Emmerson v The Director of Public Prosecutions & Ors

[2013] NTCA 4

NT Court of Appeal

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Interrogate

Catchwords

1. Constitutional Law (Cth)
2. › Judicial power
3. › Kable principle
4. › Institutional integrity of courts
5. › Criminal property forfeiture
6. › Whether declaration that person is 'drug trafficker' impairs institutional integrity
7. › Whether court enlisted to implement executive decisions
8. › Whether court required to declare facts that may not be true
9. › Misuse of Drugs Act 1990 (NT), s 36A
10. › Criminal Property Forfeiture Act 2002 (NT), s 94(1)
1. Constitutional Law (Cth)
2. › Acquisition of property
3. › Just terms guarantee
4. › Criminal property forfeiture
5. › Whether forfeiture of property not crime-used or crime-derived is acquisition without just terms
6. › Whether sufficient connection between crime and property
7. › Northern Territory (Self-Government) Act 1978 (Cth), s 50(1)
8. › Constitution, s 51(xxxi)
1. Criminal Law
2. › Criminal property forfeiture
3. › Restraining orders
4. › Whether restraining order ceased to have effect when criminal proceedings 'finally determined'
5. › Criminal Property Forfeiture Act 2002 (NT), s 52(3)
1. Criminal Law
2. › Criminal property forfeiture
3. › Restraining orders
4. › Whether value of property restrained must be proportionate to cost of deterring, detecting and prosecuting criminal activities
5. › Criminal Property Forfeiture Act 2002 (NT), ss 10(2), 44(1)

Quick Take

The legislative scheme constituted by s 36A of the Misuse of Drugs Act 1990 (NT) and s 94 of the Criminal Property Forfeiture Act 2002 (NT) for forfeiture of declared drug traffickers' property is invalid on the Kable ground, because it enlists the Supreme Court to give the neutral colour of a judicial decision to an essentially executive process of selecting persons for forfeiture. The just terms guarantee in s 50(1) of the Northern Territory (Self-Government) Act does not apply to conviction-based forfeiture schemes even where the forfeited property has no connection to criminal activity. The Supreme Court has no power to limit a restraining order under s 44 to property proportionate to the cost of deterring, detecting and dealing with the offender's criminal activities.