Chenery v Stegman[1997] QCA 444

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 9379 of 1996

Brisbane

[Chenery & Conder v. Stegman]

BETWEEN:

MICHAEL JAMES CHENERY and

MICHELLE ANN CONDER

Appellants

AND:

GEOFFREY ROBERT STEGMAN

Respondent

Davies J.A.

Moynihan J.

Ambrose J.

Judgment delivered 12 December 1997

Joint reasons for judgment of Davies J.A. and Moynihan J.;  separate dissenting reasons of Ambrose J.

APPEAL ALLOWED.  ORDERS MADE BELOW SET ASIDE.  NO ORDER AS TO COSTS HERE OR BELOW.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 9379 of 1996

Brisbane

Before  Davies JA

Moynihan J

Ambrose J

[Chenery & Conder v. Stegman]

BETWEEN:

MICHAEL JAMES CHENERY and

MICHELLE ANN CONDER

Appellants

AND:

GEOFFREY ROBERT STEGMAN

Respondent

JOINT REASONS FOR JUDGMENT - DAVIES J.A. AND MOYNIHAN J.

Judgment delivered 12 December 1997

This is an appeal pursuant to s. 96 of the Crimes (Confiscation) Act 1989 ("the Act") against forfeiture orders made under s. 23 of the Act.  The forfeiture proceedings were commenced after the commencement of the Act but the offences relied on for the purposes of s. 23 occurred before its commencement.  However it is common ground that, either because of s. 16 of the Act or because the material provisions of the predecessor of the Act were identical to those of the Act, nothing turns on this.

On 10 May 1996 the appellant Chenery was convicted on two counts under s. 92 of the Act of possessing property reasonably suspected of being tainted property.  The property in the first count consisted of a quantity of sound equipment;  that in the second count was $4,000 in Australian currency.  On the following day the appellant Conder was convicted of possessing $4,000 in Australian currency (presumably the same money) reasonably suspected of being tainted property.  The orders the subject of these appeals were orders that the property the subject of each of these convictions be forfeited to the State.  They were made in the Magistrates Court on 9 October 1996.

The pre-requisites for the making of a forfeiture order against a person under s. 23 are that:

1. the person is convicted of a serious offence;
2. an application is made for a forfeiture order against particular property in relation to the offence;  and
3. the court is satisfied that the property is tainted property is relation to the offence.

The only relevant offence in each case here is the offence to which we have already referred;  that of being in possession of property reasonably suspected of being tainted property.  It is common ground that this is a serious offence.  Consequently the first of the above requirements is satisfied.

The second requirement is satisfied by the making of an application such as was made.  The real question, on the evidence before this Court, is whether the property the subject of each of the above convictions is tainted property in relation to the offence the subject of each of those convictions.  That depends upon the proper construction of s. 13(1) of the Act and its application to the facts here.  That provision is in the following terms:

"13(1)'Tainted property', in relation to a serious offence, means property -

1. used, or intended to be used, by a person in, or in connection with, the commission of the serious offence;  or
2. derived by a person from property mentioned in paragraph (a);  or
3. derived by a person from the commission of the serious offence."

In the court below the respondent relied only on s. 13(1)(c) submitting, in effect, that the property sought to be forfeited was property derived from the commission of the offence of possession of it.  That was the submission accepted by the learned Magistrate although he referred, erroneously, to "the obtaining of the property" as being derived from the commission of the offence;  erroneously because the offence was the possession of that property.  The submission appears illogical on its face;  property cannot be derived from its own possession.  The provision appears to be aimed at property the derivation of which is a consequence of the commission of the offence;  see examples 3, 4 and 6 in Part 1 of Schedule 1 to the Act.  The submission is, in any event, inconsistent with the decision of this Court in Parker v. Director of Public Prosecutions C.A. No. 470 of 1997, 13 June 1997.

The respondent was not limited to reliance on subs. (1)(c).  He could have relied on subs. (1)(a).  Mr. Rafter, for the appellant, quite properly concedes that, if the respondent had relied on subs. (1)(a), there was no further or different evidence which the appellant could have adduced.  Accordingly there is no reason why the respondents could not now be entitled to rely on subs. (1)(a).

However subs. (1)(a) appears to be aimed at property used to commit an offence or to enable its commission.  See examples 1, 2 and 3 in Part 1 of Schedule 1 to the Act.  It is illogical to say, as the respondent would have to in order to rely on subs. (1)(a), that the possession which is the commission of the offence is a use in connection with that possession.  The circularity of that proposition makes it unlikely that that was the legislative intention.

Subsection (1)(b) is even less likely to be of assistance to the respondent.  It follows that the offence of possession of property that may reasonably be suspected of being tainted property cannot be an offence in relation to which property is tainted under s. 13(1).  That is not surprising.  A person may be convicted under s. 92 upon a reasonable suspicion that property is tainted.  But property may not be forfeited under s. 23 unless it is tainted in relation to an offence:  s. 23(1)(c).

In the present case each of the appellants was convicted of the offence under s. 92 because, presumably, it was reasonably suspected that the property, in each case, had been derived by the appellant from the commission of another serious offence.  No doubt if either appellant were convicted of that other offence an application could be made under ss. 17 and 23 in relation to that offence and it may be that it could be shown that the property in each case was derived by the appellant from the commission of that offence.  But whether or not the commission of any other serious offence could have been proved, or ever was proved in the earlier criminal proceedings, there is no relevant conviction of another serious offence;  and s. 23(1) requires, for its operation, a conviction of a serious offence in relation to which property is tainted.  We mention this because an attempt was made by the respondent, on the hearing of this application, to tender the evidence given in the proceedings against the appellants for the offences referred to earlier.  Admission of this evidence was objected to by the appellants and the learned Magistrate, who was not referred by either side to s. 21 of the Act, refused to admit it.  That evidence was plainly admissible as Mr. Rafter rightly concedes.  The admission of that evidence may have proved another serious offence in relation to which the property the subject of this application was tainted property.  But it is, we think, common ground that there was no conviction for any such offence and, as we have pointed out, without such a conviction s. 23 cannot operate in relation to that offence.  Accordingly the appeal must be allowed and the orders made below set aside.

We would not make any order as to costs here or below.

IN THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

Appeal No. 9379 of 1996

Brisbane

Before  Davies JA

Moynihan J

Ambrose J

[Chenery & Conder v. Stegman]

BETWEEN:

MICHAEL JAMES CHENERY and

MICHELLE ANN CONDER

Appellants

AND:

GEOFFREY ROBERT STEGMAN

Respondent

REASONS FOR JUDGMENT - B.W. AMBROSE J.

Judgment delivered 12 December 1997

This is an appeal against orders made by a Magistrate on 9 October 1996, upon the respondents’ application, under s. 23(1) of the Crimes (Confiscation) Act 1989, forfeiting property found in the possession of the appellants on 9 March 1995.

That section provides:

“23(1)If -

1. a person is convicted of a serious offence; and
2. an application is made to a court under section 17 for an order under this subsection (a “forfeiture order”) against particular property in relation to the offence; and
3. the court is satisfied that the property, or an interest in the property, is tainted property in relation to the offence;

the court may order that the tainted property is forfeited to the State.”

Section 92(1) of the Crimes (Confiscation) Act 1989 provides:

“92(1)A person must not receive, possess, dispose of, bring into Queensland, conceal or disguise property that may reasonably be suspected of being tainted property.

Maximum Penalty - 100 penalty units or 2 years imprisonment.

2. If a person is charged with an offence against this section, it is a defence to the charge if the person satisfies the court that the person had no reasonable grounds for suspecting that the property mentioned in the charge was either tainted property or derived from any form of unlawful activity.”

Each of the appellants was charged that on 9 March 1995 at Petrie they possessed the property the subject of the forfeiture application which “was reasonably suspected of being tainted property”.

The property involved in the charges was an amount of $4,000 in Australian currency and various items of stereophonic sound equipment, suitable for installation in a motor vehicle of a value of about $4,800. 

The appellants defended the charges but were ultimately convicted on 10 May 1996 and each was fined $1,000 and in default of payment, 20 days imprisonment. Each was allowed six months to pay the fine.

“Tainted Property” is defined in s. 13 of the Act:-

“s. 13(1) ‘Tainted Property’, in relation to a serious offence, means property -

1. used, or intended to be used, by a person in, or in connection with, the commission of the serious offence; or
2. derived by a person from property mentioned in paragraph (a); or
3. derived by a person from the commission of the serious offence.

2. --
3. A reference to a serious offence in this section is taken to include a reference to an interstate serious offence when tainted property is used in the following sections -

• section 90 (Money Laundering)
• section 92 (Possession etc. of property suspected of being tainted property).”

Under s. 4 of the Act “serious offence” is defined: -

“‘Serious offence’ means -

1. a serious drug offence; or
2. another indictable offence, whether dealt with on indictment or summarily; or
3. an offence against this Act for which an offender is liable to imprisonment; or
4. an offence against an Act or a provision specified in schedule 2; or
5. another offence prescribed by regulation.”

The nature of forfeiture proceedings appears from s. 94 of the Act which provides:

“94(1)A proceeding on an application for -- forfeiture -- is not a criminal proceeding.

2. Without limiting subsection (1), questions of fact on the application must be decided on the balance of probabilities.”

A forfeiture application is made under s. 17 of the Act which provides:

“17(1)If a person is convicted of a serious offence, an appropriate officer may apply to -- the court before which the person is convicted for 1 or both of the following orders -

1. a forfeiture order against particular property;
2. --

2. The application made must be made within 6 months after -

1. if the person is taken to have been convicted because of section 9(a) - the day the person is convicted of the serious offence; or
2. --
3. --
4. --

3. However, the application may also be made after the period mentioned in subsection (2), if the court to which the application is made gives leave.

Under s. 9(a) A person must be treated as “convicted” of an offence if found guilty whether or not a conviction is recorded.

Section 18(1) of the Act provides -

“18(1)If an appropriate officer applies for a forfeiture order against property in relation to a person’s conviction for an offence -

1. the appropriate officer must give written notice of the application to the person and anyone else the appropriate officer has reason to believe has an interest in the property; and
2. at any time before the court finally decides the application, the court may direct the appropriate officer to give notice of the application to the persons, and in the way and within the time, the court considers appropriate.

2. --”

Section 19 of the Act provides -

“19(1)The person in relation to whose conviction an application for a forfeiture order against property is made may appear and present evidence at the hearing of the application.

2. Anyone else who claims an interest in the property may also appear and present evidence at the hearing of the application.
3. --”

The Act specifies in particular terms the procedure to be followed on a forfeiture application. Section 21(1) provides:-

“21(1)If an application is made to a court for forfeiture -- in relation to a person’s conviction for an offence, in deciding the application the court must have regard to the evidence given in any proceeding against the person for the offence.”

When the appellants were convicted of the offences under s. 92(1) of the Act in May 1996 the prosecutor did not immediately seek a forfeiture order of the property specified in the charges. It was explained upon the hearing of the appeal that the reason for this was essentially to permit the convenient preparation of applications etc. identifying the property the subject of the charges upon which the appellants had been convicted as the property sought to be forfeited. 

In any event it was not until 9 September 1996 that the application was first  mentioned in the Magistrates Court. It was heard on  9 October 1996.

The application set out in detail the particulars of the property which the respondent sought to have forfeited to the Crown -

“-- in consequence of the conviction of Michael James Chenerry and Michelle Ann Conder for possession of tainted property - on 10th day of May 1996, a serious offence as defined in s. 4 of the Crimes (Confiscation) Act 1989.”

The schedule of property contained in the forfeiture application simply described the property the subject of the offences of which the appellants had been convicted on 10 May 1996.

When the forfeiture application was called on for hearing the prosecutor informed the court that he proposed to tender -

“All the documentation relating to the original matter that this application relates to including a Certificate of Conviction and full Brief of Evidence, transcript of the original matter.”

At the outset the solicitor for the appellants took the point that they had not been convicted of “possession of tainted property” but rather possession of property “that may reasonably be suspected of being tainted property.”

In the course of discussion of this point and the possibility of the application being amended, which led eventually to the appropriate amendment being made, the magistrate raised the question as to whether the transcript of the previous proceedings could be accepted as evidence upon the forfeiture application.

The solicitor for the appellants took the point that it was not admissible. 

Neither the prosecutor nor the solicitor for the appellants drew to the attention of the magistrate the provision of s. 21(1) of the Act which required the Court to have regard to the evidence given in the proceedings leading to the conviction of the appellants upon the charge brought against them under s. 92(1) of the Act.

The magistrate asked whether the prosecutor and the solicitor for the appellants could place that material before him by consent but the solicitor for the appellants declined to consent. 

The refusal of the magistrate to accept the record of evidence upon which the appellants were convicted of the offences under s. 92 of the Act in May 1996 led to the prosecutor being able to rely only upon the Certificates of Conviction of the appellants and the evidence of the police officer who laid the charge that the property particularized in the forfeiture application (and in the charges brought under s. 92(1) of the Act) was:

“the property we seized at the defendants’ address on the date of the offence which was later taken to the Petrie Police Station”.

It was really at the suggestion of the Magistrate that the prosecutor sought to rely upon s. 13(1)(c) rather than s. 13(1)(a) to prove that the property was “tainted”.

The police officer said that the Certificates of Conviction related to the property that was seized at the defendants’ house on the day of the execution of a search warrant. He said that that property was in the Exhibit Room of the Petrie Police Station. He confirmed that the date of the offence of which the appellants had been convicted was 10 March 1995.

The police officer said that when the property the subject of the s. 92 charge was seized at the residence occupied by the appellants “the sound gear” or “car stereo equipment” was in a wardrobe in boxes and had a value of about $4,800.

After formal evidence had been given to support the forfeiture application, the solicitor for the appellants submitted that there was no evidence that the property the subject of the application was “tainted property” as defined in the Act.

He submitted that -

“Nothing was derived from committing the offence of possession property reasonably suspected of being tainted property. For something to be derived there has to be what I call a profit. There has to be something resulting from the offence, absolutely nothing changed from the time before the officer arrived until this day. There has been no property of any sort derived, nothing has occurred as a result of this offence. An offence occurred but that does not make this tainted property as we eventually narrowed it down for this application.”

He obviously had in mind the terms of s. 13(1)(c) of the Act.

After some legal argument the magistrate indicated that in his view there was sufficient evidence to enable him to consider the application for forfeiture and the appellants then elected to call the male appellant to give evidence that the police officers on 9 March 1995 had taken from the house occupied by the appellants all the property the subject of the forfeiture application.

With respect to the “stereo gear” he said -

“I had a mate who was in car audio and he had got me into it and he’d helped me along on how to get parts.”

He said that he had acquired the property in 1994 and 1995 and had had it about 4 or 5 months before the police officers seized it on 9 March 1995. He said he had been storing it in his wardrobe.

He said that the $4,000 in Australian bank notes had been kept in “Michelle’s bag” near where she was sleeping. He said the $4,000 had been stored there “a couple of days before” it was seized. He said that he intended to purchase a car with that money, and that indeed he had a car “lined up” to buy with that money the very day it had been seized by the police.

He conceded that he had been charged with and convicted of having all the property the subject of the forfeiture application in his possession, such property being property which may reasonably be suspected of being tainted property.             

The solicitor for the appellants contended that the court had to be satisfied that the property the subject of the forfeiture application was in fact “tainted property” and not merely property reasonably suspected of being tainted property.

The police prosecutor argued that the Magistrates Court which convicted the appellants of possessing property that was reasonably suspected of being tainted was satisfied beyond reasonable doubt of the facts necessary to so convict. He contended that upon the forfeiture application the court only had to be satisfied on the balance of probability that the appellants had been convicted of a serious offence under the Crimes (Confiscation) Act 1989 and the certificates of conviction and the oral evidence placed before the magistrate were sufficient to show on the balance of probabilities that the property the subject of the forfeiture application was tainted property.

Unfortunately the mistake made at the outset of the hearing of the application as to the admissibility of the transcript of evidence given upon the proceedings under s. 92(1) leading to the conviction of the appellants forced the prosecutor to rely in essence only upon the certificates of conviction. It was a most unfortunate error on the part of the court to which both the prosecutor and the solicitor for the appellants clearly contributed that led to this very unsatisfactory position. Section 21(1) in fact required the court to have regard to all the evidence leading to the conviction of the appellants in May 1996.

Without reference to that evidence one is able only to speculate as to whether it would have shown on the balance of probabilities that indeed the property seized from the appellants was “tainted property” within s. 13(1) of the Act.

It is impermissible to speculate on the nature of the evidence led against the appellants to secure their conviction under s. 92(1) however reference to that evidence might show that such property was indeed on the balance of probabilities “tainted property”. Presumably facts and circumstances were placed before the court convicting the appellants sufficient to satisfy it beyond reasonable doubt that there was a reasonable suspicion that the property was tainted.

In my view if the order for forfeiture made were set aside it would be desirable if the Magistrate were directed to comply with the mandatory requirements of s. 21(1) of the Act and “have regard to the evidence given” in the Magistrates Court leading to the conviction of the appellants.

One might wonder what facts and circumstances proved before that court sufficient  to lead to the conviction of the appellants of the offence under s. 92(1) would not also discharge the civil onus of showing that the property was tainted property upon the forfeiture application. Logically of course this would not necessarily follow, although I find it hard to imagine circumstances sufficient to establish reasonable suspicion that the property in issue was tainted property on the criminal standard which would not establish on the balance of probabilities in the civil proceeding that that property was in fact tainted property.

In my view it would be an unsatisfactory outcome of the proceedings taken against the appellants if their convictions for possession of property which may reasonably be suspected of being tainted property would not result in them losing that property. It would be a bizarre result if, having been convicted of offences under s. 92 and having each been fined $1,000, and in default of payment imprisonment, in respect of those offences the appellants could nevertheless demand the return of that property for their own benefit. Perhaps if they regained possession of that property they could again be charged with a fresh offence under s. 92 of the Act. Of course they could only be so charged if some police officer voluntarily handed to them items of property which might reasonably be suspected of being tainted property. The alternative would be for the police officer in charge of the property which is apparently still held as an exhibit in the Petrie Police Station to simply leave the property remain in the Exhibit Room.

Obviously the forfeiture provisions contained in Part 2 of the Act were designed inter alia to avoid this very problem and the terms of ss. 18 and 19 of the Act are designed to allow any person claiming a lawful entitlement to the property to oppose an order forfeiting it to the Crown.

Reference was made to Parker v Director of Public Prosecutions (Unreported) Appeal No. 470 of 1997 in which judgment was delivered on 13 June 1997. In that case this court held that in the context of its facts the “serious offence” there relevant to an application for a restraining order under s. 40(10) of the Act necessarily was an offence other than “the possession of property reasonably suspected of being tainted” under s. 92(1).

In that case this court considered whether possession of “property that may reasonably be suspected of being tainted property” could be characterized as property “derived by a person from the commission of the serious offence” within s. 13(1)(c) of the Act.

It was pointed out that mere “possession” of property does not connote the derivation of that property as distinct from who happens to have it at a particular time.

That case however turned upon s. 40 of the Act which relates to the granting of restraining orders. In that case a police officer gave evidence that he believed the money the disposition of which was sought to be restrained was derived from the commission of serious drug offences as the “tainting offences”. By the time the application was considered however, the applicant was no longer charged with those drug offences and upon the facts they could not be relied upon to support the application.

I find the decision in Parker of little assistance in determining the matters canvassed upon this appeal.

Under s. 4 of the Act “serious offence” is defined to mean inter alia:

“(c)an offence against this Act for which an offender is liable to imprisonment.”

The Act creates offences in respect of which an offender is liable to imprisonment in the following sections:

Section 45(9)  Failing to attend or to answer questions in an examination held under the section or making a false statement.

Section 47 Contravening a restraining order by concealing, disposing or otherwise dealing with property to which that order relates.

Section 51(2) Hindering or obstructing the public trustee in relation to property he holds under a restraining order.

Section 55 Failing to comply with an order requiring production of a document.

Section 74(6) Failure by a financial institution to retain records.

Section 90(1) Money laundering.

Section 92(1) Receiving, possessing, disposing of, bringing into Queensland, concealing or disguising property that may reasonably be suspected of being tainted property.

In my view both s. 13(1) and s. 23(1)(a) may properly be construed to refer to each of the offences created by the Act - including that under s. 92(1).

On the facts of the present case in determining whether the property, the subject of the application for forfeiture, is “tainted property” one may look not merely at the definition of “serious offence” in (a), (b), (d) and (e) but also look at offences created by the Act having regard to the express terms of (c) in the definition in s. 4.

It is true that it would have been open to the respondent in this case to lead evidence if  it were available to show that the property, the subject of the forfeiture application “related to” offences within (a), (b) or (d) of the definition in s. 4.  In my view however there is no reason to confine the “relationship” contemplated in s. 13(1) or s. 23(1)(a) to only those offences characterized in (a), (b) or (d). On its face the contemplated relationship may equally extend to a “serious offence” characterized under (c) of the definition.

A critical question for determination in deciding whether to set aside the order for forfeiture and send the application back to be heard in accord with the provisions of s. 21(1) is whether upon the material before the Magistrate on the forfeiture application, it can be said that the property sought to be forfeited was “used ... by a person in the commission of the offence under s. 92(1) of the Act” or alternatively “used by a person in connection with the commission of an offence under s. 92(1).”

Under s. 23(1)(c) upon application for the forfeiture order in this case the court to make an order had to be satisfied that the property in question was “tainted property” in relation to the “serious offence” referred to in s. 23(1)(a).

Under ss. 23(4)(b) and (c) upon application for forfeiture of the property in this case “in relation to” the appellants’ conviction of the offences under s. 92(1) upon the presentation of evidence that the property in question was in the appellants’ possession at the time of the commission of the offence (i.e. the s. 92(1) serious offence as defined in the Act) then in the absence of evidence tending to show that the property was not tainted property, the court was required to presume that it was tainted property.

Presumably it was the provisions of s. 23(4)(c) which led to one of the appellants’ giving evidence in an attempt to show that the property was not tainted property.

On my reading of the evidence given by the male appellant in this case, it really could not be characterized as “tending to show that the property is not tainted property”.

Even if it could be so characterized so that s. 23(4)(d) had application, the Magistrates Court in this case could make a forfeiture order “against the property” if satisfied on the balance of probabilities that the property was tainted property.

Obviously s. 23(4)(d) contemplates the court having regard to the evidence given upon the proceedings taking against the appellants under the s. 92(1) prosecution as required by s. 21(1) of the Act.

The real question is whether by having in possession the property in question  it could  be said the appellants used it in or in connection with the commission of the offence under s. 92(1) constituted by such possession.

I can find nothing in the Act to suggest the necessity for proving the commission of a serious offence other than that created by s. 92(1) of the Act to which the property, the subject of those counts must have “related” under s. 13(1) and s. 23(1)(b).

Did possession of the property by the appellants in the light of the evidence given by the police officer who seized it and by the male appellant who explained the purpose for which it was being held show that in having possession of the property the appellants were using it in, or in connection with, committing the offence under s. 92(1) of possessing that property which may reasonably be suspected of being “tainted property”?

In my view a purposive possession clearly amounts to a use of the property for the relevant purpose.

In this case the male appellant gave evidence that he was holding the sound equipment for the purpose of using it in a motor vehicle. He gave evidence that the $4000 was being held for the purpose of buying a motor vehicle with it on the very day that it was seized by the  police officer or within a very short time of its seizure.

In the shorter Oxford English Dictionary “use” is defined to comprehend inter alia:

“The act or fact of using, holding or possessing land or other property so as to derive revenue, profit or other benefit from it.”

In Newcastle City Council v Royal Newcastle Hospital [1959] AC 248 the Privy Council considered whether or not a hospital which had acquired and owned an area of land for its purposes could be said to be “using” that land for those purposes. At p. 255 in delivering the judgment of the Board, Lord Denning observed:-

“Their Lordships are of opinion that it was used for those purposes. Mr MacKenna submitted that an owner of land could not be said to use the land by leaving it unused: and that was all that had been done here. Their Lordships cannot accept this view. An owner can use land by keeping it in its virgin state for his own special purposes. An owner of a powder magazine or a rifle range uses the land he has acquired nearby for the purpose of ensuring safety even though he never sets foot on it. The owner of an island uses it for the purposes of a bird sanctuary even though he does nothing on it, except prevent people building there or disturbing the birds. In the same way this hospital gets, and purposely gets, fresh air, peace and quiet, which are no mean advantages to it and its patients.”

In my view on the evidence before the court in this case the appellants’ possession of the property reasonably suspected of being tainted property was for the purpose of using it at least for the benefit of the first appellant. The money was to be used for the purpose of his purchasing a motor vehicle and the stereo equipment was to be used for his purpose of installing it in a motor vehicle for his benefit. 

In my view the purposive possession of all the property constituted its “use” for the anticipated benefit of at least the male appellant and consequently its possession which constituted the offence under s. 92(1) amounted to its use in or in connection with the commission of an offence under that section within s. 13(1)(a) of the Act.

Although in my view should the magistrate on the forfeiture application have considered the transcript of evidence which persuaded the convicting magistrate that the property in issue may reasonably be suspected of being tainted property it is not unlikely that he would have found it sufficient to prove on the balance of probabilities that it was tainted property, it is unnecessary upon the facts of this case to require the forfeiture application to be re-heard.

Having regard to the evidence called from the first appellant in my view it is clear that the property in respect of which the appellants were convicted of an offence under s. 92(1) of the Act was at that time being used by them or at least by the male appellant in or in connection with its possession for purposes beneficial at least to him.

I would dismiss the appeal.