DPP v Green [2010] NTSC 16

[2010] NTSC 16

Supreme Court of the NT|2010-05-04|Before: Martin CJ, Reeves JJ

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Source facts

Court

Supreme Court of the NT

Decision date

2010-05-04

Before

Martin CJ, Reeves JJ

Catchwords

Source

Original judgment source is linked above.

Catchwords

Judgment (52 paragraphs)

[1]

CRIMINAL LAW AND PROCEDURE - reference to Full Court of questions of law - powers of court limited to facts stated in the reference - court refused reference on academic questions but accepted reference to questions whether a crime-used property substitution declaration could be made - whether court may declare property of equivalent value owned or effectively controlled by the respondent to be substituted for the crime-used property - defendant held leasehold interest in crime-used property - whether crime-used property not available - question 1 in the reference answered in the negative - Criminal Property Forfeiture Act s 81.

[2]

STATUTORY INTERPRETATION - Criminal Property Forfeiture Act s 81 - defendant occupied property under a lease - defendant convicted of unlawfully cultivating cannabis, supplying cannabis and possessing cannabis on the leased property - definition of "property" could refer to the physical land or to an interest in the land - application for crime-used property substitution declaration under - not available if property not amendable to a restraining order or forfeiture for reason referred to in - not available if defendant does not own the property - definition of "owner" includes "a person having a legal or equitable interest in the property" - whether "own" has a corresponding meaning - whether property not available for forfeiture if defendant has leasehold interest - , , , ; , - text clear that only interests in land and not the land itself can be forfeited.

[13]

[7] On 10 July 2008, the respondent was dealt with in the Supreme Court in relation to a number of offences under the Misuse of Drugs Act. He was convicted of unlawfully cultivating 18 cannabis plants, possessing 4.161 kilograms of cannabis plant material and of supplying cannabis plant material to an unknown person. In addition to being convicted on each count, he was sentenced to a total effective period of imprisonment of two years commencing on 10 July 2008. The sentence was suspended upon him entering into a Home Detention Order for a period of nine months.

[8] The offences occurred in a shed on a rural block situated at Block 375 Stuart Highway (Block 375). At all relevant times the respondent was the owner of a leasehold interest in Block 375 and it was pursuant to this interest that he was in occupation of the shed that was used in committing the subject offences.

[9] The owner of the freehold interest in Block 375 was not involved in the offending and the applicant accepted that the offending occurred without the knowledge of the owner. By operation of s 82 of the Criminal Property Forfeiture Act, crime-used property is not available for forfeiture if the respondent does not own or have effective control of the property. The applicant concluded that no grounds existed upon which it could seek the restraint and ultimate forfeiture of the owner's interest in Block 375 on the ground that the land is crime-used property. The applicant, therefore, sought a crime-used property substitution declaration against the respondent pursuant to the provisions of s 81(2) of the Criminal Property Forfeiture Act. The property sought to be substituted consists of two residential properties associated with the respondent being Unit 3, 75 Driver Avenue, Palmerston (the Palmerston unit) which is owned by the respondent and 212 McGorrie Road, Marrakai (the Marrakai land) which is owned by the respondent jointly with his de facto wife.

[10] On 30 June 2008, I granted a restraining order pursuant to s 81(2) of the Act over the Palmerston unit and the Marrakai land.

[11] According to the unchallenged expert evidence led on behalf of the applicant, at the relevant time the freehold value of Block 375 was $1.5 million; the Palmerston unit had a value of $205,000; and the Marrakai land had a value of $105,000. Those valuations have been accepted by the trial Judge.

[12] The learned trial Judge ruled as follows:

(a) The property situated at Block 375 Stuart Highway was crime used property within the meaning of s 11 of the Act;

(b) The crime used property was, for the purposes of the Act, the land itself not some legal interest in the land;

(c) The respondent did not own or have effective control of the property situated at Block 375 and that property was not available for forfeiture by operation of s 82 of the Act; and

(d) The Court may therefore declare property of equivalent value owned or effectively controlled by the respondent be substituted for the crime used property pursuant to s 81 of the Act.

[13] The learned trial Judge referred a number of questions to the Court. The only one which the Court has decided to answer is whether, in the circumstances, he was correct in the rulings that he made.

[14] The answer to that question depends upon the construction to be given to various provisions of the Act.

[27]

[20] There is no question that the offences which the respondent committed were "forfeiture offences".

[21] The sheer breadth of the definition of "forfeiture offence" is breathtaking. A list of the Northern Territory offences punishable by a term of imprisonment for two years or more was provided by counsel for the respondent. The list ran to 27 pages covering as it did a very wide range of offending against numerous Acts, a good many of which were triable only summarily. The list contained only Northern Territory Acts and was not in fact complete as it did not deal with, for example, the Corporations Act; nor did it deal with Commonwealth offences or offences made under the laws of other states or territories. The extremely wide definition of a forfeiture offence gives rise to the real possibility that even relatively trivial offences may give rise to forfeiture of very valuable property. The wide definition of crime-used property, particularly in s 11(1)(c), gives rise to the possibility that what may be forfeited, for a relatively trivial offence, may be the offender's own home if an act or omission was done in connection with the commission of a forfeiture offence on the offender's own property. If the offence was committed on someone else's property in which the offender had no interest, the offender may be liable for a crime-used substitution declaration under s 81 of the Act. The consequences of such a declaration are that the Court must value the crime-used property at its full market unencumbered value, and order the offender to pay that sum to the Territory under s 81(4)(c). The amount ordered to be paid may be satisfied by forfeiture under Part 7 of the substituted property: see ss 86(1) and (3); s 101. In this case, the results could well be a judgment for $1.5 million and possibly forfeiture of the respondent's land worth about $310,000.00. Allowing for any mortgagees to be paid out, the resultant debt would be well in excess of $1 million.

[22] The Act has been described by both counsel as draconian in its reach. I doubt whether even Dracos himself would have conceived of a law so wide reaching. The questions of construction which we are asked to consider are therefore matters of extreme importance.

[23] Reference should also be made to s 3 of the Act which provides as follows:

[40]

(d) any other relevant matters.

[28] The expression "legal estate" in s 7(1) is not defined.

[29] The Act also includes a definition of "premises" which is defined to include "a vessel, aircraft, vehicle, structure, building and any land or place whether built on or not".

[30] Section 5 defines "land" to include an interest in land.

[31] The argument for the applicant was that the expression "crime-used property" refers equally to the physical land or personal property as well as the legal or equitable interest in any property whether real or personal. It was submitted that the definition of crime-used property in s 11(1)(b) supported this contention because of the reference to the "use" of property for storage and upon which the commission of acts or omissions "in or on the property" occurs: see s 11(1)(c). It was submitted that an interest cannot be used in this sense. It was submitted that the interest is the means by which a person or persons become entitled to utilise property for a relevant purpose, but it was only the physical entity which was used pursuant to the rights conferred by the interest. It was further submitted that s 11(2)(a) suggested that the physical property was intended by reference to the property being capable of also being used for another purpose.

[32] The structure of the definition of "property" suggests that the first part of the definition under sub-paragraph (a) is intended to refer to the physical property that is to say the physical land or the physical personal property being used such as a motor vehicle, an aeroplane or a boat, whereas the second part of the definition refers to legal or equitable interests in any such property. It is curious that the definition uses the word "or" rather than "and". Pearce and Geddes suggest in their text Statutory Interpretation in Australia[4] "in ordinary speech the word 'and' is used conjunctively and the word 'or' is used disjunctively". However, as the learned authors point out, "or" has sometimes been interpreted to mean "and" if the Court concludes that there are compelling reasons for finding that there is a printing or drafting error, or, if by reference to the context in which the word appears, that the cumulative effect of the provision should not be dictated to by the presence of the word in question. There is nothing in the context of the definition itself to suggest any drafting error, nor is there anything in the context of the definition to suggest "or" means "and". The argument of the applicant depended upon the underlying purpose and the objects of the Act, but in my opinion that is not a helpful exercise in this case. I think that the true answer to this question depends upon the context in which the word "property" is to be found in a provision of the Act. In some cases, it may appear to be clear that the word was intended to refer to the physical property; in other cases, it may be clear that it was intended to refer only to a legal or equitable interest in the property; and in yet other cases, it may appear to refer to both.

DPP v Green [2010] NTSC 16

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