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 2 UNREPORTED JUDGMENTS make laws for the peace, order and good Government of the Commonwealth held: (per Kirby P): Unnecessary to determine. Sillery v The Queen (1981) 180 CLR 353 considered; Union Steamship Company of Australia Pty Ltd v King (1988) 166 CLR 1 referred to. CRIMINAL LAW and PROCEDURE - conviction - when occurs - time for seeking exemption of property from forfeiture under Proceeds of Crime Act 1987 (Cth) - whether accused "convicted" from return of jury's verdict of guilty - whether "convicted" from implied acceptance of the verdict by the trial judge - whether "convicted" from sentencing - held: The accused was "convicted" when the trial judge accepted the jury's verdict and remanded her in custody for sentencing. Director of Public Prosecutions for Victoria v McCoid [1988] VR 283 (FC) followed; Griffiths v The Queen (1977) 137 CLR 293 considered; 'S' v Recorder of Manchester [1971] AC 481 (HL) referred to. PRECEDENT - uniform legislation - consistent interpretation of - parallel Federal and State legislation on compensation of proceeds of crime - desirability of uniform interpretation. Australian Securities Commission v Marlborough Goldmines Ltd (1993) 177 CLR 485 appld. Australian Constitution, S51(1)(xxxi), S51(1)(xxxix) Proceeds of Crime Act 1987, (Cth) s5, 30, s45, s48 Crimes (Confiscation of Profits) Act 1986 (Vic), s31, s51 ORDERS Appeal dismissed with costs Kirby P By this appeal, Mrs Romana Della Patrona (the appellant) contests an order of James J in the Criminal Division of the Supreme Court dismissing a motion for declaratory relief and for other orders in respect of certain property affected by the Proceeds of Crime Act 1987 (Cth) (the Act). The notice of appeal raises four grounds of challenge. Two of them (grounds 3 and 4) address the issues which were debated before James J and determined by him. These concern the meaning of the word "conviction" in s30 of the Act and the determination by his Honour that the appellant had been "convicted" on 2 May 1991. That was the day on which a jury returned a verdict of guilty against the appellant in respect of the count of the indictment upon which she was tried of a serious offence against Federal law. The relevance of the time of "conviction" will be explained. When the appellant filed her notice of appeal to this Court against the dismissal of the motion for relief (which followed James J's determination of the preliminary question concerning the meaning of "conviction" and its application to her case) the appeal presented two constitutional challenges to t le validity of the Act. Very belatedly, the Director of Public Prosecutions (Cth) (DPP) (the respondent) objected to the Court's entertaining the constitutional challenges. Whether it should do so was decided as a preliminary question when the appeal was called on for hearing. By majority, the Court decided to hear the constitutional objections. See Della Patrona v Director of Public Prosecutions (Cth) [No. 1], Court of Appeal (NSW), unreported, 1 September 1995. These reasons therefore address the alternative and concededly inconsistent, grounds of appeal advanced for the appellant: by those grounds which arise out of the determination of James J, the appellant seeks to affirm the Act and to secure relief under it. By those grounds of appeal which challenge the constitutionality of the Act, the appellant seeks to have its relevant provisions declared void, presumably in the hope of recouping her property purportedly forfeited to the Commonwealth under the terms of the Act. URMELLA PATRONA v DIRECTOR OF PUBLIC PROSECUTIONS (CTH) [No 2] (Kirby P) 3 It was proved before the Court that notices as required by s76B of the Judiciary Act 1903 (Cth) had been given to the law officers. None of them exercised their right to intervene before this Court. APPLICATION FOR EXEMPTION UNDER THE PROCEEDS OF CRIME ACT Mrs Della Patrona's litigation has given much food for thought to lawyers. The background facts in her case, so far as they concerned the allegations brought against her by the DPP, can be found in the report of successive decisions of the Court of Criminal Appeal of New South Wales. The first, of October 1992, concermed principally her challenge to an ex officio indictment found by the DPP and proceeded upon in the Supreme Court. That challenge was dismissed. See R v Dufyield (1992) 28 NSWLR 638 (CCA); Duffield v R; Della Patrona v R (1992) 110 ALR 323 (NSW, CCA). Subsequently, a general appeal came before the Court of Criminal Appeal, differently constituted, challenging Mrs Della Patrona's conviction on other grounds and seeking leave to appeal against sentence. By the application of the proviso, the appeal against conviction was dismissed. But the appellant's application for leave to appeal against sentence was granted and her sentence was varied. See R v Della Patrona and Duffield (1993) 31 NSWLR 123 (CCA). Each of these decisions describes in general terms the issues which arose in the charges brought against the appellant and her co-accused, Mr Charles Duffield, of conspiracy to import into Australia a quantity of heroin not less than the commercial quantity. The details of the offence of which the appellant was convicted are not presently material. As a result of the variation of the sentence originally imposed by Slattery AJ, the Court of Criminal Appeal, in its second decision, sentenced the appellant to a term of imprisonment for nine years commencing on 14 January 1989, with a non-parole period of six years and eight months, expiring on 13 September 1995. Accordingly, between the hearing and determination of this appeal, the appellant has become eligible for parole. The motion which brought the matter back to the Criminal Division of the Supreme Court was one by which the appellant sought relief under s48(4) of the Act. The precise relief sought was that the restraining order made in respect of the appellant's property under the Act on 13 January 1989 should, by declaration of the Supreme Court, be disregarded for the purposes of s30 of the said Act to the extent to which it relates to the property of [the appellant]. S48(4) of the Act permits the Court, by order, effectively to exclude from a restraining order under the Act certainly property, if - "s48(4)(e) The Court is satisfied that: (i) the property was not used in, or in connection with, the commission of the offence; and (ii) the defendant's interest in the property was lawfully acquired.... " It seems that the property in question in these proceedings is the home of the appellant. She therefore seeks to retain it, either by securing the order sought in the motion declaring that it be "disregarded for the purposes of s30", or, more radically, by attacking the constitutional validity of the provisions of the Act pursuant to which the purported restraining orders against her property were made under the Act, in the first place, on 13 January 1989. The motion was filed on 25 November 1991. It was determined by James J on 29 November 1991. The DPP took a preliminary point that the appellant's proceedings had been commenced too late to be effective to secure relief under s48(4). In accordance with the agreement of the parties, James J severed that point for preliminary determination. He resolved it in favour of the DPP. There 4 UNREPORTED JUDGMENTS was a delay in the filing of the appellant's appeal. No point as to the jurisdiction of this Court to hear the appeal has been raised. The appeal was not prosecuted with expedition. The first question is thus whether error has been shown in James J's determination that the appellant was too late to claim the relief provided by s48(4)? If this issue were determined in favour of the appellant, she would apparently be content to accept the validity of the Act and to prosecute on its merits her claim for exemption, reliant upon the Act's provisions. Because, upon this point, the Court has the reasons of James J to assist it, it is convenient to deal with it first although, logically, the constitutional validity of the legislation is a pre-requisite to the application of the provisions relied upon before James J. THE RELEVANT PROVISIONS OF THE ACT. It was common ground that a restraining order was first made against "all or any of the property" of the appellant, pursuant to s43 of the Act, on 13 January 1989. This order was made without notice to the appellant upon the ground that she was "about to be charged with an offence" (s43(1)(e) of the Act) as subsequently happened. The offence with which she was charged, set out above, was a "serious offence" (s7 of the Act). She was then given notice of the order restraining her property. On 27 January 1989, a further order was made under the Act (s45A). On 3 July 1989, a still further order was made extending the order of 13 January 1989 "until further order". This was the position when the trial of the appellant commenced before Slattery AJ and a jury on 25 March 1991. The appellant pleaded not guilty. As IT have stated, the jury returned a verdict of guilty on 2 May 1991. The appellant was remanded for sentence on 8 May 1991. The sentencing proceedings continued on 24 May 1991 and 6 June 1991. The original sentence (of Slattery AJ) was finally pronounced on 6 June 1991. At no time did his Honour apply, or indicate that he was contemplating the application of, the Crimes Act 1900, s556A. Pursuant to that section, in certain cases, a Court may, without proceeding to conviction, make an order dismissing the charge or discharging the offender conditionally on the offender's entering into a recognizance as provided under the section. Not unsurprisingly, given the seriousness of the offences of which ie appellant was found guilty, such a lenient sentence appears to have been furtherest from Slattery AJ's mind. It was common ground before James J that s57(2)(g) of the Act applied to the appellant's property. The subsection provides, relevantly: "(57)(2)....where: (a) a restraining order is made in reliance of a person's conviction of an offence or the charging of a person with an offence; (b) a restraining order is made in reliance on the proposed charging of a person with an offence and the person is, within the succeeding period of 48 hours, charged with the offence or a related indictable of offence; the following provisions have effect... (g) if some or all of the property subject to the restraining order is forfeited under s30, the restraining order, to the extent to which it relates to that properly, ceases to be in force when the property is forfeited..." It is s30(1) of the Act which is said to give rise to the effective time disqualification for the appellant's application for relief. It provides: "(30)(1) If; (a) a person (in this subsection called the 'defendant' ) is convicted of a serious offence.... URMELLA PATRONA v DIRECTOR OF PUBLIC PROSECUTIONS (CTH) [No 2] (Kirby P) 5 (b) a restraining order is, or was granted in respect of the property... in reliance on; (i) the defendant's conviction of that offence; or (ii) the charging or proposed charging of the defendant with that offence, or a related offence; (c)....; and (d) the restraining order is in force at the END OF THE PERIOD OF SIX MONTHS COMMENCING ON THE DAY OF THE CONVICTION; the property is, under this subsection, forfeited to the Commonwealth at the end of that period." James J recorded that it was common ground, before him, that the conditions set out in s30(1), with the exception of para(d) had been satisfied. The DPP also asserted that para(d) had also been satisfied. Accordingly, it was argued, the property formerly belonging to the appellant had been forfeited to the Commonwealth. It was forever lost to her. It is in this way that it became important to calculate "the end of the period of six months commencing on the day of the conviction". But what was the day of the appellant's conviction? When the jury returned with the verdict of guilty in her case, the transcript discloses no formal pronouncement by Slattery AJ of the conviction of the appellant. He simply remanded her (and her co-prisoner) in custody until the following Wednesday. It was not suggested by evidence, supplementary of the transcript, that formal words of conviction were uttered by his Honour then, or, indeed, later. In this way, the issue is presented as to when, for the purposes of s30(1)(d) of the Act, the "day of the conviction' occurred. If it was the day of the jury's verdict (as the DPP asserts), and thus 2 May 1991, the period of six months, referred to in the paragraph, would have expired on 1 November 1991. If, however (as the appellant asserts), the relevant day of the conviction" was 6 June 1991, when Slattery AJ finally sentenced the appellant, the period of six months commencing on that day would have expired on 5 December 1991. The motion filed in the Supreme Court on behalf of the appellant, was lodged on 25 November 1991. The application was thus made outside the period of six months calculated from the jury's verdict, but within the period of six months calculated from the judge's sentence. It is not suggested that any stay was obtained to delay the operation of the restraining order at the end of the period of six months commencing with the sentence. Nor was there any exploration (before James J or in this Court) of any other basis upon which either relief could be given against the forfeiture to the Commonwealth of the property of the appellant, or providing for the reinstatement of property once it has been forfeited to the Commonwealth in accordance with the section. The proceedings, both at first instance and in this Court, have been conducted upon the assumption that, if the application for relief under s48(4) of the Act were made to the Court before forfeiture of the property to the Commonwealth, the Court might, pursuant to the section, if satisfied of the requirements of s48(4)(e) already stated, by order, later declare that the restraining order, to the extent that it relates to defined property, "shall be disregarded for the purposes of s30". I shall proceed upon the same assumptions. DETERMINING THE DATE OF THE "CONVICTION". There was much debate, both at first instance and in this Court, concerning the meaning of the word "conviction", when used in the Act. There is a relevant statutory definition in s5(1) of the Act. It reads: 6 UNREPORTED JUDGMENTS "(5)(1) For the purposes of this Act, a person should be taken to be convicted of an offence if: (a) the person is convicted, whether summarily or on indictment, of the offence; (b) the person is charged with, and found guilty of the offence, but is discharged without conviction; (c) a Court, with the consent of the person, takes the offence, of which the person has not been found guilty, into account in passing sentence on the person for another offence; or (d) the person absconds in connection with the offence." The primary definition in para(a) simply repeats the noun being defined, although in the form of a verb. This fact caused both parties to search for the meaning of "convicted" by reference to common law understandings of the notion, explained in decisions of high authority in Australia and England. However, it is important to make the point that the Court's consideration is controlled by the context in which the word appeared in a statute of the Australian Federal Parliament and for the purposes of the efficient operation of the Act. So fascinating is legal history, that it is easy to slip into the error of exploring its by-ways, mistaking the purpose of the search as one for the common law, or historical meaning, of the word "conviction", or "convicted" instead of the construction of the Act. The proper purpose of the Court's inquiry is to give the word, repeatedly used throughout the Act, a meaning which will achieve, with as little ambiguity and doubt as possible, the efficient operation of the Act. It is also worth noting that common features of para(a), para(b) and para(c) of the definition in s5(1) of the Act are that, the person in question has either been found guilty of offences charged (para(a) and para(b)) or, whilst not being found guilty, has consented to a court taking the offence into account in passing sentence for another offence of which, by inference, guilt has been determined. The only other case, of absconding (para (d)), is designed to cover the case where the person cannot be convicted in the ordinary sense because he or she has disappeared. The definition in s5(1) is clearly designed to extend the notion of conviction for the purpose of the Act. Hence, it is expressed as a deeming provision so that, whether "convicted" or otherwise within the ordinary meaning of that term, a person "shall be taken to be convicted" if one of the four possibilities set out in the section is fulfilled. The meaning of "convicted" in contexts apart from the Act, dealt with in various ways by the authorities. In England, the House of Lords explored the history of a "conviction" in S (an infant) by Parsons (his next friend) v Recorder of Manchester and Ors [1971] AC 481 (HL). Lord Morris of Borthy Gest, at 502, observed: "The word 'conviction' may sometimes be used to denote merely a finding of guilt, and sometimes to denote such a finding followed by an appropriate order... On a trial on indictment it has been accepted that, after arraignment but before sentence, a plea may - in the discretion of the Court - be withdrawn.... [It] seems to me to be unnecessary for present purposes to consider whether Sheriton's case [1937] 1 KB 223, was rightly decided, or to consider whether a conviction in the narrow sense (i.e., of a finding of guilt not followed by some appropriate order), is sufficient to support a plea of autre-fois acquit." By analogy, the appellant urged that the word "conviction", when used in the Act, should be given the broadest possible meaning. Historical explanations of the meaning of the word in the common law of England were offered by URELLA PATRONA v DIRECTOR OF PUBLIC PROSECUTIONS (CTH) [No 2] (Kirby P) 7 reference to the case of 'S'. Further, s556A of the Crimes Act 1900 is. at least theoretically, available in some cases, to illustrate the distinction between the jury's verdict of guilty and the decision on whether or not to proceed to conviction. A further theoretical possibility, acknowledged by Barwick CJ in Griffiths v The Queen (1977) 137 CLR 293 at 302 is that, in an extreme case, a judge might decline to accept the jury's verdict "at least on its first return". These considerations led Barwick CJ to suggest the "prudent" procedure recorded in Griffiths, (ibid), by which ".... Where a plea of guilty is accepted and no question of utilising s556A is in contemplation,.... the trial judge should expressly indicate that the accused is convicted; and to do so before proceeding to make any order in relation to that conviction." This course, which is a sensible one, and one sometimes followed in the practice of New South Wales courts, was not followed in the instant case. From that, the appellant urged that this Court would infer that the conviction did not take place when the jury announced its verdict, but when, finally, Slattery AJ signified his acceptance of the verdict by acting upon it and proceeding to sentence the appellant. In the case of doubt or ambiguity as to the meaning of "convicted" when used in the Act, the appellant invoked a number of principles of construction to support the interpretation for which she argued; 1. The facility for exemption, allowed by s48 of the Act, was a beneficial one which should be construed amply so as to set the clock operating against the appellant at the last appropriate time, in this case when the sentence signified that the conviction would have custodial effect; 2. In the case of doubt, a statute with features that have been described as "Draconian" should be construed narrowly and in a way favourable to the rights of the citizen. See Director of Public Prosecutions v Logan Park Investments Pty Ltd CA (NSW) 17 July 1995 [1995] NSWJB 68; and 3. Where there was ambiguity, it would be resolved in a way defensive of the fundamental rights of people to enjoy their property. Where Parliament has provided a contingent means of defending property interests, so long as proceedings are commenced within a given time, that time will date, for the purposes of the Act, from the moment when it became clear that the judge was convicting the appellant. This approach was consistent with the principle that it is for the court, i.e., the judge, and not the jury, to convict the accused. See Reg v Reinsch [1978] 1 NSWLR 483 (CA) 487. To attach consequences to a "conviction", and to set time running against the appellant from the date of the jury's verdict would offend against this basic principle. These submissions are arguable. However, in the end, I have come to the conclusion that James J was right in the approach which he took to the meaning of the word" convicted" in this Federal statute. The starting point for an understanding of Australian jurisprudence on the meaning of "convicted", in its ordinary denotation, is the reasoning of the judges in Griffiths. Different and even conflicting views were expressed. In relation to nonjury trials and the meaning of "convicted" following a plea of guilty other views have been stated. But in the case of a person who is tried by jury, the reasons of Barwick CJ in Griffiths clearly support the proposition that the prisoner is convicted at the moment when, by express words or by necessary implication, the trial judge accepts the jury's verdict of guilty. 8 UNREPORTED JUDGMENTS Jacobs J, in Griffiths, at 313f, accepted the conceptual distinction between the act of the jury in finding the guilt of the accused and the act of the judge in convicting and sentencing the prisoner, once found guilty. But his Honour appears to have considered that a "conviction" did not occur until it was formally recorded. The necessity for this procedural refinement, which is unevenly observed in practice, is impliedly rejected by the reasoning of Barwick CJ. It did not find favour in the decision of the Court of Criminal Appeal of this State in Reinsch. It was expressly rejected by this Court in Frodsham v O' Gorman [1979] 1 NSWLR 683 (CA) 688, 690. It was also rejected by the Victorian Full Court in Director of Public Prosecutions (Vic) v McCoid [1988] VR 983. The last-mentioned decision is important because, in it, a question arose whether the DPP for Victoria had applied for forfeiture and a pecuniary penalty under the Victorian confiscation legislation within the time laid down by the Act for the making of such an application. It was therefore critical to the Court's decision that it should determine the time from which the person's "conviction" began to run. Young CJ (with whom O'Bryan and Tadgell JJ agreed) found, at 987: "The ordinary meaning of the word 'convicted' may be obtained from a consideration of the judgments of the High Court in the case of Griffiths v R (1977) 137 CLR 293." Young CJ rejected the notion that it was to be decided at a later time when the prisoner, having pleaded guilty of been found guilty, was sentenced. At 988. he said: But it is necessary to consider whether the word is to be given any different meaning when it is used in the Crimes (Confiscation of Profits) Act and in those parts of the Act which I have read, and which are concerned with the time for making an application under it.... So far from finding any indication that the word is used in those provisions in a different sense, I think that s5(3) indicates that Parliament intended to use it in its ordinary sense." The provision in the Act parallels that in the Victorian legislation. The two Acts were based upon the draft model Bill agreed to by the Standing Committee of Attorneys-General of the Commonwealth and States. See Commonwealth Parliamentary Debates (House of Representatives), 30 April 1987, 2314f. There are similar provisions in the legislation of New South Wales, Tasmania, Western Australia, the Australian Capital Territory and the Northern Territory. By the Commonwealth Statutory Rules 1989, No 236, Reg3; 1993 No 199, Reg2; and 1994 No 17 Reg2, the State and Territorial laws have been declared to be "corresponding laws" for the purpose of the (Federal) Act in these circumstances, there are powerful arguments for uniform decisions of courts such as this upon the interpretation of the comparable provisions of the Federal and State Territory Acts. In Australian Securities Commission v Marlborough Goldmines Ltd (1993) 177 CLR 485, Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ, at 492, in the context of the corporations law, noted the powerful argument in favour of uniform construction of uniform legislation: "Tt is a sufficiently important consideration to require that an intermediate appellate court... should not depart from the interpretation placed on such legislation by other intermediate appellate courts unless convinced that the interpretation is plainly wrong." URELLA PATRONA v DIRECTOR OF PUBLIC PROSECUTIONS (CTH) [No 2] (Kirby P) 9 It is true that the present legislation is not strictly uniform in the sense that the Corporations Law is. But it is based upon a common source, and with sufficient identity in its provision, to invoke the same principle. This Court has accepted that principle in many cases, including recently. See, eg, Camden Park Estate Pty Ltd v O' Toole (1969) 72 SR (NSW) 188. See discussion Fernando and Anor v Commissioner of Police and Anor, Court of Appeal (NSW), unreported, 29 March 1995; [1995] NSWJB 27. It should do so in the present case. Far from considering that the holding of the Victorian Full Court in McCoid is plainly wrong, I believe that it is plainly right. It applied the majority view of the High Court in Griffiths. It accords with the approach taken by this Court in Frodsham. The use of a particular formula of conviction is unnecessary. See Frodsham, 691. All that is necessary is that the judge should accept and proceed upon the jury's verdict. This, Slattery AJ sufficiently did when he remanded the appellant in custody for sentence. To adapt the words of Hope JA in Frodsham, at 688: "Tn the circumstances of the present case, whatever formal record there may have been, that conviction of the defendant occurred (when)... the learned judge accepted the [jury] verdict and entered upon that stage of the proceedings which follows conviction, namely, a consideration of what should be done in relation to sentence." By inviting the commencement of discussion about sentence, signified by the Crown Prosecutor's announcement about the prior criminal record of the appellant and her co-accused, and by remanding each of the prisoners in custody until the following Wednesday, Slattery AJ clearly indicated that he accepted and proposed to act upon the jury's verdict. No possible application of s556A being arguable (or argued) in the case, the conviction must be taken to have occurred at the moment of the remand in custody. His order of remand sufficiently indicated acceptance of the jury verdict. Time then began to run under the Act for the application for relief under s48. James J was right so to hold. The grounds of appeal which challenge that holding fail. CONSTITUTIONAL CHALLENGE: THE INCIDENTAL POWER. The foregoing conclusion makes it necessary to consider the appellant's two challenges to the constitutional validity of s30 of the Act by which the time limit of six months is fixed. (See s30(1)(d)). The first challenge to be considered is that, as the ground of appeal asserted, the Act (subsequently clarified to be s30 of the Act) is beyond the power granted by s51(xxxix) of the Constitution: "in that it provides for the automatic forfeiture of all property regardless of whether the property was related to a Commonwealth criminal offence and is therefore, in law, a provision more than incidental to the primary head of Commonwealth power". By "more than incidental", it was made clear that the appellant meant that the impugned section went beyond any support from a relevant constitutional head of power, even as elaborated by the incidental power under s51(xxxix) of the Constitution. The appellant conceded that "it is always difficult to define the extent of incidental powers". See Burns v Ramsley (1949) 79 CLR 101, 116. However, by providing for automatic forfeiture of property to the Commonwealth, irrespective of whether such property was in some way connected to the commission of a Federal criminal offence, it was submitted that the Act had gone beyond what was incidental to the operation of the trade and commerce power under s51(i) upon which rested the criminal offence of which 10 UNREPORTED JUDGMENTS the appellant had been charged and later convicted. The more serious the consequences of the sanction, the more direct was the need for a connection with the primary head of constitutional power. The scope of the incidental powers conferred by the Constitution, has been explored in a number of recent cases. See, eg, Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, 26, 59; Cunliffe v The Commonwealth (1994) 68 ALJR 791 (HC) 806, 810, 813; and Director of Public Prosecutions v Toro-Martinez 33 NSWLR 82 (CA), 91f. It is particularly relevant to look at the last case because that also involved an attack on provisions of the Act as going beyond the constitutional powers of Federal Parliament. Thus s47(7A) and s48(1)(c)(ii) were challenged as not being incidental to the relevant head of power. The challenge was dismissed. In the course of my reasons I referred to the large ambit of the power conferred upon the Federal Parliament by s51(i) of the Constitution. Such authority to legislate extended, by its own force, to all "acts, matters and things, the control of which is found necessary to effectuate its main purpose". See Grannall v Marrickville Margarine Pty Ltd (1955) 93 CLR 55, 77. This was without any reliance at all upon s51(xxxix) of the Constitution. Once the power is established, the justice and wisdom of particular applications for which Parliament has provided, must be left to the legislators and not usurped by the judges. See Burton v Honan (1952) 86 CLR 169, 178f. Burton is also relevant because it, too, involved an attack upon the constitutional validity of provisions of the Customs Act 1901 (Cth), which provided for forfeiture of goods in certain cases. In Burton, Dixon CJ drew attention to the fact that it was "notoriously difficult" to implement laws for the administration of customs control. See ibid 179. He drew a distinction between the express incidental power provided by s51(xxxix) and the "penumbra" cast by the "implied incidental power" which is inherent in each and every express paragraph by which the Constitution confers legislative powers upon the Federal Parliament. The scope of the power conferred by s51(i) of the Constitution is extremely wide, as has been made clear by a number of High Court decisions. Determining some imports to be prohibited and providing for their forfeiture to the Commonwealth is: "legitimately in the exercise of the power because they are incidental to the enforcement of the prohibition against importation which, itself, falls fairly and squarely within the power." See, eg, R v Smithers; ex parte McMillan (1982) 152 CLR 477, 485. Such was the response of the DPP to this challenge of the appellant. According to the DPP's argument, the forfeiture of the property of the appellant, whether or not involved in, or derived from, the commission of the offence charged, depended not upon the grant of power in s51(xxxix) of the Constitution, but upon that provided by sS1(i) with its implied penumbrum necessary to make enforcement of the prohibition upon prescribed imports effective. Whilst it is difficult to define the boundaries of the implied powers of the Federal Parliament, one formulation, frequently now used, is that of "proportionality". See, eg, Cunliffe, 810, 813. Some dicta question this formulation, pointing out that it is not for the judges to decide whether the means adopted to achieve a permissible end are "appropriate or desirable". Upon this basis "The question is essentially one of connection, not appropriateness or proportionality, and where a sufficient connection is established it is not for the Court to judge whether the law is inappropriate or disproportionate." URELLA PATRONA v DIRECTOR OF PUBLIC PROSECUTIONS (CTH) [No 2] (Kirby P)11 See Nationwide News Pty Ltd v Wills (1992) 177 CLR 1, 87f (Dawson J diss). As to the attack upon the forfeiture of property of an accused person, which is not involved in or derived from the impugned transaction, the remarks in Toro-Martinez at 94f are again relevant: "What is the sufficient connection (or reasonable connection) of that property with the subject matter of the power? The answer is given, I think in the rationale offered,.. above. Without such a power, those charged with this kind of offence would quite readily ensure that their assets, although remaining under their effective control, were legally or nominally owned by others whom they could direct... The impugned provision is addressed to deterring and effectively responding to, the importation of illegal drugs, and to overcoming the impediments which would otherwise quite readily be thrown up to prevent the effective operation of the Act." The complaint that the forfeiture provision could operate harshly in a particular case is one to be addressed to Parliament, not to a court judging the constitutionality of the provision. Parliament has in any case provided for a facility of exemption of what might be called "untainted" property, provided such facility is exercised before six months after conviction. In the present case, the appellant had ample opportunity, before and after her conviction, to seek such exemption. She failed to do so within time. The facility provided robs the appellant of the argument that the sanction imposed by the Act (as part of the chosen means of enforcing the will of Parliament as to prohibited imports) is unconnected with the power, or disproportional to its proper exercise. Because I am of the opinion that the challenged terms of s30 of the Act are properly described as incidental to the exercise by Federal Parliament of its powers under s51(i) of the Constitution, no question of requiring the support of s51(xxxix) arises. On this footing, the challenge of the appellant by her ground of appeal addressed to the latter paragraph, fails. What the appellant really meant to contest was the constitutional validity of s30 of the Act as within the grant of power afforded by s51(i). But that was neither raised by a ground of appeal, nor was it the subject of notices under s78B of the Judiciary Act. Despite these procedural problems, I have preferred to deal with the challenge on its merits, because I am of the view that it can be dismissed upon that basis. INCIDENTAL POWER SUGGESTED CRUEL PUNISHMENT. As an alternative argument, the appellant asserted that the Court would accept an implied limitation upon the scope of the incidental powers accorded to the Federal Parliament so that no exercise of those powers would be valid which purported to impose, in respect of a Federal criminal offence, a sanction which amounted to a cruel and unusual punishment. This was also not a point expressly raised by the grounds of appeal. It was not notified by the notices under s78B of the Judiciary Act. The point was not even raised in argument as a limitation upon the implied incidental powers. It was confined to an elaboration of the challenge to the suggested utilisation of s51(xxxix) of the Constitution. As I have held that that paragraph of s51 is not, in fact, required to sustain s30 of the Act (which is fully sustained by s51(i) and the implied constitutional powers) the argument might quite readily be dismissed on procedural grounds or because it misconceives the constitutional foundation for s30 of the Act. 12 UNREPORTED JUDGMENTS Whereas international human rights law and express constitutional provisions in a number of countries, prohibit cruel and unusual punishments, no such express limitation was adopted in the terms of the Australian Constitution. It is true that Article 7 of the International Covenant on Civil and Political Rights, which Australia has ratified, provides: "(7) No-one should be subject to torture or to cruel, inhuman or degrading treatment or punishment... It is also true that this provision may be utilised in the development of our common law and the resolution of ambiguities in legislation. See Mabo v The State of Queensland [No 2] (1992) 175 CLR 1, 42. It is also true that the English Bill of Rights, 1688, s10, contains a declaration that no "cruel and unusual punishment" shall be inflicted. See Smith v The Queen (1991) 25 NSWLR 1 (CA) 13. However, even in jurisdictions where a directly enforceable and overriding constitutional prohibition exists in express terms, courts are ordinarily very reluctant to substitute their assessment of the cruelty and unusual character of the law for that of the elected legislators. "It must he so proportioned to the offence committed that it shocks the moral sense of all reasonable men as to what is right and proper under the circumstances. No Court has ever attempted to closer define the scope so far as we are aware." Weber v The Commonwealth 196 SW 2d 465 (1946) (SC) 469f; cf Smith 17. Even if an express constitutional prohibition existed, I would doubt that the provisions for forfeiture of the property of an accused person, convicted of such serious offences as that of which the appellant was charged, would fall within the prohibition. I say this, especially bearing in mind the entitlement of the offender so long as he or she acts promptly under s48, to seek the exemption of particular property. The foregoing remarks are offered without determining whether the implied limitations argued for the appellant, exists as a control upon the exercise by the Federal Parliament of its incidental powers, express and implied. There are some dicta of Murphy J in the High Court to support this proposition. In Sillery v The Queen (1981) 180 CLR 353 his Honour said, at 362: "Tf Parliament purported to require the infliction of cruel and unusual punishment, There would be a question of its confidence to pass such a law. Apart from more general considerations (which might apply to other legislative, executive and judicial branches of government in Australia) the Federal Parliament has now no express power to make criminal laws. Such a power is implied as incidental to the express legislative powers. A power to legislate for infliction of cruel and unusual punishment should not be implied into the legislative powers expressed in the Australian Constitution. Added to this, all the relevant express powers to make laws with respect to enumerated subjects are qualified by the words, for the peace, order and good government of the Commonwealth'.... Generally those words are ignored as formal and not limiting... In the light of our Constitutional history any law which requires or authorises the infliction of cruel or unusual punishment should be regarded as transcending the limits of power expressed in the words 'peace, order, and good government'." Some of these remarks of Murphy J appear to be contrary to current doctrine. Thus the notion that the constitutional formula, "peace, order and good government", may have a transcending function to limit the grant of power is contrary to Union Steamship Co of Australia Pty Ltd v King (1988) 166 CLR 1, 10; Building Construction Employees and Builders' Labourers Federation URELLA PATRONA v DIRECTOR OF PUBLIC PROSECUTIONS (CTH) [No 2] (Kirby P13 (NSW) v Minister for Industrial Relations (1986) 7 NSWLR 372 (CA), f. Some of the other dicta appear impossible to reconcile with! v The Commonwealth (1991) 171 CLR 501, 605, 635, 695. The experience of the last decade has been that many of the dicta expressed by Murphy J in dissent have come to command majority support in the High Court. So it may be, in due course, with his Honour's theory of implied limitations upon the incidental power expressed in Sillery. See C Parker, "Protection of Judicial Process as an Implied Constitutional Principle" (1994) 16 Commonwealth L Rev 341. As it is unnecessary for my decision to come to a view upon the point, to the extent that it is open in this Court I would reserve it. CONSTITUTIONAL CHALLENGE - ACQUISITION OF PROPERTY. The remaining constitutional challenge for the appellant concerns the suggestion that s30 of the Act was invalid as an impermissible confiscation of property contrary to s51(xxxi) of the Constitution. That section reads: "(51) The Parliament shall, subject to this constitution, have power to make laws for the peace, order, and good government of the Commonwealth with respect to - (xxxi) The acquisition of property of just terms from any State or person for any purpose in respect of which the Parliament has power to make laws;" The appellant conceded that a Federal statute may provide for the acquisition of property and yet not be "with respect to" the acquisition of property within the meaning of the foregoing paragraph, because it is founded upon the legitimate exercise of another Federal head of power. See Burton v Honan (above); Attorney General for the Commonwealth v Schmidt (1961) 105 CLR 361; Trade Practices Commission v Tooth and Company Pty Ltd (1979) 142 CLR 397, 403. In the last-mentioned case the contrary proposition was described by Barwick CJ as "fallacious". It was also conceded for the appellant that, as McHugh J put it in Re Director of Public Prosecutions; ex parte Lawler and Anor (1994) 179 CLR 270, at 292: "... When the forfeiture of property is a reasonably proportional consequence of a breach of a law passed under a power conferred by s51 of the Constitution, no acquisition of property for the purpose of s51 (xxxi) takes place." Cf Cheatley v The Queen (1972) 127 CLR 291, 303. The appellant's submission on this point was that the true operation of s20 of the Act provided for the automatic acquisition of property in circumstances where no determination had ever been made of whether the property was, or had been, connected to the commission of a Federal criminal offence. It was suggested that, by reason of s51(xxxi) of the Constitution, any such automatic acquisition of property by the Commonwealth, not sufficiently connected to the Federal crime, had to be supported instead by the only other relevant head of power, viz, the power to acquire property. But that was subject to just terms, for which the Act did not provide. According to the appellant, the fact that s48(4) of the Act provided the procedure whereby a declaration might be obtained to shield a person from the operation of s30, was irrelevant because s30, by its own force, provided for automatic and absolute forfeiture of property to the Commonwealth. The facility for a retrospective exemption from such liability to forfeiture did not sufficiently sever the impermissible provision, or render the whole constitutionally valid. There is no merit in these arguments, at least under ie current exposition of the operation of s51(xxxi) of the Constitution binding on this Court. In Lawler, Brennan J at 278, described the way the paragraph works: 14 UNREPORTED JUDGMENTS "A law which imposes a penalty or sanction for breach of a provision prescribing a rule of conduct and which, apart from its imposition of the penalty or sanction, is a law with respect to a head of power other than s51(xxxi), cannot be classified as a law with respect to the acquisition of property within s51(xvi). To place it within s51(xxxi) category would be to annihilate the penalty or sanction and thus to weaken, if not destroy, the normative effect of the prescription of the rule of conduct. The irrelevance of s51 (xxxi) to the imposition of fines and forfeitures is trite law." These remarks reflect a concern, expressed by his Honour elsewhere, about the undesirability of statutory requirements of imperfect obligation. In connection with the enforcement of criminal laws, such requirements are specially undesirable. They tend to undermine the clarity and authority of the law and its precise operation as a sanction against conduct deemed unacceptable. In Lawler, Deane and Gaudron JJ (with whom Mason CJ agreed) said: "[The] power conferred by s51(xxxi) is one with respect to 'acquisition of property on just terms' That phrase must be read in its entirety, and, when so read, it indicates that s51 (xxxi) applies only to acquisitions of a kind that permit of just terms. It is not concerned with laws in connection with 'just terms' is an inconsistent or incongruous notion. Thus, it is not concerned with the law imposing a final penalty, INCLUDING BY WAY OF FORFEITURE... Laws of that kind do not involve acquisition that permit of just terms and, thus, they are not laws with respect to 'acquisition of property' as that expression is used in s51(xxxi)." (emphasis added) Dawson J, at 291, added: "As Toohey J and I have previously pointed out, as a matter of nomenclature, confiscation or forfeiture of property, is not the same thing as an acquisition of property, even though both involve the passing of property. But in any event, a confiscation or forfeiture by way of penalty does not involve an acquisition of property for any purpose in respect of which the Parliament has power to make laws. The purpose of the confiscation or forfeiture is complete at the time at which it takes place and the property in the confiscated matter passes to the Crown." Toohey J, at 292, recalled that Dixon CJ had said of forfeiture in Burton v Honan, "the whole matter lies outside the power given by s51(xxxi)". I have previously determined that the legislative power conferred upon the Federal Parliament by s51(i) of the Constitution sustains the criminal sanction for the offence of which the appellant was charged (and later convicted). That power is implied within that express grant, if not within other specific heads of Federal power. Therefore, there is no need, in this case, for the Commonwealth to seek to sustain the impugned sections of the Act by reference to s51(xxxi). Nor did the DPP attempt to do so. On the contrary, it is clear that, on the authority of Lawler and earlier cases, s51(xxxi), as currently understood, has nothing to do with the forfeiture provisions which are attacked. They are not of a kind to be properly described as "acquisition of property". Therefore, the limitation imposed upon such acquisitions is completely irrelevant. An attempt to raise the foregoing constitutional point was ventured in the application for special leave to appeal to the High Court from the decision of the Full Court of Queensland in Director of Public Prosecutions v Brauer [1991] 2 QdR 261. Special leave to appeal was refused. See (1990) 24 Leg Rep SL 5. The High Court declined to permit the constitutional point to be argued because it had not been raised earlier. As appears from the transcript of the argument, the Court URELLA PATRONA v DIRECTOR OF PUBLIC PROSECUTIONS (CTH) [No 2] (Priestley JAB affirmed the approach in Burton v Honan which outflanked the constitutional limitation by making it plain that the paragraph of s51 in which the limitation appears had nothing to do with forfeiture orders or the provisions designed to make those orders effective. In the light of the recorded judicial exchanges, any attempt now to revive the argument would appear to be unpromising. CONCLUSIONS AND ORDERS. The result is that the constitutional challenges to the validity of s30 and the supporting sections of the Act fail. Those sections therefore operate according to their terms. By their terms, in the way in which this appeal was argued, the appellant had six months from her conviction within which to secure relief from the forfeiture of her property which otherwise, by operation of the Act. occurred. That conviction happened immediately following the jury's verdict of guilty when the trial judge showed that he accepted the verdict by remanding the appellant in custody to a later date for sentencing. Once the clock was started at that time, it expired prior to the application being made which is now before this Court. There is no other power in the Court to provide relief to the appellant from the operation of the Act. By force of s30(1) of the Act the property of the appellant is forfeited to the Commonwealth. By force of s30(2), once forfeited it "vests absolutely in the Commonwealth". It does so, not as the acquisition of property for a purpose of the Commonwealth, but as part of the system of sanctions which the Federal Parliament has put in place to enforce its will in respect of crimes to which the Act applies. It is possible that the appellant may have remedies against those who were then advising her for failing to draw to her notice the time limit effectively imposed for applications under s48(4) of the Act. In these proceedings this Court has no knowledge of, or concern with, any such rights. If they exist, they must be pursued in other proceedings. The appeal should be dismissed with costs. Meagher JA I have read in draft the judgment of Kirby P. The appeal raised the meaning of the word "conviction" when used in the Proceeds of Crime Act, 1987. On this matter I agree with Kirby P. On the hearing ofthe appeal the appellant sought to raise in addition a variety of constitutional matters which were not only not raised below but were inconsistent with the submissions which were raised below. Contrary to the principles laid down by the High Court in University of Wollongong v Metwally (No 2) (1985) 59 ALJR 481 at 483, my bretheren permitted the appellant to do this. I dissented with as much vigour as I could muster. The majority sowed the wind, but the whole Court reaped the whirlwind. It now appears that all the constitutional arguments had the additional feature of being entirely unmeritorious, a fact which did not prevent learned counsel for the respondent discussing them at meticulous length and haud sine taedio. The appeal must be dismissed with costs. Priestley JA I agree with the steps in the reasoning of Kirby P leading to the conclusions that (1) the appellant was "convicted of a serious offence" within the meaning of s30(1) of the Proceeds of Crime Act 1987 (Cth), on 2 May 1991, (2) the challenge to the validity of s30 fails, and (3) that the appeal should therefore be dismissed. In my opinion the appeal should be dismissed with costs. Appeal dismissed with costs. COUNSEL: 16 UNREPORTED JUDGMENTS Appellant: GD Wendler Respondent: (DPP) LS Katz SOLICITORS: Appellant: Whitfields Respondent: (DPP) Solicitor for the Director of Public Prosecutions