|
|
Home
| Databases
| WorldLII
| Search
| Feedback
High Court of Australia Transcripts |
Last Updated: 4 March 2011
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Perth No P44 of 2010
B e t w e e n -
GARY ERNEST WHITE
Appellant
and
THE DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Respondent
FRENCH CJ
GUMMOW J
HEYDON J
CRENNAN
J
BELL J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON FRIDAY, 4 MARCH 2011, AT 10.02 AM
Copyright in the High Court of Australia
MR S.A. SHIRREFS, SC: If the Court pleases, I appear with my learned junior, MS H.J.E. VAN DEN HEUVEL, on behalf of the appellant. (instructed by Holborn Lenhoff Massey)
MR B. FIANNACA, SC: May it please the Court, I appear with my learned friend, MR I.S. JONES, on behalf of the respondent. (instructed by Director of Public Prosecutions for Western Australia)
FRENCH CJ: Yes, Mr Shirrefs.
MR SHIRREFS: If the Court pleases. I am informed I am breaking with convention. I should be wearing a wig because we are both from Victoria, but we can proceed otherwise. Does the Court have available to it the outline?
FRENCH CJ: Yes, thank you.
MR SHIRREFS: I note that we have not in all instances linked it to the written submissions but in due course I will try and take the Court to the relevant passages in the submissions, or at least link it up to the submissions. The first area of debate, your Honours, is concerned with section 146(1)(a) of the Criminal Property Confiscation Act and this relates to grounds 2(a), (b) and (c) in the notice of appeal.
GUMMOW J: Section 146?
FRENCH CJ: Yes.
MR SHIRREFS: The notice of appeal is at page 311 of the appeal book. Our contention, your Honour, is that the findings of the court below on the application of that subsection were flawed in two respects, both as to the factual basis upon which the provision was considered and also with respect to the construction of that subsection. As to the factual findings made by the court, the factual premise that the court relied upon to engage the section is set out there in paragraph 2 of our outline.
FRENCH CJ: Sorry, you had a finding adverse to you also with respect to 146(1)(c), did you not?
MR SHIRREFS: Yes.
FRENCH CJ: If you lose on 147, you are still stuck with that, are you not?
MR SHIRREFS: We are. There is no doubt about that. The decision - - -
CRENNAN J: You do not challenge the finding on (c), do you?
MR SHIRREFS: Section 146(1)(c) we cannot challenge the finding on, because 146(1)(c) would encompass, in its language, every criminal offence because every criminal offence involves an act and an act occurs on property, unless it is occurring in the air, or unless it is occurring - - -
FRENCH CJ: Why are we concerned about the paragraph (a) issue, apart from the extent to which it feeds into 147?
MR SHIRREFS: To that extent, if we can go to 147 first. If 147 encapsulates all of the crime-used activities described in section 146 - - -
FRENCH CJ: That is what the Court of Appeal found against you.
MR SHIRREFS: They did, yes. But they found that as a secondary consideration, having first upheld the appeal in the court below, that 146(1)(a) was engaged, because there is no doubt if 146(1)(a) is engaged, it was engaged by the appellant, and therefore 147 would follow. That is why I have started with 146(1)(a), but I am content to go with 147 if that is convenient to the Court. Section 147 is a very simple argument in relation to statutory construction. Your Honours are correct, we do not argue that 146(1)(c) did not apply. On the language of it, as I submitted before, it would engage almost every criminal conduct, in which it reads:
any act or omission . . . done, omitted to be done or facilitated in or on the property in connection with the commission of a confiscation offence –
would then be crime-used property, even if it was not used by the person or if the act was done, and then if 147 extends to all of the activities encompassed in 146(1)(a), (b) and (c) and also 146(3), then we lose. The argument in relation to 147, given your Honour’s query, is dealt with commencing at page 13 of the outline.
“Criminal use”, which is the expression in 147, is separately defined from “crime-used”. They are separate concepts. That is made clear both by the glossary to the Act, which gives them separate defined meanings, and the language of both sections 146 and 147 which, when one goes to the glossary, then takes one to those respective sections for those two separately defined terms.
CRENNAN J: Section 146 deals with property and 147 deals with persons - - -
MR SHIRREFS: It does.
CRENNAN J: - - - making criminal use of property.
MR SHIRREFS: That is the difference.
FRENCH CJ: The importance of that is that in a substitution order you are going for the property of a person.
MR SHIRREFS: That is right. That is what we seek to make in our written outline, in our submissions. Our submission is that the language in 147 is unambiguous. As a consequence, recourse to extrinsic material is unnecessary and, indeed, impermissible and that the language of 147 mirrors the language of 146(1)(a) and (b), which is concerned with use of property, as opposed to 146(1)(c), which is merely concerned with an act, or 146(3), which does not arise on this appeal – it did in the Bowers matter – which is simply concerned with the fact that it involves an offence under the sexual offence provisions of the Code.
The language of 147 mirroring 146(1)(a) and (b), in our submission, demonstrates that it does not mirror and encompass 146(1)(c), thereby avoiding a declaration against a person under section 22, concerned with property substitution, as a result of an unintentional act or omission. Section 147 in our contention is a limiting provision concerned with the purpose of intent of the person with respect to the property and that is expanded upon in our written outline at paragraphs 62 and 63 and paragraph 73. The conclusion of - - -
CRENNAN J: I suppose it might be said there is overlap between (a), (b) and (c).
MR SHIRREFS: There is.
CRENNAN J: It might be said that therefore an act done on property is a use of property.
MR SHIRREFS: Well that comes back to what is meant by “use” and it is a question of whether the person uses the property in connection with the commission of the offence as opposed to (1)(c) which is really concerned with an act and we - - -
CRENNAN J: There is, of course, a noun involved, is there not, in the sense that you can speak of a use of a property – speak of use and occupation of property for argument’s sake.
MR SHIRREFS: Yes, 147 is concerned with “uses”. A “criminal use” of the property.
CRENNAN J: I suppose “uses or intends to use” – nothing may turn on this, but the second “use” there may be – no, I withdraw that.
MR SHIRREFS: It is “uses or intends to use” and it mirrors the language, in our submission, of (a) and (b). That is why we submit that it is unambiguous in terms of its intention. It links up (a) and (b) in its concern with the use of “persons” with respect to activities that brought the property within 146. In the language of the section, it does so with respect only to (a) and (b), we submit, not (c), which is not concerned with how a person uses property. It is concerned merely with an act that occurred on property. There is a difference between - - -
FRENCH CJ: If the other construction, the adverse construction, is correct, 147 would read:
For the purposes of this Act, a person makes criminal use of property if the person, alone or with anyone else –
et cetera, does an act or omission “in or on the property in connection with the commission of a confiscation offence”.
MR SHIRREFS: Yes.
FRENCH CJ: I am not quite sure how “facilitated” fits in there.
MR SHIRREFS: Nor do I, but it is there and I suppose it has to be given some meaning. That is how it would otherwise read, your Honour, and we say that is very contrary to the language that is adopted in 147. The two bases upon which the court below expanded 147 to encapsulate all the activities in 146 was, firstly, by reference to what it said – this is in paragraph 15 of our outline – is the primary defined term, “crime-used” – what is said in appeal book page 301 at line 47. The court below said:
the primary defined term is ‘crime-used’ and it is significant that it incorporates the term ‘used’ to encompass all the activities listed in s 146(1) and (3). That indicates –
a legislative intent –
all those activities are intended to be uses for the purposes of s 147 of the Act.
Our submission for that is that that simply does not follow as a matter of logic, nor as a matter of language and is wrong. It ignores the separately defined terms of “criminal use” and subsumes it within “crime-used”, the effect of which is that criminal use as a concept becomes meaningless. It simply has the same meaning as crime-used. As between the two, there is no hierarchy, so to use the expression “primary defined term” suggests that there is some hierarchical approach. Our contention is there is no such hierarchical approach. They are separate concepts and required to be - - -
FRENCH CJ: Can I just understand how this works. On your construction, property may be found to be crime-used on the basis of 146(1)(c), but in order to find that the person, the subject of the application under 21, has made criminal use of the property, you have to find a use which falls within the kinds of uses contemplated in (a) and (b)?
MR SHIRREFS: Yes, because of the language of 147. Section 147 is concerned with - - -
FRENCH CJ: What is the logic of that? What is the policy – why would one exclude use constituting an act or omission, et cetera?
MR SHIRREFS: The policy behind is if it captured everything, it would capture unintentional use. Section 146(1)(c) captures unintentional use. A person driving along in a car - - -
CRENNAN J: Unless it were read down not to capture unintentional use.
MR SHIRREFS: But that is not the language - - -
CRENNAN J: I mean there are dicta in numerous cases about any use in this context needs to be substantial and not trivial, that sort of idea.
MR SHIRREFS: There is conflict as to whether it is substantial and as to whether or not it needs to go that far and all those cases are cases where there is a discretion. There is no discretion under this Act; this is the only situation that I am aware of in terms of similar legislation where there is no discretion vested in a court. The cases that your Honour refers to start with a line of authority in Queensland in Ward’s Case where it is said to be substantial. Hadad in New South Wales said it did not have to be; it was adding an additional requirement that is not in the language of the section, but the point - - -
CRENNAN J: Did Justice McLure talk about issue in her judgment?
MR SHIRREFS: About substantial - - -
CRENNAN J: About when you were considering a use whether you have to consider the question of it being a significant use.
MR SHIRREFS: She refers – and I have the passage – perhaps I will come back to that, your Honour; I cannot turn to it immediately. My learned junior will find it.
FRENCH CJ: It is said that your construction creates a problem for the position of - - -
MR SHIRREFS: Paragraph 27.
FRENCH CJ: - - -innocent third party objectors under 82(4) and 87.
MR SHIRREFS: Yes. That does not arise. We say there is no inconsistency on our construction. The reason for that is that when one looks at 82(4) and section 87 the requirements there are all cumulative. One of the cumulative requirements is that the person who makes the application as an objector is not an innocent party.
“Innocent party” is defined in section 153. Section 153 defines “innocent party” to be a person who was not “involved in the commission” of the offence. So it does not produce any disharmony. The approach of the court below we say was erroneous as to that aspect to suggest that there is inconsistency. In the judgment of President McLure, your Honour, it is at paragraphs 31 to 34.
CRENNAN J: Paragraph 33.
MR SHIRREFS: Page 297 of the appeal book.
CRENNAN J: Yes, 33 also, thank you.
MR SHIRREFS: Can I just point out there, if you look at paragraph 32, for instance, where reference is made to the case of Collector of Customs v Pozzolanic, a case where your Honour the Chief Justice, I think, sat in the Federal Court. It was a case concerned with whether or not the transport of stock feed was primary production for the purposes of the Customs Act. Then the case thereafter of Re Nanaimo Community Hotel Ltd [1944] 4 DLR – this has not been provided to the Court in the list of authorities but we have copies for the Court - if the Court wishes to read them – of that decision.
It is a decision of Justice Macfarlane in chambers in the Supreme Court of British Columbia where the question asked was whether or not questions with respect to a tax assessment are in connection with – and it was in that context that Justice Macfarlane said that that can include matters both before and subsequent or questions asked in relation to a tax assessment will always be subsequent to the assessment.
FRENCH CJ: There is lots of judicial discussion, I think, of that term and related terms in the context of revenue legislation - the diesel rebate provisions.
MR SHIRREFS: Which are not really apposite here when one is concerned with activities in connection with the commission of a confiscation offence, which are activities before its commission, not following its commission. That is why at this juncture we make the point that one of the facts relied upon by the court below was that the body of Tapley was then dragged by the appellant back onto the property. Therefore it was used after the event, but that is an activity concerned with the concealment of the commission of the offence, not an activity in connection with its commission or facilitation of its commission.
So activities after the event are of no assistance, but dealing with the construction, your Honour Justice Crennan, they are the paragraphs in which her Honour considers the nature of the relationship, but that is the value judgment of which we criticise, that if you look away from intent and purpose for which the act is conducted, and look only to consequence, which is what the court did here, and that is in relation to the 146(a) argument, then one has a value judgment based upon consequence and one loses sight of the purpose of which the act is committed.
Our submission in relation to 146(a) is that the purpose for which the act is committed is very relevant as to whether or not the act is in connection with the commission of the offence; the use of it is in connection. The language of (a) and (b) is focused on use by the person of the property intended to use or used in connection with the commission of the offence, and it is in those circumstances, when one looks to 147, the criminal use, in our submission, is reflected in the same language. It picks up the same language of (a) and (b).
To read 147 to extend to capturing 1(c) would include unintentional use. To adopt the language of the Chief Justice, it would read that a person makes criminal use of property if the person, alone or with anybody else, engaged in an act or omission that was done, or omitted to be done, on property in connection with the commission of a confiscation offence. That has no requirement for use in terms of the act that engaged - - -
GUMMOW J: You may be right, but we are spending a lot of time looking at definition sections which only have a life insofar as they are attached to substantive provision. So we best understand the definition provisions by seeing what life they have in the substantive body of the Act, I think.
MR SHIRREFS: I agree with that, your Honour.
GUMMOW J: Do you say if you do that, that helps you?
MR SHIRREFS: Our submission is, your Honour, on both levels, if you deal with both definitions separately and look at the life they have within the substantive provisions, the goals sought to be achieved are harmonious. Section 147 is directed to conduct of a person and their use of the property, bringing it within 146.
GUMMOW J: With what consequences in terms of the - - -
MR SHIRREFS: One consequence is that if 147 is engaged, then sections 21 and 22 require the court to make a property substitution declaration against the person.
FRENCH CJ: Well, the definitional provisions feed into 22(1)(a) and (b), do they not?
CRENNAN J: On your argument, (b) is more restricted than (a) in section 22. I realise they are cumulative requirements.
MR SHIRREFS: This is 22(1)(a) and (b)?
CRENNAN J: Yes. Paragraph (a) would cover anything covered in section 146. That is right, is it not?
MR SHIRREFS: Well, that is directed to the property. It first has to be crime-used property. It is not available for confiscation because it is not owned.
CRENNAN J: No. That would cover everything as defined in section 146.
MR SHIRREFS: But it does not deal with use.
CRENNAN J: No, I understand that. Then the cumulative requirement you would say (b), as I would understand it, is more limited.
MR SHIRREFS: That is why we say (b) is a limiting – 147 is a limiting provision. Section 147 limits, and this is set out in our submissions. It is a limiting provision because it is directed to a declaration against a person with respect to their own property that was not in any way connected with the commission of the offence. Section 146 is concerned with whether or not property upon which crime was committed is crime-used. That enables the State, when it makes an application, to get a freezing order that has consequences, automatic consequences via section 7. A third party, an objector, can object to automatic confiscation of that property via sections 82 and 87.
CRENNAN J: How is subsection (4) of section 22 going to work on your thesis about the construction?
MR SHIRREFS: That cannot be real. That would not extend to land. It would extend to personal property.
CRENNAN J: But I am asking you about the presumption in having regard to the fact that - - -
MR SHIRREFS: Well, the presumption is the same that arises in (3).
CRENNAN J: There is the reference there to crime-used property which must cover all the property that - - -
MR SHIRREFS: The way in which it works, your Honour, is that the onus is cast on the respondent to rebut the presumption both arising in (3), as it did in this case, and in (4) to demonstrate that the respondent did not make criminal use within the language of 147. That is the process that was engaged here. Subsection (3) was engaged because White was convicted of the wilful murder of Tapley. Therefore, he was presumed to have made criminal use of the property unless he rebutted that by establishing the contrary. That then required focus to be taken to section 147, to the meaning of “criminal use”, and to then demonstrate that White - - -
FRENCH CJ: How does that work, incidentally – “made criminal use of the property”? Is the property identified by the allegation made by the applicant or a declaration?
MR SHIRREFS: Yes, it was.
FRENCH CJ: There is no objective criterion.
MR SHIRREFS: The application that was before her Honour in the first instance - - -
FRENCH CJ: I know. I am just asking whether there is an objective criterion for determining what the property is referred to in section 22(3) other than the contention, or the allegation, that this property was criminally-used property in the declaration itself.
MR SHIRREFS: It is in the application.
FRENCH CJ: In the application itself, I mean.
MR SHIRREFS: It is in the application. The application identifies the property as the property which is alleged to have been crime-used.
FRENCH CJ: The executive allegation that this is a property alleged to be crime-used attracts the presumption where the respondent has been convicted of a “relevant confiscation offence”.
MR SHIRREFS: Indeed, it is necessary because it is a property substitution declaration, so the property has to be identified for the purposes of valuation for the substitution declaration.
FRENCH CJ: I am just wondering what engages the presumption.
MR SHIRREFS: What engages the presumption is the conviction.
FRENCH CJ: Plus the allegation.
MR SHIRREFS: Plus the allegation that this property, for which a substitution declaration is sought, is the property that was used. So both to answer your Honour Justice Crennan’s query about subsection (4), it also arises in subsection (3) because White was convicted of the murder of Tapley, of the specific and relevant confiscation offence which is defined to be, under the glossary, the offence that engages the Act. Then you go to criminal use in section 147. That demonstrates that, for the purposes of (3), it is the specific offence of having murdered Tapley – the wilful murder of Tapley – that is the relevant confiscation offence and the onus was on White to demonstrate that he did not make criminal use of the property, being the Jade Street property, in the commission of the wilful murder of Tapley.
GUMMOW J: Before you leave the glossary, you have to look at the definition of “property”, have you not?
MR SHIRREFS: Yes.
GUMMOW J: You get a bit of a surprise - - -
MR SHIRREFS: “Property” covers real and personal.
GUMMOW J: It covers intangibles.
MR SHIRREFS: Yes.
GUMMOW J: So 146(1)(c), I would have thought, could not then apply. You cannot facilitate a criminal act in or on an intangible, I would have thought.
MR SHIRREFS: No, it would not extend to that. It may, on the other hand, depending on the nature of the property, be picked up by (a) and (b) – probably not so much (b) because (b) is concerned with storing.
GUMMOW J: Or could you do it on or in an equitable interest in property?
MR SHIRREFS: We did not draft the Act.
GUMMOW J: I know you did not. How would you use an equitable interest in property to directly or indirectly murder somebody?
MR SHIRREFS: I do not know. You probably could not. How you use a chose an action, I do not know. But your Honour is correct in making the point that when one looks at 146(1), both (a) and (b) and particularly (c), one is not necessarily there concerned with the intangibles. The path to the resolution by the primary judge was – the starting point, Tapley was convicted of the wilful murder. That meant one had to look at whether or not he made criminal use of the property with respect to the wilful murder of Tapley. That then engaged an examination and analysis of section 147 - - -
GUMMOW J: What was this property?
MR SHIRREFS: This property was leased property on which there was a residential house and there was a trucking business. A number of trucks were stored there, and there were a number of containers stored there, including one of Reid, who was a principal Crown witness.
FRENCH CJ: It was in the name of a corporate entity, was it not?
MR SHIRREFS: I think it was. The leased premises were in the name of a corporate entity, and the appellant leased those premises and had done for some months prior to this incident.
GUMMOW J: What has been confiscated?
MR SHIRREFS: What has been confiscated - nothing. What has been declared is that the property of White, which is frozen - - -
GUMMOW J: The property being what?
MR SHIRREFS: Is, I think presently - - -
CRENNAN J: Bank account, is it not?
MR SHIRREFS: Bank account, money in a bank account of his has been frozen and as a result of the declaration of the court below is available to satisfy the declaration up to the value of the Jade Street property.
FRENCH CJ: Up to the value assessed by the court.
MR SHIRREFS: That is the consequence, in terms of - - -
HEYDON J: The value of the lease, presumably.
MR SHIRREFS: No, the value of the real estate.
HEYDON J: Who holds the fee simple?
MR SHIRREFS: Who owns the fee simple? The fee simple is owned by the corporate entity that leases it.
HEYDON J: Yes, but your client was a tenant?
MR SHIRREFS: Yes.
HEYDON J: Someone else was the landlord.
MR SHIRREFS: That is right.
HEYDON J: Is not the landlord concerned to avoid a property being forfeited?
MR SHIRREFS: The property was never going to be forfeited - - -
HEYDON J: I see, so this technique of going for the bank account is a way of preserving the landlord’s interests.
MR SHIRREFS: The property could never be forfeited because the owner of the property, the corporate entity, presumably did – I do not know whether they did – objected under section 82 or 87 to have the freezing - - -
GUMMOW J: It is no good using this word “the property.” You have to say what it is.
MR SHIRREFS: The land.
GUMMOW J: You are using it in terms of a parcel of land on the surface of the earth.
MR SHIRREFS: That is right.
GUMMOW J: That is not what property is.
MR SHIRREFS: I understand that. But to answer your Honour Justice Heydon’s query, the freezing notice – if there was a freezing notice over the land, and I do not know whether there was - my learned friend may be able – there was never a freezing notice over the land. That is the simple answer. Had there been one, then the owner of the land would have successfully sought to exclude the property from the freezing notice. There was never a freezing notice over the land.
FRENCH CJ: So this application does not depend upon the leasehold relationship. It just depends upon the use of the land. That has to come within the definition of “property” on the basis upon which it has been approached, for example, if instead of it being out at Maddington or wherever, Mr White had lured Mr Tapley to a meeting in a city building, locked him in an office and then shot him, then the argument would be that the property in relation to that city building owned by who knows who was crime-used - - -
MR SHIRREFS: And he was exposed to - - -
FRENCH CJ: - - - and then it is assessed at, it might be $100 million, and if he happens to have $1 million in a bank account, that goes because he gets a substitution declaration made against him in respect of the money in the bank account.
MR SHIRREFS: That is right. That is the reach of the legislation. In fact, I think the matter of Bowers, which was to be on today as well but ultimately resolved, one of the consequences of that which engages section 146(3), which is any offence falling within the sexual offence provisions, which includes indecent exposure, anybody removing their clothes and running across the WACA would be liable to a substitution declaration in relation to the value of the oval. That is the consequence of this. So we are not here concerned with any freezing notice over the Jade Street property. We are only concerned with the declaration being sought against the property that is frozen of White to the value of - - -
FRENCH CJ: The bank account is frozen?
MR SHIRREFS: The bank account – well all his property is frozen but I think all he really had in terms of anything was what was in the bank.
HEYDON J: This is rather medieval sort of – you are a taint of felony and you do not just spend 20 something years in gaol but you lose all your property.
MR SHIRREFS: Everything.
HEYDON J: Depending on - - -
MR SHIRREFS: Indeed.
HEYDON J: - - - the primary property that was used for the crime.
MR SHIRREFS: Indeed. You get a substitution. So all your property that you have can go because it is required to satisfy the value of the land or other property that was used in the commission of the offence. That is the effect of it and there is no discretion vested in the court. As I said earlier, the other confiscation legislation in other States and in the Commonwealth sphere vested discretion in the court.
I think one of the cases referred to in our submissions is the case of DPP of South Australia v George and the issue there was in relation to the growing of some cannabis plants hydroponically in a shed where the gentleman who had done it had been fined some $2,500 in the Magistrates Court. The consequence of an application for a pecuniary penalty meant that he was liable to pay as a pecuniary penalty the value of the entire land upon which it was grown which was some, in terms of value, 40 times in excess of the fine that he received in the Magistrates Court.
Unfortunately for Mr George that was the – I should say fortunately for Mr George – the court just read into the legislation that there was a discretion. So although it was for the purposes of their legislation an instrument which was used in connection with the commission of the offence, there was a discretion in the court not to impose a pecuniary penalty order and they did not as to be found in the judgment of - - -
FRENCH CJ: We are not concerned with a discretion here because the court is required to make - - -
MR SHIRREFS: No, we are not. I am going down a path.
FRENCH CJ: - - - required to make a declaration under section 22 of the - - -
MR SHIRREFS: I am going down a path – I was simply answering the proposition of Justice Heydon, but in terms of - - -
GUMMOW J: Going back to Justice Heydon’s proposition, in a conveyancing case, which I guess has not been at the forefront of attention - though maybe it should have been – in construing this definition of “property” called Travinto Nominees v Vlattas [1973] HCA 14; 129 CLR 1 at 11 to 13, Sir Garfield Barwick says you have got always to distinguish subject matter, which is land in the sense of an area of the surface of the earth and “some particular estate or interest in land”. This definition somehow puts both together and then they do not get separated out when you come to the substantive provisions.
MR SHIRREFS: That is right.
GUMMOW J: Let alone the difficulties with intangibles.
MR SHIRREFS: I accept that, your Honour. One of the decisions that was made at first instance by Justice Jenkins was that it may well have been that the gates and the fence were used, although we had a notice of contention that that was wrong. She held that that did not therefore necessarily engage the land upon which they stood. The decision of the court below was because the fence and gate are fixtures and inseparable form the land, they all became one.
FRENCH CJ: It is almost as though property is being used outside the glossary in the Act as in a colloquial sense, that people use it when they speak of “my property”, meaning “my land”, rather than “my relationship to that land”, which is a fee simple owner.
MR SHIRREFS: A different concept. Here is it used - - -
FRENCH CJ: But we are stuck with a glossary definition of course, and it is a bit difficult to move outside it.
MR SHIRREFS: We do not seek to move outside it, but the way in which the language is then used in the substantive provisions merges them all together. But the point here, your Honour, is that because we are not focused on a freezing notice with respect with the land, we are here focused on whether or not a person should have declared against them the requirement that they forfeit their own property wholly unconnected with the offence to the value of, in this case, the land or the property including the buildings on it where it was said offence was committed because an act was done. We are then having to deal with what, we say, our submission is section 147 is the limitation.
FRENCH CJ: The confusion that Justice Gummow has pointed out was also reflected, I think, in section 151 which talks about moving property.
GUMMOW J: Move and use.
MR SHIRREFS: Yes. Dealing with property, “sell”, “dispose”, “move or use”, “accept the property as a gift”, “take any profit, benefit”. It does refer in (c) to increase or alter any legal or equitable right. So I take your Honour’s point, although here we are dealing with tangible in terms of realty.
GUMMOW J: We are trying to construe the Act, though, of course.
MR SHIRREFS: I understand that.
HEYDON J: Could I just ask a question about the facts in relation to 147? The Court of Appeal reasoned that the victim was, in effect, trapped, confined, so that vengeance could be exacted on him. If there had been no locking of the gates but the victim had simply been shot on the property, does the Crown say that is criminal use of the property? Is it criminal use of the gun, but it is just an accident, is it not, whether the killing takes place on an - - -
MR SHIRREFS: It is a locus in quo where the offence occurred and - - -
HEYDON J: Is that making criminal use of property?
MR SHIRREFS: I do not know what the State’s position is as to that question, your Honour, because here they were contending that because the gates were closed, therefore it was used in a different way. I was going to deal with the factual basis at the outset because we say that that factual scenario is entirely unsupported by the evidence in the case, and which I have not yet come back to, but as to that point, your Honour, there is a case which we did not include in our outline.
It is a useful examination by Justice O’Keefe in the Supreme Court of New South Wales in the case of Director of Public Prosecutions (NSW) v King [2000] NSWSC 394; (2000) 49 NSWLR 727. This was where the issue was concerned with whether a boat upon which there were allegations that King had engaged in sexual offences with an underage girl out on Pittwater, whether the boat was tainted property and therefore subject to confiscation in that that required an examination of the words “whether or not the boat was used in connection with the commission of the offence”.
Now, his Honour usefully examines, commencing at paragraph 14 and following, a number of cases in other jurisdictions and the same jurisdiction dealing with similar language, and ultimately concluded, having examined all those cases, that – and this is in - - -
GUMMOW J: I am not sure any of these cases began where they have to begin, which is the definition of “property”.
MR SHIRREFS: Yes. But ultimately concluded at paragraph 33, in the fifth line:
the over-arching principle that in my opinion can be extracted from the cases in relation to that part of the statutory definition of tainted property presently under consideration is that some activity connected with the relevant crime must have involved the utilisation or employment of the property with the aim or purpose of committing or furthering the commission of the crime in question. In none of the cases referred to has the mere fact that the property in question has been the place of commission of the crime and nothing more been held to result in the property being tainted property within the meaning of the forfeiture statutes.
Now, that is because in all the other legislation that is examined in these cases the courts were looking at the definition of whether a person used or intended to use the property in connection with the commission of the offence. That is 146(1)(a) and (1)(b), but it is not 146(1)(c). Section 146(1)(c) is not concerned with use. It is concerned with merely whether an act was done on the property or omitted to be done in connection with the facilitation or commission of a confiscation offence. It does not involve use.
GUMMOW J: Now, Justice Crennan reminds me, the common law remedy of deodand involved forfeiture of the chattel, did it not? That is quite a simple idea. This has become perhaps over-sophisticated in this statute.
MR SHIRREFS: If a person used a gun in the course of an armed robbery, then the gun will be forfeited in the ordinary course - - -
GUMMOW J: Exactly, yes. He did not get worried about whether there was an equitable interest in the gun.
MR SHIRREFS: - - - but a person would not be exposed to having to pay the value of the bank upon which the robbery occurred.
GUMMOW J: Yes.
MR SHIRREFS: But that is the effect of this legislation in the way in which it has been interpreted by the court below. If 147 engages all of those activities contemplated in 146 to be crime-used then that is the consequence. That is why we say, in terms of statutory construction in the principles that are set out in our outline, in our submissions, is one in which it is a limiting provision and needs to be restricted as such because the consequences are far-reaching.
HEYDON J: If the Court of Appeal were factually correct about this trapping theory, would you lose?
MR SHIRREFS: No, we say – as to the facts?
HEYDON J: If they were factually correct, would you lose?
MR SHIRREFS: No. We have got our argument in relation to 146(1)(a). The wilful murder of Tapley occurred off the property. Our contention in relation to 146(1)(a) is that it is because we are here engaged under section 22(3) with rebutting the presumption that we made criminal use and it had to be criminal use with respect to the specific offence. We say that the ordinary meaning of “use” and “intended to use”, both in terms of its ordinary meaning and as used in the Act, denotes a purpose of intention with respect to the manner in which the property is used and it has to be used in connection with the commission of the offence.
Even assuming the facts that were found by the Court of Appeal are correct – and that is, at the time that White telephoned the person Reid to come and lock the gates that he knew Tapley was there and intended to confront him if necessary – there is no evidence that could lead to the conclusion that at that stage he had the intention of inflicting harm, let alone wilfully murdering - - -
HEYDON J: He seems to have developed the intention pretty quickly once he saw Mr Tapley there. He shot several times before he shot the fatal shot.
MR SHIRREFS: The evidence that was obviously accepted by the jury was that upon arrival there were a number of people there. One of them was a girl called Tara - he was, in all effect, her guardian. She was an epileptic and she was engaged in alcohol and drug taking at the time when he arrived and saw that and he wanted people off the property. He has then confronted Tapley, it seems, in relation to a debt. Tapley has walked away and then a gun has been drawn and then he has been confronted and things escalated from there.
The time at which the gates were asked to be locked was as a result of a telephone call at 7.45. The important point thereafter, your Honour, however, is that the final locking of the gates that secured them was not an act for and on behalf of White. When the females who were present left the property they went into a motor vehicle and were driven away by a girl called Susan Miller, who took three other girls with her.
A man nicknamed Rainbow, known as Dennis Jardin, was the person who also lived at the premises. He went and unlocked the gates and, it seems, locked them again afterwards after they had left. But he was not called as a witness. No one knows his reason for so doing. Whilst it may have coincided with the earlier intention of White, it was not the locking of the gates that was done for or on his behalf, but it was the locking of the gates, as it has ultimately turned out, that prevented Tapley from running through the unlocked gates to the property.
Rainbow locked them. The evidence does not indicate that they were locked for, and on behalf of, the appellant, and that then goes also to the question of what is meant by “used” and “use”, and whether or not the locking of the gates, or the request by White of Reid to lock the gates, was an intended use of the gates, so that White could wilfully murder Tapley. The primary judge found that the evidence did not support that contention. It may have, but it was not sufficient.
The Court of Appeal held, and we say erroneously, that if he intended, as they found, to have the gates locked so he could confront Tapley and went on to say “with a gun if necessary”, and ultimately as a consequence, Tapley could not escape the property but was forced to climb over the gates which impeded his departure, and which therefore made it easier for White to ultimately, having formed the intent to kill him, doing so off the property, and the consequence of that was sufficient to engage 146(1)(a).
We say that was the error because the intended use, if that factual scenario was sufficient to support it, was simply to require Tapley to remain at the premises. But that of itself was not a use of the property in connection with the facilitation of the crime of wilful murder. There is no evidence that that, in fact, was at that stage within the contemplation of White.
HEYDON J: In a nutshell, your point is that the four acts of attempted murder before the victim actually got over the fence were just something that blew up at the last moment, and had nothing to do with any earlier instructions about locking gates.
MR SHIRREFS: Indeed, and indeed the primary judge came to that conclusion. She said it was not open on the evidence to conclude that at the time White asked Reid to close the gates, he had any intent other than to speak to Tapley.
GUMMOW J: Where do we see that?
MR SHIRREFS: At page 275 of the appeal book, paragraph 108, and it is line 17:
It is significant that there is insufficient evidence to prove that the respondent ordered the gates to be locked in order to facilitate the commission of the wilful murder of Tapley or to use them in any other way in connection with the commission of the wilful murder.
We go one step further in relation to the facts. Both Justice Jenkins at first instance and the Court of Appeal relied upon a finding of the sentencing judge, Justice Scott, who expressed the view that the reason White had asked Reid to lock the gates was because he wished to detain Tapley, wished to speak to Tapley, detain Tapley and speak to him.
FRENCH CJ: That is at 257 and 258, I think, is it not?
MR SHIRREFS: Yes. The evidence did not support that finding. There was, in our submission, insufficient evidence that would permit a finding to the effect that White knew that Tapley was at the premises at the time that he rang Reid.
HEYDON J: Is there a res judicata type problem here? You have Western Australia in one case against your client behaving in such a way as to lead to a finding of fact by Mr Justice Scott. Then in another case basically between Western Australia and your client, Justice Jenkins reaches the opposite conclusion. Is that permitted under the legislation?
MR SHIRREFS: No different conclusion, your Honour.
HEYDON J: But she was disagreeing with Justice Scott.
MR SHIRREFS: No, she followed Justice Scott.
HEYDON J: I see.
MR SHIRREFS: She adopted the view expressed by Justice Scott in sentencing White and he said, “In my view, you rang Reid so that you could detain Tapley and speak to him if necessary”.
HEYDON J: So the materials before her, apart from the conclusions of Justice Scott, included a transcript of the trial?
MR SHIRREFS: It did, but the manner in which the application was heard before Justice Jenkins, and I appeared on behalf of Mr White on that application, given that her Honour expressed the view that even if White knew that Tapley was there, it was not sufficient to engage 146(1)(a) because it did not link him to the wilful murder, having formed the view to commit the wilful murder of Tapley at that stage.
FRENCH CJ: This is at paragraph 37, I think on 256:
I may have regard to the transcript of evidence given in the trial of the respondent . . . sentencing transcript and any statements, exhibits or other material before the trial court.
MR SHIRREFS: Yes, that is available to her, and that was available to her because White was convicted of the wilful murder of Tapley, but we say that the finding that he knew Tapley was there is against the evidence. Indeed, at the trial, the prosecution case was that White did not know that Tapley was there. Your Honours will find that at page 190, line 60 of the appeal book where in cross-examination of White it was put by the prosecutor to him that – this is commencing at line 52:
See, what I want to suggest to you is that – you agree with me that there was the one call at 5.59 from Susan Miller to your mobile phone requesting some amphetamines from you. You agree that that call was made, don’t you?---I believe so, yes.
CRENNAN J: What page is that, Mr Shirrefs?
MR SHIRREFS: Page 190.
GUMMOW J: Line?
MR SHIRREFS: Line 52, the first question, the proposition put, because the telephone records showed that in terms of calls to and from White’s phone there was one at 5.59 from the mobile phone of Susan Miller. That is why the proposition is put at line 52. Then at line 60, what is suggested by the prosecutor:
What I want to suggest to you is that there was no further telephone call made and what happened was that Susie Miller and Ant Tapley simply turned up unannounced at your property at 12 Jade Street in Maddington. That’s the position, isn’t it?---I really can’t remember. I know she rang me in the afternoon requesting some amphetamines and she requested some more amphetamine later on in the night. I can’t really recall whether she made a phone call or whether she just turned up there. I’m not sure.
All right, so you accept, do you , that Susan Miller may have just turned up at the property with Anthony David Tapley. Is that right?---Possibly, yes.
All right, but certainly it was after the call at 7.45 pm that you made to Sid Reid, shortly after that, that you turned up at your property at 12 Jade Street. That’s the position - - -
Now, what we say from those passages is what was being suggested by the prosecutor was that he did not know that Tapley was at the property at the time that he made the call at 7.45 to Reid. There is no telephone call suggesting any contact with White who was away from the property and generally what has been put by the prosecutor is he did not know Tapley was there. Indeed, what Reid then says is he receives a telephone call from White asking him to lock the gates, not to let anybody leave, but at that stage there were numerous people on the property. There was also valuable property there, which were trucks and other items, which could be taken if the gates were not locked. Reid then also said he did not know why it was that White asked him to lock the gates. He had no idea why he asked him to lock the gates. So as to how it was concluded by Justice Scott that White knew Tapley was there at the time he requested Reid to lock the gates, in our submission, is simply not supported by the evidence before the court.
HEYDON J: On page 130 Ms Miller in evidence in-chief said that your client said to her, “What are you doing bringing Tapley over here?” Your position is he was surprised by the presence of Tapley. It is not Tapley’s presence that brought him there. It was something else that brought him there and he met him by chance, or at least to his surprise.
MR SHIRREFS: Yes, indeed. He turned up and found a number of people there, including Miller and girl called Tara and a girl called Lisa and a girl called Boronia. Tara lived there, she was under his guardianship, an epileptic who should not be drinking and taking drugs and they are all engaged in drug taking and drinking in the process of doing a barbecue, and Tapley was also there. There is no doubt he had views about Tapley. White in his evidence said that – Tapley was a drug addict, no doubt about that, and that was quite clear in the evidence at trial.
What was said by White in his evidence was that Reid, who was a supplier of amphetamines, he was a drug trafficker, was supplying Tapley with drugs in return for stolen goods and that Tapley would often come around to the property when it was locked and climb over the gate because Reid had a number of sea containers on the property where goods were stored and would access the sea containers. So there is no doubt there was antipathy between White and Tapley in terms of what the evidence suggested, but it does not indicate that White knew that Tapley was there at the time of the telephone call.
BELL J: Did this trial go for a number of days?
MR SHIRREFS: I think it probably went for seven days.
BELL J: It is difficult to take this Court, or the Court of Appeal for that matter, to passages in the evidence of the respondent to the application in support of a proposition that it was not open to the trial judge for the purposes of sentence forming a view of the facts consistent with the jury’s verdict not to draw inferences. It may be in a very clear case you can, Mr Shirrefs, but it seems to me pretty difficult.
MR SHIRREFS: Well, we make that contention, your Honour. We say it is one that can be made and made quite readily from the relevant material which is in the appeal book and support is garnered from the manner in which the Crown case was put to White. The State cases should have been – the Crown then, State now – that it was put in those passages to which I have directed attention, that it was completely by surprise that Tapley was there. He came unannounced and there were no telephone calls made to inform him of Tapley’s presence.
CRENNAN J: Did White give an explanation as to why he had asked Reid to lock the gates and make sure nobody came or went?
MR SHIRREFS: He denied having asked Reid to lock the gates. He said he rang Reid to come around and supply amphetamines which were to go to Sue Miller. There is no doubt there was a telephone call, but he denied having asked Reid to lock the gates. He did say the gates were regularly locked and locked for a number of reasons, including the fact that there were two big dogs on the property that could do harm.
CRENNAN J: Where is that Mr Shirrefs?
MR SHIRREFS: That is referred to in our submissions, your Honour, in reply – actually, in our formal submissions.
CRENNAN J: Paragraph 6 perhaps of your reply and paragraph 8.
MR SHIRREFS: It is probably best if I just go to White’s evidence because I did mark it up. Top of page 189.
You told Sid to go around to Jade Street and lock the gates so that no-one could get in or out, didn’t you?---No, I did not.
There was certainly a call –
et cetera. His evidence in-chief was to the effect that he had phoned him in relation to getting some amphetamines. We are going into the factual scenario that relates to the argument concerning section 146(1)(a), but if I could return briefly in the available time just to finish off the submissions in relation to 147. In our submission, the consequence of the expansive reading of the court below in terms of the operation of section 147 to capture all activities in 146 means that persons are exposed to property substitution declarations merely because an act has occurred on property which has facilitated an offence. Not that they used it, but it occurred.
The two bases that the court justified for expanding 147 beyond what we say is its natural reading is a subsuming of the definition of “criminal use” into “crime-used” by adopting what it refers to as the primary defined term and because the primary defined term has the word “used” to refer to each activity in 146, therefore, in 147, when we see the word “use” or “uses”, that means that it is picking up the same activities in 146. That simply does not follow as a matter of analysis and as a matter of logic and it denies the separate meaning of “criminal use”. They both, in effect, become the same, so the argument becomes circular. Yet we have in the substantive provisions different sections defining each separately.
Section 147 is concerned with persons and property, so that for the purpose of a substitution declaration it attaches to the person and their property. Section 146 is concerned with property that was, according to the definitions, defined to be used in the commission of an offence, but that goes beyond the fact that the person uses them in the way set out in 146. So the first basis upon the court below expanded 147, we say, is erroneous.
The second basis is also erroneous. They say that the limited, which we say is the true and natural meaning of the section, is restricted to (a) and (b) of 146(1), that it produces inconsistency and disharmony in the Act because of section 82(4) and section 87, but that is misconceived. As is submitted in our outline and also in the reply, 82(1) and (4) are cumulative requirements. Section 82(4) is concerned with applications by objectors who are third parties to have property released from a freezing order or freezing notice. The power given to a court in 82(4) is that:
The court may set aside the freezing notice or freezing order if the objector establishes that it is more likely than not that –
(a) the objector is the owner of the property, or is one of 2 or more owners of the property –
hence, they have got an interest in it –
(b) the property is not effectively controlled by a person who made criminal use of the property –
Now, if the person does not come within 147, that is irrelevant. The third point is very important –
(c) the objector is an innocent party in relation to the property –
Now, the glossary defines “innocent party” to be the meaning given in section 153:
A person is an innocent party in relation to crime-used property if the person –
(a) was not in any way involved in the commission of the relevant confiscation offence; and
(b) did not know, and had no reasonable grounds for suspecting, that the relevant confiscation offence was being or would be committed, or took all reasonable steps to prevent its commission.
Because of the cumulative requirement in relation to 82(4)(c), in our submission, there is no inconsistency that exists if the construction of 147 is as we contend and was contended by Justice Templeman in the Bowers matter that the court previously had before it.
The language, we say, is unambiguous. We say that it does not involve ambiguity. The extension of that language in the manner contended for by the court below has impermissibly broadened its operation and its reach to abrogate the rights of a person in relation to their property in circumstances where we say the language is unmistakable as to its effect, but completely absent in relation to the construction arrived at by the court below. Unless there is anything further that I can address the Court with respect to the 147 argument, I will move back to the 146(1)(a), if that is convenient to the Court.
FRENCH CJ: Yes.
BELL J: Can I take up one aspect of your 146(1)(a) argument, just to understand it, and I appreciate this is not the way the matter was run, but you have included amongst the provisions in the legislation annexed to your submissions, section 106, which seems to extend the potential reach of applications for such a declaration by not confining the court to a particular confiscation offence. How does this work?
MR SHIRREFS: Our submission is that because we are here concerned with an application for a property substitution declaration, and because White was convicted of an offence, the consequence is that when one comes to consider “crime-used”, it has to be in relation to the specific offence of wilful murder.
BELL J: So 106 does not have an operation in this context?
MR SHIRREFS: Section 106 is not engaged and the reason for that - it is a good starting point, your Honour, the reason for that is – you start with 22(3) that I was speaking about earlier:
If the respondent has been convicted of the relevant confiscation offence, it is presumed that the respondent made criminal use of the property unless the respondent establishes the contrary.
“Relevant confiscation offence” in the glossary, is defined to mean:
in relation to confiscable property, means the confiscation offence or suspected confiscation offence that is relevant to brining the property within the scope of this Act -
Then because we are dealing with criminal use in 22(3), one then goes to 147, which is the meaning of “criminal use”, and the meaning of “criminal use” is that:
a person makes criminal use of the property if the person, alone or with anyone else . . . uses or intends to use the property in a way that brings the property within the definition of crime-used property -
which takes you to 146, which takes you to the specific offence.
That is why we say one of the findings made by the court below was in error where they said that – this is to be found in our outline and this is appeal book page 299, line 10. The court below held that although use requires a deliberate act, it is not a requirement that it be done with the intention or purpose of committing the specific confiscation offence that eventuated. It is sufficient, if it is indirectly in connection with the facilitation of a confiscation offence. Now, whilst the language of 146(1)(a) does not talk about the confiscation offence, when you look at 146(1)(a) it talks about “the commission of a confiscation offence”. When you are concerned, as we were here, with the reverse onus situation specifically concerned with wilful murder, it can only be, with respect, to the offence of wilful murder. That is the starting point we say of erroneous approach by the court below for the construction of 146(1)(a).
The next erroneous approach was that they then, having found – and this is in paragraph 2 of our outline that is before the Court – factually and, we say, erroneously, that on the night in question, the gates were locked on at least two occasions – in fact it was three – for the purpose of detaining Tapley so he would be physically available to the appellant, White. The subsequent events compel the inference that at the time the instruction was given to effectively detain Tapley, the appellant intended to confront Tapley with a gun if necessary.
Now, assuming those facts are correct, and we have set out why we say that they are incorrect, but assuming they are correct, that is looking to the time at which the telephone call is made to Reid and it is concerned with intended use of the property, but its intended use of the property not in relation to the wilful murder because, as was found by Justice Jenkins on any view of the evidence, even assuming that he knew Tapley was there – which your Honour found he did based upon seeing Justice Scott’s finding – that Justice Jenkins concluded the evidence did not enable one to conclude that at the time he made that call and asked for the gates to be locked he intended to kill Tapley. That arose subsequently.
So if one looks to intended use, which seems to be the reason the court below cited these facts as set out in the outline in paragraph 2, that is intended use but not in relation to the specific offence. The next error, we submit, is that the court then looked to consequence. They looked to the consequences of the act, and this is to be found in terms of construction at page 299 line 20 where the court said that:
There is a sufficient relationship between the act or acts constituting the use and the specific confiscation offence if the acts have the consequence or effect of facilitating that offence.
Now, they start off by looking at intended use by reference to those facts which are not for a specific offence of wilful murder, but ultimately, because they, in terms of their consequence, made it easier for the wilful murder to be committed, the intention in relation to which on the facts arose subsequently, that was sufficient to make the property crime-used. The problem with all of that is that it completely denuded any meaning to be attributed to the ordinary meaning and the constructional meaning, we say, that is involved in the expression “used” or “intends to use”, because those expressions, the verbs “used” or “intend to use”, in the ordinary meaning means “to employ for a purpose.” It is purposive. To focus only on consequence ignores purpose for which the act was engaged and it has to be, on our construction. At the time that the act was engaged in – this is the locking of the gates – it had to be with the intention or for the purpose of facilitating the commission of the wilful murder of Tapley, and it did not have that effect.
BELL J: We do not have Justice Scott’s reasons for sentence in our appeal book, I think, do we?
MR SHIRREFS: Yes, we do.
BELL J: We do. Where are they?
MR SHIRREFS: They are to be found at the end of the transcript of the trial in the - - -
BELL J: I see, 237.
MR SHIRREFS: They commence at page 237, 238, and the passage to which attention has been directed is at the top of page 239 on line 12:
I am of the view that you did that because you knew that the victim, Mr Tapley, was inside your yard and you wished to speak to him.
As to that particular finding, it was an unnecessary finding for the purpose of sentence and it could not be relied upon in aggravation nor was it a matter of mitigation. It was simply a view expressed by his Honour as part of the narrative, but really it was ultimately irrelevant for the purpose of sentence and unnecessary for the purpose of sentence. He expresses it as a view, not as a factual finding as well.
Coming back to the errors that we say are revealed by the court below at page 299 – that is where we say it all comes unstuck – starting at the bottom of page 298 and the last four lines there where the court criticised the approach of Justice Jenkins who considered that the property had to be used with respect to the wilful murder of Tapley, the use by White, and at the last four lines on page 298 the court says, no:
The central question is whether the act or acts together constituting the use of land must be performed for the purpose of committing the specific confiscation offence in question (in this case, the murder of Tapley). In my view the answer is no.
It may be accepted that the use of property requires a deliberate act (or omission). However, it is not a requirement that the act or acts constituting the relevant use must (although they may) be done with the intention or purpose of committing the specific unlawful act that eventuated.
Now, we say that is erroneous because of the construction of 22(3). It had to be with respect to the wilful murder of Tapley. We are at the top of page 299, your Honour Justice Bell. Then her Honour continued –
The use must, at its widest, be indirectly in connection with the facilitation of a confiscation offence.
Again, that takes the language of the section but it ignores the effect of 22(3). Then the passage to which I earlier referred –
There is a sufficient relationship between the act or acts constituting the use and the specific confiscation offence if the acts have the consequence or effect of facilitating that offence.
We say if you look to consequence to determine the expression “in connection with”, that then means that becomes the focus and ignores the word “used” or “intended to use” which are the primary expressions in the provision concerned with whether the property was used. Her Honour then continues –
The intentional locking of the gates was for the purpose, and had the effect, of preventing or impeding Tapley’s departure from the Maddington land before the respondent had finished dealing with him. That use of the land facilitated Tapley’s murder.
She concluded that 146(1)(a) was engaged. As I said at the outset, the problem with that is, it has to be an act engaged in by White in using the property for the purpose or aim of facilitating the wilful murder.
GUMMOW J: What was the operation here of section 22(1) in the Court of Appeal?
MR SHIRREFS: What was, sorry, your Honour?
GUMMOW J: Section 22(1) talks about “declare that property owned by the respondent”. Is that owned at the date of the order?
MR SHIRREFS: Yes. Well, the property is frozen for the purpose may apply. Yes, it has to be property at the time of the order, time of the declaration.
GUMMOW J: The idea is there is a valuation under 22(6)?
MR SHIRREFS: Yes.
GUMMOW J: That happened in this case at some later hearing, did it?
MR SHIRREFS: There was a valuation which was available to the primary judge. It was only a drive-by valuation, but the Court of Appeal – I was not present - - -
FRENCH CJ: There was a consent order I think on 25 March.
MR SHIRREFS: I was not party to any of that.
FRENCH CJ: At 307.
MR SHIRREFS: That is at 307 in the appeal book.
FRENCH CJ: The declaration in respect of property owned by the appellant was any property that the owner did not identify, any particular property. You say in fact it was just the bank account probably, but - - -
MR SHIRREFS: Yes, it was the frozen property. The way in which it operates, your Honour, is that it seems the declaration is made as to property. There was a freezing notice on White’s bank account so that could be accessed by the Executive, so the Executive then could rely upon the declaration to confiscate that property and become the property of the State of Western Australia. Coming back to - - -
CRENNAN J: Can the declarations be made on ex parte application?
MR SHIRREFS: I do not know. This is the declaration as to value.
CRENNAN J: No, a freezing order.
MR SHIRREFS: Can it be made on an ex parte application?
CRENNAN J: I suppose I am asking you, is that the way they are usually made, or what is the process? Perhaps I will not detain you, I will probably - - -
MR SHIRREFS: Your Honour knows where I practice, and this is my first experience dealing with an application under this section in Western Australia.
CRENNAN J: I am sure there will be something in the Act which will explain it for me.
MR SHIRREFS: Can I come back to that in due course?
CRENNAN J: Yes.
MR SHIRREFS: I just want to finish dealing with this issue of looking to consequence.
GUMMOW J: It is 41(2), is it not?
MR SHIRREFS: It may be made ex parte. That is for a freezing order. Freezing orders can be sought ex parte, but that is not in relation to a declaration. I wanted to return to the decision of Justice O’Keefe in the matter of King that I handed to the Court, and just go back briefly to paragraph 33. Having examined the cases that he cites in the preceding paragraphs, all of which are concerned with the use of the expression “used in connection with the commission of an offence”, so far as the meaning of “used or intended to use” in that composite expression, as I said earlier, he concluded that:
the over-arching principle that in my opinion –
from the cases to which he had referred –
in relation to that part of the statutory definition of tainted property –
and just stopping there, the relevant part of the definition of tainted property is used in connection with the commission of an offence -
presently under consideration is that some activity connected with the relevant crime must have involved the utilisation or employment of the property with the aim or purpose of committing or furthering the commission of the crime in question.
We rely upon those words because they not only are the ordinary meaning of “used or intend to use”, in other words, to employ for a specific purpose, it is also, we submit, the meaning of “used or intended to use” that emerges from 146(1)(a) itself.
So when we are here, as we were, dealing with an application under section 22(3), which for the reasons explained, focuses attention on one offence only, and that is the wilful murder of Tapley in circumstances where by virtue of subsection (3) White was presumed to have made criminal use his task, and the task which was undertaken and successfully so at first instance, was to demonstrate that he had not used it in the manner described by section 146(1)(a), which then meant that the inquiry was whether or not his use of the property was a use by him which was in connection with the commission of, or facilitating the commission of – those words do not add very much to it – the wilful murder of Tapley. That was the inquiry that was conducted by Justice Jenkins and found that it did not.
FRENCH CJ: That inquiry was conducted in this case on the papers.
MR SHIRREFS: The inquiry in this case was conducted on the papers.
FRENCH CJ: He could have given evidence orally to try to overcome the presumption. It is just a - - -
MR SHIRREFS: Absolutely. I accept all of that.
HEYDON J: Why did it take seven years from the time the application was filed until the matter was heard by Justice Jenkins?
MR SHIRREFS: Probably a better question directed to those to my left, your Honour. I know as much that the offence occurred in August 2001 - - -
HEYDON J: The application was made in 2002.
MR SHIRREFS: The trial was heard in 2003. There was an appeal against conviction, which was unsuccessful. There was then an application for special leave, which did not take particularly long, and then there is a period of some two years. I think that point was referred to by Justice Jenkins in the course of her judgment.
FRENCH CJ: It was one of the reasons that fed into her decision that she would only proceed on the basis that wilful murder is the relevant confiscable offence.
MR SHIRREFS: Absolutely. Mind you, in reaching that decision, her Honour did not conduct the analysis for 22(3) at the glossary and 147 that we rely on here. She came to the same result, but by a different path, and that is to be found for the benefit of your Honour Justice Heydon in the passages – I read it this morning – it is on pages 254 to 255, in essence. She points out there was no explanation given as to why it took two years after the dismissal of the application for special leave for this matter ultimately to come on. I do not know why it took that period of time, but it did.
FRENCH CJ: The application was made in 2002, she says. Is that before the trial, is it?
MR SHIRREFS: It is. The application for declaration was before the trial. The trial was then had. The appeal process was then allowed to run their course, but then there was a delay of some years before the matter was relisted before her Honour Justice Jenkins to be litigated. Just in summary, in relation to the 146(1)(a) point, we say, as we do in our outline, the factual premise upon which the court below relied was in error in finding that the reason White called Reid was because he knew Tapley on the premises, he wished to confront him with a gun if necessary. We say the facts do not support that, and if that be right, everything falls away as to 146(1)(a).
Even assuming that that is correct, the approach of construction of the court below is erroneous at a number of levels, the first being the conclusion that the use of the property did not have to be in relation to the specific offence. Here it did, for the reasons articulated. Secondly, that you look to the consequence of the Act. Before I get to that, the next point is that they looked at that conduct which goes to intentional use, but it was not intentional use in relation to wilful murder. It was intentional use in relation to something other than wilful murder, but ultimately it had the effect of facilitating him in relation to wilful murder, and they said that that was sufficient.
That is wrong for two reasons, because it meant that the application was considered in relation to an offence other than wilful murder, as to the purpose for which the property was used, which defeats the operation of 22(3), which I have mentioned.
Secondly, it negates intent. It negates the purpose of which the Act was engaged. It has to be a purposive act when one uses to employ for a purpose. It has to be a purpose as articulated by Justice O’Keefe for the purpose of facilitating, helping, in connection with a specific offence in contemplation. On the evidence in this case, there was no offence of wilful murder on contemplation at the time the request was made to lock the gates. Unless there is anything further that I can assist the Court with at this juncture.
FRENCH CJ: Thank you, Mr Shirrefs. Yes, Mr Fiannaca.
MR FIANNACA: May it please the Court, I assume your Honours have the outline of the respondent’s oral argument?
FRENCH CJ: Yes, thank you.
MR FIANNACA: I intend to address the matters as they are sequentially set out in the outline of oral argument, your Honours, but I can say this perhaps at the outset, that there are a number of factual matters that my learned friend alluded to which, in our respectful submission, have not been correctly stated in terms of the State’s position, for instance, whether the State was putting to Mr White that he did not know that Tapley was there. I will come back to that in some detail later because it is the respondent’s position that the matter was squarely put to Mr White on the basis that he was aware that Mr Tapley was there.
If I can commence perhaps with questions of statutory construction. I do not intend to take your Honours to the passages in our written submissions that are referred to in the outline of our oral argument in which we deal with the way in which this Court in particular but the courts generally have in recent times approached the question of statutory construction. There can be no doubt that one must start with an examination of the context of the provision and not only within the Act itself but within its legislative history and the purpose for which the legislation was intended. Importantly, one needs to look at the whole scheme of the Act to ensure that provisions operate harmoniously.
In my learned friend’s outline of oral argument he suggested that it is not permissible to look at extrinsic material unless there is ambiguity, but that is not the law in the Interpretation Act 1984 (WA). Section 19 specifically allows for reference to extrinsic material:
in the ascertainment of the meaning of the provision, consideration may be given to that material –
(a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the written law and the purpose or object underlying the written law; or
(b) to determine the meaning of the provision when–
(i) the provision is ambiguous or obscure; or
(ii) the ordinary meaning conveyed by the text of the provision taking into account its context in the written law and the purpose or object underlying the written law leads to a result that is manifestly absurd or is unreasonable.
So far as the last provision is concerned, the respondent does submit that in relation to the arguments concerning section 147 the interpretation intended for by the appellant would result in an unreasonable operation of certain provisions of the Act, in particular, sections 82(4) and 87. I will come and deal with those in some detail a little later.
His Honour Justice Heydon at one point made the comment that the legislation, in effect, is somewhat medieval because of its scope. There is no doubt that the legislation certainly has been regarded as draconian in its operation and the Court of Appeal in Western Australia has never shied away from describing it in that way and the respondent certainly does not suggest otherwise. One, however, needs to start with what is the purpose of the legislation.
It is certainly not the only form of legislation in Australia that has a provision for substituting property for property that is either described as crime-used property or tainted property. Given that the issue has arisen in terms of the scope of the legislation and the purpose, which I will deal with in a moment, it may be appropriate, with the Court’s leave, for me to make available a list of the various confiscation or proceeds of crime statutes in Australia which includes those which have substituted property provisions within them. So with your Honour’s leave I - - -
FRENCH CJ: Yes, thank you.
MR FIANNACA: May I say, I am providing these simply for the assistance of the Court. There are differences, of course, in most of the other legislation. The only one that is precisely in the same term, so far as the crime-used property substitution provisions are concerned, is the Northern Territory legislation. But other statutes in Australia deal with tainted property generally, or similar descriptions of property, which would encompass what in our legislation is crime-used property.
The crime-used property substitution-type provisions in those statutes are therefore confined to a form of property, that is, tainted property or crime-used property, and generally described with the phrase that appears in section 146(1)(a) of used “in or in connection with facilitating the commission of a confiscation offence”.
In our respectful submission, the self-evidently clear purpose of this sort of legislation is to deter crime, and it is to deter crime by making it a consequence of using property for the purpose of committing an offence, or committing offences on particular property, making it a consequence of those acts that one will lose one’s property.
Crime-used substitutions provisions are addressing precisely the same intention, in our respectful submission, that is, to deter crime, and to do so by preventing those who might seek to defeat provisions such as those in section 146(1)(a) by using somebody else’s property or by committing offences on somebody else’s property. That is clearly what Parliament has intended in the relevant legislation in Western Australia when one has regard to all of the provisions, including section 22 which I will come to, and sections 82(4) and 87.
There are safeguards built in to protect those who are innocent parties and my learned friend has referred to some of those matters. One of the important features of the legislation however is to ensure that a person who has effective control of property, although not legal ownership of the property, to ensure that such a person does not avoid the consequences of criminal activity committed on property, or committed by the use of property, because that would of course allow, otherwise, for someone to simply defeat the operation of the Act by placing property in another person’s name, and I will come to - - -
FRENCH CJ: This goes well beyond that sort of avoidance device, does it not? The accident of something happening on land belonging to another which involves in some way the use of the premises to effectuate the commission of the crime - it is not simply getting over avoidance devices.
MR FIANNACA: Sorry, I am not sure what your Honour means about that because it is seeking to prevent those who might use property - and I am using “use” here in a broad way, which I will come back to in dealing with section 147 - those who might use property to commit crime, but who are effectively avoiding its consequences by having the property in somebody else’s name or is simply using someone else’s property. It seems to us that it is clearly intended to avoid an offender from defeating the consequences of the act that would otherwise flow by virtue of the crime-used property provisions. But we can perhaps - - -
BELL J: Appreciating that - - -
GUMMOW J: It may be over-broad, I think, as the Americans would say.
BELL J: What is the policy that you identify behind the provision that operates with the effect that the accidental circumstance of being on property, as inevitably one must be, in committing an offence provides the mechanism for determining an additional liability by way of a substitution order, that depending on whether you are on a property worth a lot of money or a property worth very little? It seems a bizarre policy.
MR FIANNACA: Without descending into very specific examples and legislating in a way that deals with every possible circumstance that may arise, in our respectful submission, the only way that the legislature can deal with this sort of matter is by way of a general provision, albeit that on occasions it may have extreme consequences.
GUMMOW J: What do you mean by “extreme consequences”?
MR FIANNACA: The sort of consequences, I think, that her Honour Justice Bell just identified, that it may be an accident as to whether one is on very valuable property when committing a particular offence rather than on less valuable property. The sort of example that my learned friend gave about property worth millions of dollars is the sort of extreme example that one might have in mind.
FRENCH CJ: Supposing you commit an offence on an A-class reserve vested in a local authority, that is property which would come at least within the understanding of that term as used in this Act?
MR FIANNACA: Yes.
FRENCH CJ: Really, it is just a vehicle, one way or another, for getting at the offender’s assets. The crime-used property device is just a device for doing that, is it not? The substituted declaration, sorry, is just a device for doing that, is it not?
MR FIANNACA: It is a device for getting at the assets.
FRENCH CJ: It is not advancing any policy of getting around people who put land or assets in other people’s names so that they can use them with impunity to commit offences. It is so much broader than that that it is almost ludicrous to suggest that is behind it.
MR FIANNACA: With respect, your Honour, that is precisely what was said in the second reading speech.
FRENCH CJ: It is a bit hard to swallow.
MR FIANNACA: We have reproduced that at paragraph 27 of our written submissions. Whilst it might be hard to swallow, that was the purported intention behind the legislation. As everyone acknowledges, it may have extreme consequences, but the policy behind it, in our respectful submission, is a matter for Parliament, in any event, but which is a legitimate policy of seeking to deter criminal offending.
FRENCH CJ: The intention is to be found ultimately from the words of the statute, not from what the Minister says is intended. I mean, that may be in aid.
MR FIANNACA: Yes, but, your Honour, I am seeking to distinguish here between intention, as it may be manifest in the legislation, and the purpose as in terms of policy, because I commenced by saying that one is entitled to look at extrinsic material to identify policy. The second reading speech provides some insight into that, even though the way in which the legislation has been framed may ultimately go beyond what is necessary for achieving that policy, but it is, in the end, a question of choice on the part of Parliament as to how it deals with these sorts of situations, and it seems to us, as I explained earlier in answer to Justice Bell, short of descending into every possible circumstance that might arise, one has to approach the matter in a general way.
BELL J: Why on the face of it is not the construction for which Mr Shirrefs contends a rational way consistent with the policy that you identified at the outset, which is to deter people from engaging in crime? One means of doing that is for it to be known to people that if you use property in connection with a criminal activity, you are liable to lose it if it is your own property, or lose the equivalent value if it is someone else’s. That is a rational policy, but it would not include 146(1)(c).
MR FIANNACA: But you see, your Honour, and I am assuming your Honour is here really referring to section 147, because I will come back to questions of construction of 146(1)(a) - - -
BELL J: What I am addressing at the moment is the construction of 147 for which the applicant contends, which bears on 146.
MR FIANNACA: The reason that the construction lead is not a reasonable construction in circumstances - and why there is a need to read the words “uses or intends to use” in a different way to the way in which the words have been construed for the purposes of 146(1)(a) is, in the first place, because the legislative scheme overall points to an intention on the part of Parliament to treat all persons who have bought property within section 146(1), and (3) in fact, under section 146 as crime-used property, on an equal footing in terms of substituting property for the crime-used property if they are not the owners, because the question can legitimately be asked in our respectful submission, what could be the policy for differentiating between such persons?
It seems to us that, as the court below correctly identified, there really is no reasonable explanation for why Parliament would choose to differentiate persons in that way. Yes, 146(1)(c) might be seen to have potentially extreme consequences, but if one uses their own property and comes within 146(1)(c) they stand to lose that property. It is crime-used property, they lose it. Somebody uses the property in a way identified under 146(1)(a), they stand to lose the property.
The question which begs to be answered, of course, is why would Parliament differentiate between the two classes of persons in terms of substituting property for crime-used property when there is no distinction between them, in terms of losing their property if it was their own. In our respectful submission, there is no policy reason why that should occur.
BELL J: It would avoid some of the more extreme possibilities in the range that has been discussed this morning. If one commits an offence on one’s own property one knows what it is worth and one understands the consequences of that, but the serendipity of committing an offence in the Perth equivalent of the Sydney Opera House with the consequences that follow may be thought to attract different considerations.
MR FIANNACA: Yes. The court below in the President’s judgment did seek to deal with the question of extreme consequences and her Honour did suggest, although in the end it was not really necessary for the purposes of determining the case because section 146(1)(c) was not in question, that is, it was accepted that the conduct came within that particular provision, but her Honour sought to identify examples where the consequences might be seen to be extreme and sought to read down to some extent the operation of section 146(1)(c). It may be that that is an appropriate way in which to approach 146(1)(c), although - - -
BELL J: I thought your submission started with the need to go to extrinsic materials because the construction for which the applicant contends produces a result that is unreasonable. Now you are conceding on your own construction that it is necessary to read down 146(1)(c).
MR FIANNACA: No, what I am saying, your Honour, is that in the court below the President identified ways in which it might be thought that there needs to be more than a tenuous link between the act and the property on which the act is committed.
GUMMOW J: Is it correct that you are treating property at 146(1)(c) as land in a colloquial sense?
MR FIANNACA: Yes. Can I answer the question that arises in relation to that, your Honour, perhaps in this way, that when one is using one’s own property one would be making use of the relationship, I think, which his Honour the Chief Justice suggested is necessary, with the property because that is what property generally is concerned with. So it would be the relationship of the person with the land, but one is making use of that relationship by virtue of the fact that one has control, for instance, over the land. Now, in this case there was an element of control in the fact that the appellant rented the premises had keys that could lock the premises and so on, but he was not the owner.
FRENCH CJ: He had a lease, did he not?
MR FIANNACA: He had a lease.
FRENCH CJ: So he had a property interest?
MR FIANNACA: He had a property interest. He had a leasehold interest. That had expired by the time that the application came to be determined.
GUMMOW J: What is “crime-used” then? His lease? Somehow the right of exclusive occupation given him by the lease, is that what it comes to?
MR FIANNACA: Well, in our respectful submission, here what was “crime-used” was the property consisting of the land and the fixtures on the land in terms of the fence and the gates.
CRENNAN J: May I ask you something about the process? Is it right that an application could be made for a freezing order without necessarily being coupled with a section 21 application?
MR FIANNACA: Yes, because freezing orders can be obtained for a number of different purposes, including the examination of persons.
CRENNAN J: Then when a freezing order is obtained I understand that obviously it has to be served under section 46?
MR FIANNACA: Yes.
CRENNAN J: Then that imposes obligations under section 47 on the person who has been served?
MR FIANNACA: Yes.
CRENNAN J: In circumstances where service is not effected, so there is an extant freezing order, possibly as a result of an ex parte application, is it possible under this Act to then move to a section 22 application, or what happens next in practice? Say a person has absconded, you never manage to serve them with a copy of the freezing order.
MR FIANNACA: I will need to check on the question of service. Certainly, if it has been served but the person absconds - - -
CRENNAN J: As notice, obviously.
MR FIANNACA: Yes, as notice and absconds, then - - -
CRENNAN J: I am really asking about what happens if you do not effect service.
MR FIANNACA: If your Honour would just bear with me for one moment? I suppose if one has not effected service of the freezing order itself, there may then have to be a decision made as to whether the matter can proceed, although if the person has absconded the freezing order may simply remain in place until such time as - - -
CRENNAN J: Indefinitely.
MR FIANNACA: Indefinitely, until such time as some application can be made.
GUMMOW J: Does a mortgagee get notice?
MR FIANNACA: Yes. Well, all persons who have an interest in the property are certainly given notice and can be objectors, of course, if they are innocent parties. Your Honours, just continuing on in relation to section 147, so the first point is that it would have a consequence in terms of dealing with persons who have dealt with property in a way that brings it within section 146 that are different depending on which particular class of person you are, whether you come within 146 or you have brought the property within 146(1)(a), (b), (c) or (3), subsection (3) for that matter.
That could not have been an intended consequence, in our submission, but importantly when one deals with a provision that is concerned only with “crime-used property”, so we are putting aside for the moment the “crime-used” substitution declaration provisions, and dealing with section 82(4) concerned with the release of “crime-used property”, the argument it would seem to us is even stronger, that Parliament could not have intended to differentiate between those who bring property within section 146 by virtue of (1)(a) rather than (1)(c) or subsection (3), and yet that is the consequence that would result because of the use of the term “criminal use” in section 82(4)(b).
Now, my learned friend has said that there is no disharmony because there is an accumulation of requirements under section 82(4). One of those requirements is that the objector, who is the owner, to keep the matter simple, is an innocent party in relation to the property, but that may well be the case and, nevertheless, the person who has committed the offence and has brought the property within the provisions of section 146 may have effective control over the property. Now, “effective control” is defined in section 156(1) to mean:
For the purposes of this Act, a person has effective control of property if the person does not have the legal estate in the property, but the property is directly or indirectly subject to the control of the person, or is held for the ultimate benefit of the person.
Then “Without limiting subsection (1)” there are particular examples identified in terms of the “matters that can be taken into account”. If the offender has – and it need not be, I should say, for purpose related to the particular offence, it might be for tax purposes, it might be for any number of reasons – but has put property in the name of someone else – let us take, for example, his mother. So we have an example of this nature back home – so that the mother becomes the registered owner of the land, however, the mother agrees at all times that the property is effectively the property of her son, that he will retain control of that property. The mother has very little to do with the property. In fact, the offender lives at the home and the mother, let us say, either rarely visits or does not visit or is not aware when she does visit of certain activities that may be happening on the property. Let us say that one of those activities is the growing of a hydroponic cannabis crop, all of this occurring without the mother’s knowledge, so she remains an innocent party.
The land is crime-used within section 146(1)(a). The offender is a person who has made criminal use of the land because, on my learned friend’s argument, and I am dealing with that, becomes within 146(1)(a). If the land was frozen on crime-used grounds, well, first of all let us say, obviously if the property was his, if he was the registered owner, it would be confiscated, no question, as crime-used property, but he is not the registered owner. If the land is frozen on crime-used grounds, then it cannot be released under section 82(4) of the Act because paragraph (b) could not be satisfied.
So the mother makes an objection, she is an innocent party, she satisfies (a), she satisfies (c). However, (b) could not be satisfied because the offender has effective control. He is the person who made criminal use of the property and he has effective control over the property. Let us now take an example that occurs under section 146(3) – the commission of a sexual offence on the property. Parliament has clearly determined that there was a need to specify a specifically in relation to those offences without limiting subsection (1) that they were covered. All that is required is that the offence is committed on the property.
All of the conditions that I have explained earlier apply. In this case, however, on my learned friend’s construction, because the offence is under section 146(3) and not 146(1)(a) or (b), he has not made criminal use of the property pursuant to section 147, or at least the definition within 147. Therefore, although he has effective control of the property, the property is not effectively controlled by a person who made criminal use. That is the consequence of my learned friend’s argument. Once again you have the mother, who is the objector, who is the owner of the property, she is an innocent party – she satisfies that. There is no question that all of the requirements have to be satisfied, it is an accumulation of requirements, but our argument in relation to this is on the basis that there could not have been an intention to distinguish between people who had effective control and brought property within the operation of section 146.
When you are dealing with crime-used property per se, not substituting, it would seem to us, with respect, that there is no basis upon which Parliament could have intended to distinguish between the person who makes the property crime-used under 146(1)(a) and the person who does so under 146(1)(c) and 146(3).
BELL J: Can I just ask one question, about the way this Act works? Looking at the provisions of section 82, this is concerned with the release of crime-used property and it contemplates that there may be innocent parties affected by an order. Does it make provision in the case of a substitution declaration, so a person who commits a sexual offence on property, that person’s property then becomes the subject of a substitution declaration? Is there a scheme that allows an innocent party to have that declaration set aside?
MR FIANNACA: Your Honour here has in mind an example where the innocent party, for instance, may be a co-owner with the person against whom the declaration has been made?
BELL J: Yes.
MR FIANNACA: The difference is this, your Honour. The crime-used property substitution declaration is made against the interest of the person.
BELL J: I see, so that is how it is handled.
MR FIANNACA: That is how it is handled. The co-owner’s interest is not affected. The only situation – and I will not shirk this issue – where there is a difficulty is where to confiscate the offender’s property in substitution for crime-used property may cause hardship to the other owner. In those circumstances under section 82(2), a court may make an order under section 82(3), which is concerned – and I will be very specific about it - for instance, a spouse who is a co-owner of a property, or even a spouse who may not be a co-owner but is the spouse of a person, and confiscation of the offender’s property would cause hardship to the spouse. If it is on the basis of crime-used property, so if it has simply been sought to be confiscated as crime-used property, then there is relief under section 82(2). There is no similar relief in relation to substitution.
BELL J: In a substitution.
MR FIANNACA: Yes. That is a matter that needs to be addressed, and from the respondent’s point of view, it is acknowledged that it is an issue, it is an anomaly, in the operation of the Act that requires attention.
GUMMOW J: On this question of policy, in Lawler’s Case, which is [1994] HCA 10; 179 CLR 270 at 279, Justice Brennan said:
The forfeiture of things by which offences are committed goes back to the law of deodands, but modern statutes which provide for the forfeiture of property owned by an innocent person are justified on the footing that the liability to forfeiture enlists the owner’s participation in ensuring the observance of the law and precludes future use of the thing forfeited in the commission of crime.
Do you say that that is a guiding notion here?
MR FIANNACA: It is, your Honour, and it is no doubt more eloquently expressed in what I said earlier, but that is what I was seeking to identify essentially, by saying that the purpose is to deter criminal offending by the use of property in the criminal offending. It is also, of course, as it is identified there by his Honour, to eliminate instruments of crime where there is a potential for property to be continued to be used in that way.
Your Honours, can I say that in relation to section 87 the same argument applies that I have just taken your Honours through in relation to 82(4) and I do not think it would serve any purpose for me to repeat the exercise in relation to that particular provision. Ultimately, your Honours, the respondent submits in respect of section 147 that the interpretation for which we contend which effectively takes the meaning of uses or intends to use in section 147 from the compendious description “crime-used” in section 146 is not an unnatural construction of the provision.
Indeed, some might say that in colloquial terms, at least, use may be employed from time to time to describe when a person does something on property. So the very fact that an activity occurs on a particular property, although it may not make use of the attributes of that particular property as such, might still be thought by some to be a use of the property. That highlights, I think, the fact that there is clearly overlap between section 146(1)(a) and 146(1)(c) and 146(3), and the obvious case that one can bring to mind under section 146(3) for instance, is where there are attributes of a property that are used by the offender to commit a sexual offence.
It is by virtue as happened here, one might say, locking the house and preventing the victim from being able to escape. Perhaps even locking the victim within a particular room of the house. So attributes of the house are being used to enable the offender to commit the sexual offence. In our respectful submission, it would clearly come within section 146(1)(a) although it is covered by 146(3). The opening words of 146(3) make it clear that there is not necessarily any inconsistency because it says:
Without limiting subsection (1) or (2), any property in or on which offences –
of a sexual nature are committed.
BELL J: If subparagraph (1)(c) is to be understood as you put it, what is the need for (3)?
MR FIANNACA: One might argue none, with respect. I think it was intended – and this is dealt with in the second reading speech – intended to make it absolutely clear that offences of that kind, when committed on property, would render the property “crime-used”.
GUMMOW J: Part of the difficulty with this legislation I suspect, is that the forfeiture of the Perth Concert Hall possibility could have been avoided if 22(1) had been drafted not by imposing an obligation on the court but if it left the court some room to apply some residual commonsense. Once your Parliament starts inserting words like must and directs it to courts it is not allowing for the necessary elasticity which the wisdom and the history of judicial power indicates may be needed from time to time in order to make legislation work sensibly, and it does not leave room for pushing to one side the extreme circumstance which then, by reason of its presence, tends to undermine the other operation of the Act; that seems to be the fundamental drafting problem. I know it is not for you to – you have got to live with it.
MR FIANNACA: Well, your Honour, it may be a drafting problem, although I think if your Honours – and I do not intend to go through the whole of the second reading speech, but if your Honours have regard to the second reading speech it will be apparent that Parliament, or at least the government of the day - - -
FRENCH CJ: Or the Minister.
MR FIANNACA: The Minister was - - -
FRENCH CJ: I do not think one should ever confuse expressions of intention by the Executive with that of the Parliament.
MR FIANNACA: Your Honour is quite right, because the speech in the end is intended to be a guide as to what is intended to be achieved. Often debate will occur, but if the legislation is passed, then it is extrinsic material that can be referred to. What I was going to say, however, is that the intention of the Bill at least, as it was explained by the Minister, was to, in fact, take away any discretion in relation to it in order to make it tougher. There is no question that Parliament intended, ultimately, to enact a piece of legislation that is very tough in its application.
FRENCH CJ: The problem is, if you end up with a law which has extreme consequences, not in every case, but in some cases, it brings the law into disrepute; it clouds the moral clarity of the law.
MR FIANNACA: No doubt, your Honour, if I may say so, that is a matter which would guide those in the Executive arm of government who are responsible for making the discretionary decision.
FRENCH CJ: Well, it may also be a guide to construction, may it not?
MR FIANNACA: It may, but in our respectful submission, the construction that the respondent contends for in this case – it is not justified to read it down by looking at what extreme consequences might follow. What really needs to be ascertained is what was the intention of the legislation by looking at all of the provisions, and the reference to section 82(4) is a clear indication that it simply could not have been intended to distinguish between persons who make property crime-used when one comes to releasing property from use. The final point that we make in relation to 147, it is probably the first point in fact, is that it is concerned with identifying the person against whom a declaration can be made for the purposes of section 21(1), because one starts really with section 21(1), which says that:
The DPP may apply to the court for a crime-used property substitution declaration against a person.
It is not against property; whereas a crime-used property confiscation order, ultimately, is an order in relation to the property itself.
So far as the presumption in 22(3) is concerned, I think my learned friend may have – and I might have misunderstood him – effectively assumed to himself or the respondent in proceedings of this kind the need to establish that the property was not crime-used property within section 146(1)(a), for instance. But in fact the starting point is that the property, under section 22(1)(a), must be crime-used property and that it is not available for confiscation, as mentioned in subsection (2), so one starts with the need to be satisfied that it is crime-used property. The presumption operates to hold that the respondent has made criminal use of the property and the property is clearly the crime-used property, unless the respondent establishes to the contrary.
Now, if my learned friend’s argument in relation to intention in respect of 146(1)(a), which I will come to shortly, were correct then it would be one of the matters that the respondent would have to negate – that is, what his intention was at the particular time – it seems to us, if reference is being made to criminal use by aligning it with section 146(1)(a) or (b). However, our position is that such an intention need not be imported into section 146(1)(a).
I think my learned friend put a further argument in relation to 147, and it is really his starting point where he says that the wording of section 147 mirrors that of 146(1)(a) and (b). But it does not quite, in our respectful submission. It does not say that a person makes criminal use of property if the person, alone or with anyone else, uses or intends to use the property, directly or indirectly or in connection with the commission of confiscation offence, et cetera, as appears in section 146(1)(a) or the wording in 146(1)(b). What it does say, however, is “uses or intends to use the property in a way that brings the property within the definition of crime-used property”. Now, crime-used property, by virtue of the glossary, is taken to mean the things that are crime-used property by virtue of section 146 of the Act.
There is no narrowing of the kind of crime-used property that is intended to be referred to in 147 in those words. It is simply bringing the property within the definition of “crime-used property”. Had it been intended to confine the operation of 147 to crime-used property under section 146(1)(a) and (b), it would have been very simple to say it brings the property within the definition of “crime-used property” in subsections 146(1)(a) and (b).
FRENCH CJ: Well, (a), (b) and (c), on any view, are alternative consequences of the use contemplated in section 147 which bring the property within the definition of “crime-used property”. So to that extent, 146(1)(a), (b) and (c) all have work to do because the definition of “crime-used property” picks up each of those.
MR FIANNACA: Yes, it does.
FRENCH CJ: So that is an outcome of the criminal use of which 147 speaks. The question is whether the use which produces one or other of those outcomes includes the doing of an act or omission:
in or on the property in connection with the commission of a confiscation offence.
I suppose it is logically open to say that there may be some use which produces that outcome, even though it does not fall within the full breadth of that definition.
MR FIANNACA: Yes, that may be so, but can I say, your Honour, that the use of the description “crime-used” in section 146 to cover all of the activities in (1) and, indeed, in (3) must indicate an intention on the part of the legislation to treat conduct that falls within those provisions as constituting a form of use, because it is saying if these things occur, then the property has been crime-used and by doing that, it seems to us, with respect, it has then used a shorthand way of describing all of that in 147 by using the words “uses or intends to use.”
Can I say, your Honours, we really cannot take that matter any further than that. It really ultimately is a matter for your Honours and we acknowledge the general approach where, if ambiguity remains in provisions that abrogate rights, then it is resolved in favour of limiting the application of the provision. We do not shirk from that. It seems to us, with respect, that there is nothing unnatural about the interpretation that the respondent contends for. It is consistent with the use of the language in 146 and when one has regard to the whole scheme of the Act it would create difficulties that could not have been intended if criminal use was meant to be confined in the way that my learned friend has argued.
Your Honours, can I turn then to the interpretation of section 146(1)(a) and whether the use in that provision must be for the purpose of committing the specific confiscation offence. My learned friend, I think, starts by going to section 22(3) and says that:
If the respondent has been convicted of the relevant confiscation offence, it is presumed that the respondent made criminal use of the property unless the respondent establishes the contrary.
It takes your Honours to the definition of “relevant confiscation offence” in the glossary which says that:
in relation to confiscable property, means the confiscation offence or suspected confiscation offence that is relevant to bringing the property within the scope of this Act –
There is no question that under section 146(1)(a) when one is proceeding on the basis of a particular confiscation offence, as the respondent did in this case - that is the DPP did in this case – then one is saying that the property is crime-used because it has been used directly or indirectly in or in connection with the commission of that particular confiscation offence.
That begs the questions, however – and it seems to us, therefore, that it is not the answer that my learned friend suggests it is – of what intention is required or if any particular intention is required in terms of the kind of offence that the property is being put to use for. One can think of examples that make the argument that the section somehow, without specifically saying so but by virtue of its words “use or intent to use”, somehow imports an element of an intention, namely, an intention to commit the specific confiscation offence is problematic.
If I can perhaps commence with this one which takes the circumstances of this particular case – let us say that it was established, the court was satisfied that the appellant intended to kill Mr Tapley at the time that he locked the gates, the purpose for which he used the property then was to murder Mr Tapley.
The specific confiscation offence that he intended to commit was murder. Assume that he had failed to carry out his intention and had only wounded Mr Tapley, who was able to make his getaway. He may be guilty, at most in those circumstances of attempted murder, depending on proof of his intention, of course. That is a different confiscation offence to murder. Attempted murder is an offence under section 283 of the Criminal Code, murder is an offence under section 279 of the Criminal Code. It seems to us, with respect, this highlights two problems.
First of all, one might think there is a logical conundrum in requiring that the offender must have intended to use the property for the purpose of committing the specific confiscation offence of attempted murder when that offence itself involves an intention to kill, and proof of that, had he been successful, would mean that the purpose he had in mind was, in fact, murder. So there is a logical problem, in our respectful submission, with that approach. But secondly, it would make nonsense of the provisions of section 146(1)(a) if the property were then held not to be crime-used within that provision, because the specific confiscation offence that the offender intended to commit murder, was the completed form of the offence that he in fact committed. That simply could not be the way in which this section was intended to operate.
One might take a different sort of example that avoids complications that might arise with the use of real estate property. Let us consider the use of a gun to shoot at a victim. It happened here, and I will come to another alternative in a moment, but it may not be possible to decide what the offender’s intention is at the time that he fires shots at the victim. When a jury is considering the matter, they may have a view about the offender having formed a particular intention or they may not, and ultimately the offender may be convicted of an offence such as unlawful wounding or grievous bodily harm that does not involve any element of intention, but clearly the offender intended to shoot at the victim which in itself is an unlawful activity.
If the offender, in fact, commits the offence of unlawful wounding, is the gun to be immune from confiscation because it is not possible to establish the offender’s intention at the time, because on my learned friend’s reading it would be necessary to establish that at the time that he used the gun he, in fact, intended to commit the offence of unlawful wounding, because that is the specific confiscation offence of which he is convicted?
HEYDON J: Can these problems be overcome by the words “in connection with”?
MR FIANNACA: Well, no, not on my learned friend’s argument. On the interpretation of the court below, it is because “in connection with” is given a breadth of application that does not require an intention to commit the specific confiscation offence. It is the interpretation, we respectfully submit, that is correct, because these consequences could not have been intended from the operation of these particular provisions.
I should draw your Honour’s attention to the fact that there are other legislative provisions that relate to guns in cases put against me, yes, that the gun can be confiscated by other means. In our submission, that is not an answer in any event to the question of interpretation for the purpose of these provisions. I should indicate that section 731 of the Criminal Code provides for forfeiture of property that is used to commit offences, but again in that provision the property must be “used in or in connection with the commission of any offence”. So we have the same problem if my learned friend’s interpretation of those words were correct.
The Firearms Act 1973 in section 28 provides for forfeiture of a firearm if a person is convicted of an offence under any written law of any firearm to which the charge relates. Now, that might be said to be an answer here because if the charge relates to the use of that particular firearm – although it does not say “use”, it says to which the charge relates, so there might be a question of interpretation there. The argument can be posited by using any number of other forms of weapon, whether a knife, a chainsaw, any kind of weapon or instrument that might be used as a weapon which would not be covered by the Firearms Act. There is a Weapons Act in Western Australia, but the forfeiture provisions in that Act only relate to convictions for an offence under that Act, so they would not apply here.
So if the weapon was a machete or a very valuable samurai sword or something of that nature, on the argument that my learned friend is putting it seems to us, with respect, the item would be immune from confiscation if it could not be established that when he used it to slash the victim the offender intended to commit the particular specific confiscation offence of which he was convicted. Now, in our submission, the words of section 146(1)(a) make no reference to the need to prove an intention to commit the specific confiscation offence and for the reasons that we have outlined, it is not necessary or appropriate and, in fact, would result in absurd outcomes if, in fact, that such an intention were incorporated.
GUMMOW J: At paragraph (c) it does seem to be talking about land, does it not?
MR FIANNACA: Yes, or vehicles, perhaps, your Honour, but certainly not instruments that might be used, if you like - - -
GUMMOW J: That is what I am wondering, yes. Paragraphs (a) and (b) are readily understandable in terms of weapons of one sort or another.
MR FIANNACA: Yes. I should answer the proposition that my learned friend put by reference to DPP (NSW) v King and the judgment of Justice O’Keefe. My learned friend read the passage at paragraph 33 that states:
However, the over-arching principle that in my opinion can be extracted from the cases in relation to that part of the statutory definition of tainted property presently under consideration is that some activity connected with the relevant crime - - -
HEYDON J: This is the third time this has been read.
MR FIANNACA: I am sorry, your Honour - - -
HEYDON J: We have mental problems, but not that bad.
MR FIANNACA: I do apologise, your Honour. Can I then go to the next sentence because that is the sentence that has not been referred to. It is this:
In none of the cases referred to has the mere fact that the property in question has been the place of commission of the crime and nothing more been held to result in the property being tainted property within the meaning of the forfeiture statutes.
My point is that the previous sentence – and it is why I was reading it – was clearly meant to be distinguishing that kind of situation, which in the Western Australian legislation is covered by section 146(1)(c), of course.
FRENCH CJ: Going back to that point that Justice Gummow just raised with you, incidentally, 146(1)(b) also seems really to be directed to land or things on land, does it not?
MR FIANNACA: It does. It might be thought to be seeking to deal with the situation in the case of Milienou which is referred to in the list of authorities or within the submissions, where a woman who had been storing stolen clothing in her property was found not to have used the property in connection with the commission of the offence.
So getting back to DPP v King, in our respectful submission, what his Honour there had to say about there being a need for the aim and purpose of committing or furthering the commission of the crime in question is not really helpful, with all due respect, in dealing with the issues of construction that we are dealing with in this particular case.
Your Honours, that then brings me to the findings that the Court of Appeal actually made in relation to 146(1)(a), because of course even if the appellant’s argument in relation to 147 had succeeded but the Court of Appeal was correct in its application of 146(1)(a) then the appeal would fail.
I will deal first with the question of construction. I have dealt with the question of whether an element of intention is imported, I will deal now with the argument that my learned friend puts against the notion of the consequences of the Act being sufficient. It seems to us, with respect, that all that the Court has done is applied the various interpretations that have been suggested are open from the words “in connection with” and, in particular, when one has a broadening of that concept to the notion of “indirectly in connection with the commission of a confiscation offence”.
In any event, so far as the findings of the Court here were concerned, there were two bases upon which it decided that it was crime-used property under 146(1)(a) – can I describe it in this way – the use of the premises effectively as a locked enclosure, a trap, I think as his Honour Justice Heydon used the term earlier, and, secondly, to conceal the crime by taking the body back onto the property. I will deal very quickly with the second one first because it seems to us that it is not just a question of doing conduct after the event.
As we submit in our written submissions, there is a proper basis on which to conclude in this case, in our respectful submission, that the ability to immediately take Mr Tapley’s body back onto his property, the property that he was occupying, and hide him there and thereby conceal his crime would have and must have provided the appellant with confidence that he could do what he did, that he could commit the crime. So it is not simply a matter of looking at his conduct after the event. It is a matter of looking at what significance that conduct might have in relation to the commission of the offence, and it is a potential use that he had, an intended use, in connection with the facilitation of the commission of the offence.
So far as the actual findings that the property was used effectively as a trap, the factual findings, in our respectful submission, were properly grounded in the evidence before the Court which was the evidences before the judge at first instance.
I will deal, before I go to the specifics of that evidence – and I do not intend to dwell on it at length because it is set out in paragraphs 6 through to 15 of our written submissions – but I will deal first with the comments of Justice Scott at page 239 of the appeal book, at the time of sentencing. His Honour said that the passage that my learned friend read at the top of page 239, and then said:
As I said after the jury’s verdict, it is not clear on the evidence what your motivation was.
That was what his Honour was expressing as his view of the evidence in terms of the motivation for the offender wanting to speak with the victim and wanting him effectively at the premises at the time.
One has to consider this in the context that it was a comment made during the course of sentencing remarks. If his Honour was going to make any findings adverse to the offender, he would have to be satisfied beyond reasonable doubt; that is not the standard of proof required in confiscation proceedings. Ultimately, his Honour did not take the matter any further. In our respectful submission, it was open to both Justice Jenkins and the Court of Appeal to form their own views about the conduct and the intention of the appellant by reference to the established facts and drawing inferences. What the appellant’s submissions in this case do, in our respectful submission, is to effectively take the approach that was taken by the Court of Appeal in Hillier, which this Court found to be erroneous, and that is to approach each piece of evidence in a piecemeal way rather than looking at the overall effect of the evidence.
My learned friend has suggested that one cannot look at conduct after the point in time when an intention is alleged to have been formed to determine what that intention was. With all due respect, we just do not see how that could be correct either in logic or as a matter of legal principle. One regularly relies on the conduct of persons after they are alleged to have performed a particular intention to determine what that intention was. In this case, the appellant telephoned Mr Reid. There was no dispute, either before Justice Jenkins or in the Court of Appeal, that – there was no argument that the court could not rely on the evidence of Mr Reid and that had to follow because a jury clearly accepted the evidence of Mr Reid to find the appellant guilty.
Mr Reid’s evidence was that he was contacted by telephone by the appellant to go and lock the gates and not to let anyone in or out or come or leave the premises. So it was not just to lock the gates, but it was specifically to do with not letting people come in or out, nothing to do with trucks or containers or dogs, with all due respect. The fact is that when people like Susan Miller went there initially on the day and, indeed, when Mr Reid attended the premises that day, the gates were unlocked. When Mr Reid went the following day, according to his evidence, the gates again at that time were unlocked. So there is no suggestion that it had anything to do with trying to protect property on there and Mr White, the appellant, must have been aware that the person, Rainbow, was at the premises because he was effectively the caretaker there. So, in those circumstances, the jury were entitled to conclude that the reason that he gave that instruction to Mr Reid was to prevent someone who is at the premises from leaving the premises.
My learned friend says there were no telephone records to suggest that there was any phone call that might account for Mr White, the appellant, becoming aware that Mr Tapley was at the premises. The problem with that proposition is that the telephone calls referred to in the cross-examination of Mr White were not all of the telephone calls in evidence before the jury, and it is difficult now for this Court, when this proposition has been made in submissions after the appeal book has been prepared, to be able to look at all of the evidence in terms of telephone calls, the telephone records, to make any judgment about that.
The cross-examination of Mr White with my learned friend referred to at the bottom of page 190 of the appeal book from 60 onwards, needs to be considered in this context, that what was being put to the appellant at that point in time was not that he was unaware of Mr Tapley being at his premises when he made the telephone call to Mr Reid which the appellant denied, but that the telephone calls from Susie Miller were earlier in time than the time that the appellant was suggesting in terms of Miller having called him to say that she wanted drugs. So he basically was suggesting there were two occasions, what was being put to him was that there was only the one occasion when she asked for drugs, and that was earlier in time, so it was in that that context that that question was put:
what happened was that Susie Miller and Ant Tapley simply turned up unannounced at your property at 12 Jade Street in Maddington. That’s the position, isn’t it?---I really can’t remember.
He goes on to say about the telephone calls, but can I just direct your Honours’ attention to the fact that he expressed uncertainty, ultimately, about the telephone calls at page 211 of the appeal book and I will not go to that particular passage. All that was being put to him at the bottom of page 190 was that the attendance at the premises was unannounced, not that he was not aware of it by the time that he went to the premises.
The fact that he had asked Mr Reid to lock the gates was corroborated in some way by the evidence of Mr Reid’s girlfriend, Ms Moutinho, and this was put during the course of cross-examination of the appellant, who said, said Mr Reid, “Said he had to go, came back asking for where the keys were for the premises”, indicating that there was a need for him to have keys for a particular purpose.
The evidence then established that Mr Reid attended the premises. The person called Rainbow was there and he directed Rainbow to lock the gates. There is nothing difficult, in our respectful submission, with the proposition that what Rainbow did at that point in time was effectively to act as an innocent conduit for the instructions that had come from the appellant because Reid was the one carrying out the instructions and he has asked Rainbow to close the gates, it does not matter whether Rainbow knows or does not know why he has been asked to do that.
When Mr White, the appellant, attended the premises he had to unlock the gates. He locked them again behind him. That was the evidence of Reid. So it was clear that he was continuing to put the premises in a state of being locked, effectively an enclosure, a locked enclosure. What he then did was to go immediately to where the women were and to demand that they leave the premises. He also confronted Susan Miller with the question that his Honour Justice Heydon earlier referred to, essentially “Why have you brought this man here?”
Now, in our submission, the inference that is open from that is not that he was surprised but that he was demanding to know, as one of the very first things that he did when he came to the premises, why Susie Miller had brought Mr Tapley to the premises.
As soon as the women have left, and one has to look at all of this in context, the context that the jury had, the people who were at the premises were either males that he was familiar with, part of his coterie, if you like, and who either had a connection with the premises or with Mr White in some other way, and the women. Once the women were told to leave, and they did in fact leave, those who remained were persons who were part of his coterie, as I described it. In order for the women to leave, Rainbow had to unlock the gate. He, by that stage, must have known that the appellant was there because the appellant was making no secret – the evidence of Mr Reid was that he was shouting and was quite abusive, and Ms Miller confirmed that – that he was there, so Rainbow must have known that he was there. He must have known that in order to get into the premises, he has come in by unlocking the gate and locking it behind him, because Rainbow has had to unlock the gates. Rainbow has then locked the gates again. All he is doing is keeping the premises in the state in which the appellant wanted the premises and in which the appellant must have appreciated the premises were at that point in time.
So it is not a question. It is really a distraction from the proper inquiry to be considering, what was Rainbow’s state of knowledge or what was his intention, his purpose for locking the gates. The real question is, what was the appellant’s state of knowledge and his intention? As soon as the women had left, according to Reid, he comes out of the residential premises towards where Mr Tapley was at the back of the yard and as he is walking to him he is saying to him, “You owe me money” or “Where is my money”, and when there was no answer, he said, “I am going to make an example of you” and then pulled out the gun from his pants behind himself as he was walking towards Mr Tapley – this is not something where it has occurred over a long period of time. Mr Reid’s description was that it all happened very quickly and in a heated way – and immediately starts to shoot at Mr Tapley.
Now, if that is not evidence upon which the court below was entitled to conclude that the appellant’s intention must have been from a fairly early stage to confront Mr Tapley with a weapon if he did not resolve whatever the issue was, then it is difficult to conceive of what evidence would satisfy that conclusion. So, in our submission, what he then did was to shoot at him a number of times until he fell over the gate and then had to unlock the gate to go out and shoot him a final time before Mr Tapley was dead.
Now, in all those circumstances, it is appropriate, in our respectful submission, to regard the way in which he treated the property as constituting the use of the property. He was certainly using attributes of the property. Those attributes at that particular point in time were that it was locked, that it had barbed wire across the top of the gates and the fence which would have provided an obstacle to his intended victim from escaping.
So it is not simply a matter of asking a question at the time that he telephoned Reid, and it is not the way in which the Court of Appeal dealt with it, in our respectful submission, it is not simply a matter of asking when he telephoned Reid and asked him to lock the gates what was his intention at that point in time, fixed, once and for all. In our respectful submission, the concept of “use” does involve continuing conduct and at times evolving conduct and that is precisely what was occurring in this scenario. The intention was manifest by his behaviour from the moment that he left.
Can I just add to what I just said about attributes, that all of this has to be considered in context. The Court of Appeal was not being asked to look at this evidence in a vacuum. The context was that this was in the evening at least, night time, on a Sunday in August in an industrial area where there was an element, therefore, of isolation from persons who might be alive to what is happening away from the premises. The attributes that he has taken advantage of, has used in that way, must be considered in that context, in our respectful submission.
When one has regard to all of that, the Court of Appeal was entitled to come to the conclusion that he used the property in the way that they described at 299, to which your Honours have already been taken, where the learned President said at paragraph 39:
The intentional locking of the gates was for the purpose, and had the effect, of preventing or impeding Tapley’s departure from the Maddington land before the respondent had finished dealing with him.
It was not only a perfectly reasonable conclusion to arrive at on the balance of probabilities by way of inference but, in our submission, the only reasonable inference to be arrived at. I think your Honours, unless there are any questions about the facts, those are the statements I want to make about the facts.
If I can just return finally to the question of the operation of section 147 as the point has been made to me, which I think is an appropriate point to conclude on and that is that the interpretation that has been proffered by the appellant does not solve the problem that the court has identified of extreme cases. It simply makes the act rather haphazard in the way it applies to such cases because it would not absolve property from being confiscated on the basis that it is crime-used, even though it might be an extreme case, but it may do so on that interpretation in relation to a
property that is owned by the tainted person, the offender, who has brought the property under the provisions of the Act. May it please the court.
FRENCH CJ: Yes, thank you Mr Fiannaca. Mr Shirrefs, how long do you think you will be?
MR SHIRREFS: I was wondering about that. I will probably be about 15 minutes to 20 minutes. I am in your Honours’ hands whether you want to return it.
FRENCH CJ: Yes, you can proceed.
MR SHIRREFS: If your Honour pleases. Could I go back to the beginning of my learned friend’s submissions and deal firstly with his reference to comparable legislation and the chart that has been handed up to your Honours. This is with respect to legislation in which there is available property substitution declaration orders.
With respect to each of those provisions, unlike the Western Australian Act, a discretion is invested in the Court with respect to the making of a declaration. The Northern Territory legislation is, for all intents and purposes, identical to the Western Australian legislation in 21 and 22 except it contains the word “may”, not the word “must”.
GUMMOW J: Where do we see that? In the Northern Territory Act, is it?
MR SHIRREFS: I think that is section 81 and 86, your Honour.
HEYDON J: Section 81(2).
MR SHIRREFS: Subsection (2):
On hearing an application under subsection (1), the court may declare that property of equivalent value owned or effectively controlled by the respondent is to be substituted for crime-used property if –
compare that to 22(1) of the Western Australian Act. It substitutes “may” for “must” but otherwise is identical. With respect to the provisions that concern crime-used or their equivalent, the legislation that has been handed to the Court is concerned with property that was used or intended for use in connection with the commission of an offence. It is not dealing with the situation that we have here under section 146(1)(c) or 146(3).
So one is not dealing with an act or omission that occurred on property which then renders it crime-used or an offence that was committed pursuant to the provisions of the Code that are concerned with sexual type offences. They are provisions that are concerned with property being used in a manner in connection with the commission of the confiscation offence.
The next point - and I will not dwell on this - if one has recourse to the second reading speech for the purpose of the provisions, it does not include the circumstances that exist in this case where the legislation, we say, goes to unintended use with respect to deeming property to be crime-used. The purpose as expressed in the second reading speech is in relation to where another person uses property for a purpose in committing the offence in question but they use somebody else’s property and thereby avoid the consequences.
When one reads the second reading speech and indeed, all the extrinsic material, it is where the person has deliberately chosen to substitute somebody else’s property and use that in the commission of the offence. Here we have a situation which is quite different in both 146(1)(c) and 146(3).
FRENCH CJ: On any view the Act goes beyond that.
MR SHIRREFS: The Act clearly goes beyond that. In terms of section 147, my learned friend suggests that the legislative scheme intends that all persons should be treated on an equal footing. That misses an important distinction between the provisions. Section 146 is concerned with property. It is not concerned with persons. It is concerned with property which is, therefore, deemed to be crime-used. The consequences of that are if that it is frozen property, it is confiscated to the State automatically by virtue of section 7 but if there is a person who objects to that forfeiture that person can come along and engage sections 82 or 87 and try to satisfy the court of the cumulative provisions, because they are an otherwise innocent party.
The difference between that and the effect of section 22 is that it attaches to the person and it is an important distinction. It attaches to the person and property which is not crime-used because it attaches to the person’s own property which is not the property that was used in the commission of the offence. It should not be thought that Parliament intended that both should be treated equally. One could readily understand that there should be a different approach in terms of treatment when one is focusing on property that within section 146 was used as defined in the commission of the offence as opposed to a substitution declaration against an individual that then focuses on their unconnected property to then require that property to be declared to be substituted to the State to the value of the property that was used. That, in our submission, is an important distinction.
The example that my friend then used to say an inconsistent approach, if the construction we contend is the correct approach, where a person has put the house that they otherwise own, registered the house in terms of legal title in the name of their mother. The effect of that would be that the State could not seek to make an application for a property substitution declaration because the definition of “ownership” includes equitable ownership and would extend to the situation he proposed where you would have a constructive trust arising in relation to the legal title vested in the mother who is registered on behalf of the son who has effectively got control of it. So there is an equitable interest.
In those circumstances, the son is deemed to be an owner under the Act. Therefore, no property substitution declaration could be sought. So that particular example, we submit, was not of any assistance in terms of seeking to distinguish a perceived inconsistency that would otherwise arise which we say does not arise if the construction we contend for in relation to section 147 is adopted, as it was adopted by Justice Jenkins and Justice Templeman in Bowers.
The overlap that is referred to between sections 146(1)(a), (b) (c) and subsection (3) may well exist, but the fact that a person may fall within section 146(3), but also because of the manner in which they used the property are picked up by section 146(1)(a), is not a basis to say that then section 147 should cover the field. If they happen to fall within 146(1)(a), then section 147 would be engaged with respect to their use of the property. The fact that it is also covered by section 146(3) is not a basis to contend that section 147 should also cover that subsection
FRENCH CJ: Do you agree that the words in 147 “in a way that brings the property within the definition of crime-used property” can be read as, in a way that brings the property within the definition of crime-used property in (a), (b) and (c) of section 146(1)?
MR SHIRREFS: No, with respect, your Honour, only in relation to (a) and (b), and we adopt - - -
FRENCH CJ: You see that consequence itself does not necessarily tell you what the word “use” means in the area of contention.
MR SHIRREFS: Yes, it does not. The analysis we adopt is that which was provided by Justice Jenkins, and that is to be found at page 274 of the appeal book, paragraphs 104 and 105, when we are dealing here with unmistakable and clear language because of the consequences of the manner in which one constructs section 147:
Did the legislature intend the word ‘uses’ in s 147 to be read as meaning - - -
GUMMOW J: Sorry, which paragraph are you reading from?
MR SHIRREFS: Page 274 of the appeal book, paragraph 104.
in effect, crime-uses? That is, did it intend ‘uses’ to encompass all of the extended criteria for crime-used property in s 146? The obvious response to such an assertion is that if Parliament had intended that ‘uses’ in s 147 should have such an extended meaning then surely it would have expressly defined the term in that way, as it did in s 146. Alternatively s 147 could have stated that a person makes criminal use of property if the person does an act on the property so as to bring the property within the definition of crime-used property.
Alternatively, did the Parliament intend ‘uses’ to have its ordinary grammatical meaning?
In our submission, when one looks at the language of section 147 it does not, on its face, capture subparagraph (c) of 146.
GUMMOW J: What is the distinct use in other provisions of the legislation of “crime-used” on one hand and “criminal use” on the other?
MR SHIRREFS: The only distinction which arises is between 146 and 147 for the purposes of section 22(1) for a criminal property substitution declaration and in section 82(4)(b):
The property is not effectively controlled by a person who made criminal use of the property –
I think they are the only two.
GUMMOW J: Sections 82 and 22.
MR SHIRREFS: And 23 as well.
GUMMOW J: Thank you.
MR SHIRREFS: Section 23 is to do with the assessment of the value. I am told it is in 87. I must have missed it.
GUMMOW J: Sections 22, 23?
MR SHIRREFS: Yes, 87(1)(b).
GUMMOW J: 82?
MR SHIRREFS: In 82(4)(b), 87(1)(b) and in 22 and 23, and 82(4)(b) is where the third party is seeking to have the property excluded from a freezing notice and, similarly, in 87 it is the release of confiscated property, if all those cumulative requirements are satisfied, and (b) refers to the property not effectively controlled by a person who made criminal use of the property in the same language as 82(4)(b).
GUMMOW J: Section 87(1)?
MR SHIRREFS: Section 87(1)(b).
GUMMOW J: Thank you.
MR SHIRREFS: My learned friend argues that in relation to the contention we make or the construction that we put on section 22(3) that we are arguing that it has to be an intent to commit the specific offence. Our argument is not directed to an intent to commit the specific offence. Our argument is that a combination of 22(3), the glossary, and 147 is that the use of the property has to be for a purpose with respect to the commission of – in connection with the commission of the specific offence and there is an important distinction.
The other point that we rely upon in terms of procedural fairness as to why we are here concerned with the specific offence of wilful murder, for the reasons found by Justice Jenkins when this matter came on at first instance, the application proceeded on that basis and was heard and determined on that basis.
In relation to the construction of section 146(1)(a), to the extent that it suggested that the dragging of Tapley’s body back onto the property engaged section 146(1)(a) because it gave confidence to White that he could use the property at some later point if he chose to do so to store the body, begs the question, at what point did he gain such confidence. I mean, here the “use” which is relied upon to engage the section was the intentional request, or the request by White of Reid to lock the gates, which is prior to White’s arrival at the property. That was the use of the property and the fact that it remained in that state is said to have engaged section 146(1)(a).
To turn to the state of mind that he may have had, therefore, you could use it afterwards, in our submission, does not advance the argument. What really is significant, we submit, is that it has to be in connection with the commission of the offence and it cannot be for the reasons we articulated earlier be concerned with the concealment of the offence after the event.
The next point is again in relation to the construction of 146(1)(a). It was suggested by our learned friends that this is to do with the facts, that we were contending you cannot look at later events to try and determine what the person’s intention was. We are not making that submission, nor will we seek to make that submission. The point we make is that you cannot determine or infer from later events that White had knowledge of the presence of Tapley. That is a different issue, and that is what we articulate.
The fact that on arrival, when there were a number of people there, he having requested the gates to be closed and no one to come and go from the property does not mean, we submit, that he knew that Tapley was there. He may have. He may have requested the gates to be closed for other reasons in relation to the persons that he believed to be there, one of them being Tara, the person over whom he was acting as a guardian. His later confrontation with Tapley cannot, in our submission, impute to him prior knowledge of Tapley’s presence. That is the point that we make.
Insofar as the telephone records - there may have been other telephone records in the case, but what is clear from the cross-examination at page 190 in the appeal book by the prosecutor of White is that the only calls that White received on his phone were the ones that he refers to in cross-examination, that being the telephone call at 5.59 in the afternoon, and the later call that occurs between White and Reid at 7.45. In our submission, when one reads the entire passage on page 190 from the top of the page to 191, it is clear, in our submission, that what is being suggested by the prosecutor is that he did not know that Tapley was there.
GUMMOW J: What is the force of the word – I am sorry.
MR SHIRREFS: I am told there is another call that I have missed. The next point that I seek to respond to is that it is suggested that he used the attributes – why did he use the attributes of the property to detain his intended victim? Now, the important point to consider in terms of time is when he gave the instruction to lock the gate assuming that he knew that Tapley was there. Having arrived at the premises and the gates being locked, on the evidence as found by the primary judge, you could not conclude that he had formed any intent in relation to dealing with Tapley in a criminal way, certainly not in relation to the offence of wilful murder. It clearly arose at a later time.
The point being argued against us is, well, therefore the gates were closed, Tapley happened to run towards the gate, could not get out, therefore, as a matter of fact, the gates kept him within the premises. But that is not a relevant use for the purposes of section 146(1)(a) by White with respect to and in connection with the wilful murder of Tapley. One has to look, in our submission, at the purpose for which the direction was given to lock the gates. That is the important passage in the judgment of Justice O’Keefe. That is the learning he derives from having looked at the cases that he refers to therein. It is not a question of intent. It is a question of the purpose or aim for which the conduct was engaged. That is the ordinary language of “used” or “intends to use” and it is also, in our submission, the meaning that he has gleaned from the operation of the composite phrase “used or intended to use in connection with the commission of the offence”.
One asks rhetorically, what if, for instance, Tapley had not run in any direction towards the perimeter, be it the fence or the gate, but had been shot on the property by one of the trucks? In those circumstances, the fact would have been that Tapley was killed in locus in quo, in the place where he was, and the learning of the cases to which I have referred would be that, in those circumstances, the property had not been used. That demonstrates, in our submission, why one needs to look and focus on the intention for which the gates were locked and link those specifically for the purpose of committing, in this case, the wilful murder of Tapley so that it was connected with it. Unless there is anything further that I can usefully address the Court on at this juncture.
FRENCH CJ: Thank you, Mr Shirrefs. The Court will reserve its decision. The Court adjourns to 10.15, Tuesday next, 8 March 2011.
AT 1.21 PM THE MATTER WAS ADJOURNED
AustLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.austlii.edu.au/au/cases/cth/HCATrans/2011/47.html