Citation : RE COLIN STEWART MACPHAIL, JUSTICE OF THE PEACE; EX PARTE TAMMY NICOLE PALFREY

Appeal - Criminal law - Appeal against issue of freezing notice - Whether Justice of the Peace had jurisdiction to issue freezing notice - Criminal Property Confiscation Act 2000 (CPCA) - Misuse of Drugs Act 1981 (MDA), s 32A - Whether appellant's previous convictions constitute "serious drug offences" - Criminal Code, s 673 - Summary conviction for indictable offence deemed to be simple offence only - Whether s 673 applies to MDA - Whether the words "or a police prosecutor" are otiose if s 673 has effect - Section 9(2)(d) MDA - Exceptional circumstance in which person summarily convicted may be committed for sentence as though convicted on indictment - Whether person convicted of offence under s 6(1) MDA has been convicted of serious drug offence regardless whether tried on indictment or summarily - Principles of statutory construction - Ambiguity to be resolved in favour of refusal to extend circumstances of confiscation of property - Presumption that legislation does not interfere with vested proprietary interests - Regard to be had to consequence of competing interpretations - Operation of s 673 not excluded - Summary conviction of offence under s 6(1) MDA not ordinarily a serious drug offence - Significance of s 9(2)(d) MDA not drawn to attention of primary judge

Appeal - Criminal law - Whether convictions entered prior to commencement of CPCA can support application under s 32A MDA - Previous offences mere circumstances upon which legislation operates - Previous offences committed prior to commencement of CPCA not fatal to application under s 32A MDA

Criminal Property Confiscation Act 2000 (WA), s 8, s 9, s 34

Misuse of Drugs Act 1981 (WA), s 6(1), s 32A

Second Respondent : State Director of Public Prosecutions

Beckwith v R [1976] HCA 55; (1976) 135 CLR 569

Cheatley v R [1972] HCA 63; (1972) 127 CLR 291

Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 78 ALJR 161

Forbes (Collector Customs, NSW) v Traders Finance Corp Ltd [1971] HCA 60; (1971) 126 CLR 429

Hester v Davies, unreported; SCt of WA; Library No 970721; 18 December 1997

Perejmibida v Skelcher [2002] WASCA 2; (2002) 127 A Crim R 549

R v Rowe (1992) 5 WAR 491

Ross v R [1979] HCA 29; (1979) 141 CLR 432

CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384

Director of Public Prosecutions for Western Australia v Hafner [2004] WASC 32

Durham Holdings Pty Ltd v NSW (2001) 205 CLR 399

Ingham v Hie Lee [1912] HCA 66; (1912) 15 CLR 267

K & S Lake City Freighters Pty Ltd v Gordon & Gotch Ltd [1985] HCA 48; (1985) 157 CLR 309

Metropolitan Gas Co v Federated Gas Employees' Industrial Union [1925] HCA 5; (1925) 35 CLR 449

Mills v Meeking [1990] HCA 6; (1990) 169 CLR 214

Murphy v Farmer [1988] HCA 31; (1988) 165 CLR 19

Permanent Trustee Co Ltd v WA [2002] WASC 22; (2002) 26 WAR 1

Plaintiff S157/2002 v Commonwealth of Australia (2003) 211 CLR 476

Public Prosecutions, Director of v Kindred (1996) 15 WAR 133

R v Adams [1935] HCA 62; (1935) 53 CLR 563

Silbert v Director of Public Prosecutions for Western Australia [2004] HCA 9; (2004) 78 ALJR 464

Sweeney v Fitzhardinge [1906] HCA 73; (1906) 4 CLR 716

1 MILLER J: I have had the opportunity of reading in draft the reasons of Le Miere J. I agree with those reasons and that the appeal should be allowed, and an order absolute for a writ of certiorari to quash the decision of the Justice of the Peace should issue.

2 EM HEENAN J: I have had the advantage of reading in draft the reasons for decision of Le Miere J. I agree with these reasons and with his Honour's conclusion that this appeal should be allowed and that an order absolute for writ of certiorari to quash the decision issuing this freezing notice should be made.

3 LE MIERE J: This is an appeal from a decision of a Judge of this Court whereby his Honour refused an application by the appellant for an order nisi for a writ of certiorari to quash a freezing notice issued by the first respondent in relation to property of the appellant.

4 The appellant is aged 31 years. On 10 October 2002 the appellant was charged with two offences. The first is that on 9 October 2002 at West Kalgoorlie she was in possession of a prohibited drug, namely, amphetamine with intent to sell or supply it to another contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) ("MDA"). The second is that on 9 October 2002 at Boulder she was in possession of a prohibited drug, namely, amphetamine with intent to sell or supply it to another contrary to s 6(1)(a) of the MDA. Both of these charges were committed to the Kalgoorlie sittings of the District Court of Western Australia commencing on 28 April 2003.

5 The appellant has previously been convicted of offences under the MDA. On 2 September 1997 the appellant was convicted of one count of selling or supplying amphetamine contrary to s 6(1)(c) of the MDA, one count of possession of cannabis with intent to sell or supply it to another contrary to s 6(1)(a) of the MDA and ten counts of selling or supplying cannabis to another, contrary to s 6(1)(c) of the MDA.

6 On 19 March 2003 the first respondent issued the freezing notice which the appellant seeks to quash. The freezing notice was issued under s 34 of the Criminal Property Confiscation Act 2000 (WA) ("CPCA"). Subsection 34(3) of the CPCA provides that a Justice of the Peace may issue a freezing notice for all or any property that is owned or effectively controlled by a person, or that the person has at any time given away if, amongst other things, the person has been charged with an offence and the

person can be declared to be a drug trafficker under s 32A(1) of the MDA if she is convicted of the offence.

7 In this case, the appellant has been charged with an offence. However, the appellant says that she could not be declared to be a drug trafficker under s 32A(1) of the MDA if she is convicted of the offence. The first ground of the appellant's motion for an order nisi for a writ of certiorari is that the Justice of the Peace had no jurisdiction to issue the freezing notice because the appellant could not be declared a drug trafficker if she is convicted of the offence.

Criminal Property Confiscation Act

8 Section 8 of the CPCA provides, relevantly, that where a person is declared to be a drug trafficker under s 32A(1) of the MDA as a result of being convicted of a confiscation offence that was committed after the commencement of the CPCA, then all the property that that person owns or controls and all the property that the person gave away at any time before the declaration was made is confiscated. Section 9 of the CPCA provides that registrable real property vests absolutely in the State when the Court declares under s 30 that the property has been confiscated and a memorial is registered. Section 10 of the CPCA provides that other property that is confiscated under s 8 vests absolutely in the State when s 8 takes effect in relation to the property.

Misuse of Drugs Act

9 Section 32A of the MDA provides for a court to declare a person to be a drug trafficker. Section 32A(1) provides, relevantly:

(a) a serious drug offence and has, during the period of 10 years ending on the day, or the first of the days, as the case requires, on which the serious drug offence was committed, been convicted of two or more -

(i) serious drug offences;

(ii) ...

(iii) ...

The Court convicting the person of the serious drug offence first referred to in paragraph (a) ... shall on the application of the Director of Public Prosecutions or a Police Prosecutor declare the person to be a drug trafficker."

10 Subsection 32A(3) defines "serious drug offence" to mean an indictable offence under s 6(1), s 7(1) or s 33(2)(a) of the MDA.

11 In this case, the issue is whether the appellant's previous convictions in the Court of Petty Sessions for offences contrary to s 6(1)(a) and s 6(1)(c) of the MDA are serious drug offences for the purposes of s 32A of the MDA.

12 Section 6(1)(a) and s 6(1)(c) provide that, subject to exceptions not presently relevant, a person who with intent to sell or supply to another, has in his possession, or sells or supplies, or offers to sell or supply to another, a prohibited drug commits an indictable offence.

13 Section 9 of the MDA specifies the court in which a person charged with having committed an offence under s 6(1) is to be tried. Section 9(2) provides relevantly:

"A person charged with having committed an indictable offence under -

(a) section 6(1), not being a conspiracy to commit that indictable offence, in respect of a quantity of a prohibited drug referred to in Schedule (iii) which is less than the quality specified in that Schedule in relation to the prohibited drug;

(b) ...

(ba) ...

shall be tried summarily by a summary court, unless the summary court -

(c) at any time considers for any reason that the person so charged should be dealt with on indictment in respect of that indictable offence, in which case the summary court shall commit that person for trial or sentence, as the case requires; or

(d) after convicting the person so charged but before passing sentence on him considers for any reason that the sentence which the summary court is empowered to impose on that person is inadequate, in which case the summary court shall commit that person for sentence and shall certify in writing to that effect."

14 Subsection 9(3) provides that a person who is committed for sentence under subs 9(2)(d) is liable to be sentenced by the court to which he is so committed.

15 Section 673 of the Criminal Code (WA) provides that when a person has been summarily convicted of an indictable offence, the conviction is to be deemed to be a conviction of a simple offence only, and not of an indictable offence.

16 The appellant submits that her convictions in 1997 were summary convictions of indictable offences which by s 673 of the Criminal Code are deemed to be convictions of simple offences only and not of indictable offences. Hence, the appellant submits, she could not be declared to be a drug trafficker under s 32A(1) of the MDA if she is convicted of the offences with which she is currently charged. That is because her convictions in 1997 are deemed to be convictions of simple offences only and not of indictable offences, and hence are not serious drug offences for the purposes of s 32(A)(1) of the MDA.

17 Section 673 of the Code is in the same terms as s 659 of the Queensland Criminal Code. In Ross v R [1979] HCA 29; (1979) 141 CLR 432 the High Court considered whether a person summarily convicted in the Children's Court of the indictable offence of aggravated assault was, by force of s 659 of the Queensland Criminal Code, denied a right of appeal otherwise accorded, severally, by s 673 of the Queensland Code and s 29(7) of the then Children's Services Act 1965 (Qld). Section 673 of the Queensland Code provided that a person convicted summarily of an indictable offence may appeal against his conviction and against his sentence passed on his conviction on the same grounds and on the same conditions as if he had been convicted on indictment. The Court held that s 659 did not have the effect of denying the appellant a right of appeal. Barwick CJ said (at 434):

"Section 659 is addressed, in my opinion, to the consequence of the summary conviction of an indictable offence. It is not a section designed to alter the statutory nature of the offence which has been charged and tried summarily. So far from dealing with the statutory nature of the offence, s 659, in my opinion, by deeming the nature of the conviction to be other than in fact it is, is making provision for the penal consequences which flow from the conviction, and therefore with the penal consequences of the conviction. For the purposes of a right of appeal, the conviction is of an indictable offence: for the purposes of punishment, the conviction is deemed to be a conviction for a simple offence."

18 Gibbs J said, with the agreement of the other members of the Court (at 440):

"We were referred to the provisions of s 659 of the Criminal Code which are as follows ... If these words were given the fullest operation of which they are capable, they would render the provisions of s 673 entirely nugatory - since every person summarily convicted of an indictable offence would be deemed to have been convicted of a simple offence, there would never be a case in which an appeal could be brought under s 673. There can be no doubt that the ordinary rules governing the construction of statutes require the provisions of s 659 to be given a construction that will render them harmonious with those of s 673, if that is possible. If the two sections could not both be given effect, s 673, being the later enactment, would prevail. On any view, s 659 cannot be construed as having the effect that a person summarily convicted of an indictable offence is deemed not to have been summarily convicted of such an offence and thereby deprived of the right of appeal which s 673 expressly confers. This does not mean that s 659 itself is deprived of effect; that section has ample room for operation - e.g., in cases in which a statute attaches some disqualification or other adverse consequence to a conviction for an indictable offence."

19 Section 673 of the Criminal Code (WA) was considered by Steytler J in Hester v Davies, unreported; SCt of WA; Library No 970721; 18 December 1997. That case arose out of an application for a pecuniary penalty under s 6(1)(b) of the Crimes (Confiscation of Profits) Act 1988 (WA). That paragraph provided that where a person is convicted of a serious offence an appropriate officer may apply to the Supreme Court, or the Court before which the person was convicted of the offence, for, amongst other things, a pecuniary penalty order. The expression "serious offence" was defined to mean an indictable offence or any other offence that is prescribed by the regulations as a serious offence. The appellant had been convicted of indictable offences summarily in the Court of Petty Sessions. Steytler J said at page 7:

"It seems to me, notwithstanding counsel for the respondent's submissions to the contrary, both that s 673 of the Code is intended to have a general operation and that there is nothing in the Act which should be read as excluding that operation.

It is plain that s 673 is intended to make provision for the penal or other adverse consequences which flow from a conviction of the kind there referred to (see Ross v The Queen [1979] HCA 29; (1979) 141 CLR 432 at 434, per Barwick CJ and 440, per Gibbs J (with whom the other members of the court were in agreement) decided in respect of the similar provisions of s 659 of the Criminal Code of Queensland). Because the purpose of that provision is not expressed to be limited, and there is nothing in its terms otherwise to curtail its operation, it must, I think, be taken to be intended to have a general operation as regards penal or adverse consequences of the convictions referred to which, while they are convictions of indictable offences, will ordinarily be convictions of offences in the less serious range of that category. The Code in which s 673 is found is not legislation enacted for any limited purpose. Rather, it is legislation which is designed to "declare and consolidate the Criminal Law" in this State (see the Preamble to the Criminal Code Act 1913)."

20 Steytler J rejected the submissions by the respondent that the provisions of the Crimes (Confiscation of Profits) Act 1988 evinced an intention that the general provision made by s 673 of the Code is intended to be displaced by the more specific provisions of that Act.

21 This appeal involves, in the immediate sense, the construction of subs 32A(1) and (3) of the MDA: has a person who has been convicted summarily of an indictable offence under s 6(1) been convicted of a serious drug offence?

22 Section 673 of the Code is of general application and applies to s 32A of the MDA unless it is expressly or impliedly excluded from application to that statutory provision. It is not expressly excluded. The issue in this appeal is whether it is impliedly excluded.

23 The respondent submits that the application of s 673 of the Code is impliedly excluded from MDA s 32A because subs 32A(1) provides that the Court may declare the person to be a drug trafficker on the application of the Director of Public Prosecutions or a police prosecutor. The respondent submits that the use of the specific term "police prosecutor" used in juxtaposition with "Director of Public Prosecutions" must be taken to refer to applications being made by the Director or by a prosecuting police officer. Prosecuting police officers appear only in Courts of Petty Sessions. If those words are given their natural meaning, the effect would necessarily and inevitably be to displace the operation of s 673 of the Criminal Code.

24 The respondent placed reliance upon the decision of Roberts-Smith J in Perejmibida v Skelcher [2002] WASCA 2; (2002) 127 A Crim R 549. In Perejmibida, the respondent had been charged with an offence that he was in possession of a prohibited drug, namely methylamphetamine, with intent to supply it to another, contrary to s 6(1)(a) of the MDA. The respondent had been convicted on three previous occasions of offences under the MDA, which qualified as previous convictions of serious drug offences for the purposes of s 32A of the MDA. The appellant had applied to the Court of Petty Sessions for a declaration that the respondent was a drug trafficker. The appellant submitted to the Magistrate that he had been convicted summarily of an indictable offence triable summarily and it was not open for the Court of Petty Sessions to make the declaration because his conviction for an indictable offence tried summarily was not a conviction for a serious drug offence as prescribed by s 32A of the MDA.

25 Roberts-Smith J held that s 673 of the Criminal Code would apply to a summary conviction for an offence under s 6(1) of the MDA unless necessarily excluded by the terms of the MDA itself. His Honour accepted that the severe consequences that automatically flow from the making of a declaration under s 32A of the MDA is a factor strongly militating in favour of a construction which would not exclude the operation of s 673 of the Criminal Code. His Honour also accepted that if the meaning of the provision remains ambiguous or unclear even after the application of the relevant principles of statutory construction, then the construction which would not extend the operation of the confiscation provisions, should be adopted. Roberts-Smith J held that the terms of s 32A of the MDA impliedly displaced the operation of s 673 of the Criminal Code and hence that a summary conviction by a Court of Petty Sessions for an indictable offence is a conviction of a serious drug offence for the purposes of s 32A of the MDA. His Honour said:

"[86] ... the use of the specific term 'police prosecutor' used in juxtaposition with 'Director of Public Prosecutions' must be taken to refer to applications being made by the Director or by a prosecuting police officer. Prosecuting police officers appear only in Courts of Petty Sessions. They have no right of audience in the District or Supreme Courts.

[87] If the respondent's submission that s 32A does not permit an application for a declaration to be made in a Court of Petty [Sessions] were correct, the words 'or a Police Prosecutor' could never have any effect and would be wholly otiose. It would be contrary to principle to construe the section in that way. If those words are given their natural meaning, the effect would necessarily and inevitably be to displace the operation of s 673 of the Criminal Code.

[88] I have accordingly come to the conclusion that on its proper construction, an indictable offence under s 6(1) of the MDA remains an indictable offence, albeit dealt with summarily under s 9(2), within the meaning of s 32A of the MDA. Such a conviction by a Court of Petty Sessions is therefore a conviction of a 'serious drug offence' for the purposes of s 32A of the MDA."

26 Roberts-Smith J found that a conviction by a Court of Petty Sessions under s 9(2)(a) of the MDA is a conviction for a serious drug offence for the purpose of s 32A because if it were not, then the words "or a police prosecutor" in s 32A could never have any effect and would be wholly otiose. However, on the hearing of this appeal, counsel for the appellant submitted that there are circumstances where a police prosecutor can apply to a Magistrate for a declaration that a person is a drug trafficker notwithstanding that s 673 of the Criminal Code generally applies to s 32A of the MDA to render a conviction for an offence under s 6(1) tried summarily under s 9(2)(a) to be a conviction for a simple offence and hence not a serious drug offence. Counsel says that those circumstances arise under s 9(2)(d) of the MDA.

27 Counsel for the appellant submits that s 673 of the Criminal Code provides that when a person has been summarily convicted of an indictable offence, the conviction is deemed to be a conviction of a simple offence for all matters relating to penalty, including forfeiture. That is the effect of the High Court decision in Ross and the decision of Steytler J in Hester v Davies. Counsel submits that the deeming provision of s 673 of the Criminal Code does not apply where a person is convicted by a Court of Petty Sessions but committed to the District Court for sentencing pursuant to s 9(2)(d) of the MDA. In those circumstances the clear intention of the statutory provision is to displace the operation of s 673 of the Code because s 9(2)(d) is dealing with penalty. Counsel submitted that it would be absurd if s 673 of the Code would still operate in circumstances where the Magistrate exercises the statutory power to commit the convicted person for sentencing as if he had been convicted on indictment.

28 Where a person is convicted in the Court of Petty Sessions of an offence against s 6(1) of the MDA and committed to the District Court for sentencing pursuant to s 9(2)(d) of the MDA, a police prosecutor may apply to the Court of Petty Sessions to declare the convicted person to be a drug trafficker.

29 It is clear that Roberts-Smith J was not referred to the exceptional circumstances whereby under s 9(2)(d) of the MDA a person may be convicted summarily and committed for sentence as if she had been convicted on indictment. In those circumstances, the operation of s 673 of the Criminal Code is displaced. Thus, the words "or a police prosecutor" in s 32A of the MDA can have effect and is not wholly otiose even if s 673 operates to deem a person convicted by a summary court of an indictable offence under s 6(1) to have been convicted of a simple offence for the purposes of s 32A of the MDA, other than in circumstances where the person is committed to the District Court for sentencing pursuant to s 9(2)(d) of the MDA.

30 Counsel for the respondent submits that s 32A(3) of the MDA defines "serious drug offence" to mean an indictable offence under s 6(1), s (7)(1) or s 33(2)(a), and that a person convicted of an indictable offence under s 6(1) is convicted of a serious drug offence whether the conviction be on indictment or summary. That is, the relevant criterion for whether a conviction is a conviction of a serious drug offence is whether the offence was an indictable offence under s 6(1) not whether it was tried on indictment or summarily.

31 However, if the legislature had intended the definition of serious drug offence to refer to any offence under, relevantly, s 6(1), whether tried on indictment or summarily, then one may have expected the definition of serious drug offence to refer simply to an offence under s 6(1). The reference to an indictable offence under s 6(1) tends to suggest that not all offences under s 6(1) fall within the definition of serious drug offence. That consideration supports the construction advanced by the appellant, that is a conviction of an indictable offence under s 6(1) does not include a summary conviction for an offence under s 6(1) that is deemed by s 673 of the Criminal Code to be a conviction for a simple offence, other than where the person is committed to the District Court for sentencing pursuant to s 9(2)(d) of the MDA.

32 In my view, a purely textual analysis of s 32A of the MDA does not lead to the conclusion that the operation of s 673 of the Criminal Code to the provisions of s 32A(1) of the MDA has been excluded. In those circumstances, the principles of statutory construction referred to by Roberts-Smith J in Perejmibida lead to the conclusion that the Court should find that the operation of s 673 of the Criminal Code has not been excluded.

Relevant principles of statutory construction

33 There are three relevant principles of construction. The first arises from the approach of courts to the interpretation of penal statutes. The most frequently quoted statement in recent cases is that of Gibbs J in Beckwith v R [1976] HCA 55; (1976) 135 CLR 569 at 576:

"The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences"

34 Statutory provisions dealing with the confiscation of property in connection with criminal activity have been equated with penal provisions: any ambiguity is therefore to be construed in favour of the owner of the property: Forbes (Collector Customs, NSW) v Traders Finance Corp Ltd [1971] HCA 60; (1971) 126 CLR 429 at 433; Cheatley v R [1972] HCA 63; (1972) 127 CLR 291.

35 Secondly, there is a presumption that legislation does not interfere with vested proprietary interests. In Dossett v TKJ Nominees Pty Ltd [2003] HCA 69; (2003) 78 ALJR 161, Kirby J, at [85], enunciated the long-established, common law principle that if legislation is to abolish individual rights it must be clear and unambiguous. At [86] - [87] his Honour said:

"[86] The greater insistence by the Court upon the application of this principle of late can probably be explained by reference to the growth of legislation in recent times. It may also be affected by enlarged appreciation of the importance of fundamental human rights that shape contemporary understandings of Australian law. In many cases, but particularly in recent years, this Court has insisted upon this principle. It lessens the risk of the abolition of the rights of individuals by oversight, accident or mistake. To that extent, the courts act in a role 'auxiliary to Parliament and defensive of basic rights'. In many areas of the law, not least in amendments to and repeal of legislation, it is easy to abolish established rights without intending to do so.

[87] ... Further, as mentioned in Daniels Corporation, those who set out to abolish existing rights are obliged to face the consequences of what they have done. In the modern processes of democratic government they are required to assume political accountability for their actions."

36 Thirdly, where competing interpretations of a statute are open, the Court should have regard to the consequences of the competing interpretations. Interpretation by reference to consequences is essentially a shorthand version of the purposive approach to interpretation. The interpretation advanced by the respondent would lead to extraordinary and draconian results. A person who, with intent to sell or supply it to another, has in his possession a very small quantity of cannabis is guilty of an offence under s 6(1) of the MDA. For example, a person may have, in a social context, supplied a single cannabis cigarette to a friend. That person would be guilty of an offence under s 6(1) of the MDA. They would be liable, if sentenced by a summary court, to a fine not exceeding $5,000 or to imprisonment for a term not exceeding 4 years. If that person has been convicted of similar offences twice before then he or she could, if the respondent's construction is correct, be liable to be declared a drug trafficker. If the respondent's interpretation of the MDA is correct, that person would be liable to confiscation of all the property that she owns or effectively controls and all property that she has given away at any time before being declared a drug trafficker, regardless of when the gift was made. It is unlikely that the legislature intended the CPCA to operate with such disregard to the circumstances of each case.

37 For all of those reasons, s 32A of the MDA should be interpreted so that the operation of s 673 of the Criminal Code is not excluded and a summary conviction for an offence under s 6(1) of the MDA, other than an offence dealt with under s 9(2)(d) of the MDA, is not a serious drug offence.

38 His Honour, the primary Judge, considered that the decision of Roberts-Smith J in Perejmibida v Skelcher (supra) was fatal to the application before him. His Honour concluded:

"Having had regard to what his Honour Roberts-Smith J has said, it seems to me that one cannot say that an issue of importance has not been drawn to the learned Judge's attention or there is some error of reasoning with which I disagree so strongly that I should consider that decision plainly wrong."

39 In the present appeal, counsel for the appellant, Mr Macdonald, drew attention to s 9(2)(d) of the MDA. The effect of that provision is that a Police Prosecutor may apply to a Court of Petty Sessions to declare a person tried in the District Court to be a drug trafficker. That provision, and its significance, was not drawn to the attention of Roberts-Smith J. The presence of that provision means that the words "Police Prosecutor" in s 32A are not otiose even if s 673 of the Criminal Code applies to a summary conviction for an offence under s 6(1) of the MDA, other than an offence dealt with pursuant to s 9(2)(d) of the MDA. For the reasons I have set out above and for the reasons otherwise stated by Roberts-Smith J in Perejmibida v Skelcher (supra) and Steytler J in Hester v Davies (supra), s 673 of the Criminal Code is not excluded. The previous convictions in the Court of Petty Sessions for offences contrary to s 6(1)(a) and s 6(1)(c) of the MDA were not serious drug offences for the purpose of s 32A of the MDA.

"The learned Justice should have found that the previous convictions were entered before the commencement of the Criminal Property Confiscation Act 2000 and therefore cannot support an application under s 32A(1) of the Misuse of Drugs Act 1981 for a declaration that the appellant is a drug trafficker".

42 The appellant submits that s 34 of the CPCA, which authorises the issue of a freezing notice must be read with s 8(1) of the CPCA which provides, in effect, that property is only forfeit on a declaration made as a result of convictions for offences committed after the commencement of the CPCA. The result referred to in s 8(1) of the CPCA, that is being declared a drug trafficker, must, the appellant submits, come about as a consequence of convictions of offences committed after the commencement of the CPCA. The expression confiscation offence in s 8(1) is said to refer to all offences required to support the declaration. That is the three offences over 10 years referred to in s 32A(1)(a).

43 In my view, the expression confiscation offence in s 8(1) of the CPCA does not refer to the three offences over 10 years referred to in s 32A(1)(a). Section 8(1) of the CPCA provides:

"When a person is declared to be a drug trafficker under s 32(1) of the Misuse of Drugs Act 1981 as a result of being convicted of a confiscation offence that was committed after the commencement of this Act, the following property is confiscated -- ..."

44 Where a court declares a person to be a drug trafficker under s 32A(1)(a) of the MDA, the person is declared to be a drug trafficker as a result of being convicted of a serious drug offence in circumstances where the person has previously been convicted of two or more serious drug offences in the preceding 10 years. The previous drug offences are part of the antecedent facts and circumstances on which the legislation operates. However, the person's liability to be declared a drug trafficker results from the conviction immediately preceding the declaration.

45 The relevant principles were considered by the Full Court in R v Rowe (1992) 5 WAR 491. On 21 February 1991 the respondent pleaded guilty to and was convicted of offences under the MDA relating to prohibited drugs and was sentenced to 10 years' imprisonment. The offences had been committed on 3 and 5 April and 10 August 1990. On 4 December 1990 the MDA was amended with effect from that date, by the introduction, amongst other things, of s 32A. On 5 June 1991 the appropriate officer applied in the District Court under s 32 of the MDA for a declaration in respect of the offence committed on 5 April 1990. On 5 June 1991 the appropriate officer also made application for a forfeiture order for the respondent's property in question under s 10(1)(b) of the Crimes (Confiscation of Profits) Act 1980 which stated a person declared to be a drug trafficker may have property confiscated if it had been "derived or realised directly or indirectly by the respondent as the result of the commission of ... offences". These applications were heard on 26 and 28 August 1991. On 12 September 1991 the trial Judge refused to make the declaration that the respondent was a drug trafficker on the grounds that s 32 of the MDA effected a substantive and not merely a procedural change to a penal law, and that s 32A imposed punishment under s 11 of the Criminal Code, and as such could not operate retrospectively. The trial Judge granted a forfeiture order in respect of some of the property in question.

46 Franklyn J, with whom Rowland J agreed, said at 495 - 6:

"The test is concerned with the question whether existing rights or obligations may be affected by the retrospective operation of the statute. If any such is so affected then the statute is not to have retrospective effect unless its language, expressly or by necessary implication, requires that it do so. In my opinion, s 32A does not affect existing rights or obligations. Relevantly, it does no more than provide, by subs (1)(a), that if at the time of conviction of a serious drug offence the circumstances there specified apply to the person convicted or, by subs (1)(b), if the serious drug offence is in respect of a prohibited drug or plant in the quantity or number there specified, the Court convicting the offender shall, on the application of an appropriate officer, declare the offender to be a drug trafficker. That declaration has effect as from the moment of declaration and has no effect, at least under the Misuse of Drugs Act, on any of the offender's rights or obligations. The only 'retrospective' factor involved in its application is the taking into account under s 32A(1)(a) of convictions acquired prior to the commission of the serious drug offence. Such has relevance only to establishing the necessary pre-condition to the making of the declaration, is purely a matter of evidence and does not affect any existing rights or obligations of the offender."

47 Nicholson J, with whom Rowland J also agreed, said, at 498:

"In my opinion, no issue of retrospectivity arose on the facts in respect to the application of s 32A of the Misuse of Drugs Act 1981. The application for a declaration was made pursuant to that section on 5 June 1991. It was heard and determined on 12 September 1991. If the Court had decided to make a declaration, it would have operated from the time it was made. No question arose of the declaration itself operating retrospectively."

48 In my view, ground (b) of the appeal has no merit.

49 For the reasons stated the appeal must be allowed. The application to the primary judge was for an order nisi that the respondent show cause why a writ of certiorari should not be issued to remove into this court, for the purpose of being quashed, the freezing order. On the allowing of this appeal the Court may grant the order nisi or may, in its discretion, grant an order absolute in the first instance for a writ of certiorari.

50 Counsel for the respondent agreed that if the Court was persuaded that the appeal should be allowed then it should grant an order absolute for a writ of certiorari and not merely an order nisi.

51 I would allow the appeal and grant an order absolute for a writ of certiorari to quash the decision of the Justice of the Peace issuing the freezing notice.

• Criminal Property Confiscation Act

• Misuse of Drugs Act
• Criminal Code, s 673

• The issue in this appeal
• The respondent's argument
• Perejmibida v Skelcher
• The appellant's argument
• Respondent's further submissions
• Relevant principles of statutory construction
• Primary Judge's reasons

• Appeal Ground (a)
• Appeal Ground (b)

• Disposition of the Appeal