NSW Caselaw
DELLA PATRONA v DIRECTOR OF PUBLIC PROSECUTIONS (CTH) [No 2]
SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL
KIRBY P, PRIESTLEY and MEAGHER JJA 1 September 1995, 13 October 1995 [1995] NSWCA 122
CONSTITUTIONAL LAW — acquisition of property — just terms — forfeiture provisions of Proceeds of Crime Act 1987 — whether breaches held: Just terms inapplicable.
CONSTITUTIONAL LAW — incidental power implied and expressed — forfeiture of property held: Confiscation legislation valid.
CONSTITUTIONAL LAW — criminal sanctions whether subject to implied limits on cruel and unusual punishment — held: Point reserved unnecessary to decide.
CRIMINAL LAW and PROCEDURE — conviction when occurs — held: When judge accepts jury's verdict of guilty.
CONSTITUTIONAL LAW — acquisition of property — forfeiture of property to the Commonwealth — accused charged with serious offence involving conspiracy to import prohibited drugs into Australia — orders made under Proceeds of Crime Act 1987 (Cth) restraining accused's property — accused subsequently found guilty of offence by jury and sentenced to imprisonment property purportedly forfeited to the Commonwealth — whether forfeiture constitutionally invalid — whether contrary to s51(xxxi) of the Australian Constitution as being an acquisition without just terms — held: (1) The forfeiture of property is not the acquisition of property of the kind which attracts the obligation to provide just terms but is a criminal sanction which must be supported by other heads of Federal power. Director of Public Prosecutions; ex parte Lawler (1994) 179 CLR 290 appld; Burton v Honan
(1952) 86 CLR 169; Trade Practices Commission v Tooth and Co Pty Ltd (1979) 142 CLR 397 applied; Director of Public Prosecutions v Bauer [1991] 2 QdR 261 (FC) CONSTITUTIONAL LAND - incidental power - forfeiture of property to Commonwealth - accused's property restrained under Proceeds of Crime Act 1987 and subsequently purportedly forfeited to the Commonwealth following her conviction - whether forfeiture constitutionally invalid - whether beyond power as outside s51(xxxix) of the Constitution - held: (1) The constitutional head of power which sustained s30 of the Act was s51(i) of the Constitution and the implied power therein contained to make effective laws enacted under that power. Nationwide News Pty Ltd v Wills (1992) 177 CLR 1; Toro Martinez v Director of Public Prosecutions (Cth) (1993) 33 NSWLR 82 (CA) appld; (2) The impugned provisions did not require support from s51(xxxix) of the Constitution. Cunliffe v The Commonwealth (1994) 68 ALJR 791 (HC) appld. CONSTITUTIONAL LAW - implied powers - criminal sanctions - whether implied limitation excluding cruel and unusual punishments - whether such implication to be read into the exercise of both implied and express incidental powers of the Parliament - whether implication puts limitation on power to
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