New South Wales Crime Commission v Pettit

Supreme Court of NSW|2021-02-26|Before: Ierace J, Davies J

Solicitors: New South Wales Crime Commission (Plaintiff) John D Weller & Associates (Defendant) File Number(s): 2019/177123

Judgment

HIS HONOUR: By summons filed on 6 June 2019, the plaintiff, the New South Wales Crime Commission, brought confiscation proceedings against the defendant, Maxwell Pettit, pursuant to the Criminal Assets Recovery Act 1990 (NSW) ("the CAR Act") seeking, inter alia, the following orders: 1. a restraining order pursuant to s 10A of the CAR Act in respect of "any interest in property" of the defendant, including his interest in a property at Hopkins Creek, New South Wales ("the Hopkins Creek property"); and 2. an assets forfeiture order pursuant to s 22 of the CAR Act in respect of the defendant's interest in the Hopkins Creek property, being property suspected of being an available interest relating to "serious crime use property", as defined under s 9B of the CAR Act ("the proposed forfeiture order").

Factual history

On 7 February 2019, whilst conducting aerial patrols over Hopkins Creek in northern New South Wales, police observed a large number of cannabis plants growing at the rear of the Hopkins Creek property. Senior Constable Paul Barringer was notified and attended the location shortly after. He introduced himself to the defendant, who stated his name and confirmed that he was the owner of the property.
Senior Constable Barringer told the defendant that he had received information that there were cannabis plants growing at the back of the property. In an exchange described by the sentencing judge as one of "remarkable frankness", the defendant replied, "Yep, I'll show you". The defendant then escorted the officer to the relevant part of the property, at which the officer observed a crop of cannabis plants. Senior Constable Brett Crossan, who joined Senior Constable Barringer, described the crop as "many very large cannabis plants over 2 metres in height in large pots". The defendant drew the attention of the police to 147 cannabis seedlings in small pots about 20m away, which he admitted were his.
Senior Constable Crossan questioned the defendant, the exchange being captured on his body camera. The defendant confirmed that he was the sole owner of the property and gave police permission to enter and search it. The questioning continued: "Crossan: … we are down the back of your property, and there is obviously a plantation, that we believe is cannabis. Do you agree? How many plants are across from here …? [The defendant]: Just over 100. About 100, 102. Crossan: And do you know how they got here? [The defendant]: Yeah I planted them. Crossan: You planted them? [The defendant]: Yeah. Crossan: And how did they grow mate? What did you do to them? [The defendant]: I watered them, fed them. Crossan: What did you feed them with? [The defendant]: Fertilizer. Crossan: Where did you get the water to water them? [The defendant]: Out of me dam. Crossan: Is that through a pump or? [The defendant]: Yeah I pump it up the hill and it comes downhill."
The police executed a search warrant, seizing a total of 257 cannabis plants, 110 of which were over 2m in height. Police estimated the value of the plants to be more than $500,000.
The defendant was arrested and conveyed to Tweed Heads Police Station where he was charged with one count of cultivating not less than the commercial quantity of a prohibited plant contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW) ("the DMT Act"). I note that, at the time, the minimum number of cannabis plants for a commercial quantity was 250, pursuant to Sch 1 of that Act. A large commercial quantity was 1,000 plants.
A notice of sale annexed to the affidavit of Ms Bourne revealed that the defendant purchased the Hopkins Creek property, which is 8.37ha in size, in 2010 for $525,000. A title search annexed to the same affidavit confirmed that the defendant is the sole owner of the property. He informed police that he was the sole resident.
Following a plea of guilty, the defendant was convicted and sentenced in the District Court at Lismore on 6 December 2019 ("the offence") by his Honour Judge Priestley SC ("the sentencing judge").
The sentencing judge assessed the objective seriousness of the offending conduct to be in the low range. His Honour stated: "… I take into account that but for seven or eight plants, the charge would have been the lesser charge. That is not to say this offence has not been committed at all, but it does reflect a matter to take into account in assessing objective seriousness … There is no suggestion of any other form of cultivation other than planting these plants and presumably watering them. There is no suggestion of indoor hydroponics. There is no real reference in the facts to any form of equipment. In total there was 257 of them, as I have said; 110 were large, ranging in size between five and ten feet and 147 smaller plants, but they all had root systems attached which was hardly surprising given they are plants. What is not in the facts … is any description of any sophistication in terms of equipment or organisation … there is no cultivation equipment or pressing equipment or cutting equipment or plastic bags or scales. There is a total lack of sophistication."
The sentencing judge noted that the defendant, who was then aged 61, had been a heavy cannabis user, reportedly smoking "up to 100 cones of marijuana a day" at one point in his life. His Honour also noted that the defendant's criminal record included repeated low-level offending involving cannabis but that he had been a law-abiding citizen for the previous 16 years. In light of this, the sentencing judge stated: "I am not suggesting that this was all personal use but it certainly argues against this being some sophisticated, clever organisation for profit … although I do not discount the prospect that he has been using the plants to do other things, but on a very low level scale. Whether it be by bartering or some other method."
The defendant was sentenced to 2 years imprisonment with a non-parole period of 9 months and 29 days, backdated to commence on 8 February 2019, being the day following his arrest, over which period he had been held on remand. The sentence expired on 7 February 2021. [1]

Procedural history

By summons filed on 6 June 2019, the plaintiff made an ex parte application to this Court seeking, relevantly, the following orders: "1. An order pursuant to section 10A of [the CAR Act] that no person (other than any registered mortgagee dealing with its right to do so under the registered mortgage) is to dispose of, or attempt to dispose of, or otherwise deal with or attempt to otherwise deal with any interest in property (within the meaning of 'interest in property' as defined in section 7 of [the CAR Act]) of [the defendant], including the interests in property … specified in Schedules One and Two hereto. … 5. An order pursuant to section 22 of [the CAR Act] forfeiting to, and vesting in, the Crown the interest in property of [the defendant] in the property specific in Schedule One hereto, being an interest in property of [the defendant] suspected by an authorised officer, at the time of this application, of being an available interest relating to serious crime use property (within the meaning of 'serious crime use property' as defined in section 9B of [the CAR Act]). 6. An order pursuant to section 28A of [the Act] that [the defendant] pay to the Treasurer an amount assessed by the Court as the value of the unexplained wealth of [the defendant]. … 8. An order pursuant to section 101 of the Civil Procedure Act 2005 for interest. … 10. An order for costs."
Schedule 1 to the summons provided: "The whole of the property described as Lot 2 in [redacted], Local Government Area of Tweed, Parish of Chillingham, County of Rous, also known as [the Hopkins Creek property] and registered in the name of [the defendant] as sole owner."
Schedule 2 listed the defendant's interest in a motor vehicle and funds held in two Commonwealth Bank accounts in the defendant's name.
The summons was supported by the affidavit of Ms Bourne who deposed to a suspicion that the defendant had engaged in a "serious crime related activity" on the basis of the police facts sheet which was annexed to her affidavit.
As noted, the matter was heard ex parte before Davies J on 6 June 2019: New South Wales Crime Commission v Pettit [2019] NSWSC 675. In accordance with s 10A of the CAR Act, Davies J made a restraining order which took immediate effect in the terms set out at order 1 of the summons, reproduced at [15] above, as well as ancillary orders requiring examination on oath of the defendant in relation to his interests in property which are subject to the restraining order.
On 4 August 2020, the defendant filed a notice of motion seeking the following orders, as amended following a grant of leave at the hearing: "1. … 2. An exclusion order excluding [the plaintiff's] interest from the operation of [the plaintiff's] pending forfeiture order and current restraining order in paras 1 and 5 of the Summons dated [4 June 2019] in respect to property described as [the Hopkins Creek property] and registered in the name of [the defendant] as sole owner. Such application for the forfeiture order sought by [the plaintiff] in para 5 of its Summons aforesaid is in reliance on ss 9B,22,25(3A) of [the CAR Act]. 3. n the alternative an order for a declaration that the Hopkins Creek property is not serious crime use property within the meaning of 'serious crime use property' as defined in s 9B(1) of [the CAR Act] because [the defendant] did not use the Hopkins Creek property in or in connection with serious crime related activity because the cultivation of all the Indian Hemp plants were in movable pots and thus not fixtures and therefore as a matter of construction the property was not used in or connection with serious crime related activity within the meaning of s 9B of [the CAR Act]."

The CAR Act

The CAR Act provides for the confiscation or recovery of interests in property of a person who has engaged in "serious crime related activities", as well as, in some instances, the confiscation or recovery of interests in property that have been illegally or fraudulently acquired.
Its principal objects, as expressed in s 3, are as follows: "3 Principal objects The principal objects of this Act are: (a) to provide for the confiscation, without requiring a conviction, of property of a person if the Supreme Court finds it to be more probable than not that the person has engaged in serious crime related activities, and (a1) to enable the current and past wealth of a person to be recovered as a debt due to the Crown if the Supreme Court finds there is a reasonable suspicion that the person has engaged in a serious crime related activity (or has acquired any of the proceeds of any such activity of another person) unless the person can establish that the wealth was lawfully acquired, and (b) to enable the proceeds of illegal activities of a person to be recovered as a debt due to the Crown if the Supreme Court finds it more probable than not the person has engaged in any serious crime related activity in the previous 6 years or acquired proceeds of the illegal activities of such a person, and (b1) to provide for the confiscation, without requiring a conviction, of property of a person that is illegally acquired property held in a false name or is not declared in confiscation proceedings, and (c) to enable law enforcement authorities effectively to identify and recover property."
Section 10A of the CAR Act grants the plaintiff a discretionary power to make an ex parte application to this Court for a "restraining order", which is defined under s 10 as: "… an order that no person is to dispose of or attempt to dispose of, or to otherwise deal with or attempt to otherwise deal with, an interest in property to which the order applies except in such manner or in such circumstances (if any) as are specified in the order."
Section 10A relevantly provides: "10A Proceedings for restraining orders (1) Application for order The Commission may apply to the Supreme Court, ex parte, for a restraining order in respect of specified interests, a specified class of interests, or all the interests, in property of any person (including interests acquired after the making of the order). … (5) Determination of applications The Supreme Court must make a restraining order if the application for the order is supported by an affidavit of an authorised officer stating that: (a) in the case of an application in respect of an interest referred to in subsection (1) - the authorised officer suspects that: (i) the person whose interest is the subject of the application has engaged in a serious crime related activity or serious crime related activities, or … and stating the grounds on which that suspicion is based, and … and the Court considers that, having regard to the matters contained in any such affidavit and any evidence adduced under subsection (4), there are reasonable grounds for any such suspicion."
The plaintiff may apply for an "assets forfeiture order" pursuant to s 22 of the CAR Act, which relevantly provides: "22 Making of assets forfeiture order (1) The Commission may apply to the Supreme Court for an order forfeiting to, and vesting in, the Crown specified interests, a specified class of interests or all the interests, in property of a person (an assets forfeiture order). (1A) The application must specify that the interest in property is an interest in property of any one or more of the following kinds: … (d) an interest in property suspected by an authorised officer, at the time of the application, of being: (i) an available interest relating to serious crime use property, or (ii) an interest that is capable of being the subject of a substituted serious crime use property declaration in relation to the serious crime related activity concerned. (1B) An assets forfeiture order may be made whether or not an application for a restraining order relating to the interests in property the subject of the application for the assets forfeiture order has been made or granted. ... (2B) The Supreme Court must make an assets forfeiture order in respect of an interest in property if the Court finds it more probable than not that the interest is an available interest relating to serious crime use property. …"
A restraining order remains in force while an assets forfeiture order is pending before the court: s 10D. Where an assets forfeiture order is not made, the court may make an order in relation to the period for which the restraining order is to remain in force: s 20.
The term "serious crime use property" is defined under s 9B as follows: "9B Meaning of 'serious crime use property' and 'available interest relating to serious crime use property' (1) In this Act, a reference to serious crime use property is a reference to property that was used in, or in connection with, a serious crime related activity. (2) In this Act, an interest in property is an available interest relating to serious crime use property if: (a) the interest is an interest of a person who has engaged in serious crime related activity (the offender), and (b) the offender's activity resulted in the property, or any other property, becoming serious crime use property for the purposes of this Act, and (c) the property is either the serious crime use property or, if that property is not available for forfeiture as referred to in subsection (3), any other property that is the subject of a substituted serious crime use property declaration. (3) Serious crime use property is not available for forfeiture if: (a) the offender does not own, and does not have effective control of, the property, or (b) the property has been sold or otherwise disposed of or cannot be found for any other reason."
A "serious crime related activity" is defined widely under s 6(1) as: "… a reference to anything done by the person that was at the time a serious criminal offence, whether or not the person has been charged with the offence or, if charged: (a) has been tried, or (b) has been tried and acquitted, or (c) has been convicted (even if the conviction has been quashed or set aside)."
A reference to a "serious criminal offence" under s 6 includes, relevantly, offences with respect to prohibited plants contrary to s 23 of the DMT Act: ss 6(2)(b) and 6(3)(a).
A person affected by a proposed or extant forfeiture order may apply for an "exclusion order" pursuant to s 25 of the Act, to exclude the relevant interest from the operation of the forfeiture order or restraining order. Section 25 relevantly provides: "25 Exclusion from property from restraining order and assets forfeiture order (1) If an assets forfeiture order: (a) has been applied for but not made - a person whose interest in property might be subject to the order if made, or (b) has been made - a person whose interest in property was forfeited by the order, may apply to the Supreme Court for an order (in this section called an exclusion order) excluding the interest from the operation of the assets forfeiture order or any relevant restraining order. (2) The Supreme Court must not make the exclusion order applied for unless it is proved that it is more probable than not that: (a) in the case of an order relating to fraudulently acquired property - the interest in property to which the application relates is not fraudulently acquired property or is not illegally acquired property, or (b) in any other case - the interest in property to which the application relates is not illegally acquired property. (3) An exclusion order must declare the nature and extent of the interest in property to which it relates and: (a) if the interest has been forfeited to the Crown, but not disposed of - must require the Crown to vest the interest in the claimant, or (b) if the interest has been disposed of - must require payment by the Crown to the claimant of an amount declared by the Supreme Court to be the value, as at the date of the order, of the former interest of the claimant. (3A) Despite subsections (1)-(3), the Supreme Court is not to make an exclusion order if the Supreme Court finds that it is more probable than not that the property to which the application for the assets forfeiture order, or the assets forfeiture order, relates is serious crime use property or an interest in property that is capable of being the subject of a substituted serious crime use property declaration. …"
A person affected by an assets forfeiture order may also apply for "relief from hardship" under s 24 of the CAR Act where the order will operate to cause hardship to a spouse or any dependant who had no knowledge of any serious crime related activities or illegal activities of the person. In those circumstances the forfeiture order is made, but pursuant to s 24(1)(a), the court: "… may order that the dependant is entitled to be paid a specified amount out of the proceeds of sale of the interest, being an amount that the Court thinks is necessary to prevent hardship to the dependant …"
Proceedings on an application for a restraining order or an assets forfeiture order are not criminal proceedings, and the rules of construction applicable only in relation to the criminal law do not apply to the interpretation of the Act: s 5 of the CAR Act.

Legislative history

Between its inception in 1990 and 2016, the Act was subject to a number of amendments widening its application from the property of persons who have engaged in a "drug-related activity" to the property of persons who have engaged in a "serious crime related activity", or whose property has been derived from serious crime or was otherwise illegally or fraudulently acquired.
In Lee v New South Wales Crime Commission (2013) 251 CLR 196; [2013] HCA 39, Crennan J, at [95], recognised the wide reach of the Act as falling within Parliament's "legislative competence": "It cannot be doubted that deterring serious crime related activity is a matter of legitimate public interest and an important public object, and that it is within the legislative competence of the Parliament of New South Wales to deter such activity by confiscating its fruits."
In 2016, a new category termed "serious crime use property" was inserted into the Act by Sch 3 of the Criminal Legislation Amendment (Organised Crime and Public Safety) Act 2016 (NSW) ("the 2016 amendments") to enable the Court to make a forfeiture order in respect of property used in, or in connection with, a serious crime related activity: s 9B.
This would appear to be the first occasion that the 2016 amendments have been judicially considered. The second reading speech in the Legislative Council for the Criminal Legislation Amendment (Organised Crime and Public Safety) Bill 2016 was delivered by the Parliamentary Secretary for Justice, the Hon David Clarke, who explained: "Schedule 3 amends [the CAR Act] to enhance [the plaintiff's] assets confiscation powers and provide a stronger deterrent to committing serious crime. Organised criminals who use intermediaries to distance themselves from their crimes would be key targets of this legislation. Items [1] to [3] of schedule 3 insert new definitions into [the CAR Act] that are consequential to the amendments. For example, 'serious crime use property' is taken to mean property that was used in or in connection with a serious crime-related activity. Schedule 3, item [8] enables the Supreme Court to make a substituted serious crime use property declaration in respect of property of a person who engaged in serious crime-related activity if the property is unavailable for forfeiture. This means that where a criminal uses property owned by another person in the commission of a serious offence the bill will allow the court to make a 'substitution order'."
It will be noted that this paragraph, which is the only reference in the second reading speech to the schedule of amendments that affect the CAR Act (Sch 3), primarily concerned "organised criminals" who have previously avoided forfeiture orders by using property at arm's length for their criminal activities. The reference to items [1] to [3] and [8] of Sch 3 of the Bill are to the following sections of the CAR Act: [1] the definitions in s 4 of "available interest relating to serious crime use property", "serious crime use property" and "substituted serious crime use property declaration"; [2] s 9(5)(d); [3] s 9B; and [8] s 22AA. Accordingly, there is little assistance to be derived from the second reading speech as to the intended objectives of the amendments and how they are to be interpreted.

Judicial consideration of the meaning of the phrase "used … in connection with"

The phrase "used … in connection with" in the context of a forfeiture order concerning property utilised in the commission of a criminal offence, has been the subject of judicial consideration in the context of the Confiscation of Proceeds of Crime Act 1989 (NSW) ("the CPOC Act"), its predecessor, the Crimes (Confiscation of Profits) Act 1985 (NSW) and the Proceeds of Crime Act 1987 (Cth) (since repealed), as well as by interstate courts concerning similar state legislation. I exercise caution in having regard to extra-jurisdictional judgments for the purpose of statutory construction, for reasons explained by McHugh J in Marshall v Director-General, Department of Transport (2001) 205 CLR 603; [2001] HCA 37 at [62]: "But that does not mean that the courts of Queensland, when construing the legislation of that State, should slavishly follow judicial decisions of the courts of another jurisdiction in respect of similar or even identical legislation. The duty of courts, when construing legislation, is to give effect to the purpose of the legislation. The primary guide to understanding that purpose is the natural and ordinary meaning of the words of the legislation. Judicial decisions on similar or identical legislation in other jurisdictions are guides to, but cannot control, the meaning of legislation in the court's jurisdiction."
A common thread in some cases in relation to the interpretation of the phrase "used … in connection with" is a divergence into two views that could be characterised as the "literal" or "ordinary grammatical" view and the "substantial use" view. The literal view is often adopted on the basis that the relevant legislative scheme allows the court a wide discretion in order to avoid what might be regarded as an injustice, such as the scale of the forfeiture being disproportionate to the offence.
The CAR Act does not allow a discretion as to whether to make a forfeiture order once the preconditions are satisfied, the only relief being, as noted, a financial payment from sale proceeds of the forfeited property for a spouse or dependant in the circumstances set out in s 24 of the CAR Act. That is not so with the CPOC Act and counterpart legislation in other Australian jurisdictions. When an assets forfeiture order or pecuniary penalty order is sought, the relevant court typically has a wide discretionary power even though the property is found to have been used in, or in connection with, the commission of a serious offence.
The term "serious crime use property" in s 9B of the CAR Act is similar to the definition of "tainted property" in s 4(1)(a) of the CPOC Act. Section 4(1) provides: "tainted property means property that: (a) was used in, or in connection with, the commission of a serious offence, or (b) was substantially derived or realised, directly or indirectly, by any person, from property used in, or in connection with, the commission of a serious offence, or (c) was substantially derived or realised, directly or indirectly, by any person, as a result of the commission of a serious offence, or (d) was substantially derived or realised, directly or indirectly, by any person for the depiction of a serious offence, or the expression of the offender's thoughts, opinions or emotions regarding the offence, in any public promotion."
An application may be made for a forfeiture order in respect of "tainted property": ss 13(1)(a) or 13(2)(a). Section 18 of the CPOC Act relevantly provides: "18 Forfeiture orders (1) If a person has been convicted of a serious offence and an application is made to a court under section 13 (1) (a) or (2) (a) in relation to specified property and: (a) the court is satisfied that the property is tainted property in relation to the offence, and (a1) if the application relates to property of the kind referred to in paragraph (d) of the definition of tainted property in section 4 (1) …, and (b) the court has taken into consideration (having regard to information before the court): (i) the use that is ordinarily or had been intended to be made of the property, and (ii) any hardship that may reasonably be likely to arise (whether on the part of that or any other person) following the making of the order, the court may order that the property is forfeited to the State. (1A) ... (2) In considering any hardship that may be likely to arise on the part of a person convicted of a serious offence, the court shall not take into account the sentence imposed in respect of the offence. (2A) In considering any hardship reasonably likely to arise on the part of an Aboriginal person or a Torres Strait Islander convicted of a serious offence, the court must take into account responsibilities arising from the person's ties to extended family and kinship. (3) If the court orders that property (other than money) is forfeited to the State, the court shall specify in the order the amount that it considers to be the value of the property at the time when the order is made. (4) If, at the hearing of an application made under section 13 (1) (a) or (2) (a) in reliance on the conviction of a person for a serious offence, evidence is given that property to which the application relates was in the possession of the person at or immediately after the commission of the offence, then: (a) if there is no evidence given tending to show that the property was not used in, or in connection with, the commission of the offence - the court shall presume that the property was used in, or in connection with, the commission of the offence, or (b) in any other case - the court shall not make an order under this section in relation to the property unless it is satisfied, on the balance of probabilities, that the property was used in, or in connection with, the commission of the offence. (5) A court making a forfeiture order in respect of property may specify in the order the extent of the estate, interest or rights in the property that are affected by the order and, where the order is to apply to land, the court shall do so."
The nature of a determination by a court as to whether to make a forfeiture order pursuant to s 18(1) of the CPOC Act is discretionary, subject to the court being satisfied the property is tainted property and that it takes into consideration the property's ordinary use and any hardship that may reasonably be likely to arise: Zahrooni v R; Director of Public Prosecutions (NSW) v Zahrooni [2010] NSWCCA 252 per Simpson J (as her Honour then was) at [50].
In R v Hadad (1989) 16 NSWLR 476, the Court of Criminal Appeal of New South Wales considered whether the phrase "used in, or in connection with", in s 3(1) of the now repealed Crimes (Confiscation of Profits) Act 1985 (NSW), which defined "tainted property" in the same terms as s 4(1)(a) of the CPOC Act, extracted at [41] above, was to be understood according to its ordinary grammatical meaning or whether a "substantial" connection was to be inferred. In that case, a forfeiture order concerning a vehicle used in the supply of prohibited drugs was opposed by a third party who claimed ownership of it. The third party relied upon R v Ward, Marles and Graham (1987) 33 A Crim R 60; [1989] 1 Qd R 194, a decision of the Court of Criminal Appeal of Queensland, in which Carter J, considering similar legislation, expressed the view that it was necessary to find a "substantial" connection. McInerney J (Enderby and Allen JJ agreeing) said, at 481: "The decision of the Court of Criminal Appeal in Queensland of R v Ward, Marles and Graham was a case in which Carter J delivered the leading judgment, and in construing similar legislation in Queensland, was of the view that the phrase 'used in connexion with the commission of' required a substantial connection between the use of the property and the commission of the offence, not a mere accidental or incidental connection with the commission of that offence. … The rationale, as I understand his Honour's decision, is that if the words were given their ordinary grammatical meaning there would be many cases where hardship would be considerable where innocent parties who owned property were caught by the provisions of the Act. Despite his Honour's concern, I do not believe that this decision really assists us in construing the particular sections of the Act that we are considering. It is my view that the legislature in this unique legislation has reposed in the courts a very wide discretion on the question of whether or not forfeiture orders should be made in respect to tainted property in order to enable the courts to overcome the type of problem envisaged by Carter J. The court has to consider in the exercise of its discretion two matters: the use that is ordinarily or intended to be made of the property and, secondly, any hardship that may reasonably be likely to arise following the forfeiture of that property. It must be pointed out, of course, there would always be hardship stemming from the provisions of the Act itself, but, in my view, that is not the hardship about which the Act speaks and to which a court is entitled to have regard. It is this very wide discretion reposed in the court on this question of hardship that convinces me that the legislature intended the section to have its ordinary grammatical meaning. … I am of the opinion, having regard to the ambit of the legislation and the discretion reposed in the Court on the question of whether or not an order should be made, the intention of the legislature is that a wide scope be given to the concept of tainted property. I do not accept that the legislature intended the courts to construe the section by requiring a substantial connection between the commission of the crime and the alleged tainted property."
In The Queen v Rintel (1991) 3 WAR 527, the Court of Criminal Appeal of Western Australia heard an appeal by the Crown against a decision of a sentencing judge to not make forfeiture orders pursuant to the Crimes (Confiscation of Profits) Act 1988 (WA) (since repealed).
The Crimes (Confiscation of Profits) Act, s 10(1), provided that the Court "may" make a forfeiture order, if it thinks it "appropriate" and, relevantly, if it is satisfied that the property was "used in, or in connection with", the commission of the offence (s 10(1)(a)). Subsection 10(2) of that Act allowed the court, in determining whether to make an order, to have regard to the ordinary use of the property and whether any hardship to any person may be likely to be caused by such an order.
The Court referred to the difference of view between the Courts of Criminal Appeal of Queensland and New South Wales on the proper interpretation of the phrase "used in, or in connection with, the commission of an offence" in legislation containing similar provisions to those in the Crimes (Confiscation of Profits) Act, as expressed in Ward, Marles and Graham by Carter J and in Hadad by McInerney J.
A majority (Malcolm CJ and Pidgeon J, Wallace J dissenting) rejected the "substantial connection" approach, Malcolm CJ expressing a preference, at 530, for McInerney J's view in Hadad and Pidgeon J stating, at 542: "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."
In Director of Public Prosecutions (Cth) v Jeffery (1992) 58 A Crim R 310, Hunt CJ at CL considered the phrase "used … in connection with" as it appeared in s 48(4) of the Proceeds of Crime Act 1987 (Cth), which permitted an application for relief to be made by a convicted person, where he or she has an interest in property that has been restrained under the Act, to apply for a declaration that it not be forfeited. Section 48(4)(c) provided that such a declaration may be made if the court is satisfied that: "(i) the property was not used in, or in connection with, any unlawful activity and was not derived, directly or indirectly, by any person from any unlawful activity; and (ii) [his] interest in the property was lawfully acquired."
Hunt CJ at CL said, at 315-317: "The phrase 'used in connection with' has received some judicial exegesis over the last few years in relation to legislation of the general type as that with which I am now concerned, but not (unfortunately) in relation to its use in this particular statute. In Re Drugs Misuse Act 1986 [1988] 2 Qd R 506 at 510-512, Carter J gave some consideration to the use of the phrase in that statute, but found it unnecessary finally to determine its proper interpretation. He adopted, as I do, the statements by Adam J in Murdoch v Simmonds [1971] VR 887 at 889, that the particular context in which the phrase is used is important in that determination. Carter J suggested that, in the context of a penal statute (as the present clearly is: Cuthbertson [1981] AC 470 at 484; (1980) 71 Cr App R 148 at 154-155), there must be 'in a very real sense' a link (in the sense of 'a substantial connection') between the activity in question and the use of the property. The requirement that the connection be 'substantial' which Carter J adopted from Murdoch v Simmonds appears to have been taken by Adam J from the judgment of Kitto J in Berry v Commissioner of Taxation (Cth) (1953) 89 CLR 653 at 659. Carter J expanded those statements to suggest that it is not sufficient for there to be a mere accidental or incidental connection; the activity in question must be related to, or dependent upon, or could not have been committed without, or have resulted directly from, the use of that property. He repeated those views when giving the judgment of the Court of Criminal Appeal in Ward, Marles and Graham (1987) 33 A Crim R 60 at 65-66, although again it was found unnecessary finally to determine the proper interpretation of the phrase.In Hadad (1989) 16 NSWLR 476; 42 A Crim R 304, the Court of Criminal Appeal in this State distinguished that case when considering the use of the phrase 'used in, or in connection with, the commission of a serious offence' in s 3(1) of the now repealed Crimes (Confiscation of Profits) Act 1985 (NSW). The distinction drawn by that Court was based upon two matters. The first was that Court's perception (at 481-482; 308-309) that the Queensland Court had taken into account, as a consideration in its interpretation of the phrase, the fact that there would be many cases where hardship would be considerable for innocent parties whose property would be caught if the words in the phrase were given their ordinary grammatical meaning. The second matter was that the 1985 Act which our Court of Criminal Appeal had under consideration permitted the exercise of a discretion based upon the existence of hardship to refuse forfeiture. The requirement that the connection be a substantial one adopted in Queensland was therefore rejected. That decision is, of course, binding upon me, but I am not concerned here with the same statute. Section 48(4) of the Proceeds of Crime Act does not itself permit hardship to be taken into account in determining whether relief should be granted to have property disregarded for the purposes of the automatic forfeiture provisions of s 30. It was argued by the Director that, because a person convicted of any offence may seek pursuant to s 48(3) to have his interest excluded from any restraining order upon his property, and because in relation to that particular application his financial hardship may be taken into account, the approach adopted in Hadad should similarly be adopted in relation to s 48(4). I am not persuaded that the relevance of hardship to an application that property be excluded from a restraining order, but which hardship is irrelevant to an application for a declaration that that property should be disregarded for the purposes of the automatic forfeiture of that property, should require such an approach to be adopted to the proper interpretation of the statutory provisions relating to the latter. The property with which s 48(4) deals includes property in which innocent parties may well also have an interest - even a significant interest. Accordingly, in my view, the distinction made in Hadad does not apply to the meaning of the phrase as used in s 48(4). … I conclude that the phrase 'used … in connection with any unlawful activity' in s 48(4)(e)(i) should be interpreted in the way suggested by Carter J in Re Drugs Misuse Act 1986 and (on behalf of the Queensland Court of Criminal Appeal) in Ward, Marles and Graham. Use in connection with any unlawful activity within the meaning of s 48(4) therefore requires a substantial connection between the activity in question and the use of the property; it is not sufficient for there to be a mere accidental or incidental connection. The unlawful activity must be related to, or dependent upon, or could not have been committed without, or have resulted directly from, the use of the property."
In Sultana v R (1994) 74 A Crim R 27, the Court of Criminal Appeal again considered the phrase "used … in connection with", this time as it appears in the CPOC Act. Gleeson CJ, at [31], approved Hadad. Sully J, at [39], said there was ample authority for the proposition that the phrase is to be regarded as: "… words of wide import; that it is not desirable to attempt to define them with, so to speak, a hyper-refined exactness; and that their effect and practical application in any given case and context will be a question of fact and of degree … there must be demonstrated in a real sense some connection between the particular offence … and the particular property in respect of which the confiscation order is sought." (citations omitted)
In Director of Public Prosecutions (NSW) v King (2000) 49 NSWLR 727; [2000] NSWSC 394, O'Keefe J, at [14], observed, in relation to the phrase as it appears in the CPOC Act, that: "The fact that the definition of tainted property deals with two different concepts, namely 'used in the commission' and 'used in connection with the commission' of a serious offence, indicates that the latter phrase has a wider connotation than the former."
O'Keefe J was considering an application for a restraining order sought by the Director of Public Prosecutions ("DPP") concerning a yacht on which it was alleged that the defendant had committed an offence of aggravated indecent assault against a minor. The DPP submitted that the yacht had been used "in connection with" the alleged offence and thus came with in the statutory definition of "tainted property". O'Keefe J reviewed cases from other states as well as from this state, as to the meaning of the phrase "used … in connection with", and concluded, at [33]: "… the over-arching principle that in my opinion can be extracted from the cases in relation to that part of the statutory definition of tainted property presently under consideration is that some activity connected with the relevant crime must have involved the utilisation or employment of the property with the aim or purpose of committing or furthering the commission of the crime in question. In none of the cases referred to has the mere fact that the property in question has been the place of commission of the crime and nothing more been held to result in the property being tainted property within the meaning of the forfeiture statutes. What is more, a number of the decisions are expressly to the contrary."
In Director of Public Prosecutions (SA) v George (2008) 102 SASR 246; [2008] SASC 330, the Full Court of the Supreme Court of South Australia (Doyle CJ, White J agreeing, Vanstone J dissenting) considered the meaning of "used … in connection with" an offence, in an appeal from a decision by a magistrate to not make a pecuniary penalty order pursuant to s 95 of the Criminal Assets Confiscation Act 2005 (SA), in respect of property said to be an "instrument" of a "serious offence".
Section 95 provided: "95 Making pecuniary penalty orders (1) A court must, on application by the DPP, make an order (a pecuniary penalty order) requiring a specified person to pay an amount determined under Subdivision 2 to the Crown if satisfied that the person has been convicted or, or has committed, a serious offence and - … (b) an instrument of the offence is owned by the person or is under his or her effective control."
Section 7(1)(b) provided: "7 Meaning of proceeds and instrument of an offence (1) For the purposes of this Act, the following rules apply when determining whether property is proceeds or an instrument of an offence: … (b) property is an 'instrument' of an offence if it is - (i) used in, or in connection with, the commission of an offence; or (ii) intended to be used in, or in connection with, the commission of an offence."
Doyle CJ and Vanstone J expressed concern for what they regarded as potentially disproportionate consequences for the defendant in making an order if s 95 was found to be mandatory. In that case, police found 32 cannabis plants growing in pots in a shed located at the rear of the defendant's property. Twelve of the 32 cannabis plants were mature and the remaining 20 were seedlings. A small quantity of cannabis was found drying in the shed. The defendant's property was suburban land used for residential purposes and was less than one-quarter of an acre in size. The shed in which the plants were found occupied around one-quarter of the land. Electricity and water that were supplied to the land were used to grow the plants hydroponically, including electricity which was unlawfully obtained. The defendant pleaded guilty to producing a controlled substance and knowingly extracting electricity from a power system without proper authority. The plaintiff obtained a restraining order over the property. On conviction, the plaintiff applied for an order requiring the defendant to pay a pecuniary penalty order in relation to the value of the property under s 95 of the Criminal Assets Confiscation Act.
Doyle CJ noted the impact that a forfeiture order would have on the respondent: "2 … a District Court judge fined Mr George the sum of $2,500, that being a single sentence in respect of the two offences. They are serious offences. But the penalty imposed reflects the fact that, of their kind, they are at the low end of the scale of seriousness. … 5 If the [pecuniary penalty order] is made, it will require payment of an amount of $105,269. That is more than 40 times the amount of the fine imposed. The amount of the [pecuniary penalty order] is not proportionate to the seriousness of the offence. It is pretty well certain that if the [pecuniary penalty order] is made, Mr George will lose his home. The only way to meet the order will be to sell the land or to surrender it. 6 This is the context in which a number of issues arise under the [Criminal Assets Confiscation Act]."
The first issue for determination was whether the property was an "instrument" of the offence pursuant to s 7(1)(b). The second was whether, if so, the Court was obliged to make a pecuniary penalty order pursuant to s 95, given the mandatory terms of the section.
In considering the nature of the connection required by the phrase "used … in connection with", Doyle CJ and Vanstone J treated the consequence of the construction, in terms of whether there remained a judicial discretion as to its application, as a relevant consideration. I note that this approach was conformable with that of McInerney J in Hadad and Hunt CJ at CL in Director of Public Prosecutions (Cth) v Jeffery, in the passages extracted above at [44] and [50] respectively.
Both Doyle CJ and Vanstone J found that s 95(1) should be construed as vesting in courts a discretion as to whether to make a pecuniary penalty order. In relation to the construction of "used … in connection with", Doyle CJ rejected the "substantial connection" test, preferring one of "significantly sufficient use": "60 It is also relevant that a finding that property is an instrument of an offence may mean that [a pecuniary penalty order] can be made in respect of the property without the court exercising any judgment or discretion, without having regard to considerations of proportionality, or without any reference to matters such as the public interest. It may be appropriate to give the words used in s 7(1)(b) a wide meaning when that meaning catches property that will be forfeited only if the court considers it appropriate to do so, applying statutory criteria that give the court power to refrain from making a [forfeiture order] … However, it remains necessary to consider the words actually used, and to bear in mind that, at least on their face, they are capable of having a wide application. …. 62 There is one thing which I considered to be clear. It is that there is no basis for qualifying the statutory definition by requiring that any connection be a 'substantial connection'. To take that approach is to introduce an expression which the draftsman has not used. ... … 65 … I consider that the definition refers to a use of property that facilitates, assists or contributes to the commission of an offence. That is a starting point, not a conclusion. The use of the property must be sufficiently significant (I realise that this is question begging) to warrant a conclusion (especially where the property is the place where the offence is committed) that the property is used in connection with the commission of the offence. This invites attention to the role that the property plays in the commission of the offence, to the extent to which the property is so used, and to how much of the property, or what part of it, is used. …"
Vanstone J required a "substantial connection" to be established: "… Having regard to the fact that the Act is penal in its operation and that consequences out of all proportion to the gravity of the crime could flow from a wide interpretation of the word 'instrument', for this and other serious offences (as defined), I would be prepared, if necessary, to find that a substantial connection is required between the property and the commission of the crime under consideration before it is found to be an instrument of that crime. I would require that the property was put to use in a positive sense; that it was a means through which the crime was effected; that the property was used as a tool in the commission of the crime, or in connection with its commission. I would be content to approach the matter in much the same way as did Hunt CJ in Jeffery, remembering always that the expression being construed there was 'tainted property' rather than 'instrument'. … Absent any curial discretion in s 95, a more wide-ranging interpretation of 'instrument' would result in manifest injustice in imposing a penalty bearing no relationship to the crime committed, not just in the present case, but also in cases of the nature described in the earlier part of these reasons. I do not consider that Parliament could have intended such a result."
Vanstone J appeared to qualify that view later in her judgment on the basis of a finding that s 95 allowed a judicial discretion, at [170]: "However, since writing a draft of these reasons, I have had the benefit of reading the reasons of White J. I am persuaded that the interpretation he has given to s 95 of the CAC Act - that s 95 confers a discretionary power - is not only available, but also leads to a result that does no violence to the scheme of the Act. In particular, his Honour's approach allows for an expansive interpretation of the term 'instrument' to be, in effect, ameliorated or balanced, where appropriate, by an exercise of the court's discretion, including under s 95. That remedy to the otherwise harsh results identified herein is preferable to narrowing the interpretation of 'instrument'. I gratefully concur in the reasons of White J on the interpretation of s 95."

The degree of connection required

As noted, the mere fact that the offence was committed on the property in question will not ordinarily be sufficient to render it used in connection with the offending conduct: Director of Public Prosecutions (NSW) v King at [33].
Similarly, in Hadad, McInerney J held that although a substantial connection between the use of the property and the commission of the offence is not required (indeed, "an accidental or incidental connection is sufficient"), the property must be "an operating tool" in the commission of the offence. The property in that case, a motor vehicle, was held to be an "operating tool" in the commission of drug supply offences, because: "The meeting between Hadad and the proposed purchaser of the drugs was pre-arranged; it was to take place in a public street; it was essential for a person involved in such a transaction that he minimise the risk of being caught with the drug or the proceeds in his possession; and that the use of a motor car was not incidental to such transaction."
In Sultana, the Court of Criminal Appeal held that although the words "in connection with" are of wide import, there must be demonstrated "in a real sense" some connection between the offence and the property in question.
In Taylor v Attorney-General for the State of South Australia (1991) 55 SASR 462, the Full Court of the Supreme Court of South Australia considered whether premises from which drugs had been traded were liable to forfeiture under the Crimes (Confiscation of Profits) Act 1986 (SA). Debelle J stated, at 472: "If a small crop of cannabis is grown on a large farming property, it might be said that there is no substantial connection between the use of the property and the commission of the offence. However, it is clear that the property has been used in connection with the commission of the offence: absent the property, that crop would not have been grown."
Further, in Queensland, the court may make an "innocent interest exclusion order" where an applicant can prove, on the balance of probabilities, that a stated proportion of the value of the interest in property which has been forfeited is not attributable to the proceeds of an illegal activity: Criminal Proceeds Confiscation Act 2002 (QLD), s 73(2).

Defendant's submissions

The defendant conceded that the offence constituted a "serious crime related activity" within the meaning of s 6 of the CAR Act but submitted that the Hopkins Creek property was not "serious crime use property" within the meaning of s 9B, because it had not been "used in, or in connection with" the serious crime related activity, and for that reason it should be excluded from the plaintiff's pending forfeiture order.
The essence of the defendant's submission is that the cannabis plants did not form part of the real property that was sought by the plaintiff to be forfeited, by reason of them being cultivated in pots rather than in the ground, and therefore at common law they remained chattels and did not become part of the real property. The defendant further submitted that there was an absence of evidence as to a physical or temporal connection of these chattels to the Hopkins Creek property, so that it was not "used … in connection with", the cultivation of the cannabis.
The defendant sought to differentiate the circumstances from those in Director of Public Prosecutions (SA) v George to demonstrate their status as chattels and that their connection to the Hopkins Creek property and the cultivation of the cannabis plants was therefore insufficiently intimate to render it "serious crime use property" pursuant to s 9B(1). In furtherance of this submission, the defendant noted: 1. The plants were grown outdoors in pots and, although fertilised and watered from a dam on the property, there was no evidence before the District Court as to the regularity of the application of fertiliser and watering; 2. There was no evidence before the District Court of any equipment used to cultivate the plants, or of a sophisticated operation to distribute the cannabis for profit or advantage. For example, there was no evidence of dried cannabis, plastic bags, scales or large sums of money to evidence an operation of a commercial dimension; 3. There was no evidence of the topography of the area used to grow the plants, and the relationship between that area and the total area of the property; and 4. Of the 257 plants seized, 147 were seedlings, and there was no evidence before the District Court of when the plants had been planted, how long they had been growing, or whether they were moved to different parts of the property.
The defendant submitted that this Court should apply the "substantial connection" test of Vanstone J in Director of Public Prosecutions (SA) v George extracted at [62] above, as opposed to Doyle CJ's "significantly sufficient use" test extracted at [61] above, because otherwise a forfeiture order could be disproportionate to the offence.
The defendant also submitted that s 9B(1) must be construed so as to ensure the relevant interest in property to be restrained or confiscated is, firstly, proportionate to the level of objective criminality of the offending conduct; and, secondly, sufficiently connected to the commission of the offence. The defendant said that adopting a wide construction of s 9B would result in unintended and unjust consequences.
The defendant concluded that the penal nature of the legislation necessitates a narrow interpretation of s 9B(1); namely, one that requires the nexus between the offending conduct and the use of the property to be "intimate, unequivocal" such that the relevant offence could not have been committed "but for the involvement of the property".

Plaintiff's submissions

The plaintiff submitted that the meaning of the expression "serious crime use property" in s 9B is "clear and unambiguous" and does not lend itself to an interpretation that gives significance to the common law of fixtures, as such language does not appear in the text of the Act. In relation to the meaning of "used in, or in connection with", the plaintiff notes the meaning of "use" in the Oxford English Dictionary is to "[t]ake, hold, or deploy (something) as a means of accomplishing or achieving something; employ".
As to the degree of connection between the offence and the Hopkins Creek property, the plaintiff referred to the 257 pots of cannabis being cultivated on the property, stating in its written submissions: "The plants had to be located somewhere to be cultivated. This 'somewhere' was the Hopkins Creek property". In addition, the defendant pumped water from a dam on the property up a slope to water the plants.
The plaintiff noted the mandatory nature of the Court's obligation pursuant to s 22(2B) of the CAR Act to make an assets forfeiture order if it finds, on the balance of probabilities, that the property is "serious crime use property", reflects the legislature's intention to enact harsh measures to deter the commission of serious offences. The fact that relief from hardship may be sought by s 24 of the CAR Act further reinforces an interpretation of that Act that gives effect to the legislature's intent in providing for a strong deterrent to commit serious crime.

Consideration

The issue in dispute between the parties is narrow in compass; whether the Hopkins Creek property was "used … in connection with" the defendant's cultivation of the cannabis. The other elements required for the making of a forfeiture order are conceded. No discretion is allowed to the Court in the making of such an order if the Court is satisfied that this remaining element is established on the balance of probabilities.
In Murphy v Farmer (1988) 165 CLR 19; [1988] HCA 31 at 28, the High Court considered the construction of penalty provision pursuant to s 229(1)(i) of the Customs Act 1901 (Cth) that applied to a customs declaration form that had been filled out with incorrect information. The majority stated, at 28: "… it seems to us to be more strongly arguable that clear words should be required before there is attributed to the Parliament an intention to take the draconian step of imposing automatic forfeiture as a penalty for 'any' wrong 'entry invoice declaration answer statement or representation' regardless of whether the wrong information was provided as the result of an innocent mistake or excusable ignorance. The effect of the penalty of automatic forfeiture under s. 229(l)(i) can be devastating and quite disproportionate in that it applies regardless of the value of the goods or the importance or effect of the wrong statement which was made. The circumstances in which a wrong statement of the type referred to in s. 229(l)(i) can be made and the possible innocent explanations of such a wrong statement (e.g., language difficulties or misunderstandings in construing a government form; a lowered awareness of detail at the end of a long journey) are manifold. It may not be permissible to read into a forfeiture provision, such as s. 229(l)(i), a word such as 'knowingly' or a requirement of mens rea if the words which the Parliament has used are not of themselves capable of conveying such a meaning or such a requirement: cf. Forbes (49). It is however, in our view, proper to approach the construction of the actual words of the Act on the basis that it is to be presumed that clear words would have been used if it were intended to impose automatic forfeiture as the penalty for 'any' wrong 'answer' regardless of whether it was knowingly or innocently given. Such a prima facie presumption supports reading the word 'false' in s. 229(l)(i) as meaning purposely or intentionally untrue."
In Director of Public Prosecutions (NSW) v King, O'Keefe J at [43] was of the view that Murray v Farmer was authority for the proposition that statutes providing for the forfeiture of property are to be construed strictly.
The 2016 amendments significantly expanded the scope of the CAR Act beyond the forfeiture of property that was derived from the proceeds of crime, to property that had a "connection" to a "serious crime related activity", and with no discretion available to the court to correct a disproportionate or unreasonable outcome; the making of a forfeiture order is mandatory once the necessary conditions are established, the only amelioration being in the form of a payment from sale proceeds following forfeiture, to a spouse or dependants in limited circumstances, pursuant to s 24 of the CAR Act.
A principal object of the CAR Act (s 3(a)), being the only one that has any relevance to the 2016 amendments, is to: "… provide for the confiscation, without requiring a conviction, of property of a person if the Supreme Court finds it to be more probable than not that the person has engaged in serious crime related activities."
Clearly the 2016 amendments could be applied in a manner that would produce a result that would be wholly disproportionate to the criminality involved, and with no authority afforded to the Court to ameliorate its effect so as to avoid a patent injustice, other than to allow a payment from the proceeds of sale for any hardship occasioned to a spouse or dependant who was ignorant of the offence: s 24.
As noted earlier, in Hadad, McInerney J, in favouring a grammatical construction of the phrase "in connection with" rather than one of "substantial" connection, took into account the fact that the legislative provisions in question allowed the court a discretion in determining whether to make a forfeiture order; an order might be refused on the legislative bases of ordinary use and/or hardship. Similarly, in Director of Public Prosecutions (Cth) v Jeffery, Hunt CJ at CL had regard to the absence of judicial discretion in final orders, in finding that a "substantial" connection was appropriate, thus distinguishing Hadad.
If the CAR Act had the protections that are available at s 18 of the CPOC Act to avoid an outcome that was unduly harsh, it would have been open to the defendant to make submissions as to, for example, the ordinary use of the Hopkins Creek property, what improvements it had on it and what hardship might result to him if it is forfeited. All that is known in relation to the Hopkins Creek property and the circumstances of the defendant is that it is a large rural property (8.37ha) that he purchased in 2010, being nine years before his arrest, for the sum of $525,000, and that he was the sole occupant of it at the time of his arrest. I note that the particular circumstances of the defendant are only illustrative of the wider issue; I have not had regard to them in my construction of s 9B(1) of the CAR Act.
I apply the reasoning of the Court of Criminal Appeal in Hadad and of Hunt CJ at CL in Director of Public Prosecutions (Cth) v Jeffery and, in so doing, I conclude that, in the absence of a judicial discretion to avoid an assets forfeiture order that would be disproportionate to the offence, a narrow interpretation of the phrase in s 9B(1) of the CAR Act is appropriate. The phrase "used … in connection with" obliges the Court to be satisfied that there is a substantial connection between the property that is the subject of the assets forfeiture order and the offence.
I note that my conclusion coincides with the reasons expressed in Director of Public Prosecutions (SA) v George, Doyle CJ and Vanstone J both being of the view that whether there was a discretion in making final orders was a relevant consideration in the construction of the phrase. In the absence of such a discretion, Vanstone J preferred a narrow construction, that a "substantial" connection was required.
In coming to this view, I echo the concerns implicit in the judgments of the Court of Criminal Appeal in Hadad, Hunt CJ at CL in Director of Public Prosecutions (Cth) v Jeffrey and Doyle CJ and Vanstone J in Director of Public Prosecutions (SA) v George in relation to a statutory power to make an order forfeiting property that has been used in connection with a criminal offence, where there is no or a limited judicial discretion, may lead to unwarranted hardship and/or a forfeiture that is disproportionate to the offence.
I turn to the parties' submissions concerning the relationship between the Hopkins Creek property and the cultivation of the cannabis plants.
In my view, whether as a matter of law the potted plants were chattels or part of the real property is irrelevant to the issue of whether the property the subject of the application was used in connection with the offence. The fact that the plants were cultivated in pots on the Hopkins Creek property, rather than in the ground, is a circumstance that tends against the connection being substantial. However, the pots being located on private property rather than, for example, on Crown land or in a national park, afforded the defendant a degree of control and protection from others who might interfere with his cultivation, but does not, of itself, constitute a substantial connection to the Hopkins Creek property.
The fertilising and watering of the plants by the defendant, per se, are neutral factors; they do not constitute a connection between the Hopkins Creek property and the plants.
Similarly, the fact that the defendant watered the plants, in itself, is a neutral factor. However, the watering of the plants via a pump from a dam on the property constitutes a use of the property in connection with the cultivation of the plants to a substantial extent. The water was collected on the property in the dam and then, via a pump, transported to the plants.
A reasonable available inference is that the defendant formed the view that watering the plants, rather than relying on rainfall, was either necessary for their cultivation or at least desirable for a better outcome. He utilised the dam on the property to do so. It could also reasonably be inferred that the seedlings required regular watering in order to survive in pots, which was effected by the use of the dam. For those reasons, I conclude that the property was used in connection with the offence and that the connection was substantial. That being so, the motion fails.
In relation to costs, I note that although the defendant's notice of motion is refused, his submission as to the appropriate construction of the phrase in question, which has not previously been the subject of judicial consideration, is accepted. In those circumstances, each party should pay its own costs.

Orders

I make the following orders: (1) The notice of motion filed by the defendant on 4 August 2020 is dismissed; (2) Each party to pay its own costs of the motion.

Endnote

I note that the plaintiff's material includes a misstatement of the non-parole period of the sentence as 14 months and one day, which in fact was the balance of the sentence. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 August 2021

Criminal Assets Recovery Act 1900(NSW)

Criminal Legislation Amendment (Organised Crime and Public Safety) Act 2016(NSW)

Crimes (Confiscation of Profits) Act 1985(NSW)

Crimes (Confiscation of Profits) Act 1988(WA)

Crimes (Confiscation of Profits) Act 1986(SA)

At a glance

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