Commonwealth Director of Public Prosecutions v Little
[2006] QDC 129
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- Commonwealth Director of Public Prosecutions v Little[2006] QDC 129
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Commonwealth Director of Public Prosecutions v Little[2006] QDC 129
Commonwealth Director of Public Prosecutions v Little[2006] QDC 129
[2006] QDC 129
DISTRICT COURT
CIVIL JURISDICTION
JUDGE ROBIN QC
No BD354 of 2006
COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS | Applicant |
and |
|
ROBIN MORROW LITTLE | Respondent |
BRISBANE
DATE 27/04/2006
ORDER
CATCHWORDS | Proceeds of Crime Act 2002 (Cth) s. 5, s 48, s 54, s 3.29 - application by DPP for forfeiture of cash in 4 different currencies which respondent had on him when apprehended at Brisbane Airport along with cocaine for importing which he was serving a sentence - he conceded Argentine pesos supplied by the owner of the drugs was proceeds of crime but contended the other sums were not being all along his property in US dollars or other currencies it was converted to - forfeiture ordered, all sums being "used" to facilitate the trip to Australia, and therefore an "instrument" of the offence. |
HIS HONOUR: This is an application by the Commonwealth DPP for forfeiture of separate sums of money in different currencies which the respondent, Mr Little, had on his person when he was apprehended at Brisbane Airport on the 6th of December 2004 with cocaine.
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HIS HONOUR: Cocaine had been located in a windsurfer forming part of Mr Little's luggage. He is presently serving a prison sentence following conviction for the importation and has participated in today's hearing by video link, ably presenting his own case.
The application is under section 48(2) of the (Commonwealth) Proceeds of Crime Act 2002. Mr Little concedes that a sum of 404 Argentinian pesos which he suggests was at the time worth about AU$180 was proceeds of crime on any approach having been the balance of the sum of 500 pesos which those who had procured him to bring the cocaine to Australia supplied him with.
In relation to $112.25 in Australian currency, Mr Little has established that that represents the proceeds of conversion of a sum of US$100 which he says he had with him from his own resources rather than from anyone he might have been working in connection with the importation; the exchange happened in Australia after his arrival. He had a balance of US$152 and also a sum of 1,000 euros. He has told the Court that he regarded the euro as a more sound or suitable currency to hold than the United State dollar at the time and had converted funds in US dollars to euros before he departed South America for Australia on the ill-fated trip.
He has exhibited to his affidavit part of a statement relative to a Bank of America account which indicates he had funds available there with the balance varying from about US$150 to US$1,429 throughout 2004. The statement shows substantial withdrawals in the last few months of 2004.
The Court is told that income taken in the form of cash was earned by Mr Little as a teacher of English as a Second Language in Lima. He raises no objection to the forfeiture of the Argentinean peso amount but resists the making of such an order in respect of the others.
His understandable approach to the Act as focusing on the proceeds of crime does not deal with the whole focus of the Act which also provides for the forfeiture of instruments of offences. Section 329 of the Act provides that property is an instrument of an offence if (a) it is used in or in connection with the commission of the offence or (b) is intended to be used in or in connection with the commission of an offence, whether the property is situated within or outside Australia.
Subsection (4) says that "instrument" means "an instrument of the offence constituted by the act or omission that constitutes the unlawful activity". The unlawful activity here of course was the importation of the drug.
There is a presumption available to the applicant in section 54 of the Act to the effect that, where property is in a person's possession at the time of or immediately after the commission of an offence, "the Court must presume that the property was used in or in connection with the commission of the offence".
That presumption is not available in the present matter because the condition that "no evidence is given that tends to show that the property was not used in or in connection with the commission of the offence" is not satisfied - in the sense that there are contentions supported by Mr Little's unsworn statements which I am prepared to accept as evidence of the kind I have described. He goes on to say that the purpose of having funds was so that he would have resources to fall back on if an expected payment of $10,000 upon successful importation was not forthcoming. He also wished to have funds to buy gifts. He referred to a computer to help himself in studies he might pursue while he was in Australia, and he might well have had personal needs.
Given the availability of that "evidence", section 54(d) applies. It states that "The Court must not make a forfeiture order against the property unless it is satisfied that the property was used or intended to be used in connection with the commission of an offence".
Mr Little has strongly asserted he had no intention to use the funds in question in connection with the commission of the offence. For present purposes I am willing to accept that.
The case comes down to whether the Court is satisfied that the property "was used" in connection with the commission of the offence.
I think the Court is entitled to look at the principal objects of the Act as set out in section 5, in particular paragraphs (a) and (c). Ms Chiverall for the applicant also relied on (d).
In my opinion it is appropriate, and permitted by the Act, to take a commonsense approach. Where a person arrives in this country with drugs being illegally imported, and has, on his person, other items such as cash which are self-evidently brought along to facilitate the journey, that cash is used in connection with the commission of the offence in the same way as are items of luggage where drugs are secreted or the airline ticket used - a copy of that is exhibited to Mr Little's affidavit. He says his bosses supplied that. In the same way it seems to me even the clothing which the offender is wearing could be regarded as used in connection with the offence.
On this basis it does not seem to me that what may be an innocent provenance of the funds makes any difference. A putative would-be offender in Mr Little's position, if he wanted to protect the funds, ought to have left them in the bank account or out of Australia and the clutches of the authorities here.
Mr Little correctly says that he is being punished twice over for this offence. That is what the Act clearly intends.
There will be an order in terms of the originating application filed the 10th of February 2006.
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HIS HONOUR: I will initial the draft to the same effect handed up by Ms Chiverall. So, the order will be in terms of that draft. Thank you.
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