owns or has an estate, interest, right, power or privilege in
the property and to do any act or thing necessary to give
validity and operation to any such deed or instrument, as
may be necessary or convenient for giving effect to
paragraphs (b) and (c) above.
(e)
Such further orders as may be necessary.
THE APPLICANT is the Commissioner of the Australian Federal
Police.
Note that the applicant’s counsel states that the date of the application is 18 April 2014 (see
paragraph 2v) of exhibit 7, but that does not accord with the sealed application tendered as exhibit 1
Exhibit 1
Transcript 35. See also paragraph 17 of the respondent’s submissions. Also, in exhibit 6, paragraph
11, Mr Hume concedes that the application was served on 18 September 2014, prior to the trial of the
respondent’s exclusion applications before his Honour Judge O’Neill.
VCC:JM/AS
3
RULING
Commissioner of the Australian Federal Police v Tran
13
4.
THE RESPONDENT to this application is the person who has
been convicted of the [relevant offence].
5.
THE GROUNDS on which this application will be made is that the
respondent has derived a benefit as a result of the commission of
the offence.
6.
A TIME LIMIT APPLIES under section 134 (2) of [the POCA] and
this application is made before the end of the relevant period.”
The application for a PPO was served on the respondent on 18 September
2014,8 meaning that all parties were aware of the Commissioner’s intention to
seek a PPO well before the contested hearing of the respondent’s application
for exclusion from forfeiture orders.
14
On 17 and 18 November 2014, the applications for exclusion from forfeiture
(pursuant to s94 of the POCA) and for compensation for the proportion of
property not derived or realised from the commission of any offence (pursuant
to s94A of the POCA) were heard by his Honour Judge O’Neill.
On 18
November 2014, his Honour made a number of Restraining Orders by
consent in respect of various items of property pursuant to s17 and s25 of the
POCA.
15
On 12 December 2014, his Honour Judge O’Neill determined the
respondent’s applications made pursuant to s94 and s94A of the POCA
relating to the “Mount Pritchard property” and certain items of jewellery.
Ultimately, his Honour ordered that the Mount Pritchard property be excluded
from forfeiture but that all the items of jewellery be forfeited.
16
Despite numerous applications and hearing dates, neither party sought that
the applications made under s94 and s94A be heard at the same time as the
applications for a PPO.
Overview of this interlocutory application
17
The application for the PPO is listed for trial before me commencing on 9
November 2015.
8
The respondent, Tran, now seeks an order that the
See concession made in respondent’s submissions, exhibit 6, paragraph 11
VCC:JM/AS
4
RULING
Commissioner of the Australian Federal Police v Tran
application for a PPO be struck out (on the grounds of Constitutional
invalidity), or, in the alternative, that the proceedings be stayed permanently
on the grounds that they constitute an abuse of process, or further in the
alternative, that a form of estoppel (“Anshun” estoppel9) applies.
18
The respondent seeks other orders, but I have determined that I shall only
hear and determine the applications that would result in a dismissal of the
PPO application or in the grant of a permanent stay.
19
The applicant Commissioner opposes the orders, submitting that no
constitutional matter arises, the proceedings do not constitute any abuse of
process, and no estoppel applies to prevent prosecution of the PPO
application.
The hearing
20
The hearing commenced on 17 September 2015 and continued on 18
September. Mr M Hume appeared on behalf of the respondent, Tran. Mr T
Gyorffy QC appeared on behalf of the applicant Commissioner. The parties
filed written submissions, which they augmented by oral argument.
The Respondent’s grounds for relief
21
In the respondent’s Amended Notice of Opposition to the Application for a
PPO,10 the following grounds are pleaded:
9
10
11
“1)
The Application breaches the rule in Port of Melbourne Authority v
Anshun Pty Ltd (1981) 147 CLR 589 by traversing matters raised
in the trial between the Applicant and Respondent on 17-18
November 2014.
2)
a)
The Application is made contrary to the prohibition on double
punishment by virtue of being filed after the sentencing of
the Respondent on 07 October 2013, or
b)
The Application is made contrary to the prohibition on double
punishment by virtue of being after the trial between the
Applicant and Respondent on 17-18 November 2014, or
c)
s134(2)(b) of the Act11 is a law contrary to the
Commonwealth Constitution, and the Application has been
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Exhibit 5
The POCA
VCC:JM/AS
5
RULING
Commissioner of the Australian Federal Police v Tran
filed out of time.
3)
a)
The Application for a Pecuniary Penalty Order filed on 18
September 2014 sought an amount of $65,000.00 as a
pecuniary penalty from the respondent, and
b)
On 26 May 2015 a further affidavit in support or sworn by
Colin Hicks (the Affidavit) and on or about that date the
Applicant filed and served the Affidavit on the Respondent,
and
c)
The Affidavit alleges $257,892.00 of ‘Funds from
unexplained sources’, with such funds capable of being used
to increase the amount sought under the Pecuniary Penalty
Order to $322,892.00, and
i)
The Affidavit is inadmissible as its admission would
amount to an amendment of the Application increasing
the value of the Pecuniary Penalty Order sought
without the Applicant having been granted leave
pursuant to section 137 of the Act, and leave to amend
the Application should be denied as the Applicant
cannot satisfy s137(2)(a) or (b) of the Act, or
ii)
The Affidavit should be excluded in the exercise of the
Court’s discretion under s138 of the Evidence Act
2008.
Particulars
The Affidavit should be excluded by application of section
138(1) of the Evidence Act 2008 as having been obtained in
consequence of an impropriety. The expert evidence in the
Affidavit was not created and served with the Pecuniary
Penalty Order application on 18 September 2014 pursuant
to s134 of the Act, and the desirability of admitting the
evidence outweighs the undesirability of admitting the
evidence.
4)
The Applicant’s Pecuniary Penalty Order is reduced to nil by virtue
of s130 of the Act following the forfeiture of various property as
part of prior proceedings under the Act.
Particulars
The following property has been forfeited by the Respondent, and
it should be subtracted from the sum of $65,000.00 that the
Respondent otherwise obtained from the offending:
5)
a)
Cash worth $27,600.00
b)
Jewellery worth $86,870.00
In so far as the Application relates to funds in ANZ Account
012253 570946834
a)
VCC:JM/AS
The Applicant cannot prove that the Respondent has any
beneficial interest in the funds, and as such no valuation can
be made in relation to the Respondent’s ‘property’ under
6
RULING
Commissioner of the Australian Federal Police v Tran
s124(1)(c) of the Act; and/or
6)
b)
The Applicant cannot prove that the funds were derived
during or after events referred to in s124(i) or (ii) or (iii) of the
Act; and/or
c)
The amount treated as the value of benefits under s124(1) is
reduced to nil by virtue of s124(2)(a), (b) and (c) of the Act;
and
d)
S124(3) does not apply as the Applicant pursues his claim
under s124(1) of the Act.
In so far as the Application relates to funds in other accounts:
a)
The Applicant cannot prove that the funds were derived
during or after events referred to in s124(i) or (ii) or (iii) of the
Act; and/or
b)
The amount treated as the value of the benefits under
s124(1) is reduced to nil by virtue of 2124(2)(a), (b) and (c)
and/or
c)
S124(3) does not apply as the Applicant pursues his claim
under s124(1) of the Act.”
The issues for determination and summary of findings
22
The issues raised in the respondent’s interlocutory application and a summary
of my findings is as follows:
(1)
Is the statutory time limit for filing an application as provided by
s134(2)(b) of the POCA invalid on the grounds that it breaches Chapter
III of The Constitution? – No (Ground 2(c)).
(2)
Was the application for a PPO filed within the statutory time limit? – Yes
(Ground 2(c)).
(3)
Does “Anshun” estoppel apply so as to prohibit the further prosecution of
the application for a PPO? – No (Ground 1).
(4)
Would making a PPO in the circumstances of the present case infringe
the rule against double punishment? – No (Grounds 2(a) and (b)).
23
For the reasons set out below, the respondent’s application to strike out the
application for a PPO is dismissed.
The respondent’s application to
permanently stay the application for a PPO must also be dismissed.
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RULING
Commissioner of the Australian Federal Police v Tran
The issues deferred for further hearing and determination at trial
24
As I mentioned to counsel during the hearing, issues that do not justify either
immediate dismissal or permanent stay of the proceedings must be deferred
for determination at the ultimate hearing of the application for a PPO. These
matters concern the admissibility of evidence at trial and the quantification of a
PPO, should such an order be made. For this reason, I declined to entertain
any arguments in support of grounds 3, 4, 5 and 6 set out above and more
fully detailed below. These grounds can be ventilated more conveniently at
the trial, since their success will depend on the evidence to be adduced or
tendered at that time.
The evidence
25
The following exhibits were tendered:
Number and
Identifying
Mark on
Exhibit
One
2
3
4
5
6
7
8
9
10
11
12
13
VCC:JM/AS
Short Description of Exhibit
Date tendered
Application for the Pecuniary Penalty Order
dated 18 September 2014
Affidavit of Emily Nicholson dated 18
September 2014
Notice of Opposition to Application for a
Pecuniary Penalty Order dated 11 August
2015
Notice of Constitutional Matter 78B notices
dated 17 August 2015
Amended
Notice
of
Opposition
to
Application for a Pecuniary Penalty Order
dated 28 August 2015
Tran’s submissions in support of Summary
Judgment dated 8 September 2015
Commissioner’s submissions in opposition
to Summary Judgment dated 14 September
2015
Brief skeleton outline of submissions
Affidavit of John Reinhold Schuller dated
17 September 2015
Affidavit of John Reinhold Schuller dated 16
September 2015
Affidavit of John Reinhold Schuller dated17
September 2015 attaching two unauthorised
transcripts of which no objection is taken
Copy affidavit of Tam McLaughlin dated 24
August 2015
Application to add further ground to
application for summary dismissal
18 September 2015
8
18 September 2015
18 September 2015
18 September 2015
18 September 2015
18 September 2015
18 September 2015
18 September 2015
18 September 2015
18 September 2015
18 September 2015
18 September 2015
18 September 2015
RULING
Commissioner of the Australian Federal Police v Tran
The submissions
26
I shall set out in full the parties’ written submissions:
The Respondent’s Submissions12
“SUBMISSIONS
FOR
RESPONDENT
ON
RESPONDENT’S
APPLICATION FOR SUMMARY JUDGEMENT ON QUESTIONS OF
LAW
Summary
1.
These submissions are filed in support of an application for
summary judgement by the Phuong Thi Lan Tran (Tran),
respondent to an application for a Pecuniary Penalty Order (PPO)
made by the Applicant, the Commissioner of the Australian
Federal Police (the Commissioner). The application for a PPO
was made pursuant to section 134 of the Proceeds of Crime Act
2002 (Cth) (the Act) on 18 September 2014. These submissions
are filed pursuant to orders of his honour Judge Murphy on 01
September requiring that submissions be filed in support of the
strike out application by Tran on 07 September 2015, in
preparation for a hearing on the argument on 17-18 September
2015.
2.
The Commissioner attempts to compel Tran to defend against or
submit to a PPO despite:
3.
12
a.
her not having had notice of the PPO as at the time of her
sentencing, and thus being compelled to defend against
potential double punishment by virtue of the imposition of
civil penalties that she was entitled to have considered
herself to be free from, and
b.
her having previously litigated the same or similar issues in a
trial against the Commissioner, which occurred on 17 and 18
November 2014, with judgement having been provided on
12 December 2014, and
c.
her having been previously given initial notice of a claim of
only $65,000.00 being made against her by the
Commissioner in his application for a PPO made on 18
September 2014, and her already having forfeited at least
$114,470.00, an amount that ought be set off against the
claim for a PPO pursuant to section 130 of the Act.
Tran’s complaints of double punishment are pursued under cover
of Ground 2a, and as an alternative, Ground 2c in her Amended
Notice of Opposition to the PPO filed on 01 September 2015.
Tran argues that the application for a PPO should be dismissed as
an abuse of process due to it being filed in a manner contrary to
the prohibition on double punishment. However, should the Court
be of the view that the Act explicitly compels the Court to allow an
The submissions were tendered as exhibit 6. They appear in their original form.
VCC:JM/AS
9
RULING
Commissioner of the Australian Federal Police v Tran
application in breach of the rule against double punishment, then
Tran argues in the alternative that section 134(2)(b) of the Act,
which extends the time for the making of a PPO, should be
declared void as contrary to the Commonwealth Constitution (the
Constitution) on the grounds that it breaches the Kable principle
as re-enunciated in International Finance Trust Company Limited
v New South Wales Crime Commission13.
4.
Tran’s complaints in relation to her having to be involved in two
separate trials involving same or similar issues as noted in
paragraph 3b above, is pursued under cover of Ground 1 and
Ground 2b of her Notice of Opposition. Tran firstly argues that the
Application for a PPO should be dismissed as an abuse of
process under the (civil) principle of issue estoppel. And further,
because the application for a pecuniary penalty order is a further
attempt by the Commissioner to ensure the imposition of a civil
penalty on Tran, Tran also argues that the ordinary principles
relating to double punishment also prohibit the Commissioner from
pursuing its application after not having pursued it in its first trial
involving Tran.
5.
Finally, Tran argues that the Commissioner should be held to its
initial Pecuniary Penalty Order application value of $65,000.00
rather than the maximum of $322,892.00 capable of being claimed
were the Affidavit of Colin Hicks (the Contested Affidavit) be
allowed to be used in support of the Application. Tran argues that
leave to amend the Commissioner’s initial application should be
denied pursuant to section 137 of the Act, and that in the
alternative the Contested Affidavit be excluded by virtue of section
138 of the Evidence Act 2008 as being evidence gained by virtue
of an impropriety. The expert evidence in the Contested Affidavit
was created 8 months after the initial application for a PPO was
made, despite section 136 of the Act providing that an application
for a PPO has to be served on the Respondent together with any
affidavit in support.
Facts14
13
14
6.
In the preceding criminal proceedings, the Director of Public
Prosecutions alleged that Tran trafficked heroin between 01 June
2009 and 21 August 2009, contrary to 302.4(1) of the Criminal
Code (Cth).
7.
Tran pleaded guilty to the offending shortly before trial, and on 07
October 2013 was convicted and sentenced to a term of
imprisonment of 3 years, with the sentencing judge ordering that
she be released on recognisance after two years, with an
undertaking to be of good behaviour for two years upon release.
As part of her sentencing reasons, the court found that Tran had
received $65,000.00 as a result of part of her offending.
8.
The DPP obtained a restraining order on 29 April 2011 in relation
to Tran’s home at 382 Elizabeth Street, Mt Pritchard, and then on
(2009) 240 CLR 319
The facts appear adequately in the Sentencing Reasons of His Honour Judge Allen published on 07
October 2013, which are exhibited as EN-02 in the affidavit of Emily Nicholson filed in these
proceedings by the Commissioner
VCC:JM/AS
10
RULING
Commissioner of the Australian Federal Police v Tran
20 August 2013 obtained further restraining orders over items of
cash and jewellery found at the home15.
9.
Tran filed applications for exclusion over the various restrained
items, but ultimately consented to the withdrawal of her application
over various amounts of cash and jewellery16.
Tran also
successfully excluded various items of jewellery from the
restraining order as a result of consent orders entered into with the
Commissioner17.
10.
On 17-18 November 2014 a trial occurred before His Honour
Judge O’Neill in the County Court, and his honour gave his
reasons for judgement on 12 December 2014.
Tran was
successful in excluding her interest in her home from the
restraining order, but was unsuccessful in her application to
exclude various remaining items of jewellery.
11.
Prior to the trial, on 18 September 2014, Tran was served with an
application for a PPO by the Commissioner, together with an
affidavit in support. The only material in the Affidavit in support
useable for the valuation of benefits under the application was the
finding by the sentencing judge that Tran had obtained $65,000.00
as a result of her offending.
12.
On 26 May 2015 the Commissioner filed several other affidavits in
support of his application, most notably the Contested Affidavit, in
which a further $257,892.00 was sought to be added to the
valuation of the PPO. The Contested Affidavit revealed that the
instructions for the preparation of the Affidavit were only provided
by the Commissioner on 20 March 2015.
Application for Summary Judgement
15
16
17
18
19
20
13.
Tran’s application for summary judgment is in the nature of a
demurrer and is made pursuant to the common law18 – the Civil
Procedure Act 2010 does not apply to these proceedings19 and
Order 10 of the County Court Miscellaneous Rules 2009 do not
make specific provisions for such an application.
14.
This court should provide summary judgement for Tran should it
consider that in relation to any of the Grounds argued below, the
application for a PPO by the Commissioner ‘discloses a case
which the Court is satisfied cannot succeed’20. Grounds 1 and
2(a)-(c) allege abuse of process by the Commissioner, and if
made out plainly satisfy this test. Ground 3 if made out should
result in the Contested Affidavit being struck out, and leave being
denied for Commissioner to amend his PPO application. Ground
4 if made out should then result in summary judgement for Tran in
that the Commissioner cannot obtain any practical relief as a
result of his application.
Order of Judge Parsons dated 29 April 2011 and Order of Judge Murphy dated 20 August 2013
Applications for exclusion filed on 06 August 2013 and 30 August 2013 and for exclusion and
compensation orders pursuant to sections 94 and 94A of the Act filed 19 September 2014
Order of Judge O’Neill made on 18 November 2014.
General Steel Industries Inc v Commissioner for Railways (NSW) [(1964)]112 CLR 125
Section 4(2) of the Civil Procedure Act 2010
General Steel Industries Inc v Commissioner for Railways (NSW) [(1964)] 112 CLR 125 at 129
VCC:JM/AS
11
RULING
Commissioner of the Australian Federal Police v Tran
Ground 2a – The application for a pecuniary penalty order should be
summarily denied because it is made contrary to the prohibition on
double punishment by virtue of being filed after the sentencing of the
Respondent on 07 October 2013
15.
The common law provides that prosecutions contrary to the
prohibition on double punishment are liable to be struck out as an
abuse of process21. The filing of the PPO application by the
Commissioner on 18 September 2014, nearly a year after Tran’s
sentencing on 07 October 2013, is an attempt to further punish
Tran in relation to offending relating to her convictions on 07
October 2013, and as such should be struck out. Ultimately, the
only appropriate time applications such as this PPO to be brought
is after conviction, but prior to the imposition of sentence – for
example during the plea in mitigation.
16.
The Commissioner’s PPO application is made pursuant to section
134(2)(b), which provides that:
‘If the application relates to a person’s conviction of a
serious offence, the application must be made before (a) the
end of the period of 9 months after the conviction day; or (b)
if an extension order is in force at the end of that period –
the end of the period of 3 months after the end of the
extended period relating to that extension order.’
17.
By agreement between the parties conviction for the purposes of
the Act occurred on 07 October 2013. As a result of an extension
order being made on 01 April 2014, the application for a PPO is
formally made within the time period specified within section
134(2)(b) of the Act.
18.
However, in interpreting the provisions of the Act, allowance must
be made for ordinary common law principles to continue to exist.
As Dixon CJ wrote in Electric Light and Power Supply Corporation
Limited v Electricity Commission of New South Wales22:
‘When the legislature finds that a specific question of a
judicial nature arises but that there is at hand an established
court to the determination of which the question may be
appropriately submitted, it may be supposed that if the
legislature does not mean to take the court as it finds it with
all its incidents including the liability to appeal, it will say so.
In the absence of express words to the contrary or of
reasonably plain intendment the inference may safely be
made that it takes it as it finds with all its incidents and the
inference will accord with reality.’
19.
21
22
23
His honour’s reasons are to be considered alongside the principle
that this court, as all courts, have an implied or inherent
jurisdiction to prevent its process being abused23, and the
prohibition on double punishment is one of the grounds through
Pearce [v R] (1998) 194 CLR 610
(1956) 94 CLR 554 at 560
Barton v R (1980) 147 CLR 75, Neill v County Court of Victoria [2003] VSC 328
VCC:JM/AS
12
RULING
Commissioner of the Australian Federal Police v Tran
which an abuse of process may be established24.
20.
As a result, section 134(2)(b) of the Act should not be interpreted
to abrogate the prohibition on double punishment. Just as
applications for PPOs made within the legislatively specified
period of time also need to comply with other common law rules
and principles relating to pleadings, or evidence, such applications
must also comply with the principles relating to double
punishment.
21.
There is unambiguous authority that a later civil punishment
engages the principles relevant to double punishment. In Gray v
Motor Accident Commission (1988) [scil 1998]25, the High Court
confirmed that exemplary damages sought after the imposition of
criminal punishment were subject to this principle. The joint
judgement of Gleeson CJ, McHugh, Gummow and Hayne JJ
noted that ‘there seems to be much to be said in favour of the
views reached by a majority of the Court of Appeal of New
Zealand in Daniels v Thompson that for a civil court to revisit a
sentence imposed in a criminal court for the purpose of deciding
whether the criminal received his or her just deserts is ‘contrary to
principle’ and must ‘undermine the criminal process’ ’26.
22.
It is clear that facts relevant to the PPO application were part of
the circumstances considered by the learned sentencing judge.
The $65,000.00 referred to in the initial application by the
Commissioner is specifically referred to in the judge’s reasons,
and Tran was as a result presumably punished for her obtaining
this amount.27
23.
Finally, the name of the order sought by the Commissioner as well
as section 126 of the Act make it clear that the order being sought
is punitive. The order sought is a ‘Pecuniary Penalty’ order, and
section 126(a) of the Act provides that expenses or outgoings of
the person are not be used to reduce the value of the PPO
calculation, a fact that ensures that, for example, an order for
$65,000.00 against Tran would amount to the imposition of a
substantial additional penalty as compared with merely disgorging
the benefits of the offending from her.
24.
As a result, the Court should strike out the application for a PPO
as an abuse of process.
Ground 2c- As an alternative to Ground 2a, the application for a
pecuniary penalty order should be summarily denied as s134(2)(b) of
the Act is a law contrary to the Commonwealth Constitution, and the
Application has been filed out of time.
25.
24
25
26
27
Ground 2c is argued in the alternative to Ground 2a – and is to be
considered should the previous ground for a stay be denied on the
basis that section 134(2)(b) of the Act is to be interpreted as
Rogers v R (1994) 181 CLR 251
(1998) 196 CLR 1
(1998) 196 CLR 1 at 46, citing Daniels v Thompson [1998] 3 NZLR 22 at 48. See also Environment
Protection Authority v Floyd [2004] NSWLEC 2014 at paragraphs 63-65
See exhibit EN-02 in the affidavit of Emily Nicholson sworn 18 September 2014 Reasons for Sentence
of his Honour Judge Allen, Paragraph 8
VCC:JM/AS
13
RULING
Commissioner of the Australian Federal Police v Tran
requiring the abrogation of the common law principle of double
punishment in relation to applications for a PPO under the Act.
26.
In the alternative to the court striking out the PPO application
under ground 2a, the Court should declare s134(2)(b) of the Act a
law contrary to Chapter 3 of the Constitution as required by the
Kable28 principle. The court should then rule the application for a
PPO to have been made out of time as a result of not having been
made prior to the sentencing of Tran, and thus should again, grant
summary judgment for Tran.
27.
This court should make such orders because the principle
protecting subjects from double punishment is one incident of a
court’s power to prevent the abuse of its own processes29, and the
principle of considered dicta in relation to High Court judgements
requires that this court rule s134(2)(b) as beyond the legislative
power of the Commonwealth if it is persuaded that the section
allows for the breach of the ordinary principles of double
punishment30.
28.
Of course, the High Court has never explicitly ruled on whether the
power to prevent an abuse of its processes is an essential
attribute of the Judicial Power of the Commonwealth31. However,
it has made considered obiter comments in relation to the issue,
noting in Dupas v the Queen (2010) that ‘Having regard both to
the antiquity of the power and its institutional importance, there is
much to be said for the view that in Australia the inherent power to
control abuse of process should be seen, along with the contempt
power, as an attribute of the judicial power provided for in Ch III of
the Constitution’.
29.
These reasons compel this court to defer to the High Court’s view
as to the likely correct result at law, and as a result, s134(2)(b)
should be declared void, and the application for a PPO struck out.
Ground 1 – The application for a pecuniary penalty order should be
summarily denied because the application breaches the rule in Port of
Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589 by traversing
matters raised in the trial between the Applicant and Respondent on 1718 November 2014.
28
29
30
31
32
30.
Not only has Tran been subjected to an application for a pecuniary
penalty order despite not having notice of such at sentencing, but
the Commissioner also seeks to compel Tran to undergo a second
trial in relation proceeds of crime matters, with a 2 day trial in
relation to an application for an exclusion order previously having
occurred.
31.
As a result of the previous trial, this court should rule the PPO
application as being estopped by virtue of the principles
enunciated in Anshun32. The matters raised in the PPO application
Kable v DPP (NSW) (1996) 189 CLR 51
Barton v R (1980) 147 CLR 75
Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at 151-2
Batistos [scil Batistatos] v Roads and Traffick (sic) Authority (NSW) (2006) 226 CLR 256 at [13] per
Gleeson CJ, Gummow, Hayne and Crennan JJ
Port of Melbourne Authority v Anshun Pty Ltd [(No 1)] (1980) 147 CLR 35
VCC:JM/AS
14
RULING
Commissioner of the Australian Federal Police v Tran
are so closely connected to the relevant issues in the exclusion
application that it is to unreasonable for the PPO application not to
have been pursued during the exclusion application.
32.
33.
33
34
35
36
37
The previous trial and the PPO application involved a multiplicity
of similar factual and evidentiary issues, and it is unreasonable for
the Commissioner to choose to run the PPO application at a later
trial rather than alongside the application for an exclusion order
under the Act. The identity of issues between the matters litigated
in this trial and the PPO include:
a.
The question of Tran’s credibility33, which is again clearly
relevant in her defending the PPO application through her
obtaining relevant ill gotten gains alleged by the
Commissioner
b.
The issue of whether Tran had sources of income other than
her government benefits and minor salary gathered from
working as a nail technician and seamstress34 – relevant
here in relation to whether she can show legitimate sources
of income in relation to amounts alleged to have been
acquired by her during the ‘relevant period’35.
c.
The issue of whether Tran can provide lawful sources of
income through which she obtained various bundles of cash
found in her possession during Police operations36 – a
matter relevant to the PPO application as there are
allegations of unsourced cash deposits into bank accounts
said to be controlled by her.
d.
The issue of whether certain friends of Tran were capable of
having given her large sums of money based upon their own
incomes37 – again relevant as shown by the Commissioner
having filed a number of fresh affidavits seeking to show that
Tran’s associates did not have large amounts of taxable
income.
e.
The jurisdictional issue of whether Tran has been convicted
of a ‘serious offence’ as defined in section 338 of the Act, an
element required to be proven for exclusion under s94(1) of
the Act. The application for a PPO also traverses this issue
as the Commissioner may prove that Tran has been
convicted of a ‘serious offence’, with the same element
under s116(1)(b)(ii) of the Act being one way of enlivening
the court’s power to make a PPO.
The court should also find it telling that the application for
exclusion and the PPO are applications made under the very
same act, and indeed have been filed in the very same
proceeding. The Commissioner’s decision to delay his application
for a PPO is apt to cause unnecessary costs and delay for both
Reasons for Judgement in Tran v Commissioner [of the Australian Federal Police], [2014] VCC 2044
at [42]
Id
As defined in Section 124(5) of the Act
Ibid at [42]
Id
VCC:JM/AS
15
RULING
Commissioner of the Australian Federal Police v Tran
Tran and the court.
34.
The only advantage that can arise out of the delay is a tactical one
– allowing the Commissioner to take advantage of having
previewed rulings that have been made in a very similar matter
prior to electing to proceeding with his PPO application. Such an
advantage is an illegitimate one. The second trial court is put in
an embarrassing position, as either it has its powers limited by the
rulings of the first court, or there exists the possibility of creating
disparate rulings leading to potentially inconsistent rulings.
35.
On the basis of the above matters, the court should strike out the
Application for a PPO on this ground as well.
Ground 2b – The application for a pecuniary penalty order should be
summarily denied as the Application is made contrary to the prohibition
on double punishment by virtue of being pursued after the trial between
the Applicant and Respondent on 17-18 November 2014.
38
39
36.
The principles and facts related above also give rise to a claim
that the attempt to obtain a PPO after the exclusion order trial is a
breach of res judicata principles developed in the criminal law,
which are still applicable in circumstances where there is an
attempt to impose civil punishment38. As a result, the application
should be dismissed as being an abuse of process contrary to the
principles of double punishment.
37.
This argument is pursued principally on the limb that such litigation
is vexatious and oppressive. The court should rule that the
Commissioner, having been involved in attempting to compel
forfeiture by resisting Tran’s exclusion application, ought to have
pursued their application for a PPO during that trial, rather than
having saved up their application for what amounts to further
unnecessary litigation39.
38.
The application should be ruled an abuse of process particularly
relying upon the following features of the Commissioner’s further
prosecution:
a.
The application includes the leading of evidence relating to
transactions which occurred in May of 2005, being now more
than 10 years old; and
b.
The re-trial will involve a repetition of Tran’s extensive crossexamination from the first trial; and
c.
The re-trial was further delayed by the filing by the
Commissioner of the Contested Affidavit on 25 May 2015 –
being about 19 months after Tran’s sentencing, and about 8
months after the initial application for a PPO was filed; and
d.
Such has been the delay in the Commissioner’s application
that Tran has already served the immediate imprisonment
portion of her sentence; and
See Environment Protection Authority v Floyd [2004] NSWLEC 2014 at paragraphs 63-65
Rogers v R (1994) 181 CLR 251 and R v Carroll (2002) 213 CLR 635
VCC:JM/AS
16
RULING
Commissioner of the Australian Federal Police v Tran
e.
The Commissioner had no legitimate reason for delaying the
PPO application, as the nature of the charges and lack of
conflicting co-offenders were such as to allow both
applications to run in the one trial; and
f.
Finally, in the exclusion order litigation Tran was successful
in excluding her house from potential forfeiture, but the
Commissioner’s application, if successful would maker hers
a pyrrhic victory, as the house would be forfeited to the
Commissioner anyway for the purposes of paying the PPO.
Grounds 3 and 4 – The application for a pecuniary penalty order should
be summarily denied because the Commissioner should be denied
leave to amend its application for a pecuniary penalty order AND the
court should declare that pursuant to section 130 of the Act, the
Commissioner’s application for a pecuniary penalty order is worth nil.
40
39.
Finally, the application for the PPO ought to be denied on a further
basis – being that the PPO application may only proceed for a
claim of up to $65,000.00 as amendments to the figure sought are
not in the interests of justice pursuant to section 137 of the Act, or
as a result of section 138 of the Evidence Act 2008. Therefore,
when considered in combination with the large forfeitures of
moneys and jewellery that Tran has already suffered, the amount
calculated as being the relevant value of the PPO ought be
reduced to nil by virtue of section 130 of the Act.
40.
Prior to the filing of the Contested Affidavit, the amount claimed by
the Commissioner in its application for a PPO was $65,000.00.
However, some 8 months later, the Commissioner filed and
served the Contested Affidavit, seeking to increase the amount
sought by a further $257,892.00. As deposed to by Tran40, the
approach pursued by the Commissioner has occasioned her
significant further legal expenses.
41.
Section 136(2) of the Act compels the Commissioner to provide
notice of the PPO application by providing a copy of the
application and ‘any affidavit supporting the application’ with the
notice. Section 136(3) and (4) make provision for the delay of the
service of a supporting affidavit upon application to the court to
which the application is made; no such application has been made
by the Commissioner.
42.
Further, section 137(1) and (2) of the Act govern the making of
amendments to the application, with subsection (2) providing that
the court should not amend the application to include an additional
‘benefit’ unless the court is satisfied that ‘(a) the benefit was not
reasonably capable of identification when the application was
originally made; or (b) necessary evidence became available only
after the application was originally made.’
43.
The result of the above provisions should be that the court ought
deny the use of the Contested Affidavit in amending the
application for a PPO beyond $65,000.00. Sections 136 and 137
of the Act together create statutory protections designed to ensure
that applications for PPOs against respondents do not have any
Paragraph 10 of Affidavit of Phuong Tran sworn 11 August 2015
VCC:JM/AS
17
RULING
Commissioner of the Australian Federal Police v Tran
unnecessarily oppressive effect by virtue of late increases in the
punishment sought to be imposed. There is nothing in the
material filed by the Commissioner which would allow the court to
find that an order pursuant to section 137 ought to be made
allowing leave to amend.
44.
Moreover, pursuant to section 138 of the Evidence Act 2008, the
court ought to rule that the expert evidence in the Contested
Affidavit was obtained as a result of an impropriety. The
Commissioner only provided the relevant instructions for the
creation of the affidavit on 20 March 2015, despite the requirement
under section 136 of the Act to serve any affidavit relied upon in
support of its application for a PPO at the time of the making of the
application.
There is nothing in the material filed by the
Commissioner which would allow it to argue that the importance of
admitting the evidence is greater than the importance of ruling it
as inadmissible.
45.
Finally, if the Court were to rule in Tran’s favour that the maximal
claim for the PPO application was $65,000.00, then the Court
ought also consider and allow Tran’s argument that the value of
the PPO should be reduced to less than zero. Tran has forfeited
at least $114,470.00 worth of cash and Jewellery, with relevant
forfeited Jewellery having been sold for far less than the amounts
deposed to in the expert valuation affidavit filed by the
Commissioner in the first trial.
46.
The effect of section 130(a) of the Act is to reduce the total
claimable as a result of a reduction ‘by an amount equal to the
value, as at the time of the making of the order, of any property
that is proceeds of the offence to which the order relates if: (a) the
property has been forfeited, under this Act … in relation to the
offence to which the order relates’41.
47.
As a result, the PPO is reduced to less than zero, and thus the
Commissioner’s application for a PPO should be summarily
dismissed.
Orders Sought
48.
Should Tran be successful in any of her 5 grounds for summary
dismissal, then the application for a PPO should be dismissed.
49.
The Respondent will seek to be heard on costs upon the court
making its ruling.”
The Applicant’s submissions42
“APPLICANT’S OUTLINE OF SUBMISSIONS IN OPPOSITION TO
SUMMARY JUDGEMENT
41
42
A.
INTRODUCTION
1.
The Commissioner of the Australian Federal Police
(Commissioner), opposes the application by Phuong Thi Lan
Section 130 of the Act
Exhibit 7 appears in its original form
VCC:JM/AS
18
RULING
Commissioner of the Australian Federal Police v Tran
TRAN (Tran) for summary judgment seeking to strike out the
Commissioner’s application for pecuniary penalty orders (PPO)
pursuant to section 116 of the Proceeds of Crime Act 2002 (Cth)
(POCA). The reasons for that opposition are set out below.
B.
FACTUAL BASIS FOR TRAN’S APPLICATION
2.
The following are the material facts relevant to this application:
a)
In March 2009 Tran came to the attention of police who
believed she was involved in the importation of heroin into
Australia from Vietnam;
b)
She became a person of interest in Operation Raptor being
an investigation by Victoria Police into heroin trafficking
which included Tran’s activities;
c)
The criminal activity of Tran identified in Operation Raptor
was a number of deliveries of heroin from Sydney by Tran
and delivered in Melbourne for her by Kim Thuy Quach
ostensibly for sale through Hanh Nguyen to others;
d)
In August 2010 a joint operation between Federal, Victorian
and NSW police named Operation Rattlesnake further
investigated the activities of Tran and the group of people
she was acting together with in the commission of the drug
trafficking;
e)
On 15 April 2011 New South Wales police executed a
search warrant at 382 Elizabeth Drive, Mount Pritchard,
NSW, which was the residence owned by Tran;
f)
There were a large number of items of property belonging to
Tran seized pursuant to that warrant including two amounts
of cash which totalled Aud $27,000 and numerous items of
jewellery including rings, bracelets, necklaces, earrings and
precious stones;
g)
Following her arrest, Tran was charged with a single charge
of between dates trafficking based on her conduct as
discovered during Operation Raptor;
h)
That charge was:
‘Between 1 June 2009 and 21 August 2009 in Victoria
and New South Wales, Phuong Thi Lan Tran did traffic
in a controlled drug, namely heroin, contrary to section
302.4 (1) of the Criminal Code (Cth).’
VCC:JM/AS
i)
The evidence relied on by the prosecution in support of that
charge was 3 transactions occurring in the specified period
each of approximately 6 oz and in total amounting to 18 ½
oz (518 g) with a total of pure heroin of not less than 100g;
j)
In respect of those three transactions the total sale price was
expected to be $203,000, and $65,000 was proven to have
been received by Tran;
k)
On 28 April 2011 the Commonwealth Director of Public
19
RULING
Commissioner of the Australian Federal Police v Tran
Prosecutions sought a restraining order over the Mount
Pritchard property pursuant to S.17 of POCA;
VCC:JM/AS
l)
The Commissioner took over those proceedings on 9 August
2012;
m)
On 19 July 2013 Tran pleaded guilty to the trafficking charge
and the matter proceeded on an agreed statement of facts;
n)
On 26 July 2013 the Commissioner made application for a
further restraining order pursuant to S.17 of POCA which
was in relation to the personal property and money seized
under warrant on 15 April 2011;
o)
On 6 August 2013 Tran made application for an exclusion
order pursuant to S.31 of POCA in respect of the Mount
Pritchard property;
p)
On 20 August 2013 His Honour Judge Murphy granted a
restraining order over the personal property and real estate
specified in the two applications referred to above;
q)
Tran was represented at the hearing and did not oppose the
making of the restraining order;
r)
On 30 August 2013 Tran made application for an exclusion
order pursuant to S.31 of POCA in respect of the money and
jewellery that was seized on 15 April 2011;
s)
On 18 March 2014 (after several extensions of time for Tran
to file material) the exclusion applications were listed for
hearing on 16 October 2014;
t)
Pursuant to S.92 of POCA automatic forfeiture after
conviction was to occur on 7 April 2014;
u)
On 1 April 2014 consent orders were made extending the
time for automatic forfeiture to 6 January 2015;
v)
On 18 April 2014 the Commissioner filed an application
pursuant to S.134 of POCA seeking a pecuniary penalty
order;
w)
On 16 October 2014 the hearing date for the exclusion
application was vacated and a new date of 17 and 18
November 2014 was set;
x)
No request was made by Tran for consolidation of those
proceedings with the pecuniary penalty application;
y)
Tran’s applications for exclusion (and a compensation order
pursuant to S.94A which was filed on 19 September 2014)
were heard by His Honour Judge O’Neill on 17 and 18
November 2014;
z)
During the hearing orders were made by consent dealing
with some of the property which was the subject of the
restraining orders;
20
RULING
Commissioner of the Australian Federal Police v Tran
aa)
On 12 December 2014 His Honour Judge O’Neill handed
down his decision in respect of the Mount Pritchard property
and the remaining personal property;
bb)
On 17 March 2015 Her Honour Judge Cohen set down the
hearing of the pecuniary penalty order application for 17
September 2015;
cc)
On 11 August 2015 a Notice of Opposition was served on
the Commissioner raising the matters in dispute in this
application;
dd)
On 17 August 2015 a Notice of Constitutional Matter
pursuant to S.78B of the Judiciary Act 1903 (Cth) was
served on the Commissioner;
ee)
On 28 August 2015 an amended Notice of Opposition was
served on the Commissioner; and
ff)
On 1 September 2015 His Honour Judge Murphy gave
directions in respect of the hearing of this ‘strike out’
application.
C.
WHAT IS THE NATURE OF TRAN’S APPLICATION?
3.
In para 13 of Tran’s submissions, this application is described as
an application ‘for summary judgment’. It is described as being in
the nature of a demurrer ‘pursuant to common law’.
4.
A demurrer is a historical concept of ancient pleadings which was
abolished in 1883 in Victoria. The concept underpinning it was the
ending of an action on a point of law where otherwise parties
might incur great expense in trying issues of fact which, when
decided, would not determine their rights. In modern times this is
achieved by pleading an objection of law and in a sufficiently clear
case making application under Court Rules dealing with Summary
Judgment see: Odgers Principles of Pleading and Practices,
Stevens, 21st ed, 135.
5.
In para 13 the concession is made, quite properly, on behalf of
Tran that the Civil Procedure Rules of this Court do not apply to
proceedings under POCA. Thus there is no jurisdiction to hear an
application for summary judgment in these circumstances.
6.
Tran purports to rely on the case of General Steel Industries Inc
v. Commissioner for Railways NSW (1964) 112 CLR 125. In
that case Barwick C J said at p 127:
‘The defendants, by the three separate summonses now
heard by me, seek to set aside the writ and the statement of
claim in this action, or alternatively, to stay further
proceedings thereon upon the grounds that the plaintiff
neither has nor discloses a reasonable, or for that matter
any, cause of action against the defendants or any of them.
For this purpose the defendants each calls in aid the
inherent jurisdiction of the Court to prevent the abuse of its
process, the provisions of Order 26, r. 18, and those of
Order 63, r. 2, of the Rules of this Court.’
VCC:JM/AS
21
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Commissioner of the Australian Federal Police v Tran
7.
The only basis for jurisdiction in this case is the analogous power
that this Court has to the Supreme Court power dealing with
abuse of process. That is used quite sparingly where the
consequence is the failure to determine a dispute between the
parties.
8.
At p 129 Barwick CJ considered the principles applying which are
all tests that apply to summary judgements:
‘…the plaintiff ought not to be denied access to the
customary tribunal which deals with actions of the kind he
brings, unless his lack of a cause of action - if that be the
ground on which the court is invited, as in this case, to
exercise its powers of summary dismissal - is clearly
demonstrated. The test to be applied has been variously
expressed; ‘so obviously untenable that it cannot possibly
succeed’; ‘manifestly groundless’; ‘so manifestly faulty that it
does not admit of argument’; ‘discloses a case which the
Court is satisfied cannot succeed’; ‘under no possibility can
there be a good cause of action’; ‘be manifest that to allow
them’ (the pleadings) ‘to stand would involve useless
expense’.’
9.
Tran’s application here appears to be based on the principles of
double jeopardy, estoppel and the Kable principle.
D.
WHAT IS THE KABLE PRINCIPLE
10.
The Kable principal was succinctly and clearly defined in the
plurality judgment in Attorney-General for the Northern
Territory v. Emmerson [2014] HCA 13 at [40]:
‘…The principle for which Kable stands is that because the
Constitution establishes an integrated Court system, and
contemplates the exercise of federal jurisdiction by State
Supreme Courts, State Legislation which purports to confer
upon such a court a power or function which substantially
impairs the Court’s institutional integrity, and which is
therefore incompatible with the Court’s role as a repository
of federal jurisdiction, is constitutionally invalid.’
VCC:JM/AS
11.
The critical point is that the Kable principle is used to strike down
State Legislation where a court is one which exercises federal
jurisdiction, if the powers or functions in that legislation are
incompatible with that Courts institutional integrity. The Kable
decision modified a line of authority which held that no
constitutional doctrine of separation of powers applied to affect
State power over State Courts eg. City of Collingwood v. State
of Victoria (No 2) [1994] 1 VR 652.
12.
In this case the powers vested in the Court are as a result of
POCA which is Commonwealth and not State legislation. Tran has
not sought in the submissions to argue that POCA should be
struck down because of the principle of separation of powers
inherent in the Commonwealth Constitution. Neither is there any
basis to do so.
E.
WHAT IS THE PRINCIPLE OF DOUBLE JEOPARDY?
22
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Commissioner of the Australian Federal Police v Tran
13.
The most authoritative exposition of the concepts of double
jeopardy as they apply to Australia is to be found in Pearce v. The
Queen [1998] HCA 57; (1998) 194 CLR 610. In that case at [66]
Gummow J made the observation that:
‘…The submissions for the appellant rather assumed that in
this country ‘double jeopardy’ was an independent doctrine
of avoidance which of itself would found a stay application.
That is not the position. Somewhat like notions of unjust
enrichment, double jeopardy is a ‘concept’ rather than a
definitive legal principle according to its own terms.’
14.
Those observations are apposite to Tran’s submissions in this
case.
15.
The analysis of McHugh, Hayne and Callinan JJ’s represents the
orthodox approach to the analysis and application of the concept
of double jeopardy. Their Honours made the following critical
observations:
a)
At [9] their Honour’s state that, ‘The expression ‘double jeopardy’
is not always used with a single meaning. Sometimes it is used to
refer to the pleas in bar of autrefois acquit and autrefois convict;
sometimes it is used to encompass what is said to be a wider
principle that no one should be punished again for the same
matter’;
b)
At [10] they describe the underlying rationale by adopting Black J’s
dictum in Green v. United States 355 US 184, 187-188 (1957):
‘… the State with all its resources and power should not be
allowed to make repeated attempts to convict an individual
for alleged offence, thereby subjecting him to
embarrassment, expense and ordeal and compelling him to
live in a continuous state of anxiety and insecurity…’
c)
At [11] – [13] they observed that that rationale was subject to three
others arising from modern criminal practice;
d)
At [15] they said:
‘… it is helpful to consider the stages in the criminal justice
process separately, and to deal with issues of double
prosecution separately from issues of double punishment…’
e)
At [20] they make the critical point that pleas in bar operate
through the elements of the crime and not the evidence led:
‘the test for whether a plea in bar would lie as being ‘whether
the evidence necessary to support the second [charge or
prosecution] would have been sufficient to procure a legal
conviction upon the first’. At first sight this might suggest that
it is appropriate to consider what witnesses would be called
and what each of those witnesses could say about the
events which gave rise to the charges. Closer examination
reveals that the enquiry suggested is different; it is an
enquiry about what evidence would be sufficient to procure a
legal conviction. That invites attention to what must be
VCC:JM/AS
23
RULING
Commissioner of the Australian Federal Police v Tran
proved to establish commission of each of the offences.
That is, it invites attention to identifying the elements of the
offences, not to identifying which witnesses might be called
or what they could say’; and
At [25]:
‘Shifting attention to whether the offences arise out of the
same conduct, or of a single event or connected series of
events, would be to substitute for a rule prohibiting
prosecution twice for a single offence a rule that would
require prosecuting authorities to bring at one time all the
changes that it is sought to lay as a result of a single
episode of offending. That would raise still further questions.
How would a single episode of offending be defined? Would
its limits be temporary or would they be founded on the
intentions of the actor?’
f)
At [31] in considering whether an abuse of process occurred in
that case they concluded:
‘There was, however, no abuse of process in charging this
appellant with both counts 9 and 10… because the offences
are different (and different in important respects) the laying
of both charges could not be said vexatious or oppressive or
for some improper or ulterior purpose…’
g)
At [34] – [39] their Honours consider the underlying policy
consideration that informed the application of double jeopardy in
the punishment phase;
h)
At [40] they stated the general principle which applied to the
sentencing phase:
‘To the extent to which two offences of which an offender
stands convicted contain common elements it would be
wrong to punish that offender twice for the commission of
the elements that are common. No doubt that general
principle must yield to any contrary legislative intention, but
the punishment to be exacted should reflect what an
offender has done…’
16.
In the same case Gummow J, while agreeing with the reasoning of
McHugh, Hayne and Callinan JJ made some additional
observations which are fundamental to the existence of this
principle and which inform how it should be applied:
(a)
VCC:JM/AS
At [53] and [54], His Honour adopted the observation from
Rogers v. The Queen as to the legal maxims that
underpinned the principles:
i.
The public interest in concluding litigation by a judicial
determination which is final, binding and conclusive;
ii.
the need to accept orders of the Court (unless set
aside or quashed) as incontrovertibly correct, and by
doing so limiting the scope for conflicting decisions;
and
24
RULING
Commissioner of the Australian Federal Police v Tran
iii.
(b)
VCC:JM/AS
the rule that a man shall not be twice vexed for one
and the same cause.
At [66] he set out the application of the rule in Australia: see
para 14 above.
F.
DO PRINCIPLES
PROCEEDINGS?
OF
ESTOPPEL
APPLY
TO
POCA
17.
It is to be noted that while proceedings under POCA are civil in
nature they do arise from criminal conduct and in cases involving
some matters require a criminal conviction as a foundation. There
can therefore be the interaction of principles of both criminal and
civil law to be considered.
18.
It is well established that civil principles of estoppel do not apply in
the criminal law: R v. Storey [1978] HCA 39; (1978) 140 CLR
364. The principle reason being that in criminal trials it is not
possible to determine from a general verdict what issues were
determined or were not determined: see Storey, 380 (per Gibbs
J), 400 (per Mason J) and 424 (per Aicken J [scil Aickin J]).
19.
Here Tran seeks to rely on Anshun estoppel. The relevant
principles are stated in Port of Melbourne Authority v. Anshun
Pty Ltd (1980) 147 CLR 35. That was an action in negligence
where the plaintiff sued his employer, Anshun Pty Ltd, and the
Port of Melbourne Authority had provided the employer a crane
that was involved in his injury. The plaintiff succeeded against
both defendants and an order for apportionment was made by the
trial judge, on the basis that each defendant was equally liable.
20.
The Port of Melbourne Authority then brought a subsequent action
against Anshun claiming indemnity from it for the damages it was
liable for under the orders in the previous action. That claim was
based on a clause in the contract of hire of the crane.
21.
The trial judge permanently stayed those proceedings on the basis
that the claim could and should have been raised in the first action
claiming damages.
22.
It is important to note that:
(a)
The issue of contribution between the defendants in the first
action arose directly out of that action; and
(b)
At that trial, a decision was made as to contribution between
the defendants which formed part of the Court’s orders.
23.
In effect therefor, what the Authority sought to do was to re-litigate
the issue of contribution by introducing further evidence that was
available at the time of the original determination and could have
been relied on then. While this later action may have been on a
contract, it was still inextricably linked to the issue of contribution.
24.
Ultimately the decision made by the High Court was that the order
made in the negligence proceedings in relation to contribution was
a final order which disposed of the rights of the parties. This is the
touchstone of the Anshun principle – to bring finality to legal
proceedings.
25
RULING
Commissioner of the Australian Federal Police v Tran
25.
It has no application where considerations in the two competing
actions are such that they are materially different. It is not
sufficient that there be common evidence in the two proceedings,
what is required is commonality of issues in a context where the
decision in the first case bindingly disposes of it in the second.
26.
This latter point was made in Storey v. The Queen by Aickin J at
424:
‘…it must always be borne in mind that issue estoppel
applies only to issues. There is no estoppel as to evidentiary
facts found in the course of determining an issue. There is
nothing to prevent a party in a later proceeding in relation to
a particular issue of fact negatived in an earlier proceeding,
tendering evidence of those same facts directed at a
different issue.’
G.
STATUTORY INTERPRETATION PRINCIPLES
27.
Law in Australia is now dominated by statute law and as a result
there has been a shift in approach to the interpretation of statutes
since the High Court’s decision in Project Blue Sky Inc v.
Australian Broadcasting Authority (1998) 194 CLR 355.
28.
The modern approach was stated clearly in R v. Getachew [2012]
HCA 10; (2012) 248 CLR 22 at [11]:
‘Since the enactment of the Crimes (Rape) Act 1991 (Vic)
(‘the 1991 Act’), the elements of the offence of rape –
including that most important of elements, the absence of
consent – have been statutorily defined. Consideration of
any question about the law of rape in Victoria must [8]* begin
and end in consideration of the relevant statutory
provisions. Reference to decisions about the common law of
rape (whether those decisions were made before or after the
enactment of the 1991 Act) is useful only if such reference
assists in construing the applicable statutory provisions.’
*Footnote [8] to that paragraph sets out a long line of High Court
decision in support of the propositions.
29.
Former High Court Justice, Michael Kirby, in a paper entitled
‘STATUTORY INTERPRETATION: THAT MEANING OF
MEANING’ 35 MULR 113 examined the development of Statutory
interpretation in Australia. After considering some general
principles he said at 116:
‘During the past decade or so, the High Court of Australia
has unanimously endorsed other principles as necessary to
the accurate reading of legislation. Amongst the most
important of these principles have been:
 That where the applicable law is expressed in legislation
the correct starting point for analysis is the text of the
legislation and not judicial statements of the common law
or even judicial elaboration of the statue;
 That the overall objective of statutory construction is to
VCC:JM/AS
26
RULING
Commissioner of the Australian Federal Police v Tran
give effect to the purpose of Parliament as expressed in
the text of the statutory provisions;
 That in deriving meaning from the text, so as to fulfil the
purpose of Parliament, it is a mistake to consider
statutory words in isolation. The proper approach
demands the derivation of the meaning of words from the
legislative context in which those words appear.
Specifically, it requires the interpreter to examine at the
very least the sentence, often the paragraph, and
preferably the immediately surrounding provision (if not a
wider review of the entire statutory context) to identify the
meaning of the words in the context in which they are
used.’
Each of these propositions is supported by authorities in footnotes
10 to 12 inclusive.
30.
Tran in this case seeks to rely on the principle of statutory
interpretation now referred to as the ‘principle of legality’. Recently
in X7 v. Australian Crime Commission [2013] HCA 29, French
C J and Crennan J at [24] said:
‘The rule of construction… that statutory provisions are not
to be construed as abrogating important common law rights
and immunities in the absence of clear words or necessary
implication to that effect, applies to the examination
provisions, involving as they do the abrogation of the
privilege against self-incrimination. The rule is based in part,
on a ‘working assumption about the legislatures’ respect of
the law…’’
31.
This is a rule of statutory interpretation and it does not have the
effect of making such a provision invalid. It is open to Parliament
to abrogate a common law principle so long as the language of the
statute makes it clear that that is what is being done.
H.
THE GROUNDS
Ground 1 – The application for a pecuniary penalty order
should be summarily denied because the application
breaches the rule in Port of Melbourne Authority v. Anshun
Pty Ltd (1981) 147 CLR 589 by traversing matters raised in the
trial between the Applicant and Responder on 17 - 18
November 2014.
VCC:JM/AS
32.
Tran asserts that issues in the forfeiture application of November
are so closely related to those of the PPO application that the two
matters should have been heard together. In para 32 of Tran’s
submission the alleged identical issues are set out.
33.
This ground is misconceived for a number of reasons.
34.
First, the proceedings in November 2014 were applications
brought by Tran pursuant to S.94 and 94A of POCA to exclude
certain items from the restraining orders made 28 April 2011 and
26 July 2013, and for damages for restrained property that is not
27
RULING
Commissioner of the Australian Federal Police v Tran
an instrument of the offence. Thus, in these applications the
question was related to determining whether the property that was
restrained was used in the commission of the crime or the
property was derived from the commission of an offence: see
SS.94 (1) and 94A (1) of POCA.
35.
Proceedings for PPOs are concerned with determining the value
of the benefits the person derived from the commission of the
offence and reducing it by reference to various matters e.g.
property forfeited by the person as a result of the offending, tax
paid on the income and the amount of any fines, etc. paid. The
enquiry is aimed at determining the income derived from the
criminal activity and converting it to a fine: see S.121 POCA.
36.
The two types of proceedings are not related, they deal with
different subject matters and may proceed entirely independently
of each other.
37.
Second, all the matters of similarity pointed to by Tran are
evidentiary matters and not issues in the sense of the matters that
must be found to make out the elements of a proceeding. As
pointed out above at para 27, estoppel applies only to issues not
evidentiary facts. Tran seeks to rely on estoppel because of the
overlap of evidence not issues, none of which are identified.
38.
Third, the relevant legislation in this case mandates that PPO
proceedings can be brought after confiscations matters are
determined: see S.134 (5) POCA. This is reinforced by S.130 of
POCA which requires the amount forfeited under such an order to
be taken into account when determining the amount of the PPO.
Ground 2(a) – The application for a pecuniary penalty order
should be summarily denied because it is made contrary to
the prohibition on double punishment by virtue of being filed
after the sentencing of the Respondent on 07 October 2012.
VCC:JM/AS
39.
Tran contends that the bringing of proceedings after the sentence
for the principal offence is an abuse of process which should result
in the application for a PPO to be summarily dismissed. The
principles in Pearce v. The Queen are relied on for these
propositions.
40.
This argument is totally misconceived.
41.
For the reasons set out above at para 3 – 9 there is no jurisdiction
in this Court to enter summary judgment. The only matter relied on
here is the Court’s jurisdiction to deal with an abuse of its process.
Invariably where such an application succeeds the remedy is a
stay of the proceedings.
42.
Here Tran seeks to rely on the principles of double punishment
considered in Pearce v. The Queen. It is clear from the matters
dealt with in paras [13] – [16] above that:
(a)
It is essential to consider in which part of the criminal
process it is sought to apply the concept of double jeopardy;
(b)
The effect of the concept varies as to whether it is relevant
28
RULING
Commissioner of the Australian Federal Police v Tran
to the charge or sentencing;
(c)
In relation to sentencing the content of the rule is that a
person should not be punished twice for the same conduct;
(d)
The only time that the punishment element can arise is if
there is a proper conviction in respect of two offences where
there are different elements in play between them;
(e)
In respect of those elements which are common to both
offences, the offender should have one of the sentences
reduced to reflect that overlap;
(f)
The principle operates on the sentence or punishment
imposed, not on the proceedings ie no stay of proceedings
can arise from the application of this principle.
43.
Further, the assertion that double punishment can arise on the
imposition of a PPO is totally incorrect. Under the title ‘Effect of the
confiscation scheme on sentencing’, S. 320 of POCA expressly
provides that a court passing sentence may have regard to any
cooperation a person gives in resolving any action under POCA
but that the court may not have regard to any PPO that relates to
an offence.
44.
Additionally, S. 130 of POCA reflects the double jeopardy
principles in relation to double punishment by requiring that any
value of forfeited property be reduced from the amount of the
PPO.
45.
Finally, a PPO is a disgorgement of the earnings from a criminal
enterprise and is not a punishment for an offence.
Ground 2(b) – The application for a pecuniary penalty order
should be summarily denied as the Application is made
contrary to the prohibition on double punishment by virtue of
being pursued after the trial between the applicant and the
Respondent on 17 – 18 November 2014.
46.
The Commissioner relies on the matters set out in paras [39] –
[45] above.
Ground 2(c) - As an alternative to Ground 2(a), the application
for a pecuniary penalty order should be summarily denied as
S.134 (2) (b) of the Act is a law contrary to the Commonwealth
Constitution, and the application has been filed out of time.
VCC:JM/AS
47.
Tran argues this as an alternative to Ground 2(a) on the basis that
S.134 (2) (b) of POCA is to be interpreted as abrogating the
common law principle of double punishment in relation to
applications for a PPO under POCA. The second argument put by
Tran is that the provision should be struck down as it is contrary to
the Constitution under the Kable principle. It is said by Tran that
such orders should be made because the principle of protecting
subjects from double punishment is one incident of a court’s
power to prevent abuse of its own processes.
48.
This ground is totally misconceived and devoid of merit.
29
RULING
Commissioner of the Australian Federal Police v Tran
VCC:JM/AS
49.
To begin with, what is under consideration here are the provisions
of POCA which is a Commonwealth Act not a State Act. For the
reasons set out above at para [10] – [12] this case has nothing to
do with the Kable principle.
50.
Next the relevant part of S. 134 of POCA provides:
(1)
A *proceeds of crime authority may apply for a *pecuniary
penalty order.
(2)
If the application relates to a person’s conviction of a
*serious offence, the application must be made before:
(a)
the end of the period of 9 months after the *conviction
day; or
(b)
if an *extension order is in force at the end of that
period—the end of the period of 3 months after the end
of the extended period relating to that extension order.
51.
This provision is found in Part 2–4 of POCA which deals with
Pecuniary Penalty Orders, under a Division which is headed ‘How
pecuniary orders are obtained’.
52.
It is purely a procedural provision which applies to all PPOs. It
merely deals with how and when an application for such on order
is made.
53.
The principal of double jeopardy does not allow for the striking
down of legislation. At most, as an important common law
principle it should inform the interpretation of the provisions of an
Act. If there are clear words in a statute which remove the
operation of that principle then the sovereignty of Parliament
prevails and the principle is excluded from operation of the
legislation. If that is not the case, the statute to the extent possible
must be given an interpretation which is consistent with that
principle.
54.
Because of the content and purpose of S. 134 (2) (b) there is no
scope for the operation of the principle of legality.
55.
If this provision was struck down it would mean that no PPOs
could be applied for. That would be an absurd result inconsistent
with the purpose and objects of POCA.
56.
It should be noted the constitutionality of proceeds of crime
legislation was considered in Attorney – General for the
Northern Territory v. Emmerson [2014] HCA 13.
57.
The High Court specifically considered the scheme which required
the court to declare a person to be ‘a drug trafficker’ which was the
gateway to making a confiscation order.
58.
In the course of the judgment the Court gave extensive
consideration of such legislative schemes. As it was Northern
Territory legislation it was considered under the rubric of the Kable
principle. The High Court upheld the scheme. There is nothing
inherently unconstitutional in such schemes. That is relevant to
this case.
30
RULING
Commissioner of the Australian Federal Police v Tran
59.
This ground should be dismissed.
Grounds 3 and 4 – The application for a pecuniary penalty
order should be summarily dismissed because the
Commissioner should be denied leave to amend its
application for a pecuniary penalty order AND the Court
should declare that pursuant to S 130 of the Act the
Commissioner’s application for a pecuniary penalty order us
worth nil.
60.
Tran asserts that the amount claimed by the Commissioner in the
application for a PPO was $65,000. This is incorrect. Nowhere in
the Notice of Application is any specific amount sought.
61.
The application dated 18 September 2014 provides:
‘2.
The Applicant applies for the following orders:
(a)
VCC:JM/AS
Pursuant to S 116 (1) of the Act, the Respondent
pay to the Commonwealth a pecuniary penalty,
being an amount determined by the Court under
Division 2 of Para 2 – 4 of the Act (Penalty
Amount)…’
62.
An affidavit affirmed by Emily Nicholson on 18 September 2014
was filed with the application. It mentions the value of the drugs
trafficked but does not quantify the amount of the PPO sought.
63.
A further affidavit by Colin Hicks, a forensic accountant sets out
evidence of the accounts of Tran and quantifies a sum of
$257,892.00 as being from unknown sources.
64.
That is the evidence in support of the claim, not the amount
quantified in the application.
65.
The premise on which these arguments are founded by Tran are
clearly wrong. That is sufficient to dispose of these grounds.
66.
Insofar as it is asserted in para 42 of Tran’s submissions that there
has been an amendment of the application this is also wrong also.
It is the evidence supporting the application which sets the
parameters of it.
67.
S. 137 (1) and (2) of POCA deal with amendment of the
application not the affidavits. It is illogical therefore to say as Tran
does, that a provision dealing with the application document,
which is not sought to be amended, would prevent reliance on the
affidavit.
68.
Insofar as S. 138 of the Evidence Act 2008 is concerned, Tran
asserts an ‘impropriety’ but does not rely on anything other than S.
136 of POCA.
69.
This is again plainly wrong. The reference to section 136 requiring
the serving of any affidavit in support at the same time as the
giving of notice of the application appeared in versions of POCA
prior to 20 February 2010. These versions of POCA are not the
relevant compilation of POCA for the purposes of this hearing.
31
RULING
Commissioner of the Australian Federal Police v Tran
70.
In any event, it is not said why that constitutes an impropriety and
the reasons set out in respect of the ground could not constitute a
impropriety within the meaning of S. 138 of the Evidence Act.
71.
As to Tran’s final argument that the value recoverable by the
Commission is zero that is the very question to be determined in
the application. The affidavits filed by the Commission would
refute that assertion.
72.
In any event such relief is what is sought in summary judgment
applications. This Court has no jurisdiction to make such an order
in relation to a PPO application which is not governed by the Civil
Rules of Procedure of this Court.
ORDERS SOUGHT
73.
The Commissioner seeks orders –
(a)
Dismissing this Application by Tran;
(b)
Costs.”
Determination of the issues
27
It is convenient to group some of the grounds and deal with them in the
following order:
(1)
Is the statutory time limit for filing an application as provided by
s134(2)(b) of the POCA invalid on the grounds that it breaches Chapter
III of The Constitution? – Ground 2(c).
(2)
Was the application for a PPO filed within the statutory time limit? –
Ground 2(c).
(3)
Does “Anshun” estoppel apply so as to prohibit the further prosecution of
the application for a PPO? – Ground 1.
(4)
Would making a PPO in the present case infringe the rule against double
punishment? – Grounds 2(a) and (b).
28
I now turn to answer each of the above issues:
(1)
Is the statutory time limit for filing an application as provided by
s134(2)(b) of the POCA invalid on the grounds that it breaches Chapter
III of The Constitution? – Ground 2(c)
29
The Notice issued under s78B of the Judiciary Act 1903 (Cth) identifies the
constitutional issues said to arise in the following manner:
VCC:JM/AS
32
RULING
Commissioner of the Australian Federal Police v Tran
“…
30
2.
The constitutional issue relates to the validity of section 134(2)(b)
of [the POCA] in circumstances where the section is interpreted to
allow for an application for a pecuniary penalty order being made
after the completion of plea and sentence.
3.
The issue relates to whether such a provision runs contrary to the
‘Kable Principle’, as expressed in International Finance Trust
Company Limited v New South Wales Crime Commission (2009)
240 CLR 319.”
I accept that service of the s78B Notices has been effected and that none of
the Attorneys-General seek to intervene in these proceedings.
31
Although Kable involved State legislation, the principle for which it stands
applies to Federal legislation.43
However, in the circumstances, I am not
satisfied that the principle is engaged.
32
The legislation subject to constitutional challenge in Kable v Director of Public
Prosecutions (NSW)44 was an Act passed by the NSW Parliament45 directed
at one person exclusively (Kable) that authorised a State court to order
Kable’s detention as a preventative measure. In her judgment, Gaudron J
analysed the features of the legislation and reasoned that those features were
incompatible with judicial process.
Moreover, those features undermined
confidence in the administration of justice, thereby offending Chapter III of the
Constitution.
33
It is worth remembering the features of the legislation that were found to be
incompatible with judicial process:
(1)
The legislation was directed at one person and its operation against any
other person was specifically excluded.
Accordingly, it offended the
principle of equal justice;46
43
44
45
46
See for example the judgment of McHugh J in Kable v Director of Public Prosecutions (NSW) (1997)
(Supra) at 115 – 116
Supra
Community Protection Act 1994 (NSW)
Kable v Director of Public Prosecutions (NSW) (supra) at 107; Leeth v The Commonwealth (1992)
174 CLR 455 at 502
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(2)
Kable’s liberty was deprived although he had neither been charged with,
nor convicted of, a criminal offence. His detention would be within the
same regime as those convicted of offences;47
(3)
Kable was not a party to any known civil process involving contested
legal rights and obligations despite the legislation describing those
proceedings as “civil proceedings”;48
(4)
The Court could act on evidence that may not be admissible in ordinary
legal proceedings;49 and
(5)
The proceedings contemplated by the legislation were not otherwise
known to the law.
34
Her Honour summarised the position this way:
“The proceedings which the Act contemplates are not proceedings
otherwise known to the law. And except to the extent that the Act
attempts to dress them up as legal proceedings (for example, by
referring to the applicant as ‘the defendant’, by specifying that the
proceedings are civil proceedings and by suggesting that the rules of
evidence apply), they do not in any way partake of the nature of legal
proceedings. They do not involve the resolution of a dispute between
contesting parties as to their respective legal rights and obligations. And
as already indicated, the applicant is not to be put on trial for any offence
against the criminal law. Instead, the proceedings are directed to the
making of a guess – perhaps an educated guess, but a guess
nonetheless – whether, on the balance of probabilities, [Kable] will
commit an offence of the kind specified in the definition of ‘serious act of
violence’. And, at least in some circumstances, the Act directs that that
guess be made having regard to material which would not be admissible
as evidence in legal proceedings.
…
The integrity of the courts depends on their acting in accordance with the
judicial process and, in no small measure, on the maintenance of public
confidence in that process. Particularly is that so in relation to criminal
proceedings which involve the most important of all judicial functions,
namely, the determination of the guilt or innocence of persons accused
of criminal offences. Public confidence cannot be maintained in the
courts and their criminal processes if, … the courts are required to
deprive persons of their liberty, not on the basis that they have breached
any law, but on the basis that an opinion is formed, by reference to
47
48
49
Kable v Director of Public Prosecutions (NSW) (supra) at 105
Kable v Director of Public Prosecutions (NSW) (supra) at 105 – 106
Kable v Director of Public Prosecutions (NSW) (supra) at 107
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material which may or may not be admissible in legal proceedings, that
on the balance of probabilities, they may do so.
Public confidence in the courts requires that they act consistently and
that their proceedings be conducted according to rules of general
application. That is an essential feature of the judicial process. It is that
feature which serves to distinguish between palm tree justice and equal
justice. Public confidence cannot be maintained in a judicial system
which is not predicated on equal justice.
... In truth, the proceedings contemplated by [the Act] are unique with
unique procedures and with rules which apply only to [Kable]. They are
proceedings which the Act attempts to dress up as proceedings
involving the judicial process. In so doing, the Act makes a mockery of
that process and, inevitably, weakens public confidence in it. And
because the judicial process is a defining feature of the judicial power of
the Commonwealth, the Act weakens confidence in the institutions
which comprise the judicial system brought into existence by Ch III of
the Constitution.”50
35
None of the features of the NSW Act that the Court in Kable considered
incompatible with judicial process are present in the POCA:
(i)
The POCA is not targeted at the respondent exclusively;
(ii)
The respondent has been convicted of a relevant offence, and no
question of her guilt arises. No question of deprivation of liberty arises;
(iii)
The proceedings brought for a PPO under the POCA have features
recognised as judicial processes in civil litigation, namely they involve a
dispute between identified parties, the resolution of that dispute is
defined by application of ordinary legal process (for example, application
for a PPO must be on notice, pleadings, availability of interlocutory
process, such as those involved in the present application and the
application of the principles of natural justice); and
(iv) the admissibility and use of evidence in support of a PPO is governed by
the Evidence Act 2008.
36
Mr Hume relies on International Finance Trust Company Limited v NSW
Crime Commission51 in support of his “Kable” argument. But that case does
50
51
Kable v Director of Public Prosecutions (NSW) (supra) at 106 – 108, citations omitted
Supra
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not assist the respondent. The legislation52 struck down by the High Court
there involved confiscation and forfeiture legislation cast in terms very
different to the POCA. The scheme under attack allowed for the granting of
an ex parte restraining order that might result in automatic forfeiture of assets
contrary to established principles inherent in judicial process. The restraining
order could be made even though the person whose assets were restrained
had not yet committed any crime.
37
In his judgment, French CJ considered that the legislation compelled the
Supreme Court to deny procedural fairness, thus imposing a duty upon the
court that is inherently incompatible with judicial function:
52
“[54]
Procedural fairness or natural justice lies at the heart of the judicial
function. In the federal constitutional context, it is an incident of
the judicial power exercised pursuant to Ch III of the Constitution.
It requires that a court be and appear to be impartial, and provide
each party to proceedings before it with an opportunity to be
heard, to advance its own case and to answer, by evidence and
argument, the case put against it.
According to the
circumstances, the content of the requirements of procedural
fairness may vary. When an ex parte application for interlocutory
relief is made the court, in the ordinary course, has a discretion
whether or not to hear the application without notice to the party to
be affected. In exercising that discretion it will have regard to the
legitimate interests of the moving party which have to be
protected, whether there is likely to be irrevocable damage to the
interests of the affected party if the order is made, and what
provision can be made for the affected party to be heard to have
the order discharged or varied after it has been made. In so
saying, it is not intended to suggest that an official cannot validly
be authorised by statute to bring an application ex parte to a
federal court or to a State or Territory caught capable of exercising
federal jurisdiction. [The Act in question] takes the further step of
requiring the Supreme Court to hear and determine such an
application ex parte.
[55]
To require a court, as s10 does, not only to receive an ex parte
application, but also to hear and determine it ex parte, if the
Executive so desires, is to direct the court as to the manner in
which it exercises its jurisdiction and in so doing to deprive the
court of an important characteristic of judicial power. That is the
power to ensure, so far as practicable, fairness between the
parties. … .
[56]
In my opinion the power conferred on the [Crime Commission] to
choose, in effect, whether to require the Supreme Court of New
South Wales to hear and determine an application for a restraining
Criminal Assets Recovery Act 1990 (NSW)
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order without notice to the party affected is incompatible with the
judicial function of that Court. It deprives the Court of the power to
determine whether procedural fairness, judged by reference to
practical considerations of the kind usually relevant to applications
for interlocutory freezing orders, requires that notice be given to
the party affected before an order is made. It deprives the Court
of an essential incident of the judicial function. In that way,
directing the Court as to the manner of the exercise of its
jurisdiction, it distorts the institutional integrity of the Court and
affects its capacity as a repository of federal jurisdiction.”53
38
In their joint judgment, Gummow and Bell JJ (with whom French CJ agreed),
identified the vice in the legislation this way:
39
“[97]
The Supreme Court is conscripted for a process which requires in
substance the mandatory ex parte sequestration of property upon
suspicion of wrong doing, for an indeterminate period, with no
effective curial enforcement of the duty of full disclosure on ex
parte applications. In addition the possibility of release from that
sequestration is conditioned upon proof of a negative proposition
of considerable legal and factual complexity.
[98]
Section 10 engages the Supreme Court in activity which is
repugnant in a fundamental degree to the judicial process is
understood and conducted throughout Australia.”54
The provisions of the POCA, whose validity Mr Hume challenges, are not
tainted with the same vices contained in the legislation struck down by the
High Court in International Finance Trust. In the present case, the POCA
requires that an application for a PPO be made on notice to the respondent
and that it be supported by admissible evidence. Mr Hume has not identified
any provision that denies procedural fairness to the respondent. The case
against her has been particularised, she has the right to challenge any
evidence said to support the making of a PPO and she has the right to call
any evidence to rebut the applicant’s case or advance her own.
40
In Silbert v Director of Public Prosecutions (WA),55 the High Court held that a
State Act that permitted a State court to make a PPO in respect of a deceased
accused who had not yet been convicted of a relevant serious offence,56 did
not engage the Kable principle. It had been argued that the Kable principle
53
54
55
56
(Supra) at 354 – 355
(Supra) at 366 – 367
(2004) 217 CLR 181
Crimes (Confiscation of Profits) Act 1988 (WA)
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applied because the alleged offender had died before any order could be
made against him. The legislation provided certain deeming provisions under
which the accused was deemed to have absconded, thereby permitting the
Court to grant the order. The Court retained a discretion whether to grant the
PPO.
In their joint judgment, Gleeson CJ, McHugh, Gummow, Hayne,
Callinan and Heydon JJ observed:57
“[7]
The linchpin of the applicant's contention, that relevant provisions
of the Confiscation Act are invalid, was that those provisions of the
Confiscation Act by which the deceased was to be taken to have
been convicted of a serious offence precluded the Court, asked to
make either a pecuniary penalty order or a forfeiture order, making
any, or at least any sufficient, inquiry into whether the deceased
had committed the offence in question. This preclusion was said to
invoke the principles identified in Kable v Director of Public
Prosecutions (NSW).
[8]
In the case of forfeiture orders, the short answer to the applicant's
contention is that the Confiscation Act works no such preclusion.
Section 53(2) requires that a court not make a forfeiture order in
reliance on a conviction unless it is satisfied, beyond reasonable
doubt, that the person committed the offence.
[9]
In so far as pecuniary penalty orders are concerned, s 15(1)(a)
empowers a court ‘if it considers it appropriate’ to ‘assess the
value of the benefits derived by the person against whom the
application is made as a result of the commission of the serious
offence in reliance on which the application is made or of any
other unlawful act’.
[10] It is unnecessary to explore whether this provision permits or
requires any inquiry into whether the offence was committed. The
applicant founds his argument in Kable. As was pointed out in H
A Bachrach Pty Ltd v Queensland58
‘Kable took as a starting point the principles applicable to
courts created by the Parliament under s 71 [of the
Constitution] and to the exercise by them of the judicial power
of the Commonwealth under Ch III.’
As in Bachrach, so too in this case:
‘If the law in question here had been a law of the
Commonwealth and it would not have offended those
principles, then an occasion for the application of Kable does
not arise.’
[11] Section 15(1)(a) of the Confiscation Act, if it had been a law of the
Commonwealth empowering the making of a pecuniary penalty
order by a court created under s 71 of the Constitution, would not
57
58
Citations omitted
(1998) 195 CLR 547
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have been invalid. If it permits a party to an application for
pecuniary penalty to contend that the offence in reliance on which
the application is made was not committed, the premise for the
applicant's contention, that s 15(1)(a) of the Confiscation Act is
invalid, would be wrong. That s 53(1) of the Confiscation Act
would require the determination of such an issue on the balance of
probabilities would not affect that conclusion.
[12] If, however, s 15(1) would not permit a party to an application for
pecuniary penalty to contend that the relevant offence had not
been committed, the Act would, nonetheless, be valid. On that
hypothesis, the Confiscation Act would operate in a fashion not
relevantly different from the way in which forfeiture provisions of
the Customs Act 1901 (Cth), considered in Burton v Honan,
operated. Those forfeiture provisions, which could apply even if
the goods in question were in the possession of an innocent third
party, provided that a conviction of any person for an offence
causing forfeiture of goods operated as a condemnation of the
goods. The provisions were held to be valid.
[13] The references in the Confiscation Act to a person being ‘taken to
have been convicted of a serious offence’, like the reference to a
conviction in the Customs provisions considered in Burton,
describe the circumstances in which operative provisions of the
Confiscation Act may be enlivened. There is no legislative
determination of guilt of an offence; there is no legislative
conviction of a person accused of crime. The central issue
raised by an application for pecuniary penalty order is
whether the value of benefits derived by the person against
whom the application is made (who can be, and in this case
was, a person other than the person ‘taken to have been
convicted of a serious offence’) as a result of the commission
of that offence or any other serious offence should be
assessed and, once assessed, whether that value of benefits
should form a basis for calculation under s 15(1)(b) of a
pecuniary penalty to be paid to the Crown. Nothing in the
application for an order, the assessment of benefits derived,
and the making of an order for payment of pecuniary penalty
is antithetical to Ch III.”
[emphasis added]
41
In his judgment, Kirby J summarised the Kable principle in this way:59
“[25]
59
Kable holds that Ch III of the Constitution limits the power of State
Parliaments to confer non-judicial functions or non-judicial
characteristics on State courts that are incompatible with, or
repugnant to, the core requirements of such courts as potential
recipients of federal jurisdiction, as provided for in the Constitution.
The core requirements referred to include those of the manifest
independence and impartiality of the judiciary in the discharge of
their functions. This includes independence from legislative
directions over individual judicial decisions and in the findings of
fact and law that are necessary to them.”
Citations omitted
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42
His Honour went on to explain that High Court authority establishes “that the
federal Constitution does not deny legislative power to the States to deprive
an owner of property, even without the provision of just terms”.60
43
After identifying various features of the legislation and rejecting the
submission that Kable applied, his Honour observed:
“[48]
In sum, the legislation bears numerous normal hallmarks of
judicial assessment, discretion, judgment and reconsideration. It
has judicial substance. It does not impose on judges functions
that make them effectively the agents of the other branches of
government. The suggested flaw, in the particular and limited
reference to a deemed conviction of a serious offence emerges,
upon closer inspection of the Act, to be no more than a device of
legislative drafting. The legislation, viewed as a whole, does not
require the court concerned to act in a manner inconsistent with,
or repugnant to, the exercise of judicial power within the Australian
Judicature.
…
[49]
44
… In accordance with the language of the majority in Kable, the
Act does not oblige the Supreme Court of Western Australia to act
in relation to the applicant ‘in a manner which is inconsistent with
traditional judicial process’. Nor could the proceedings against the
applicant under the Act be characterised as ‘proceedings [not]
otherwise known to the law’ or not partaking ‘of the nature of legal
proceedings’.
They do not ‘compromise the institutional
impartiality of the Supreme Court’. Nor are such proceedings
‘repugnant to judicial process’.”61
As Mr Gyorffy correctly notes, the “Kable principle” was examined by the High
Court in Attorney-General (NT) v Emmerson.62
The legislation under
consideration there was the combined effect of the Misuse of Drugs Act (NT)
and the Criminal Property Forfeiture Act (NT). If, under the first Act, a person
was declared a drug trafficker, all property subject to a restraining order was
forfeited under the second Act. In their joint judgment, French CJ, Hayne,
Crennan, Kiefel, Bell and Keane JJ described the alleged vice:
“39.
The error alleged by the appellants in the reasoning of the majority
in the Court of Appeal is expressed in the notice of appeal as:
‘holding that the statutory scheme comprised by the
inter-operation of s 36A ... and s 94 ... is invalid because the
60
61
62
At paragraph [40]
Citations omitted
Supra
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scheme enlists the Supreme Court of the Northern Territory to
give effect to executive decisions and/or legislative policy in a
manner which undermines its institutional integrity in a degree
incompatible with its role as a repository of federal
jurisdiction.’”63
45
Their Honours then re-iterated the principle for which Kable stands, explained
the rationale underpinning that principle, and then referred to subsequent
cases that demonstrated application of that principle:
“40.
The incompatibility referred to is identified in Kable, a case which
considered the involvement of a Supreme Court in a
decision-making process concerning detention. The principle for
which Kable stands is that because the Constitution establishes
an integrated court system, and contemplates the exercise of
federal jurisdiction by State Supreme Courts, State legislation
which purports to confer upon such a court a power or function
which substantially impairs the court's institutional integrity, and
which is therefore incompatible with that court’s role as a
repository of federal jurisdiction, is constitutionally invalid.
…
42.
The ad hominem legislation in Kable (the stated object of which
was ‘to protect the community’) authorised the Supreme Court of
New South Wales to order preventive detention without any
breach of the law being alleged or any adjudication of guilt. A
majority of this Court found that task incompatible with the
institutional integrity of the Supreme Court because the legislation
drew the Court into implementing what was essentially a political
decision or government policy that Mr Kable should be detained,
without the benefit of ordinary judicial process. This Court has
subsequently confirmed that Kable applies beyond its
extraordinary circumstances to the Supreme Courts of the
Territories and to all State and Territory courts as Ch III courts.
Some mention should be made of the authorities in this Court,
after Kable, which were relied upon in argument in this appeal.
…
63
44.
Since Kable, it has been stated often that a court must satisfy
minimum requirements of independence and impartiality, even
though it is not possible to make a single statement embracing all
of the defining characteristics of a court. In the context of the
arguments advanced in this appeal, it is worth repeating the
well-established proposition that independence and institutional
impartiality mark a court apart from other decision-making bodies.
A legislature which imposes a judicial function or an adjudicative
process on a court, whereby it is essentially directed or required to
implement a political decision or a government policy without
following ordinary judicial processes, deprives that court of its
defining independence and institutional impartiality.
45.
This was exemplified in International Finance Trust Co Ltd v New
(Ibid) at 424
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South Wales Crime Commission. Section 10 of the Criminal
Assets Recovery Act 1990 (NSW) required the Supreme Court of
New South Wales to hear and determine an application, made ex
parte, for a restraining order in respect of property, if a law
enforcement officer suspected that the owner of the property had
committed one of a range of crimes or that the property in
question derived from criminal activity. Members of the majority in
this Court found that s 10 conscripted the Supreme Court into a
process incompatible with, and repugnant in a fundamental
degree to, the judicial function of the Court and ordinary judicial
processes. That conclusion embraced a proposition established
in Gypsy Jokers Motorcycle Club Inc v Commissioner of Police
that legislation which purports to direct the courts as to the manner
and outcome of any exercise of jurisdiction is apt to impair,
impermissibly, the character of courts as independent and
impartial tribunals.”64
46
Their Honours held that the Kable principle was not engaged since the
legislation did not deprive the Court of the characteristics inherent in judicial
process:
“Application of Kable
56. The impugned provisions are compatible with the constitutional
requirements imposed on a Ch III court because they do not
require the Northern Territory Supreme Court to give effect to any
decision made by the Executive, here the DPP.
This is
demonstrated by the powers, and concomitant duties, conferred
on the Supreme Court, the role of the DPP, and the judicial
processes required to be undertaken to give effect to the statutory
scheme.
57. Section 36A authorises and empowers the Supreme Court to
make a declaration that a person is a drug trafficker if the
conditions attached to the power are satisfied.
It is well
established that Australian legislatures can empower courts to
make specified orders if certain conditions are satisfied, even if
satisfaction of such conditions depends on a decision, or
application, made by a member of the Executive. A statement of
McHugh J in Fardon is apt:
‘The exercise of judicial power often involves the making of
orders upon determining that a particular fact or status exists.
It does so, for example, in the cases of matrimonial causes,
bankruptcy, probate and the winding up of companies.’
58. Such provisions are not, for that reason alone, taken to trespass
on the judicial function or to be impermissibly determinative of the
outcome of an exercise of jurisdiction. In selecting the Supreme
Court as the repository of a power to determine a particular fact or
status, in the absence of any express or implicit contrary
legislative intention, it can be inferred that Parliament accepts that
the power will be exercised in accordance with standards
64
Citations omitted
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characterising ordinary judicial processes.
59. In Silbert v Director of Public Prosecutions (WA), a statutory
provision empowering a court to make forfeiture or pecuniary
penalty orders, in circumstances where a person was ‘to be taken
to have been convicted’, was upheld by this Court as valid. Faced
with the similarity between the operation of the relevant provisions
in Silbert and the operation of s 36A, senior counsel for the first
respondent acknowledged that the attack on the validity of s 36A
was occasioned, in large part, by the circumstance that not all
offences encompassed by the statutory criteria would be
commonly understood to be drug trafficking offences.
60. That attack is based on a misconception of the Supreme Court’s
powers and duties under the statutory scheme. The Supreme
Court is authorised to determine whether the statutory criteria set
out are satisfied and, if they are, the Court must make the
declaration sought. The Forfeiture Act provides the consequences
which follow from the Supreme Court’s declaration. Together,
these steps are an unremarkable example of conferring
jurisdiction on a court to determine a controversy between parties
which, when determined, will engage stated statutory
consequences.
…
62.
47
Unlike the position in Kable, the statutory scheme is not directed
ad hominem. The Supreme Court is not required to make any
order providing for the further detention of any person who is
alleged to meet the statutory criteria.”65
In the present application, the respondent argues that the Kable principle is
engaged essentially because the POCA compels a court to make a PPO if the
statutory prerequisites are satisfied.
As Emmerson shows, such a
consequence is “unremarkable”.66
48
Mr Hume argues that Kable applies because the legislation compels the Court
to inflict “double punishment”, a consequence prohibited under common law.
For reasons discussed under grounds (2)(a) and (b) below, I have found that
the making of a PPO is not necessarily the infliction of “double punishment”.
49
The provisions of the POCA do not deprive the Court of judicial process or
require it to act contrary to principles of natural justice. To use Kirby J’s words
“the legislation bears numerous hallmarks of judicial assessment, discretion,
65
66
Citations omitted
At paragraph 60
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judgment and reconsideration”:67
(1)
The POCA has universal application. Unlike Kable, its operation is not
confined to one nominated person;
(2)
The application for a PPO must be made on notice;
(3)
The application must be supported by evidence, served on the
respondent prior to the hearing;
(4)
The respondent has the right to be heard;
(5)
The respondent has the right to challenge the evidence;
(6)
The rules of practice, procedure and evidence apply;
(7)
The respondent has the right to give and call other evidence;
(8)
The applicant bears the burden of proof;
(9)
A standard of proof known to the law, the balance of probabilities,
applies;
(10) When considering the value of the benefit derived, the Court must take
account of the statutory provisions and make its assessment upon its
determination of the facts; and
(11) The quantification of the PPO is not arbitrary, it bears a direct nexus to
the benefit the offender derived from committing the offence.
50
I am not satisfied that the Kable principle is engaged. Nor am I satisfied that
the POCA requires the Court to act at the behest of the Executive without
reference to judicial process. There is no basis to find that the POCA offends
Chapter III of the Constitution.
constitutionally invalid.
67
I am not satisfied that s134(2)(b) is
Mr Hume has not explained satisfactorily how the
Silbert v Director of Public Prosecutions (WA) (supra) at paragraph [48]
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provision of a statutory time limit within which to bring an application for a
PPO engages the Kable principle or offends any provision in the Constitution.
Nor has he explained how the imposition of a statutory time limit or an
extension of that time limit is beyond the power of the Commonwealth.
51
Accordingly, this ground must fail.
(2)
Was the application for a PPO filed within the statutory time limit? –
Ground 2(c).
52
I have already set out the chronology of relevant events.
Since the
respondent successfully obtained an “Extension Order”, s134(2)(b) of the
POCA prescribed the relevant statutory period within which the applicant
could apply for a PPO:
“… if an *extension order is in force at the end of [the period of nine
months after the conviction day] - the end of the period of three months
after the end of the extended period relating to that extension order.”
53
The enlargement of time provided for in s134(2)(b) accommodates the rights
of respondents to forfeiture orders to seek an extension of time within which to
seek exclusion of property from forfeiture on the one hand, while also
ensuring that the time within which to apply for a PPO does not expire before
a determination has been made whether to exclude property from forfeiture on
the other. Section 134(2)(b) serves to strike an appropriate balance between
the rights of the parties – it ensures that neither party is prejudiced in the
event of a respondent successfully seeking an extension order.
54
In the present case, the respondent successfully applied for an exclusion
order. By virtue of her adjournment applications, an Extension Order was
made. The application for a PPO was made before the expiration of the
period referred to in this subsection.
55
Moreover, the respondent has conceded that the application was brought
within time,68 and that if the constitutional validity of s134(2)(b) is upheld, this
68
T35
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ground must be dismissed.69
56
I am satisfied that the application for a PPO was filed within time.
Accordingly, this ground must also be dismissed.
(3)
Does “Anshun” estoppel apply so as to prohibit the further prosecution
of the application for a PPO? – Ground 1
57
Under cover of this ground, Mr Hume submits, in effect, that the applicant has
fragmented the trial process and is now seeking to re-agitate issues that could
and should have been litigated and disposed of in earlier proceedings.
58
He invokes the reasoning in “Port of Melbourne Authority v Anshun Pty Ltd”,70
arguing that issues to be raised in the PPO proceedings were the same as, or
similar to, those raised and decided in the sentencing hearing and/or in the
forfeiture proceedings. Further, he submits that if permitted to re-agitate these
issues, it is possible that inconsistent findings of fact may be made, and that
this will bring the administration of justice into disrepute.
59
Anshun estoppel was recently considered by the Court of Appeal in Slaveska
v State of Victoria:71
“[194] The test for the application of an Anshun estoppel is one of
reasonableness. A party cannot raise an issue in subsequent
proceedings in circumstances where that issue was so relevant to
the first proceeding that it was unreasonable not to have raised it
there. In Gibbs v Kinna, Kenny JA held that the question
‘[w]hether or not it is unreasonable for a party asserting a cause of
action in a later proceeding not to have done so in an earlier
proceeding depends almost entirely on the particular
circumstances’. However, her Honour considered that ‘there are
two matters which must first be established before it can be said
that the failure to raise a cause of action earlier might be said to
have been unreasonable’. First, the cause of action must be one
that could have been raised in the previous proceeding. Secondly,
it must appear that the same or substantially the same facts will
arise for consideration in the second as in the first proceeding.”72
60
Turning first to consider whether any Anshun estoppel arises from the plea
and sentence, I note that although it was possible to have invited the
69
70
71
72
T35
Supra
[2015] VSCA 140
Per Warren CJ, Tate JA and Ginnane AJA – citations omitted
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sentencing judge to entertain an application for a PPO,73 no such application
was made. However, it could not be said that the same facts or issues arose
in the sentencing hearing.
At the sentencing hearing, the Court was
concerned with imposing a sentence of a severity appropriate in all the
circumstances of the offence.74
As discussed below, his Honour was
prohibited, as a matter of law, from taking account of a relevant PPO as a
mitigating factor. The issue could not have arisen, in the Anshun sense, as
part of the plea and sentence, because s320(d) of the POCA, expressed in
mandatory terms, applied:
“320
A court passing sentence on a person in respect of the person’s
conviction of an *indictable offence:
…
(d)
61
must not have regard to any *pecuniary penalty order … that
relates to the offence.”
Moreover, Mr Hume has not referred to any authority that supports the
creation of any civil Anshun estoppel arising from the criminal proceedings
against the respondent.
62
In any event, Mr Hume has not explained satisfactorily how, if the application
for a PPO was not before his Honour Judge Allen, the subsequent hearing of
such an application would traverse issues that either were, or should have
been previously determined. I note that there is no mention of any potential
forfeiture or PPO proceedings in his Honour’s sentencing remarks,75 although
the prosecution statement of facts, referred to as exhibit A in his Reasons for
Sentence, was not tendered before me.
63
Turning to whether any Anshun estoppel applies because of the previous
proceedings under POCA, I note that at the time of the hearing before his
73
74
75
Section 117(2) of the POCA
Section 16A Crimes Act 1914 (Cth) – and see discussion under next ground regarding matters the
sentencing judge was obliged to consider and those he was prohibited from taking into account when
determining sentence.
The Reasons for Sentence are attached to exhibit 2, the Affidavit of Emily Nicholson dated 18
September 2014 as “EN-02”
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Honour Judge O’Neill for forfeiture and exclusion from forfeiture orders (17
and 18 November 2014), both parties were aware of the pending application
for a PPO, it having been issued and served two months earlier. Neither party
sought to have the cases heard together. But that is beside the point. The
simple answer to Mr Hume’s argument is that the legislation allows for a PPO
to be made notwithstanding that a confiscation order (for these purposes a
forfeiture order)76 might already have been made.77 Section 134 of the POCA
provides:
“134 (1) A *proceeds of crime authority may apply for a *pecuniary
penalty order.
…
(5) An application may be made for a *pecuniary penalty order
in relation to an offence even if:
64
(a)
a *forfeiture order in relation to the offence, or an
application for such a forfeiture order, has been
made; or
(b)
Part 2-3 (forfeiture on conviction of a serious offence)
applies to the offence.”
Further, s116, the same section that confers power on the Court to make a
PPO, provides:
“(4)
65
The court’s power to make a pecuniary penalty order in relation to
an offence is not affected by the existence of another *confiscation
order78 in relation to that offence.”
The POCA also envisages the possibility of multiple applications for PPOs (if
the Court’s leave is granted), although the statute limits the circumstances in
which such applications may proceed.79
66
Mr Hume has not suggested that any one of these provisions is ambiguous.
Nor has he explained how Anshun estoppel can override the clear words of
the statute.
76
77
78
79
Section 338 defines a confiscation order as a forfeiture order, a pecuniary penalty order, a literary
proceeds order or an unexplained wealth order.
Section 134(5)
See above footnote for definition of “*confiscation order”.
Section 135 of the POCA
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67
I refer to Director of Public Prosecutions (Vic) v Ali,80 a case involving the
Confiscation Act 1997 (Vic). That case concerned restraining orders under
the State scheme. The relevant restraining order had lapsed, and the Director
of Public Prosecutions sought further orders in respect of the same property
previously restrained. At first instance, the trial judge refused the orders on
three grounds, two of which are echoed in the arguments made by Mr Hume.
The two relevant grounds were:
(a)
The statute permitted the making of one only restraining order in respect
of the same property; and
(b)
As the Act interferes with common law property rights, the relevant
section must be construed strictly.81
68
On appeal, the trial judge’s order refusing the further restraining orders was
overturned. In their joint judgment, Maxwell P, Weinberg JA and Kyrou AJA
noted the legislative purpose of the Act:
“[36]
69
And, later, their Honours observed:
“[39]
70
80
81
82
It can thus be seen that, consistently with the stated purposes of
the Act, s 16(2) quite deliberately creates a multiplicity of options
for the DPP’s restraining order application. The evident legislative
intent was to maximise the opportunities for the DPP to seek a
restraining order in respect of particular property, provided always
that the DPP could demonstrate a sufficient link between the
property and a Schedule 2 offence.”
This interpretation of s 16(2) arises from a plain reading of the
provision. It does not require reading in words that are not there,
or ignoring any words that are there. Nor does it rely on any
inferences being drawn from the order in which the paragraphs
appear. His Honour’s construction could have been sustained if
s 16(2)(a) had commenced with the words ‘where no charges
have been laid and’ or if s 16(2) had contained a statement to the
effect a paragraph was applicable only if a later paragraph did not
apply. But such qualifications do not appear in s 16(2), and there
is no warrant for reading them in.”82
On the question of whether multiple applications could be made, their
[2009] VSCA 162
At paragraph [5]
Footnotes omitted
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Honours stated:
71
“[47]
With respect, we can discern nothing in the language of the Act or
in its stated purposes that would justify, let alone require,
construing s 16(2) as permitting only a single ‘once and for all’
application for a restraining order in relation to property. As has
often been said, it is a strong thing to read words into a statute
and in the absence of clear necessity, it should not be done.83
[48]
For reasons given earlier, the scheme of the Act and the language
of s 16(2)(a) convey, unambiguously, Parliament’s intention to
maximise the opportunities for the DPP to obtain (subject to
proper proof of the qualifying circumstances) a restraining order
over property as a precondition of forfeiture. In the circumstances,
there can be no warrant for reading into s 16(2)(a) words of
limitation which Parliament itself has not included. To do so would
be to subvert the scheme which Parliament has enacted.”
And, regarding strict interpretation of the Act, their Honours noted that before
any question of statutory construction arises, ambiguity in the meaning of the
statute must first be identified:
72
“[55]
We have already concluded, for reasons set out earlier, that there
is no ambiguity in the language of s 16 of the Act. It follows that
there is no room for the application of principles dealing with strict
interpretation of ambiguous legislative provisions dealing with
forfeiture of property.84 Likewise, the plain and unambiguous
meaning of the provisions leaves no room for the operation of the
presumption against legislative interference with vested property
rights.85
[56]
Plainly enough, the Act does interfere with property rights, and
modifies many common law protections.
Equally clearly,
Parliament has done this deliberately. It has enacted a statute
which contains its own procedures and protections. The fact that
these procedures and protections are not as fair or comprehensive
as those under common law does not mean that the courts are at
liberty to modify them so that they accord with traditional values.”
In the circumstances, this ground must fail.
The POCA permits multiple
applications to be brought as described above. Legislative intent is clear in
this regard,86 and Mr Hume does not submit otherwise. Absent ambiguity in
the meaning of any of these provisions, there is no room to read in that
83
84
85
86
French v Queensland Premier Mines Pty Ltd [2006] VSCA 287 at paragraph [32]
Murphy v Farmer (1988) 165 CLR 19 at 27 – 29; Director of Public Prosecutions v Logan Park
Investments Pty Ltd (1995) 37 NSWLR 118 at 125 – 127, 130; Jeffrey v Director of Public
Prosecutions (1995) 121 FLR 16 at 19; (1995) 79 A Crim R 514 at 517 – 518
Clissold v Perry (Minister for Public Instruction) (1904) 1 CLR 363 at 373; R & R Fazzolari Pty Ltd v
Parramatta City Council (2009) 237 CLR 603 at paragraphs [42] – [43]
Further discussion of the objects of the POCA are discussed below
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Anshun estoppel applies. To do so would subvert the statutory scheme.
(4)
Would making a PPO in the present case infringe the rule against double
punishment? – Grounds 2(a) and (b)
73
Mr Hume submits that because the respondent has been sentenced in
respect of the crime to which she pleaded guilty, any further sanction arising
from conviction would constitute unjustified “double punishment”.
A brief
analysis of what is meant by “double punishment” in the criminal law will show
that no element of “double punishment” arises.
74
Section 4C of the Crimes Act 1914 (Cth) provides:
“(1)
Where an act or omission constitutes an offence:
(a) under 2 or more laws of the Commonwealth; or
(b) both under a law of the Commonwealth and at common
law;
the offender shall, unless the contrary intention appears, be liable
to be prosecuted and punished under either or any of those laws
of the Commonwealth or at common law, but shall not be liable to
be punished twice for the same act or omission.”87
75
This section protects a person from double punishment if that person stands
charged of multiple offences in respect of the same transaction, yet allows for
it “if the contrary intention appears”.
76
Section 4C of the Crimes Act represents the embodiment of a similar principle
at common law.88
77
Here, the respondent pleaded guilty to a single offence and was sentenced in
respect of that offence. Neither party appealed.
78
The respondent does not stand charged of any other offence in respect of the
transaction(s) that formed the basis of the charge on Indictment. Accordingly,
neither the statutory nor the common law principle is engaged.
79
87
88
Although an application for a PPO arises from a criminal proceeding, it is not a
A similar provision is contained in the Interpretation of Legislation Act 1984 (Vic), s51
Pearce v R (supra)
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criminal proceeding and involves no imposition of criminal sanction.89
80
At the time of sentence, the respondent was not in jeopardy of a PPO being
made against her, and no “double jeopardy” point can be maintained either.
81
When sentencing the respondent, his Honour Judge Allen was obliged to
apply s16A of the Crimes Act. Subsection (1) provides:
“In determining the sentence to be passed the court must impose a
sentence or make an order that is of a severity appropriate in all the
circumstances of the offence(s).”
82
Subsection (2) then sets a non-exhaustive list of factors that the Court must
take into account as are relevant and known to the Court. However, s320 of
the POCA also applied. That section provided:
“320
Effect of the confiscation scheme on sentencing
A court passing sentence on a person in respect of the person’s
conviction of an *indictable offence:
83
(a)
May have regard to any coorporation by the person in
resolving any action taken against the person under this Act;
and
(b)
must not have regard to any *forfeiture order that relates to
the offence, to the extent that the order forfeits *proceeds of
the offence; and
(c)
must have regard to the forfeiture order to the extent that the
order forfeits any other property; and
(d)
must not have regard to any *pecuniary penalty order, or any
*literary proceeds order, that relates to the offence.”90
At the time of sentence, neither a forfeiture order nor a PPO were made,
although the respondent was aware that at the very least, forfeiture was
sought, the restraining order having been made under s17 of the POCA more
than two years earlier.
84
Under cover of this ground, Mr Hume argued that had an application for a
PPO been made at the time of sentence, the sentencing judge would have
89
90
See Director of Public Prosecutions (Cth) v Gay [2015] TASSC 15 at paragraph [71]
Items designated with “*” in the POCA indicate that the term is defined in the dictionary contained in
s338
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taken it into account in mitigation of penalty.
Further, he submitted that
because the application for the PPO was not made at that time, the
respondent has lost the benefit of a powerful mitigating factor. The simple
answer to this submission is that even if a PPO was made at the time of
sentence,91 because of s320 of the POCA, as a matter of law, it could not
have counted as a factor in mitigation of penalty. Accordingly, the respondent
has not been prejudiced by delay.
85
The respondent gave no evidence before me, and I have no explanation of
the course that the respondent would have taken had the applications under
the POCA been made before the sentencing judge. Be that as it may, the
potential loss of this factor as a mitigating factor does not serve to invalidate
the provisions of Part 2-4 of the POCA. A harsh outcome is not necessarily
an unlawful one.92
86
Apart from the constitutional ground previously raised in respect of s134(2)(b),
Mr Hume has not otherwise argued that Chapter 2, Part 2-4 of the POCA, or
any provision contained within it, is beyond the power of the Commonwealth.
87
In my view, the problem with Mr Hume’s argument is that it omits a vital step
in its development. First, Mr Hume assumed that to deprive a person who has
been sentenced in respect of a crime of the benefit derived from that crime
constitutes “double punishment”. Then, he jumped to common law principles
that he said protected an offender against such “double punishment”.
However, if Part 2-4 of the POCA is valid, and I am satisfied that it is, then a
discussion about implied common law rights cannot be entertained unless
there is ambiguity in the meaning of the relevant provision(s). It seemed to
me that much of Mr Hume’s argument focussed on the “principle of legality”,
while none of it focussed on any words of any provision said to give rise to
91
92
See s117 of the POCA – in certain circumstances, a PPO may be made at the time of passing
sentence
Director of Public Prosecutions (Cth) v Gay (supra) at paragraph [88], per Estcourt J, when ruling on
various provisions of the POCA
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more than one interpretation.
88
The “principle of legality” applies only where there is ambiguity in the
interpretation of a statute. And, as I stated, Mr Hume has not pointed to any
particular provision in which any ambiguity is said to reside, let alone
elaborate on the competing interpretations available.
Rather, his main
complaint seems to be that he considers the legislation harsh on or unfair to
his client.
89
As just mentioned, if no ambiguity is present in an otherwise valid, albeit harsh
statutory provision, the principle of legality is not engaged. As was observed
by French CJ in Momcilovic v R:93
“[43]
The principle of legality has been applied on many occasions by
this Court. It is expressed as a presumption that Parliament does
not intend to interfere with common law rights and freedoms
except by clear and unequivocal language for which Parliament
may be accountable to the electorate. It requires that statutes be
construed, where constructional choices are open, to avoid or
minimise their encroachment upon rights and freedoms at
common law. The range of rights and freedoms covered by the
principle has frequently been qualified by the adjective
‘fundamental’. There are difficulties with that designation. It might
be better to discard it altogether in this context. The principle of
legality, after all, does not constrain legislative power.
Nevertheless, the principle is a powerful one. It protects, within
constitutional limits, commonly accepted ‘rights’ and ‘freedoms’. It
applies to the rules of procedural fairness in the exercise of
statutory powers. It applies to statutes affecting courts in relation
to such matters as procedural fairness and the open court
principle, albeit its application in such cases may be subsumed in
statutory rules of interpretation which require that, where
necessary, a statutory provision be read down so as to bring it
within the limits of constitutional power. It has also been
suggested that it may be linked to a presumption of consistency
between statute law and international law and obligations.”94
(emphasis added)
90
Similarly, as was earlier observed by Allsop P in New South Wales Crimes
Commission v Kelaita,95 a case involving confiscation orders, forfeiture orders
and proceeds assessments orders under the Criminal Assets Recovery Act
93
94
95
(2011) 245 CLR 1 at [43]
Citations omitted
(2008) 75 NSWLR 564
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1990 (NSW):
91
“[57]
From the above provisions, it can be seen that all States, other
than New South Wales, have made some provision in relation to
possible double counting. Under the Commonwealth provision the
property must relate to the offence to which the order relates. The
Victorian provision is in relation to an offence. The Queensland
provision gives a power to the Court. The South Australian Act
requires a relationship between the forfeiture and the proceeds of
a particular offence.
[58]
The provision by each of the States and Commonwealth reflects
the underlying proposition in the reasons above that the matter is
one for the express attention of Parliament. It was, and remains,
open to the Parliament of New South Wales to legislate in relation
to this issue. It is not a matter, in my view, legitimately within the
province of interpretation and construction of the statute.
[59]
To the extent that the operation of the Act is or remains unfair that
is a matter for Parliament to remedy.”96
Mr Hume argues that a PPO carries an element of punishment, even if it is not
punishment under the criminal law. However, the statute seeks to fulfil at
least one stated object:
“5
Principal objects
The principal objects of this Act are:
(a)
92
To deprive persons of the *proceeds of offences, the
*instruments of offences, and *benefits derived from
offences, against the laws of the Commonwealth … .”
The PPO provisions of the POCA were recently considered in Director of
Public Prosecutions (Cth) v Gay.97 Estcourt J referred to the Second Reading
Speech for the Proceeds of Crime Bill 2002 on 13 March 2002 in the House of
Representatives, where –
‘[71]
… the Attorney-General said, amongst other things:
‘The need for strong and effective laws for the confiscation of
proceeds of crime is self-evident. The purpose of such laws is
to discourage and deter crime by reducing profits; to prevent
crime by diminishing the capacity of offenders to finance future
criminal activities and to remedy the unjust enrichment of
criminals who profit at society's expense ... The provisions are
all about accounting for unlawful enrichment in civil
proceedings, not the imposition of criminal sanctions. The
96
97
Giles and Bell JJA agreeing at paragraphs [62] and [63]
Supra
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object or focus of the proceeding is the recovery of assets and
profits, not putting people in jail.’”98
(emphasis added)
93
Estcourt J ultimately concluded:
“[88]
94
I readily accept that the objects of the Act are to punish and deter
and to deprive persons of the proceeds of offences. Equally I
accept that it has been frequently observed that the Act and its
predecessor the Proceeds of Crime Act 1987 are deliberately
draconian. Obviously it is no aid to construction therefore to
observe that the outcome of the requirement that the expenses or
outgoings a person incurs in relation to an illegal activity are to be
ignored may be harsh.”
Mr Hume has not explained how, at common law, or as a matter of public
policy, an offender is or should be entitled to retain the proceeds of their
crime,99 or the benefits derived therefrom.
95
The terms of the PPO sought in this case ask the Court to do no more than
translate into a dollar value the benefit that the respondent derived from the
commission of the offence and order her to pay it. The applicable provisions
ensure that there is no “double counting”,100 and the value of any property
subject to a forfeiture order (if referrable to the benefit derived from the
offence) is deducted.101
96
The manner in which PPOs are to be determined is governed, principally, by
s121 – s132 of the POCA. It may well be that if there is any ambiguity in the
interpretation of any of these provisions at trial,102 I will be called upon to apply
the principle of legality, but that is no reason to find, at this interlocutory stage
of the proceedings, that any rule against “double punishment” has been
98
99
100
101
102
At paragraph [71]
To the contrary, at common law, an offender could not benefit from the commission of certain crimes
“ex turpi causa non oritur actio”. See also the history of confiscation/forfeiture law as explained by the
High Court in Attorney-General (NT) v Emmerson (supra) at paragraphs [15] – [21]. See also Helton v
Allen (1940) 63 CLR 691 at 709 – 710
Section 132 of the POCA
Section 130 of the POCA
As was done in both Director of Public Prosecutions (Cth) v Gay (supra); in Commissioner of the
Australian Federal Police v Fysh (2013) 224 A Crim R 523 (the conviction of the offender was
subsequently quashed) and in Director of Public Prosecutions (WA) v Mansfield [2006] WASC 246.
See also Studman v Director of Public Prosecutions (Cth) (2007) 177 A Crim R 34 at paragraph [34],
where the principle of legality although not described as such was held to apply.
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infringed. There is no evidence before me to say that the respondent has
already faced PPO proceedings, that she will be denied the benefits of
reduction of any PPO contrary to the statutory scheme, or that she has been
or will be prejudiced in her defence of the application.
97
I should refer to Mr Hume’s argument that Gray v Motor Accident
Commission103 is “unambiguous authority that a later civil punishment
engages the principles relevant to double punishment”.104 In that case, in
which exemplary damages were sought, the original defendant had been
convicted and sentenced in respect of the conduct the subject matter of the
civil proceedings.
Mr Hume relies on paragraph [46] of the High Court’s
judgment:
“[46]
98
… At first sight, however, if criminal charges, alleging the same
conduct as is alleged in a civil proceeding, have been brought and
proved, it would be a most unusual case in which it was open to a
civil court to conclude that the outcome of those criminal
proceedings did not take sufficient account of the need to punish
the offender and deter others from like conduct. There seems to
be much to be said in favour of the views reached by a majority of
the Court of Appeal of New Zealand in Daniels v Thompson that
for a civil court to revisit a sentence imposed in a criminal court for
the purpose of deciding whether the criminal received his or her
just deserts is ‘contrary to principle’ and must ‘undermine the
criminal process’.”105
It is of no assistance to liken the award of exemplary damages to the grant of
a PPO. As the High Court observed in Gray, exemplary damages, which are
awarded only in the most exceptional cases, are not designed to compensate
the plaintiff.
That is the purpose of compensatory damages – pain and
suffering and pecuniary loss damages. The purpose of exemplary damages
is to punish the wrongdoer and deter others from like conduct, but they are not
exacted by or paid to the State.106
99
103
104
105
106
In determining whether to award exemplary damages, the Court must take
(1998) 196 CLR 1
Respondent’s submissions at paragraph [21]
Footnotes and citations omitted
Gray (ibid) at paragraphs [15] and [31]
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account of whether their purpose has already been served. In Gray, because
the wrongdoer had been convicted and sentenced for his conduct, no relevant
purpose could be served by an award of exemplary damages.
Further
punishment by way of an award of such damages would, in effect, constitute
double punishment:
100
“[40]
Where, as here, the criminal law has been brought to bear upon
the wrongdoer and substantial punishment inflicted, we consider
that exemplary damages may not be awarded. We say ‘may not’
because we consider that the infliction of substantial punishment
for what is substantially the same conduct as the conduct which is
the subject of the civil proceeding is a bar to the award; the
decision is not one that is reached as a matter of discretion
dependent upon the facts and circumstances in each particular
case.
[41]
There are at least two reasons in principle why that is so.
[42]
First, the purposes for the awarding of exemplary damages have
been wholly met if substantial punishment is exacted by the
criminal law. The offender is punished; others are deterred. There
is, then, no occasion for their award.
[43]
Secondly, considerations of double punishment would otherwise
arise. In R v Hoar, Gibbs CJ, Mason, Aickin and Brennan JJ said
that there is ‘a practice, if not a rule of law, that a person should
not be twice punished for what is substantially the same act’. That
practice or rule would be breached by an award of exemplary
damages in the circumstances described.”107
No claim for exemplary damages is sought against the respondent. It is no
part of the application for a PPO. The moral turpitude of the offender has
nothing to with a PPO. Unlike the assessment of an award for exemplary
damages, the quantification of a PPO is reckoned by reference to the benefit
derived from the offence in accordance with the method prescribed by statute.
101
If an award of exemplary damages has been made against the respondent, it
is a factor that can be accounted for in the PPO. Section 132 of POCA
provides:
“The court may, if it considers it appropriate to do so, reduce the *penalty
amount under a *pecuniary penalty order against a person by an amount
equal to the amount payable by the person by way of fine, restitution,
compensation or damages in relation to an offence to which the order
relates.”
107
Footnotes and citations omitted
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102
If, at trial there is evidence that the respondent has been fined, ordered to pay
restitution, compensation or damages, then these matters will no doubt be
raised. But there is no such evidence before me.
103
The relief sought in this interlocutory application can only be granted if there is
sufficient evidence before me to find that the applicant’s case is utterly
hopeless and foredoomed to fail. At this stage, it is premature to hold that the
respondent is in jeopardy of “double punishment” until all the evidence is in. It
is only then that an assessment can be made of the dollar value of the benefit
derived by the respondent from the offence, the value of any amounts to be
deducted (for example from the forfeiture order, or from any fines or award of
damages108) or the value of other deductions permitted under the statutory
scheme.
But at the present time, a serious issue is yet to be tried, the
evidence is not yet before the Court and it is not possible to say whether the
application is utterly hopeless and foredoomed to fail.
104
Similarly, at this stage, in respect of this ground, it is not open to find that the
PPO proceedings constitute any abuse of the Court’s process.
105
For these reasons, I find there is no substance to this ground.
Other points raised by Mr Hume
The respondent will be prejudiced because she is unable to deduct
“expenses” from the benefit derived
106
When asked what expenses the respondent would seek to claim, Mr Hume
had no answer, other than to say he would need to seek instructions. Absent
evidence about the alleged expenses that the respondent might claim, it is
difficult to see how the theoretical possibility of prejudice equates to actual
prejudice.
107
Even if the respondent incurred expenses in order to derive a benefit from the
commission of her crime, her inability to claim them does not mean the law is
108
Section 132 of the POCA
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invalid or that some other unspecified common law principle is in play.
108
I note that the provisions of the POCA set out a statutory regime and method
of calculating the benefit derived. No challenge has been made to the validity
of that regime, and Mr Hume has not yet asserted any ambiguity in its
meaning.
His Honour Judge O’Neill made adverse findings about the respondent’s
credit
109
Mr Hume is concerned that because one judge has found the respondent was
not creditworthy, I will be compelled to reach the same conclusion.
110
As I pointed out in discussion with counsel, I will reach my own conclusions
about the respondent’s credit based on all of the evidence that will be
presented before me. It is to be noted that in the exclusion proceedings
before Judge O’Neill, the respondent (as applicant for exclusion) bore the
onus of proof.
She did not discharge that burden in those proceedings.
However, in the proceedings before me, the applicant will carry the overall
burden of proof.
111
The elements of the two proceedings – exclusion from forfeiture and PPO –
are quite distinct. Although there may be some overlap in the evidence, the
principal issue in the PPO hearing, as I apprehend it, will be quantification of
the respondent’s benefit derived from the commission of the offence. The
principal issue in the exclusion application, on the other hand, was described
by his Honour Judge O’Neill:
“[54]
The parties have accepted the real issue in this application is
whether [Tran’s] interest in the property is not the proceeds of
unlawful activity and further, that [Tran’s] interest was lawfully
acquired.”
These proceedings constitute an abuse of process
112
Mr Hume submits that I should permanently stay the proceedings on the
grounds that they constitute an abuse of process. There is no basis to do so.
It is a drastic step “to prevent a litigant from ever prosecuting a particular claim
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... especially when that party is a public authority acting in the public
interest”.109 Such an order can be made only in exceptional circumstances,
and only where there is no other appropriate remedy to overcome prejudice.
113
This is not a case that brings the administration of justice into disrepute or that
undermines confidence in the administration of justice. Having rejected the
grounds argued by Mr Hume, there is no other basis to call a halt to these
proceedings in which no technical, or other flaw has been identified.
Conclusions
114
None of the grounds advanced by Mr Hume in support of striking down
s134(2)(b) as constitutionally invalid are made out.
115
None of the grounds in support of summary dismissal or a permanent stay are
established.
Orders
116
The application for summary judgment is dismissed.
117
The application for a permanent stay is dismissed.
118
I will hear the parties on the question of costs.
---
109
Australian Securities and Investments Commission (ASIC) v Lindberg (No 2) (2010) 26 VR 355
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