JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION : COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE -v- COURTENAY INVESTMENTS LTD [No 2] [2014] WASC 55
CORAM : EDELMAN J
HEARD : 25 FEBRUARY 2014
DELIVERED : 26 FEBRUARY 2014
FILE NO/S : CIV 2702 of 2012
BETWEEN : COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE
Applicant
AND
COURTENAY INVESTMENTS LTD
HAPPLE LTD
DAVENRITE LTD
Defendants
Catchwords:
Criminal law and procedure - Forfeiture of property - Legislative interpretation and parliamentary intention - Who is 'the person' in the reference in s 64(2)(a) of the Proceeds of Crime Act 2002 (Cth) to 'any proceeding against the person for an offence that constitutes unlawful activity'?
Legislation:
Corporations Act 1989 (Cth)
Crimes Act 1900 (NSW)
Crimes Legislation Amendment (Serious and Organised Crimes) Act (No 2) 2010 (Cth)
Evidence Act 1906 (WA)
Foreign Evidence Act 1994 (Cth)
Mutual Assistance in Criminal Matters Act 1987 (Cth)
Proceeds of Crime Act 2002 (Cth)
Surveillance Devices Act 1998 (WA)
Result:
Preliminary questions answered
Category: A
Representation:
Counsel:
Applicant : Ms W J Abraham QC & Mr E Greaves
Defendants : Mr D Grace QC & Mr C Chenu
Solicitors:
Applicant : Australian Federal Police - Proceeds of Crime Litigation
Defendants : Bennett & Co
Cases referred to in judgment:
Director of Public Prosecutions (Cth) v Mylecharane [2007] NSWSC 1174; (2007) 215 FLR 18
Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 87 ALJR 98
Federal Commissioner of Taxation v Unit Trend Services Pty Ltd [2013] HCA 16; (2013) 87 ALJR 588
Lee v New South Wales Crime Commission [2013] HCA 39; (2013) 87 ALJR 1082
Palgo Holdings Pty Ltd v Gowans [2005] HCA 28; (2005) 221 CLR 249
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355
R v Lavender [2005] HCA 37; (2005) 222 CLR 67
Royal South Australian Yacht Squadron v Attorney-General [1938] SASR 430
Russell v Stephen [2013] WASCA 284
Table of Contents
Introduction 5
This application and the preliminary issues 6
Section 64 of the Proceeds of Crime Act 7
The first preliminary issue: does s 64 of the Proceeds of Crime Act apply? 7
The second preliminary issue: What is a transcript? 21
Conclusion 25
Introduction
1 A hypothetical example. A person is alleged to have defrauded the Commonwealth of millions of dollars. The money obtained by the alleged fraud is used by the suspected fraudster to purchase a title to a vast estate. The estate is also mortgaged to a bank. The person is prosecuted but the jury cannot agree on a verdict. The Australian Federal Police bring proceedings in rem (against the thing) to restrain, and forfeit, the estate under the Proceeds of Crime Act 2002 (Cth). The Australian Federal Police seeks to rely upon transcript from the criminal trial in the forfeiture proceedings. Immediately after the proceedings are commenced the suspected fraudster transfers title to the estate to an associate.
2 Section 64(2) of the Proceeds of Crime Act permits the Court, in determining the forfeiture application, to have regard to the transcript and evidence in any proceeding against 'the person' for an offence that constitutes unlawful activity. But who is 'the person' to which s 64(2) refers? This is the main point raised by this hearing of preliminary issues.
3 In written submissions, the defendants contended, incorrectly, that 'the person' is only the person who claims an interest in the property subject to forfeiture.1 In other words, 'the person' in this example would be the innocent bank. This result is inconsistent with the text, context and purpose of s 64(2). It is also inconsistent with common sense.
4 This written position of the defendants was abandoned in oral submissions.2 But in eloquent oral submissions, which avoided some of the difficulties raised by the construction in written submissions, senior counsel for the defendants asserted an even narrower construction. He said that 'the person' is the person who is alleged to have committed the underlying offence and who makes an application for exclusion (which requires an interest in the property). This submission requires s 64(2) to be read as if the additional words 'and who makes an application for exclusion' were present in the section. It has the effect that if the person chooses not to make an application for exclusion, or transfers the property, then the facilitative provision in s 64(2) will not apply.
5 On the defendants' submission, the reference in s 64(2) to the transcript and evidence in any proceeding against 'the person' does not refer to anyone at all in the hypothetical example. The Court could only have had regard to the transcript and evidence against the alleged fraudster if he had not transferred the estate. This alternative submission confronts further difficulties which render it inconsistent with the text, context and purpose of s 64(2).
6 In contrast with the submission of the defendants, the Australian Federal Police contend, correctly, that 'the person' is the person who is alleged to have committed the underlying offence. It is the alleged fraudster in the hypothetical example. This approach is consistent with the text, context and purpose of s 64(2).
This application and the preliminary issues
7 The Australian Federal Police have sought the forfeiture of $885,003 and interest to the Commonwealth of Australia under s 49(1) of the Proceeds of Crime Act. The Official Trustee in Bankruptcy holds the money under a restraining order under that Act. The money is held on behalf of the defendant companies incorporated overseas: Courtenay Investments (British Virgin Islands), Happle (British Virgin Islands) and Davenrite (Gibraltar).
8 In the hearing of the forthcoming forfeiture application, the Australian Federal Police want this Court to have regard to the transcript and evidence in the previous criminal trial of two persons, Mr Corp and Mr Smith, concerning the alleged offence for which forfeiture is sought: knowing contravention by Mr Corp of officer's duties under s 232(2) of the Corporations Act 1989 (Cth). Neither Mr Corp nor Mr Smith claims any interest in the money which is sought to be forfeited to the Commonwealth. Neither has sought any exclusion order.
9 The two preliminary issues and their answers are below.
Question 1: Whether, pursuant to s 64(2) of the Proceeds of Crime Act 2002 (Cth), the Court may have regard to the transcript of the proceeding of, and the exhibits or any other evidence given in, the criminal trial of Stuart Adrian Corp and Brian Milwood Smith for the purposes of determining the applicant's application for forfeiture pursuant to s 49 of the Act where none of the persons who claim an interest in the property covered by the forfeiture application were parties to the criminal trial?
Answer 1: Yes
Question 2: If the answer to (a) above is yes, whether pursuant to s 64(2) of the Act the Court may have regard to the transcripts located at tabs 2, 3, 7 and 8 of the evidence filed by the applicant on 15 August 2013, for the purposes of determining the forfeiture application?
Answer 2: Yes
Section 64 of the Proceeds of Crime Act
10 The text of s 64 of the Proceeds of Crime Act provides:
The first preliminary issue: does s 64 of the Proceeds of Crime Act apply?
11 This issue concerns the meaning of 'the person' in s 64(2)(a) of the Proceeds of Crime Act.
12 The defendants say that it means the person who committed, or allegedly committed, the underlying offence and who has applied for an exclusion order.3
13 The Australian Federal Police say that 'the person' is a reference only to the person who committed, or is alleged to have committed, the underlying offence upon which the forfeiture application is based.4
14 The key integers in the exercise of determining the effect of Parliament's intention in s 64(2) are statutory text, context, and purpose.5 The starting point, and the end point, is the text.6 But, although the statutory text is the 'surest guide' to Parliament's intention, the text must be read in the widest sense of context, including the general purpose and policy of the provision. 7
15 In this case, the text, context, and purpose of s 64(2) favours, and mutually reinforces, the interpretation of the Australian Federal Police. This is for eleven reasons.
16 First, there is an immediate textual strain in reading 'the person' in s 64(2) as extending beyond the person who is the subject of the alleged or actual underlying offence.
17 At the oral hearing it appeared to be common ground that 'the person' includes 'the person who is the subject of the underlying alleged or proved offence'.8 This directs attention to each of the sections empowering forfeiture orders: s 47, s 48, and s 49. Section 47 requires the Court to be satisfied that 'a person whose conduct or suspected conduct formed the basis of the restraining order engaged in conduct constituting one or more serious offences' (s 47(1)(c)). Section 48 requires that 'a person has been convicted of one or more indictable offences' (s 48(1)(b), s 48(2)(b)). And, although s 49 'need not be based on a finding that a particular person committed any offence',9 it nevertheless requires satisfaction by the Court that an offence has occurred (with the exception where there is no extant application for exclusion from a restraining order).
18 The construction of the Australian Federal Police stops there. But the defendants' submission goes further. It requires s 64(1) to be construed as if the italicised words are included:10
the transcript of any proceeding against the person, who has applied for an exclusion order, for an offence that constitutes unlawful activity
19 There is no textual basis for the inclusion of these words.
20 Secondly, the regime for applications for exclusion orders is dealt with by the Proceeds of Crime Act independently, and separately, from the regime for forfeiture applications. This militates against the defendants' construction of s 64(2) which requires an exclusion application to be made by the person the subject of the alleged or proved underlying offence. Several points can be made about this separate regime.
(i) Exclusion order applications are contained in a different division from forfeiture order applications. Part 2-2, which is entitled 'Forfeiture Orders', is divided as follows:
· Making forfeiture orders (Division 1);
· Other relevant matters when a court is considering whether to make forfeiture orders (Division 2);
· How forfeiture orders are obtained (Division 3);
· Effect of forfeiture orders (Division 4);
· Reducing the effect of forfeiture orders (Division 5);
· The effect of forfeiture orders of acquittals and quashing of convictions (Division 6); and
· Miscellaneous (Division 7).
The procedure for forfeiture orders is contained in Division 3. The procedure for exclusion orders is contained in Division 5, Subdivision B.
(ii) An application for an exclusion order can be heard, and the order made, before a forfeiture application has been heard.11
(iii) An application for an exclusion order can be heard, and the order made, after a forfeiture application has been made.12
(iv) Applications for exclusion orders are subject to different restrictions from forfeiture applications.13
21 Thirdly, the heading to s 64, which is relevant to statutory construction of Commonwealth legislation,14 is also inconsistent with the defendants' submission that s 64(2) requires 'the person' to have applied for an exclusion order. That heading to s 64, 'Procedure on application', concerns the procedure on an application for forfeiture.
22 Senior counsel for the defendants valiantly tried to argue that the heading to s 64, 'Procedure on application' meant 'Procedure on application for forfeiture and sometimes also exclusion'.15 There is no warrant for reading the heading in this way:
(i) the heading of the Part in which s 64 appears is 'Forfeiture Orders' with no reference to exclusion orders;
(ii) the heading of the Division in which s 64 appears is 'How forfeiture orders are obtained' with no reference to exclusion orders; and
(iii) the heading of s 64 follows previous headings concerning 'Notice of application' (concerning applications for forfeiture orders not exclusion orders)16 and 'Amending an application' (concerning applications for forfeiture orders not exclusion orders).17
23 Fourthly, it is very difficult to understand, on the defendants' submission, what is 'the application' to which reference is made in s 64(2): 'The court may, in determining the application, have regard to...'
24 If 'the application', on the defendants' construction, is to mean 'an exclusion application' then, apart from the contextual absurdity described in the second and third points above, a difficulty is that s 64(2) would not apply to a forfeiture proceeding concerning exactly the same property, potentially held at exactly the same time, and which might raise exactly the same considerations as the exclusion application.
25 Alternatively, if 'the application' on the defendants' construction is to be construed as 'the application for forfeiture and the application for exclusion by the person the subject of the underlying offence' then, apart from the difficulty in treating the singular 'the application' as a plural reference to two applications, how is a Court to treat applications for exclusion also brought by innocent parties concerning exactly the same property, potentially held at exactly the same time, and which might raise exactly the same considerations as the exclusion application by the person the subject of the underlying offence? To ignore the transcript in relation only to the exclusion applications by third parties in the multi-party proceedings would be a procedural absurdity.
26 The only sensible meaning of 'the application', consistent with all the context described in the third point above, is that it is a reference to 'the forfeiture application'. Further, the immediately preceding subsection makes express reference to 'an application for a forfeiture order'18 and the immediate subsequent subsection makes reference to the Court making a forfeiture order if a person entitled to notice of the relevant application which is a reference to notice of the forfeiture applications set out in s 61.19
27 The context of all the preceding headings, as well as the preceding subsection and the subsequent subsection highlights the absurdity of limiting s 64(2) to instances involving 'the person who has brought an exclusion application' when the concern of the subsection is the forfeiture application. If there were any doubt about this conclusion, it is confirmed by the Explanatory Memorandum which introduced the preceding provision and which is discussed further below.
28 Fifthly, and although no submissions were made on this point, it may be that where there is only one person who has any interest in the property then no exclusion application need be brought by that person. The person might simply appear at, and contest, the forfeiture application. If the defendants' construction were correct then a person who is alleged to have committed the underlying offence might never bring an exclusion application, since to do so would have the effect of facilitating regard to transcripts and evidence that the Court would not otherwise be able to consider. The person would simply contest the forfeiture application.
29 Sixthly, it was common ground, at least early in the submissions of senior counsel for the defendants, that the meaning of 'the person' in s 64 should be the same as the meaning of 'the person' in s 138.
30 Section 138 is concerned with the procedure on an application for a pecuniary penalty order. As explained below, it was amended at the same time as s 64 and in substantially the same terms. It provides as follows:
31 At first sight, it appears that 'the person' in s 138(2)(a) must mean 'the person who is the subject of the underlying offence', either where the Court is satisfied of conviction of an indictable offence or satisfied that the person has committed a serious offence.20 This corresponds with the meaning submitted by the Australian Federal Police in relation to s 64(2).
32 Perhaps due to this apparent inconsistency between the defendants' construction of near-identical provisions in relation to pecuniary penalties and forfeiture orders, senior counsel for the defendants initially submitted that s 138(2)(a) should be construed as if 'the person' in s 138(2)(a) contained an unexpressed additional limitation to 'the person who opposes the order for a pecuniary penalty'.21
33 One obstacle with this construction is that the words 'who opposes the order for a pecuniary penalty' are not contained in s 138(2)(a).
34 A second obstacle is that reading these words into s 138(2)(a) would create what senior counsel for the defendants acknowledged to be 'real problems'.22 The problem would be that where proceedings are brought against a person for a pecuniary penalty, and that person was tried but not convicted, then that person could prevent the Court having regard to the transcript of the proceedings by not opposing the application for a pecuniary penalty. As senior counsel for the Australian Federal Police submitted also in relation to s 64(2), this would force the Court to re-run the whole trial for the offence.23 This is one of the very things that the section is designed to avoid.
35 Finally, even if the words proposed by senior counsel for the defendants were read into s 138(2)(a), this still would not support the defendants' construction of s 64(2)(a). If the sections were to be construed consistently then s 64(2)(a) would require a limitation that 'the person' is not merely the person who is the subject of the underlying offence but also 'the person who opposes the forfeiture order'. This is not the same limitation as 'the person who seeks an exclusion order' since the person who is the subject of the underlying offence could oppose the forfeiture order without bringing an application for exclusion.
36 Seventhly, I reject the submission made in written submissions by the defendants in their construction of s 64(2) that the definite article, 'the', in the words 'the person' must be a reference to 'the person' in s 64(1).24
37 This written submission was never formally abandoned orally. But it is hard to understand how it is even consistent with the oral submissions of senior counsel for the defendants. On the oral submission, 'the person' in s 64(2) cannot refer to 'any person who claims an interest in property' in s 64(1) since, on the broad statutory definition of interest,25 many of the persons in s 64(1) will be innocent parties such as banks or finance companies. Those innocent parties might claim an interest in the property, but they are not alleged to have committed the underlying offence.
38 The relevant property might be charged to a bank. It might also be the subject of an equitable mortgage to a finance company. A builder might claim a lien over it. It might be held on trust. Under s 64(1), 'any' of the bank, the finance company, the builder, and the beneficiary is a person (which includes a body corporate)26 who may appear and adduce evidence at the hearing of the forfeiture application. The reference to 'the person' in s 64(2) includes a person in s 64(1) who is the person who has committed, or alleged to have committed the underlying offence but only if that person claims an interest in the property. It is not a reference to 'any person who claims an interest in property' in s 64(1).
39 Further, although s 64 is generally concerned with the procedure on a forfeiture application, each of the subsections in s 64 is concerned with a different, and independent, aspect of that procedure:
(1) persons who may appear and give evidence at the hearing of a forfeiture application;
(2) matters to which the Court may have regard in determining the forfeiture application; and
(3) the effect of a failure to give notice to a person entitled to notice of the forfeiture application.
40 The history of s 64 is considered below, but it is pertinent at this point to note that the explanatory memorandum to the Proceeds of Crime Bill 2002 (Cth), which introduced s 64, also treated each subsection independently:
Clause 64 Procedure on application
Clause 64 provides for matters of procedure in the hearing of an application for a forfeiture order.
Subclause 64(1) provides that any person who claims an interest in property included in the application for forfeiture order may appear and adduce evidence at the hearing.
Subclause 64(2) provides that, in respect of an application for a forfeiture order that relies on a person's conviction of an indictable offence, the court may have regard to the transcript of any proceeding against the person for that offence or, if the person is taken to be convicted of that offence because of the operation of paragraph 331(1)(c) (where a court has taken account of the offence in passing sentence on the person for another offence) and proceeding in respect of that other offence. The court may also have regard to any evidence given in those proceedings.
Subclause 64(3) permits the court to make a forfeiture order if a person entitled to notice fails to appear at the hearing.
41 I also do not accept the submission by the defendants that where a section of a statute is divided into sub-sections, that is 'merely an emphatic method of punctuation' so that s 64(2) necessarily directs attention to s 64(1). The first instance decision, from which the defendants quoted for this proposition,27 was written almost a century ago when drafting techniques were different and principles of interpretation were not identical. But, even more fundamentally, even though the section involved in that case arguably was drafted as an emphatic method of punctuation with common introductory words and conjunctive words between the sub-paragraphs, the trial judge nevertheless emphasised that he did not think28
that any definite rule can be laid down as to the effect of sub-sections ... upon construction, but the intention of the Legislature must be collected from the context in which the words relate and according to the sense of the language used.
42 Eighthly, and contrary to the submission of the defendants, in construing s 64(2) the well-known principle sometimes called the principle of legality does not assist. Whether or not that principle began life as a presumption, it is now treated as a rule of construction that protects from 'inadvertent and collateral alteration rights, freedoms, immunities, principles and values that are important within our system of representative and responsible government under the rule of law'.29
43 There are several reasons why this principle does not assist the defendants in this case.
(i) Section 64(2) is not a provision which facilitates depriving a person of property without compensation as the defendants submit. It is a procedural provision concerning evidence in forfeiture proceedings, which are civil.30
(ii) The competing constructions of s 64(2) both involve the admission into evidence of transcripts and evidence of proceedings for an offence that constitutes unlawful activity. The construction proposed by the Australian Federal Police would confine the subsection to the person who is alleged to have committed the underlying forfeiture offence. The construction proposed by the defendants would apply the subsection only if there is a further limitation that the person, who can appear and adduce evidence, has also applied for an exclusion order. This further limitation has no obvious basis in the protection of rights, freedoms, immunities, principles or values.
(iii) In any event, the legislative history and purpose of s 64, discussed below, shows a clear legislative intent. The principle of legality 'does not exist to shield those rights, freedoms, immunities, principles and values from being specifically affected in the pursuit of clearly identified legislative objects by means within the constitutional competence of the enacting legislature'.31
44 Ninthly, it is easy to see the purpose of s 64 when it is understood as the Australian Federal Police submit. That purpose is to facilitate the necessary proof of an offence in proceedings in rem (against the thing) for forfeiture. It is far more difficult to understand the purpose of s 64 on the defendants' construction.
45 The purpose of s 64 must be understood in the context that the legislation concerns proceedings in rem. The proceedings are commenced by originating summons. There might be no defendant to the proceedings. In these proceedings there was initially no defendant. Section 64(3) even provides that a forfeiture order can be made even if 'a person entitled to be given notice of the relevant application fails to appear at the hearing of the application'.
46 In contrast, if the defendants' construction were correct then the facilitative provision in s 64(2) makes a nonsense of the in rem nature of the proceedings. Section 64(2) would be dependent upon the person who allegedly committed the underlying offence not merely appearing before the Court but also making an exclusion application. If that person is deceased then s 64(2) would not apply. If that person has transferred his or her interest in the property to another, even intentionally, then s 64(2) would not apply. And, if an extant application exists for property to be excluded from a restraining order,32 then s 64(2) could never apply in forfeiture proceedings under s 49 unless the Australian Federal Police chose to identify a particular person who has committed the underlying offence. That choice is not required by s 49.
47 Tenthly, extrinsic material provides further support for the construction proposed by the Australian Federal Police. Extrinsic material can be considered to ascertain the meaning of a provision in a number of circumstances including where the provision is ambiguous or obscure33 which, putting the defendants' case at its highest, is the situation here.
48 Legislative history is a matter of context, extrinsic to the text, to which regard is commonly had, including consideration of repealed antecedents of a continuing provision.34 For example, in R v Lavender,35 a majority of the High Court held that part of the Crimes Act 1900 (NSW), prior to its repeal, assisted to answer the question of whether malice was an element of the offence of involuntary manslaughter under the current provisions of that Act.36
49 The defendants relied upon the legislative change which, they submitted, removed from s 64(2) the indefinite article 'a' and replaced it with the definite article, 'the'.37 Once again, it is hard to see how this submission assists the defendants' case as it was put orally. But, in any event, the submission is incomplete. When the legislative history is properly understood it detracts from the defendants' submissions. It does not enhance them. It supports the construction proposed by the Australian Federal Police.
50 The Proceeds of Crime Act commenced on 11 October 2002, although s 64 did not commence until 1 January 2003.38 Upon commencement on 1 January 2003, s 64 was in different terms from the present provision:
64 Procedure on application
(1) Any person who claims an interest in property covered by an application for a forfeiture order may appear and adduce evidence at the hearing of the application.
(2) If the application relates to a person's conviction of an indictable offence, the court may, in determining the application, have regard to:
(3) The court may still make a forfeiture order if a person entitled to be given notice of the relevant application fails to appear at the hearing of the application.
51 As it commenced on 1 January 2003, the reference to 'the person' in s 64(2)(a) was unambiguous. It referred to the person who was convicted of an indictable offence as described in the opening words of s 64(2). As James J, with respect, correctly concluded in Director of Public Prosecutions (Cth) v Mylecharane,39 it 'is clear' that under that provision the Court could have regard to the transcript of evidence from an offender's trial when considering a third party's opposition to forfeiture, and the third party's exclusion application. In that case there was no exclusion application by the person convicted.
52 Section 64(2) of the Proceeds of Crime Act was amended by Sch 1 pt 6 of the Crimes Legislation Amendment (Serious and Organised Crime) Act (No 2) 2010 (Cth) as follows:
53 The effect of these amendments can be represented by showing the current provision marked up.
64 Procedure on application
54 This legislative history confirms the submission by the Australian Federal Police that the words 'the person' in the current s 64(2)(a) are a 'vestige' of the person convicted 'of an indictable offence' as initially provided in that subsection.40
55 Eleventhly, the lack of any legislative intention to make a substantial change to the persons about whom transcript and evidence could be used is also confirmed by the extrinsic materials which explain the purposes of the amendments. Those purposes were to enable the Court to have regard to transcripts of proceedings and evidence:
(i) that do not result in conviction when determining applications for forfeiture; and
(ii) that relate to other offences apart from the forfeiture offence because where a person is alleged to have committed a 'serious offence' under the Act, the person will be liable to forfeit not only proceeds of the specific offence, but also property which represents proceeds of other 'unlawful activity'.
56 The amendments were made to implement the recommendation of the Report on the Independent Review of the Operation of the Proceeds of Crime Act 2002 (Cth) prepared by Mr Tony Sherman AO in July 2006. As the explanatory memorandum to the Crimes Legislation Amendment (Serious and Organised Crime) Act (No 2) explains:
These items implement Recommendation D11 of the Sherman Report, which states that subsections 64(2) … should be amended so that the court can have regard to the transcript of proceedings against the suspect for any offence which constitutes unlawful activity. The Sherman Report considered that the current provision, which limits the court's regard to transcripts of conviction-based proceedings, was unnecessarily constraining. In its submission to the Sherman Report, the CDPP submitted that since non-conviction based confiscation proceedings now form an important part of the Commonwealth confiscation regime, it is appropriate that the court may have regard to transcripts of proceedings that do not result in conviction when determining applications for forfeiture and pecuniary penalty orders. This submission was endorsed by the Sherman Report.
The following example was mentioned in the Sherman Report. If a person was found not guilty because of a hung jury, and the CDPP applied for a forfeiture order or pecuniary penalty order against that person on the basis that his or her guilt was proven to a civil standard, current subsections 64(2) … would not expressly permit a court to have regard to the transcript of the relevant proceedings.
The Sherman Report noted that the court should not be restricted to looking only at transcripts of proceedings which relate to the specific offence which forms the basis of the forfeiture or pecuniary penalty order. The Report noted that there may be cases in which the alleged offence which forms the basis of a forfeiture order application or a pecuniary penalty order application is technically different from an offence of which a person has been convicted. The Report argued that, in such circumstances, it would seem artificial if the wording of subsections 64(2) … [is] interpreted so as not to permit the court to have regard to the transcript from the relevant proceedings.
Further, the Sherman Report noted that evidence and convictions relating to other offences may be relevant to the determination of confiscation applications. For example, where a person is alleged to have committed a 'serious offence' under the Act, the person will be liable to forfeit not only proceeds of the specific offence, but also property which represents proceeds of other 'unlawful activity'.
These items, therefore, remove the references to conviction of an indictable offence (which limit the provisions), and permit the court to have regard to transcripts of any proceeding for an offence that constitutes unlawful activity. (emphasis added)
57 In summary, for these eleven reasons the reference to 'the person' in s 64(2) of the Proceeds of Crime Act is a reference to the person who is alleged to have committed the underlying offence on which the forfeiture application is based.
58 The answer to the first question for determination as a preliminary issue is 'yes'.
The second preliminary issue: What is a transcript?
59 The second preliminary issue concerns whether evidence taken in a foreign country under s 12(1)(a) of the Mutual Assistance in Criminal Matters Act 1987 (Cth), and admitted as evidence in a criminal trial, is material to which the Court can have regard under s 64(2) of the Proceeds of Crime Act in determining a forfeiture application.
60 Prior to the trial of Mr Corp and Mr Smith, the evidence of several witnesses was taken under the Mutual Assistance in Criminal Matters Act. At trial, audio visual recordings of that evidence were 'adduced as evidence' and played to the jury under s 24 of the Foreign Evidence Act 1994 (Cth).41
61 The audio visual recordings were 'evidence given in any such proceeding [against Mr Corp and Mr Smith for an offence that constitutes unlawful activity]'. They are admissible in these proceedings under s 64(2)(b) of the Proceeds of Crime Act. It is the audio visual evidence as played at the criminal trial which is the evidence admissible in these forfeiture proceedings. The 'evidence given' is not any earlier version of the recordings as they were taken overseas prior to any editing.
62 Transcripts of the audio visual evidence were prepared by officers of the Commonwealth Director of Public Prosecutions, apparently prior to the trial.42 During the playing of the audio visual recordings to the jury, Mr Hall SC (who represented the Crown) was present and marked on the hard copy of his transcript any discrepancies between the audio visual recording and the transcript.43 Those amendments were then made by the office of the Commonwealth Director of Public Prosecutions to the electronic version of the transcripts.44 The amended documents are the transcripts upon which the Australian Federal Police wish to rely.
63 Senior counsel for the defendants initially submitted orally that the transcripts are not admissible because they were created prior to the playing of the audio visual recording in court. How, it was asked, could a transcript be a record of court proceedings if it was produced prior to the court proceedings and then amended subsequently?
64 Later in the oral hearing, it was implicitly accepted by senior counsel for the defendants that this was possible, and the point was not pressed.45 This concession was appropriate. A transcript, as commonly understood in law, is a written record of legal proceedings. There is nothing in usage or practice which prevents the transcript from being prepared prior to the legal proceeding and amended so as to reflect accurately the proceeding. One example might be where a stenographer is told that a lengthy affidavit, with which he or she is provided, is going to be read into the transcript. The stenographer, if sufficiently prepared, might transcribe by transferring the electronic copy of the affidavit into the transcript and amending it.
65 The alternative submission made by senior counsel for the defendants was that the transcripts are not admissible under s 64(2)(a) because they are not certified by the person who made them as accurate and complete transcriptions of the contents of videotape recordings as required by s 50A of the Evidence Act 1906 (WA).
66 Section 50A(1) provides that:
A document consisting of a transcript of a recording that is admitted in evidence in any proceedings is admissible in those proceedings as evidence of the contents of the recording if the transcript bears a certificate that purports to be signed by the person who transcribed the recording and meets the requirements of subsection (2).
67 Subsection 2 sets out various formalities including the full name, address and occupation of the certifier, the recording to which the transcript refers, the day upon which the certifier made the transcript and so on.
68 The affidavit provided by the Australian Federal Police contains many, if not all, of the matters required for formal certification under s 50A.46 And the Australian Federal Police have offered the video tapes to the defendants for review and comparison with the transcripts. But the defendants' submission appears to be that either (i) the video recordings need to be entirely re-transcribed and formally certified under s 50A or (ii) at the forfeiture application this Court needs to watch the whole of the video recordings, which run for around three weeks, and prepare reasons for decision in the absence of transcription of those recordings.
69 As a purely practical matter of case management, it is difficult to understand why the defendants press this course. But it is not necessary to consider case management directions to ameliorate these practical difficulties. This is because there are two possible reasons to reject the defendants' submission that s 50A prohibits the Court having regard to the transcript of the videotape evidence.
70 First, s 64(2) of the Proceeds of Crime Act is a broad facilitative provision. It is not expressed to be subject to s 50A of the Evidence Act. It is also a Commonwealth provision intended to have uniform application across the Commonwealth even if provisions such as s 50A (which was inserted by s 46 of the Surveillance Devices Act 1998 (WA)) do not exist in other States.
71 Even more fundamentally, the differences between the operation of the two provisions are substantial. This militates heavily against a construction of 'transcript' in s 64(2)(a) which would mean 'transcript as authorised by particular State legislation'.
72 Section 50A of the Evidence Act is concerned with a circumstance where (i) a recording is admitted in evidence in any proceedings and (ii) a person wishes to admit into evidence the transcript of that recording.
73 Section 64(2) of the Proceeds of Crime Act does not require (i) a recording to be admitted in evidence or (ii) the transcript of the recording to be admitted into evidence. The recording was the evidence in the criminal trial of Mr Corp and Mr Smith. This Court may have regard to it in the forfeiture proceedings but it is not required to do so. Further, the expression 'have regard to' is broader than a requirement of admission into evidence. Although, as a practical matter, a transcript to which a Court proposed to 'have regard' would almost inevitably be admitted into evidence, the language of s 64(2) does not necessarily require this course.
74 Secondly, the Australian Federal Police submit that s 50A is a facilitative provision, not a proscriptive provision. They point to the decision of Martin CJ (Buss JA agreeing) in Coffman v The Queen:47
The relevant portions of transcript are exhibited to the affidavit of a legal practitioner employed by the law firm representing the appellant. They do not bear a certificate complying with s 50A of the Evidence Act 1906 (WA). However, the legal practitioner deposes that she believes the transcript to be a true copy of the transcript of the proceedings before the Royal Commission. It may be inferred from this assertion that the deponent believes that the transcript accurately records the proceedings before that Royal Commission. Throughout these proceedings, although the State opposed the admission of the transcript, it did not contest its accuracy, and took no point in relation to the lack of a certificate complying with s 50A of the Evidence Act. It is therefore appropriate for this court to proceed on the basis that the transcript accurately records evidence given on oath by the witnesses F1 and F2 at the Royal Commission.
75 Senior counsel for the defendants made no submissions on this point. In circumstances in which (i) I did not receive substantial argument on this point and (ii) it may be that the issue of nature of s 50A as facilitative or proscriptive was not argued in Coffman, although there appears to be considerable force in the submission by the Australian Federal Police the second preliminary issue need not be decided on this point. It is enough to rest my conclusion on the first matter above.
76 The final submission of the defendants which was made in opposition to the use of the transcript by the Australian Federal Police was a submission based upon a reduction to absurdity. Senior counsel for the defendants submitted that a 'transcript' could not be simply any record of court proceedings.48 For instance, it might not include the jottings of a member of the public sitting in court.
77 It is unnecessary in this case to decide where the point lies at which a record of court proceedings has sufficient accuracy on its face to amount to a transcript. On the affidavit evidence of Ms Rajan, that point has been well surpassed in this case even if, which is unclear, there remains any dispute about the accuracy of some of the transcription following the amendments made by Mr Hall SC.
78 Each of the arguments by the defendants in relation to the second preliminary issue must be rejected. The second preliminary question must also be answered 'yes'.
Conclusion
79 The use of the definite article, 'the', in s 64(2) of the Proceeds of Crime Act creates some confusion. But when text, context and purpose are all considered the answer to the first preliminary question must be that the Court can have regard to the transcript of proceedings of, and the exhibits or any other evidence given in, the criminal trial of Mr Corp and Mr Smith for the purposes of the Australian Federal Police's current forfeiture application. The first preliminary question is answered in the affirmative.
80 The procedural objections of the defendants to the use in these forfeiture proceedings of transcripts from the video recorded evidence played at Mr Corp and Mr Smith's trial must also fail. The second preliminary question is also answered in the affirmative.
81 This matter is listed for directions next Wednesday, 5 March 2014. The parties should now confer upon any consequential orders following these reasons, and upon proposed directions for a trial without further delay.
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1 Defendants' written submissions, 21 November 2013 [20], [54].
2 ts 106 - 107 (25 February 2014) abandoning the construction set out at [54], and, by implication, also at [20].
3 ts 111, 115, 163 (25 February 2014).
4 Applicant's written submissions, 6 December 2013 [11].
5 Federal Commissioner of Taxation v Unit Trend Services Pty Ltd [2013] HCA 16; (2013) 87 ALJR 588, 597 [47] (French CJ, Crennan, Kiefel, Gageler & Keane JJ).
6 Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 87 ALJR 98, 107 [39] (French CJ, Hayne, Crennan, Bell & Gageler JJ).
7 Russell v Stephen [2013] WASCA 284 [51] (Buss JA, Martin CJ & Hall JA agreeing) and the authorities cited.
8 ts 123 - 124, 163 (25 February 2014) (Mr Grace QC), 140 (25 February 2014) (Ms Abraham QC).
9 Proceeds of Crime Act 2002 (Cth) s 49(2)(a).
10 ts 111 (25 February 2014).
11 Proceeds of Crime Act 2002 (Cth) s 73(1), s 74(1).
12 Proceeds of Crime Act 2002 (Cth) s 73(1), s 74(1).
13 Proceeds of Crime Act 2002 (Cth) s 76.
14 Acts Interpretation Act 1901 (Cth) s 13(1), s 13(2)(d).
15 ts 156 (25 February 2014).
16 Proceeds of Crime Act 2002 (Cth) s 61(1).
17 Proceeds of Crime Act 2002 (Cth) s 62(1).
18 Proceeds of Crime Act 2002 (Cth) s 64(1).
19 Proceeds of Crime Act 2002 (Cth) s 64(3).
20 Proceeds of Crime Act 2002 (Cth) s 116(1)(b).
21 ts 127. But cf ts 163 (25 February 2014).
22 ts 161 (25 February 2014).
23 ts 142 (25 February 2014).
24 Defendants' written submissions, 21 November 2013 [20].
25 Proceeds of Crime Act 2002 (Cth) s 338.
26 Acts Interpretation Act 1901 (Cth) s 2C(1).
27 Royal South Australian Yacht Squadron v Attorney-General [1938] SASR 430, 433 (Cleland J). Affirmed on appeal with no comment about this point: [1939] SASR 329.
28 Royal South Australian Yacht Squadron v Attorney-General [1938] SASR 430, 433.
29 Lee v New South Wales Crime Commission [2013] HCA 39; (2013) 87 ALJR 1082, 1152 [313] (Gageler & Keane JJ).
30 Proceeds of Crime Act 2002 (Cth) s 315.
31 Lee v New South Wales Crime Commission [2013] HCA 39; (2013) 87 ALJR 1082, 1152 [313] (Gageler & Keane JJ).
32 See Proceeds of Crime Act 2002 (Cth) s 49(3).
33 Acts Interpretation Act 1901 (Cth) s 15AB(1)(b)(i).
34 See R v Lavender [2005] HCA 37; (2005) 222 CLR 67, 83 - 84 [41] - [42] (Gleeson CJ, McHugh, Gummow & Hayne JJ); Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, 366 - 368 [17] - [21] (Brennan CJ); Palgo Holdings Pty Ltd v Gowans [2005] HCA 28; (2005) 221 CLR 249, 254 [9] (McHugh, Gummow, Hayne & Heydon JJ).
35 R v Lavender [2005] HCA 37; (2005) 222 CLR 67.
36 R v Lavender [2005] HCA 37; (2005) 222 CLR 67, 83 - 84 [41] - [42] (Gleeson CJ, McHugh, Gummow & Hayne JJ).
37 Defendants' written submissions, 21 November 2013 [54] - [55].
38 Proceeds of Crime Act 2002 (Cth) s 2(1).
39 Director of Public Prosecutions (Cth) v Mylecharane [2007] NSWSC 1174; (2007) 215 FLR 18, 23 [16].
40 Applicant's written submissions, 6 December 2013 [19].
41 Application made 16 April 2007, see transcript, R v Corp, District Court of Western Australia, 14 June 2007, 703 - 710; 14 August 2007, 1590; 21 August 2007, 1642, 1699 - 1700; 23 August 2007, 1748; 28 August 2007, 1785 - 1787; 30 August 2007, 1799; Affidavit of Ms Rajan (sworn 11 November 2013) [8], [12].
42 Affidavit of Ms Rajan (sworn 11 November 2013) [13].
43 Affidavit of Ms Rajan (sworn 11 November 2013) [14].
44 Affidavit of Ms Rajan (sworn 11 November 2013) [15].
45 ts 164 (25 February 2014).
46 Affidavit of Ms Rajan (sworn 11 November 2013) [13] - [15].
47 Coffman v The Queen [2010] WASCA 54 [5].
48 ts 135 - 136 (25 February 2014).