Australian Federal Police, Com. of v Cornwell, B.R. [1988] FCA 221

JUDGMENT No. 21 Ber

Corres stees —"

IN THE FEDERAL COURT OF AUSTRALIA ) )

NEW SOUTH WALES DISTRICT REGISTRY ) No. G.489 of 1986 )

GENERAL DIVISION )

BETWEEN:

COMMISSIONER OF AUSTRALIAN FEDERAL POLICE =O

Applicant

BRUCE RICHARD CORNWELL

Respondent

EX-TEMPORE REASONS FOR JUDGMENT

BURCHETT J.

This is an application for an order under 8.243F of the Customs Act 1901 in relation to property of which, by a previous order of the Court, the Official Trustee was directed to take control. The order sought, if granted, would authorize the Official Trustee to sell certain of the property, consisting of a

mare known as Singing our Song and certain progeny of that mare.

Section 243F takes its place as part of the series of provisions dealing with the recovery of pecuniary penalties for dealings in narcotic goods. Under those provisions, which

commence with s.243A, pecuniary penalties may be recovered in

2.

respect of benefits derived by a person by reason of his having engaged in a particular proscribed narcotics dealing, or engaged during a particular period in proscribed narcotics dealings. By s.243B, where the Court is satisfied that the person in relation to whom the order is sought has so engaged in a narcotics dealing or narcotics dealings, the Court shall assess the value of the benefits derived by the person by reason of his having done so, and order the person to pay to the Commonwealth a pecuniary penalty equal to that value. Provision is made, in s.243c, for the assessment, and particularly in relation to the evidence upon

which the Court makes the assessment.

An important provision for present purposes is 6.243E, under which, where a proceeding has been instituted for a pecuniary penalty, an application may be made to the Court, ex parte, for an order directing the Official Trustee to take control of property specified in the application, or of all the property of the defendant. It is provided by subsection (2) of that section that, where such an application is supported by an affidavit of an appropriate person specified in the subsection stating that he believes certain matters and setting out' the grounds on which he holds those beliefs, and where the Court considers that, having regard to the matters contained in the affidavit or affidavits, there are reasonable grounds for holding those beliefs, the Court shall make such an order. It is to be emphasized that 8.243E(2) is expressed imperatively, that is to say, in language which appears to leave no discretion, provided