[2017] ACTSC 15

CONFISCATION OF CRIMINAL ASSETS - Property be restrained - whether property is tainted - restraining orders over property - automatic forfeiture of restrained property on conviction for serious offences - exclusion order - human rights - double jeopardy - not to be tried or punished more than once - meaning of public authority - application for stay or dismissal of proceedings - dismissed - costs order.

Confiscation Act 1997 (Vic) ss 3, 32

Confiscation of Criminal Assets Act 2003 (ACT) ss 3, 10, 12, 13, 15, 18, 22, 26, 31, 58, 59, 72, 73, 74, 75, 77

Crimes (Confiscation of Profits) Act 1988 (WA)

Criminal Property Confiscation Act 2000 (WA)

Crimes (Sentencing) Act 2005 (ACT) s 34(2)

Criminal Assets Confiscation Act 2005 (SA)

Criminal Property Forfeiture Act (NT) ss 44, 94, 136

Human Rights Act 2004 (ACT) ss 5, 24, 28, 30, 31, 40, 40A, 40B, 40C, 67

Northern Territory (Self-Government) Act 1978 (Cth) s 50(1)

Proceeds of Crime Act 2002 (Cth) ss 18, 94, 329

Adler v Director of Public Prosecutions (DPP) [2004] NSWCCA 352; 149 A Crim R 378

Attorney-General (NT) v Emmerson [2014] HCA 13; 307 ALR

Burton v Honan [1952] HCA 30; 86 CLR 169

Chalmers v The Queen [2011] VSCA 436; 37 VR 464

Cini v The Commissioner of the Australian Federal Police [2016] VSCA 227; 312 FLR 432

Director of Public Prosecutions (SA) v George [2008] SASC 330; 102 SASR 246

Director of Public Prosecutions (WA) v White [2010] HCA 20

Kable v Director of Public Prosecution (NSW) [1996] HCA 24; 189 CLR 51

Pearce v The Queen [1998] HCA 57; 194 CLR 610

R v Benjafield and Rezvi [2002] UKHL 2; 1 All ER 815

R v Carroll [2002] HCA 55; 213 CLR 635

R v Haddad (1989) 16 NSWLR 476

R v Mayor of Dover [1835] EngR 305; (1835) 1 CMLR 726; 149 ER 1273

R v Nikro [2015] ACTSC 231

Re Director of Public Prosecutions; Ex Parte Lawler [1994] HCA 10; 179 CLR 270

Rintel v The Queen (1991) 3 WAR 527

Taylor v Attorney-General (SA) (1991) 55 SASR 462

United States v Ursery [1996] USSC 69; (1996) 135 L Ed 2d 549; 518 US 267

Explanatory Statement, Confiscation of Criminal Assets Bill 2002 (ACT)

Australian Law Reform Commission, Confiscation that Counts: A Review of the Proceeds of Crime Act 1987, Report No 87 (1999)

1. On 4 September 2014, Refshauge J made an order pursuant to s 31 of the Confiscation of Criminal Assets Act 2003 (ACT) (the COCAA) that the following property be restrained:

(a) [redacted for legal reasons], Crace, ACT also known as [redacted for legal reasons] Crace ACT;

(c) a white Toyota Hilux with ACT registration [redacted for legal reasons]; and

(d) a silver Mercedes Benz with New South Wales (NSW) registration [redacted for legal reasons].

2. On 8 April 2015, Refshauge J amended this order such that it read that the property at [redacted for legal reasons] Crace ACT, otherwise known as [redacted for legal reasons] (the Crace property), was restrained. The amount of Australian currency was also amended to $180,282.00.

3. These civil proceedings were commenced on 28 August 2014. At that time the defendant, Abdul Karim Nikro, was facing a charge relating to trafficking cocaine to an undercover police officer in Cocoparra Crescent Crace. The defendant was the owner of the Crace property, subject to a mortgage to National Australia Bank Ltd.

4. On 7 April 2015, the defendant pleaded guilty to the cocaine trafficking charge. On 10 August 2015 he was sentenced by me for this charge, and other cannabis cultivation charges, to an aggregate term of imprisonment of four years and nine months, with a non-parole period of two years and six months. The offence of trafficking in cocaine is a serious offence as defined by s 13(2) of the COCAA, which I will refer to later in these reasons.

5. On 21 August 2015, the defendant made an application for the following orders:

(a) an order under s 77 of the COCAA excluding the defendant's interest in the Crace property from confiscation (an exclusion order);

(b) orders under s 40C of the Human Rights Act 2004 (ACT) (the HRA):

• (i) declaring that the bringing or maintaining of the proceedings under the COCAA by the ACT Director of Public Prosecutions (DPP) was unlawful conduct because it was incompatible with the defendant's rights under s 24 of the HRA;
• (ii) declaring that the ACT DPP acted unlawfully in that he made the decision to bring or maintain the proceedings under the COCAA without giving proper consideration to the defendant's rights under s 24 of the HRA;
• (iii) striking out the proceedings under the HRA; and/or
• (iv) permanently staying the COCAA proceedings.

(c) an order setting aside the restraint of the Crace property as an abuse of process; and

(d) an order that the ACT DPP pay the defendant's costs of the application and the COCAA proceedings.

6. The grounds of the application by the defendant were expressed as follows:

(a) with regard to the application for an exclusion order:

• (i) the requirements of the COCAA for the making of such an order are made out.

(b) with regard to the relief sought under s 40C of the HRA:

• (i) the making of the application under the COCAA by the ACT DPP to forfeit the defendant's property amounts to punishing the defendant twice for an offence of which he has finally been convicted and is incompatible with the defendant's rights under s 24 of the HRA; and
• (ii) the ACT DPP acted unlawfully in commencing and continuing the COCAA proceedings.

(c) with regard to the application to strike out or permanently stay the COCAA proceedings:

• (i) the decision of the ACT DPP to bring the COCAA proceedings, and its conduct of the proceedings, are unlawful under s 40B(1) of the HRA and an abuse of the Court's process.

The Confiscation of Criminal Assets Act

The purposes of this Act include the following:

(a) to encourage law-abiding behaviour by the community;

(b) to give effect to the principle of public policy that a person should not be enriched because of the commission of an offence, whether or not anyone has been convicted of the offence;

(c) to deprive a person of all material advantage derived from the commission of an offence, whatever the form into which property or benefits derived from the offence may have been changed;

(d) to deprive a person of property used, or intended by an offender to be used, in relation to the commission of an offence, whatever the form into which it may have been changed, and to prevent the person from using the property to commit other offences;

(e) to enable the effective tracing and seizure by law enforcement authorities of property used, or intended by an offender to be used, in relation to the commission of an offence and all material advantage derived from the offence;

(f) to provide for the enforcement in the ACT of orders, notices or decisions (however described) made under corresponding laws.

tainted property, in relation to an offence, means -

(a) property that was used, or was intended by an offender to be used, in relation to the commission of the offence; or

(b) property that was derived by anyone from the commission of the offence; or

(c) property that was derived by anyone from property mentioned in paragraph (a) or (b);

and includes an amount of money held in an account with a financial institution that represents the value of property mentioned in paragraph (a), (b) or (c) that has been directly or indirectly credited to the account.

Note 1 For the meaning of in relation to, see dict.

Note 2 For the meaning of derived, see s 12.

Note 3 Property includes an interest in property, see the Legislation Act, dict, pt 1.

(2) For subsection (1) (a), any property found in the possession of an offender at the time of, or immediately after, the commission of the offence is taken to be property that was used, or was intended by the offender to be used, in relation to the commission of the offence, unless the contrary is established by the offender.

Examples of tainted property for s 10

1. A car used as a getaway car for an armed robbery (see s (1) (a)).
2. Money and jewellery stolen during the commission of the armed robbery offence (see s (1) (b)).
3. Shares bought using money stolen during the commission of the armed robbery offence, or a mixture of that money and money unconnected with the offence (see s (1) (c) and s 12 (1) (Meaning of derived)).
4. A house in relation to which a mortgage is partly or completely discharged using money stolen during the commission of the armed robbery offence, or a mixture of that money and money unconnected with the offence (see s (1) (c) and s 12 (1)).
5. Money or other property received from the sale of the car, jewellery, shares or house mentioned in examples 1 to 4 (see s (1) (c) and s 12 (1)).
6. Other property purchased using the money mentioned in example 5 (see s (1) (c) and s 12 (1)).
7. Money stolen during the commission of the armed robbery offence is deposited in 1 or more accounts with a credit union and later transferred to a bank account that also contains money unconnected with the offence. The money in the bank account to the value of the money stolen during the commission of the offence is tainted property (see s (1)).
8. Money received from the sale of the car, jewellery, shares or house mentioned in examples 1 to 4 is deposited in a credit union account that also contains money unconnected with the armed robbery offence. The money in the account to the value of the money received from the sale of the car, jewellery, shares or house mentioned in examples 1 to 4 is tainted property (see s (1) and s 12 (1)).

Note An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

derived - property or a benefit is derived if it is derived or realised, whether completely or partly and whether directly or indirectly.

Note 1 For the meaning of benefits, see s 80.

Note 2 An example is part of the Act, is not exhaustive and may extend, but does not limit, the meaning of the provision in which it appears (see Legislation Act, s 126 and s 132).

(2) Property or a benefit is derived by a person if it is derived by someone else at the request or direction of the person.

Jane Citizen commits a relevant offence and then writes a book about the commission of the offence. Ms Citizen directs the book's publisher to pay the royalties for the book to her husband rather than to herself. The royalties would still be derived by Ms Citizen because they are derived by her husband at her direction. (This may be relevant, for example, for deciding whether they are artistic profits and thus benefits under div 7.1.)

(3) For subsection (2), a request or direction of a person (the first person) -

(a) includes an understanding between the first person and someone else or the first person making it known (directly or indirectly) to someone else that a particular outcome (or an outcome of a particular kind) is wanted or required by the first person; and

(b) may be taken to have been made even though, after all the evidence has been considered, the existence of the request or direction can be found only by inference from the actions of people or from other relevant circumstances.

1. Meaning of offence and of particular kinds of offences

offence means an offence against the law of the Territory, the Commonwealth, a State or another Territory.

ordinary offence means a relevant offence other than a serious offence.

(a) means an offence punishable by imprisonment for longer than 12 months; and

(b) includes an offence (however described) against the law of the Commonwealth, a State or another Territory that may be dealt with under a law of the Commonwealth, the State or the other Territory as an indictable offence (or in a way corresponding to the way in which an indictable offence against an ACT law may be dealt with), even if it may also be dealt with as a summary offence (however described) in some circumstances.

Note An offence against an ACT law is an indictable offence if it is punishable by imprisonment for longer than 2 years, or is declared by law to be an indictable offence (see Legislation Act, s 190 (1)).

(a) an offence punishable by imprisonment for 5 years or longer; or

(3) For this Act, an offence is related to another offence if the physical elements of the 2 offences are the same, or substantially the same, acts or omissions.

(1) For this Act, a person is taken to be convicted of an offence if -

(a) the person is convicted of the offence, whether summarily or on indictment; or

(b) the person is found guilty, but not convicted, of the offence; or

(c) the person absconds in relation to the offence.

Note 1 Found guilty, of an offence, includes -

• having an order made for the offence under the Crimes (Sentencing) Act 2005, s 17 (Non-conviction orders - general)
• having the offence taken into account under the Crimes (Sentencing) Act 2005, s 57 (Outstanding additional offences taken into account in sentencing)

(see Legislation Act, dict, pt 1).

Note 2 For the meaning of abscond, see s 16.

(2) The person is taken to be convicted of the offence -

(a) if subsection (1) (a) applies - on the day the person is convicted; or

(b) if subsection (1) (b) applies - on the day the person is found guilty; or

(i) on the day the person is committed for trial for the offence; or

(ii) on the day a court, in a confiscation proceeding, makes an order that the evidence is of sufficient weight to support a conviction for the offence.

(2) For this Act, a criminal proceeding is finalised if -

(a) the offender is cleared of the offence to which the proceeding relates; or

(b) the offender is convicted of an offence to which the proceeding relates, and the appeal period for an appeal against the conviction or finding of guilty (however described) ends without an appeal having been made against it; or

(c) if an appeal is made against the conviction or finding of guilty (however described) within the appeal period - the appeal is dismissed, withdrawn or struck out, or the appeal is otherwise finalised (within the meaning of this subsection) without a retrial having been ordered; or

(d) if a retrial has been ordered - the proceeding on the retrial is finalised (within the meaning of this subsection).

A restraining order may be made to preserve property so that the property will be available for 1 or more of the following purposes:

(a) for forfeiture under a conviction forfeiture order;

Note Pt 5 deals with forfeiture and pt 7 deals with penalty orders.

1. Restraining orders over other property - application

(1) The DPP may apply to a relevant court for a restraining order over any of the following:

(b) stated property of a person and all other property of the person (including property acquired after the making of the order);

(c) all property of a person (including property acquired after the making of the order);

(d) all property of a person (including property acquired after the making of the order) other than stated property.

Note 1 A reference to a person generally includes a reference to a corporation as well as an individual, see the Legislation Act, s 160. (See also the Legislation Act, dict, pt 1, def person.)

Note 2 Property includes an interest in property, see the Legislation Act, dict, pt 1.

1. Restraining orders over other property - making

(1) This section applies if an application is made under section 26 (Restraining orders over other property - application) to a relevant court for a restraining order in relation to an offence.

(2) The relevant court must make a restraining order over the property to which the application relates if, having regard to the police officer's affidavit supporting the application and any other evidence before the court -

(a) the court is satisfied that there are reasonable grounds for the officer's beliefs and suspicions stated in the affidavit; and

(b) if an indictment has not been presented for the offence, or the offence is a serious offence of which the offender has been cleared - the court is satisfied that, within 6 weeks after the date of the order or (if allowed by the court) a longer period of not longer than 3 months after that date -

(i) for an ordinary offence - it is intended to present an indictment against the offender for the offence (or a related relevant offence); or

(ii) for a serious offence -

(A) it is intended to present an indictment against the offender for the offence (or a related serious offence); or

(B) it is intended to apply for a civil forfeiture order or a penalty order in relation to the offence (or a related serious offence).

Note Indictment is defined in the Legislation Act, dict, pt 1 as including an information. (See also that Act, dict, pt 1, def present.)

(3) The restraining order may do either or both of the following:

(a) direct the public trustee and guardian to take control of the restrained property or stated restrained property;

(b) provide, under section 37 or section 38, for living and business expenses, or legal expenses, to be met out of the restrained property.

Note For the commencement of a restraining order, see the Legislation Act, s 73 (4).

(4) The relevant court may refuse to make the restraining order if the DPP does not give the relevant court any undertaking that the court considers appropriate about the payment of damages or costs in relation to the making or operation of the order.

(a) a restraining order may be made under this section in relation to an interest (or interests) in property; and

Note Property includes an interest in property, see the Legislation Act, dict, pt 1.

(b) a restraining order may relate to 2 or more offences committed (or alleged to have been committed) by an offender; and

Note Offender includes a corporation, see dict.

(c) a restraining order may relate to the property of 2 or more people; and

(d) for making a restraining order under this section, it is irrelevant whether there is any risk of the property being dealt with in a way that would defeat or hinder the purposes of this Act.

1. Automatic forfeiture of restrained property on conviction for serious offences

(a) a person is convicted of a serious offence; and

(b) a restraining order (other than an artistic profits restraining order) is made, whether before or after the conviction, over property in relation to the offence or a related serious offence committed by the person.

Note A reference to a person generally includes a reference to a corporation as well as an individual, see the Legislation Act, s 160. (See also the Legislation Act, dict, pt 1, def person.)

(2) The restrained property is forfeited to the Territory at the end of whichever of the following periods applies (the relevant 14-day period), except so far as the property is excluded from forfeiture under an exclusion order:

(a) if the restraining order was made before the conviction - 14 days after the day of conviction;

(b) if the restraining order was made at the same time as or after the conviction - 14 days after the day the restraining order comes into force.

Note 1 For the commencement of a restraining order, see the Legislation Act, s 73 (4).

Note 2 The effect of an exclusion order for property subject to forfeiture is that the property is excluded from forfeiture, see s 74 (c).

(3) However, if an application for an exclusion order in relation to the property, or a part of the property, has been made (but not decided) before the end of the relevant 14-day period, the property (or that part) is not forfeited until the proceeding in relation to the exclusion order is finalised.

1. Automatic forfeiture - court order declaring property automatically forfeited

(1) The DPP may apply to a relevant court for an order declaring that property has been automatically forfeited under this division.

(2) If the relevant court is satisfied that the property has been automatically forfeited under this division, the court must make the order and state in the order the property to which it applies.

(3) The registrar of the relevant court may exercise the functions of the court for this section.

Note For general provisions about a proceeding for an order under this section (which is a confiscation proceeding - see s 236), see pt 14.

exclusion order means an order under this part in relation to -

(a) restrained property (other than restrained property that has been forfeited) or property in relation to which an application for a restraining order has been made; or

(b) property in relation to which an application for a conviction forfeiture order has been made; or

Note 1 Property includes an interest in property, see the Legislation Act, dict, pt 1.

Note 2 This part does not apply to forfeited property (see s 75 (4)). A person with an interest in forfeited property immediately before its forfeiture may apply for the return of the property or compensation for its value under a return or compensation order under div 9.5.

Note 3 Property is forfeited 14 days after a forfeiture order or an automatic forfeiture applies to the property unless an application for an exclusion order is made, see pt 5 (Forfeiture of property).

For this Act, property is subject to forfeiture if -

(a) a forfeiture order made under this Act applies to the property and the property has not been forfeited; or

(b) an automatic forfeiture under this Act applies to the property and the property has not been forfeited.

An exclusion order for property has effect as follows:

(a) for property in relation to which an application for a restraining order or conviction forfeiture order has been made - the property is excluded from restraint or forfeiture (as appropriate);

(b) for restrained property (other than restrained property that has been forfeited) - the restraining order stops applying to the property;

(c) for property subject to forfeiture - the property is excluded from forfeiture.

Note This part does not apply to forfeited property (see s 75 (4)). A person with an interest in forfeited property immediately before its forfeiture may apply for the return of the property or compensation for its value under a return or compensation order under div 9.5.

(a) restrained property (other than restrained property that has been forfeited) or property in relation to which an application for a restraining order has been made; or

(b) property in relation to which an application for a conviction forfeiture order has been made; or

(2) A person claiming an interest in the property may apply to a relevant court for an exclusion order.

(a) if a restraining order or conviction forfeiture order has been applied for (but not made) in relation to the property - at the same time as, or after, the application is made for the order but before the order is made; or

(b) if the property is restrained or subject to forfeiture - at any time before the property is forfeited.

(4) To remove any doubt, an application for an exclusion order cannot be made in relation to property that has been forfeited.

1. Making of exclusion orders - serious offences

(1) This section applies to an application for an exclusion order for property if -

(a) a restraining order in relation to the property has been applied for in relation to serious offence; or

(b) the property has been restrained (but not forfeited) in relation to a serious offence; or

(c) a conviction forfeiture order for a serious offence has been applied for in relation to the property; or

(d) the property is subject to automatic forfeiture under division 5.2 (Automatic forfeiture - conviction for serious offences).

(2) If the application is made by an offender, the relevant court must not make an exclusion order for the property unless the court is satisfied that the property -

(b) is not tainted property in relation to any offence against a territory law, or a law of the Commonwealth, a State, another Territory or a foreign country; and

Note For the meaning of in relation to, see dict.

(c) is not required to be restrained to satisfy a penalty order; and

(d) does not have evidentiary value in any criminal proceeding.

(3) However, if the court is satisfied that the property was lawfully acquired, and is not tainted property as mentioned in subsection (2) (b), but considers that the property (or any part of the property) may be required to be restrained to satisfy a penalty order, the court must make an exclusion order declaring that the property (or part) -

(a) is not subject to automatic forfeiture or to forfeiture under a forfeiture order; but

(b) is to remain restrained for the purpose of satisfying a penalty order.

(4) If the application is made by a person other than an offender, the court must not make an exclusion order for the property unless it is satisfied that -

(a) the applicant has an interest in the property; and

Note For the meaning of interest, see the Legislation Act, dict, pt 1.

(b) the applicant was not a party to the relevant serious offence or any related offence; and

(c) the interest is not subject to the effective control of an offender; and

Note For the meaning of effective control, see s 14.

(d) the interest is not tainted property in relation to the relevant serious offence or any related offence; and

(e) if the interest was acquired completely or partly, or directly or indirectly, from the offender - the interest was acquired honestly and for sufficient consideration and the applicant took reasonable care to establish that the interest may be lawfully acquired by the applicant;

(f) the property does not have evidentiary value in any criminal proceeding.

(5) An exclusion order must state the property to which it applies.

7. In the present case an application for a restraining order was supported by an affidavit sworn by a police officer, Senior Constable Jennifer Hocking dated 25 August 2014, as required by s 29(1) of the COCAA. In that affidavit Senior Constable Hocking deposed:

(a) that the defendant had been charged in the Magistrates Court with offences of trafficking in cocaine;

(b) that the Crace property was owned by the defendant, subject to a registered Mortgage to National Australia Bank Ltd; and

(c) that she believed that the property was tainted property, in that it was used by the defendant to store the cocaine cutting agent and scales used in the offence of trafficking cocaine.

8. On 4 September 2014 Refshauge J, being satisfied that there were reasonable grounds for the beliefs expressed by Senior Constable Hocking in her affidavit, made a restraining order encompassing the property referred to in the application, including the Crace property. In this case, the effect of s 58 of the COCAA was to automatically forfeit the restrained property to the Territory at the expiration of 14 days after the defendant was convicted of the offence of trafficking in cocaine, unless an application for an exclusion order was made within that 14 day period. In the present case such an application was made by the defendant, meaning that pursuant to s 58(3) forfeiture is postponed until the application for an exclusion order is determined. The property is thus subject to forfeiture as defined in s 75(1)(b), and an exclusion order may be made excluding the property from forfeiture. This Court cannot, however, make an exclusion order with regard to the Crace property unless it is satisfied that the property was lawfully acquired by the defendant and that it is not tainted property in relation to any offence against a territory law: s 77(2).

The Human Rights Act

9. The following provisions of the Human Rights Act are relevant:

(b) the economic, social and cultural rights in part 3A.

1. Right not to be tried or punished more than once

No-one may be tried or punished again for an offence for which he or she has already been finally convicted or acquitted in accordance with law.

(1) Human rights may be subject only to reasonable limits set by laws that can be demonstrably justified in a free and democratic society.

(2) In deciding whether a limit is reasonable, all relevant factors must be considered, including the following:

(b) the importance of the purpose of the limitation;

(d) the relationship between the limitation and its purpose;

(e) any less restrictive means reasonably available to achieve the purpose the limitation seeks to achieve.

So far as it is possible to do so consistently with its purpose, a Territory law must be interpreted in a way that is compatible with human rights.

1. Interpretation of human rights
   • (1) International law, and the judgments of foreign and international courts and tribunals, relevant to a human right may be considered in interpreting the human right.

(1) Each of the following is a public authority:

(e) a police officer, when exercising a function under a Territory law;

(g) an entity whose functions are or include functions of a public nature, when it is exercising those functions for the Territory or a public authority (whether under contract or otherwise).

Note A reference to an entity includes a reference to a person exercising a function of the entity, whether under a delegation, subdelegation or otherwise (see Legislation Act, s 184A (1)).

(2) However, public authority does not include -

(a) the Legislative Assembly, except when acting in an administrative capacity; or

(b) a court, except when acting in an administrative capacity.

(1) In deciding whether a function of an entity is a function of a public nature, the following matters may be considered:

(a) whether the function is conferred on the entity under a territory law;

(b) whether the function is connected to or generally identified with functions of government;

(c) whether the function is of a regulatory nature;

(d) whether the entity is publicly funded to perform the function;

(e) whether the entity performing the function is a company (within the meaning of the Corporations Act) the majority of the shares in which are held by or for the Territory.

(2) Subsection (1) does not limit the matters that may be considered in deciding whether a function is of a public nature.

(3) Without limiting subsection (1) or (2), the following functions are taken to be of a public nature:

(a) the operation of detention places and correctional centres;

(b) the provision of any of the following services:

40B Public authorities must act consistently with human rights

(a) to act in a way that is incompatible with a human right; or

(b) in making a decision, to fail to give proper consideration to a relevant human right.

(2) Subsection (1) does not apply if the act is done or decision made under a law in force in the Territory and -

(a) the law expressly requires the act to be done or decision made in a particular way and that way is inconsistent with a human right; or

(b) the law cannot be interpreted in a way that is consistent with a human right.

Note A law in force in the Territory includes a Territory law and a Commonwealth law.

public authority includes an entity for whom a declaration is in force under section 40D.

40C Legal proceedings in relation to public authority actions

(a) claims that a public authority has acted in contravention of section 40B; and

(b) alleges that the person is or would be a victim of the contravention.

(a) start a proceeding in the Supreme Court against the public authority; or

(b) rely on the person's rights under this Act in other legal proceedings.

(3) A proceeding under subsection (2) (a) must be started not later than 1 year after the day (or last day) the act complained of happens, unless the court orders otherwise.

(4) The Supreme Court may, in a proceeding under subsection (2), grant the relief it considers appropriate except damages.

(a) a right a person has (otherwise than because of this Act) to seek relief in relation to an act or decision of a public authority; or

(b) a right a person has to damages (apart from this section).

public authority includes an entity for whom a declaration is in force under section 40D.

The defendant's conviction for cocaine trafficking

10. The relevant charge to which the defendant plead guilty alleged that between 11 April 2014 and 23 May 2014 he trafficked in a controlled drug other than cannabis, namely cocaine. In sentencing him for that offence, I summarised the facts of the offence as follows (R v Nikro [2015] ACTSC 231 at [14]- [17]):

Between 11 April 2014 and 23 May 2014, you were under police surveillance and you were observed selling cocaine to various people, including undercover police officers. On 11 April 2014, an undercover police officer communicated with you by text message and arranged to meet you on Cocoparra Crescent, Crace in the Australian Capital Territory. At about 12.49 pm that day AFP surveillance commenced observations of you, and at about 1.34 pm saw you meet with the undercover police officer as arranged. You supplied the undercover police officer with a bag of white powder, and the officer handed you an envelope containing $8,000.00 cash. The undercover police officer also agreed to meet with you at a later date and pay the outstanding sum of $16,000.00. Forensic analysis determined that the white power purchased from you on 11 April 2014 contained cocaine and weighed 82.3 grams. An exchange of telephone calls and text messages on 16 April 2014, 22 April 2014 and 23 April 2014 from you eventuated in you meeting the undercover police officer at about 1.48 pm on 23 April 2014. The undercover police officer handed you an envelope containing $16,000.00 for part payment of the cocaine provided to that officer by you on 11 April 2014.

As a result of further communications between you and the undercover police officer on 1 May 2014 and 2 May 2014, the undercover officer met you again at about 2.12 pm on 2 May 2014 at Cocoparra Crescent. The undercover officer then had a conversation with you about purchasing 2 ounces of cocaine. You advised the undercover officer to wait at that location and you drove away. At about 2.19 pm, you returned, approached the undercover officer's vehicle and handed him a clear plastic bag containing white power, indicating to him that it contained 6 ounces of cocaine. The undercover officer then handed you an envelope containing $15,400.00 as part payment before leaving the location. Later forensic analysis determined the substance purchased from you on 2 May 2014 weighed approximately 166.6 grams and confirmed that the substance contained cocaine. At about 2.45 pm on 16 May 2014, you met with the undercover officer on Cocoparra Crescent as arranged and you were given $7,700.00 cash in part payment for the cocaine you provided on 2 May 2014.

On Thursday 22 May 2014, police obtained a number of search warrants, including warrants to search your then residential premises in Bunda Street in the City, premises owned by you at [the Crace property], premises occupied by your girlfriend in Lyneham and your Toyota Hilux bearing ACT registration [redacted for legal reasons].

On 23 May 2014, police observed you attending numerous locations in the suburb of Crace, both on foot and driving your Toyota HiLux Utility bearing ACT registration [redacted for legal reasons]. At about 1.40 pm that day, police saw you enter another vehicle that was stationary on the street adjacent to [the Crace property] . A short time later, police saw an exchange occur between you and the male driver of the vehicle. You handed a McDonald's bag containing a clear freezer bag of a white coloured powder substance to the male and in return the male gave you a yellow plastic JB Hi-Fi bag containing $50,000.00 in Australian currency. At about 2.18 pm, police arrested you and located $50,000.00 in Australian currency on your person and 278.47 grams of white power, confirmed to contain cocaine, in the vehicle driven by the male. Police then executed the search warrants and located $21,140.00 in Australian currency, a blackberry mobile phone and approximately 6.66 grams of white rock powder suspected of being cocaine in your vehicle. In addition police searched the Bunda Street premises and located $20,642.00 in Australian currency. During the search of [the Crace property], Crace, police located approximately 240.2 grams of white powder confirmed to contain cocaine, a set of scales confirmed to contain residue of cocaine, and approximately 150 grams of crystalline substance suspected to have been used as a cutting agent. At your girlfriend's premises in Lyneham, police located $138,600.00 in Australian currency. Of that sum, police identified 230 marked notes provided to you by the undercover officer, to the value of $11,900.00.

11. The defendant summarised the issues in the present proceedings as follows:

(a) Are the COCAA proceedings and application for the restraining order made by the DPP in these proceedings unlawful as contrary to s 24 of the HRA?

(b) Should an exclusion order be made in his favour?

12. The defendant submitted that he was "finally convicted", for the purposes of s 24 of the HRA, of the cocaine trafficking offence on 10 August 2015 when I sentenced him to imprisonment for that offence. He correctly noted that in sentencing him, I was precluded by s 34(2) of the Crimes (Sentencing) Act 2005 (ACT) from taking into account, by way of reduction of the severity of sentence, any automatic forfeiture of property, any forfeiture orders or any penalty order under the COCAA. He submitted that any forfeiture of property arising out of the COCAA proceedings would amount to further punishment for the offence of cocaine trafficking, and would be contrary to his right under s 24 of the HRA not to be "punished again" for the offence.

13. The defendant submitted that laws requiring or permitting forfeiture of property have been held not to amount to acquisition of property other than on just terms because those laws were held to be penalties or sanctions for the offence in question, citing Re Director of Public Prosecutions; Ex Parte Lawler [1994] HCA 10; 179 CLR 270 and R v Mayor of Dover [1835] EngR 305; (1835) 1 CMLR 726; 149 ER 1273. In the present case, the defendant submitted forfeiture, whether by way of automatic forfeiture or upon the making of a forfeiture order, is conditional upon the commission of the offence "and hence would amount to a further penalty... for the offences for which he has been punished." To impose such a penalty after he had been "finally convicted", the defendant argued, would be to punish him again for the offence.

14. The second leg of the defendant's argument is built upon the first. If the forfeiture of his property was inconsistent with his rights under s 24 of the HRA, the defendant argued that the decision of the DPP to commence and maintain the forfeiture proceedings was unlawful pursuant to s 40B of the HRA, either because the DPP was acting incompatibly with his human rights or because in making the decision to commence or maintain the proceedings the DPP failed to give proper consideration to his human rights. The defendant submitted that the unlawful commencement or maintenance of proceedings in this Court constituted an abuse of process. The Court, he submitted, has power under s 40C of the HRA to grant relief so as to prevent the DPP from continuing to act incompatibly with his human rights.

15. As an alternative to his submissions based on the HRA, the defendant submitted that he was entitled to an exclusion order under the COCAA as the conditions for making such an order as set out in s 77(2) of the COCAA have been satisfied. Specifically, the defendant submitted that the evidence established that:

(a) the property was lawfully obtained by him;

(b) the property is not tainted property;

(c) the property is not required to be restrained to satisfy a penalty order; and

(d) the property does not have evidentiary value in any criminal proceeding.

16. With regard to the defendant's attack on the exercise of the DPP's discretion to initiate and maintain the forfeiture proceedings, the DPP submitted that a similar argument was rejected by the High Court in Attorney-General (NT) v Emmerson [2014] HCA 13; 307 ALR 174 (Attorney-General (NT) v Emmerson). It submitted that its statutory mandate to institute civil forfeiture proceedings involved a discretionary decision, and is subject to the well recognised limitations on review of such decisions. It submitted that its discretion in that regards is "all but absolute".

17. The DPP further submitted that even if the decision of the DPP to initiate and continue the forfeiture proceedings was reviewable, the defendant's case with regard to review depended upon him establishing that any forfeiture order made in the forfeiture proceedings would breach his human rights, including the right found in s 24 of the HRA.

18. The DPP submitted that the present forfeiture proceedings do not constitute double punishment, and do not engage the rules against double jeopardy. It submitted that forfeiture of the property was not punitive. Even if it were determined that forfeiture of the property could be characterised as punitive, the DPP submitted that, nevertheless, the rule against double jeopardy is neither engaged nor contravened. In circumstances where the forfeiture proceedings were commenced before the defendant pleaded guilty to the trafficking offence, and where forfeiture under s 58 of the COCAA was dependent upon the conviction of the defendant for that offence, the DPP submitted that even if forfeiture was a penalty, it was not a separate or additional penalty, but an "automatic consequence of conviction".

19. The DPP cited Adler v Director of Public Prosecutions (DPP) [2004] NSWCCA 352; 149 A Crim R 378 (Adler v DPP) as supporting its proposition that the present forfeiture proceedings did not constitute a breach of the rule regarding double jeopardy.

20. The DPP also submitted that the weight of international human rights jurisprudence runs contrary to the defendant's submissions, citing R v Benjafield and Rezvi [2002] UKHL 2; 1 All ER 815 (R v Benjafield and Rezvi) and United States v Ursery [1996] USSC 69; (1996) 135 L Ed 2d 549; 518 US 267 (United States v Ursery).

21. Finally, the DPP submitted that the property is "tainted property" for the purposes of the COCAA as it was used in relation to the commission of the offence and was derived and maintained from the proceeds of crime.

22. The defendant submitted that the decision in Attorney-General (NT) v Emmerson is distinguishable as the challenge in that case was based on constitutional and not human rights grounds. The defendant further submitted that the case of Adler v DPP is distinguishable as it concerns the principle of double jeopardy, and not, as here, double punishment. He also submitted that the cases of R v Benjafield and Rezvi and United States v Ursery are distinguishable based on the different statutory and constitutional regimes which applied.

23. I will interpolate at this point to observe that while I gained little assistance from the decision in Adler v DPP due to the difference in statutory provisions considered in that case, it is clear from the decision in R v Carroll [2002] HCA 55; 213 CLR 635, cited in Adler v DPP, that the present defendant was wrong in suggesting that the principles concerning double jeopardy did not apply in cases alleging double punishment: see also Pearce v The Queen [1998] HCA 57; 194 CLR 610 at 614.

24. The provisions of s 36A of the Misuse of Drugs Act (NT) (the MDA) permitted the Supreme Court of the Northern Territory to declare a person to be a "drug trafficker" where the person was, within a 10 year period, convicted 3 or more times of certain drug related offences. The provisions of s 94 of the Criminal Property Forfeiture Act (NT) (the Forfeiture Act) provided for the forfeiture of property owned by such a person without the need for further curial orders. The Director of Public Prosecutions for the Northern Territory (the NTDPP) applied to the Supreme Court for a declaration that Emmerson was a drug trafficker.

25. Proceedings on applications under the Forfeiture Act were taken to be civil proceedings for all purposes: s 136(1) of the Forfeiture Act. Section 36A of the MDA relevantly provided:

(1) The Director of Public Prosecutions may apply to the Supreme Court for a declaration that a person is a drug trafficker.

(2) An application under subsection (1) may be made at the time of a hearing for an offence or at any other time.

(3) On hearing an application by the Director of Public Prosecutions under subsection (1), the court must declare a person to be a drug trafficker if:

• (a) the person has been found guilty by the court of an offence referred to in subsection (6) that was committed after the commencement of this section; and
• (b) subject to subsection (5), in the 10 years prior to the day on which the offence was committed (or the first day on which the offence was committed, as the case requires), the person has been found guilty:
  • (i) on 2 or more occasions of an offence corresponding to an offence referred to in subsection (6); or
  • (ii) on one occasion of 2 (or more) separate charges relating to separate offences of which 2 or more correspond to an offence or offences referred to in subsection (6).

Forfeiture of declared drug trafficker's property

(1) If a person is declared to be a drug trafficker under section 36A of the Misuse of Drugs Act :

(a) all property subject to a restraining order that is owned or effectively controlled by the person; and

(b) all property that was given away by the person, whether before or after the commencement of this Act;

27. Section 44(1) of the Forfeiture Act provided that the Supreme Court may, on application by the NTDPP, make a restraining order in relation to the property of a person named in the application if the person had been charged, or it was intended that within 21 days after the making of the application that the person would be charged, with an offence that, upon conviction, could lead to the person being declared a drug trafficker under s 36A of the MDA.

28. At first instance Southwood J made the declaration. On appeal, the Court of Appeal of the Northern Territory (Riley CJ, Kelly and Bar JJ) allowed the appeal, set aside the declaration and dismissed the NTDPP's application for a declaration. In setting aside the declaration made by Southwood J:

(a) the majority in the Court of Appeal (Riley CJ dissenting) concluded that the statutory scheme effected by s 36A of the MDA and s 94 of the Forfeiture Act was invalid because it required the Supreme Court to act in a manner incompatible with the proper discharge of the Court's function as a repository or federal jurisdiction, and with its institutional integrity: see Kable v Director of Public Prosecution (NSW) [1996] HCA 24; 189 CLR 51 (Kable v Director of Public Prosecution); and

(b) all members of the Court of appeal rejected Emmerson's submission that the statutory scheme was invalid by virtue of s 50(1) of the Northern Territory (Self-Government) Act 1978 (Cth) as an acquisition of property otherwise than on just terms.

29. The NTDPP appealed this decision to the High Court.

30. The majority of the High Court (French CJ, Hayne, Crennan, Kiefel, Bell and Keane JJ) referred to the objectives of the forfeiture scheme established by the Forfeiture Act at 183-184:

Section 3 of the Forfeiture Act provides:

The objective of this Act is to target the proceeds of crime in general and drug-related crime in particular in order to prevent the unjust enrichment of persons involved in criminal activities.

In pursuit of the objective in s 3, s 10(2) provides that the Forfeiture Act is to apply to forfeit to the Territory property owned or effectively controlled by persons "involved or taken to be involved in criminal activities" so as "to compensate the Territory community for the costs of deterring, detecting and dealing with" those activities. Relevantly for present purposes, a person is "taken to be involved in criminal activities" if "the person is declared under s 36A of the Misuse of Drugs Act to be a drug trafficker".

Although there is no challenge in these proceedings to the statutory provisions concerning "crime-used" or "crime-derived" property, it can be noted that s 10(3) states that such property is also forfeit to the Territory so as "to deter criminal activity and prevent the unjust enrichment of persons involved in criminal activities."

That the stated objectives are penal, and additional to punishment imposed in criminal proceedings, was explained prior to the enactment of the statutory scheme. Section 36A was inserted into the Misuse of Drugs Act by the Criminal Property Forfeiture (Consequential Amendments) Act 2002 (NT). In the second reading speech for the Bill which became the amending Act, the Attorney-General for the Northern Territory described the proposed legislation as "a mechanism outside the criminal jurisdiction for forfeiture of property". By reference to an Australian Law Reform Commission report, he stated that the objectives of laws for the forfeiture of proceeds of crime are threefold:

(1) to deter those who may be contemplating criminal activity by reducing the possibility of gaining a profit from that activity;

(2) to prevent crime by diminishing the capacity of offenders to finance future criminal activities; and

(3) to remedy the unjust enrichment of criminals who profit at society's expense.

(Footnotes omitted)

31. The majority held that the Court of Appeal was in error in holding that the impugned provisions of the Forfeiture Act were incompatible with the constitutional requirements imposed on a Ch III Court. Of more importance to the present proceeding are the following statements made in the context of the argument concerning the role of the NTDPP in the civil proceedings under the Forfeiture Act at 191 and 192-193:

The DPP is a statutory officer. In representing the state in the prosecution of an accused person, the DPP is subject to what are sometimes called "traditional considerations" (or obligations) of fairness. Those obligations, and the standards of fairness which they entail, spring not so much from statute as from rules of practice; established by judges over the years, they are calculated to enhance the administration of justice by ensuring that an accused has a fair trial. Certain discretions exercised by a prosecutor in the initiation and conduct of criminal proceedings are not readily subject to review. Nonetheless, the fact that criminal proceedings in Australia are adversarial in character, and accusatorial by nature, obliges the maintenance of those standards of fairness. That maintenance has long rested on the powers of a trial judge, and appellate courts, in discharging their responsibilities to ensure that an accused has a fair trial and to prevent an abuse of the court's process in criminal proceedings.

The appellants and several interveners, particularly the Attorney-General for the State of South Australia, sought to draw an analogy between the discretions a prosecutor has in criminal proceedings and the role of the DPP in the statutory scheme. The DPP commits to the Supreme Court for its decision, in civil forfeiture proceedings, the question of whether a person meets certain statutory criteria, the consequences of which are penal. It could not be doubted that the Supreme Court has an inherent power to prevent an abuse of process in respect of any decision of the DPP under that statutory scheme. The possibility that a member of the Executive may exercise an administrative discretion unfairly, or engage in some malpractice, does not, without more, enliven the constitutional implications recognised in Kable so as to narrow the scope of a grant of legislative power.

As already explained, the assertion that the statutory scheme conferred a discretion on the DPP which was constitutionally impermissible touched on a number of long-standing constitutional principles and common law values, particularly in respect of double punishment and double jeopardy, but never distinctly articulated why the discretion was impermissible.

Whilst the first respondent's submissions in respect of this branch of the argument were said to be distinct from his arguments based on Kable, the submissions depended equally on a misconception of the DPP's role in the statutory scheme.

First, as explained, the DPP's decision to make an application under the statutory scheme is a familiar procedural necessity in the adversarial system and is subject to the Supreme Court's inherent jurisdiction to take whatever steps are necessary to avoid any abuse of process. Further, senior counsel for the first respondent rightly accepted (as he was bound to do) that penal ends may be pursued in civil proceedings which result in additional punishment.

Second, this branch of the argument also critically turned on the proposition that the DPP's exercise of discretion to make an application under the statutory scheme (chiefly under s 36A, but also under s 44) was the operative decision determining which persons answering the statutory criteria would forfeit their property. For the reasons given, which do not need repeating, that proposition not only misconceives the DPP's role, it leaves out of account the statutory scheme's requirements that not one but two curial orders, following ordinary judicial processes, are the cumulative conditions stated as necessary for the operation of s 94(1) of the Forfeiture Act.

(Footnotes omitted)

32. The decision in Attorney-General v Emmerson is not directly determinative of the HRA aspects of the present applications. The argument based on Kable v Director of Public Prosecutions pursued in Attorney-General v Emmerson is not reflected in any submission made by the defendant in these proceedings. Similarly, the submission that forfeiture under the Forfeiture Act constituted acquisition of property other than on just terms was not advanced by the present defendant. It is also important to note that it was accepted that forfeiture under the Forfeiture Act was penal, that is, one of the purposes of forfeiture was to punish the offender for their offences.

33. There are, nevertheless, important statements of principle to be derived from Attorney-General v Emmerson relevant to the present proceedings, particularly concerning the role of the DPP. The decision of the DPP to commence and maintain proceedings is, to adopt the words of the majority in Attorney-General v Emmerson, 'a familiar procedural necessity in the adversarial system'. Just as the majority in Attorney-General v Emmerson held it erroneous to determine that the NTDPP's exercise of its discretion to make an application under the Forfeiture Act was the 'operative decision determining which persons answering the statutory criteria would forfeit their property', so the exercise of the DPP's discretion under the COCAA to commence and maintain confiscation proceedings cannot be said to be the operative cause of confiscation of property. Before, for example, an automatic forfeiture order takes effect, there must be a curial determination that a restraining order over property should be made, and a separate curial order that the respondent to the application under the COCAA is guilty of a relevant crime. There is also an opportunity after any relevant conviction for the respondent to seek an exclusion order. It follows that the decision of the DPP to commence and maintain proceedings under the COCAA cannot be said to be the operative cause of any confiscation order, and as such, cannot be the cause of any breach of the defendant's human rights under s 24 of the HRA, even assuming that the making of any such order constituted a breach of those rights.

34. There is, in addition, no evidence that the DPP failed to give proper consideration to the rights of the defendant under s 24 of the HRA before commencing these proceedings. The submission of the defendant in this regard appears to be based on two assumptions: first, that any confiscation order will constitute a breach of the defendant's rights under s 24 of the HRA; and, secondly, and contingent upon the first assumption being made, that any proper exercise of the DPP's discretion to commence or maintain these proceedings must have recognised that any confiscation order made would breach the defendant's rights under s 24. In my opinion neither of these assumptions is made out. It is convenient to now consider whether the automatic forfeiture orders made by operation of the COCAA have the effect of breaching the defendant's rights under s 24.

35. The Explanatory Statement to the Confiscation of Criminal Assets Bill 2002 (the Bill), which subsequently became the COCAA, refers to the genesis of the Bill being found in the Australian Law Reform Commission 1999 report "Confiscation that Counts". With regard to clause 3 of the Bill, articulating the purposes of the Bill, which later became s 3 of the COCAA, the Statement says:

Clause 3 articulates the purposes of the Bill, and is included to provide a clear statement of the Legislative Assembly's intentions in enacting the proposed legislation.

In summary, these purposes include:

• encouraging law abiding behaviour
• giving effect to the principle that people should not be enriched by crime
• depriving people of all material advantage gained from crime
• depriving people of property used to commit crime
• enabling the effective tracing and seizure of criminal assets
• enabling the Territory to enforce interstate confiscation measures.

The ALRC Report highlighted the fact that the existing ACT POCA [Proceeds of Crime Act 1991 (ACT)] has failed to achieve its purposes. The ALRC stressed the importance of ensuring that decision makers have regard to the purposes of the legislation when interpreting and applying its provisions. Accordingly, in addition to making an explicit statement of those purposes in clause 3, the Bill includes several provisions that expressly require decision makers to have regard to the purposes of the legislation when exercising their powers and functions.

The most significant purpose in clause 3, in terms of the underlying philosophy of the Bill, is giving effect to the principle that a person should not [be] enriched by crime. In formulating its recommendations for reform, the ALRC asked whether this principle "is a concept limited to recovery of the profits of criminal conduct in respect of which a conviction has been recorded or is capable of wider application to unjust enrichment as a result of unlawful (as opposed to strictly criminal) conduct in the broad." The ALRC went on to observe, at paragraphs 2.63 to 2.66 of the Report:

"The answer to this question is of pivotal importance in addressing the key issue whether the current conviction based scheme might justifiably be complemented by a non-conviction based civil scheme similar in concept to the non-conviction based schemes in the Criminal Asset Recovery Act (NSW) and in the Confiscation Act (Vic).

If the conclusion is reached that the justification for confiscation of profits springs from conviction for a criminal offence, the establishment of a complementary civil regime under which confiscation would follow from a civil finding of unlawful conduct on the balance of probabilities could be seen to give rise to civil liberties concerns. Specifically, the question might be raised whether what was seen as in essence a remedy ancillary to a finding of proven criminality beyond a reasonable doubt could now be brought to bear on a defendant without such a finding, i.e. by the discharge of the lower civil burden of proof.

If, on the other hand, the better analysis is that the denial of profits is to be regarded as rooted in a broader concept that no person should be entitled to be unjustly enriched from any unlawful conduct, criminal or otherwise, conviction of a criminal offence could properly be seen as but one circumstance justifying forfeiture rather than as the single precipitating circumstance for recovery of unjust enrichment.

It is the Commission's considered opinion that the latter analysis is to be preferred. Its assessment is based on public policy considerations, taking into account a clear pattern of developing judicial and legislative recognition of a general principle that the law should not countenance the retention by any person, whether at the expense of another individual or society at large, of the profits of unlawful conduct."

It should be noted that punishment of offenders is not included among the purposes of the proposed Act. In paragraph 2.74 of its report, the ALRC drew the following distinction between confiscation and punishment:

"The concept that a person should not be entitled to be unjustly enriched by reason of unlawful conduct is distinguishable from the notion that a person should be punished for criminal wrongdoing. That is to say that, while a particular course of conduct might at the one time constitute both a criminal offence and grounds for the recovery of unjust enrichment, the entitlement of the state to impose a punishment for the criminal offence, and the nature of that punishment, are independent in principle from the right of the state to recover the unjust enrichment and vice-versa."

This distinction is given expression in the Bill by the inclusion of proposed section 236, which confirms that confiscation proceedings under the proposed Act are to apply the rules and principles of evidence and procedure that govern other civil proceedings. It is also reflected in item 1.10 of Schedule 1 of the Bill. This item amends section 344 of the Crimes Act 1900 to make it clear that a court, in sentencing an offender, must not reduce the severity of the sentence that would otherwise be imposed because of any forfeiture order or penalty order under the proposed Confiscation of Criminal Assets Act 2002.

36. The COCAA differs from the Northern Territory's Forfeiture Act in that the legislative intention as expressed in the Explanatory Statement is that forfeiture of property under the COCAA is not intended to be punitive, but is directed towards ensuring that offenders are not enriched by their criminal behaviour. No doubt, to an offender a forfeiture order under the COCAA will often feel like punishment, because it involves depriving an offender of property in the same way as, in effect, a fine would operate. The similarity in effect between a forfeiture order and a fine or other penalty involving forfeiture of property should not obscure the real differences between the two forms of order. While the Explanatory Statement focuses on the purpose of avoiding unjust enrichment of offenders, this is not the only purpose set out in s 3. An entirely different purpose is found in s 3(d) being to deprive an offender of property used in relation to the commission of an offence and to prevent the offender from using the property to commit other offences. This purpose is primarily aimed at the prevention of crime.

37. Where the intended object of a forfeiture order is to deprive an offender of the profits of crime, one may expect to see a clear connection between the property to be forfeited and the unjust enrichment of the offender; that is, that which is to be forfeited should have been derived from criminal offending. With respect to "tainted property" as defined in s 10(1)(b) and (c) of the COCAA, one sees that connection; the property is derived either directly or indirectly from the commission of the offence. That connection is not obvious with regard to tainted property as described in s 10(1)(a), being property that was used, or intended to be used, in relation to the commission of the offence. In some cases, the connection between the property used in relation to the commission of an offence and property derived from the commission of the offence may be such that it may be said that forfeiture of the property used serves the legislative purpose of depriving an offender of unjust enrichment arising from the crime. This will not, however, always (or perhaps ordinarily) be the case.

38. It is apparent from the purposes of the COCAA, as found in s 3, that in addition to depriving offenders of any material advantage derived from the commission of an offence, one of the objects of the COCAA is to deprive offenders of property used in committing the offence, thus preventing them from using the property to commit further offences: s 3(d). The object of the forfeiture of such property is therefore not to punish the offender for the offence, but to prevent further offending by depriving the offender of the means of committing further offences, in circumstances where the property subject to forfeiture has already been used in the commission of an offence. Forfeiture of property as a means of prevention of crime, where the property was not derived from criminal offending, will undoubtedly feel punitive to an offender, but that circumstance does not make punishment the purpose of the forfeiture. Whether a particular legislative approach to forfeiture of property used in committing an offence is fair is a matter for the legislature, and not for the judiciary: Burton v Honan [1952] HCA 30; (1952) 86 CLR 169 per Dixon CJ at [18].

39. The DPP drew my attention to the decision in Chalmers v The Queen [2011] VSCA 436; 37 VR 464 (Chalmers v The Queen), a decision of the Victorian Court of Appeal (Maxwell P, Redlich JA and Kyrou AJA). The offender in Chalmers v The Queen was convicted of murdering his de facto partner. The Crown applied under s 32 of the Confiscation Act 1997 (Vic) (the Confiscation Act) for an order that certain items of property belonging to the offender be forfeited as "tainted property" on the basis that it was property used in, or in connection with the offence: see s 3(1) Confiscation Act. One item of property which the trial judge ordered to be forfeited was the offender's interest in the apartment in Melbourne in which he murdered the victim. On appeal, the offender argued that the apartment was merely the location of the offence, and could not be said to have been "used in, or in connection with" the commission of the offence.

40. In making a restraining order over the Crace property, Refshauge J was satisfied that there were reasonable grounds to believe that the Crace property was tainted property, as property used in relation to the commission of the offence of trafficking in cocaine. The Court of Appeal in Chalmers v The Queen considered a number of authorities which addressed the meaning of the phrase "used in connection with the commission of an offence" in similar statutory contexts, including R v Haddad (1989) 16 NSWLR 476 (concerning the Crimes (Confiscation of Profits) Act 1985 (NSW)); Taylor v Attorney-General (SA) (1991) 55 SASR 462 (concerning the Crimes (Confiscation of Profits) Act 1986 (SA)), Director of Public Prosecutions (SA) v George [2008] SASC 330; 102 SASR 246 (concerning the Criminal Assets Confiscation Act 2005 (SA)), Rintel v The Queen (1991) 3 WAR 527 (concerning the Crimes (Confiscation of Profits) Act 1988 (WA)), Director of Public Prosecutions (WA) v White [2010] HCA 20 (concerning the Criminal Property Confiscation Act 2000 (WA)). From these decisions the Court of Appeal derived the following propositions, at 480:

1. The word "used" should be given its ordinary meaning of "employed, or made use of, for a particular end or purpose".

2. The statutory phrase is of wide scope. The inclusion of the words "in connection with" was plainly intended to extend the scope of the definition of "tainted property" beyond circumstances where the property could be said to have been "used in the commission of" the offence.

3. Whether there is a connection between the use of the property and the commission of the crime is a question of fact and degree. It is not necessary for it to be established that there was a "substantial" connection, or that the crime could not have been committed without using the property.

4. The nature, extent and significance of the use of the property in connection with the commission of the crime will be matters which go to the Court's discretion whether or not to order forfeiture of the property.

(Citations omitted)

41. The last of these four propositions has no application in the present case, as this Court has no discretion to exercise where tainted property is automatically forfeited under the COCAA. I would respectfully adopt the remaining three propositions, albeit that in defining the term tainted property the COCAA uses the phrase "used ... in relation to" the offence, rather than the term "used in connection with" the offence, which is found in the Confiscation Act 1997 (Vic). There is no significant difference between these terms; each posits a connection between the property and the crime, such that it can be said as a question of fact that the property was used, in the sense of employed or made use of, for a particular end or purpose, being the commission of the crime.

Express statutory provision apart, the mere fact that an act is done in or on a particular property will ordinarily not suffice to bring that property within the definition. That is because, as a matter of ordinary language, this could not be characterised as a 'use' of the property. In their joint judgment in White, French CJ and Crennan and Bell JJ said:

On the face of it, the mere doing of an act in or on a property in connection with the commission of a confiscation offence, does not necessarily fit comfortably within the concept of use applied to property. The relevant ordinary meaning of the verb 'use' is to [m]ake use of [a thing], esp. for a particular end or purpose; utilise, turn to account.

It is only when the property, or some feature or attribute of it, has been turned to advantage by the offender, or enlisted to the offender's purpose, that it will be possible to say that the property has been 'used'. In King, for example, the offending took place on board a boat but it was held that the boat was no more than the location of the offending. The boat had not been 'employed' for any purpose related to the offending. In Garner, by contrast, the court held that the offender had used a houseboat to provide the intended victims with 'a pleasurable environment and exciting activities', such that the boat became 'an efficient tool of seduction'.

(Citations omitted)

43. In Cini v The Commissioner of the Australian Federal Police [2016] VSCA 227; 312 FLR 432, the offender was convicted of importing a commercial quantity of a border controlled drug, being 161.5 kilograms of methamphetamine hidden in the tyres of a tractor-truck the offender imported into Australia from China. A restraining order was made under s 18 of the Proceeds of Crime Act 2002 (Cth) (the POCA) before the offender was convicted, restraining property including a home and land at Ayr Street Altona Meadows (the Ayr Street property). By virtue of the offender's conviction, the restrained property, including the Ayr Street property, was liable to automatic forfeiture, unless excluded from forfeiture under s 94 of the POCA. In order to exclude property from automatic forfeiture, a court must be satisfied, inter alia, that the applicant's interest in the property is neither proceeds of unlawful activity nor an instrument of unlawful activity: s 94(1) (e) of the POCA. Proceeds or an instrument of an unlawful activity means proceeds or an instrument of the offence constituted by the act or omission that constitutes the unlawful activity: s 329(4) of the POCA. Property is an instrument of an offence if the property is used in, or in connection with, the commission of an offence or is intended to be so used: s 329(2). It will be observed that the automatic forfeiture and exclusion provisions of the POCA have much the same effect as the equivalent provisions of the COCAA.

44. The methamphetamine hidden in the tractor tyres was discovered by the authorities, and a different substance was substituted. Nothing turns upon this substitution. After importation, the tractor was collected and taken to a factory effectively owned by the offender. There, the offender and his son removed the packages of what they believed to be methamphetamine from the tractor tyres and loaded them into another vehicle, which was driven to the Ayr Street property. At first instance, an exclusion order was refused on the ground that the Ayr Street property had been used in or in connection with a number offences, including an attempted trafficking offence.

45. On appeal, the offender submitted that the primary judge's obligation had been to determine whether the offender's interest in the Ayr Street property was an instrument of unlawful activity. It was conceded by the offender that the substituted drugs were taken to the Ayr Street property for the purposes of guarding and concealing them. The offender nevertheless contended that his interest in the property had not been used in, or in connection with, the commission of an offence. He submitted that his right to possession of the Ayr Street property was not "sufficiently connected" with the alleged offence, and that a "substantial connection" was required. He submitted that the Ayr Street property was "merely incidental to the offending".

46. The Court of Appeal (Priest, Santamaria and Kaye JJA) rejected these submissions, saying at 442:

It is beyond argument, in our view, that the applicant's interest in property was used in, or in connection with, unlawful activity. He used his rights to possess Ayr Street, and to control access to the property, so as to there store what he thought was a large quantity of a border controlled drug. The applicant argued, however, that his right to possess his property was not sufficiently connected with an offence, since a 'substantial connection' (or, at least, a 'sufficiently significant connection') is required where the consequence is forfeiture of valuable real estate. Only a very small area of the physical property was used to store the substituted drugs, for only a very small period of the overall length of time that the applicant had possessed the property.

In the present case, the judge was correct to conclude that the applicant had not satisfied the burden of showing that Ayr Street (or his interest in it) had not been used in, or in connection with, unlawful activity. On the available evidence, the very reason for relocating the "drugs" to the applicant's residential property at Ayr Street was to safeguard them against possible theft. Rhys Cini, the applicant's son and co-offender, persuaded his father that what they both believed to be a substantial quantity of methamphetamine should be moved from the factory to Ayr Street to avoid the threat of 'robbery'. Moreover, it was thought that the move would also help thwart detection by law enforcement authorities.

Further, and in that respect, there were features of Ayr Street which made it a preferred location for the storage of illicit drugs. The judge identified those features as including secure fencing (a locked, Colorbond gate which was closed other than when the Jeep entered or exited); an alarm and CCTV security; and a garage - secured by a roller door - into which the plastic storage containers of 'drugs" were unloaded. Thus, by putting the "drugs" at Ayr Street, the applicant was able to store them at a secure location, and control access to them. Thus, as was said in Chalmers, "the property, or some feature or attribute of it, had been turned to advantage by [the applicant], or enlisted to the [applicant's] purpose".

48. The Court of Appeal also rejected the argument that for property to be an instrument of unlawful activity there must be a substantial connection between the use of the property and the relevant unlawful activity. After observing that the submission required placing a gloss on the statutory language, the Court said at 445-446:

Whether in a given case there is a connection between the use of the property and the commission of an offence will be a question of fact and degree. Based on the authorities which deal with cognate legislation, however, it is clear that it is not necessary that there be a 'substantial' connection, or that it be established that the crime could not have been committed without using the property. The applicant suggested that a number of the authorities might be distinguished on the basis that the particular legislation under consideration gave a court a discretion to give relief against forfeiture, whereas ss 92 and 94 of the POCA were not attended by any discretion. In our opinion, however, the absence of any discretion to give relief from forfeiture cannot affect the plain meaning of the words. We are mindful of the fact that the principle of legality favours a construction of the POCA - if one is available - which avoids or minimises its encroachment upon fundamental property rights. In our opinion, however, there simply is no justification for notionally reading s 329(2)(a) as if the word "substantially" occurred before the word "used" in the phrase 'the property is used in, or in connection with, the commission of an offence'.

49. In the present case, as I earlier observed, the DPP alleged that the defendant in the present proceedings stored the cocaine in which he trafficked at the Crace property. A number of the transactions involving the cocaine occurred adjacent to the Crace property. The defendant also allegedly prepared the cocaine for sale in the Crace property. At the time he was engaging in the transactions which formed the basis of the trafficking charge, the defendant was living in a rented apartment in Bunda Street, Civic. The defendant gave evidence on 22 April 2016 in these proceedings, at which time he was questioned about his use of the Crace property in his offence of trafficking in cocaine:

MR WILLIAMSON: At the time of your arrest and immediately prior to it your primary place of residence was your unit at 240 Bunda Street in the city, right?---At my arrest, yes.

That's where you usually lived?---Yes.

You didn't live at [the Crace Property] because it wasn't in fact complete at that time, was it?---No, till my arrest it wasn't completed.

You said in your affidavit that it was only 90 to 95 per cent complete. Is that right?---Yes, that's correct.

Nevertheless, that's where you were storing your drugs, right?---That's where the drugs were.

That's why the police found all the cocaine, the scales and the cutting agent in there, and you'd agree that when you were selling drugs to the undercover officer it was in Cocoparra Street?---On that day it was there. It could have been anywhere any other day.

You made a number of transactions to the undercover officer, didn't you?

---Yes.

They were all either in Cocoparra Street or an adjoining street, right?---Yes.

So what you were doing, I'd suggest to you, is you were using the house at Cocoparra Street as your base of operation for trafficking drugs?---No, it just seemed that way because it happened to be it happened there.

Well, it happened there because that's where you would store your drugs and that's where you'd cut them and that's where you'd weigh them?---I've had them on another job site before.

Where did you have them elsewhere?---I had them down the road on 18 of 64.

Why did you have the drugs in Cocoparra Street?---Because I was meeting them that day.

You met them on a number of occasions in Cocoparra Street, didn't you?

---Yes.

So you'd agree that on more than one occasion you used Cocoparra Street as your base of operation for transactions you engaged in with undercover officers. Would you agree with that?---Sometimes, yes.

That house was unoccupied. You didn't live in it. You didn't reside there?

---No.

So it would make a very convenient place then to store your drugs, wouldn't it?---I don't know.

The house was close to completion. So it was relatively secure. Is that right?

---I've had it at Bunda Street before. I've had it

HIS HONOUR: That's not an answer to the question?---Yes.

...

MR WILLIAMSON: The house was relatively secure, wasn't it, when you were storing your drugs in there? It had its doors on, had the windows on?

---Yes.

You couldn't easily get in there, could you? You've had to force entry, right?

HIS HONOUR: Do you agree with that?---Yes.

MR WILLIAMSON: So you knew that the drugs would be relatively secure in there, given the state of the house, right?---It was a secure house. I didn't think of it as a secure place to save the drugs there or

You've stored hundreds of thousands of dollars' worth of drugs in there, right. You're not going to do that unless you think that place is relatively secure, are you?---Yes. I've put it anywhere before. I've put it in a garden.

But the reason you put them in Cocoparra Street when you did is because you knew the house was relatively secure, that your drugs would be relatively safe in there?---Because of the locked door? Because I didn't do it because there's a locked door there.

So the door is locked. So that means it's somewhat secure, right?---I didn't care if the door was locked or open.

HIS HONOUR: I'm sorry, why did you put the drugs in the house there then?

---Just had it there on the day.

MR WILLIAMSON: It was more than one day, though, wasn't it?---No, it was there that day.

You sold drugs to the police around Cocoparra Street on a number of occasions, didn't you?---Yes, but it wasn't there every single time.

Where was it then?---I'd drive it sometimes from Bunda Street.

Why were the scales in the house then?---They were there on the day.

Why?---They only got there on the day.

Why was the cutting agent in the house?---It was only there on the day. It wasn't always there.

You're lying about that, aren't you?---No, your Honour, I'm not. The scale and the cutting agent were only there on that day.

Why didn't you keep your drugs at your main place of residence at Bunda Street?---I did sometimes.

Why weren't you keeping them there immediately prior to your arrest?

---Because he told me - we organised that the spot would be on Cocoparra. So I thought I'd go and wait for him there.

You agreed to the deal on Cocoparra Street, right?---Yes.

He was going to collect the drugs from whatever location you nominated?

---Yes, it was

So why did you nominate Cocoparra as the place where the transaction would go down?---Because I was working on the day. I'm there every day working and organising jobs for people, and always around Crace there's jobs everywhere.

I'd suggest the reason you nominated Cocoparra Street is because it was convenient because your drugs were stored in the house?---No, your Honour. That's incorrect.

Why could you not then have stored the drugs at Bunda Street?---Because I was meeting him at Cocoparra.

So just prior to when you dealt him drugs at Cocoparra why could you not have stored your drugs at Bunda Street and then driven them over to meet him at Cocoparra Street when you sold them to him?---Just happened that they stayed there.

But why? Why were they not in Bunda Street? Why were they being stored in Cocoparra Street?---Because I'm usually there from 7.00 till 4.00, 3.00, working. That's where I spent most of my day there.

So that might then explain why the transaction happened at Cocoparra Street but why were you not storing them at Bunda Street?---On the day?

Yes?---On the particular day?

Yes?---Because I was going there to meet him at Crace, back in Crace.

But why did you not have the drugs at Bunda Street and then pick them up, remove them from Bunda Street and take them straight to the transaction. Why did you actually have them stored inside Cocoparra Street?---Because I was there before he met me and I put it there.

Why?---I just put it there.

HIS HONOUR: Even if you'd taken the drugs there, why did you take the cutting agent and the scales? See, that doesn't make any sense, does it, if you'd just taken it there that day?---I took - the scales and the cutting agent were only there that day.

What were you going to do with them?---Add more cutting agent to the cocaine.

MR WILLIAMSON: What I'd suggest to you, Mr Nikro, is that the reason you were storing the drugs at Cocoparra Street is because you wanted a degree of separation between where the drugs were stored and your primary place of residence in case those drugs were actually found by the police?---That's incorrect, your Honour. They've been at Bunda Street. They've been in my car.

You thought that, "If the police find the drugs for whatever reason in Cocoparra Street and I'm not living there, I've got a chance of denying knowledge of them." Isn't that right?---No, that's incorrect.

But you knew that if they found them in Bunda Street you're ruined, there's no explaining that one away?---I've had them before at Bunda Street.

You're lying about that, aren't you, sir?---No, your Honour, I'm not.

You were storing them in the weeks leading up to your arrest at Cocoparra Street and that's why all the transactions happened there?---Your Honour, there was no drugs the day before the arrest at Cocoparra Street. The drugs weren't at Cocoparra Street the day before the arrest.

Why would you not just take from Bunda Street whatever quantity you were going to sell, having already been cut down?---I don't know. I thought I'd put it there that day. I honestly don't know why exactly I did that.

You don't know because you're lying and it's hard to make sense of your lying, isn't it?---No.

I'd suggest that you used the fact that that premises was incomplete and vacant but also relatively secure to your advantage, didn't you?---It was for my advantage because I was there on a daily basis around Crace. There was three other jobs getting built at the same time.

You stored them there because it was to your advantage to do so because, I'm suggesting to you, (a), the premises were relatively secure and, (b), it gave you a degree of separation between your residence and that place should they be found and a chance at plausible deniability?---But that is my residence.

You weren't living there, though, were you?---No, not at the time.

You know that if the police find drugs in your bedroom in a place where you sleep every night, you're going to have an almost impossible task of explaining that one away, right?---But it was actually at my

I don't care where they were. You would realise that if the police found cocaine in your bedroom in a place where you slept every night, you're going to have a really, really difficult task explaining that away, but you would also realise, wouldn't you, that if they found them in a premises where you didn't reside or you did not live on a daily basis that you might actually have a reasonable chance of denying knowledge of the drugs?---Yes, but, like I said, it was only there

You realise that, right?---I didn't think of that at the time but probably it is, yes.

HIS HONOUR: Can I just ask you this. You say that you had taken that large quantity of cocaine to Cocoparra Street?---Yes, your Honour.

You also took the cutting agent and you also took the scales, you say?---Yes, that's correct.

Did you take them all with you that day or did you take them at different times?---All at the same time.

When did you become aware of the fact that somebody wanted to purchase drugs off you that day?---That day. I was aware beforehand that I was meeting him on that day.

You were meeting him there on that day?---Yes, and I took it and stored it there that day so I can give it to him.

Did you actually engage in a sale that day?---No, your Honour.

50. I will interpolate at this point to observe that the defendant was a poor witness, given to poor memory on important matters of detail, but nevertheless apparently confident in asserting that the Crace property was not tainted. In particular, the defendant's evidence that he was not effectively using the Crace property to store, conceal and prepare the cocaine used in the trafficking offence is simply not credible. The Agreed Statement of Facts tendered in the defendant's criminal proceedings reveals trafficking in substantial quantities of cocaine in Cocoparra Crescent Crace adjacent to the Crace property on numerous occasions between 11 April 2014 and 23 May 2014. On the occasions that he supplied cocaine to undercover police, on 11 April 2014, 2 and 16 May 2014, the defendant was the person who nominated where the transaction would take place. It is reasonable to infer that the defendant also chose the place for the other transaction, not involving undercover police. If, as the defendant asserted, he simply took cocaine to the Crace property as required for particular transactions, the large quantity of cocaine located at the Crace property (240.2 grams) on 23 May 2013 is inexplicable; certainly the defendant did not give evidence of any other substantial transaction involving that amount of cocaine which he anticipated at that time.

51. There were other aspects of the defendant's evidence that I found inherently unlikely. At the time he committed the trafficking offence the defendant was observed to be frequently driving a silver Mercedes Benz four wheel drive vehicle, registered in the name of his sister in Sydney. That vehicle was part of the property that was restrained under the restraining order made by Refshauge J. The vehicle therefore became subject to forfeiture upon the conviction of the defendant. The defendant rejected a suggestion in his evidence that he was the actual owner of the vehicle, maintaining that his sister had purchased and allowed him to drive it, although he described his sister as "not rich." When pressed on this issue, the defendant could not say for how long the vehicle had been loaned to him. He did not demur to the suggestion that the vehicle was worth about $120,000, but nevertheless testified that his sister had not spoken to him about why the vehicle was restrained or how she may be able to seek to have the vehicle excluded from the forfeiture. I do not accept the defendant's evidence on this issue. The inevitable inference from the evidence is that the defendant was the true owner of the vehicle.

52. In the present case I am satisfied that the accused used the Crace property for the purposes of preparing, storing and concealing the cocaine in which he trafficked. It is probable that he chose to use the Crace property for this purpose, as opposed to his apartment in the City, because it was secure but at the same time allowed him to deny knowledge of the drugs if they were found there. There may be cases in which difficult questions will arise as to whether particular property was used in relation to the commission of an offence for the purposes of the COCAA, but this is not such a case. The offence of trafficking in a controlled drug of which the defendant was convicted is an offence created by s 603 of the Criminal Code 2002 (ACT). For the purposes of that offence, the verb "traffics" is given an extended definition by s 602, as including preparing the drug for supply with the intention of selling any of it, guarding or concealing the drug with the intention of selling any of it, and possessing the drug with the intention of selling any of it. The defendant was in possession of the cocaine within the Crace property before he sold it, he used the Crace property to prepare and conceal the cocaine, and he did all of these things with the intention of selling at least part of the cocaine. There is therefore a real and demonstrable connection between the use of the property and the offence of which the defendant was convicted, such that I am satisfied that the Crace property was used in relation to the offence of trafficking in cocaine of which the defendant was convicted.

53. It necessarily follows that I am not satisfied that the Crace property was not used by the defendant in the commission of the offence of trafficking in cocaine.

54. For the sake of completeness, I will also consider the DPP submission that the evidence does not establish that the Crace property is not tainted property, as having been derived from trafficking in cocaine, either in whole or in part. The defendant relied upon an affidavit he swore on 16 October 2015, in which deposed to the following:

(a) he is registered on the certificate of title to the Crace property as the sole proprietor;

(b) all mortgage payments for the property have been met from his income, and "no money subject of the charges was used to fund any payment in respect of the Crace property";

(c) on 3 July 2009 he was granted a Crown lease over a property he purchased at [redacted for legal reasons], ACT (the Franklin property);

(d) the Franklin property was originally encumbered by a mortgage to the Bank of Queensland. At the time of swearing the affidavit, the Franklin property was encumbered by a mortgage to Homeside lending, a division of the National Australia Bank. The loan secured by that mortgage was an interest only loan;

(e) on 7 August 2013 he purchased the Crace property for $285,000. The purchase of the Crace property was funded by two interest only loans from Homeside Lending, secured by a mortgage to the National Australia Bank;

(f) after purchase of the Crace property, RisenHomes were engaged to build a house on the block of land at the Crace property;

(g) payment of the builders instalments to progress construction of the house had been made from an account with Homeside Lending (account 0802), from which interest is taken for a loan secured by the mortgage over the Franklin property;

(h) account 0802 had incurred all of the costs of construction, but it also received progress payments from the two interest only loans referred to at (e) above. In that regard $72,000 was drawn down on 12 December 2013, $36,000 was drawn down on 17 December 2013, and $71,520 was drawn down on 3 January 2014; and

(i) at the date the defendant swore the affidavit the house on the Crace property was 90-95% complete.

55. I will not refer in detail to the oral evidence given by the defendant. His evidence was vague on important issues, such as how he managed to service the loans that he had taken out without using the proceeds of his drug trafficking. Little effort was made by the defendant to address that issue; despite my invitation to the defendant to demonstrate from his bank records how he had been able to survive financially without using the funds from drug trafficking. Only one short paragraph out of his 40 paragraph final submission is directed to this issue, and that simply asserted that he had purchased the Crace property through two loans from the National Australia Bank, and that contractors were paid and some of his living expenses were met from progress payments transferred from a building loan from the National Australia Bank. He also said that repayment of the loans were met from rent paid on the Franklin property, and from draw downs on the loans associated with the Crace property. The defendant, however, made no effort to establish any of these asserted facts by reference to accounting or other records. I should add that the evidence revealed that the defendant set out to deceive those entities lending him money to build the Crace property, as he told them that construction was to be carried out by Risen Homes, a building entity owned by an acquaintance of the defendant. The work was, in fact, going to be carried out by the defendant, but he was concerned that the lending entity may not lend him the money if he told it the truth. This is another matter relevant to the defendant's overall credibility.

56. It is without doubt that the defendant was heavily in debt in the years leading up to April 2014. At one point he was required to service loans totalling almost $1 million secured by mortgages over the various properties he was developing. The evidence of his legitimate income for those years, and his ability to service the loans from his legitimate income, is unsatisfactory. The DPP tendered a summary obtained from the Australian Taxation Office (ATO) showing that for the tax years 2009, 2010, 2011 and 2012 the defendant declared income of $29,346, $30,958, $25,775 and $11,040 respectively. Interestingly, he claimed no deductions for interest on any of the loans. One possible reason for that apparent anomaly is that to have claimed the interest on those significant loans as a deduction may have raised in the mind of the ATO questions as to how the defendant was able to service such significant borrowing on his meagre declared income.

57. The evidence does not convince me that the Crace property was not derived, at least in part, from the proceeds of trafficking in cocaine.

58. I am not satisfied that the Crace property is not tainted in relation to the offence of trafficking in cocaine as:

(a) I am not satisfied that it was not used by the defendant in relation to the commission of the offence; and

(b) I am not satisfied that the property was not derived by the defendant in part from the commission of the offence.

59. The purpose of forfeiture of the Crace property is not punitive, but is in pursuit of the objectives set out in s 3(b) and (d) of the COCAA, being deprivation of the defendant of all material advantage from the commission of the offence, and prevention from using the property to commit further offences. As such, forfeiture of the Crace property does not constitute punishment for the offence of trafficking in cocaine. It follows from this finding that forfeiture of the Crace property does not constitute double punishment for the offence, and the provisions of s 24 of the HRA are not contravened. It further follows that the challenge to the decision of the DPP to commence these proceedings based on an alleged contravention of s 40B of the HRA, and the application for stay or dismissal of the proceedings, must also fail.

60. Unless either party makes an application for a different costs order within 14 days of publication of these reasons, I order the defendant to pay the DPP's costs of the proceedings.

I certify that the preceding sixty [60] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns.