[1992] FCA 43; (1992) 59 A Crim R 392

Customs - application to impose pecuniary penalty in respect of prescribed narcotics dealing - prior conviction for trafficking in narcotic goods - dispute as to quantity of narcotic goods trafficked in - finding of sentencing judge adverse to defendant - whether defendant can contest issue as to quantity of goods trafficked in in subsequent proceedings under Customs Act.

Practice and Procedure - abuse of process - application for pecunial penalty under Customs Act - prior conviction for trafficking in narcotic goods - whether evidence can be led by defendant to contract matter of fact on which County Court judge based sentence.

Customs Act 1901, ss. 243B, 243C

State and Territorial Laws and Records Recognition Act 1901, ss. 9, 17

Evidence Act 1958 (Vic.) Part VI

Commissioner of Australian Federal Police v Butler and another [1989] FCA 408; 91 ALR 293

Hunter v Chief Commissioner of West Midlands Police [1981] UKHL 13; (1982) AC 529

Saffron v Commissioner of Taxation (unreported: Full Court of Federal Court: 13 August 1991)

Solicitor for the applicant: Australian Government Solicitor

The matter presently before the Court has to do with the admissibility of evidence in proceedings brought pursuant to the provisions of section 243B(1) of the Customs Act 1901.

2. In order to understand the particular issue which falls for decision, it is necessary to establish the legal and factual context in which it arises.

The Customs Act

3. The following are the relevant provisions of the Customs Act.

Section 4(1)

4. In this Act except where otherwise clearly intended:

"Narcotic substance" means a substance or thing that is

named or described in column 1 of Schedule VI or any other

substance or thing for the time being declared by the

regulations to be a narcotic substance.

5. For the purposes of this Division, a person shall be taken to engage in a prescribed narcotics dealing if:

(a) he sells or otherwise deals in, or agrees to sell or

otherwise deal in, narcotic goods imported into

Australia in contravention of this Act;

(b) he imports, or agrees to import, narcotic goods into

Australia in contravention of this Act;

(c) he exports, or agrees to export, narcotic goods from

Australia in contravention of this Act;

(d) he keeps, or agrees to keep, in his possession

narcotic goods imported into Australia in

contravention of this Act;

(e) he conspires with another person or other persons to

import any narcotic goods into Australia, or to export

any narcotic goods from Australia, in contravention of

this Act; or

(f) he aids, abets, counsels or procures, or is in any way

knowingly concerned in, the sale of, or other dealing

in, narcotic goods imported into Australia in

contravention of this Act, the importation of narcotic

goods into Australia, or the exportation of narcotic

goods from Australia, in contravention of this Act, or

the keeping in the possession of any person of

narcotic goods imported into Australia in

contravention of this Act.

(1) ...the Minister, the Commissioner of

Police, the Comptroller or the Director of Public

Prosecutions may institute a proceeding in the Court, on

behalf of the Commonwealth, for an order that a person pay a

pecuniary penalty to the Commonwealth in respect of:

(a) a particular prescribed narcotics dealing

engaged in by him; or

(b) prescribed narcotics dealings engaged in by him

during a particular period.

(2) If, in a proceeding instituted under subsection

(1), the Court is satisfied that the person in relation to

whom the order is sought:

(a) has engaged in a particular prescribed narcotics

dealing; or

(b) has, during a particular period, engaged in

prescribed narcotics dealings;

the Court shall assess, in accordance with section 243C, the

value of the benefits derived by the person by reason of his

having engaged in that dealing, or in prescribed narcotics

dealings during that period, as the case may be, and order

the person to pay to the Commonwealth a pecuniary penalty

equal to the value as so assessed.

(3) The Court may order a person to pay a pecuniary

penalty under subsection (2) in relation to a particular

prescribed narcotics dealing, or prescribed narcotics

dealings during a particular period, whether or not the

person has been convicted of an offence, or proceedings have

been instituted in respect of any offence, committed in

relation to that dealing or any of those dealings and

whether or not any moneys or other goods have been seized

under section 229A in relation to that dealing or any of

those dealings.

(1) In this section, a reference to the

defendant in relation to a proceeding under section 243B

shall be read as a reference to a person against whom an

order is sought in that proceeding.

(2) In a proceeding under section 243B, the value of

the benefits derived by the defendant by reason of his

having engaged in a particular prescribed narcotics dealing,

or in prescribed narcotics dealings during a particular

period shall be assessed by the Court having regard to the

evidence before the Court concerning all or any of the

following matters:

(a) the moneys, or the value of the property other

than moneys, that came into the possession or

under the control of:

(i) the defendant; or

(ii) another person at the request or by

the direction of the defendant;

by reason of the defendant's having engaged in

that dealing or in prescribed narcotics dealings

during that period;

(b) the value of any benefit, other than a benefit

of the kind referred to in paragraph (a) that

was provided for:

(i) the defendant; or

(ii) another person at the request or by

the direction of the defendant;

by reason of the defendant's having engaged in

that dealing or in prescribed narcotics dealings

during that period;

(c) in the case of a prescribed narcotics dealing

that consisted of selling or otherwise dealing

in narcotic goods - the market value, at the

time of the dealing, of similar or substantially

similar narcotic goods;

(d) in the case of a prescribed narcotics dealing

that consisted of the doing of any act or thing

other than selling or otherwise dealing in

narcotic goods - the amount that was, or the

range of amounts that were, at the time the

dealing occurred, ordinarily paid for the doing

of a similar or substantially similar act or thing;

(e) the value of the defendant's property before,

during and after he engaged in that dealing, or

before, during and after that period, as the

case may be; and

(f) the defendant's income and expenditure before,

during and after he or she engaged in that

dealing, or before, during and after that

period, as the case may be.

(3) ...

(4) ...

(5) In a proceeding under section 243B, a police

officer or an officer of Customs who is experienced in the

investigation of narcotics offences may testify:

(a) with respect to the amount that, to the best of

his information, knowledge and belief, was the

market value of narcotic goods at a particular

time or during a particular period; or

(b) with respect to the amount, or the range of

amounts, that, to the best of his information,

knowledge and belief, was the amount, or range

of amounts, ordinarily paid at a particular time

or during a particular period for the doing of

an act or thing (not being the selling or other

dealing in narcotic goods) comprising a

prescribed narcotics dealing;

notwithstanding any rule of law or practice relating to

hearsay evidence, and his testimony is prima facie evidence

of the matters testified to.

(6) In calculating, for the purposes of a proceeding

under section 243B, the value of benefits derived by the

defendant by reason of his having engaged in a particular

prescribed narcotics dealing, or in prescribed narcotics

dealings during a particular period, any expenses or

outgoings of the defendant in connection with that dealing,

or those dealings, shall be disregarded.

The substance cocaine is named in column 1 of Schedule VI.

6. The substance hashish is not named in column 1 of Schedule VI, but the substance cannabis resin is so named. (It is said that the terms hashish and cannabis resin are synonymous).

7. Two comments are called for in respect to the form of the application. First, although there is no doubt that the Commissioner of Police is entitled to institute the proceedings, it is clear from the provisions of section 243B(1) that his entitlement to do so is on behalf of the Commonwealth and it seems to me that notwithstanding the normal practice which has been followed in this application, the proceedings should have been brought in the name of the Commonwealth. Second, again in accordance with normal practice, the persons against whom the proceedings have been brought are described as defendants rather than respondents as required by Order 4 Rule 2(2) of the Federal Court Rules. I can understand how this practice has arisen given the terminology used in the relevant sections of the Customs Act, but it is nevertheless incorrect.

8. As the matter presently under consideration relates only to the secondnamed defendant, he will as a matter of convenience be referred to hereafter simply as the defendant.

An order that the Second Defendant pay to the Commonwealth a

pecuniary penalty pursuant to section 243B of the Customs

Act 1901, in such an amount as may be assessed by the Court,

in respect of having sold or otherwise dealt with, between 1

January 1988 and 21 June 1988, narcotic goods imported into

Australia in contravention of the Act, including in

particular the following prescribed narcotics dealings:

(a) between 1 January 1988 and 21 June 1988, having dealt

with 10 ounces of cocaine imported into Australia in

contravention of the Act and having a market value of

$43,000.00, by supplying the same to Ian Francis Doig

(the Third Defendant) for the purpose of sale to other

persons;

(b) between 1 March 1988 and 21 June 1988, having sold 2

pounds of hashish imported into Australia in

contravention of the Act, to other persons, for a

total price of $22,400.00; and

(c) on 19 March 1988, having dealt with 15 ounces of

hashish imported into Australia in contravention of

the Act with a market value of $5,700.00.

10. Although the application was commenced on 20 June 1988 the matter has not been completely dormant in the intervening period. It is however not necessary to trace the history of the proceedings. The applicant is now ready to proceed with the application in an amended form in so far as it affects the defendant and has filed affidavit evidence upon which he seeks to rely. The defendant has filed some evidence in reply. Issues have arisen as to the admissibility of some of the evidence relied upon by the applicant but the major issue between the parties is whether the defendant is entitled in these proceedings to give evidence concerning matters previously dealt with in criminal proceedings in the County Court. On 9 August 1991 an order was made that the issue of the admissibility of evidence be tried as a preliminary issue. The exact nature of the preliminary issue was not precisely defined and accordingly I propose to deal initially with the major issue. Until that is resolved the parties cannot adequately address any consequential issues that may arise.

11. On 4 June 1990 in the County Court at Melbourne, the defendant pleaded guilty to each of 5 counts in a presentment charging that he:

1. Between the 1st day of January 1988 and the 21st day

of June 1988 without being authorized by or licensed

under the Drugs Poisons and Controlled Substances Act

1981 or the regulations thereunder to do so trafficked

in a drug of dependence namely Cocaine.

2. Between the 1st day of January 1988 and the 21st day

of June 1988 without being authorized by or licensed

under the Drugs Poisons and Controlled Substances Act

1981 or the regulations thereunder to do so trafficked

in a drug of dependence namely Cannabis L.

3. Between the 1st day of March 1988 and the 21st day of

June 1988 without being authorized by or licensed

under the Drugs Poisons and Controlled Substances Act

1981 or the regulations thereunder to do so trafficked

in a drug of dependence namely a resinous substance

containing Tetrahydrocannabinol.

4. On or about the 19th day of March 1988 without being

authorized by or licensed under the Drugs Poisons and

Controlled Substances Act 1981 or the regulations

thereunder to do so trafficked in a drug of dependence

namely a resinous substance containing

Tetrahydrocannabinol.

5. On the 21st day of June 1988 without being authorized

by or licensed under the Drugs Poisons and Controlled

Substances Act 1981 or the regulations thereunder to

do so had in his possession a drug of dependence

namely Cannabis L.

Notwithstanding his plea, the defendant contested some aspects of the allegations of fact made by the prosecution in so far as they related to the quantity of cocaine said to have been trafficked. The prosecution case was that 10 ounces had been trafficked at $4,300 per ounce. The defendant's case was that only 2 ounces were involved. The presiding judge heard evidence on what he described as "an issue as to the facts upon which sentence should be imposed". Later, in his sentencing remarks the judge canvassed the defendant's evidence in detail and having concluded that he could not rely on the defendant's testimony said:

In my opinion the conclusion is overwhelming. That is that

throughout the relevant period you were engaged in the

commercial operation of cocaine trafficking the nature of

that operation was that you would purchase from persons not

clearly identified, but probably including Heffernan, and

either sell to or employ Doig as a distributor. The

magnitude of your operation depended largely upon the amount

available from your supplier and the amount that you thought

could be distributed by Doig. I suspect that the only

inhibition upon your level of trafficking in that period is

the limit of supply or of distribution.

In so far as these are material facts pertaining to the

sentence which I must impose I declare myself satisfied on

these factual issues to the standard of beyond reasonable doubt.

12. The defendant was sentenced to terms of imprisonment on each of the 5 counts which amounted to a total effective sentence of 6 years' imprisonment. The judge directed that he serve a minimum term of 4 years before becoming eligible for parole.

13. The defendant (and others with whom he had been jointly charged) unsuccessfully sought special leave to appeal to the Victorian Court of Criminal Appeal against the severity of his sentence. In the course of their reasons given on 26 October 1990 the members of the Court of Criminal Appeal summarised the Crown case against each of the applicants and in respect of the defendant said:

The Crown case was that the telephonic interceptions and

installation of listening devices operated constantly from 1

January 1988 until the homes of the persons concerned were

the subject of police raids and searches on 21 June 1988.

During that time it was said that by those means a number of

illegal transactions were recorded as having been entered

into by various of the persons who were later charged. From

the record of such transactions recorded on more than 700

tape recordings it was possible for the prosecution to

ascertain at least the minimum quantity of a particular drug

which was the subject of a transaction for its sale and the

minimum price charged or paid for it.

On the basis of such material it was alleged by the Crown in

the case of Thomas that with regard to count 1 the

transactions added up to the sale of 10 ounces of cocaine at

$4,300 per ounce making an approximate value of $43,000. In

the case of the charge in count 2 the Crown alleged that

there was a total amount determined by the sale of one pound

of cannabis for $4,000. In respect of count 3 the Crown's

allegation was that Thomas was selling hashish for $25 a

gram which totalled $22,400 for two pounds of hashish and

the Crown also said that there was only that quantity of two

pounds of hashish which related to the total covered by that

count. With regard to count 4, which also related to a

charge of trafficking in hashish, the Crown's allegation was

that the transaction in question which had taken place was

one for the sale of 15 ounces of hashish at $380 an ounce

making a total of $5,700 agreed upon for its sale. Finally,

it was said with regard to count 5 that 18 grams of hashish

had been found in Thomas's home at the time of the execution

by the police of a search warrant.

It should be said that both Thomas and Doig contested the

allegations made by the prosecution against each of them

with respect to the number of transactions and the quantity

and price relating to the transactions that did take place.

The faithfulness of the transcriptions of the various

recordings was not contested. What was challenged was the

interpretation that ought to have been placed upon that

material. That challenge was undertaken by both Thomas and

Doig's giving evidence on oath at the time of hearing their

pleas for leniency. The Judge, however, did not accept the

two applicants as witnesses of truth and was unprepared to

place any reliance upon the evidence given in an attempt to

lessen the seriousness of the crimes in which each was

admittedly involved.

The Court then quoted from the sentencing judge's remarks portion of the passage referred to above.

14. The grounds upon which the defendant had based his application for leave to appeal were described thus:

It is convenient now to turn to the grounds upon which each

applicant relies in support of his application. It is

necessary, we think, to give no more than a summary of them

and to set them out in the order in which they were argued.

Taking first the applicant Thomas he had six grounds in his

notice. Grounds 2 and 6 were not pressed. Ground 5 was an

allegation that the Judge was in error when he stated (as he

did) that he regarded the use and abuse of cocaine as in the

same "league" as heroin. The next ground argued was ground

1 which was a complaint that the Judge's sentences operated

to produce an unacceptable disparity between those sentences

and those imposed by the Judge upon co-offenders. Next, it

was said that the Judge had erred when making certain

findings of fact, namely, "(a) that the applicant was not a

user of cocaine and (b) the extent and nature of the

applicant's trafficking activities". This ground, of

course, involved a complaint that the Judge erred in

rejecting the evidence of Thomas concerning the matters to

which we have already referred. Finally, Thomas relied upon

an allegation that the sentence was manifestly excessive.

For present purposes it is sufficient to say that the Court of Criminal Appeal did not accept the arguments advanced in support of these grounds and special leave to appeal was refused. It may be observed however that the grounds upon which the defendant sought leave to appeal against his sentence did not raise any issue as to the findings of fact made by the sentencing judge.

15. The preliminary issue came before me for hearing on 12 December 1991. Both parties were represented by counsel.

16. The applicant seeks to rely upon the following affidavit evidence.

1. Affidavit of Cedric John Netto sworn 20 June 1988.

2. Affidavit of James Nicholas Irving sworn 18 March 1991 to which is

exhibited copies of:

(a) a County Court presentment against the first defendant

(which is not presently relevant);

(b) the County Court judge's sentencing remarks;

(c) the County Court presentment against Thomas;

(d) the reasons for judgment of the Court of Criminal Appeal.

3. Affidavit of Michael Ryan sworn 5 June 1991 to which is exhibited

a certified copy of the sentencing remarks of the County Court

4. Affidavit of Phillip Ramondo sworn 11 June 1991 to which is

exhibited:

(a) a transcript of the proceedings in the County Court;

(b) transcripts of intercepted telephone conversations which

were in evidence in the County Court proceedings;

(c) a certified copy of the reasons for judgment of the Court of

Criminal Appeal.

5. Affidavit of Peter Sheehan sworn 11 June 1990 to which is

exhibited a copy of a record of interview with the defendant.

6. Affidavit of Peter Sheehan sworn 10 July 1991.

7. Affidavit of Peter Sheehan sworn 6 August 1991.

In reply, the defendant has filed his own affidavit sworn 25 July 1991 and an affidavit of Ian Francis Doig sworn 25 July 1991.

17. The applicant seeks to rely upon the record of the proceedings in the County Court and the judgment of the Court of Criminal Appeal as proof that the defendant trafficked in 10 ounces of cocaine. In his affidavit in reply the defendant denies having dealt in 10 ounces of cocaine but admits to having sold 2 ounces. He also raises other issues which need not be canvassed at this stage. Doig's affidavit supports the defendant's denial.

18. The applicant argues that the defendant is not able in these proceedings to put in issue the quantity of cocaine involved in the prescribed narcotics dealings identified in the amended application.

19. Section 17 of the State and Territorial Laws and Records Recognition Act 1901 (Commonwealth) provides:

17. Evidence of any judgment decree rule order or

other judicial proceeding of any Court of a State or

Territory, including any affidavit pleading or other legal

document filed or deposited in any such Court, may be given

in all Courts by the production of a copy thereof:

(a) proved to be an examined copy thereof; or

(b) purporting to be sealed with the seal of such

Court; or

(c) purporting to be signed by a Judge of such Court

with a statement in writing attached by him to

his signature that such Court has no seal and

without proof of his judicial character or of

the truth of such statement.

In the same Act (s.2) the term Court is defined to include inter alia "all Federal Courts and Courts exercising federal jurisdiction". Clearly, a duly certified copy of the presentment in the County Court can be admitted as evidence in these proceedings. So too, I would think, would be the sentencing judge's remarks, they being part of the record of a judicial proceeding. The transcript of evidence given in the proceedings in the County Court, which is duly certified pursuant to Part VI of the Evidence Act 1958 (Vic.), and thus pursuant to section 135(1) of that Act may be received by every Court in Victoria as prima facie evidence of anything therein recorded, would be admissible in these proceedings by virtue of section 9 of the State and Territorial and Records Recognition Act as a public document which by a law in force in a State is admissible in evidence in a Court of that State without further proof.

20. I do not understand it to be said other than that the presentment, the defendant's guilty plea, the evidence given by him during the sentencing process (including the transcripts of the telephone intercepts which were put in evidence by consent), the sentencing judge's remarks including the details of the sentence imposed and the reasons of the Court of Criminal Appeal for refusing special leave to appeal against sentence are all matters which can properly be proved in these proceedings by the method adopted by the applicant. Whether or not they or any of them are admissible as being relevant to these proceedings will depend upon the use sought to be made of them.

21. The question of whether the defendant is bound by any finding of fact made by the sentencing judge in the County Court is another question.

22. Section 243C(2) of the Customs Act requires the Court in a proceeding under section 243B, to assess the value of benefits derived from engagement in prescribed narcotics dealings "having regard to the evidence before the Court concerning all or any of" six specified matters. Having regard to the nature of the evidence sought to be relied upon by the applicant the only matters with which the Court will be concerned in this proceeding are the quantity of narcotic goods sold or otherwise dealt in and the market value at the relevant time of those or substantially similar goods.

23. Counsel for the applicant canvassed a number of authorities in the course of his argument in support of the proposition that in this case the defendant could not seek to adduce evidence relating to the quantity of cocaine dealt in by him and this for the reason that a finding has previously been made by a judge in the County Court in relation to that issue.

24. Commissioner of Australian Federal Police v Butler and another [1989] FCA 408; 91 ALR 293 involved an application for a pecuniary penalty pursuant to section 243B of the Customs Act. The defendant had previously been convicted on his own plea of 4 offences under State law involving the supply of cocaine and offences under the Customs Act for being knowingly concerned in the importation of cocaine and being in possession of cocaine. The basis upon which the applicant sought to have the Court assess the pecuniary penalty was in accordance with subsections (3) and (4) of section 243C which involved an examination of the increase in the value of the defendant's property over the period in which he had engaged in prescribed narcotics dealings. For reasons which need not be analysed here, but which had a bearing upon the starting date from which the Court could make the necessary calculations the defendant sought to challenge the conviction in respect of one count on the ground that he had pleaded guilty in error and accordingly, it was said, the conviction should be ignored.

25. In response to the defendant's argument that the court was not bound by the convictions but rather must satisfy itself on the totality of the evidence that the defendant had in the relevant period engaged in conduct amounting to "prescribed narcotics dealings", Hill J said at p 301:

It is true that the court must be satisfied that a defendant

has been engaged in a prescribed narcotic dealing or in a

course of prescribed narcotics dealings before it can

proceed to impose a pecuniary penalty under the Act, but it

does not follow from that that a court must of necessity go

behind a conviction which established that fact.

Proceedings for pecuniary penalty may be instituted

notwithstanding that no prosecution for a criminal offence

is in contemplation. In such a case the court must consider

for itself the relevant factual circumstances and reach the

required level of satisfaction before imposing a pecuniary

penalty. But where, however, there has been a conviction

for an offence the ingredients of which necessarily comprise

the same ingredients as are comprised in the definition of

prescribed narcotics dealings then it seems to me that

unless the court is permitted generally to go behind the

conviction the fact of conviction will itself establish the

facts which lead inexorably to the satisfaction of the

court. The conviction will not be merely one fact to be put

into the scales and weighed up against other evidence in

determining whether the court has reached the necessary

satisfaction. Accordingly it is necessary to consider

whether generally the court can go behind a conviction and

set it at naught.

In my view the court is bound by evidence of a conviction

and cannot go behind it or permit a collateral attack on

some element critical to it.

His Honour then proceeded to examine a number of authorities including Hunter v Chief Commissioner of West Midlands Police [1981] UKHL 13; (1982) AC 529 and several decisions of the Federal Court involving questions arising under the Migration Act and at pp302-3, continued:

...in my view public policy prevents a court going behind a

conviction, that is to say seeking to set it at naught or

seeking to challenge a matter upon which the conviction was

based. It would indeed be a source of great embarrassment

if a court in a civil case could rehear a matter which had

been passed upon by a judge and jury and perhaps reach a

conclusion contrary to that reached after the trial. If the

decision of the judge and jury in a criminal case is to be

challenged then that challenge must be mounted by way of an

appeal, the appeal being to the relevant court of criminal

appeal and not in a collateral way in civil proceedings in

another court.

...

A plea of guilty operates as an admission of the essential

legal ingredients of the offence admitted by the plea: R v

O'Neill (1979) 2 NSWLR 582 at 589. Where the plea avoids

the necessity of a trial it is not unusual for facts

relevant to sentence to be stated from the bar table or

contained in an unsworn statement which is read to the trial

judge and provided that those facts are common ground

between the parties they may be acted upon: cf R v Tait

(1979) 24 ALR 473 at 483. I do not, however, think that

there is any real distinction in principle to be drawn

between a case where the conviction follows a trial and

where it follows a plea of guilty so far as the present

issue is concerned.

It is, however, obvious that the matters upon which no

attack can be brought are limited to those matters of fact

upon which the conviction was based. These in the present

case have to be determined having regard to the offence with

which the defendant was charged (it being to that offence

that he pleaded guilty) and include the record of interview

and statements of facts handed to the sentencing judge which

formed the common ground of facts upon which the ultimate

sentence was based.

It would seem logical that the final sentence quoted above should apply with equal force to a case in which, although there may be no "common ground of facts upon which the ultimate sentence was based", factual issues relevant to the sentencing process have been the subject of evidence and findings made by the sentencing judge. But that case is not this case.

26. The sentencing transcript in the County Court reveals that the prosecution case was put thus:

Originally Mr Rochford referred to a number of

conversations suggesting transactions at a certain level.

The first recorded conversation to which he referred took

place on 30th March 1988. In that, you rang Doig and asked

him how he was going. The discussion disclosed that Doig

was in the process of selling two ounces of cocaine which he

had obtained from you.

Mr Rochford claimed that a subsequent conversation on 11th

April 1988, suggested a transaction involving a further

ounce of cocaine. A similar transaction occurred on the

following day.

On 19th April, the conversation suggested a transaction

involving another ounce, took place. There was a minor

transaction on 9th May, but on 21st May, the further

conversation suggested that Doig was in the process of

disposing of two further ounces. The total disclosed in

those conversations was something like ten ounces, and the

price mentioned was $4,300 per ounce, suggesting a total

value of $43,000.

27. The defendant having disputed the magnitude of the alleged trafficking in cocaine, evidence was taken and by consent a bundle of transcripts of telephone conversations was tendered, the accuracy of which was conceded. The judge dealt with each of a number of the recorded conversations and rejected the defendant's evidence in relation to them and other evidence concerning his personal circumstances. However, the judge made no findings as the actual quantity of cocaine trafficked in by the defendant and, although from the general tenor of his remarks he accepted the case put in the opening by the prosecutor, the conclusion that "something like 10 ounces" was involved is not supported. At the most something like 7 ounces could possibly be sustained but there is no such finding. And indeed the passage quoted earlier in these reasons (which was taken up by the Court of Criminal Appeal) suggests that the judge has deliberately avoided making any precise finding on that issue. It was not necessary for the purpose of sentencing to be any more specific than to conclude that the defendant had throughout the relevant period been engaged in the commercial operation of cocaine trafficking. The exact quantity of cocaine trafficked was of no particular importance.

28. In my view, Butler's case is clearly distinguishable from the present case.

29. Counsel for the applicant relies upon the decision in Butler's case to support the proposition that once a court of competent criminal jurisdiction has made findings and passed sentence and the appellate process has been exhausted, no challenge can be mounted to the findings of that court, and that any collateral attack on those findings in civil proceedings would be improper. Reliance was also placed upon the House of Lords decision in Hunter v Chief Constable of West Midlands Police [1981] UKHL 13; (1982) AC 529 for the general proposition that in a subsequent civil action no collateral attack on a final decision reached by a criminal court can be permitted as to do so would be an abuse of process. The decision in Hunter v Chief Constable has recently been the subject of detailed examination by the Full Court of this Court.

30. In Saffron v The Commission of Taxation (Full Court, 13 August 1991) each of the 3 judges (Davies, Lockhart and Beaumont JJ) made reference to, and did not seek to depart from, the general thrust of the decision in Hunter v Chief Constable. Lockhart J said at p 12 of his reasons:

Hunter v Chief Constable is therefore authority from the

highest source in England that, where a final decision has

been made by a criminal court of competent jurisdiction, it

is a general rule of public policy that a civil action

cannot be used to initiate a collateral attack on that

decision; and, if it does, it is an abuse of the process of

the civil court.

The essence of the reasoning of the House of Lords was that

the civil proceedings were a "collateral attack" upon the

criminal conviction, with the dominant purpose of the civil

action being, not to recover damages, but to challenge the

foundation of their conviction at a time when it was likely

that the principal witnesses called for the prosecution at

the trial were either not available or their memories had

faded, and that the only witnesses whose evidence would be

clear would be that of the plaintiffs, the Birmingham

Bombers themselves; that is, the abuse of process lay in the

House's opinion that the proceedings were brought for the

purpose of collateral attack on the final decision of a

court of competent jurisdiction.

Saffron came before the Full Court by way of a case stated in which the question was posed as to whether it was competent in a taxation appeal for the applicant to give evidence which would contradict the factual basis of a prior conviction after trial before a judge and jury on a charge of conspiring to defraud the Commonwealth. The particular question put to the applicant in the taxation appeal to which objection was taken was:

Mr Saffron, do you deny that you and Mr Anderson made an

agreement to the effect that not all of the cash received

from the conduct of businesses in which you were involved

would be declared by an entity which conducted the business?

to which the applicant gave an affirmative answer. The answer clearly contradicted a fundamental fact upon which the earlier conviction was based.

31. In the Full Court, after referring to Hunter v Chief Constable, and quoting a portion of the speech of Lord Diplock at p 541 of the report, Davies J observed at p 8 of his reasons:

But in such a case, it is the purpose of the proceedings

which constitutes the abuse of process, as his Lordship made

clear throughout his speech.

In the present case, so far as appears from the special

case, the taxpayer merely wishes to continue with his

taxation appeals which were instituted for the purpose of

challenging the assessments which issued, which appeals

were, moreover, instituted prior to the taxpayer's

conviction. It has not been shown that there is any purpose

connected with the taxation appeals as would constitute

those appeals an abuse of process.

I see no element of abuse of process in the taxation

appeals. The taxpayer is merely exercising his statutory

right of appeal and, indeed, it is in the public interest

that he should be permitted to do so untrammelled by his

conviction for conspiracy to defraud the Commonwealth.

There was no element of abuse of process in the particular

question asked and answered or in the evidence of that

nature sought to be adduced. Such evidence is relevant to,

indeed essential to, a proper consideration of the taxation

appeals.

Lockhart J canvassed the facts of Hunter v Chief Constable in some detail and after quoting the same passage from Lord Diplock as did Davies J, said at p 11 of his reasons:

His Lordship held that the proper method of attacking the

decision by the trial Judge in the murder trial that the

plaintiffs were not assaulted by the police would have been

to contend that the Judge's ruling that the confessions were

admissible had been erroneous as a ground of his appeal

against his conviction to the Criminal Division of the Court

of Appeal, but this had not been done. His Lordship plainly

held the view that the dominant purpose of the civil action

was, not to recover damages, but to establish "long after

the event when memories have faded and witnesses other than

the Birmingham Bombers themselves may be difficult to trace,

that the confessions on the evidence on which they were

convicted were induced by police violence, with a view to

putting pressure on the Home Secretary to release them from

the life sentences that they are otherwise likely to

continue to serve for many years to come". His Lordship

held that the civil action was a "collateral attack" upon

the conviction of the plaintiffs at the criminal trial.

Later at pp 18-20 in his reasons Lockhart J continued:

In the present case, it is clear that the applicant has a

genuine interest in challenging the assessments issued

against him.

In my opinion it would not be open for the applicant to use

the tax appeals before this Court for the purpose of a

"collateral attack" upon his prior conviction; but there is

nothing before us to suggest that this is the purpose of the

present proceeding. The question of the true liability of

the applicant to income tax has been alive for many years

and existed well before he was charged with the criminal

offence that led to the present point being raised. Indeed,

the appeals against the assessments had been brought over

three years before the applicant was charged with the

criminal offence.

...

It is important to emphasise that the conviction of the

applicant is not a necessary integer in the tax appeals.

Indeed, it seems to me to be a wholly irrelevant matter to

the determination of the issues in those appeals.

What the applicant seeks to do in the tax appeals, as I

understand it, is to deny an agreement between himself and

Mr Anderson to the effect that not all of the cash received

from the conduct of various businesses in which they were

involved would be declared for income tax purposes. This is

an assertion of fact which is relevant to the tax appeals;

and I can see no good reason why he cannot lead evidence to

that effect if he wishes. The respondent may lead evidence

to the contrary and in the result the primary Judge can

determine the facts. But the Court cannot reach or express

a view that the applicant was wrongly convicted of the

offence of conspiring to defraud the Commonwealth. The

processes of and respect for the criminal law would not be

undermined by the applicant leading evidence of the kind

which he seeks to lead. The position would be different if

this evidence was lead for the purpose of impugning the

applicant's conviction or the fairness of his trial.

Beaumont J. also referred to and quoted from Hunter v Chief Constable and clearly adopted the reasoning applied by the House of Lords. After considering other authorities from both Australia and the U.S.A. he posed the question - "Was there an abuse of process in the present case?" In the course of answering that question his Honour said at p 15 of his reasons:

To determine whether process has been abused in the present

context is essentially a question of fact: is the process

of the Court being used for a legitimate purpose or is it

being used for a foreign or ulterior object? (see I.O.C.

Australia Pty. Ltd. v Mobil Oil Australia Ltd. (1975) 49

ALJR 176 at 182.) As Sheppard J. pointed out in Gungor, the

relevant inquiry is with respect to the real purpose or

object in carrying out the examination of the facts

underlying the conviction.

And after referring to the particular facts of the case said at p 16:

It is common ground that the taxpayer may legitimately

pursue his statutory right of appeal against the

assessments. By not objecting to the tender of Ex. A, the

commissioner has accepted that the material (now evidence)

in that document may properly be advanced by the taxpayer in

support. By that evidence, the taxpayer seeks to

demonstrate that he did not derive the income assessed.

This is the central question in the appeals which, it is

common ground, may lawfully be agitated. But the additional

matter sought to be put to the taxpayer by his counsel in

the course of his examination in chief raises, I think, a

question which is collateral to the tax appeals yet, as

counsel for the taxpayer now concedes, it was critical to

his conviction. In my opinion, there is no legitimate

reason for the taxpayer's now pursuing this matter,

collateral as it is, in the exercise of his statutory right

to challenge the assessments by way of appeal to this Court.

The proper inference is that the matter has been raised with

a view to setting his conviction at nought.

In an addendum to his reasons, written after reading Lockhart J's judgment, Beaumont J commented that he differed from Lockhart J only in the application of the relevant legal principle, but as to the principle itself, they were in agreement.

32. Butler's case was referred to by each of the 3 judges in the Full Court. Davies J referred to the fact that counsel for the respondent had relied upon the reasoning and dicta of Hill J in Butler and said of that case that in so far as Hill J's reasoning was contrary to his own, he did not accept it. However, he added that he had not considered the correctness of the decision itself. Lockhart J included Butler with a number of other decisions described as "other cases which concern the question before us", but without making any reference to its facts or the reasoning applied by the judge. Beaumont J simply mentioned it as a decision relied upon by the respondent.

33. Although I have been informed by counsel for the applicant that an application for special leave to appeal against the Full Court decision in Saffron has been made to the High Court the application is yet to be heard and in the circumstances I propose to treat the Full Court's decision as an authority binding upon me. It would appear that there are some dicta in Butler's case which may not be wholly consistent with the approach taken by the Full Court although an analysis of the facts in Butler suggests that the proper inference to be drawn from the attack made on the conviction in that case was indeed that the issue was raised with a view to setting the conviction at nought.

34. In the present case, the Act requires the Court to make an assessment for the purpose of fixing a pecuniary penalty which necessarily involves quantifying the amount of cocaine dealt in by the defendant. The Court is enjoined to have regard to the evidence before it. There can be no question that had the present proceedings gone ahead prior to the criminal proceedings the defendant would have been entitled to call evidence relevant to the question of quantity. And there is no doubt that had he later chosen to plead not guilty to the criminal charges the same question would have been open to be ventilated at his trial. There seems to be no logical reason why a decision by a criminal court ought to be binding on a civil court in subsequent proceedings and not vice versa. Unless of course the purpose of contesting the issue is in fact not bona fide and indeed is an abuse of process. The approach taken by the applicant in this case is that if a party seeks to put in issue one of the relevant facts which in other proceedings elsewhere has been found adversely to the party that amounts to an abuse of process. This is not my understanding of the conclusions expressed in Hunter v Chief Constable and in Saffron. Rather, the rule is that if the previously tried issue is sought to be relitigated not for a bona fide purpose in the subsequent proceedings, but for the ulterior purpose of attempting to set at nought the earlier decision, then that amounts to an abuse of process, and will not be permitted. As, Beaumont J said in Saffron, it is essentially a question of fact to be decided in each particular case.

35. To the extent that I can make a judgment from the material presently before me, I am unable to find any basis upon which the conclusion is open that the defendant's motive is to attempt a collateral attack on his conviction or his sentence. Indeed, his counsel expressly disavows any such intention. It may be that in the course of the proceedings a contrary inference may be drawn, but unless and until there is a proper basis upon which to draw such an inference, the defendant should not be inhibited in leading any evidence he desires to adduce which may be relevant to the issues that arise in this proceeding. Unlike the plaintiffs in Hunter v Chief Constable, he has not initiated these proceedings. He has simply adopted the stance that the applicant must prove his case in the Court upon proper evidence.

36. Following the publication of these reasons I will afford the parties the opportunity to address me on any other questions they may seek to raise concerning the admissibility of evidence.