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Bowers & Anor v Director of Public Prosecutions for Western Australia; White v The Director of Public Prosecutions (WA) [2010] HCATrans 277 (21 October 2010)

Last Updated: 25 October 2010

[2010] HCATrans 277



IN THE HIGH COURT OF AUSTRALIA



Office of the Registry

Perth No P12 of 2010



B e t w e e n -



AARON DAVID BOWERS



First Applicant



JILLIAN VALERIE BOWERS



Second Applicant



and



DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA



Respondent



Office of the Registry

Perth No P17 of 2010



B e t w e e n -



GARY ERNEST WHITE



Applicant



and



DIRECTOR OF PUBLIC PROSECUTIONS (WA)



Respondent



Applications for special leave to appeal



GUMMOW J

BELL J



TRANSCRIPT OF PROCEEDINGS



AT PERTH ON THURSDAY, 21 OCTOBER 2010, AT 12.03 PM



Copyright in the High Court of Australia



__________________



MR M.J. McCUSKER, QC: May it please the Court, I appear with my learned friend, MR L.M. LEVY, for the applicants in P12/2010. (instructed by S C Nigam & Co)



MR S.A. SHIRREFS, SC: If it please the Court, I appear on behalf of the applicant in matter P17/2010. (instructed by Holborn Lenhoff Massey)



MR B. FIANNACA, SC: May it please the Court, I appear with my learned friend, MR G. FARLEY, on both applications. (instructed by Director of Public Prosecutions for Western Australia)



GUMMOW J: Mr Fiannaca, we will hear from you first in both matters.



MR FIANNACA: If it please the Court. Your Honours, so far as both matters raise the question of the interpretation of section 147 and what meaning is to be given to the words “criminal use” in section 147 that was dealt with by her Honour Justice McLure, with whom the other justices agreed, in the court below at page 51 of the application book in relation to White v The Director of Public Prosecutions through to page 54.





We have set out in some detail the way in which the provisions of the Act operate to get to the point where an application is made for a declaration for a crime-used property substitution, in respect of property that was crime used by a respondent but which is not available for confiscation, essentially because the property was not owned or effectively controlled by the respondent, and that is the case in both these matters.



Now, the primary position, in our submission, is that the legislation has to be given meaning so that all the relevant provisions of the Act are consistent with the language and purpose of the statute. We referred to Project Blue Sky at paragraph 21 of our submissions at page 43 of the application book in the Bowers matter. The only way in which that can be done in relation to the construction of the words “criminal use” in section 147 and therefore, relevantly for the purposes of section 22 of the Act under which the application for a crime-used property substitution declaration is heard is to consider where that term appears within the Act, and it only appears in four places.



GUMMOW J: Is this Act the product of any report by any law reform body?



MR FIANNACA: Not that I am aware of in terms of a report. There was previous legislation which was obviously reviewed for the purposes of the enactment of this particular Act. The other places in which the term “criminal use” appears, your Honours, is sections 22 – the places where it appears, I should say are sections 22, 23, 82(4)(b), and 87(1)(b). Sections 22 and 23 of the Act are concerned with the hearing of application or a crime-used property substitution declaration.



Section 82 is concerned with the release of property which the subject of a freezing order by an innocent party spouse, and I will use that as a summary description of the person who can make an application. Section 87 is concerned with the release of property from confiscation, and in each case we are concerned with crime-used property.



Your Honours, so far as the argument that has been put by the applicant is concerned in respect of the words “criminal use”, it depends on giving the words “use” and “use” in section 147 a different meaning to the meaning of the word “used” in the composite expression in section 146 where reference is made to “crime-used property”, and crime-used property is defined.



Now, in our respectful submission, there is simply no basis upon which, and the court below found, and we say correctly, that there is no basis upon which it can be said that the legislature intended those words to carry anything over and above the meaning that the person who has criminally used property for the purposes of section 147 used the property in the sense that he did certain acts or activities such as to bring the property within the meaning of section 146, because that ultimately is what it is concerned with - - -



BELL J: I think Justice Templeman had in mind that section 22(3), with the rebuttable presumption expressed there, seems to be contemplating that you may have crime-used property not the subject of a criminal use relevantly.



MR FIANNACA: Yes. In our respectful submission, that does not follow from the use of the description “criminal use” in subsection (3).



BELL J: Why is that?



MR FIANNACA: It is simply that subsection (3) is there concerned with the presumption that arises if a person has actually been convicted of a relevant confiscation offence. The person is then presumed to have made criminal use of the property. The focus, and this is, in our respectful submission, where the court at first instance has erred in both cases, but where the court below has correctly interpreted the provisions, the purpose of subsection (3), as is the purpose in section 147, is to indicate in respect of the person about whom the application is being made that that person is in fact the person who made criminal use.



So it works in this way, if I can say it. The legislation is here, in these provisions, concerned with crime-used property. The question is who has made criminal use of that property? Is the respondent in these proceedings the person who made criminal use of the property as defined in section 146 so as to, first of all, have the presumption apply to them under section 22(3), and in relation to section 146, to be the person in respect of whom it is necessary to show that that person does not have ownership or effective control of the property.



So it a means by which to focus on the person who is the respondent and to determine whether it is that person who has made criminal use in the sense of having brought the land, the property, whatever it might be, within the provisions of section 146 to make it crime-used property.



BELL J: I think another strand of the reasoning was that when you looked to 147 it speaks of a person’s use or intended use of property in a particular way. It is rather difficult to fit that in, on one view, with a construction that picks up 146(1)(c).



MR FIANNACA: In our submission, no, because the question that has to be asked in respect of 146(1)(c) is whether the use that was made of the property by the respondent involved an act or omission that was done, or omitted to be done, or facilitated in or on the property in connection with the commission of a confiscation offence. In other words, one is using the property at any time that the person is doing some activity on the property. The question is what was that activity?



That, in our respectful submission, is all that section 147 is here concerned with; to determine whether the person that is the subject of the proceedings, against whom the application for a declaration is being sought, is the person who did use the property in a way that brings it within the definition of section 146. In other words, is this the person who criminally used the property in the sense that the property is crime used? So it is only if one goes down the path, which both judges did at first instance in these matters - - -



BELL J: Can I just take this up with you? One can understand the notion of using the property in a way that brings it within the definition of crime-used property when one looks to (1)(a) or (b), it is just that it is rather more difficult conceptually to see how an individual is using the property and bringing it within (1)(c).



MR FIANNACA: Only if one takes the view which the Court of Appeal said was not the correct view, and in our respectful submission - - -



BELL J: I appreciate the Court of Appeal took that view, but - - -



MR FIANNACA: I was going to say, your Honour, only if one takes the view that each of these categories are exclusive of each other and, in our respectful submission, there is nothing about the language of the section, 146, to suggest that they have to be read exclusively of each other. So in other words, the doing of an act or an omission on the property in connection with the commission of a confiscation offence may well involve the use of the property in connection with the commission of an offence as defined in (1)(a).



BELL J: Well, it may, but (c) is in a different category to the sorts of considerations that you are directed to in (a) and (b) which look at the use of the property in connection with the offence.



MR FIANNACA: Yes.



BELL J: Subsection (c) picks up a very much broader field.



MR FIANNACA: It does extend it.



BELL J: It is very difficult to conceive of any offence which would not be committed by a person on land or in the airspace above land.



MR FIANNACA: Yes, that is right, but that was dealt with by the court below in the matter of White where her Honour Justice McLure traversed the history of the provision, what had been said in Rintel and made it clear that, at least in terms of section 146(1)(a), the court was not suggesting that any tenuous connection between the property and the commission of an offence would bring it within that provision.



BELL J: Because it would not come within the notion of being used, directly or indirectly, in connection with the commission of an offence. But now turning to (c)?



MR FIANNACA: Yes. The legislature has clearly evinced an intention that any act or omission that is done on property that is in connection with the commission of a confiscation offence is liable to then bring that property within the definition of “crime-used property”.



BELL J: I am just taking up with you if it is possible to conceive of a circumstance where property would not fall within (c), in other words, can you commit a - - -



MR FIANNACA: It may well be that some of the examples that her Honour referred to, for instance, a person simply carrying a package of drugs, let us say cannabis, across more than one property, it cannot by that means be said that the person has committed an act on the property in connection with the commission of a confiscation offence simply by having walked across the property, even though the person is in possession of the drug wherever they may be. So what I am saying, your Honour, is that the court below indicated that there would be some limitations and those limitations - - -



GUMMOW J: What are they, and by what principles are they divined?



MR FIANNACA: By the principles that her Honour indicated, that is that these matters are going to be a question of degree in terms of the interpretation.



GUMMOW J: No, what constitutional matters govern this? This is appropriation of peoples’ property.



MR FIANNACA: Yes, it is appropriation of peoples’ property, but if your Honours please, there is no challenge - - -



GUMMOW J: Prima facie, that is not encouraged.



MR FIANNACA: No. But no one has challenged, certainly not in these proceedings, the constitutionality of section 146 - - -



GUMMOW J: No, you do not have to say it is invalid; the question is by what canons of construction do you construe it and you construe it, I guess, with the common law repugnance of these activities, unless clearly found in statute.



MR FIANNACA: Only if, having regard to the meaning of the provision in the context of the whole of the statute and the clear intention of the legislature in respect of what impact these provisions are to have, there remains some ambiguity, in which case the - - -



GUMMOW J: But you have said there is an ambiguity.



MR FIANNACA: We say there is not an ambiguity - - -



GUMMOW J: But you said there was because you rely on President McLure who said that it has to be read in a particular fashion in particular circumstances.



MR FIANNACA: That is not because of an ambiguity. That is because of what ordinary meaning ought to be given to the word “use” and “use”. So it is not a question of ambiguity, with respect, your Honour. It is simply a matter of what those words both denote and connote.



BELL J: But when we turn to 146(1)(c) we are not looking at “use”.



MR FIANNACA: No, we are not.



BELL J: This is the feature of the scheme of 146(1) that Justice Templeman directed attention to. The distinction between aspects of the use of property in (a) and (b) and the rather different consideration taken up in the breadth of subsection (c), which commended a view, on that analysis, that 147 was to be read by reference to (a) and (b).



MR FIANNACA: A person makes criminal use of property, so the use of the word “use” in the first sentence of 147, and the word “uses” in the phrase “uses or intends to use the property” in 147, are intended to have a different meaning to the word “used” in the compendious term “crime-used”. The term “crime-used” is used in section 146 to refer to property on which any of these things have occurred, that is, property that has been used as per (a) or (b) or (c) or indeed, (3), where a sexual offence, for instance, has been committed on the property. So where Parliament has used that word in a compendious term there is no reason, we would respectfully submit, in logic, or in terms of policy as far as the particular legislation is concerned - - -



GUMMOW J: You may well be right, but we are dealing with special leave applications at the moment.



MR FIANNACA: We are, but our respectful submission is that - - -



GUMMOW J: It does not seem to be as plain as daylight and it does seem to be of public importance.



MR FIANNACA: Can I indicate to your Honour why it may well be seen to be as plain as daylight in another context, because I referred to the provisions in respect of which criminal use is also used, and if I go to 82, for instance, although this question arises in the Bowers matter, and I do not know whether, given that we are dealing with two applications, I will be given the time to deal with, effectively, two sets of submissions, but 82 is concerned with crime-used property and the setting aside of a freezing notice or a freezing order in respect of crime-used property. In the course of setting out the criteria that have to be satisfied before the order would be set aside, in subsection (4) the provision states that:



the property is not effectively controlled by a person who made criminal use of the property –



So here we are dealing with a section that is only concerned with crime-used property we respectfully submit, not with a substitution declaration, and it is using the term “criminal use”, that is, the property is not effectively controlled by a person who made criminal use of the property.



If “criminal use” here is given the restricted interpretation that the applicants contend for in section 147, which is a definition provision for the whole of the Act, then a person who has done an act on the land in connection with the commission of the offence and has therefore brought the land within the definition of “crime-used property” in section 146 and who has effective control of the property, this would mean that the property could be released, or the freezing notice set aside, notwithstanding that the person who has used the property in that way, or has brought the property within the definition of “crime-used property” continues to be in effective control, and that could not have been the intention of the legislature, and it is a matter that was dealt in the court below and we simply adopt what was said there about that.



BELL J: The intention of the legislature from section 82 is a little hard to divine in some respects when one looks at the outcome in the Bowers matter. The innocent party has recourse in relation to crime-used property, but not a declaration with respect to substituted property.



MR FIANNACA: That is right. It is an anomaly, we accept that, your Honours, but it is an anomaly that cannot be overcome by a contrived interpretation of section 82, which is what, in our respectful submission, the applicants have endeavoured to do, and in that regard, I do not know whether your Honours want to hear me on that at this stage; I have just had the red light. May it please the Court. So far as section 82 is concerned, some emphasis appears to be placed on the use of the words in subsection (2):



If the court finds that that property is crime-used, or is not required to decide whether the property is crime-used –



So the “not required to decide whether property is crime-used” is relied on as some indication that this section was intended to extend beyond crime-used property. In our respectful submission, that simply cannot be the case because all that subsection (2) is concerned with is the step before you get to subsections (3) and (4), and that step can be met either by the court actually deciding that the property is crime-used where that is in issue, or if that is not in issue and the court does not have to decide that, then you move straight onto subsections (3) and (4).



So in our respectful submission there is a clear meaning to be given to that provision that does not involve extending the clear intent of this section to be confined to crime-used property. The fact that there are three separate divisions dealing with three different types of property or order, and the release of other frozen property including property that was frozen on the basis of an application for crime-used property substitution declaration in section 84, in our submission, makes it unarguable that section 82 was intended to extend beyond crime-used property.



Your Honours, there is another matter that arises from the White appeal and that is the construction of (1)(a) in section..... In relation to that I have stated our submissions essentially as set out in the written summary, and as put by the court below. In this case that was simply a matter of turning on the facts; it was a factual issue as to whether what had been done on the property was sufficient to bring it within that definition. May it please the Court.



GUMMOW J: We do not need to hear you, Mr McCusker, Mr Shirrefs. We have the benefit of your written submissions. There will be a grant of special leave in each of these matters. They will be listed together as a one-day matter and it obviously would be helpful if there be some liaison between Mr McCusker and Mr Shirrefs in putting the appellants’ positions before us.



AT 12.29 PM THE MATTERS WERE CONCLUDED