Page 5955 - Week 18 - Wednesday, 11 December 1991
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That is an extraordinary piece of legislation and, because it relates to drug trafficking, I think jurists have accepted the legislation without too much rancour. It relates to most serious drug offences of trafficking and operates on the basis of a civil rather than criminal standard of proof. So, it is a double header to criminal law jurists for a couple of reasons . The court can find that the property is related to drug related activities and the proceeds can be recovered as a civil debt to the New South Wales Crown.
I certainly do not favour that approach at this stage in the history of organised crime in this Territory. I accept that organised crime is always an iceberg, and we need to keep our eye on how the New South Wales legislation works at this stage. But I do not believe that we should move at this stage to civil expropriation of private property. It contravenes the fundamental principle that a person is deemed innocent until proven guilty, and it also contravenes the hallowed notion in criminal law of a test of beyond reasonable doubt.
The Bill before the house in many respects, as I have said, replicates the Commonwealth legislation, and that is, of course, the Proceeds of Crime Act 1987. The differences relate to some procedural and machinery matters, and I will not detain the house on those matters. The Proceeds of Crime Bill gives local consideration to how property is to be managed whilst the matter is being processed. Under clause 42 of the Bill, responsibility for seized property, of course, rests with the Chief Police Officer.
By way of diversion, at this time, to my knowledge, some of the property seized from a matter currently before the courts - and I am able to say that much - in relation to an insurer, Mr Ainsworth, is held in certain locations, one of which is the Reserve Bank. I think it is safe to say that it is there. It would be no more insecure for me not to say that it was there. There are costs associated with that, and also issues relating to seized property.
Recently I was approached by a constituent who says that the $15,000 cash that he had on him at the time, or around the time, that he was detained for a minor trafficking offence - well, not a major trafficking offence, but a trafficking offence - was not from the proceeds of any other activity - - -
Mr Connolly: He just happened to have a spare $15,000 in his pocket.
MR COLLAERY: My colleague Mr Connolly says, "He just happened to have $15,000"; but that money, he said, was evidenced by letters from a bookmaker and other sources. The situation puts the police in a very difficult position, because it could be said, if they wished to hang onto the property, that they doubt the word of an otherwise reputable unconvicted person who has given a certificate
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