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  • Unreported Judgment

Crew v Mitchell

 

[2005] QCA 119

 

SUPREME COURT OF QUEENSLAND

 

PARTIES:

FILE NO/S:

Court of Appeal

PROCEEDING:

General Civil Appeal

ORIGINATING COURT:

DELIVERED ON:

22 April 2005

DELIVERED AT:

Brisbane

HEARING DATE:

6 April 2005

JUDGES:

McPherson and Jerrard JJA and Helman J

Separate reasons for judgment of each member of the Court, each concurring as to the order made

ORDER:

Appeal dismissed with costs

CATCHWORDS:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – ORDERS  FOR COMPENSATION, REPARATION, RESTITUTION, FORFEITURE AND OTHER MATTERS – RELATING TO DISPOSAL OF PROPERTY – FORFEITURE – appellants pleaded guilty to unlawful production of a dangerous drug – land used for production of cannabis – forfeiture of land tainted by criminal activity – whether restraining order granted for land “in relation to” the applicants’ convictions under s 25(1)(b)(i) Crimes (Confiscation) Act 1989 (Qld)

Crimes (Confiscation) Act 1989 (Qld), s 12, s 17, s 23, s 25, s 26, s 40

Drugs Misuse Act 1986 (Qld), s 8

Cameron v Cole (1944) 68 CLR 571, cited

Christensen v Director of Public Prosecutions [2002] QSC 365;[2003] 1 Qd R 496, cited

COUNSEL:

R A Perry SC for the appellants

M D Hinson SC for the respondents

SOLICITORS:

Gilshenan & Luton for the appellants

Crown Law for the respondents

[1]  McPHERSON JA:  On 21 April 1999 police searched land and buildings at Mount Tamborine, where they found cannabis sativa plants growing hydroponically and some plastic bags containing dried cannabis plants or leaves. The land was occupied by the applicants, who are the appellants in this Court, Wayne Lawrence Crew and Judith Ann Crew, who were then the registered proprietors as joint tenants of the land, which is lot 55 on registered plan 145260. On the same day they were charged under s 8(d) of the Drugs Misuse Act 1986 with two offences, of which the first was:

“Between 28th February and 22nd April 1999 at Mount Tamborine producing a dangerous drug namely cannabis sativa, and the quantity of the said cannabis sativa exceeded 500 grams.”

[2]  On 15 July 1999 the Director of Public Prosecutions prepared an originating application in the Supreme Court under the Crimes (Confiscation) Act 1989 for: (1) a restraining order in terms of s 40(3)(a) and s 40(15), and: (2) forfeiture of the land pursuant to ss 17 and 23.  The application (which was filed on 16 July) was supported by an affidavit of Det S/Const J M Craig, who was one of the investigating police officers, who deposed to his belief that the applicants owned the property; that he and others had searched the land and buildings on 21 April 1999; that they had found the cannabis and the applicants there; and that, for the reasons given in his affidavit, he believed that the land was “tainted” in relation to the drug offences with which the applicants were charged.

[3]  On 16 July 1999, each of the applicants was arraigned and pleaded guilty before Ambrose J in the Supreme Court to an ex officio indictment containing as count 1 a charge under s 8(d) of the Drugs Misuse Act:

 

“That between the 1st day of January 1999 and the 22nd day of April 1999 at Mount Tamborine … you unlawfully produced a dangerous drug namely cannabis sativa.

 

And at the time aforesaid the quantity of the said cannabis sativa exceeded 500 grams.”

It will be seen that the averment of the offence in count 1 differed from the offence with which the applicants had been charged on 21 April, and indeed from the indictment in the form in which it was first presented apparently on 2 June 1999. The transcript of proceedings before Ambrose J on 16 July 1999 shows that the indictment was, with the agreement of Mr Kimmins of counsel for the applicants at the hearing, amended to extend the alleged period of production back to 1 January, in place of 28 February, as the starting date of the cannabis production. It is on this difference that the present appeal was said to turn.

[4]  This appeal is brought from a decision of Mackenzie J dismissing an application by the applicants Mr and Mrs Crew for a statutory order to review a decision of the first respondent Ian Mitchell, as Deputy Registrar of the Supreme Court, to issue a certificate dated 9 March 2004 that the land was forfeited to the second respondent the State of Queensland on 16 January 2000. As amended by the applicants before his Honour, the application also sought a declaration, which was refused, that the land was not forfeited.

[5]  Provision for forfeiture of property of offenders that is “tainted” by criminal activity is a now familiar feature of legislation in Queensland and elsewhere in Australia. Its purpose and operation were described by Holmes J in Christensen v Director of Public Prosecutions [2003] 1 Qd R 496 §2, which makes it unnecessary, except so far as material, to repeat these matters here. The Crimes (Confiscation) Act 1989 has now been repealed and replaced by a later enactment of 2002, but it is convenient to speak of it as if it still applied, as indeed it does in relation to the forfeiture in the present case.

[6]  Section 40 of the Act applies if, as provided in s 40(2), a person, who is designated the defendant, has been, or is about to be charged, or has been convicted of, a “serious” offence. In that event, application may under s 40(3) be made to the Supreme Court about specified property of the defendant for a restraining order directing that the property not be disposed of or otherwise dealt with: see s 40(15)(c). If the restraining order is still in force at the end of the period of six months starting on the day of the defendant’s conviction, the property is by s 25(1) forfeited to the State at the end of that period, which is called the forfeiture period: see s 25(1)(d). By force of s 26(1)(b), the forfeited property vests absolutely in the State on its forfeiture under s 25. No forfeiture order under s 23 need be made by a court in such a case. The forfeiture, as the heading to s 25 envisages, is or becomes “automatic” at the end of the forfeiture period.

[7]  In the present case, the restraining order sought by the Director was made by Ambrose J on 16 July 1999 in the course of or immediately after the sentencing process that followed the applicants’ conviction of the offence in count 1 to which they pleaded guilty after being arraigned. On that occasion, Mr Meredith for the Crown said that a claim for forfeiture was being made; but, by consent, that application was adjourned, Mr Meredith remarking that there was a “matter for negotiation between the parties”. Negotiations never in fact took place, with the result that six months later, on 16 January 2000, the property, which was the land of the applicants at Mount Tamborine, was (or so the State maintains) forfeited under s 25(1) and vested in the State by force of s 26(1)(a) of the Act.

[8]  It is necessary now to set out somewhat more fully the terms of s 25(1) or the material part of it:

 

25(1)If -

(a)a person (the “defendant”) is taken to be convicted of a serious drug offence …; and

(b)a restraining order is, or was, granted for property … in relation to -

(i)the defendant’s conviction of the serious drug offence;or

(ii)the charging, or proposed charging, of the defendant with the serious drug offence or a related serious drug offence; and

(c)the restraining order, to the extent to which it relates to the property, is not the subject of a declaration under section 44(3); and

(d)the restraining order is in force at the end of [the forfeiture period] …

the property is forfeited to the State at the end of the forfeiture period …”.

There is no dispute that the offence to which the applicants pleaded guilty in count 1 of the indictment was a “serious drug offence” as defined in para (a) of the definition in s 4 of the Act, and so within s 25(1)(a) of the Act. There is equally no doubt that the applicants were convicted of that offence at latest when Ambrose J accepted or acted on their pleas of guilty before him: see R v Jerome [1964] Qd R 595. This his Honour did by proceeding to sentence the applicants. Section 25(1)(a) uses the expression “is taken to be convicted”.  It does so presumably because s 9 embodies an extended meaning of that expression. However that may be, there is no question that the provisions of s 25(1)(a) were satisfied in this case because the applicants were “convicted” in the ordinary sense of that word.

[9]  Nor is there any doubt that a restraining order was, within s 25(1)(b)(i), “granted for property … in relation to … the defendants’ conviction of the serious drug offence”. His Honour made the order on 16 July 1999 restraining disposal of the property, and, if it matters, he did so with the consent or acquiescence of Mr Kimmins for the applicants. There is a copy of the formal order in the record, which shows that the property in question was the applicants’ land at Mount Tamborine described as lot 55 on registered plan 145260, on which the cannabis was found. It is the property “for” which the restraining order was granted, and it was granted “in relation to” the serious drug offence of which they were convicted. The restraining order was not the subject of a declaration under s 44(3), so that the requirement of s 25(1)(d) is also satisfied. Finally, the restraining order was in terms of s 25(1)(d) still in force on 16 January 2000, which was the end of the period of six months starting on the day of conviction on 16 July 1999.

[10]  It follows from the final provision of s 25(1) that the property was forfeited to the State at the end of the forfeiture period on 16 January 2000.

[11]  The question might be asked why, then, was the appeal instituted against the decision of Mackenzie J?  The answer is in part that a number of other issues were raised before his Honour and decided against the applicants. None of them is the subject of the appeal to this Court. Moreover, before Mackenzie J, the application of s 25(1)(b) was argued on the footing that it was para (ii) and not para (i) that was the relevant provision. It will be recalled that makes the requirement in s 25(1)(b) depend on:

 

“(ii)the charging, or proposed charging, of the defendant with the serious drug offence or a related serious drug offence.”

On the basis of s 25(1)(b)(ii), a submission was mounted that the amendment to count 1 of the indictment to which the applicants pleaded was not the serious drug offence, or even a related serious drug offence, with which the applicants were charged.

[12]  Section 12 provides that an offence is a “related offence” to another offence if both offences “consist substantially of the same acts or omissions or form part of the same series of acts or omissions”. With relevant differences, the provision in s 12 bears some resemblance in its language to the terms of s 567(2) of the Criminal Code regulating the joinder of counts in an indictment. It might no doubt have been interesting to debate whether the offence as amended consisted of the same acts or omissions, or formed part of the same series of acts or omissions, as those with which the applicants were originally charged on 29 April 1999, or on which they were originally indicted on 2 June 1999.

[13]  However, all these questions ceased to matter on 16 July 1999, when the applicants were arraigned, pleaded to and were convicted of the offence in count 1 of the amended indictment. From that moment, the only question that mattered was whether s 25(1)(b)(i) was satisfied, which, I repeat, was whether a restraining order was granted for the land “in relation to” the applicants’ convictions of the serious drug offence in respect of which they were arraigned. As to that, I have already concluded that the restraining order was granted in relation to that conviction, which thereupon overtook the question under s 25(1)(b)(ii) whether it was the offence with which they were charged or a related drug offence.

[14]  Section 40 of the Act provides for the making of restraining orders over property on the fulfilment of certain evidentiary requirements. One in s 40(5) is that if the conviction of the defendant of a serious offence is the basis of the application, the supporting affidavit for the restraining order must state details of the conviction. Then, if under s 40(15)(a) the court is satisfied that the defendant must be treated as having been convicted of a serious offence stated in an affidavit required by s 40(5), the court may make a restraining order. No such affidavit was filed in the present case for the very good reason that, when Det Craig’s affidavit was sworn on 15 July 1999, the applicants had not yet been convicted. When on 16 July they were convicted, there was plainly little point in swearing to that fact, which Ambrose J already knew from his having accepted and acted on the applicants’ pleas of guilty before him on that occasion.

[15]  The Supreme Court of Queensland is a superior court of general jurisdiction and, except on appeal, its orders are not vitiated and, with immaterial exceptions, cannot be set aside or treated as nullities by reason of a supposed deficiency in a condition for the exercise of jurisdiction. See Cameron v Cole (1944) 68 CLR 571. Here Ambrose J sitting as the Supreme Court had power to make a restraining order under the Act and his Honour exercised that power by making such an order on 16 July 1999. The absence of the affidavit required by s 40(5) did not deprive him of jurisdiction to make the order. No one suggests that it did so, and no attempt has been made or foreshadowed to appeal against the order made.  Accordingly, the restraining order and, by s 25(1), the Act operated on 16 January 2000 to forfeit the applicants’ property to the State.

[16]  The appeal must be dismissed with costs.

[17]  JERRARD JA:  In this appeal I have read and respectfully agree with the reasons for judgment of McPherson JA, and with the order proposed by His Honour. 

[18]  I add that I consider the requirements of s 25(1)(b)(ii) were satisfied in this matter, as well as those of s 25(1)(b)(i), (the latter) for the reasons explained by McPherson JA.  Regarding s 25(1)(b)(ii), the offence with which the appellants had originally been charged, namely producing the dangerous drug cannabis sativa between 28 February and 22 April 1999 at Mount Tamborine in a quantity which exceed 500 grams, was a “related serious drug offence” to the offence to which Mr and Mrs Crew each pleaded guilty on 16 July 1999, namely producing that dangerous drug in that quantity at Mount Tamborine between 1 January 1999 and 22 April 1999.  The only difference in the formal charge was the dates alleged.  The alleged acts and omissions of the appellants constituting that offence were described in an affidavit sworn by an investigating police officer on 15 July 1999, in support of the application heard by the learned sentencing judge the next day.  On 15 July 1999 the period during which the offence was allegedly committed was said by the prosecution to be between 28 February to 21 April 1999. 

[19]  The affidavit described how the appellants’ premises at Mount Tamborine had been searched on 21 April 1999, and a concealed underground cannabis nursery had been located in a cellar area below a garage floor.  It contained 63 matured growing cannabis sativa plants, ranging in height between 1.5 metres and 30 cm.  Additionally, a wooden shed at the rear of the house contained two rooms, one of which contained 120 growing cannabis sativa seedlings, while the other contained a hydroponic system and 17 mature cannabis sativa plants growing in that system.  Additionally a plastic bag containing nearly 400 grams of dried cannabis sativa was found in a chest of drawers in the house.

[20]  The charge still laid at the time the affidavit was sworn was plainly intended to cover all of the acts necessary to grow both the seedling and the mature plants, which appeared to have been grown as part of carrying on a business of commercial production of cannabis.  The reason for the charge dates being amended the next day in the indictment, as Mr Crew had particularly desired, was explained by the learned judge hearing the application to review.  This was that Mr Crew had been dealt with on 26 February 1999 for an offence of production of cannabis (on the same property) committed in 1998, and he had been given a wholly suspended sentence.  He had also been dealt with on 1 December 1997 for production of cannabis in a shed on that same property.  Mr Crew was anxious to establish before the learned judge imposing sentence on 16 July 1999, who was the same judge who had sentenced him on 26 February 1999, that he had not simply recommenced producing cannabis two days after being given the suspended sentence; but in fact had been producing that cannabis both prior to and after the imposition of that suspended sentence.  He had simply not informed either the Court or the prosecuting authorities about that fact, nor the fact of the involvement in it of his co-accused, Mrs Crew.  It appears the appellants’ legal advisers considered the sentence Mr Crew faced might be heavier if the learned judge thought he had only begun producing after 26 February 1999 the cannabis plants found on 21 April 1999, although obviously enough all of the 120 seedlings would have been grown after 26 February.

[21]  These matters were all made explicit in the sentencing proceedings on 16 July 1999, rendering it beyond argument that the offences charged on each of 15 and 16 July 1999, irrespective of the dates between which that continuing offence was alleged to have been committed, consisted “substantially of the same acts or omissions”, and “formed part of the same series of acts or omissions”, and were accordingly “related” offences as relevantly defined. 

[22]  HELMAN J: I agree with the order proposed by McPherson JA and with his reasons.

Close

Editorial Notes

  • Published Case Name:

    Crew & Anor v Mitchell & Anor

  • Shortened Case Name:

    Crew v Mitchell

  • MNC:

    [2005] QCA 119

  • Court:

    QCA

  • Judge(s):

    McPherson JA, Jerrard JA, Helman J

  • Date:

    22 Apr 2005

Litigation History

No Litigation History

Appeal Status

No Status