DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- WHITE [2009] WASC 62 (19 March 2009)

DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- WHITE [2009] WASC 62 (19 March 2009) - WASC 2009 case summary — Zoe

[91]

An intention to abrogate or curtail fundamental property rights will not be imputed by the courts. It must be 'clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights': Coco [1994] HCA 15; (1994) 179 CLR 427 at 437; [1994] HCA 15; 72 A Crim R 32 at 35-36; Clissold v Perry [1904] HCA 12; (1904) 1 CLR 363 at 373.
A legislative intention to take away property without compensation requires expression of that intention with 'irresistible clearness' because it is presumed that the legislature would not 'overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness'. Accordingly such an intention is not to be ascribed from use of 'general words, simply because they would have that meaning in their widest, or usual, or natural sense, because so to construe those words would be to 'give them a meaning in which they were not really used': Bropho v Western Australia [1990] HCA 24; (1990) 171 CLR 1 at 17-18.
Any statutory ambiguity should be interpreted so as to respect a person's property rights: DPP v Saxon (1992) 28 NSWLR 263 at 270; 63 A Crim R 202 at 208-209; Saffron v DPP (Cth) (1989) 96 FLR 196 at 199. Unless no other interpretation is possible, justice requires that statutes should not be construed so as to enable the confiscation of an individual's property without payment of just compensation. A fortiori where the statute does not provide for any compensation: A-G v De Keyser's Royal Hotel Ltd [1920] UKHL 1; [1920] AC 508 at 576.
In construing a penal statute, and confiscation of property without compensation constitutes a penalty, if there are two reasonable interpretations, the more lenient of which will avoid the imposition of the penalty, that more lenient construction must be adopted: Tuck & Sons v Priester (1887) 19 QBD 629 at 638 per Lord Esher MR.

[112]

The phrase 'used in, or in connection with, the commission of an offence' connotes a use of a thing which has a relationship with the commission of the offence. The relationship may be direct or indirect depending on whether the thing is used in the commission of the offence or used only in connection with the commission of the offence. Thus, where land is used for the cultivation of a cannabis crop, for example, in my opinion the land is used directly in the commission of the offence of cultivation under s 7(1)(a) of the Misuse of Drugs Act. Where a motor vehicle is used for the transport of drugs to a proposed purchaser to whom the offender intends to sell the drugs the motor vehicle may be said to be used in or in connection with the commission of the offence depending upon the circumstances. If the drugs were concealed in the motor vehicle itself, I would consider that the motor vehicle was 'used in' the commission of the offence of possession with intent to sell or supply. If, however, the drugs were concealed on the person of the offender the relationship between the motor vehicle and the commission of the offence would be indirect. In such a case it could only be said that the motor vehicle was being used 'in connection with' the commission of the offence. If the offender was only a passenger in the vehicle and the owner-driver had no knowledge of the presence of the drugs which were concealed on the person of the offender, there would be no apparent connection between the motor vehicle and the commission of the offence.

In the present case, the use of the house as the place to store, prepare and sell or supply the drugs represented a state of affairs which, in my opinion, constituted a use of the house for those purposes. The house was 'used' by the respondent for those purposes in the ordinary meaning of the word 'used'. The ordinary meaning of the verb 'to use' is 'to employ for a purpose' and the ordinary meaning of 'use' is 'utilization or employment for or with some aim or purpose': see The Shorter Oxford English Dictionary (at p 2325). In the context of town planning law the 'use' of land is a well-developed concept. Land is zoned for particular purposes for uses such as residential use, commercial use, retail shopping, industrial use, etc. Thus, land which is zoned for residential use may only be used for residential purposes.

In the present case the learned judge had no difficulty in concluding that the offences of possession with intent to sell or supply committed by the respondent involved a use of the land for storing the drugs, preparing them for sale or supply and for their actual sale or supply to others. In doing so, he applied what he considered to be the ordinary grammatical meaning of the words used in the statute. In my opinion he was entirely correct. Each of the activities to which he referred involved a use of the land. The use of the land for residential purposes involves its use for a variety of purposes including shelter, eating, sleeping, storage of goods and chattels and recreation. In this context having a bath involves not only the use of the bath but also the bathroom and is a part of the use of the land for residential purposes. In my opinion, the respondent's land was 'used' by him 'in connection with' both of the offences of possession with intent to sell or supply within the meaning of s 10(1) of the Confiscation of Profits Act 529 - 530.

[121]

I agree with the conclusion that the words in s 10(1)(a) should have their ordinary grammatical meaning. There is no warrant to import the adjective 'substantial' to modify them. I would, however, see some limitation in the meaning of the verb 'to use' when it is used in the context of land. The most concise definitions are, I feel, contained in the Macquarie Dictionary inasmuch as they do not contain the word to be defined. The definitions are 'to employ for some purpose'; 'to put into service' 'to avail oneself of' and 'to apply to one's own purposes'. I would consider that in some contexts in ordinary speech the lesser is capable of excluding the greater. If one is having a bath, then the bath itself is being used for that purpose. Ordinary speech would indicate that the bathroom is also being used for the same purpose. That is the use for which it is set aside and it is also used for the purpose of drying. However, I do not consider that it would normally be said, in ordinary speech, that the land on which the bathroom is situate is being used for the purpose of having a bath. If, therefore, the scales are used in a room for weighing, the scales are being used but I do not consider it could be said, if that was the only operation, that the land was being used. One of the factors to consider is that the act of weighing can be performed anywhere and does not need any particular place. If it could be said that the land is also being used, then it would follow that land must be used in respect of every act performed by mankind, unless the act was performed at sea or in the air. If a vehicle is being used then the land over which it travels would also be used. I consider the word would have a wider meaning in the context of Town Planning Legislation. There land is classified by its use and one in that context would look to the land itself to see what activity is being carried out on it. The intent of those statutes is to regulate the use of land to prevent an inappropriate use in a particular environment. In that context the lesser would not exclude the greater. In the present case a statute is being interpreted where the result is forfeiture, in some instances, by way of further punishment. In my view it would be going beyond the intent of the legislation to adopt an interpretation that would result in a liability to forfeiture every time an activity is carried out on that land when in ordinary speech it would not be regarded as being so carried out. The position can be contrasted if it was shown that the land or house was used in a way equivalent to a warehouse or possibly if the house was used as a 'safe house'. Cultivation would be a clear use of the land. The mere presence of the drug on the land would not, in my view, be sufficient to regard the land as being 'used'.

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DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- WHITE [2009] WASC 62 (19 March 2009)

Legislation Cited (4)

Cases Cited (14)