BUDGMENT No. 226 <x. . Catchwords Customs - narcotics dealing - assessment of pecuniary penalty. Customs Act ss.243B, 243C COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE v. G393 of 1987 Sweeney, J. Sydney 23 May 88 HARRY LAHOOD IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G 393 of 1987 ) GENERAL DIVISION ) BETWEEN: COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE Applicant AND HARRY LAHOOD Respondent THE COURT: Sweeney, J. PLACE Sydney DATE 23 May 88 MINUTES OF ORDER THE COURT ORDERS THAT: 1. the defendant pay to the Commonwealth a pecuniary penalty in the sum of $180,400. 2. the amount referred to in order 1, be paid by the Official Trustee out of the property of the defendant that came into the Official Trustee's possession or under his control by reason of the orders of Mr Justice Morling made pursuant to Section 243E of the Customs Act 1901 on 13 August 1987. 3. the defendant pay the costs of the applicant of and incidental to the application. Note: Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. IN THE FEDERAL COURT OF AUSTRALIA ) ) NEW SOUTH WALES DISTRICT REGISTRY ) No. G 393 0 ) GENERAL DIVISION ) BETWEEN: COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE AND : HARRY LAHOOD THE COURT: Sweeney, J. PLACE : Sydney DATE : 23 May 88 REASONS FOR JUDGMENT f 1987 Applicant Respondent This matter arises under Division 3 of Part XIII of the Customs Act 1901 ("the Act") and in particular under s.243B of the Act, the r elevant portions which provide as follows:- "2438. (1) Subject to sub-section (7), the Minister, the Commissioner of Police or the Comptroller 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 sub-section (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 {wv (b) has, during a particular period, engaged in prescribed narcotics dealings; the Court shall assess, in accordance with section 243¢c, 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 sub-section (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. (4) An amount payable by a person to the Commonwealth in accordance with an order made under sub-section (2) shall, for all purposes, be deemed to be a civil debt due by the person to the Commonwealth. (5) An order made by the Court under sub-section (2) may be enforced as if it were an order made by the Court in civil proceedings instituted by the Commonwealth against the person to recover a debt due by the person to the Commonwealth. (6) This section applies to and in relation to moneys that come, or other property that comes, into the possession or under. the control of a person either within or outside Australia, and to benefits that are provided for a person either within or outside Australia.". The relevant portions of s.243C dealing with the assessment of a pecuniary penalty provide:- "243c.(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- (1) 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; (5) In a proceeding under section 243B, a member of the Australian Federal Police 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 hia 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.". In his application of 13 August 1987 the Commissioner of the Australian Federal Police (the applicant) sought orders in the following terms:- "L. An Order that the Defendant pay to the Commonwealth of Australia a pecuniary penalty pursuant to the provisions of Section 243B of the Customs Act 1901 (''the Act'), in such amount as may be assessed by the Court, in respect of: (a) The selling or otherwise dealing in by the Defendant or his agreeing to sell or otherwise dealing in, narcotic goods imported into Australia in contravention of the Act during 1983. (b) The importation by the Defendant or his agreeing to import, narcotic goods into Australia in contravention of the Act during 1983. (c) Conspiracy between the Defendant and others to import narcotic goods into Australia in contravention of the Act during 1983. (d) The Defendant having aided, abetted, counselled or procured, or being knowingly concerned in, the sale of or other dealing in, narcotic goods imported into Australia in contravention of the Act in 1983. An order pursuant to Section 243£(1) of the Act that the Official Trustee in Bankruptcy be directed to take control of all the property of the Defendant, whether situated in the Commonwealth of Australia or elsewhere. An Order pursuant to Section 243F of the Act, directing the Defendant to furnish to the Official Trustee in Bankruptcy within 14 days of the service upon him of a Je copy of such Order, a statement verified by oath or affirmation of the Defendant setting out particulars of the nature, location and value of all real and personal property of every description whether situated in the Commonwealth of Australia or elsewhere, in which the Defendant has any interest. An Order pursuant to Section 243F of the Act that the Defendant be examined before the Court concerning the Mature and location of the Defendant's property at such time and place as the Court may direct. An Order that in the exercise of his powers and the performance of his duties pursuant to Order 2 herein, the Official Trustee in Bankruptcy may deposit or invest any moneys coming into his hands or under his control by paying the same to the credit of an account in his name and under his control at such bank or other financial institution as he may consider proper, provided that nothing herein contained shall authorise any such payment into the Common Investment Fund established pursuant to Section 20B of the Bankruptcy Act 1966. An Order pursuant to Section 243G of the Act directing the Official Trustee in Bankruptcy to pay to the Commonwealth of Australia out of the property in his possession or under his control an amount equal to the amount of the liability of the Defendant for such pecuniary penalty as may be assessed by the Court. An order pursuant to Section 16A(1A) of the Director of Public Prosecutions Act 1983 prohibiting or restricting the publication of the evidence in these proceedings to such persons and for such period as may appear necessary to prevent prejudice to the administration of justice.". Counsel for the respondent submitted that the Court should CLR 336. not make an order against him for a pecuniary penalty upon a finding based merely upon the balance of probabilities, but should apply the test enunciated in Briginshaw v. Briginshaw (1938) 60 In that case, at pp.368-9, Dixon J. said:- "Upon an issue of adultery in a matrimonial cause the importance and gravity of the question make it impossible to be reasonably satisfied of the truth of the allegation without the exercise of caution and unless the proofs survive a careful scrutiny and appear precise and not loose and inexact. Further, circumstantial evidence cannot satisfy a sound judgment of a state of facts if it is susceptible of some other not improbable explanation. But if the proofs adduced, when subjected to these tests, satisfy the tribunal of fact that the adultery alleged was committed, it should so find.". Counsel for the applicant accepted this as the appropriate standard and, in my opinion, it is proper to adopt it. When in these reasons I speak of being satisfied of any fact, I do so in accordance with the Briginshaw test. It is common ground that the respondent pleaded guilty to conspiring to import into Australia between 1 May 1983 and 21 June 1983 prohibited imports being prescribed narcotics consisting of not less than a commercial quantity, as specified in Schedule VIII of the Act, of cannabis resin. On the respondent's plea of guilty, the court took into account two similar offences of importation in December 1983 and in April 1984 and a number of charges in relation to the supply of cannabis resin resulting from those importations. The sentence imposed was imprisonment for 25 years. The applicant's case was based upon the allegation of an importation by the respondent said to have been made on 21 June 1983. I am satisfied that on that day two suitcases were brought into Australia in the possession of a courier acting on behalf of the respondent and they were taken to the home of the respondent and eventually handed to the respondent by a person other than the courier. That person has, pursuant to an order of Beaumont J. made on 17 November 1987, been referred to throughout these proceedings as Mr X. Each suitcase was expected by the respondent to contain 30 kilograms of cannabis resin but a search revealed that each contained only 10 kilograms. One of the suitcases was entrusted by the respondent to Mr X to sell its contents and to hand the proceeds to the respondent later in the day. The other suitcase was entrusted by the respondent to a man named Marshall to sell its contents and hand the proceeds to the respondent. Marshall had earlier paid $8,000 to the respondent to assist him in financing the importation of the cannabis resin. lo Counsel for the applicant submitted the following table of benefits said to have been so derived by the respondent within the meaning of s.243c:- "BENEFITS DERIVED BY HARRY LAHOOD IN CONNECTION WITH THE 21 JUNE 1983 IMPORTATION DATE MAY 1983 MAY 1983 MAY 1983 MAY 1983 21 JUNE 21 JUNE 22 JUNE 22 JUNE 23 JUNE 24 JUNE 25 JUNE TRANSACTION BENEFITS NUMBER 1A 1B DERIVED $8000.00 $1100.00 $2000.00 $5000.00 $98,000.00 $1000.00 $13,000.00 $100.00 $48,000.00 $200.00 $3000.00 $179,400.00" DESCRIPTION MARSHALL TO LAHOOD-— FINANCING IMPORTATION MARSHALL TO LAHOOD- PART AIRFARE FOR ABRAHAM MR X TO LAHOOD- EXPENSES FROM MR X - AIRFARE FOR NIFADOPOULOS AND FURTHER EXPENSES FOR LAHOOD - RECEIVED BY KARAM MR X TO LAHOOD-RE SALE OF HASHISH MR X TO LAHOOD-PART PAYMENT TO NIFADOPOULOS MARSHALL TO LAHOOD- PIRST INSTALMENT RE SALE OF HASHISH MR X TO LAHOOD- SHORTFALL RE PAYMENT TO DOUGAN MARSHALL TO LAHOOD SECOND INSTALMENT RE SALE OF HASHISH MR X TO LAHOOD PAYMENT TO PITT MR X TO LAHOOD RE FINAL PAYMENT TO DOUGAN In addition to these amounts, totalling $179,400, the " applicant claimed that the respondent had derived a benefit of $39,000. The applicant's case was that Marshall had received from the respondent ten kilograms of cannabis resin for sale on the respondent's account, with a total value of $100,000, of which only $61,000 was paid by Marshall to the respondent. The balance of $39,000 was said to be the additional benefit. When the suitcases were handed to the respondent by Mr X I am satisfied that the cannabis resin contained in them was property that thereby came into the possession of the respondent, within the meaning of sub-sec.243B(6) of the Act. It would have been open to the applicant to base his claim upon that fact, together with evidence to show the value of the cannabis resin in accordance with the Act. However, in opening the case, his counsel submitted that the pecuniary penalty to be paid by the respondent to the Commonwealth should include not only the value of the cannabis resin but also the amounts received by or owed to the respondent in respect of its sale. At the beginning of the second day of the hearing, counsel announced that he no longer wished to rely upon this double counting. In his address in reply he made it clear that the applicant was claiming the value of the cannabis resin or alternatively any sum greater than that value which the respondent received in respect of its sale. The item in the Table of Benefits which was the first challenged by the respondent was transaction 6 which related to the sum of $98,000 paid by Mr X to the respondent on 21 June 1983. Mr X made an affidavit in which he said that he delivered to the respondent a green garbage bag supposedly containing the sum of $100,000, being the proceeds of his sale of the respondent's cannabis resin. He said that he accepted $8,000 a kilo for the 10 kilograms of cannabis resin and that the purchaser had given him an additional $20,000 as payment in advance for a further 2 1/2 kilograms. When the money in the garbage bag was counted it was found that there was only $98,000. Mr X deposed that the money was accepted by the respondent. Mr X was not cross examined on behalf of the respondent, who neither gave nor called evidence in answer to the applicant's case. Counsel for the respondent agreed that the sum of $98,000 came into the possession of the respondent as the result of Mr X's activities. I am satisfied that the respondent received the sum of $98,000 from Mr X. However, I am not satisfied that the whole of that sum was a benefit derived by the respondent "by reason of his having engaged in® the dealing here in question. There were, on the evidence, only 20 kilograms of cannabis resin imported in the two suitcases, 10 kilograms in each. Mr X sold the whole of the 10 kilograms entrusted by the respondent to him for an agreed amount of $80,000. Mr X received from the purchaser an additional $20,000, paid in advance for a further 2 1/2 kilograms to be supplied. I am not satisfied that the further cannabis resin was provided by the respondent or that it came from the cannabis resin in the two suitcases. There was no evidence that any part of the 10 kilograms entrusted to Marshall was made available to Mr xX to supply to the purchaser who had paid him in advance. Indeed the evidence is to the contrary. Section 243B(2) requires that the Court be satisfied that the respondent has engaged in a particular prescribed narcotics dealing or dealings. As I have said, I am satisfied that the respondent engaged in such a dealing consisting of the importation on 21 June 1983 of 20 kilograms of cannabis resin. It was the applicant's case that Mr X and Marshall were each entrusted with 10 kilograms for sale on the respondent's behalf. There was no evidence of a prescribed narcotics dealing in respect of a further 2 1/2 kilograms. Accordingly, in my opinion, any benefit derived by the respondent in respect of the cannabis resin entrusted to Mr X related to 10 kilograms and no more, which was at most $80,000. The proceeds of the sale were handed over to the respondent by Mr X without any indication of a claim by him to any part of that sum of $80,000. The respondent did not receive $100,000, the price which Mr X arranged for 12 1/2 kilograms, but only $98,000. As a matter of arithmetic, if the case were to be decided upon the basis of this claimed benefit, the amount of $80,000 should be reduced because of this shortfall by a discount of 2 per centum. However, in my opinion, the case should be decided on the basis of the benefit derived by the respondent when the suitcase and its contents, which he later entrusted to Mr X for sale, came into his possession. The value of that benefit was the subject of an affidavit by Christopher William Dent, a Detective Senior Sergeant of the Australian Federal Police of 14 years experience, 7 of which were spent in drug investigations. I am satisfied that he answered the description in sub-sec 243¢(5) as "a member of the Australian Federal Police ... experienced in the investigation of narcotics offences". Accordingly his evidence that "the wholesale value of cannabis resin depends upon its place of origin and quality. In July 1983 the range of wholesale values of cannabis resin depending on its source and quality was between $7,000 to $10,000 per kilo" was admissible. He was not cross-examined. There was also evidence by Mr X that he arranged a sale of the cannabis resin on behalf of the respondent for $8,000 per kilogram. I accept Dent's evidence as showing the range of value of the cannabis resin and that of Mr X as justifying the finding that, within that range, it should be assessed as being $8,000 per kilogram. Accordingly I am satisfied that the benefit derived by the respondent when he received the 10 kilograms which he entrusted to Mr X for sale was $80,000. Transaction 4, the transaction next challenged by the respondent, related to a payment of $13,000 made on 22 June 1983 by Marshall to the respondent and Transaction 9 to a payment by Marshall to the respondent on 23 June 1983 of a further $48,000. Each of these payments was made to the respondent as part of the proceeds of the sale by Marshall of cannabis resin contained in the suitcase entrusted to him, The benefit claimed by the applicant to have been received by the respondent in addition to the amounts set out in the Table of Benefits was the sum of $39,000 said to be the difference between the total of $61,000 actually paid by Marshall to the respondent and the potential sale proceeds of $100,000 for the 10 kilograms of cannabis resin contained in the suitcase given to Marshall. There was no evidence to show that the additional $39,000 was ever paid to the respondent. Any benefit derived by the respondent in respect of the transaction with Marshall, over and above the $61,000 which the respondent received from Marshall, was in respect of an amount which Marshall hoped to collect from the purchaser from hin. The cespondent's expectation of receiving this sum from Marshall, if and when he collected it, was hedged with uncertainties. The evidence relating to the sale by Marshall was unimpressive. Mr X's account in his affidavit of Marshall's state when he came to the respondent to report on his activities was as follows:- "When Marshall came in I saw that he was incoherent, with slurred speech, unsteady on his feet, pupils very dilated and fidgety". Such evidence as there was of Marshall's dealing with the cannabis resin in the form of a sale mainly on credit does not satisfy me that the ten kilograms entrusted to him or that entrusted to Mr X should be valued at more than $8,000 per kilogram. I am satisfied that the value of the benefit derived by the respondent when he received the 10 kilograms which he entrusted to Marshall for sale amounted to $80,000 and no more. I am satisfied that the respondent did not receive any sum greater than $160,000 in respect of the sale of the two parcels of cannabis resin. The only other item in the Table of Benefits which was challenged by counsel for the respondent was that described as transaction 1A, which related to the payment of $8,000 made by Marshall to the respondent to enable him to finance the importation which eventually took place. Section 243B provides that the Commissioner of Police may institute a proceeding of the present character for an order that the respondent pay a pecuniary penalty 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; and that the Court, if satisfied that the person has engaged in a particular prescribed narcotics dealing or in prescribed narcotics dealings, shall assess the value of the benefits derived by the person "by reason of his having engaged in that dealing" or dealings in accordance with s.243C. It is clear that the respondent engaged in a particular narcotics dealing and, in my opinion, the applicant's submission that at the time of payment of the $8,000 the respondent was engaged in that dealing should be accepted. The payment was a substantial one received from a man, who was not some good Samaritan actuated by a general desire to assist the respondent, but one who knew the respondent's plan to import narcotics and made the payment to enable him to execute it. I am satisfied that the sum of $8,000 was a benefit received by the respondent by reason of his having engaged in that dealing. The history of the prosecution of the respondent showed that he made statements in writing admitting the offence with which he was charged and that he later gave evidence in the course of the committal proceedings against others involved in that offence in which he repeated his admission. The account he gave both in his written statements and his evidence included the assertion that he agreed to pay a New South Wales policeman $130,000 so that the latter would ensure that the planned importation was passed through Customs unchecked, together with the assertion that after the importation was made he paid to that policeman sums totalling $130,000. The applicant also tendered in evidence an affidavit which the respondent had later filed in the prosecution proceedings against the policeman denying that he had made any such agreement or payment. F a If the account given in this affidavit were correct, there would be no basis for any claim by the respondent that the sum of $130,000 should be deducted from the value of the benefit he received from the importation. However, for the purposes of the present case, I am satisfied that the agreement and the payments totalling $130,000 were in fact made. Counsel for the applicant claimed that the sum of $130,000 was an expense or outgoing. Section 243C(6) requires the court to disregard "any expenses or outgoings of the defendant in connection with the dealings". It is accordingly the gross and not the net benefit which must be considered as confirmed by R. v. Smithers; Ex parte Mc Millan (1982) 152 CLR 477. Counsel for the applicant claimed therefore that the amount of $130,000 should not be deducted from the gross receipts, as the payment of that amount was an expense or outgoing incurred by the respondent in the course of the dealing, being a fixed fee for a fixed service, that is, ensuring that the two suitcases came through Customs without inspection. There was no evidence that the size of the fee depended upon the quantity or value of the cannabis resin that might be in the suitcases. Counsel for the respondent sought to rely upon Commissioner of Australian Federal Police v. Curran 55 ALR 697, in which Wilcox J. had to consider a case in which the applicant sought to recover a pecuniary penalty under s.243B of the Act. The facts of that case appear from the headnote:- "The respondent had been given $11,000 for the purchase of heroin but when he became aware of police surveillance he remitted the money from Penang to his wife's bank account in Sydney. Those moneys were then transferred into a solicitor's trust account. Half of the moneys was paid to the respondent. It was not established who received the balance of the moneys.". On these facts his Honour concluded, at page 705:- "The money was a capital fund intended to be outlaid on the purchase of heroin, But, from Mr Curran's point of view, to the extent that any part of that sum ultimately remained under his control, it was a reward to him for his involvement, a benefit derived by him as a consequence of his having engaged in the conspiracy. It is the value of that benefit which must be assessed and that benefit does not include the one-half of the money retained by (the solicitor).". In considering the application of the provisions of the Act his Honour further said, at page 705:- "Section 243C refers to the moneys that 'came' into the possession of the defendant. It does not, in terms, require that the defendant ultimately be advantaged to the extent of those moneys. Indeed, s.243C(6) expressly requires the court to disregard any expenses or outgoings incurred in connection with the dealing. As the High Court pointed out in McMillan, the section is concerned with the assessment of the gross proceeds of the crime, not the net proceeds after expenses. However, subject to one matter, 8.243A(7), the assessment relates to the 'value of the benefits' derived by a particular defendant. That must be his share of the gross proceeds. There is a difference between a division between individuals of gross proceeds and the deduction of an individual's expenses. It is not enough that at some stage, before division of the spoils, the particular defendant had in his hands a greater proportion of the gross proceeds.". Counsel agreed that the last two sentences quoted were statements by way of obiter dicta. The respondent's contention was that I should adopt them and apply them to the facts of the present case by holding that the payment to the policeman was a division between individuals of gross proceeds. Those two sentences can have no application to the facts of the present case. There was here no division between individuals of gross proceeds. The payments made by the respondent to the policeman were merely payments made for services rendered. The respondent and the policeman had agreed upon the total amount to be paid without reference to the amount of cannabis. resin contained in the suitcases, its value or the amounts received as a result of its sale. The payments to the police were in my opinion "expenses or outgoings" of the respondent in connection with the dealing and therefore should be disregarded in accordance with §.243C(6). I am satisfied that the benefits derived by the respondent were as follows:- 1. $80,000 in respect of the contents of the suitcase entrusted to Mr X; 2. $80,000 in respect of the contents of the suitcase entrusted to Marshall; 3. $8,000 in respect of Transaction 1A; 4. $1,100 in respect of Transaction 1B; 5. $2,000 in respect of Transaction 2; 6. $5,000 in respect of Transaction 3; 7. $1,000 in respect of Transaction 5; 8. $100 in respect of Transaction 7; 9. $200 in respect of Transaction 8; and "?) 10. $3,000 in respect of Transaction 10, " being a total of $180,400. I am disposed to think that the form of the order which the Court should make is as follows:- 1. the defendant pay to the Commonwealth a pecuniary penalty in the sum of $180,400; the amount referred to in order 1, be paid by the Official Trustee out of the property of the defendant that came into the Official Trustee's possession or under his control by reason of the orders of Mr Justice Morling made pursuant to Section 243E of the Customs Act 1901 on 13 August 1987; the defendant pay the costs of the applicant of and incidental to the application; and that the Court should direct that the Official Trustee sell such of the property of the respondent that is subject to the charge created by reason of Section 2433(1) of the Customs Act, as is necessary to discharge the pecuniary penalty as fixed by this Court. After counsel have had an opportunity to read these reasons, I will hear any submissions which they wish to make on the form which the orders should take. I certify that this and the preceding eighteen (18) pages are a true copy of the Reasons for Judgment herein of the Honourable Mr. Justice Sweeney Dated: 23 May 88 Pony. gf: GK. G393 of 1987 Counsel for the applicant: Mr. 3. Agius Mr. R. Mc Keand Solicitor for the applicant: Director of Public Prosecutions Counsel for the respondent: Ms. EB. Fullerton Solicitor for the respondent: Hanley, Cameron & Goold Counsel for Witness "X": Mr. D.R. Russell Dates of Hearing: 14, 15 March 1988