DPP v Attorney General of the Northern Territory of Australia

• Jurisdiction: Northern Territory
• Court: Supreme Court
• Judge: Mildren J
• Judgment Date: 14 January 2011
• Neutral Citation: [2011] NTSC 4
• Docket Number: FILE NO: 105 of 2009 (20922571)
• Date: 14 January 2011

Between:

Director of Public Prosecutions

Applicant

and

Mark Wesley Dickfoss

Respondent/Objector

and

The Northern Territory of Australia

Respondent to the Objection

and

Attorney General of the Northern Territory of Australia

Intervenor

[2011] NTSC 04

Judgment of:

Mildren J

FILE NO: 105 of 2009 (20922571)

SUPREME COURT OF THE NORTHERN TERRITORY

IN THE SUPREME COURT OF THE NORTHERN TERRITORY OF AUSTRALIA AT DARWIN

STATUTORY INTERPRETATION — Criminal Property Forfeiture Act 2002 — statutory obligation to express grounds in order made — grounds referred to in order did not particularise forfeiture offence or which limb of the definition of ‘crime-used property’ was relied on — whether order restraining property invalid — Criminal Property Forfeiture Act 2002, s 45

STATUTORY INTERPRETATION — Criminal Property Forfeiture Act 2002 — whether objector is an ‘innocent party’ — deceased objector — land jointly owned — whether restraining order severs joint tenancy — whether forfeiture order should be made if deceased was an innocent party but other joint tenant was not — method of valuation of deceased's interest

CRIMINAL PROPERTY FORFEITURE — whether property was crime-used property — meaning of ‘property’ — meaning of ‘crime-used’ property — whether there needs to be a substantial connection between the forfeiture offence and the property in Criminal Property Forfeiture Act, s 11

CRIMINAL PROPERTY FORFEITURE — burden and standard of proof in objection proceedings and forfeiture applications — Criminal Property Forfeiture Act, s 63(1)(c), s 96(1), s 136(2)(d)

STATUTORY INTERPRETATION — Criminal Property Forfeiture Act — forfeiture application — whether court has discretion to refuse the application — whether ‘must’ means ‘may’ — Criminal Property Forfeiture Act, s 95(2)

CRIMINAL PROPERTY FORFEITURE — forfeiture application — what needs to be proved — burden and standard of proof — Criminal Property Forfeiture Act, s 96(1)

WILLS AND TRUSTS — joint tenancy — deceased's interest — whether restraining order severs joint tenancy — right and duty of executor of deceased estate to object to forfeiture application — disposition of proceeds of sale — Criminal Property Forfeiture Act, ss 63, 103, 163

CONSTITUTIONAL LAW — Criminal Property Forfeiture Act — s 43(2)(a) and 96(1) — whether invalid — Kable principle — whether s 96(1) invalid as an acquisition of property otherwise than on just terms — Northern Territory (Self-Government) Act 1978 (Cth) s 50(1); Constitution (Cth) s 51(xxxi)

CRIMINAL PROPERTY FORFEITURE — powers of Court when considering application for restraining order — Criminal Property Forfeiture Act, s 43(2)(a) — powers of Court under Sentencing Act s 5(4)(a) — whether double jeopardy

Airservices Australia v Canadian Airlines International Limited (2001) 202 CLR 133; Attorney-General for the Northern Territory v Chaffey (2007) 231 CLR 651; Attorney-General v De Keyser's Royal Hotel [1920] AC 508; Briginshaw v Briginshaw (1938) 60 CLR 336; Bropho v Western Australia (1990) 171 CLR 1 at 17–18; Burnett v Director of Public Prosecutions (2007) 21 NTLR 39; Clissold v Perry (1904) 1 CLR 363; Coco v The Queen (1994) 179 CLR 427; Director of Public Prosecutions ex parte Lawler and Another (1993–1994) 179 CLR 270; Forge v Australian Securities and Investments Commission (2006) 228 CLR 45; International Finance Trust Company & Another v New South Wales Crime Commission and Others (2009) 240 CLR 319; Murphy v Farmer (1988) 165 CLR 19; North Australian Aboriginal Legal Aid Service Inc v Bradley (2004) 218 CLR 146; Palling v Corfield (1970) 123 CLR 52; South Australia v Totani (2010) 271 ALR 662; Wake v Northern Territory of Australia (1996) 5 NTLR 170; Wynbyne v Marshall (1997) 7 NTLR 97, applied

Director of Public Prosecutions v Green (2010) 239 FLR 278, distinguished

Australian Capital Territory v Pinter (2002) 121 FCR 509; Commissioner of Superannuation v Hastings (1986) 70 ALR 625; Della Patrona v Director of Public Prosecutions (Cth) No. 2 (1993) 38 NSWLR 257; R v Hadad (1989) 16 NSWLR 476; Rintel v The Queen (1991) 3 WAR 527, followed

Director of Public Prosecutions v George (2008) 102 SASR 246, followed in part; distinguished in part

R v Ward, Marles and Graham (1989) 1 Qd.R.194, not followed

Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (Northern Territory) (2009) 239 CLR 27; CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; Cooper Brookes (Wollongong) Pty Ltd v Federal Commissioner of Taxation (1981) 147 CLR 297; Re Davis (1947) 75 CLR 409; Fardon v Attorney-General (Qld) (2004) 223 CLR 575; Gypsy Jokers Motorcycle Club Inc v Commissioner of Police (2008) 234 CLR 532; Howie v Youth Justice Court (2010) 27 NTLR 132; Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51; Mansfield v Director of Public Prosecutions for Western Australia (2006) 226 CLR 486; R v Carroll (2010) 267 ALR 57, referred to

Director of Public Prosecutions (WA) v White (2009) A Crim R 192; Director of Public Prosecutions v White [2010] WASCA 47, referred to; followed in part

Constitution (Cth) s 51(xxxi)

Controlled Substances Act 1984 (SA), s 32(1)(a)

Criminal Assets Confiscation Act 2005 (SA)

Criminal Assets Recovery Act 1990 (NSW), s 10

Criminal Property Confiscation Act 2000 (WA), ss 146(1), 146(3)

Criminal Property Forfeiture Act 2002, ss 3, 5(4)(a), 6, 10(2) and 10(3), 11, 11(b), 11(c), 11(1), 11(1)(a), (11)(1)(b) and 11(1)(c), 11(2)(c) and 11(2)(d), 41, 41(2), 42, 43(2), 43(2)(a), 44(3), 45(1)(b), 45(2), 46(1)(c), 51, 59, 60(2)(b), 63, 63(1)(a), 63(1)(b) and 63(1)(c), 63(1)(a)(iii) and 63(1)(a)(iv), 63(2), 63(2)(a), 81(1), 81(2)(a), 82(b), 84, 91(1), 95, 95(1), 95(2), 95(4), 96, 96(1), 103(1), 103(1)(d), 106, 140(a), 143, 163, 163(3), 163(4)

Interpretation Act, s 62A

Judiciary Act 1903 (Cth), s 78B

Misuse of Drugs Act, ss 3(1), 7(1), 7(2)(c), 9(1)(2)(d), 9(2)(f)(i), 9(2)(f)(ii)

Northern Territory (Self-Government) Act 1978 (Cth), ss 6, 50(1)

Sentencing Act, s 5(4)(a)

Supreme Court Rules, chapter 1, r 60.08, r 92.02(1), r 92.06(3); r 92.06(4); chapter 7

Spry, Equitable Remedies, 6 ^th Edn.

Meagher, Gummow and Lehane, Equitable Doctrines & Remedies, 4 ^th Edn.

REPRESENTATION:

Counsel:

Applicant/Respondent to the Objection: R Jobson

Respondent/Objector: A Wyvill SC and G McMaster

Intervenor: M Grant QC and S Brownhill

REASONS FOR JUDGMENT

(Delivered 14 January 2011)

Introduction

1 There are two applications before the Court. The first application is an Objection to a restraining order made on 27 July 2009 by Olsson AJ with respect to a residential property at Lot 370 Darwin River Road by the registered joint owners of the property, Mark Wesley Dickfoss and Alfred Otto Dickfoss, pursuant to s 59 of the Criminal Property Forfeiture Act 2002 (the Act).

2 The second application is an application by the Director of Public Prosecutions that the property, the subject of the restraining order be forfeited to the Northern Territory. The application is opposed by Mr Mark Wesley Dickfoss (hereinafter referred to as the objector). After the restraining order was made, Otto Dickfoss passed away on 24 March 2010. As the property was joint property, under the general law it would be owned by Mark Wesley Dickfoss by survivorship. However the general law has been altered by s 163 of the Act. I will deal with that problem in due course.

3 It is not in dispute that the objections raised by the objector and his late father must be determined first. It is only if one or both of the objections is or are dismissed that the Court can then consider whether or not to make a forfeiture order.

4 One of the grounds upon which the objector seeks to resist the forfeiture order is because it is alleged that both the power to restrain crime-used property under s 43(2)(a) and the power to forfeit crime-used property under s 96(1) are beyond the legislative power of the Territory.

5 The relevant notices required by s 78B of the Judiciary Act 1903 (Commonwealth) have been served. Only the Attorney General for the Northern Territory has intervened. I am satisfied that a reasonable time has elapsed since the giving of the notices and it is appropriate for this Court to proceed.

6 The grounds of the objector's objection, as set out in the objection filed in the Court, is limited to a single ground that the property is neither crime-used nor crime derived property. At the commencement of the hearing I gave leave to counsel for the objector to amend the grounds of the objection to include two further grounds namely:

(b) the Order of 27 July 2009 should be set aside as it fails to comply with s 45(1)(b) of the Act;

(c) both the power to restrain crime-used property under s 43(2)(a) and the power to forfeit crime-used property under s 96(1) of the Act, are beyond the legislative powers of the Territory.

The Facts

7 None of the facts in this case are in dispute. The evidence consists of the following material tendered by Mr Wyvill SC for the objector:

Exhibit A1 — A receipt for $98,000 dated 30 June 2006 recording the objector's Keno winnings at the Litchfield Pub.

Exhibit A2 — The following documents in the hearing book as follows:

• (1) The objector's affidavit of 26 August 2010 at tab 12;

• (2) An affidavit by Gregory Vincent Phelps sworn 23 September 2010 at tab 14;

• (3) The Affidavit of Michael Neal Ward of 3 July 2009, paragraphs 7 and 9 and annexure MNW4 at tab 8;

• (4) The following documents in criminal proceedings SCC 20914469, The Queen v Mark Wesley Dickfoss, namely:

  • (a) The indictment at tab 4

  • (b) The transcript of the hearing on 12 August 2009 at tab 5

  • (c) The Crown facts at tab 6 (pages 1–3 only)

  • (d) A letter from Elva Dickfoss dated 3 August 2009 at tab 6 (pages 8–9)

  • (e) A letter from Dr Aulakh...