Director of Public Prosecution v McCoid

LOWER COURT Supreme Court - Common Law Division JURISDICTION : LOWER COURT 10498/00 FILE NUMBER(S) : LOWER COURT Greg James J JUDICIAL OFFICER :

• 3 - IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40690/03 CL 10498/00

MEAGHER JA IPP JA DAVIES AJA

Thursday, 16 OCTOBER 2003 DIRECTOR OF PUBLIC PROSECUTIONS v ELIAS HELOU (aka LOUIS JAMES HELOU and LOUIS JAMES HELOU) Judgment

1 MEAGHER JA: I agree with Davies AJA. 2 IPP JA: I agree with Davies AJA. 3 DAVIES AJA: The Proceeds of Crime Act 1987, (Cth) ("the Act") provided for the seizing of the proceeds of and benefits derived from the commission of offences against the laws of the Commonwealth, and of some of its territories. Section 43 provided that, when a person had been convicted of an indictable offence or was about to be charged with such an offence, the Director of Public Prosecutions ("the DPP") may apply to the Supreme Court for a restraining order with respect to all or specified property of the defendant. Under s 43(2), the Supreme Court may make an order directing that the property is not to be disposed of or otherwise dealt with except in such manner or under such circumstances as are specified or it may direct the Official Trustee to take custody and control of the property or such part of the property as is specified in the order. Section 30 of the Act provides, inter alia, 30. Forfeiture of all restrained property if person convicted of serious offence

(1) If: (a) a person (in this subsection called the defendant ) is convicted of a serious offence (otherwise than by reason of paragraph 5(1)(d)); (b) a restraining order is or was granted in respect of property (whether property of the defendant or of some other person) in reliance on: (i) the defendant's conviction of that offence; or (ii) the charging or proposed charging of the defendant with that offence or a related offence; (c) the restraining order, to the extent to which it relates to the property, is not the subject of a declaration under subsection 48(4); and (d) the restraining order is in force at the end of: (i) the period of 6 months starting on the day of the conviction; or (ii) if an order under section 30A is in force at the end of that period---the end of the extended period; the property is, under this subsection, forfeited to the Commonwealth at the end of that period, or that extended period, as the case may be. (2) Subject to subsection (3), where property is forfeited to the Commonwealth by virtue of subsection (1), the property vests absolutely in the Commonwealth. 4 The term "serious offence" was defined in s 7(1) of the Act and included "a serious narcotics offence".

5 The term "conviction" was defined in s.5 (1) of the Act, which provided: 5. (1) For the purposes of this Act, a person shall be taken to be convicted of an offence if:

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

(b) the person is charged with, and found guilty of, the offence but is discharged without conviction;

(c) a court, with the consent of the person, takes the offence, of which the person has not been found guilty, into account in passing sentence on the person for another offence; or (d) the person absconds in connection with the offence. 6 In December 1999, the defendant, Elias Helou, was charged with three serious narcotic offences. On 30 March 2000, a restraining order was made under s 43 of the Act with respect to the property of the defendant, excluding any interest held in any company or business and a sum of $40,000 in cash, which had been seized under a search warrant. On 7 February 2001, the restraining order was varied to include that cash amount of $40,000. 7 The question, which has now arisen is whether the period of six months, specified in s 30 of the Act has elapsed so as to effect a forfeiture of the property, the subject of the restraining order. His Honour, Mr Justice Greg James, has stated the following questions for determination by the Court of Appeal:- "1. Was Elias Helou convicted for the purposes of the Proceeds of Crime Act 1987 earlier than 13 August 2002?

2. If the answer to question 1 is Yes, on what date was Elias Helou convicted for the purposes of the Proceeds of Crime Act 1987?" 8 The significance of 13 August 2002 is that that was the date on which his Honour Judge Kinchington QC DCJ formally convicted Mr Helou and pronounced sentence. Earlier, on 26 November 2001, at the commencement of his trial, Mr Helou had pleaded guilty to one count of possessing prohibited imports, which were narcotic goods consisting of a quantity of cocaine, and admitted to committing one offence of possessing a prohibited import reasonably suspected of having been imported into Australia, namely, a trafficable quantity of cocaine, which offence could be taken into account on sentencing. The plea of guilty having been entered, his Honour remanded Mr Helou for sentence and ordered that a pre-sentence report be obtained. 9 I have said that, on 26 November 2001, his Honour remanded Mr Helou for sentence. That is not explicitly stated in the statement of agreed facts before the Court. However, the record of the order of his Honour Judge Kinchington, written up by the appropriate administrative official, recorded the following, "SOFS 30/1/02". That entry shows that the matter was stood over to 30 January 2002 for sentence. 10 I draw the conclusion that his Honour Judge Kinchington did, on 26 November 2001, remand Mr Helou for sentence. Counsel for Mr Helou, Mr D Jones, with him Mr B Clarke of counsel, did not concede this point but he did not seriously dispute it. 11 In Director of Public Prosecution v McCoid [1988] VR 982, it was held that, for the purpose of the Crimes (Confiscation of Profits) Act, 1986 (VIC), the terms of which were similar to those of the Act, a person was convicted when a plea of guilty was accepted and he was remanded for plea and sentence rather than when the person was actually sentenced. The principal judgment was given by Young CJ, with whom O'Bryan J and Tadgell J agreed. At p 987, Young CJ said:- "Here the question for decision is what is meant by a person being taken to have been convicted, and what is meant by "the person has been convicted of the offence" in sub-s. (2)( a ) of s 3. The ordinary meaning of the word "convicted" may be obtained from a consideration of the judgments of the High Court in the case of Griffiths v R (1977) 137 CLR 293; 15 ALR 1. I shall read a passage from the judgment of Aickin J, which shows that to say that there is no conviction until judgment is entered is not a correct generalisation. At (137 CLR p 336; 15 ALR p 38) Aickin J said this:- "In the present case the applicant adhered to his plea of guilty and it is plain that Judge Goran accepted that plea. The Judge then went on to hear evidence appropriate to assisting in the determination of the sentence to be imposed, both police evidence as to the nature of the particular crimes admitted and as to his past record and on behalf of the accused in mitigation of sentence. Having heard that evidence what he did was first to remand the accused for sentence. That in my opinion is an unequivocal indication that he had found the accused guilty, i.e. convicted him of the offences, because the step of remand for sentence could not be taken by any court without there having been a conviction. It may be that during the period of the remand for sentence an accused person might change his mind and ask to change his plea and there would seem to be no doubt that he could be allowed to do so. That however is not inconsistent with his having already been convicted because, as was said in R v Phillips and Lawrence [1967] Qd R 237 at pp 288-289, per Hart J, the change of plea operates to set aside the conviction." His Honour went on to refer to the history of the meaning of the word 'conviction' dealt with by Windeyer J in Cobiac v Liddy (1969) 119 CLR 257, at pp 271-273; [1969] ALR 637, at p 645, but I shall not stay to read the whole of that. What needs to be emphasised in that passage is that the remanding of an accused person for sentence, whether in custody or on bail, is an unequivocal indication that the accused has been found guilty. Reference may also be made to the judgment of Jacobs J, particularly (137 CLR), at p 316; (15 ALR), at p 22." 12 Young CJ further said at p 988:- "The learned Judge appears to have been influenced by the provisions of the Penalties and Sentences Act which enable a sentencing Judge to adjourn a matter in an appropriate case without recording a conviction. No doubt his Honour is correct in that. But that does not mean that there is no conviction when a plea of guilty is accepted by some act or determination of the Court: rather it means that having accepted it, say by remanding the accused for plea and sentence, a judge can later indicate that in the particular circumstances he does not, on reflection, accept the plea as justifying a conviction, or if the plea for leniency is heard on the same day as the arraignment, simply adjourn without conviction in accordance with the provisions of the Act. In other words, the situation is closely analogous to the situation envisaged by Aickin J in the passage I have read from his Honour's judgment in Griffiths' Case where an accused is allowed to change his plea."

13 The operation of s.5 of Act in relation to a jury verdict of guilty was considered in Della Patrona v Director of Public Prosecutions (Cth) [No 2] (1995) 38 NSWLR 257. The principal judgment was given by Kirby P, Priestley JA and Meagher JA agreeing. At p 263, Kirby P said:- "The primary definition in par (a) simply repeats the noun being defined, although in the form of a verb. This fact caused both parties to search for the meaning of "convicted" by reference to common law understandings of the notion, explained in decisions of high authority in Australia and England. However, it is important to make the point that the Court's consideration is controlled by, the context in which the word appeared in a statute of the Australian Federal Parliament and for the purposes of the efficient operation of the Act. So fascinating is legal history, that it is easy to slip into the error of exploring its by-ways, mistaking the purpose of the search as one for the common law, or historical meaning, of the word "conviction", or "convicted" instead of the construction of the Act. The proper purpose of the Court's inquiry is to give the word, repeatedly used throughout the Act, a meaning which will achieve, with as little ambiguity and doubt as possible, the efficient operation of the Act." 14 At p 266, his Honour said:- "It is true that the present legislation is not strictly uniform in the sense that the Corporations Law is. But it is based upon a common source, and with sufficient identity in its provision, to invoke the same principle. This Court has accepted that principle in many cases, including recently: see, eg, Camden Park Estate Pty Ltd v O'Toole (1969) 72 SR(NSW) 188; 90 WN (Pt 2) (NSW) 98, see discussion in Fernando v Commissioner of Police (1995) 36 NSWLR 567. It should do so in the present case. Far from considering that the holding of the Victorian Full Court in McCoid is plainly wrong, I believe that it is plainly right. It applied the majority view of the High Court in Griffiths . It accords with the approach taken by this Court in Frodsham . The use of a particular formula of conviction is unnecessary: see Frodsham (at 691). All that is necessary is that the judge should accept and proceed upon the jury's verdict. This, Slattery AJ sufficiently did when he remanded the appellant in custody for sentence." 15 The principle has been authoritatively determined, therefore, by the Full Court of the Supreme Court of Victoria in McCoid and by the Court of Appeal of this Court in Della Patrona, that, for the purposes of the word "conviction" in legislation of this type, all that is necessary is that the judge should accept and proceed upon a jury's verdict of guilty or upon a plea of guilty and that is sufficiently done if the judge remands the prisoner in custody for sentence. 16 Counsel for Mr Helou submitted that the law as enunciated in McCoid and in Della Patrona must be reconsidered in the light of Maxwell v The Queen (1996) 184 CLR 501. There are, throughout the reasons for judgment of Dawson and McHugh JJ and those of Gaudron and Gummow JJ in that case, statements which are inconsistent with the law as enunciated in McCoid and Della Patrona. Thus, at p 509, Dawson and McHugh JJ said:- "In these days when there is often, as in this case, only a note or memorandum of a plea of guilty and nothing which could be described as a formal entry of the plea on the record of the court (see Griffiths v The Queen (1977) 137 CLR 293 at 313-314), a plea of guilty is not, in the ordinary course of events, accepted until sentence is passed on the accused. As Lord Reid observed in S v Recorder of Manchester [1971] AC 481 at 488: 'It has long been the law that when a man pleads guilty to an indictment the trial judge can permit him to change his plea to not guilty at any time before the case is finally disposed of by sentence or otherwise.' It is the disposal of the case which results in the judgment of the court embodying a determination of guilty. For that reason, it seems to us that the hesitancy displayed by Gibbs J, when he said in the passage cited above from R v Jerome and McMahon that a determination of guilty may 'even perhaps' be made 'by adjourning the proceedings to enable information relevant only to the question of sentence to be obtained', was justified." 17 However, in Maxwell, the Court was concerned with the principle of autrefois convict and, as Dawson and McHugh JJ recognised at p 509, in the application of that principle, finality of adjudication is essential. At p 507, Dawson and McHugh JJ made it clear that they were concerned only with the question of conviction for the purposes of autrefois convict and not with the meaning of the term "conviction" in its broader sense. At p 507-508, their Honours said:- "The question of what amounts to a conviction admits of no single, comprehensive answer. Indeed, the answer to the question rather depends upon the context in which it is asked (see Cobiac v Liddy (1969) 119 CLR 257 at 271). On the one hand, a verdict of guilty by a jury or a plea of guilty upon arraignment has been said to amount to a conviction. On the other hand, it has been said that there can be no conviction until there is a judgment of the court, ordinarily in the form of a sentence, following upon the verdict or plea. Thus Tindal CJ said in Burgess v Boetefeur … [135 ER 193 at 202]: 'The word 'conviction' is undoubtedly verbum aequivocum. It is sometimes used as meaning the verdict of a jury, and at other times, in its more strictly legal sense, for the sentence of the court'. (Emphasis added.) The context in which the question arises for present purposes is that of autrefois convict and in that context it would seem clear that a verdict or plea of guilty is insufficient of itself to constitute a conviction. That accords with the principle lying behind the plea of autrefois convict which is that a person should not be punished more than once for the same matter (See Wemyss v Hopkins (1875) LR 10 QB 378 at 381)." 18 In my opinion, the law as enunciated in Maxwell provides no ground for failing to apply the law as enunciated in McCoid and Della Patrona, decisions which are now of many years standing and which dealt with the meaning of the term "conviction" for the purposes of the relevant statutes. Indeed, the more recent Proceeds of Crimes Act 2002 has, in s.331(1), adopted the identical definition of "conviction". If Parliament was dissatisfied with the interpretation adopted in McCoid and Della Patrona , it had the opportunity to make its intention plain. In McCoid and in Della Patrona, it was held that the concept of conviction in its broader sense should be adopted. I see no reason to dissent from that view. 19 Accordingly, the course taken by his Honour Judge Kinchington on 26 November 2001 of remanding Mr Helou in custody for sentence, was a conviction for the purposes of the Act. It matters not that there was not complete finality about the matter or that Mr Helou had an opportunity to seek to change his plea up until the time when he was formally convicted and sentenced. 20 I would answer the questions as follows:-

QUESTION 1. Was Elias Helou convicted for the purposes of the Proceeds of Crime Act 1987 earlier than 13 August 2002?

QUESTION 2. If the answer to question 1 is yes, on what date was Elias Helou convicted for the purposes of the Proceeds of Crime Act 1987 ?

ANSWER: 26 November 2001. 21 The Court has received no submissions on the aspect of costs. I would reserve liberty to the parties to apply within seven (7) days with respect to costs, if any order is appropriate and sought.

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