Plaintiff v First Defendant

(ii) the charging or proposed charging of the defendant with that offence or a related offence that is a Schedule 2 offence; and

(c) the restrained property is not the subject of an exclusion order under section 22 -

the restrained property, subject to any declaration under section 23, is forfeited to the Minister on the expiry of 60 days after -

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

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

(b) if the application is withdrawn or struck out, on that withdrawal or striking out.

4 The DPP has submitted that his Honour erred in law in both applications in his construction of the term "conviction" in the legislation. Counsel submitted that properly construed, in accordance with binding authority, the term "conviction" in s.35 required his Honour to find that the convictions occurred in each proceeding when the plea was received, the allocutus given and the matter adjourned for plea and sentence and bail extended. It is also put that in interpreting the term "conviction" in the Act, his Honour inappropriately relied upon the case of Maxwell v R[4].

5 It is my understanding that, in the alternative, counsel for the DPP submitted that his Honour erred in law because it was not open to him to find in each case other than that the convictions occurred on the date when the plea of guilty was announced, the allocutus pronounced and the proceeding adjourned for plea and sentence and bail extended.

6 In the Duncan matter, there is a further issue to be considered dependent on the decision reached about the date of conviction. If the submission of the DPP as to the date of conviction is upheld, Mr Duncan seeks to support the ultimate decision on the basis that the application for an exclusion order was made when the application was filed on 18 May 2005. As noted above, this argument raises issues as to the construction and operation of Rule 10.03 County Court Miscellaneous Rules. The DPP submits that the application was made when the first appearance was made before a judge on 2 June 2005. If the former is the correct date of the making of the application for an exclusion order, the application was made within the statutory 60 days. If the correct view is that it was the latter, the application was made outside the statutory 60 days.

Submissions of the plaintiff - the conviction issue.

7 Counsel for the DPP submitted that the term "conviction" was intended by the Parliament to have its ordinary meaning. Counsel submitted that this was the interpretation that had been accepted in several appellate courts under the preceding legislation. The principal cases relied upon were DPP v McCoid[5], Della Patrona v Director of Public Prosecutions (Cth)[2][6] and Director of Public Prosecutions v Helou[7]. Counsel submitted that there was no reason for a different construction of the term in the current provisions where the same approach had been taken to definition of the term as had been taken in the legislation considered in those cases. In particular, the term "conviction" itself is not defined but the term is extended by the definition to situations that would not normally be regarded as conviction situations.[8]

8 Counsel referred to the recent decision of R v Tezer & Davies[9] where the Court of Appeal, citing DPP v McCoid[10], noted the submission of counsel for Tezer that

"Pleading guilty at the arraignment in October 2005 was a conviction of Tezer for the purpose of s.35(1)(e) of the Confiscation Act."

Counsel for the DPP submitted that the factual situation in that case was the same as that in the Nguyen and Duncan cases. Counsel conceded that the court was not asked in R v Tezer to determine that question and, therefore, its decision does not bind on that point. Counsel submitted, however, that it was an indication that the McCoid line of authority continued.

9 In a subtle argument, counsel submitted that the above relevant authorities, together with the leading High Court decision of Griffiths v R [1977] HCA 44; (1977) 137 CLR 293, establish that, as a matter of law, where a person pleads guilty, the allocutus[11] is given to that person or the person is remanded for sentence, that person is regarded as having been convicted, the court having thereby indicated unequivocally its acceptance of the plea and its finding of guilt.

10 Counsel also submitted that there is in fact no special meaning to be applied to a judge's use of the term "remand for sentence" and that what matters is the substance of what occurs. Counsel argued that where a defendant has pleaded guilty, the allocutus has been given and the judge then adjourns the matter for sentence, extending the defendant's bail, the result is the same as formally remanding the defendant on bail for sentencing. Counsel submitted that the judges in the present cases who heard the plea and sentence proceeded as if the defendants had been convicted.

11 Counsel relied in particular upon the following statements in DPP v McCoid[12] from the judgment of Young CJ. The first is the passage his Honour quoted from the leading judgment of Aickin J in Griffith v R[13]

"In the present case the applicant adhered to his plea of guilty and it is plain that Goran J accepted the plea. The judge then went on to hear evidence appropriate to assisting in the determination of the sentence to be imposed, both police evidence as to the nature of the particular crimes admitted and as to his past record and on behalf of the accused in the mitigation of sentence. Having heard that evidence what he did was first to remand the accused for sentence. That in my opinion is an unequivocal indication that he had found the accused guilty, that is convicted him of the offences, because the step of remanding for sentence could not be taken by any court without there having been a conviction."

The Chief Justice shortly afterwards in his reasons stated

"What needs to be emphasised in that passage is that the remanding of an accused person for sentence, whether in custody or on bail, is an unequivocal indication that the accused has been found guilty. Reference may also be made to the judgment of Jacobs J, particularly (137 CLR), at p.316;...

Put in another way, the point is that there must be some act or determination by the court before it can be said that a person has been convicted; see R v Tonks and Goss [1963] VR121, at pp.127-8".

Counsel emphasised the absence of any qualification in the first sentence of the Chief Justice's statement. It should be noted, however, that his Honour was referring to remanding for sentence alone.

12 In support of their argument, counsel submitted that certainty was essential with this critical term in the legislation. Counsel submitted that it would be most undesirable to leave the issue uncertain by treating the issue as a factual matter to be determined on the basis of findings of fact on which views might well differ.

13 In arguing that there is no particular magic in the word "remand", counsel drew attention to the following passage cited by Aickin J in Griffiths v R from a judgment of Gibbs J in R v Jerome and McMahon[14]. Gibbs J found that the court in question had done nothing upon the plea of guilty to indicate a determination of the question of guilt. His Honour added

"The Court might do that by imposing a punishment; by discharging a prisoner on his own recognisance; by releasing him upon parole; or even perhaps by adjourning the proceedings to enable information relevant only to the question of sentence to be obtained. Nothing of that kind occurred in the present case. The pleas of guilty, it is true, were said to be accepted, but they were never acted upon in such a way that the court finally determined the guilt of the accused person".

14 Counsel also relied on the following passage from the judgment of Toohey J in Maxwell v R at 520 where his Honour stated

"There are a number of ways in which a court may show acceptance of a guilty plea. The judge may especially indicate that the accused was convicted before making any order in relation to that conviction. Another way in which the court may act upon a plea of guilty is by the allocutus to which reference was made earlier[15]...there may also be implied acceptance, for instance, by proceeding to pass sentence... or by calling for the record from the jail recorder... In Griffiths v R..., Aickin J held that the remanding of an accused for sentence after a plea of guilty was an unequivocal indication that the accused had been found guilty because the step of remanding could not be taken without there having been a conviction. In the present case, the appellant was remanded for sentence on 25 October 1993 and so, on Aickin J's view, there was already a conviction. There may be a conviction when the judge enters into a consideration of what should be done in relation to sentencing, for example, by hearing evidence relevant to sentencing[16], or even perhaps by adjourning the proceedings to enable information relevant only to the question of sentencing to be obtained[17]".

15 His Honour went on to discuss the distinction between the inferred conviction and a formal one and said that whether or not that distinction is crucial depended upon the circumstance in which the point arises for consideration. Counsel gave as an example the situation where a formal conviction may be necessary to prove conviction where the issue arose in relation to a plea of autrefois convict, as opposed to the situation where a person is arguing for the purposes of an appeal that they have been convicted on indictment.

16 Counsel also referred to dictionary definitions. For example, in the Oxford Companion to Law[18], the word remand is defined as

"To adjourn a hearing before a Magistrates Court to another date, ordering the defendant, unless he is admitted to bail, to be held in custody in the meantime."

In the Concise Law Dictionary[19], remand is defined as

"To adjourn a hearing to a future date, and to order that the defendant, unless admitted to bail, be kept in custody in the meantime."

In the Australian Legal Dictionary[20], remand is defined in the following way:

"(1) To adjourn a judicial proceeding (eg a criminal trial) to a future date, and to order the defendant or prisoner, as the case may be, to be admitted to bail or committed into custody. Hence, "X" was today remanded on bail to appear in the Supreme Court on 30 June 1986 on a charge of rape or "Z" was today remanded in custody to appear in the Supreme Court on 30 June 1986 on a charge of murder.

A person may be remanded at the conclusion of a preliminary hearing or committal proceeding, during their trial, or at the conclusion of their trial pending sentence."

Counsel submitted that these definitions confirm that the term is used simply to describe the process of adjourning a hearing in certain circumstances.

17 Counsel was also critical of the distinction made by his Honour between a trial judge and a listing judge. Counsel argued that this was an irrelevant and wrong distinction and referred to Aickin J's reasons arguing that his Honour did not draw such a distinction.

18 Counsel also submitted that his Honour erred in distinguishing the McCoid line of authority by applying the strict approach advanced in R v Maxwell in the autrefois convict situation[21].

19 As to the alternative approach, it is my understanding that counsel submitted that there was nothing to suggest that there was anything equivocal in the conduct of the judges concerned as and from the arraignment and plea.

20 Counsel for the DPP also submitted that if his position on the timing of the conviction is accepted, then there is no scope for an application for an exclusion from a restraining order in an automatic forfeiture case after the expiration of 60 days because the property will have been forfeited and the restraining order will cease to operate.

21 It is clear from the reasons in both matters that His Honour was well aware and fully apprehended the substance and scope of the relevant decisions and correctly described the test to be applied in determining from the conduct of the judge whether the point of conviction had been reached. In the Nguyen[22] matter he noted that the approach of Aickin J in Griffiths v R was that by accepting a plea, hearing evidence appropriate to determination of a sentence and remanding the accused for sentence, a judge gives

"an unequivocal indication that he had found the accused guilty, that is, convicted him of the offences because the step of remanding for sentence could not be taken by any Court without there having been a conviction."

His Honour then referred to McCoid and stated that the Full Court had stated

another way of asking the question imposed by Aickin J namely,

"Whether the judge had acted in such a manner so as to indicate an unequivocal indication that he had found the accused guilty, ie. convicted him of the offence."

Similar statements were made in the Duncan[23] matter.

22 In my view, no fault can be found with his Honour's statement of principle and statement of the test in these two matters. I refer later to the issue of his Honour's use of Maxwell v R.

23 The error of law initially alleged, however, is said to arise because as a matter of law, where a person has pleaded guilty, an allocutus has been given to that person, the proceeding adjourned or that person has been remanded for sentence, the judge must find that a conviction has occurred. As to the latter, counsel relied on the words of Aickin J that a person cannot be remanded for sentence unless that person has been convicted. Otherwise it is put that each indicates unequivocally that the accused has been found guilty by the court.

24 For present purposes, I will accept the proposition advanced for the DPP that Aickin J and Young CJ were intending to say that that conclusion must follow in all circumstances where a person has pleaded guilty and been remanded for sentence.

25 The test in all cases is whether the conduct relied upon, considered in all the circumstances, indicates unequivocally that the accused has been found guilty and it is conceivable that there may be cases where a "remand" order is made where that may not be so - for example, the term might be used inappropriately. For present purposes, however, I will assume that, as a matter of law, where a person has pleaded guilty and the person has been remanded for plea and sentence or sentence, that act provides an unequivocal indication that the accused has been found guilty.

26 This, however, does not assist the DPP. The difficulty facing the DPP is that the defendants were not remanded for sentence at the critical time. Thus the alleged proposition of law applying in the remand situation is not directly applicable, unless, as the DPP has argued, what occurred when the proceedings were adjourned was the equivalent of a remand for sentence. The alleged error of law can only be made out if it be accepted that the act of adjourning the proceedings and extending bail was the equivalent of remanding each defendant for sentence. In my view, however, the actions are different legally and the two situations cannot be equated.

27 I do not accept the argument that to remand someone for sentence is to do no more than adjourn for sentence. As the definitions in the dictionaries demonstrate, the term is used to cover the situation where a person will, unless admitted to bail, be taken into custody on the basis that the person is convicted. As Aickin J said this can only be done where a person has been convicted. As his Honour said[24]

"Having heard that evidence, what he did was first to remand the accused for sentence. That in my opinion is an unequivocal indication that he had found the accused guilty, i.e. convicted him of the offences, because the step of remanding for sentence could not be taken by any court without there having been a conviction."

Contrary to counsel submissions, the authorities relied on, in my view, clearly attach a special significance to the making of a "remand" order which is absent from the making of an order to "adjourn".

28 As to the administration of the allocutus, "in the ordinary course", that will indicate that the court has found the defendant guilty[25], but whether it does in a particular case will depend on all the circumstances.

29 It seems to me, therefore, that the plaintiff cannot escape the problem that what he seeks to challenge is in fact a decision of fact, a decision that has to be made in light of all the relevant evidence. The question of law that arises in that situation is whether the conduct relied upon by the DPP was an unequivocal indication that the judge had found the accused guilty. As I understand the submission, counsel addressed this as an alternative position.

30 The question his Honour posed for himself was whether the action of the judges who took the plea, administered the allocutus and then adjourned the proceedings provided an unequivocal indication that he or she had found the accused guilty[26]. The facts in each case identified by his Honour can be conveniently summarised as follows

• The arraignment and the taking of the plea occurred on a listing day in the Criminal List where the judge was concerned with sorting out the future handling of matters in the list. The judge was not acting as the "trial judge" for the plea.

These were relevant and significant circumstances because it was highly improbable that the listing judge could, in any particular case in the list, apply his or her mind to the material relating to the offence to be able to exercise any power to accept the plea, or reject it, and do any more than note it. There was no reasonable expectation that the judge would do more than that. It was, therefore, unlikely that in receiving the plea, the judge was accepting it and making a finding of guilt.

The issue did not arise in Griffith v R[27] and, therefore, the fact that Aickin J drew no distinction does not assist.

• On the other hand, his Honour found that the allocutus was put in each case. In traditional circumstances and frameworks[28] that could well constitute unequivocal evidence that the plea was accepted and guilt found. His Honour did not accept it as such.

The allocutus has long since ceased to serve its original function.[29] The question in the present case is whether it was intended to indicate an acceptance of the plea and of the guilt of the defendant or whether it was a procedural step taken before moving on to explore the management of the sentencing process. From that point of view, it was a formal way of ascertaining the defendant's intentions for programming purposes. It may indicate that the judge has found the accused guilty in the right combination of circumstances. But in the present case, the judge was unlikely to have been in a position to decide whether to make a finding of guilt.

• His Honour also found, and placed significance on the fact, that the proceedings were adjourned and existing bail extended.

If the defendants had been remanded for sentence, after the judges had considered the plea material, such action, in combination, may have confirmed the substantive purpose of the putting of the allocutus. However, the unlikelihood of the plea material having been considered in any detail and the failure to "remand for sentence" made it unlikely that at that point guilt had been found. Simply not making a remand order in itself raised a doubt and made the situation equivocal. The bail extension was an extension of the original bail and did not rely or depend upon the making of a conviction as the basis for it. It was consistent simply with that and other matters still being in issue. No order was made which was dependent upon conviction.

31 It seems to me that, at its highest for the DPP, the actions of the judges in the putting of the allocutus and the adjournment for plea and sentence and extension of bail, were equivocal as to whether the relevant judge had found the defendant guilty. But those acts need to be considered in the context of the circumstances in which those actions were taken - notably that they occurred in the context of listing and case management. His Honour was correct, in my view, in finding that there was in fact no unequivocal indication of a conviction in each case until, after hearing evidence on the plea, the sentencing judge remanded each of the defendants for sentence.

32 Counsel for the DPP submitted that the sentencing judges simply launched into the plea and sentence process as if the defendants had been convicted when arraigned. The issue, however, is the inference to be drawn from the conduct of the judges who received the plea, put the allocutus and adjourned the proceedings and extended bail.

33 As noted above, counsel for the DPP, in pressing his arguments, raised concerns about an alleged lack of certainty introduced by his Honour's interpretation and approach. It is important for all concerned that there be certainty as to when a conviction has occurred. That is presumably why the law requires an unequivocal indication of a finding of guilt. In my view, there is certainty as to the test to be applied. If there is any uncertainty under the present law, it arises because the issue is one of fact and concerns the time at which it becomes clear that the court has found the accused guilty. But that will become clear at some point - even if it will only be when the defendant is sentenced.

34 The legal approach suggested for the DPP, in my view, involves a significant change to the law. It would give preference to form over substance and introduce uncertainty and arbitrary outcomes. In the present case there was certainty with the remanding of the defendants for sentence after the hearing of the plea. What the DPP was seeking was "certainty" at the earliest time possible. A disadvantage to the DPP that flows from the alleged "uncertainty" is that he will have to argue the applications for extension orders on their merits. I assume that is not a matter of concern.

35 In my view, the above submissions of the DPP do not demonstrate error of law in his Honour's treatment of the law and its application to the issue of conviction or in his ultimate finding that there was no unequivocal evidence of conviction until the remand for sentence orders.

36 The DPP also submitted that, in interpreting the term "conviction" in the Act, His Honour wrongly relied upon the case of Maxwell v R[30]. Counsel submitted that the judges of the High Court in that matter generally took a stricter approach to the question of what constituted a conviction, but that they were considering that issue in the context of questions of autrefois convict and autrefois acquit.

37 As I read his Honour's reasons in both matters, his Honour referred to this decision as a matter of support and comfort. As I see his Honour's analysis, his Honour was referring to relevant and related authorities which in fact support the proposition that he was taking a moderate approach. I note in particular in Nguyen, His Honour referred to the fact that the concept of automatic forfeiture did not exist at the time of McCoid nor the rights to statutory relief from automatic forfeiture provided in s.35(2) of the Act. His Honour also noted the relevance in interpreting a statutory provision of s.32 of the Charter of Human Rights and Responsibilities Act 2006, referring to the relevant human right being that spelt out in s.20, that a person must not be deprived of his or her property other than in accordance with law.

38 A reading of the test he applied and his decision as to when the unequivocal indication emerged, indicates that he did not take the stricter approach indicated in some of the passages in Maxwell which suggest that disposal of the matter may be required before there can be said to be a conviction. Rather, his Honour applied the other authorities to which I have already referred and in both matters, came to the conclusion that the unequivocal indication was provided when each defendant was remanded for sentence after hearing the evidence on the plea and prior to sentence, but not before.

39 No error of law has been established. On the contrary, in my view, the decisions were correct. It is therefore unnecessary to consider the other issue raised involving the application of Rule 10.03 County Court Miscellaneous Rules.

40 There is one aspect I should, however, clarify. I have proceeded in my analysis of the arguments on the assumption that the word "conviction" in the relevant provisions has the common law meaning. I have proceeded on that basis because it did not appear to me that the learned Trial Judge had in fact departed from that position and the outcome is not altered, in my view, by an application of a more stringent definition. His Honour was plainly concerned by the fact that the confiscation legislation in Victoria is now much more draconian than it was at the time of R v McCoid. That reality has the potential to raise an issue about the construction of all the terms in the Act including the term "conviction". This is not the occasion, however, to embark upon a consideration of that issue.

41 In conclusion, the two cases highlight what I see as a particular problem with the legislative scheme and the provisions.

42 The legislation forfeits people's property. Under such a scheme, there is a risk that property will be forfeited in ignorance and without lawful justification unless the owners of the property receive appropriate notice. Assuming that there is no intention to unfairly discriminate against the persons charged with criminal offences, it is important as a minimum protection that adequate notice be given to people affected by restraining orders about their rights and the circumstances in which their rights to property may be lost.

43 On my reading of the Act, there is no provision which requires any notice to be given to a defendant about his or her rights, and the time limits within which they must be exercised, where such a person is subject to a restraining order and is convicted of an automatic forfeiture offence. The only notice that appears to be required is notice of the original restraining order application or, in the event that such an order is made ex parte, a subsequent notice of the making of the order under s.19.

44 I suggest that consideration needs to be given to reform in this area. There may be also other situations where consideration should be given to additional notice provisions.

[2] Rule (10)(3) of the County Court Miscellaneous Rules 1999.

[3] His Honour did not in the end resolve that question; he analysed the issues on the assumption that the application was made on 2 June 2005 and concluded that it was made in time.

[6] (1995) 38 NSWLR 257.

[7] [2003] NSWCA 301; (2003) 58 NSWLR 574.

[9] [2007] VSCA 123.

[11] Reliance was placed on R v Shillingworth & Cosh (1985) 15 ACrimR 453 where the accused pleaded guilty when still a child and the allocutus was put to him. The discussion focused on the allocutus but it appears he was remanded in custody pending sentencing (at 456) after the allocutus was put. That case, therefore, did not deal with the circumstances in the present case in which the allocutus was not followed by such a remand order.

[15] Citing R v Shillings worth [1985] 1 Qd R537,543 and R v Collins (1994) 76ACrimR 204,210.

[16] Citing Frodsham v O'Gorman [1979] 1 NSW LR683 at 688.

[17] Citing R v Jerome and McMahon [1964] QdR 595 at 604.

[19] 5th edition Sweet & Maxwell 1964; see also Jowitt, Dictionary of English Law.

[20] 2nd edition Marantelli & Tikotin Edward Arnold, Australia

[21] The distinction drawn in DPP v Helou, above.

[26] Nguyen v DPP, at page 2: Duncan v DPP at page 6.

[28] E.g. immediately prior to remand for sentence as in Shillingworth (above) and Ferguson (above).

[29] R v Rear [1965] 2 QB 290; DPP v Ferguson & Anor [2004] VSC 261.