Moran, Lewis, Re the deemed conviction of [2004] VSC 421 (26 October 2004)

Supreme Court of Victoria|2004-10-26|Before: TEAGUE J

Criminal law - Confiscation of profits - Person charged with automatic forfeiture offences - Person died before charges finally determined - Application for order for deemed conviction - Considerations affecting the review of the evidence

This is an application made by the Director of Public Prosecutions (Victoria) ("the DPP") under the Confiscation Act ("the "). The application is first, to have the defendant Lewis Desmond Moran ("Moran") for the purposes of the deemed to be convicted of the offences with which he has been charged and secondly, to have a date of conviction declared for the purposes of automatic forfeiture of restrained property. The application is made pursuant to , (1)(d) and (3) of the .

So far as is relevant to this application, the Act provides as follows:

(1) For the purposes of this Act, a person is deemed to have been convicted of an offence if-

(d) the person has been charged with the offence but, before the charge is finally determined, the person absconds.

(2) For the purposes of this Act, a person who, because of sub-section (1), is deemed to have been convicted of an offence, is deemed to have committed that offence.

(1) For the purposes of this Act, a person is deemed to abscond if-

(a) the person is charged with an offence but dies without the charge having been determined;

(d) a court makes an order that the evidence is of sufficient weight to support a conviction for the offence.

35. Automatic forfeiture of restrained property on conviction of certain offences

(a) a person is convicted of an automatic forfeiture offence; and

(b) a restraining order is or was made under Part 2 in respect of property for the purposes of automatic forfeiture in reliance on--

(ii) the charging or proposed charging of the defendant with that offence or a related offence that is an automatic forfeiture offence; and

the restrained property1 is forfeited to the Minister on the expiry of 60 days after--

(2) If, within the period of 60 days referred to in sub-section (1), an application has been made for an exclusion order under section 22 in respect of restrained property, the property is forfeited to the Minister--

(a) if the application is refused or dismissed, at the end of the period during which the person may appeal against the refusal or dismissal or, if such an appeal is lodged, when the appeal is abandoned or finally determined without the order having been made; or

(b) if the application is withdrawn or struck out, on that withdrawal or striking out.

(3) If a person is, by reason of section 4(1)(d), deemed to have been convicted of an automatic forfeiture offence, the DPP may apply to the Supreme Court or the County Court for an order declaring the date of conviction for the purposes of this section.

(4) On an application under sub-section (3), the court must not make an order declaring the date of conviction of a person of an automatic forfeiture offence unless it is satisfied that the person has absconded."

Any question of fact to be decided by a court on an application under this Act is to be decided on the balance of probabilities.

On 25 October 2002, Moran was charged with four charges of trafficking in a drug of dependence being not less than a commercial quantity as a result of an investigation by the Major Drug Investigation Division code-named "Operation Ferry". These offences are "automatic forfeiture" offences as defined by Item 1A of Schedule 2 of the current Act and Item 1 of Schedule 2 in Reprint No.1 of the Act, which was in force at the time Moran was charged with these offences. Moran was also charged with trafficking in a drug of dependence (1 charge), possession of substances for the purposes of trafficking in a drug of dependence (2 charges), conspiracy to traffick a drug of dependence (3 charges), possession of a drug of dependence (4 charges), possession of an unregistered handgun (1 charge), being an unlicensed person failing to store firearms in a secure manner (1 charge), and possession of ammunition without a licence (1 charge). These offences are "forfeiture offences" as defined by Item 1 of Schedule 1 of the Act.

The "automatic forfeiture" offences with which Moran was charged relate to his trafficking commercial quantities of amphetamines, tetrahydrocannabinol, methylenedioxymethylamphetamine and pseudoephedrine between 1 April 1998 and 2 April 2002 ("the automatic forfeiture offences"). Tetrahydrocannabinol is commonly contained in hashish. Pseudoephedrine is an ingredient used in the manufacture of amphetamine. Methylenedioxymethylamphetamine is more commonly known as ecstasy. It is referred to in different sources in somewhat different forms, including: 3,4-Methylenedioxy-N-methylamphetamine (MDMA) and 3,4-Methylenedioxymethylamphetamine. As to legislation, compare Schedule 11 of the Drugs Poisons and Controlled Substances Act 1981 (Reprint No.5), ("the DPSC Act") and Schedule 6 to the Customs Act 1901 (Cth). In R v Carey, [1998] 4 VR 131 at 14, Winneke P referred to:"...the narcotic substance methylene-dioxy-methylamphetamine, popularly known as "ecstasy". In R v Marshall [2000] VSCA 167, it is referred to as 3,4-methylene-dioxymethamphetamine (Ecstasy). In several later cases, MDMA is used as convenient shorthand for ecstasy. In these reasons I will refer to it as ecstasy or MDMA.

The charges were laid pursuant to s.71(1) of the DPSC Act. S.71(1) has been repealed and substituted since the charges were laid. It continues to operate in respect of the automatic forfeiture offences and for the purposes of this application. It provides as follows:

(1) A person who without being authorized by or licensed under this Act or the regulations to do so trafficks or attempts to traffick in a drug of dependence is guilty of an indictable offence and liable-

(a) where the court is satisfied beyond reasonable doubt that the offence is committed in relation to a quantity of a drug of dependence that is not less than the commercial quantity applicable to that drug of dependence-

(i) to level 2 imprisonment (25 years maximum); and

(ii) in addition to imprisonment, to a penalty of not more than 2500 penalty units; or

(ab) where the court is satisfied beyond reasonable doubt that the offence committed involved trafficking or attempting to traffick to a child in relation to a quantity of a drug of dependence that is less than the commercial quantity applicable to that drug of dependence, to a penalty of not more than 2400 penalty units or level 3 imprisonment (20 years maximum) or both; or

(b) in any other case - to a penalty of not more than 1000 penalty units or to level 4 imprisonment (15 years maximum) or to both that penalty and imprisonment."

The main elements of a trafficking offence under s.71(1) are:

(1) a person must traffick or attempt to traffick in a drug of dependence; and (2) the quantity of the drug of dependence must be the commercial quantity applicable to that drug of dependence.

"Traffick" in relation to a drug of dependence is defined in s.70 of the DPSC Act , and includes:

(a) prepare a drug of dependence for trafficking; (b) manufacture a drug of dependence; or (c) sell, exchange, agree to sell, offer for sale or have in possession for sale, a drug of dependence.

The "commercial quantities" applicable to the drugs of dependence which Moran was charged with trafficking are defined in Schedule 11 of the DPSC Act as follows:

PURE MIXED (Quantity of mixture of substance and drug of dependence)

On 14 November 2002 in the County Court of Victoria at Melbourne, Judge Holt made a restraining order pursuant to s.18 of the Act over Moran's National Australia Bank Account/Term Deposit and shares held by Moran in AMP. On 12 February 2003, Judge Holt made a further restraining order pursuant to s.18 of the Act over the property situated at 36 Langs Road, Ascot Vale and more particularly described in Certificate of Title Volume 04666 Folio 140, and all other property of Moran including property acquired after the making of the restraining order.

On 31 March 2004 Moran was shot dead. He died before the charges of trafficking a commercial quantity of a drug of dependence were finally determined, and before he was committed to stand trial.

Section 4 of the Act identifies four sets of circumstances in which, for the purposes of the Act, a person is deemed to have been convicted of an offence. One is where the person has been charged with the offence but, before the charge is finally determined, the person has absconded. Section 5 defines the circumstances in which a person is deemed to have absconded. One is where the person is charged with an offence but dies without the charge having been determined, and a court makes an order that the evidence is of sufficient weight to support a conviction for the offence.

The issue before the Court is whether the evidence relied on by the DPP is "of sufficient weight to support a conviction" against Moran in respect of the four charges as to automatic forfeiture offences. A "deemed conviction" pursuant to ss.4(1)(d) and 5 of the Act is made solely for the purposes of the Act, namely, making provision in relation to forfeiture of property. The deeming provisions in the Act are solely a legal fiction. That is made clear by the words in s.4 of the Act: "a person is deemed to have been". The conviction is made solely "[f]or the purposes of this Act". An order under s.5(d) therefore does not have the consequence, in fact or law, that Moran has been convicted of the offences.

The High Court of Australia in Silbert v. DPP (W.A.) [2004] HCA 9 recently considered a similar deeming provision in the Crimes (Confiscation of Profits) Act 1998 (WA). In Silbert, Kirby J made the following comments:

"...the Act does not, in fact or law, provide that the deceased is `convicted' of a criminal offence, serious or otherwise. On its face, the Act does not involve an impermissible determination of criminal guilt or liability to criminal punishment as such..." [41] "...The `conviction' is not entered on the person's criminal record, if any. Instead, the expression has been used solely as a legal fiction, a shorthand expression of statutory drafting..." [42] "...The Act makes it clear that the fiction is limited. It is only `for the purposes of this Act'. It is not a `conviction' for larger and different purposes of criminal justice and punishment. Of its nature, a legal fiction usually involves acceptance that, in truth and for other purposes, what `is to be taken to have been' the case is not in fact so. Accordingly, the limited operation of the impugned provisions is plain. They do not oblige a court, contrary to the truth, to find facts or to adjudge a person criminally guilty on the basis of a legislative conclusion that is not judicially examinable". [43] "...the deeming provisions in the Act...are no more than devices used to identify persons of a class against whom applications under the Act may be made. They have no other effect. In particular, they do not have the effect of making a `binding and authoritative' decision for other and different judicial purposes". [45]

Under s.132 of the Act, any question of fact to be decided by a court on an application under this Act is to be decided on the balance of probabilities. It has been submitted to me by the DPP that a court, called on to make an order under s.5(d) that the evidence is of sufficient weight to support a conviction for the offence is making such a decision. That submission troubles me.

It was because of my being troubled as to an issue of that kind that I caused certain steps to be taken in relation to this matter. In short I wanted to see if it was possible to obtain a suitable contradictor. The matter first came on for hearing before me by way of mention on 17 June 2004. There were five mentions thereafter. On two occasions, a representative of the Victorian Bar attended. On three occasions, a representative of Victorian Legal Aid attended. On all six occasions, representatives of Judith Moran and Desmond Moran attended. Judith and Desmond Moran are respectively the widow and brother of Lewis Moran. There were issues raised as to costs, to which I will briefly refer later. A written submission was put before me prepared by Mr Hannebery of counsel on behalf of Desmond Moran. Mr Hannebery submitted that, on an application of this kind, the Court should establish a process for the rigorous and public examination of the evidence. He submitted that the test under s.5(d) was higher than that faced by a magistrate in deciding whether or not to commit for trial, that the evidence had to be such that a jury probably would convict.

I was referred by Mr Hannebery to these further passages of what Kirby J had said in Silbert:

"...the outcome of an application made under the Act remains to be determined by a court in accordance with the normal procedures of a court, decided by independent judicial officers, applying rigorous standards of proof". [47] "...the legislation bears numerous normal hallmarks of judicial assessment, discretion, judgment and reconsideration. It has judicial substance. It does not impose on judges functions that make them effectively the agents of the other braches of government".[48]

Does the test under s.5(d) require the court to make a decision on a question of fact, so that the decision is made on the balance of probabilities? Alternatively, is the decision one that is not as to a question of fact, but, like the decision of a magistrate as to whether or not to commit for trial, amounts to an expression of opinion as to whether the evidence is or is not sufficient to place the person on trial? See Potter v Tural [2000] VSCA 227; (2000) 2 VR 612 at 618 [20]. If what is required is the forming of an opinion, is it as to whether the jury probably would convict, or is it as to some other question? I do not have to form a concluded view. These matters have not been argued before me. Because of the strength of the evidence presented to me, I am satisfied that even if the test were: "Would the jury probably convict?", the answer would be yes.

I come back to the circumstance that I have been troubled about, that I lacked a contradictor beyond the helpful but limited role exercised by those, like Mr Hannebery, who appeared briefly before me on the various mention hearings. Throughout the mention hearings, I tried to check that any person potentially having an interest was contacted, and was given the opportunity to consider the hand up brief and to make submissions. If this had been an appropriate case in which to more rigorously test the evidence, and to do so in a public way, a process permitting cross-examination akin to a committal hearing might well have been justified. Despite my encouragement of appropriate contradicting help, it was left to me to review the material in the hand-up brief. The material consisted of statements and transcripts that had to be thoroughly read, and videotapes and photographs that had to be carefully watched and perused. I asked to be provided with a draft judgment, and I am grateful that my request was accommodated. That was done to save some time, and not to reduce the rigor of the examination of the evidence. The author of the draft judgment is not known to me, but I express my gratitude to him or her. The author will have noticed significant changes in substance and in form in the final product.

There is a troubling difficulty as to the matter of costs. On this application, I will be making no order as to costs. There are two reasons for that. The first is that I have not been asked to make any order. The second is that there is at least doubt as to my having the power to do so, even if I considered it desirable to do so. Section 133A sets out a regime as to costs for applications made under the Act. In limited circumstances, which do not include an application of the kind made by the DPP here, a costs order can be made under the Act. Otherwise, s.133A(1) provides that costs may only be awarded in accordance with the section. I would have thought that there would normally be good grounds for not limiting the usual discretion. In various circumstances, that could serve to support the making of a rigorous but focused examination of the evidence. A focused contradictor could be compensated. An unfocused objector could be penalised. However, s.133A(4) provides that the court can exercise its discretion as to the amount of costs (my emphasis). The presence of a provision preserving a limited aspect of the discretion tends to give added weight to the conclusion that the usual discretion as whether to award costs is removed.

The consequence of Moran being deemed to have been convicted of an automatic forfeiture offence is that the automatic forfeiture provisions of the Act apply. Under s.35 of the Act, the restrained property of Moran that is not subject of an exclusion order under s.22 will be forfeited to the Minister on the expiry of 60 days after Moran's deemed conviction. With automatic forfeiture offences, the whole of the property is to be forfeited. Section 35(1) speaks only of "the restrained property". With forfeiture offences, the court may, under s.33(1) of the Act, order that the tainted property or such of the tainted property as is specified by the court in the order be forfeited to the Minister. No such discretion arises with respect to automatic forfeiture offences.

Subject to any application for exclusion, the following property of Moran that is subject to restraining orders is sought to be forfeited by way of the automatic forfeiture procedure: (1) National Australia Bank Account/Term Deposit in the name of Moran; (2) Shares in AMP held in the name of Moran; (3) Property at 36 Langs Road, Ascot Vale, more particularly described in Certificate of Title Volume 04666 Folio 140; and, (4) All other property of Moran including property acquired after the making of the restraining order on 12 February 2003.

No application for exclusion has yet been made in relation to the restrained property. An application for exclusion pursuant to s.22(b) of the Act may be made by Desmond and Judith Moran or any other person who has property affected by the restraining orders made in this matter provided that they do so before the expiry of 60 days after Moran's deemed conviction of the automatic forfeiture offences. Under s.132 of the Act, the onus of proving that the property should be excluded from the operation of the restraining orders is on the person making the application, and the standard of proof is on the balance of probabilities. Where, in respect of an automatic forfeiture offence, the application is made by a person other than the defendant, then pursuant to the provisions of s.22(b) it is clear that the court can take into account a significant number of other factors in the exercise of its determination as to whether property should be excluded from the operation of the restraining orders. If an applicant is unable to satisfy the court of the matters with which it must be satisfied pursuant to s.22(b) of the Act, then the restrained property will be forfeited to the Minister in accordance with s.35.

Before I turn to the provision of a summary of the evidence sought to be relied on by the DPP, I would note that the targets of the police operation called "Operation Ferry" were Moran and seven others. I sought information from the DPP as to the position with respect to the seven. I was informed: that four had pleaded guilty to one or more drug offences, and been sentenced; that one has had a committal hearing and is awaiting trial; that one has a committal hearing listed for January 2005; and, that the seventh was discharged at committal. I have reviewed the sentencing comments of Judges Anderson and Wilmoth as to the four sentenced, in addition to the materials in the brief that related to the seven. I am satisfied that there is nothing there that warrants my referring to the other seven, save indirectly in the context of a review of the evidence against Moran.

The evidence against Moran was accumulated in the course of a major police investigation into the trafficking of amphetamine, cocaine, MDMA, hashish, pseudoephedrine and the manufacture of amphetamine. During the course of the investigation two registered police informers, to whom I will refer after this as SCS and Brickell, conducted evidentiary purchases of amphetamine, hashish, cocaine and ecstasy directly from Moran during a large number of meetings with Moran. A large proportion of these meetings are audio recorded and the subject of both video footage and physical surveillance. A number of telephone intercepts were also effected by the police.

Brickell also undertook the controlled delivery of red phosphorous and 151,200 pseudoephedrine based Logicin brand tablets to Moran. Red phosphorus is, like pseudoephedrine, an ingredient used in the manufacture of amphetamine. In return for these Logicin tablets Moran undertook to supply Brickell with a large quantity of amphetamine manufactured from them.

The evidence against Moran in relation to the charges is contained in a 2,305 page hand up brief prepared by Victoria Police. A summary of the evidence against Moran in relation to each of the four automatic forfeiture offences with which he was charged follows:

1. Traffick a commercial quantity of amphetamine between 01/04/98 and 01/04/99

In mid 1998 Brickell and an associate Terry Blewitt were purchasing amphetamine from a person in the Melbourne area. Brickell was subsequently introduced to Moran as being that person's supplier. Brickell started purchasing amphetamine directly from Moran. Between July 1998 and March 1999 Brickell purchased 10 pounds of amphetamine, half a pound of cocaine, 2,000 LSD tickets and 100 ecstasy tablets from Moran. Brickell paid Moran a total of $522,200.00 cash for these drugs during this period. These transactions were conducted at locations in and around the Ascot Vale area principally and in particular the J.J. Holland Reserve, Kensington Road, Kensington. Several of these meetings were observed by surveillance personnel. On 22 January 1999 Moran supplied Brickell with a package containing a half pound (227 grams) of amphetamine. On 25 January 1999 Brickell paid Moran money as part payment for the amphetamine supplied on 22 January 1999. On 3 February 1999 Brickell met Moran in Bourke Street, Melbourne and made further payments to Moran for the amphetamine supplied on 22 January 1999. The evidence establishes that, between 1 April 1998 and 1 April 1999 Moran trafficked 4.5 kilograms (10 pounds) of amphetamine which is a "commercial quantity" as defined by the _DPSC Act_1981.

2. Traffick a commercial quantity of tetrahydrocannabinol between 06/12/00 and 08/12/00

On 6 December 2000 an audio recording device worn by SCS captured a discussion between SCS and Moran on that day during which Moran agreed to sell 10 kilograms of hashish to SCS for $2,500.00 per kilogram. This is a "commercial quantity" as defined by the DPSC Act. On 7 December 2000 police intercepted a telephone call by Moran to SCS during which Moran indicated that the hashish was available. About one hour later, SCS attended at Moran's home. Moran then drove SCS's motor vehicle to a unit in Roberts Street, Essendon before returning home a short time later. Audio recorded evidence reveals that Moran told SCS that the hashish was in the front of the vehicle. SCS found a black Reebok Sports bag on the floor in the front passenger seat. SCS subsequently met with police investigators who found it to contain 10 packages wrapped in packaging tape. Analysis of the contents of these packages on 8 December 2000 revealed that each package weighed approximately 1 kilogram and contained layers of hashish. The total weight of the 10 packages of hashish was 9966.6 grams. Analysis revealed that it contained tetrahydrocannabinol at a purity of 3%. On 8 December 2000 SCS attended at Moran's home and handed to Moran a newspaper with an envelope containing $25,000.00 cash for the hashish he had purchased on 7 December 2000. Moran and SCS exited the premises and were video recorded walking in Washington Street during which discussion ensued regarding the availability of more hashish.

On 26 June 2001 Moran and Brickell attended at the intersection of The Parade and Union Road, Ascot Vale. There, Moran told Brickell that he had sold some hashish to SCS and that, when SCS paid for it he had stated that the hashish had been changed. When Brickell asked what the hashish looked like, Moran replied that it was in wafers or layers and wrapped in paper. Moran stated that it started off at $9,000.00 a kilogram and that it smoked really good. The description of the hashish sold to SCS given by Moran to Brickell is an accurate description of the 10 packages of hashish obtained from SCS by investigators on 7 December 2000. On 28 August 2001, Moran met Brickell at the park in Ascot Vale. There, he told Brickell that he had sold 10 kilograms of hashish to SCS for $25,000.00 at a price of $2,500.00 per kilogram. Moran further stated that the police did not see him hand the hashish to SCS because he gave it to him at his house.

3. Traffick a commercial quantity of MDMA between 30/07/01 and 10/09/01

On 27 July 2001 Moran met Brickell at the Laurel Hotel. There, he offered to sell to Brickell imported ecstasy tablets. Brickell placed an order for 1,000 of these tablets. Arrangements were made to meet on 30 July 2001.

On 30 July 2001 video footage was taken of Brickell meeting Moran at a park in Ascot Vale and both of them getting into a Ford sedan vehicle driven by a Graham Kinniburgh. In the vehicle Moran handed to Brickell a burgundy and grey coloured sock which contained tablets, assumed to be ecstasy tablets, embossed with a star logo in a plastic bag. These ecstasy tablets were supplied to Brickell on credit for $18,000.00 cash. Brickell subsequently met with police investigators on 30 July 2001 and handed them the burgundy and grey sock and the tablets therein. On 31 July 2001 the tablets were analysed at the Victoria Forensic Science Centre. There were found to be 989 tablets. They were found to weigh 252.3 grams and to contain MDMA with an approximate purity of 15%.

On 1 August 2001 in Middle Street, Ascot Vale Brickell handed to Moran $8,000.00 cash in a paper bag as part payment for the ecstasy tablets that were supplied by Moran on 30 July 2001. Moran and Brickell arranged to meet again on 6 August 2001 for Brickell to pay the remainder of the $10,000.00 that he owed Moran for the ecstasy tablets supplied on credit on 30 July 2001. On 6 August 2001 Brickell attended at Middle Street, Ascot Vale and placed $26,000.00 cash in the driver's door compartment of Moran's vehicle. That was the balance owed to Moran for the ecstasy tablets and for cocaine supplied on 30 July 2001. Brickell also placed an order with Moran for 1,000 ecstasy tablets. On 13 August 2001 Moran met Brickell in Middle Street, Ascot Vale and handed to Brickell a burgundy sock containing tablets, assumed to be ecstasy tablets, and 2 packages containing 4 ounces of powder, assumed to be cocaine. Moran supplied these tablets to Brickell on credit for $16,200.00. Brickell subsequently met with police investigators on 13 August 2001 and handed to them the burgundy sock containing tablets. On 31 August 2001 the tablets were analysed at the Victoria Forensic Science Centre. There were found to be 902 tablets. They were found to weigh 230.3 grams and to contain MDMA with a purity of 20%.

On 20 August 2001 Moran met Brickell at the park in Ascot Vale and offered to sell to Brickell 10,000 ecstasy tablets on credit. Brickell placed an order for 5,000 ecstasy tablets instead. Brickell then placed $8,000.00 cash into the door compartment of the driver's door of Moran's vehicle. On 23 August 2001 Moran met Brickell in Middle Street, Ascot Vale and handed to Brickell a black Myer bag. Brickell placed the Myer bag and its contents in his vehicle. Brickell subsequently met with police investigators and handed to them the Myer bag. It contained tablets assumed to be ecstasy and packages of powder assumed to be cocaine. The ecstasy tablets were supplied by Moran to Brickell on credit for $90,000.00. On 28 August 2001 at the park in Ascot Vale Brickell paid to Moran $24,200.00 cash being the balance owed to Moran for the cocaine and ecstasy tablets supplied by Moran on 13 August 2001. On 31 August 2001 the tablets supplied on 23 August 2001 were analysed at the Victoria Forensic Science Centre. There were found to be 5,055 tablets. They were found to weigh 1,265 grams, and to contain MDMA with a purity of 25%. The quantity is significantly more than the bottom limit of "commercial quantity" as defined by the DPSC Act. On 7 and 10 September 2001 Brickell met Moran in Middle Street, Ascot Vale and paid to Moran $11,000.00 and $8,000 cash respectively as part payment for the 8 ounces of cocaine and 5,055 ecstasy tablets supplied by Moran on 23 August 2001. The total weight of the tablets analysed as containing MDMA was 1748.1 grams. The quantity is significantly more than the bottom limit of a "commercial quantity" as defined in the DPSC Act.

4. Traffick a commercial quantity of pseudoephedrine between 28/06/01 and 02/04/02

Between 28 June 2001 and 2 April 2002 numerous discussions were held between Brickell and Moran regarding the supply of the Logicin tablets, the pseudoephedrine extraction process and the manufacture of amphetamines. On 6 August 2001 Moran accepted the controlled delivery of 35 shipper boxes of Logicin tablets from Brickell for the purposes of extracting the pseudoephedrine from the Logicin tablets and converting it to amphetamines. Each shipper box contained 144 packets totaling 5,040 packets. Each packet contained 30 tablets totaling 151,200 tablets. Each tablet contained a quantity of 60 milligrams of pseudoephedrine hydrochloride totaling 9.072 kilograms of pseudoephedrine hydrochloride. This is a "commercial quantity" as defined in the DPSC Act. Video footage taken on 6 August 2001 reveals the handover of the Logicin tablets to Moran by exchanging motor vehicles with Brickell and both vehicles being driven away. Moran suggested that they swap vehicles in order for him to convey the tablets in one trip due to the size difference in their vehicles.

On 6 August 2001 at 1.25 p.m. Moran delivered the Logicin tablets in Brickell's vehicle to a flat in Essendon. Between 3.52 p.m. and 3.59 p.m. Moran and an in-law were observed attending in Moran's vehicle outside the Essendon flat and driving off with a number of shipper boxes on the back seat of the vehicle and in the boot compartment of the vehicle, which were revealed when the boot lid sprung open. These boxes were identical to the ones that were given to Moran by Brickell earlier that day. At 4.04 p.m. after dropping the in-law off at the Moonee Valley Tabaret and collecting an unidentified passenger, surveillance contact of Moran's vehicle was lost. The monitoring device installed on Moran's vehicle revealed that the vehicle attended in Kensington. When surveillance resumed at 4.15 p.m., Moran was observed to be the sole occupant of the vehicle and there were no shipper boxes of Logicin tablets sighted on the back seat. It is reasonable to infer that AV entered Moran's vehicle with Moran at the Tabaret, and directed Moran to the rear of AV's premises in Kensington, and that then AV took possession of the first delivery of Logicin tablets. At 4.30 p.m. Moran was observed attending the Essendon flat again and departing from this address with a number of shipper boxes on the rear seat of his vehicle. At 4.52 p.m., Moran's vehicle was observed reverse parking into a laneway in Kensington. At 4.57 p.m. Moran was observed departing from this location with no shipper boxes of the Logicin tablets observed in the vehicle at this time. On 7 August 2001 between 9.16am and 9.42am Moran was observed to attend at the rear of AV's premises on two occasions to deliver to AV a total of 13 shipper boxes of Logicin tablets The shipper boxes were observed to be collected from AV's premises during that day by other persons.

During a meeting with Brickell on 2 April 2002 after the seizure by police of an amphetamine laboratory in Moonee Ponds, Moran informed Brickell that he would not supply the amphetamine manufactured from the Logicin tablets to Brickell despite his earlier promise to do so in exchange for the Logicin tablets that Brickell supplied to Moran. Moran said that that was because the laboratory had been seized by police and the `cook' arrested.

The evidence summarized above establishes that Moran trafficked commercial quantities of amphetamine, hashish, ecstasy and pseudoephedrine on numerous and various occasions between April 1998 and April 2002 in contravention of s.71(1) of the DPSC Act.

I am satisfied that the evidence against Moran is of sufficient weight to support a conviction in respect of the four charges of trafficking in a drug of dependence being not less than a commercial quantity for the purposes of the Act. Under s.4(1)(d) of the Act, Moran is deemed to be convicted of the automatic forfeiture offences solely for the purposes of the Act. Under s.35 of the Act the restrained property of Moran that is not subject of an exclusion order under s.22 will be forfeited to the Minister on the expiry of 60 days after Moran's conviction. Further, a "deemed conviction" will enable the DPP to apply to the court for a pecuniary penalty order pursuant to s.58(1) of the Act in relation to the value of the benefit derived by Moran as a result of the commission of the automatic forfeiture offences. The value of the benefits derived such as money he received as a result of trafficking the drugs of dependence, is to be assessed in accordance with either s.67 or s.68 of the Act. As noted earlier, any potential claimant or claimants to the restrained property may bring an application for exclusion pursuant to s.20 of the Act. An exclusion order may be made pursuant to s.22 of the Act

I am satisfied that the following orders should be made:

1. It is ordered, under s.5(1)(d) of the Act, that for the purposes of the Act, the evidence against Moran is of sufficient weight to support a conviction against him on each of four charges of trafficking in a commercial quantity of a drug of dependence.

2. It is declared, under s.35(3) of the Act, that the date of conviction for the purposes of s.35 is the date on which these orders are made.

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Judgment (77 paragraphs)

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