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[2004ocA 58
Transcriptof Proceedings
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Staie RepodngB!.eau
COURT OF APPEAL
Date: 7 March,2007

WILLIAI.,IS JA
KEA]iIE JA
HELMAN ,J

CA No 1355 of 200?

BRISBANE

- . 0 2 / a 3/ 2 0 0 ' 7

JUDGMENT

PROCEEDINGS IN CAMERA

W.ARN|N9: Tbepublication of infornationor d€{ailslikelyto leadto theidentificationof personsin someproceedings is a criminal
offunce,Thisis so particularly of childrenwhoareInvolvedincdminalproceadings
in relationto lhe identification or Foceedings for
theirprotec'tion
underlheChildPrctectionAct19gf,andcomplainants in criminalsexualofiences,bulis notlimitedto those
Youmaywishto seeklegaladvicebeforegivingothersaccessto thedetailsofanypersonnamedin $eseproceedings.
categories.
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4" Floor,The Law Courts,GeorgeStreet,Brtsbane,Q.4000 Telephone:(07)3247,{360 Fax: (07) 32475532
02432001 D.1 T 1 5 , / K L B ( B N E )M / T C O A 3 5 , / 2 0 0 1

KEANE JA: pubfic pr:osecutions, 't
The Corunonweafth Director of
t,'rh- noP,,i Li\ rn. i5.r f^.1.:c.^.-r * r l r cor ur :onl l tr ^v . 2 0r
Pur L or Ehe

Proceeds of Crine Act 2002 (Cth) ("the Act',) for an orde! that

any paynents made by Pan MacMilfan Austrafia, after the order

is made. to Schapelfe Corby or her sister or brother in-.Iaw or '!0
any other agent, in respect of the publication, ',My Story

Schape-lfe Corby with Kathryn Bonelfa", must not be disposed of

other:wise than into the custody and contt ol of the Official
Trustee in Baokt:uptcy. A simifar order is sought in respect
of pal.ments nade by Pacific Magazine pty Ltd to Schapelle
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Corby's sister in respect of an article published in the

magazine, "New Idea". Further orders are sought to freeze

these. anal any further such pa),flents, until the determination

of the DPP's claim that these moneys should be paid to the

Conmonviealth.
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The application 1s brought ex parte, as perrnitted by s 26(4)
of the Act, because the moneys in question night be easily

disposed of before any order could be made if notice of the

I appfication !,/ere to be given to the respondent - The sane
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concern, namely, that the DPP's application might be rendered
nugatory if thls application wer]e heard in public, Lead the

court to hear the application in-camera. See J v.L, A
Servjces Pty Ltd (No 2) 179951 2 edR 10.

50
It should be said this application is in no way determinative
of t'he substantive rights of the parties- The orders sougnc

by the DPP are interim orders. They may be made on the basis

of reasonable suspicion on lhe Dart oI t.he deponents upon whom

JUDGMENT 50
42a3200'/ D. 1 T 1 5 , / K L B ( B N E )r 4 / " t c o A 3 5 / 2 0 0 - l

the DPP relies as to the facts upon which the Dpp's cfaim is 1

based. lhe Laclual basjs Tor a finaf ordej ror Lhe palment of

moneys to the Corunonwealth must be established on the bafaoce
of probabilitles. ft should also be noted that Schapelle
Corby, or any other per:son affected by the order, nay appLy
l0
for its revocation pursuant to s 42 of the Act.

The fuff terms of the order sought were contained in the draft
proffered by the DPP and mar.ked Exhibit 1 in these
proceedings. In this regatdr the Court $ras infor:med by Mr
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the DPP intends to serve Schapelle Corby, her sister ancl
brother-in-Iaw, the pubfisher of the memoir, and the owner of

New Idea i/ith any order made by this Court, ils reasons and
the reasons of the learned Distrlct Court judge. as well as
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all Tareria_ t.led rn s,innd. i .' tqi. i^n :-, i^n

The appLication was originally made by the Dpp to a _judge of
the District Court, who, on 15 February 200?, refused the
application for reasons which I will nention. The Dpp's
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application is renewed before this Court by way of appeal
pursuant to r 763(1) of the Unifom Cjvif procedure Rufes 7999
(Q1d) ("the u c P R ") .

the -ule relevantlv provides:
5U

"If a ,tudge refuses an application made in the absence of
a p9rty, the party who made the application nay renew the
application in the absence of the other party by way of
appeal to the Court of Appeal.',

JUDGMENT 60
42a32001D.1 T 1 5 , / K L B ( B N EM
) /T COA3'/200J

Leave to appeal is necessary irnder s 118 of the Drstr-ict Cou-rt a
af Queensfand Act 1967 lQId) - See Dpp (Cth) v Eart (No 1)

l2j04l 2 OdR1 at t3l . This is cleai:fy an appropridte case
fdr iha d-:nf ^f I a:r.o l-,6^:
lsuduse an lmportant question of 1aw
arises,
10

Section 20(1) {d) of the Act pr:ovides for the naking of the
order sought by the DPP if, relevantly: "there are reasonable
grounds to suspect that a person has cornmitted a foreign
indictabfe offence, and that the person has derived liteiary
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proceeds in refation to the offence',.

Section 153 of the Act provides, relevantlyj

(1) -iLerary Proceecls are any beneriL Lhal d pelson
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derives fron the corunercial expfoitation of:

(d) The person's noLori ety resultino t!om Lhe
person committing an indictable offence or a foreign
indictabfe offence;

12) The conmerciaf exploitation may be by any means

including:

(a) publishing any material in written or electronic
form 50

JUDGMENT 60
0 2 0 3 2 0 0 ' 7D . 1 T 1 5 , / K L B ( B N EM
) /T COA35/2oO'1

(34) -I the offence is a foreign indicrabfe offence,

rhen Lhe benefit is noL treared as I iLelary proceeds

un]ess the benefit is derived in Australia or transferred
to Austral ia,

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The DPP seeks to intercept payments which the affidavit of a
Federal agent, Ms Corkery, suqqests were made by pan MacMlf1an

Austr.afia Pty Ltd ("the publisher of the memoir',), a company
incorporated in Australia, in exchange for: Schapelle Corby,s

stor:y of her arrest, imprisonment and conviction in Indonesla
2Q
for the importation of cannabis into that country. Ms
Cor.keryrs affidavit suggests that pa),ments have been made from

the pubfisher of the memoir from Australia by telegraphic
transfer to the bank account in Indonesia of Schapefle Corby,s
brother-in-faw/ as advances due on the Schapefle Corby memoir,
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a book written in cooperation $/ith Schapelle Corby. Ms
Corkery suspects that these amounts are held on behalf of
Schapelfe Cor:by.

Tt is also suggested that 915,000 is payable to Schapeffe
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Corbyrs sister or nominees pursuant to attanqements made as a
result of a written offer from pacific Magazines pty Ltd (,,the

owner of Ne!./ Idea,'), a company incorporated in Australia. to
Mercedes corby for an e><clusive interview, with photographs,
for an article containing entries from sch.apelle corby's
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diary. It is not presentty apparent whether this money has
been paid, and if so, to whom-

.]UDGMENT 60
020320A1 D.1 T1sIKIB(BNE) M/T COA35/2007

The learned DiEtrict Court judge, to whom the Department of

Public Prosecutions applied, was satisfied that the
7a-rirAmahi_c ^F c .)n ^F f-,,J
L6 Act were met, save the requirement

that the relevant benefit be derived in Auetralia or:

transferred to Australia.
t0

His Honour referred to Lhe concep! of "derivation,,, as that

notion has been expounded in cases concerned with the
derivation of income for: the purposes of incorne tax faw, and

concluded:
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"But if the respondent 's income was simply as a resulL of
work done or other things done by the respondent outside
Australia, then the benefit that is any remuneration
paid to the respondent for doing those tiings - was noE,
in my opinion, derived in Australia.

There is norhing in tl-e prese-rt materiar co givc rise io
a reasonable suspicion that any payment made to the 30
respondent (or mo.e relevantly fo Ehird parlies, buL one
m gnL reasonao-Ly suspecL for Ehe benefit of the
respondent) i/as derived from property of the respondent
in Australia. In those circumstances the material does
not provide a proper basis for concfuding that the
benefits identified in the material rdere to be treated a6
Iiterary proceeds within Section 153(3A) of the Act.

On the material presently available, theretore, in my
oplnlon there were not reasonable grounds to suspect that 4A
the respondent has derived literat y proceeds in relation
to ttle offence, because there are itol reasonabfe qrounds
to suspect that any liLerary proceeds have been d6rived
in Australia.',

The Departrnent of Public prosecutions subnLits that it is not
necessary to satisiy s 153(3A) or s 153 (1) of the Act, Lhat a 50
benefit sought to be intercepted under the Act be generated

from the respondent ' s properly in, or personal exertion in?
Australia: all that is required is that the benefit be

JUDGMENT OU
02a3200'7 D.1 T15IKLB(BNE) M/T COA35/200?

derived in Austral.ia in the sense that the benefit has its
geographic oriqin or source in Australia.

In my respecLTul opjnior, Lhis subm'ssion shodld be accepred.

The word "derived" is defined by the Macquarie Dictionary to
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mean: "?o receive o:r obtain from a source or or.igin; to trace
as from a source or origin... As Hunt CJ at CL observed of an
anafogous provision in the proceeds af Crjne Act 1987 lctbJ ,
the "ordinaiy Engtish meaninq (of 'derived,) is t o s h o r , /t n e
origin of the source of the thrng said to have been derived...
20
The r,/ord should be interpreted in its ordinary sense.'r See
DPP (Cth) w Jeffery (1992) 58 A Crin R 310 at 320. I dgree.

There is no indication in the language of the Act, and in
particufar s 153(3A) , that the interception provisions of the
30
Act are to be trammelfed with the conplexities which have
attached to the concept of derivation as a resulL of judicial

exegesis of provisions of the Inco&e ?ax Assessnert Act 1936
(Cth), which al]e concerned to identify the locale of the

.",} rights or activities which caused the production of the
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taxable income, or assessable income. Compare tsqujre
Noninees Pty Ltd v Federaf Contnissioner of Taxatjon (Ig:'I)

1_29 CLR 1"t'7.

The Act is not concerned with \rhele the co.irunercial
50
exploitation which has produced the benefit has occurred:
that is apparent from the very languagre of s 153(1). This is
readily understandable: there may be many acts constituting
cornne:rcial exploitation which may occur in different places/

.'UDGMENT 60
0203200-t D.1 T15,/Kr"B(BNE) M/'t coA35/2001

Lhe variety of locations rd\ere part icula- acls occur naving
' rla In d. uilh tl-a n4l i^v whi.h inf^-mc fh- a^F ThaL chis

is so is contirmed by the clear geog-aphical focus in

s l5l(3A) ot the AcL upon oeneliLs "derived in Ausrra.lia or

tr:ansferred to Austialia". This description is apt to catch
10
any benefits sourced from, o]: received in, Australia. There

'ls no reason to read down either s 153(1) or s 153(3A), by

importing complexities ftom a differ:ent field of discourse.

For these reasons, I am respectfully of the opinion that the

1ea-recl DjsL-icr CourL iudge e-.ed jn Lakinq Loo narrow a v'olt

of s 153(1) and, consequently, of the scope of s 20(1) (d) of

the Act.

I would therefore give leave to appeal, alLon the appeaf and

make orders in terms of Exhibit 1, with the addition of an

additional direction as paragraph l5 in the fol.Lowing terrns:

15. Any consequential proceedings are to be brought in the

trial division of the Supreme Court.
4o-

WIILIAMS JA: I agree. In my vienr, literary proceeds were
generated in Austt alia in consequence of the publication in

Australia of both the book and the article. That 1s
sufficient to satisfy the test that a bendfit was derived in
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AusLralia to-r purposes of the regj slation.

JUDGMENT 60
02032007 D.1 T15,/K1B(BNE) M/r CoA35/2o\.l

I agree nith the reasoning of Keane J, The order sougnc
should be made. Any consequential proceedings should be
brought in the trial djvision o f t h e S u p - r e r nC
eourt.

HELMAN J: I aqree -
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2Q

30

\.,)
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JUDGMENT 60