PARTIES:	DIRECTOR OF PUBLIC 
		PROSECUTIONS (CTH)

		AND

		CRAIG CANT

TITLE OF COURT:	SUPREME COURT OF THE 
		NORTHERN TERRITORY

JURISDICTION:	SUPREME COURT OF THE
		NORTHERN TERRITORY
		EXERCISING COMMONWEALTH
		JURISDICTION

FILE NO:	126 of 1997 (9713848)

DELIVERED:	29 July 1997

HEARING DATES:	3 and 11 July 1997

JUDGMENT OF:	Kearney J

CATCHWORDS

Criminal Law and Procedure - Proceeds of crime - Application for extension
of restraining order relating to property of defendant charged but not convicted - Where ‘serious offence’ restraint can apply to all property not merely “tainted property” - Onus on defendant to avoid automatic forfeiture on conviction by showing property is not tainted 

Proceeds of Crime Act 1987 (Cth) ss4(1), 7(1), (2), 30(1), (2), 31, 44(1), (3), (4), (7a), (10), 45a(2), 48(4)

Criminal Law and Procedure - Proceeds of crime - Application for restraining 
order is interlocutory in nature as not determinative of rights - 

Proceeds of Crime Act 1987 (Cth)  ss30(1),(2), 31, 48(4), 57(2)(d)

Statutes - Interpretation - Particular statutes - Proceeds of Crime Act 1987 (C’th) -
Meaning of “shall” in s44(1) - Mandatory connotation - Court retains discretion as to property to be subjected to restraining order

Director of Public Prosecutions (C’th) v Saffron (1989) 40 A Crim R 453, distinguished
Director of Public Prosecutions (C’th) v Daubney & Bowtell (unreported, Supreme Court (NSW), 13 July 1990), followed
Brauer v Director of Public Prosecutions (1989) 91 ALR 491, followed
Director of Public Prosecutions v Toro-Martinez (1993) 119 ALR 517, considered
Director of Public Prosecution (C’th) v Jeffrey (unreported, Supreme Court (NSW), (David Hunt CJ at CL), considered
Director of Public Prosecutions v Blattman  (1990) 101 FLR 195, considered
Jeffrey v Director of Public Prosecutions (C’th) (1995) 79 A Crim R 514, considered

REPRESENTATION:

Counsel:

	Applicant:	T M Van Gessel
	Respondent:	S R Southwood

Solicitors:

	Applicant:	Australian Government Solicitor
	Respondent:	Dalrymple & Associates

Judgment category classification:	     
Judgment ID Number:	kea97015
Number of pages:	18

kea97015

IN THE SUPREME COURT
OF THE NORTHERN TERRITORY
OF AUSTRALIA
AT DARWIN

No. 126 of 1997 (9713848)

		IN THE MATTER OF the Proceeds of Crime Act 1987 (C’th)

		AND IN THE MATTER OF the property of CRAIG CANT 

		BETWEEN:
		
		DIRECTOR OF PUBLIC PROSECUTIONS (C’TH)
			Applicant

		AND:

		CRAIG CANT
			Respondent

CORAM:	KEARNEY J

REASONS FOR JUDGMENT
(Delivered  29 July 1997)

The application
	In this application under the Proceeds of Crime Act 1987 (C’th) (herein “the Act”) the Commonwealth Director of Public Prosecutions sought the following relief:

(1)	that under s45A of the Act the period of operation of a restraining order under s43(2)(a) of the Act in relation to all the existing and after-acquired property of the respondent, made on 13 June 1997 and extended on 19 June 1997, be further extended until 5pm on 13 December 1997, or until further order;

(2)	that under s48(1)(c) of the Act the respondent and one Vicky Louise Taylor be examined on oath before a Registrar about the affairs of the respondent, including the nature and location of any of his property;

(3)	that the Director have leave to approach the Court to have a time and date appointed for the examination in paragraph (2) above; and

(4)	that pursuant to s48(1)(da) of the Act the respondent give to the Director, within 28 days after service on him of this order, a statement on oath setting out those particulars of and dealings with property of the respondent which are specified in the Schedule to the Originating Motion of 13 June 1997.

After hearing argument on 3 July I eventually made the orders sought on 11 July, for reasons to be published in due course; these are the reasons for that decision.

Background to the application
	The respondent stands charged that on or about 7 June 1997 at Darwin:

	(1)	he had in his possession a prohibited import to which section 233B of the Customs Act 1901 (C’th) applies, being not less than the commercial quantity applicable to cannabis resin, which is reasonably suspected of having been imported into Australia in contravention of that Act, contrary to paragraph 233B(1)(ca) of the Act; and, alternatively,
	
	(2)	he unlawfully possessed cannabis, a dangerous drug specified in Schedule 2 of the Misuse of Drugs Act (NT), and that the said unlawful possession involved the following circumstance of aggravation - that the amount of the dangerous drug was a commercial quantity applicable to cannabis resin, contrary to section 9(1) and 2(d) of  that Act.

The facts and circumstances which the prosecution will seek to prove, to establish these charges, are as follows. 

	The respondent and one Scott Hilton arrived in Darwin from Brisbane by plane on 5 June 1997.  They checked into a motel room.  On 6 June the respondent hired a Lexcen car; he and Hilton also hired a Mazda campervan.  The two were observed on the morning of 7 June in the motel car park.  The respondent was observed removing a large parcel from the campervan and placing it in the boot of the car.  The respondent then drove away in the car and Hilton drove away in the campervan.  At 7.15am agents intercepted both vehicles at the BP Palms Service Station.  Examination of the vehicles revealed 21 large boxes and bags in the rear of the campervan, and 9 in the boot of the car.  An examination of the contents of these boxes and bags revealed that they each contained twenty 1-kilo slabs of cannabis resin.  The prosecution contends that the resin was in a form consistent with it having been imported, and that it had an approximate street value of $42,000,000.  The respondent was arrested, and conveyed to the Peter McAulay Centre.  He was charged with offences (1) and (2) on pp2-3; he has not been convicted of either of them.  

	On 13 June 1997 the applicant applied ex parte under s45(2) of the Act for an order under s43(2), restraining any dealing with the property of the respondent, and directing the Official Trustee to take custody and control of it.  The effect of such an order is that the property cannot be “disposed of or otherwise dealt with” except as specified in the order; see s43(2)(a).  This property included the respondent’s interest in the following items: certain real estate, being nos 27-29 and 31 Prospect Street, Young, NSW; BMW and Holden Apollo motor vehicles; monies standing to the credit of 9 bank accounts and a Building Society account, all in the name of the respondent; and $26,000 in cash in the custody of a Mr Hunter.  These items are set out in the Schedule to the court order made on 13 June 1997 in the terms sought.  One item, the Holden Apollo vehicle, was excepted from the general restraint, in that one Vicky Taylor, also known as ‘Vicky Jersey’, was permitted to retain custody of that vehicle and put it to its ordinary use.

	Pursuant to s45(2) an order made on an ex parte application “ceases to have effect” after a maximum period of 14 days; accordingly, the order of 13 June would expire on 27 June.  The period may be extended, under s45A(1).  The applicant applied on notice to the respondent on 19 June, to extend the period of the order of 13 June to 6 months, until 5pm on 13 December 1997.  The respondent obtained an adjournment of the hearing of this application.  The period of operation of the restraining order of 13 June was meanwhile extended until 5pm on 3 July 1997.  The application was argued that day.  Pending decision, the period of operation was further extended until 5pm on 11 July; as indicated earlier, on that day orders nos(1)-(4) at (pp1-2) were made.  

The applicant’s initial submissions
	Ms Van Gessel of counsel for the applicant rightly conceded that on the hearing of the application of 19 June to extend the period of the restraining order of 13 June, s45A(2) requires that the grounds under s44 be re-considered. 

	Section 44(1) provides that where the offence in question is a ‘serious offence’, as defined in s7(1), “the court shall, subject to subsections (3), (4), (7A) and (10), make a restraining order against the property” (emphasis added).  Section 7(1) provides that a “serious offence” means, inter alia, “a serious narcotics offence”. By s7(2) a “serious narcotics offence” means an offence “constituted by” the possession etc of a narcotic substance, involving a quantity “equal to or greater than the trafficable quantity applicable to [that particular] narcotic substance”.  “Narcotic substance” is defined in s4(1) in terms of its meaning in the Customs Act, which defines “cannabis” as a “narcotic substance”.  It was not in issue here that the offence charged at (1) on p2 was a “serious offence”, in terms of the Act. Ms Van Gessel submitted that s44(1) is a mandatory provision, in that once the provisos in ss(3), (4), (7A) and (10) are satisfied, the Court has no discretion; it “shall make a restraining order”.  As to the meaning of “shall” I observe that the context in which it is used in a statute will govern its meaning; it does not always impose a duty to do the act prescribed - see R v Davis (1947) 75 CLR 409 at 418-9 per Starke J.  In many cases it has been held to be only directory; in many others, to be peremptory.

	Ms Van Gessel then dealt with s44(3), (4), (7A) and (10), in turn.  She submitted that the effect of s44(3) is that if, as here, the defendant has not been convicted of the offence charged, “the court shall not make a restraining order” unless  2 conditions precedent are met. First, the application must be “supported by an affidavit of a police officer” stating his belief “that the defendant committed the offence”; and, second,  the court must be satisfied, having regard to the matters in that affidavit, that “there are reasonable grounds for [the officer] holding that belief”.   I accept that.  Ms Van Gessel relied on the contents of the affidavit filed herein of 13 June 1997 of Robert Warren Craven a member of the Australian Federal Police, as meeting both of these conditions.

	She submitted next that s44(4) did not apply in this case, as it is directed to the situation where it is proposed to charge the respondent; here the respondent had already been  charged. Further, she submitted that s44(7A) did not apply in this case because it is directed to a restraining order on property of a person other than the respondent;  here the property in question is said to be that of the respondent.  I accept these submissions.

	Finally, s44(10) provides that the Court may refuse to make the order sought, unless the Commonwealth gives an undertaking to pay any damages arising from the making of that order.  Ms Van Gessel orally affirmed the undertaking earlier given on behalf of the Commonwealth, in that regard. I accept that, as satisfying s44(10).

	As to proposed order (2) on p2, Ms Van Gessel founded on s48(1)(c), and in support relied on the contents of  Mr Craven’s affidavit of 13 June 1997.  Proposed order (3) on p2 is simply consequential upon proposed order (2). As to proposed order (4) on p2, Ms Van Gessel founded on s48(1)(da) and (2), and in support relied again on the contents of Mr Craven’s affidavit.

The respondent’s submissions
	Mr Southwood of counsel for the respondent opposed the application for orders (1)-(4) on pp1-2, on two main grounds.  

	First, as to the conditions precedent in s44(3), he submitted that the affidavit of Mr Craven did not adequately set out “the grounds on which the officer holds that belief”, as required by s44(12).  Thus, the deponent did not say he was an officer involved in the operation of 7 June 1997, and so par4 - where he asserted his belief - was presumably hearsay, yet he had not stated who had supplied him with the information on which his belief was founded, the knowledge they had of the matter, and the circumstances in which he was supplied with their information.  These constituted the ‘grounds’ of his belief, but had not been stated; this failure in turn meant it was impossible to assess whether the grounds for his belief were “reasonable”, a matter about which the court had to be “satisfied” before it could make a restraining order - s44(3)(b).  In that regard I accept Mr Southwood’s submissions that the Court has a “determinative role in … evaluating the application for the making of the restraining order”, and “is far from a rubber stamp”; see DPP v Toro-Martinez (1993) 119 ALR 517 at 525 per Kirby P.

	Second, relying on what was said by Mathews J in at 455, Mr Southwood submitted that the essential  purpose of a restraining order under s44(1) is to maintain, intact, property which might later become the subject of a forfeiture order under s19(1) (which applies to “tainted property” as defined) or of a pecuniary penalty order under s26(1) (which applies to benefits derived from the commission of an offence). “Tainted property” is defined in s4(1) in terms of  “property used in, or in connection with, the commission of the offence [charged], or proceeds [as defined in s4] of the offence”.  He submitted that as the respondent’s property described on p4 was manifestly not ‘tainted property’ in this sense, no restraining order against it could be made.  

	In support of this construction of s44(1) Mr Southwood relied on a purposive construction of the Act, pursuant to s15AA of the Interpretation Act 1901 (Cth), in the light of its “principal objects” and “objects” as specified in ss3(1) and (2) respectively.   He submitted that construing the Act purposively leads to the conclusion that the purpose of making a restraining order under s44(1) is to deprive persons in the position of the respondent of property used in committing the offence, or of property derived from the offence as proceeds thereof; in short, the purpose is to deprive them of ‘tainted property’.  He submitted that it followed that when s44(1) provided for a restraining order against “the property”, this should be limited to “the tainted property”.   I accept that a purposive approach to the construction of the Act should be adopted; this does not mean that Mr Southwood’s suggested construction follows.  Mr Southwood also urged in support of this construction the potentially draconian ramifications of s44(1), if it were interpreted otherwise; the existence of s46 of the Act; and the existence of s48(4), which appeared to indicate that little or no purpose would be served by an application under that provision where the property is not ‘tainted property’.

	Mr Southwood emphasized that the definition of ‘tainted property’ in s4(1) refers to “property used in … the commission of the offence” charged or to the “proceeds of the offence”; and not, for example, to property used in the commission of offences other than the offence charged, or constituting the proceeds of other offences.  I accept that.  He rightly submitted that the respondent had been charged only with a single instance of possession of the cannabis resin on 7 June 1997.  It was not alleged that any of the resin had been sold; accordingly, no ‘proceeds’ as defined in s4 had been derived or realized from “the” offence.  None of the property specified on p4 had been derived from “the” offence.  He submitted that accordingly there was no ‘tainted property’ in terms of s4 which could properly be the subject of a restraining order in this case; that this was clear both from the affidavit of Mr Craven, and from Mr Breen’s affidavit of 3 July 1997 filed herein; and the application to extend the period of the order of 13 June should be refused, or permanently stayed as an abuse of process since it was neither made for a purpose of the Act as specified in s3, nor on the basis that the property was “tainted property”.  

	I should state, since Ms Van Gessel initially objected to Mr Breen’s affidavit being read, because it was sworn on the basis of ‘information and belief’, I consider that it was properly relied on by Mr Southwood in this application; I consider that the application of 19 June is interlocutory in its nature, having been made for the purpose of keeping things in status quo till the rights can be decided.  See r43.03(2) of the Supreme Court Rules,  Gilbert v Endean (1878) 9 Ch D 259 at 268 per Cotton LJ and R v Connell & ors (1990) 3 WAR 516 at 521.  I do not consider that s30 (which provides for automatic forfeiture of restrained property upon conviction) affects this conclusion, since in turn it must be read in the light of ss31 and 48(4).   

	Mr Southwood also submitted that “shall … make a restraining order” in s44(1) should not be read in a mandatory sense; otherwise there would be no point in a provision such as s46 permitting persons claiming an interest to appear and give evidence.  I note, however, s43(2)(a) which contemplates that the court may permit disposal of all or part of the property, and the existence of s46 is consistent with this provision.

	As to the second submission (p8), I note first that Director of Public Prosecutions (C’th) v Saffron (supra) did not involve a “serious offence” as defined in s7(1); see p454.  The defendant had been convicted of conspiring to defraud the Commonwealth, by way of a scheme for the evasion of income tax.  This was, in terms of the Act, an “ordinary indictable offence”, which is defined in s4(1) as being “an indictable offence that is not a serious offence”.  Restraining orders in relation to the property of a defendant charged with such an offence are restricted to “tainted property”, or to cases where the defendant derived a benefit from the commission of the offence - see s44(5).  I note second that there was no suggestion in Saffron (supra) that the property the subject of a restraining order there sought to be extended, was ‘tainted property’.  Mathews J extended the period of the order because the subject property might later become the subject of a pecuniary penalty order under s26(1)(b), on the basis that the defendant had derived benefits from the commission of the offence.  The observations of Mathews J at 455 (and of Kirby P (with whom Meagher JA agreed) on appeal - see Saffron (No.4) (1989) 39 A Crim R 353 at 355) as to the purposes of a restraining order under the Act, are to be read in this context;   I consider that those remarks have no application to a “serious offence”, or to s44(1).

	Mr Southwood also submitted in later written submissions that pursuant to s43(2) the Court has a discretion as to the extent of any restraint imposed, and as to whether the Official Trustee should be appointed to take custody and control of the property under s43(2)(b).  He relied in that regard on Brauer v Director of Public Prosecutions (1989) 91 ALR 491 at 496 per Thomas J, with whose approach I respectfully agree: the court retains an important discretion as to the extent of the restraint, and as to whether the Official Trustee should be appointed to take control, under s43(2).  See also Director of Public Prosecutions (C’th) v Daubney & Bowtell (unreported, Supreme Court (NSW), 13 July 1990) at pp9-10, which I consider should be followed.  

	Mr Southwood submitted that if the Court made a restraining order, in the exercise of its discretion it should not appoint the Official Trustee to take custody and control of the assets; it should allow certain uses of the real estate and of one of the motor vehicles, which he specified;  and it should not order the examination sought in proposed order (2) on p2, or the statement in proposed order (4) on p2, because there was no affidavit material to support the making of these orders.
	He submitted that to the extent that Brauer v Director of Public Prosecutions (supra) and Director of Public Prosecutions (C’th) v Daubney & Bowtell (supra) were inconsistent with his submissions, they should not be followed; I reject that submission.

The applicant’s submissions in reply
	As to Mr Southwood’s first ground (p7), Ms Van Gessel referred to pars1, 2 and 4 of Mr Craven’s affidavit, which indicate that he reached his belief on the basis of information supplied to him by other Federal Police members who took part in the investigation.  She submitted that the information set out in par4, summarized at p3, was sufficient to establish reasonable grounds for his belief that the respondent committed offence (1) at p2.

	It can be seen that Mr Southwood was advancing at pp8-9 a quite different construction of s44(1) to that advanced by Ms Van Gessel at p5.  In response, Ms Van Gessel observed that s4(1) defines “property”, the term used in ss43(1) and 44(1) to describe that which can be made the subject of a restraining order when the indictable offence is a ‘serious offence’, in comprehensive terms of “real or personal property of every description, whether situated in Australia or elsewhere, and whether tangible or intangible”, including “an interest in any such real or personal property”.   The applicant did not assert that any of the property on p4 was “tainted property”; rather, all of those items fell within the definition of “property” in s4(1), and that was all that s44(1) required.  Section 44(1) of the Act had a wider application than merely ‘tainted property’.  
	I note that s4(1) defines “tainted property”, a term used in s44(5), (6) and (7)  where the relevant offence is an “ordinary indictable offence”, but not in s44(1) where the relevant offence is a “serious offence”.   It is used in s44(7A) where the relevant offence is a “serious offence”, but that provision is limited to “specified property of a person other than the defendant”, and has no application here.  

	Ms Van Gessel submitted that if the legislature had intended that a restraining order with respect to property when the relevant offence was a ‘serious offence’, was to apply only to tainted property, it would have used the term “tainted property” in s44(1), rather than the much broader term “property”.

	Ms Van Gessel noted that upon conviction for a ‘serious offence’ property which has been restrained is automatically forfeited to and vests absolutely in the Commonwealth by operation of s30(1) and (2) of the Act, provided the restraining order meets the requirements of pars(b), (c) and (d) of s30(1).  Conversely, if the respondent is not convicted, the restraining order “ceases to be in force”; s57(2)(d).  If forfeiture occurs under s30, the respondent may seek to recover the property, under s31(6)(b).  Further, prior to forfeiture under s30, the respondent may obtain from the court a declaration under s48(4) “that the restraining order … be disregarded for the purposes of section 30” if he satisfies the court that “the property was not used in, or in connection with, any unlawful activity”, not derived therefrom, and his interest therein “was lawfully acquired”.  That is to say,  in the case of a serious offence, to avoid forfeiture under s30 of property restrained, the onus is upon a defendant to satisfy the court about those matters. Ms Van Gessel conceded  that the Act has been described as ‘draconian’ in its operation, noting the wide scope of words “any unlawful activity” in s48(4)(e),  but submitted that the construction she advanced was clearly intended by the legislature.  See Director of Public Prosecution (C’th) v Jeffrey (unreported, Supreme Court (NSW), (David Hunt CJ at CL), 15 January 1992) at p11, where his Honour refers to the Act’s “novel, drastic and draconian remedies”.  I  note also that the Act has been criticized as “a gross violation of civil liberties, and as impinging upon the traditional values of our liberal democratic society”; see M Weinberg, (the then Commonwealth Director of Public Prosecutions):  ‘The Proceeds of Crime Act 1987 - new despotism or measured response’ (1989) 15 Mon. LR 201.

Conclusions
	I consider that “shall” in s44(1) bears a mandatory connotation in the sense that the Court must make a restraining order on a competent application; however I  respectfully agree with Thomas J in Brauer v Director of Public Prosecutions (supra) that “the Court retains a discretion to decide against which property it will make a restraining order”.  

	I adopt the construction of the Act advanced by Ms Van Gessel at pp5 and 12-14 in relation to the property which can be subjected to a restraining order where the offence concerned is a ‘serious offence’; I reject the construction advanced by Mr Southwood at pp7-9.  See as authority for this approach, Director of Public Prosecutions (C’th) v Daubney & Bowtell (supra) at p13, which I consider should be followed.  Section 44 clearly distinguishes between a defendant being charged with or convicted of an “ordinary indictable offence”, as opposed to a “serious offence”.  When the offence charged is an “ordinary indictable offence” any restraining order against specified property of the defendant is restricted to “tainted property”, under s44(5); a restraining order against all his property cannot be made unless there are reasonable grounds for an officer’s belief that he “derived a benefit, directly or indirectly, from the commission of the offence” - s44(6)(c).   When the offence charged is a “serious offence”, as here, the restraining order may apply to “property” of the respondent, without restriction.  In this case the fact that the property sought to be restrained is not “tainted property”, is irrelevant.

	In support of this construction, see also Director of Public Prosecutions (C’th) v Jeffrey (supra).  In this case the applicant had been convicted of a “serious offence” of June 1988, of being knowingly concerned in bringing into Australia a commercial quantity of cannabis.  The case arose from the imminent forfeiture under s30 of Triumph and Rolls Royce motor cars, properties in Glebe and Nundle, and some amounts of money. He had purchased the Triumph motor car in 1969, the Glebe property in 1979, the Nundle property in 1983 and the Rolls Royce motor car in 1984.  As a matter of common sense it could be concluded that none of the cars or property were “tainted property”; none were used in the commission of the 1988 offence, or constituted the proceeds of that offence.  However, pursuant to s44(1), a restraining order had been made over all the property enumerated above in June 1988.  This was never sought to be attacked.   The only remedy available to Jeffrey was to seek a declaration pursuant to s48(4), an application in which “at all times” he bore the legal onus of proof; his application was the subject of his Honour’s judgment.  Director of Public Prosecutions v Blattman  (1990) 101 FLR 195 also favours the construction I have suggested; as Higgins J said at p200 “… the court is to apply different criteria to the making of a restraining order in the case of “ordinary indictable offence” than in the case of a “serious offence”.  His Honour noted the differing requirements of the respective supporting affidavits, as set out in s44(5)(c) and s44(3)(a).  

	It is true that it is implicit on this construction that the Act is draconian in its nature and effect.  Conviction of the “serious offence” charged will trigger a loss to the respondent of assets restrained which he may have gained by committing other offences, for which he has never been charged, but in relation to which, as regards s48(4)(e), he bears the onus of proof.  As Mr Weinberg pointed out, op.cit -
208		“All this may have some utilitarian justification, but does not sit well with 
ordinary principles of fairness, and the presumption of innocence.”

…

211		“To restrain a person’s property without there having been any determination 
of his guilt is a major incursion into both that person’s right to property, and the presumption of innocence.”

…

214		“In my assessment, however, the Act in so far as it deals with confiscation
should be regarded as a sensible and appropriate mechanism for dealing with an urgent and difficult problem.”

I consider that draconian as it is, this is what the legislature clearly intended.  In arriving at that conclusion, I have adopted the approach that any statutory ambiguity should be interpreted so as to respect a person’s property rights, unless no other interpretation is possible, since the confiscation of property without compensation constitutes a penalty; see Jeffrey v Director of Public Prosecutions (C’th) (1995) 79 A Crim R 514.

	I am satisfied in terms of s44(3) from the contents of Mr Craven’s affidavit of 13 June 1997, that he believed on reasonable grounds that the respondent committed the offences charged at (1) on p2.  The ‘grounds’ for his belief sufficiently appear in his affidavit; it is unnecessary that he state therein the details mentioned by Mr Southwood at p7.  Neither s44(4) nor s44(7A) have any application, on the facts.  The requirements of s44(10) are met.  Since the offence charged in (1) on p2 is a “serious offence”, and the matters raised by ss(3), (4), (7A) and (10) of s44 are satisfied or not relevant in the circumstances of the case, s44(1) applies and the Court is required to “make a restraining order against the property.”  

	Bearing in mind the discretion mentioned in Brauer v Director of Public Prosecutions (supra), in the circumstances as disclosed in Mr Craven’s affidavit I consider that it is appropriate to extend the period of the restraining order made on 13 June, until 13 December 1997.  

	I am satisfied on the basis of the contents of Mr Craven’s affidavit that the relief sought in order (2) on p2 should be granted.   I agree with Smart J in Director of Public Prosecutions (C’th) v Daubney & Bowtell (supra) at p15 that the principal purpose of an ancillary order under s48(1)(c) is - 
“to ensure that all the property and relevant dealings of the defendant are ascertained together with the interests and dealings by other parties in any relevant property.  No property is to miss the Act’s net by reason of lack of information.”

I do not consider that order (2) on p2 is oppressive, in the respondent’s current circumstances; I consider it serves bona fide the principal purpose of an order under s48(1)(c), and contributes to the efficacy of the restraining order, which extends to all of the respondent’s property.

	Order (3) on p2 is merely consequential upon order (2), and should be made.

	Order (4) on p2 also is ancillary relief, and for reasons similar to those for making order (2), I consider that it should be made.  

	These are the reasons for the making of orders nos. (1) - (4) on pp1-2, on 11 July.

________________________