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State of Queensland v O'Brien[2015] QSC 136

State of Queensland v O'Brien[2015] QSC 136

 

SUPREME COURT OF QUEENSLAND

  

CITATION:

State of Queensland v James Thomas O'Brien & Anor [2015] QSC 136

PARTIES:

STATE OF QUEENSLAND
(applicant)
v
JAMES THOMAS O'BRIEN
(first respondent)

MICHAEL PAUL FALZON
(second respondent)

FILE NO/S:

SC No 3879 of 2004

DIVISION:

Trial Division

PROCEEDING:

Application

ORIGINATING COURT:

Supreme Court at Mackay

DELIVERED ON:

18 May 2015

DELIVERED AT:

Brisbane

HEARING DATE:

3 October 2014

JUDGES:

Chief Justice

ORDERS:

The orders of the Court are that:

  1. Pursuant to s 78 of the Criminal Proceeds Confiscation Act 2002 (Qld), the first respondent and second respondent must each pay to the State of Queensland the sum of $14,051,238.56, being the apportioned value of the proceeds derived from illegal activity.
  1. The second respondent pay the applicant’s costs of and incidental to the application for a proceeds assessment order on the standard basis. 

CATCHWORDS:

CRIMINAL LAW – EVIDENCE – ADMISSIBILITY OF STATEMENT OF CO-CONSPIRATOR IN A JOINT CRIMINAL ENTERPRISE – where the first respondent was convicted of unlawfully trafficking in the drugs methylamphetamine and cannabis sativa – where the second respondent was convicted of one count of unlawfully trafficking in the dangerous drug methylamphetamine, and two counts of unlawfully producing methylamphetamine – where an application was made by the State of Queensland for a proceeds assessment order under s 78 of the Criminal Proceeds Confiscation Act 2002 (Qld) – where the first respondent made certain statements to the police incriminating the second respondent – whether the statements of the first respondent were admissible against the second respondent in confiscation proceedings.

CRIMINAL LAW – EVIDENCE – RELIABILITY, CREDIBILITY AND PROBATIVE VALUE OF INCONSISTENT WITNESS STATEMENTS - where the first respondent was convicted of unlawfully trafficking in the drugs methylamphetamine and cannabis sativa – where the second respondent was convicted of one count of unlawfully trafficking in the dangerous drug methylamphetamine, and two counts of unlawfully producing methylamphetamine – where an application was made by the State of Queensland for a proceeds assessment order under s 78 of the Criminal Proceeds Confiscation Act 2002 (Qld) – where the State of Queensland relied on certain witness statements to establish the existence and duration of the joint criminal enterprise – where there were certain inconsistencies and embellishments in the witness statements – where the chronology, sequence and particulars of their accounts in respect of certain peripheral matters developed over time – whether the witness statements were reliable and credible.

CRIMINAL LAW – PROCEDURE – CONFISCATION OF PROCEEDS OF CRIME AND RELATED MATTERS – ASSESSMENT OF BENEFIT - where the first respondent was convicted of unlawfully trafficking in the drugs methylamphetamine and cannabis sativa – where the second respondent was convicted of one count of unlawfully trafficking in the dangerous drug methylamphetamine, and two counts of unlawfully producing methylamphetamine – where an application was made by the State of Queensland for a proceeds assessment order under s 78 of the Criminal Proceeds Confiscation Act 2002 (Qld) – where hypophosphorous acid was utilised as a precursor to the production of methylamphetamine – where the quantity of acid acquired may be precisely quantified – whether the chemical precursor may be used to inferentially establish the proceeds derived from illegal activity.

CRIMINAL LAW – PROCEDURE – CONFISCATION OF PROCEEDS OF CRIME AND RELATED MATTERS – APPORTIONMENT OF PROCEEDS - where the first respondent was convicted of unlawfully trafficking in the drugs methylamphetamine and cannabis sativa – where the second respondent was convicted of one count of unlawfully trafficking in the dangerous drug methylamphetamine, and two counts of unlawfully producing methylamphetamine – where an application was made by the State of Queensland for a proceeds assessment order under s 78 of the Criminal Proceeds Confiscation Act 2002 (Qld) – where the first and second respondents were co-principals in a joint criminal enterprise – whether the assessed value of the proceeds derived from the illegal activity were able to be apportioned equally between the first and second respondents.

Criminal Proceeds Confiscation Act 2002 (Qld)

Drug Misuse Act 1986 (Qld)

Drug Misuse Regulation 1987(Qld)

Public Trustee Act 1978 (Qld) 

Ahern v the Queen (1988) 165 CLR 87.

Briginshaw v Briginshaw (1938) 60 CLR 336.

Brisbane Water County Council v Commissioner of Stamp Duties [1979] 1 NSWLR.

Director of Public Prosecutions v Nieves [1992] 1 VR 257.

Director of Public Prosecutions v Walsh (1989) 98 FLR 175.

Emerson v Custom Credit Corporation Limited [1994] 1 Qd R 156.

New South Wales Crime Commission v Kelly (No 2) [2003] NSWSC 154.

Queensland v Brookes & McCabe [2006] QCA 431.

Queensland v Cannon (No 2) [2011] QSC 245.

Queensland v Cannon [2011] QSC 75.

Queensland v Hirst [2003] QSC 266.

R v Ajibade [2006] EWCA Crim 368.

R v Anderson [2010] EWCA Crim 615.

R v Brookes [2005] QSC 390.

R v Dore (1997) 2 Cr App R(s) 152.

R v Fagher (1989) 16 NSWLR 67.

R v Gibbons [2003] 2 Cr App R (S) 169.

R v Green (Mark) [2008] 2 Cr App R 30.

R v Green [2007] EWCA Crim 1248.

R v Hussain [2006] EWCA Crim 621.

R v May [2008] UKHL 28.

R v McKechnie [2002] EWCA Crim 3161.

Razzi v Commissioner of Australian Federal Police (1990) 26 FCR 508.

Refjeck v McElroy (1969) 112 CLR 517.

Spencer v The Commonwealth (1907) 5 CLR 418.

Tripodi v The Queen [1961] 104 CLR 1.

COUNSEL:

R Douglas QC for the applicant

No appearance for the first respondent

Stephen Courtney for the second respondent

SOLICITORS:

ODPP (Qld) for the applicant

No appearance for the first respondent

Butler McDermott Lawyers for the second respondent

  1. THE CHIEF JUSTICE: This is the determination of an application for a proceeds assessment order (“PAO”) under the Criminal Proceeds Confiscation Act 2002 (Qld) (“the Confiscation Act”) requiring payment to the State of the assessed value of the proceeds allegedly derived from relevant serious criminal activity within the preceding six years.[1]
  1. In 2008 the first respondent, Mr James Thomas O'Brien, was convicted of unlawfully trafficking in the drugs methylamphetamine and cannabis sativa. He was also convicted of seven counts of unlawfully producing methylamphetamine, and was sentenced to 14 years’ imprisonment.
  1. The first respondent is a ‘prisoner’ to whom Part 7 of the Public Trustee Act 1978 (Qld) applies.[2] The Public Trustee is therefore the manager of his estate.[3]  The first respondent was served but, without written consent of the public trustee, is legally incapable of defending the action and neither appeared nor was represented at the hearing. 
  1. On 18 May 2009 the second respondent, Mr Michael Paul Falzon, was convicted of one count of unlawfully trafficking in the dangerous drug methylamphetamine, and two counts of unlawfully producing methylamphetamine, on a date unknown between 1 July 1997 and 16 February 2001. He was sentenced to 10 years’ imprisonment.
  2. Both respondents appealed against conviction to the Queensland Court of Appeal, and both appeals were dismissed.[4]
  3. There are five main issues for consideration by this court:
  1. Whether a PAO should be made under s 78(1) of the Confiscation Act;
  1. The admissibility of the evidence of the first respondent against the second respondent;
  1. The credibility, reliability, and weight of the testimony attributable to Ms Debra Dangerfield and Mr Corey Dangerfield;
  1. The quantification of the value of any proceeds obtained from the respondents’ illegal activity; and
  1. The apportionment of any proceeds of illegal activity among the respondents.
  1. As the requirement for a PAO is relatively uncontentious, and logically anterior to the following questions, this matter should and will be resolved first.

Should a Proceeds Assessment Order be Made?

  1. The State may apply to the Queensland Supreme Court for a PAO requiring a person to pay the State the value of the proceeds derived from the person’s illegal activity that took place within 6 years from the day the application for the order is made.[5] The PAO must be made if the court finds it more probable than not that, at any time within the 6 years before the application was made, the person engaged in a serious crime related activity.[6]
  1. If a PAO must be made, the assessment period commences at 14 July 1998 as the originating document was filed on 14 July 2004.[7] There is no suggestion that making a PAO against either respondent would be contrary to the public interest.[8]
  2. The second respondent, who was represented in these proceedings by counsel, claims in his affidavit filed on 25 August 2014 that he was wrongly convicted of the crimes specified at [4],[9] but concedes that a PAO must nonetheless be made.[10] Accordingly, the threshold requirements for an assessment order can be dispensed with briefly.
  1. “Serious crime related activity” is defined under s 16 of the Confiscation Act to mean anything done by a person that was a serious criminal offence at the time it was done,[11] regardless of whether the person has been charged, tried, acquitted, or convicted of the offence.[12] “Serious criminal offence” is defined broadly to include an indictable offence for which the maximum penalty is at least 5 years’ imprisonment.[13]
  1. Both respondents were convicted of unlawfully producing and trafficking in methylamphetamine. Methylamphetamine is a dangerous drug listed under schedule 1 of the Drugs Misuse Regulation 1987 (Qld).  Accordingly, the offences of unlawful trafficking and unlawful production carry a maximum penalty of 25 years’ and 20 years’ imprisonment respectively.[14] the first respondent was also convicted of unlawfully trafficking in cannabis sativa. Cannabis sativa is a dangerous drug listed under schedule 2 of the Drugs Misuse Regulation 1987 (Qld). Accordingly, the offence of trafficking in cannabis sativa attracts a maximum penalty of 20 years’ imprisonment.[15] Each of the abovementioned offences constitute a “serious criminal offence” as the maximum penalty exceeds 5 years’ imprisonment.
  1. This court must find that it is “more probable than not” that the respondents engaged in a “serious criminal offence”, regardless of whether the person was tried, convicted, acquitted, or charged for the relevant offence, within the 6 year assessment period. This imposes a civil standard of proof, which must be satisfied on the balance of probabilities.[16]
  1. The affidavits adduced by the Crown, the trial judge’s sentencing remarks, and the conviction certificate are proved under s 53(1) of the Evidence Act 1997 (Qld) and s 635(1) of the Criminal Code. Due weight must also be given to the fact that the respondents were convicted by a jury of their peers beyond reasonable doubt of the abovementioned criminal offences.  It is plain the first respondent and the second respondent were engaged in unlawfully trafficking and producing methylamphetamine at some time between June 1998 and 2004.[17]  Accordingly, I am satisfied on the balance of probabilities that the respondents engaged in serious crime related activity between 14 July 1998 and 14 July 2004.
  2. Therefore, an assessment order must be made under s 78(1) of the Confiscation Act. 

Admissibility of the Evidence of the First Respondent against the Second Respondent:

  1. The second respondent does not contest the allegation that the hypophosphorous acid was used or controlled by the first respondent but says that I cannot be reasonably satisfied that all or any of it was used by him in common with the first respondent because of the equally reasonable explanation that it was used solely by the first respondent to produce amphetamine.
  2. The second respondent also contends that the first respondent’s acts and statements are not admissible against him to prove his participation in a joint venture or conspiracy because no agreement has been proved and, apart from the disputed acts or words and the discredited evidence of the Dangerfields, there is no reasonable evidence that he was also a participant.”[18]
  3. Reliance is placed on the distinction the High Court drew in Tripodi v The Queen between words or actions in the pursuit of a common purpose and a “narrative statement or account of some event that has already taken place”[19] which is admissible against its exponent, but not against his or her companions.
  4. As a matter of principle, oral statements and implied assertions in non-verbal acts of alleged conspirators outside the presence of co-accused are inadmissible against him or her to prove their own truth or an equivalent purpose.  However, such a statement or act may be received at trial to prove the fact of pre-concert (that is, an illegal combination or conspiracy).  When used to prove combination the evidence is either confessional or circumstantial.  It is not dependent on any exception to the hearsay rule such as implied authority.
  5. The same evidence may (but will not always) be probative of the accused’s participation from which it can be reasoned back that he must also have been party to the combination.  However, when used to prove participation, as well as combination, the evidence is hearsay and must be excluded unless there is an exception to the longstanding rule of evidence against it.
  6. Such an exception (based on agency principles) was recognized and explained in Tripodi v the Queen.[20]  Stated briefly, the combination implies authority of the parties to speak on behalf of the others in furthering the common purpose.
  7. When it is necessary to call combination evidence at a different stage of the trial – whether before or after the participation evidence – Tripodi allows indirect evidence of the accused’s alleged combination to be given to a jury to use for the purpose of directly proving participation only where:
  1. the alleged combination is proved;
  1. the evidence was written, said or done by another participant in pursuit of its common aims;
  1. there is additional independent “reasonable evidence” pointing to the accused’s participation.[21]
  1. The admission of the evidence involves an exercise of judicial discretion. The objective of the discretion is to preserve the accused’s right to a fair trial.
  1. An assessment of the quality and probative value of the corroborating “reasonable” evidence may be postponed until after the admission of all other evidence.[22]  If there is insufficient independent evidence of the accused’s participation, the statement made by the co-conspirator must be given no weight in proving participation, except to the extent it possesses a relevant non-hearsay purpose and effect.
  1. A preliminary ruling on admissibility may be given on the depositions (or, in this case, the trial transcripts) and reconsidered after the closure of the evidence at trial.[23]  In the rare case that the hearsay evidence only goes to the participation of the accused, the prosecution will have to show, at least, that the evidence is relevant, and not unfair or unduly prejudicial, to the accused on the combination issue.[24]
  1. It is not possible to prove participation to the required standard merely on uncorroborated statements made by another alleged participant.
  1. The “reasonable evidence” asserted here consists of:
  1. conviction certificates
  1. trial transcripts
  1. statements by the first respondent in the absence of the second respondent.
  1. In my view, this is sufficient to satisfy the Tripodi requirements.  There are significant acts and statements of others bearing upon the issue of the second respondent’s participation in an illegal combination to traffic in, produce and manufacture dangerous drugs on a large commercial scale.
  1. Accordingly, the exception recognised in Tripodi applies and the hearsay evidence is admissible against the second respondent to the extent that it concerns the first respondent.  The hearsay evidence is supported by the convictions of the second respondent, the convictions’ reference to the Illbilbie properties of the the second respondent family, the evidence of the common business activities of the first respondent and the second respondent, and the statements of the Dangerfields.  On this basis, I conclude on the balance of probabilities that the second respondent and the first respondent were involved in a sophisticated joint criminal enterprise involving the trafficking of methylamphetamine on a commercial scale.

Credibility, Reliability and Weight of Debra and Cory Dangerfield’s Testimony:

  1. The second respondent argues that the evidence of Debra and Corey Dangerfield is inherently unreliable, and therefore any assessment order reliant on such evidence would constitute mere “guesswork”.
  1. The second respondent has sworn an affidavit and given evidence. With the exception of the productions of which he was convicted and the global allegation of trafficking, he denies the Dangerfields’ narrative. The second respondent claims not to possess wealth in the magnitude of the criminal proceeds claimed. On his argument, the value of accumulated machinery and real property owned by the second respondent was funded by a personal injury payment. The evidence given by Absalom regarding the second respondent’s legitimate earnings through opal mining was not contested.
  1. The second respondent claims the evidence of both Debra and Corey Dangerfield should be rejected because:
  1. They are afraid of the first respondent;
  1. They possess significant animosity towards the second respondent;
  1. They have committed serious drug offences for which they have not been charged because of undertakings given to the former Attorney-General.  This is said to give rise to a motive to fabricate evidence;
  1. Their evidence has evolved and been embellished at different stages; and
  1. Their testimony has been infected by material inconsistencies. 
  1. The second respondent claims that Corey Dangerfield has made inconsistent statements regarding the number of “cooks” he has observed, and the chronology and circumstances relating to certain money drops to the first respondent on behalf of the second respondent. Corey Dangerfield has also indicated that the first cook he observed had taken place at the Ilbilbie Shed in 1999, but in his most recent affidavit indicated that it occurred at the Notch Point Property in 1998. The second respondent also asserts that the evidence of Corey Dangerfield is inconsistent in respect of the recovery of a trailer, which in one statement occurred prior to his acquisition of a utility vehicle, and in another afterwards. There was also some uncertainty surrounding the location from which the trailer was removed, and the date at which the utility vehicle was purchased.
  1. The second respondent further claims that the evidence of Debra Dangerfield should not be accepted due to certain inconsistencies. The second respondent claims that Debra Dangerfield’s evidence regarding the first “suspicious activity” in late 1998, which involved the first respondent removing a substantial quantity of monies from the grill of his Fairlane vehicle, is inconsistent with Corey Dangerfield’s evidence, which places that event as having occurred in 1997. The second respondent also asserts that Debra Dangerfield embellished certain testimony, including by making reference to a “sausage of drugs” and the transportation of “speed” from James Dean to the second respondent.
  1. In respect of the hypophosphorous acid, the second respondent notes that his involvement was not mentioned in the 4 December 2002 and 10 August 2003 statements. Furthermore, in 15 March 2004 Debra Dangerfield stated that the acid was packaged in a cardboard box, rather than the distinctive Styrofoam box which was depicted in an annexure to Exhibit 10. Debra Dangerfield had stated on 15 March 2004 that she was “pretty sure” the second respondent had retrieved some hypophosphorous acid from her brother’s home, on 2 March 2009 that the second respondent had collected acid from his sister’s home, and on 17 February 2014 again that it had been collected from her brother’s home.
  1. I do not accept that the evidence of Corey or Debra Dangerfield has been fabricated or otherwise contrived. Both were exposed to considerable personal risk by providing evidence to the Crown of the offending behaviour of the first and second respondents. The inconsistencies in their evidence primarily relate to the chronology, sequence and location of certain events, most of which are peripheral to the issuing of a PAO. This is explicable by the significant effluxion of time between each statement, and the ordinary development and deterioration of human recollection. In respect of Corey Dangerfield, I would also note that he was relatively young at the time of the relevant circumstances.
  1. Corey Dangerfield has proven remarkably consistent in respect of the existence of a sophisticated joint criminal enterprise between the first and second respondent, and the substantial extent of the second respondent’s involvement. Corey Dangerfield has also fairly consistently placed the first “cook” as occurring in 1998 or 1999. Debra Dangerfield consistently gave evidence of the manufacturing and trafficking activities of both the first and second respondent. Although Debra Dangerfield was somewhat unclear regarding from whom the hypophosphorous acid was collected, but was certain that second respondent had collected it on at least one occasion. Debra Dangerfield also gave evidence that bottles of a similar kind to that which she had previously observed containing the hypophosphorous acid had been used in the manufacturing of methylamphetamine by the first and second respondent together.
  1. Although the particulars of the evidence of Corey and Debra Dangerfield were, in some respects, mutually inconsistent, this generally only related to the chronology and sequence of events. Both witnesses testified to the existence of a joint criminal enterprise which involved the production and distribution of methylamphetamine, and that the second respondent was substantially invested in the enterprise. Both witnesses referred to certain key events and participants, such as the removal of monies from the grill of a vehicle, the production of methylamphetamine at the Notch Point property, the Ilbilbie property, and Grunter’s property, and the involvement of Glen Dakin. As I find that the witnesses had not conspired to produce a false or fraudulent account, this evidence is mutually reinforcing.
  1. The second respondent claims that, even if this Court accepts the evidence of Corey and Debra Dangerfield, I am required to find that the second respondent’s participation in the joint criminal enterprise is limited to:
  1. the activity in the three month period between about 10 July 1999 (the arrival of the utility) and 21 October 1999 (Corey Dangerfield’s dismissal).  This is because if, as the Dangerfields claim, there was no production or money drops before the utility on either 5 or 10 July 1999, that would only leave marginally over three months between then and the dismissal of Corey Dangerfield before 21 October 1999 for him to observe the illegal conduct he alleges of the second respondent;
  1. the two productions of which the second respondent himself was convicted;
  1. a production at “Grunters”; and
  1. other generalised productions.
  1. This Court is not limited to the conclusions urged by the second respondent. The evidence of Debra Dangerfield indicated that the joint criminal enterprise of the first and second respondent continued until at least 2001, when Debra Dangerfield drove the first respondent to various locations, sometimes with the involvement of the second respondent, to distribute methylamphetamine and engage in other drug-related activities. Similarly, in 2002 Corey Dangerfield remained engaged by the first respondent to conceal methylamphetamine and money. This Court may infer, on the balance of probabilities, that the joint criminal enterprise within which the second respondent had participated continued until at least 2002.

The Valuation of Crime Derived Proceeds

  1. The term proceeds in this context includes property and other benefits or advantages derived, directly or indirectly, by a respondent or another person because of the activity.[25] Benefit’ is defined under s 21(1)-(2) of the Confiscation Act to include service and advantage.  ‘Derived’ is defined broadly in Schedule 4 to include directly, indirectly, or realised. 
  2. The value of the proceeds includes the assessed value of all illegal activities, regardless of whether such illegal activities constitute “serious criminal offences” or “serious crime related activity”, as defined in s 15 of the Confiscation Act (less any forfeited property) committed during the assessment period.[26]
  3. The State claims slightly more than $15.8M against each respondent having regard to the evidence about the matters in s 82(i)(a)-(e) of the Confiscation Act, including the:
  1. value of cash or benefit that came into the possession of the respondents because of the activity;
  2. market value of the drug involved;
  3. value of the respondents’ property before, during, and after the activity; and
  4. respondents’ income and expenditure.

 

i. Standard and Degree of Proof in Valuing Proceeds of Illegal Activity:

  1. As an application for a PAO constitutes proceedings of a civil nature, questions of fact must be determined on the balance of probabilities.[27]  However, the degree of proof required to discharge the civil standard may be influenced by the seriousness, gravity, or inherent improbability of the relevant allegation.[28] Regardless of the difference in degree, there remains two distinct standards of proof:

[T]he standard of proof to be applied in a case and the relationship between the degree of persuasion of the mind according to the balance of probabilities and the gravity or otherwise of the fact of whose existence the mind is to be persuaded are not to be confused. The difference between the criminal standard of proof and the civil standard of proof is no mere matter of words: it is a matter of critical substance. No matter how grave the fact which is to be found in a civil case, the mind has only to be reasonably satisfied and has not with respect to any matter in issue in such a proceeding to attain that degree of certainty which is indispensable to the support of a conviction upon a criminal charge.[29]

  1. The starting point for any assessment of the value of illegally obtained benefits or property is R v Fagher, in which Roden J held that:

Calculation or assessment of the value of the benefits derived by a particular offender from any criminal transaction, is likely to be difficult.  There will be no audited accounts available, nor can one expect a contract or other documentation evidencing the nature of the dealings among the several participants who may be involved.  Additionally, if the participants themselves give evidence of the details of those transactions, their evidence is unlikely to be the most reliable and to the extent that it may be relied upon is unlikely to disclose defined legal relationships.[30]

  1. Later in Fagher, Allen J held that:

The court should not lose sight of reality that the court, to fulfil its statutory obligation, often will have to assess the value of the benefits derived by the defendant on material which is far less satisfactory than what it normally would expect to have in litigation. It is not the nature of criminals to keep records of such a kind as to assist the court; nor is it the nature of criminals to tell the truth when telling a lie would seem more advantageous. The sections clearly recognise the difficulty of the task imposed upon the court and accept that the assessment of the value must in many cases be a somewhat rough and ready process.[31]

  1. Accordingly, the court may adopt a “rough and ready” or “broad approach” when assessing the value of benefits derived from criminal activities.[32] However, the court must base its assessment on evidence, rather than mere guesswork, inexact proofs, or indirect references.[33]

ii. Use of Pharmacological Precursors for Assessing Quantity of Methylamphetamine:

  1. The Crown proposes that the quantity of hypophosphorous acid, a chemical precursor to methylamphetamine, allegedly possessed by the respondents be utilised to infer the quantity of methylamphetamine they manufactured. The Crown further posits that the quantity of methylamphetamine manufactured may be used to infer the quantity of methylamphetamine sold at market value.
  2. As a preliminary matter, it is necessary for the Crown to demonstrate that the respondents were in possession or control of the alleged quantity of hypophosphorous acid.
  3. The affidavit of Debra Dangerfield deposes that:
  1. In late 1998 to 1999 the first respondent delivered $40,000 and $80,000 in a case to a James Dean;[34]
  1. Dean had taught the first respondent how to ‘cook speed’ or methylamphetamine:[35]
  1. After the first respondent cooked ‘speed’ he delivered the drug to the second respondent’s Notch Point property at Ilbilbie;[36]
  1. The first respondent and the second respondent would sell the speed together[37] and acquired and used glassware, pots, frying pans and other equipment for cooking speed;[38]
  1. On numerous occasions the first respondent paid a man named Cummins $80,000 to $100,000 in cash for containers of Sudafed tablets[39] to produce pseudoephedrine;[40]
  1. The first respondent told her that he needed a special kind of acid to cook speed[41] and that Glenn Dakin (Ms Dangerfield’s brother) used to obtain acid for him from Joy Mining[42] where he worked and would give it to the first respondent at home,[43] but the second respondent once collected a cardboard box of acid from Dakin’s house;[44]
  1. Dakin and another person from Joy Mining were paid ‘a couple of grand’ by the first respondent each time they delivered the acid;[45]
  1. the acid was in 20 litre quantities, contained in boxes of four dark brown coloured bottles about 8 inches high,[46]
  1. Dangerfield recalled seeing similar bottles when they were doing speed cooks at Notch Point in Ilbilbie;[47] and
  1. Eleen Falzon took a photograph of the first respondent[48] at Notch Point standing behind a table of $1M in cash holding a sign saying: ‘The bank you can trust’.
  1. Likewise, Corey Reece Dangerfield attests[49] to seeing the first respondent and the second respondent ‘cooking’ speed together;[50] to an argument between them about an unsuccessful ‘cook’;[51] to transporting large bundles of cash for the second respondent to give to the first respondent;[52] and to buying cannabis from the first respondent.[53]
  1. The affidavits of Kristen Thomas[54] and Darryl Johnson[55] deal with the interception of the first respondent, Stephen Philp and Belinda Short in a motor vehicle at Tugun on 15 September 2003.  Thomas and Johnson depose that they discovered plastic bags containing 1.24 kilograms of pseudoephedrine[56]in the car they were driving. The first respondent’s conviction for the unlawful production of methylamphetamine on 15 September 2003 relates to that incident.
  1. The attested evidence of Debra and Corey Dangerfield, Thomas, and Johnson, if accepted, establishes that the respondents were involved in a relatively sophisticated commercial enterprise to produce and distribute methylamphetamine.
  2. Robert William Jeffries[57] deposes to the fact that Joy Manufacturing Company Pty Ltd had been supplied with 140 litres of hypophosphorous acid from PJ Evans & Co in Rockhampton.  Jeffries also deposes to having made a complaint about Glen Dakin, an employee of Joy Manufacturing.  Jeffries’ complaint led to the investigation of Glen Dakin and another employee, David Edmistone. 
  3. The evidence of Robert Jeffries is corroborated by the affidavit of Peter Evans of PJ Evans & Co.[58] Attached to Evans’ affidavit are extracts from the invoice books and controlled chemical notepads forming part of the business records of the company.[59] They confirm the sale of 140 litres of hypophosphorous acid from PJ Evans & Co to Joy Mining in the period of 3 March 1999 to 5 October 2000.
  4. Brian Muirson[60] investigated Jeffries’ complaint about the delivery of the hypophosphorous acid.  This resulted in a plea of guilty by David Edmistone, among other things, to stealing as a servant and false entries in records in relation to the purchase of the hypophosphorous acid.  The value of a litre of hypophosphorous acid in the illicit drug market 1999-2000 was approximately $1,000.[61]
  5. The evidence of Debra Dangerfield demonstrates that the hypophosphorous acid supplied to Joy Manufacturing was conveyed to the first respondent in exchange for valuable consideration.  As the first respondent and the second respondent were jointly involved in the manufacturing of methylamphetamine, the hypophosphorous acid entered into the possession, custody, or control of both the first respondent and the second respondent.
  6. The evidence of Jeffries, Evans, and Debra Dangerfield establish, on the balance of probabilities, that 140 litres of hypophosphorous acid entered into the possession of the first respondent and the second respondent. The Crown, however, must also demonstrate the function of hypophosphorous acid as a pharmacological precursor to methylamphetamine. 
  7. The expert testimony of Scott Feeney[62] and Peter Vallely describes the use of pseudoephedrine and hypophosphorous acid as primary precursors in making methylamphetamine. Feeney also estimated the value of methylamphetamine, pseudoephedrine and hypophosphorous acid in Queensland in 1998 to 2003. 
  8. The testimony of Debra and Corey Dangerfield further establishes that the respondents in fact utilised hypophosphorous to manufacture methylamphetamine.
  9. On the balance of probabilities, I am satisfied that hypophosphorous acid is a chemical precursor used in the manufacturing of methylamphetamine. The testimony of Debra and Corey Dangerfield further establishes that the hypophosphorous acid was, in fact, used by the first respondent and the second respondent to produce methylamphetamine.
  10. Having regard to the foregoing findings, the question remains whether it is open to this court to utilise the 140 litres of hypophosphorous acid to inferentially extrapolate the quantity of methylamphetamine produced by the first respondent and the second respondent.  The respondents have not provided any evidence tending to establish that any portion of the hypophosphorous acid was lost, destroyed, or damaged, or otherwise on-sold to other persons. 
  11. In State of Queensland v Cannon[63] the Queensland Supreme Court held, where the offender engaged in commercial drug trafficking, that the supply of chemical precursors (in that case, ephedrine) may be used to infer the quantum of methylamphetamine used in the criminal enterprise. In the absence of evidence to the contrary, the court may further infer that the full amount of methylamphetamine reasonably capable of being produced from the designated precursors were sold at market value. 
  12. The facts of this case are analogous to Cannon.  The respondents conducted a relatively sophisticated commercial drug trafficking enterprise.  They possessed a demonstrated capacity to supply methylamphetamine to meet the demands of consumers.  In the absence of evidence to the contrary, this court is entitled to infer that the full quantum of the hydrophosphorous acid was used to produce methylamphetamine.  The court will also infer that the methylamphetamine was sold at the prevailing market value.
  13. The State relies on the expert evidence of Mr Vallely to establish that 140 litres of hypophosphorous acid may be used to produce between 100 and 310 kilograms of methylamphetamine.  As Mr Vallely’s evidence in this respect is materially unchallenged by the respondents, it shall be accepted.  Accordingly, this court conservatively finds that the 140 litres of hypophosphorous acid was used to produce 200 kilograms of methylamphetamine.  This court also infers that, because of the sophisticated operation of the respondents, their demonstrated capacity to supply large quantities of methylamphetamine, and the absence of evidence to the contrary, the full 200 kilograms of methylamphetamine was sold at market value. 

iii. Quantification of the Market Value of the Proceeds:

  1. Section 82(1)(c)(i) of the Confiscation Act requires, in the context of illegal activity involving a dangerous drug, the market value, when the illegal activity happened, of the dangerous drug similar, or substantially similar, to the illegal drug, to be considered in assessing the value of any proceeds. Methylamphetamine constitutes a “dangerous drug” under s 4 of the Drugs Misuse Act 1986 (Qld).[64]
  1. The phrase “market value” is not defined under the Confiscation Act. “Market value”, in different contexts, has been described as the best price which may be reasonably obtained for property if sold on the general market.[65] However, several United Kingdom courts and commentators have held that as “market value” means the value of property if lawfully sold, drugs possess no “market value”.[66] Despite this, Queensland courts have consistently referred to the existence of a “market value”, or “black-market” value, for illicit substances.[67] Furthermore, s 82(1)(c)(i) of the Confiscation Act would be rendered nugatory if dangerous drugs lacked any “market value”, which would be contrary to the intention of Parliament.  Accordingly, the “market value” of illicit substances under s 82(1)(c)(i) is the best price which may be reasonably obtained if the illicit substances were sold on the general market.[68]
  1. Section 85(1)(a) of the Confiscation Act prescribes that this court may receive evidence of the opinion of a prescribed officer who is experienced in the investigation of illegal activities involving dangerous drugs about the market value at a particular time of a particular kind of dangerous drug or controlled substance. “Prescribed officer” includes a police officer or member of the Australian Federal Police. Feeney, an expert witness called by the Crown, is a police officer of the Australian Federal Police with extensive experience in investigating drug-related offences. Feeney, therefore, constitutes a “prescribed officer” from whom evidence regarding the market value of methylamphetamine between 1998 and 2003 may be admitted.
  1. The expert evidence of Feeney indicated that, in the period between 1997 and 2003, the “market value” of methylamphetamine was between $40,000 and $50,000 per pound. The expert evidence of Scott Edward Campbell[69] indicates that, based on this range and the amount of methylamphetamine capable of being manufactured from 140 litres of hypophosphorous acid, the value of the methylamphetamine sold by the respondents was between $8,818,400 and $34,171,500.
  1. The Crown submits, based on Feeney’s evidence, that this court should find that the actual market value for the period was $45,000 per pound. The Crown further submits that, based on the factual finding that 200 kilograms of methylamphetamine may be manufactured from 140 litres of hypophosphorous acid, the gross value of the proceeds obtained from the illegal activity of the respondents was $19,841,400.
  2. Having regard to the inherent difficulty associated with establishing a “market value” retrospectively for illicit substances such methylamphetamine, and the potential margin for error, this court accepts the submissions of Feeney, but prefers a more conservative finding. Accordingly, I find that the market value for methylamphetamine between 1998 and 2003 was $40,000 per pound, or $88,184 per kilogram.  Furthermore, having regard to the business acumen of the respondents and the sophisticated nature of their operation, I infer that the methylamphetamine was in fact sold at market value. 
  1. Accordingly, the total value of the proceeds derived from the 200 kilograms of methylamphetamine distributed by the respondents is $17,636,800.

iv. Treatment of Expenditure:

  1. Feeney has deposed that between 1998 and 2003 the market value of one litre of hypophosphorous acid in the illicit drug manufacturing market was $1,000.
  1. Section 84 of the Confiscation Act prescribes that:

For this division, any expenses or outgoings incurred by the relevant person in relation to the illegal activity must be disregarded.

  1. In Commissioner of the Australian Federal Police v Fysh[70] the court, applying the broadly analogous s 126 of the Proceeds of Crimes Act 2002 (Cth), concluded that the “gross profits” of the “illegal activity” should form the calculation for the benefits relating to the illegal activity.  Therefore, brokerage fees incurred as part of insider trading were not deducted from the profits obtained.  The court will also disregard, as a matter of policy, any losses caused by misadventure or unprofitable investment in calculating the “gross profits” of the illegal activity.[71]
  1. Importantly, however, the court must distinguish between expenses and outgoings incurred in relation to the illegal activity, which are disregarded, and expenses and outgoings incurred in relation to the proceeds of the illegal activity, which may be considered as part of the PAO.[72]
  1. The cost of chemical precursors directly used in the manufacture of a dangerous drug constitutes expenditures incurred in relation to the illegal activity.  This is because the unlawful production and trafficking comprises of the “illegal activity”.  Accordingly, the estimated $140,000 expenditure incurred in acquiring the hypophosphorous acid will not be deducted from the gross proceeds derived from the respondents’ illegal activity. 

v. Time Value of Money/Inflationary Adjustments:

  1. The State calculates the time value of money at $11,773,886.76. This is based on a different principal benefit than that found by this Court.
  1. Section 82(2)(a) of the Confiscation Act allows the court to treat the value of the proceeds as the value that they would have had if the proceeds had been derived at the time the valuation is being made. In Queensland v Cannon (No 2) the Queensland Supreme Court held that in commercial drug trafficking cases it is preferable to use the historical value of the proceeds rather than their current value.  The Court found that:

It seems to me that s 82(2) addresses the issue of the assessment of the value of proceeds where the proceeds are assessed by reference to historic rather than present values. In a proceeding such as this there are sound practical reasons to have reference to the market value of the drugs at the time of the illegal drug activity. Evidence is given of the price paid for the drugs and suitably-qualified law enforcement officers are able to give evidence about the market value at that time of a particular kind of dangerous drug and the amount, or range of amounts, ordinarily paid for them.[73] (footnotes omitted)

  1. Consistently with Cannon (No 2), this Court proposes to utilise the historic value of the proceeds between 1999 and 2002.   However, where the Court uses the historical value of the drug proceeds derived from the respondent’s illegal activity, it may consider the relative decline in the purchasing power of money between the time the proceeds were derived and the time the PAO is made.[74] In calculating the decline in the purchasing power of money, the court may elect to use the Consumer Price Index, a measure of inflation.[75] 
  1. Relying on the unchallenged evidence of Mr Scott Campbell, an Acting Senior Financial Investigator employed by the Crime and Corruption Commission, and substituting the principal value of the proceeds, namely $17,636,800, I find that the present value of the proceeds derived from the respondents’ serious crime-related activity is $28,102,477.12.

vi. Conclusion:

  1. This court finds that:
  1. The respondents engaged in a sophisticated commercial trafficking operation to distribute methylamphetamine in exchange for valuable consideration;
  1. The respondents obtained 140 litres of hypophosphorous acid from Glenn Dakin, who obtained the chemical precursor through his employer Joy Mining, which sourced the substance from PJ Evans & Co;
  1. The respondents utilised the full 140 litres of hypophosphorous acid, in combination with other chemical precursors, to manufacture 200 kilograms of methylamphetamine;
  1. The respondents sold the full 200 kilograms of methylamphetamine at the prevailing market value;
  1. The prevailing market value between 1998 and 2003 was $40,000 per pound, or $88,184 per kilogram;
  1. The respondents, therefore, obtained $17,636,800 in proceeds from the criminal enterprise at the historical value of the methylamphetamine; and
  1. The present value of $17,636,800, in accordance with compounding CPI, is $28,102,477.12.
  1. Accordingly, this Court finds, on the balance of probabilities, that the total value of the proceeds of the commercial trafficking operation conducted by the first respondent and the second respondent is $28,102,477.12.

The Apportionment of Crime Derived Proceeds

  1. The principal object of the Confiscation Act is to:

[R]emove the financial gain and increase the financial loss associated with illegal activity, whether or not a particular person is convicted of an offence because of the activity.[76]

  1. Other significant purposes include:
  1. Depriving persons of the benefits of illegal activities;[77]
  2. Deterring persons from committing serious criminal offences;[78] and
  3. Preventing the reinvestment of financial gain from illegal activity in further illegal activity.[79]
  1. However, the purposes of the Confiscation Act do not contemplate the mere augmentation of government revenue among its objectives.[80]
  1. The Confiscation Act is silent regarding the apportionment of crime derived proceeds among co-offenders. Accordingly, this Court must find a suitable method of distributing the proceeds among the respondents.
  1. This Court finds, on the balance of probabilities, that the first respondent and the second respondent were involved in a joint criminal enterprise or conspiracy for the unlawful production and trafficking of methylamphetamine. This is based on the evidence of Debra and Corey Dangerfield and the first respondent. Although the first respondent and the second respondent may have had different degrees of involvement in the joint criminal enterprise, the extent of their involvement is such that they are both co-principals.
  1. Limited evidence has been adduced regarding any particular distribution of the proceeds among the respondents involved in the notional joint criminal enterprise. In such circumstances, the court in Gibbons concluded that:

In our judgment, where there is clear evidence of movement of money to conspirators as in this case and in the absence of any evidence as to how the benefit of the conspiracy has been divided between individuals, dividing the total amount between those identified is as good a starting point as any.[81]

  1. In R v May the House of Lords affirmed Gibbons, holding that:

[The] equal division [in Gibbons] was criticised in argument in the Court of Appeal, but was rightly upheld. The case was one which clearly called for a confiscation order. It would have defeated the purpose of the legislation to allow lack of information, which only the defendant and her co-conspirators could provide, to preclude the making of an order. An equal division was the fairest solution available in the circumstances.[82]

  1. A similar approach was adopted by the Victorian Court of Appeal in Nieves to assess the value of the benefit received by several co-respondents under the Crimes (Confiscation of Profits) Act 1986 (Vic) for the purposes of a pecuniary penalty order.  There was no evidence regarding the distribution of the cumulative proceeds among the several co-respondents.  The Crown submitted that a pecuniary penalty order should be issued executable “jointly and severally” against each of the co-respondents, because some were impecunious and unlikely to satisfy their portion of the order. 
  1. The Victorian Court of Appeal declined, noting the penal nature of the pecuniary penalty order and the importance of promoting deterrence. The Court noted that such purposes would be undermined if the full value of the pecuniary penalty order was executed against one respondent, and another escaped punishment. The Court further acknowledged that the purpose of the pecuniary penalty order was not to secure government revenues. Accordingly, in the absence of evidence regarding the distribution of profits, the court divided the aggregate value of the joint criminal enterprise among each co-respondent to determine their respective benefits. [83]
  1. In the United Kingdom, however, the Court of Appeal has held in Green that where the evidence establishes, or in appropriate circumstances permits an inference, that each co-respondent involved in a joint criminal enterprise was jointly entitled to the full benefit of the proceeds derived from the criminal enterprise, an order may be made in respect of each of the co-respondents for the full value of the criminal proceeds.[84]  However, the several orders may only be collectively enforced to the aggregate value of the proceeds obtained from the illegal activity.[85]
  1. This proposition is not necessarily inconsistent with Nieves, where the Victorian Court of Appeal refused to issue a single pecuniary penalty order jointly and severally enforceable against each of the co-respondents. Furthermore, Nieves is distinguishable because there was no evidence indicating that the co-respondents were jointly entitled to the full benefit of the proceeds derived from the joint criminal enterprise.
  1. In light of the primary purpose of the Confiscation Act in removing financial gains obtained from illegal activity, where it can be established that co-respondents in a joint criminal enterprise were jointly entitled to the full value of the proceeds, it may not be unreasonable for this court to issue separate assessment orders for the full value of the proceeds against each co-respondent, collectively enforceable only to the extent of the full value of the criminal proceeds obtained from the illegal activity.
  1. In any event, this court determines that it is appropriate to proceed on the basis of Gibbons and Nieves.  There is no evidence of a particular distribution of proceeds among the respondents.  Furthermore, there is no evidence indicating that the first respondent and the second respondent were jointly entitled to the full value of the proceeds.  However, failure to issue an assessment order would undermine the purpose of the Confiscation Act.  Accordingly, this Court finds that the proceeds of the joint criminal enterprise should be divided equally among the respondents.
  1. As the State of Queensland has been substantially successful in respect of each of the issues raised in the application before this Court, costs should follow the event on the standard basis.

Orders

  1. The orders of this Court are that:
  1. Pursuant to s 78 of the Criminal Proceeds Confiscation Act 2002 (Qld), the first respondent and second respondent must each pay to the State of Queensland the sum of $14,051,238.56, being the apportioned value of the proceeds derived from illegal activity.
  1. The second respondent pay the applicant’s costs of and incidental to the application for a PAO on the standard basis. 

Footnotes

[1] Criminal Proceeds Confiscation Act 2002 (Qld), ss 15(a), 77.

[2] Public Trustee Act 1978, (Qld) s 90.

[3] Public Trustee Act 1978, (Qld) s 91.

[4] Leave to appeal against sentence was also refused in both cases: see R v Falzon [2009] QCA 393; R v O'Brien [2009] QCA 82.

[5] Criminal Proceeds Confiscation Act 2002 (Qld), s 77(1).

[6] Criminal Proceeds Confiscation Act 2002 (Qld), s 78(1).

[7] Criminal Proceeds Confiscation Act 2002 (Qld) s 78(1).

[8] Cf Criminal Proceeds Confiscation Act 2002 (Qld), s 78(1)(2).

[9] Doc 128 of 3879/04, paragraph 6.  See also paragraphs 73, 90, 127, 131, 151, 157, 160, 161.

[10] Criminal Proceeds Confiscation Act 2002 (Qld), s 71(8).

[11] Criminal Proceeds Confiscation Act 2002 (Qld), s 16(1).

[12] Criminal Proceeds Confiscation Act 2002 (Qld), s 16(2).

[13] Criminal Proceeds Confiscation Act 2002 (Qld), s 17(1)(a).

[14] Drugs Misuse Act 1986 (Qld), ss 5(1)(a) (unlawful trafficking in schedule 1 dangerous drug), 8(1)(c) (unlawful production of a schedule 1 dangerous drug in less than the prescribed schedule 3 and 4 quantities).

[15] Drugs Misuse Act 1986 (Qld) s 5(1)(b) (unlawful trafficking in schedule 2 dangerous drug).

[16] Criminal Proceeds Confiscation Act 2002 (Qld), s 8(3).

[17] Doc 80 of 3879/04, exhibit SKC-02 at p2.

[18] Ahern v the Queen (1988) 165 CLR 87, 100.

[19] Tripodi v The Queen [1961] 104 CLR 1, 7.

[20] Ibid.

[21] Ahern v the Queen (1988) 165 CLR 87, 100.

[22] Ibid, 104.

[23] Ibid.

[24] Ibid.

[25] Criminal Proceeds Confiscation Act 2002 (Qld) s 18.

[26] Criminal Proceeds Confiscation Act 2002 (Qld) ss 79(3) – 79(4).

[27] Criminal Proceeds Confiscation Act 2002 (Qld), s 8(3); Queensland v Cannon [2011] QSC 75, [12].  Decisions of intermediate courts in other jurisdictions ostensibly implying a lower standard of proof in confiscation proceedings should be treated with circumspection: see, for example R v Hall [2013] NSWCCA 47, [37]-[38].

[28] Briginshaw v Briginshaw (1938) 60 CLR 336, 362 (per Dixon J); Refjeck v McElroy (1969) 112 CLR 517, 521.

[29] Refjek v McElroy (1969) 112 CLR 517, 521.

[30] R v Fagher (1989) 16 NSWLR 67, [71]-[72]. This passage has been expressly applied in Queensland by Applegarth J in Queensland v Cannon [2011] QSC 75, [176], and in New South Wales by the unanimous Court of Criminal Appeal in R v Hall [2013] NSWCCA 47, [37]-[38].

[31] New South Wales Crime Commission v Kelly & Ors [2003] NSWCA 245, [52].

[32] R v Brookes [2005] QSC 390, [47], citing R v Pepin (1996) 86 A Crim R 327.

[33] Queensland v Cannon [2011] QSC 75, [176].

[34] Paragraphs 41 to 43 and 79 to 83.

[35] Paragraph 44.

[36] Paragraphs 45 to 46.

[37] Paragraphs 45 to 46.

[38] Paragraphs 49 to 50.

[39] Paragraph 56.

[40] Paragraph 55.

[41] Paragraph 61.

[42] Paragraph 63.

[43] Paragraph 63.

[44] Paragraph 68.

[45] Paragraph 64.

[46] Paragraph 65.

[47] Paragraph 70.

[48] Paragraph 97.  The photograph is exhibit DAD-01 to Ms Dangerfield’s affidavit.

[49] Doc 100 of 3879/04.

[50] Paragraphs 45 to 55.

[51] Paragraphs 90 to 92.

[52] See, for example, paragraphs 39 to 46, 73 to 75.

[53] Paragraphs 121 60 123.

[54] Doc 103 of 3879/04.

[55] Doc 106 of 3879/04.

[56] Doc 103 of 3879/04, paragraph 12.

[57] Doc 101 of 3879/04.

[58] Doc 102 of 3879/04.

[59] Paragraphs 3 and 8.

[60] Doc 104 of 3879/04.

[61] Doc 82 of 3879/04, paragraph 38.

[62] Doc 82 of 3879/04.

[63] [2011] QSC 75, [176].

[64] Methylamphetamine is listed as a schedule 1 dangerous drug under the Drugs Misuse Regulation 1987 (Qld).

[65] Brisbane Water County Council v Commissioner of Stamp Duties [1979] 1 NSWLR 320, [324]; cited with approval in Emerson v Custom Credit Corporation Limited [1994] 1 Qd R 156. See further Spencer v The Commonwealth (1907) 5 CLR 418, 432, 441.

[66] R v Dore (1997) 2 Cr App R(s) 152, 158; R v Ajibade [2006] EWCA Crim 368; R v Hussain [2006] EWCA Crim 621; T Millington and M S Williams, The Proceeds of Crime: Law and Practice of Restraint, Confiscation Condemnation and Forfeiture (OUP: 2007, 2nd edn) at 290.

[67] See, for example: Queensland v Cannon [2011] QSC 75; Queensland v Cannon (No 2) [2011] QSC 245, [1]; Queensland v Hirst [2003] QSC 266, [8].

[68] Even if this construction is incorrect, and dangerous drugs do not possess a “market value”, the value at which those drugs may be sold on the general market is nevertheless an indicator of the revenues which may be accrued from trafficking the relevant dangerous drug. 

[69] Doc 142 of 3879/04, paragraphs 15 to 21

[70] [2013] NSWSC 81.

[71] New South Wales Crime Commission v Kelly (No 2) [2003] NSWSC 154, [49].

[72] See generally, Queensland v Brookes & McCabe [2006] QCA 431.

[73] Queensland v Cannon (No 2) [2011] QSC 245, [14].

[74] Queensland v Cannon (No 2) [2011] QSC 245, [15].

[75] Director of Public Prosecutions v Walsh (1989) 98 FLR 175, 191.

[76] Criminal Proceeds Confiscation Act 2002 (Qld), s 4(1).

[77] See the categories under Criminal Proceeds Confiscation Act 2002 (Qld), s 4(2)(a).

[78] Criminal Proceeds Confiscation Act 2002 (Qld), s 4(2)(b).

[79] Criminal Proceeds Confiscation Act 2002 (Qld), s 4(2)(c). For other significant purposes of the Act, see ss 4(2)(d)-(g).

[80] See, for example: Director of Public Prosecutions v Nieves [1992] 1 VR 257.

[81] R v Gibbons [2003] 2 Cr App R (S) 169, [62]. See further R v Anderson [2010] EWCA Crim 617, [19]-[21].

[82] R v May [2008] UKHL 28, [32].  Note, however, that in May the evidence indicated that the offenders were co-principals, and therefore a confiscation order for the full value of the proceeds was issued against each co-principal. See further R v McKechnie [2002] EWCA Crim 3161.

[83] Director of Public Prosecutions v Nieves [1992] 1 VR 257, 264.  See further Razzi v Commissioner of Australian Federal Police (1990) 26 FCR 508.

[84] R v Green (Mark) [2008] 2 Cr App R 30, [15]; affirming R v Green [2007] EWCA Crim 1248, [42]-[44].  Cited with approval in R v Anderson [2010] EWCA Crim 615. See further R v May [2008] UKHL 28.

[85] Ibid.

Close

Editorial Notes

  • Published Case Name:

    State of Queensland v James Thomas O'Brien & Anor

  • Shortened Case Name:

    State of Queensland v O'Brien

  • MNC:

    [2015] QSC 136

  • Court:

    QSC

  • Judge(s):

    Carmody CJ

  • Date:

    18 May 2015

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2006] QSC 14522 Jun 2006Application for stay of confiscation proceedings pending determination of relevant criminal proceedings granted: Muir J.
Primary Judgment[2015] QSC 136 (2015) 251 A Crim R 25318 May 2015Application for a proceeds assessment order under the Criminal Proceeds Confiscation Act granted: Carmody CJ.
Appeal Determined (QCA)[2016] QCA 11804 May 2016Appeal allowed; orders in [2015] QSC 136 set aside in part and substituted: Margaret McMurdo P, Gotterson and Morrison JJA.

Appeal Status

Appeal Determined (QCA)

Cases Cited

Case NameFull CitationFrequency
Ahern v The Queen (1988) 165 CLR 87
3 citations
Jump To
Cite 1 - (1988) 165 CLR 87
Cite 2 - (1988) 165 CLR 87
Cite 3 - (1988) 165 CLR 87
Briginshaw v Briginshaw (1938) 60 C.L.R 336
2 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Brisbane Water County Council v Commissioner of Stamp Duties (1979) 1 NSWLR 320
2 citations
Jump To
Cite 1 - (1979) 1 NSWLR 320
Cite 2 - (1979) 1 NSWLR 320
Commissioner of the Australian Federal Police v Fysh [2013] NSWSC 81
1 citation
Jump To
Cite 1 - [2013] NSWSC 81
Director of Public Prosecutions v Nieves (1992) 1 VR 257
3 citations
Jump To
Cite 1 - (1992) 1 VR 257
Cite 2 - (1992) 1 VR 257
Cite 3 - (1992) 1 VR 257
Director of Public Prosecutions v Walsh (1989) 98 FLR 175
2 citations
Jump To
Cite 1 - (1989) 98 FLR 175
Cite 2 - (1989) 98 FLR 175
New South Wales Crime Commission v Kelly & Ors [2003] NSWCA 245
1 citation
Jump To
Cite 1 - [2003] NSWCA 245
New South Wales Crime Commission v Kelly (No 2) [2003] NSWSC 154
2 citations
Jump To
Cite 1 - [2003] NSWSC 154
Cite 2 - [2003] NSWSC 154
R v Ajibade [2006] EWCA Crim 368
2 citations
Jump To
Cite 1 - [2006] EWCA Crim 368
Cite 2 - [2006] EWCA Crim 368
R v Anderson [2010] EWCA Crim 615
2 citations
Jump To
Cite 1 - [2010] EWCA Crim 615
Cite 2 - [2010] EWCA Crim 615
R v Anderson [2010] EWCA Crim 617
1 citation
Jump To
Cite 1 - [2010] EWCA Crim 617
R v Dore (1997) 2 Cr App R(s) 152
2 citations
Jump To
Cite 1 - (1997) 2 Cr App R(s) 152
Cite 2 - (1997) 2 Cr App R(s) 152
R v Fagher (1989) 16 NSWLR 67
2 citations
Jump To
Cite 1 - (1989) 16 NSWLR 67
Cite 2 - (1989) 16 NSWLR 67
R v Falzon [2009] QCA 393
1 citation
Jump To
Cite 1 - [2009] QCA 393
R v Gibbons (2003) 2 Cr App R S 169
2 citations
Jump To
Cite 1 - (2003) 2 Cr App R S 169
Cite 2 - (2003) 2 Cr App R S 169
R v Green [2007] EWCA Crim 1248
2 citations
Jump To
Cite 1 - [2007] EWCA Crim 1248
Cite 2 - [2007] EWCA Crim 1248
R v Green (Mark) [2008] 2 Cr App R 30
2 citations
Jump To
Cite 1 - [2008] 2 Cr App R 30
Cite 2 - [2008] 2 Cr App R 30
R v Hall [2013] NSWCCA 47
2 citations
Jump To
Cite 1 - [2013] NSWCCA 47
Cite 2 - [2013] NSWCCA 47
R v Hussain [2006] EWCA Crim 621
2 citations
Jump To
Cite 1 - [2006] EWCA Crim 621
Cite 2 - [2006] EWCA Crim 621
R v May [2008] UKHL 28
3 citations
Jump To
Cite 1 - [2008] UKHL 28
Cite 2 - [2008] UKHL 28
Cite 3 - [2008] UKHL 28
R v McKechnie [2002] EWCA Crim 3161
2 citations
Jump To
Cite 1 - [2002] EWCA Crim 3161
Cite 2 - [2002] EWCA Crim 3161
R v O'Brien [2009] QCA 82
1 citation
Jump To
Cite 1 - [2009] QCA 82
R v Pepin (1996) 86 A Crim R 327
1 citation
Jump To
Cite 1 - (1996) 86 A Crim R 327
Razzi v Commissioner of Australian Federal Police (1990) 26 FCR 508
2 citations
Jump To
Cite 1 - (1990) 26 FCR 508
Cite 2 - (1990) 26 FCR 508
Refjeck v McElroy (1969) 112 CLR 517
3 citations
Jump To
Cite 1 - (1969) 112 CLR 517
Cite 2 - (1969) 112 CLR 517
Cite 3 - (1969) 112 CLR 517
Spencer v The Commonwealth (1907) 5 CLR 418
2 citations
Jump To
Cite 1 - (1907) 5 CLR 418
Cite 2 - (1907) 5 CLR 418
State of Queensland v Brooks [2005] QSC 390
2 citations
Jump To
Cite 1 - [2005] QSC 390
Cite 2 - [2005] QSC 390
State of Queensland v Brooks[2008] 1 Qd R 484; [2006] QCA 431
2 citations
Jump To
Cite 1 - [2006] QCA 431
Cite 2 - [2006] QCA 431
State of Queensland v Cannon [2011] QSC 75
6 citations
Jump To
Cite 1 - [2011] QSC 75
Cite 2 - [2011] QSC 75
Cite 3 - [2011] QSC 75
Cite 4 - [2011] QSC 75
Cite 5 - [2011] QSC 75
Cite 6 - [2011] QSC 75
State of Queensland v Cannon (No 2) [2011] QSC 245
4 citations
Jump To
Cite 1 - [2011] QSC 245
Cite 2 - [2011] QSC 245
Cite 3 - [2011] QSC 245
Cite 4 - [2011] QSC 245
State of Queensland v Hirst [2003] QSC 266
2 citations
Jump To
Cite 1 - [2003] QSC 266
Cite 2 - [2003] QSC 266
Thiess v TCN Channel Nine Pty Ltd (No 5) [1994] 1 Qd R 156
2 citations
Jump To
Cite 1 - [1994] 1 Qd R 156
Cite 2 - [1994] 1 Qd R 156
Tripodi v the Queen (1961) 104 CLR 1
2 citations
Jump To
Cite 1 - (1961) 104 CLR 1
Cite 2 - (1961) 104 CLR 1

Cases Citing

Case NameFull CitationFrequency
State of Queensland v Olssen [2023] QSC 223 2 citations
1

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