Parker v Director of Public Prosecutions
[1997] QCA 154
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- Parker v Director of Public Prosecutions[1997] QCA 154
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Parker v Director of Public Prosecutions[1997] QCA 154
Reported at [1998] 1 Qd R 268
Parker v Director of Public Prosecutions[1997] QCA 154
Reported at [1998] 1 Qd R 268
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 470 of 1997
Brisbane
BETWEEN:
AARON JOHN PARKER
(Respondent)Appellant
AND:
DIRECTOR OF PUBLIC PROSECUTIONS
(Applicant)Respondent
Fitzgerald P
McPherson J.A
Moynihan J
Judgment delivered 13 June 1997
Separate reasons for judgment of each member of the Court, each concurring as to the orders made.
APPEAL ALLOWED WITH COSTS. ORDER BELOW SET ASIDE. MOTION DISMISSED WITH COSTS.
| CATCHWORDS: | CRIMINAL LAW - Restraining order - Basis upon which restraining order can be made by the court. |
| Counsel: | Ms C.E. Holmes for the appellant Mr P. Kelly for the respondent |
| Solicitors: | Boe & Callaghan for the appellant Price & Roobottom for the respondent. |
| Hearing Date: | 21 May 1997 |
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 470 of 1997
Brisbane
| Before | Fitzgerald P McPherson J.A Moynihan J |
BETWEEN:
AARON JOHN PARKER
(Respondent)Appellant
AND:
DIRECTOR OF PUBLIC PROSECUTIONS
(Applicant)Respondent
REASONS FOR JUDGMENT - FITZGERALD P
Judgment delivered 13 June 1997
I agree with the judgments of the other members of the Court, and with the orders proposed.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 470 of 1997
Brisbane
| Before | Fitzgerald P McPherson J.A Moynihan J |
BETWEEN:
AARON JOHN PARKER
(Respondent)Appellant
AND:
DIRECTOR OF PUBLIC PROSECUTIONS
(Applicant)Respondent
REASONS FOR JUDGMENT - McPHERSON J.A
Judgment delivered 13 June 1997
The facts and the relevant statutory provisions are set out in the reasons for judgment by Moynihan J., which I have had the advantage of reading.
The appellant was, on about 9 December 1995, in possession of land registered in his name and of two sums of money totalling some $19,000. It may for present purposes be assumed that there was reason to suspect it had been “derived ... from the commission of [a] serious offence”, and so was “tainted property” within the meaning of s. 13(1)(c) of the Crimes (Confiscation) Act 1989.
Section 40(15)(c) of the Act authorises a court to make an order restraining such property from being disposed of. Before a restraining order is made the court must under s. 40(15) be satisfied by the affidavit of a police officer of matters specified in subs.(6) to (9) of s. 40. Among the matters specified in s. 40(8) are that the police officer believes: (a) “that the property is tainted property in relation to the offence”; and (b) “that the defendant derived a benefit from the commission of the offence”. Having regard to some of the material in the record here, it is a possible inference that the appellant had been involved in an offence or offences with respect to drugs; and that the land and money, which was substantial in value or amount, in his possession had been derived from the commission of a serious offence or offences of that kind. The learned judge who made the restraining order in this case was prepared to draw an inference to that effect.
If that had been the foundation on which the order was sought, the appeal might perhaps have had little prospect of success. However, before this Court, Mr Kelly of counsel for the respondent did not attempt to retain the order in favour of the Director on that basis. Instead, he submitted that the “serious offence” identified in the material was the receipt or possession, contrary to s. 92, of property reasonably suspected of being tainted property. Section 92(1) makes it an offence to receive or possess property reasonably suspected of being tainted property. It was, Mr Kelly confirmed, to that, and only to that, offence that the belief of the police officer stated in his affidavit was directed.
Once that interpretation of the statements in the police affidavit is accepted (as in my opinion it must be), it becomes impossible to support the order on the ground on which it was made. It also ceases to be possible to sustain it on the ground relied on before this Court. The Director can succeed only upon proof that the land and the money is “tainted”, meaning by that that it was derived from the commission of a serious offence. It seems plain that, at least in the context of this case, the serious offence must be something other than the receiving or possessing of property that is said to constitute that offence. Receiving or possessing property is, without more, not an offence at all. It becomes an offence under s. 92(1) only if the property may reasonably be suspected of being “tainted property”, which by s. 13(1)(c) means property derived by a person from the commission of a serious offence. The Director does not succeed in supplying that essential element in his application by establishing no more than that the appellant has received or is possessed of a substantial amount of land or money.
The position might well be different if the appellant were shown to have received or possessed property that came from someone else who had himself derived that property from the commission of a serious offence. But that was not suggested here. In this instance, the only offence from which the land and money is said to have been derived is the receipt or possession of that property itself. Therein lies the circuity or circularity to which Moynihan J. in his reasons refers.
It follows in my opinion that the appeal should be allowed with costs; the order made below should be set aside; and the motion dismissed with costs. Whether the respondent Director would be entitled to make and succeed on another application supported by an affidavit in a different form is not a matter on which it is necessary to venture an opinion.
IN THE COURT OF APPEAL
SUPREME COURT OF QUEENSLAND
Appeal No. 470 of 1997
Brisbane
| Before | Fitzgerald P McPherson J.A Moynihan J |
AARON JOHN PARKER
(Respondent)Appellant
AND:
DIRECTOR OF PUBLIC PROSECUTIONS
(Applicant)Respondent
REASONS FOR JUDGMENT - MOYNIHAN J
Judgment delivered 13 June 1997
On 19 December 1996 the respondent obtained an order in respect of specified property of the appellant so as to prevent the property being disposed of but was unsuccessful in obtaining a "global" restraining order which it had also sought. The failure to obtain the global order is the subject of a separate appeal, number 9581/1996. The appellant brought a cross-application for the release of funds ordered to be restrained to meet his legal expenses, but it failed. This is an appeal against the order restraining the specified property and against the denial of the cross-application.
The grounds of appeal against the granting of the restraining order are that the judge erred in law in finding that the requirements of ss. 40(6) and (8) to the standard prescribed in s. (15)(b) of the Crimes (Confiscation) Act 1989 ("the Act") had been satisfied and that s. 40(8) applied to property the subject of offences under s. 92 of the Act.
When the application initially came before the court below, the applicant (the respondent here) relied on specified drug offences as being the "serious offence . . tainting" the specified property. By the time the application came to be disposed of however, what is conveniently referred to as the "tainting offence" relied on was the possession of the specified property in breach of s.92 of the Act which was said to have the effect of "tainting" the property.
Restraining orders are dealt with by s. 40 of the Act. An application must be supported by an affidavit stating, relevantly for present purposes, the matters mentioned in s. 40(6) and (8). Sub-section (6) provides–
"If the fact that the defendant has been or is about to be charged is the basis of the application, the affidavit must state the police officer's belief, and grounds for the belief, that the defendant committed the offence."
Here the appellant had been charged with a breach of s. 92 by the time the application came to be disposed of.
Section 40(8) provides–
"If the defendant's property is the subject of the application, the affidavit must state the police officer's belief, and grounds for that belief–
(a)that the property is tainted property in relation to the offence; or
(b)that the defendant derived a benefit from the commission of the offence."
The power to grant a restraining order is dealt with by s. 40(15); as a condition of the granting of an order, the Court is to be satisfied–
"there are reasonable grounds for holding the beliefs stated in an affidavit required by sub-sections (6) to (9)."
Section 92 of the Act provides that–
"A person is not to receive or possess property that `may reasonably be suspected of being tainted property'."
Section 13(1)(c) relevantly defines "tainted property . . in relation to a serious offence" to mean property "derived by a person from the commission of the serious offence". An offence against s. 92 is a serious offence. Section 4 of the Act defines "derived" to include "directly or indirectly derived" and "realised", the ordinary English meaning of derive includes to get, obtain (from a source).
It may be accepted for present purposes that there is no necessity for the prosecution to point to a particular serious offence from which the tainted property is derived as distinct from establishing that it was derived from some serious offence; R .v. Chan;[1] and McKeever v. McGhee, ex parte McGhee.[2] That however is not the issue here.
In this case the respondent seeks to sustain the order by submitting that the property the subject of the order was derived by the appellant's being in possession of property the subject of the order and that it was tainted property because the appellant was in possession of it in breach of s. 92(1). This statement is sufficient to demonstrate the circularity of the reasoning which gives rise to difficultly in a number of aspects. The first aspect is that it contends the appellant derived the tainted property by being in possession of it. "Possession" does not connote the derivation of the property as distinct from who has it at a particular time. A second aspect of the submission is that the requirement of a "tainting offence" is said to be satisfied by the plaintiff being in possession of property which was tainted (and derived) because he was in possession of it. Neither consequence seems to follow.
It will be recalled that s. 40(6) required the applicant police officer's affidavit to state his belief and the grounds for it that, in this case, the appellant committed the offence the basis of the application. The police officer swore two affidavits in an endeavour to sustain this requirement. These relevantly went no further than that the appellant was charged pursuant to s. 92 of the Act with being in possession of money that was reasonably suspected of being tainted property and that the property was derived from the commission of a serious offence by reason of matters set out in an earlier affidavit dealing with drug offences in which the appellant is alleged to have been implicated.
Put shortly, it cannot be that the appellant is reasonably suspected of being in possession of tainted property because the property was derived from the appellant's being in possession of it and so was tainted. The difficulty of course arises because the respondent was in the end unable to rely on the specific drug offences as the "tainting" offences. The appeal should be upheld and the restraining order set aside. There is in the event no need to deal with the appeal in respect of the release of funds to meet legal expenses.