Applicant v JUDITH MARY-ANNE MORAN

Supreme Court of Victoria|2011-08-10|Before: LASRY J

CONFISCATION OF PROPERTY - Application for forfeiture of proceeds of sale of property - Application for forfeiture of getaway vehicle - Offence of murder - Whether property used in, or in connection with, the commission of the offence - Meaning of "in connection with" - Whether use of property incidental to offence - Confiscation Act 1997, s 32 - Application refused.

As against the respondent Moran, the property comprising the balance of the proceeds of sale of the property located at 10 Ormond Road, Ascot Vale, being the property more particularly described in Certificate of Title Volume 08007 Folio 145.

As against the respondent Armour, the grey coloured 2009 model Land Rover Discovery motor vehicle, registered number WZF-020.

2 The applications both rely on the fact that both respondents have been convicted of the offence of murder.

3 Pursuant to s 32 of the Act:

(1) If an accused is convicted of a schedule 1 offence, the DPP or an appropriate officer may apply to the Supreme Court or the court before which the accused was convicted of the offence for a forfeiture order in respect of tainted property.

4 Pursuant to Schedule 1 of the Act, it is sufficient that the offence of murder is an indictable offence against the law of Victoria.

5 The applications are supported by an affidavit sworn by Stephen John Reidy, a Detective Senior Constable of Police who, although a witness, has also sworn to his assertions as to why this application should succeed.

6 Desmond Moran was shot to death in a café in Union Road, Ascot Vale, on 15 June 2009. He was shot by the respondent Armour, and in the trial of Judith Moran the jury found her guilty of that murder on the basis that she and Armour were engaged in a joint criminal enterprise. The Crown case was that Judith Moran engaged Geoffrey Armour to kill Desmond Moran and that she participated in the commission of the offence by driving him and Michael Farrugia to and from the scene of the shooting in Union Road, Ascot Vale on 15 June 2009.

7 In relation to the Land Rover Discovery vehicle WZF 020, that vehicle was purchased by the respondent Moran with the proceeds of funds raised by a loan on her property at 10 Ormond Road, Ascot Vale in May 2009. The vehicle was then given to the respondent Armour for his use and registered in the name of the company Environment Concrete Constructions Pty Ltd, which is the third respondent.

8 The Crown case was that the purchase and giving of the vehicle by Moran to Armour was effectively a means of payment to Armour in return for him being willing to undertake the fatal shooting of Desmond Moran. In addition, the vehicle was driven on 15 June 2009 and was being so driven at a stage where some limited surveillance on Desmond Moran had been carried out. I am satisfied, as I am for the purpose of sentencing both Armour and Moran, that the case as put by the Crown in relation to the giving of the vehicle by Moran to Armour was made out. Whether on the evidence the funds that were borrowed on the security of the premises were borrowed by the respondent Moran with that in mind is another, separate question.

9 In the application relevant to that vehicle, Armour did not appear and was not represented by counsel.[1] As I follow his position, he wishes to raise no objection to the forfeiture of that vehicle.

10 The Director of Public Prosecutions' application, as it relates to the forfeiture of the proceeds of the sale of the respondent Moran's property, is put on the following basis. From about 3 May 2009, the respondent Armour, his partner Suzanne Patricia Kane and their son were staying at the Ormond Road property with the first respondent. On the morning of the shooting of Desmond Moran on 15 June 2009, the respondent Moran drove Armour and Michael Farrugia from her Ormond Road property to Union Road, Ascot Vale where Desmond Moran was murdered by Armour. They then returned to the Ormond Road property. The vehicle in which they travelled was a Ford Fairlane, fitted with false registration plates that had been purchased in a false name by Armour. When they returned to the Ormond Road property, the Ford was driven into the garage of the Ormond Road property and concealed from view. Much later that night, while police watched covertly, Moran attempted to dispose of the vehicle by dumping it in Mincha Street, Brunswick. She was then arrested.

11 After the murder, the respondent Moran took charge of various items used in the murder (including the murder weapon), as well as clothing and a wig that Armour wore during the shooting of Desmond Moran. Following the murder, police conducted a search of the Ormond Road property pursuant to a warrant and found a number of items connected with the murder of Desmond Moran in a safe in the premises. The safe was concealed but not locked.

12 In addition to those matters occurring on 15 June 2009, the Director of Public Prosecutions also relies on the fact that in May 2009, the respondent Moran arranged both the establishment of a company named Environmental Concrete Constructions Pty Ltd and also a loan from the Westpac Bank on the security of the Ormond Road property for the sum of $400,000. Of that loan, the respondent Moran received $50,000 on 18 May 2009 and the balance was deposited to the trust account of her accountant, Peter Cook, on 19 May 2009.

13 In anticipation of the loan being completed and her receiving the proceeds, the respondent Moran arranged to purchase three vehicles. Two were Chrysler convertible vehicles purchased on 14 May 2009 for a total sum of approximately $110,000. One vehicle was purchased under the name Environmental Concrete Constructions Pty Ltd and the other vehicle was purchased in the name of the respondent Moran. The vehicle purchased under the name of Environmental Concrete Constructions Pty Ltd was intended for Suzanne Kane. As at 15 June 2009, neither of these two vehicles had been collected from the dealer.

14 On 15 May 2009, a further part of the proceeds of the Westpac security over the Ormond Road property was used to purchase a vehicle from a Land Rover dealership, being a Land Rover Discovery, registration WZF 020, for approximately $73,000. Whilst the two Chrysler vehicles were never collected from the dealer, the Land Rover Discovery was collected and was driven from time to time by the respondent Armour. The balance of the purchase price of $72,000 was paid on 29 May 2009 by Mr Cook, a deposit of $1,000 having been paid on or about 15 May 2009.

15 The evidence about the arrangement of the loan included Moran's accountant Peter Cook, who gave evidence that in 2009, Moran rang him and asked about borrowing money against her house. Ultimately a loan was arranged through Lending Link of approximately $400,000, which Ms Moran said that she was going to use for a holiday and new car. Ms Sharon Rae was the Loan Consultant from Lending Link that had responsibility for this matter, and in evidence in Ms Moran's trial she confirmed the arrangements that were made, commencing in April 2009, to provide a loan to Ms Moran for a sum of $400,000. In cross examination, she agreed that the idea was that Ms Moran was going to sell her home and buy a cheaper house down on the coast.

16 In relation to the proceeds of the sale of Judith Moran's property at Ormond Road Ascot Vale, the first question that I need to determine is whether or not the property is "tainted property". Section 3 of the Act defines tainted property as meaning property that:

(a) was used, or was intended by the accused to be used in, or in connection with, the commission of the offence; or

(b) was derived or realised, or substantially derived or realised, directly or indirectly, from property referred to paragraph (a); or

17 In this application there is a contest as to whether the proceeds of the sale of the property are "tainted property" and whether they are tainted in that respect.

18 The applicant has submitted in the course of both written and oral submissions that the property at Ormond Road is tainted property in that it was used by the respondent Judith Moran in or in connection with the commission of the offence of which she was convicted. In my opinion, it would be very difficult to conclude that it was used in the commission of the offence. The Director of Public Prosecutions concedes as much and the real question then is whether it was used in connection with the commission of the offence.

19 Counsel on behalf of the respondent Moran submitted that, given that there is no evidence that the property or the Land Rover had been derived or realised from any criminal offence, the only basis on which it can be contended that the property is tainted is pursuant to paragraph (a) of the definition, i.e. that the property was used in or intended by the accused to be used in or in connection with the commission of the offence. Mr Saunders of counsel for the respondent Moran has submitted that the application should fail on the basis that the proceeds of the property are not tainted within the meaning of the Act.

20 Many of the authorities to which I have been referred involve premises used in the cultivation of drug crops. In most of those cases it was clear that the relevant property fell within the definition of tainted property under the Act.

21 In Taylor v Attorney-General (SA),[2] the South Australian Court of Criminal Appeal was concerned with the forfeiture of a dwelling in connection with nine representative counts of selling cannabis. The premises from which the cannabis was sold was also the family home for the accused and his de facto wife. The Court at first instance made an order forfeiting the property and that order was overturned on appeal on the basis of hardship. In dealing with whether the property was either used in connection with the commission of an offence or used in the commission of an offence, it was held that it was.

The growing of cannabis on a farm property further illustrates the correctness of that conclusion. If a small crop of cannabis is grown on a large farming property, it might be said there is no substantial connection between the use of the property and the commission of the offence. However, it is clear that the property has been used in connection with the commission of the offence: absent the property, the crop would not have been grown.

23 His Honour went on to foresee what he described as "nice questions" that could arise in relation to what he referred to as possible "borderline" cases, giving as an example the question of whether the driving of a motor vehicle to the scene of an offence has facilitated the commission of that offence which would then result in the forfeiture of that vehicle. As shall be seen shortly, Hollingworth J in this Court came to a positive conclusion on this issue.

24 Expressing a view about the way in which the words of the Act should be interpreted, Debelle J went on to say the following:[4]

It is not, I think, correct to qualify the expression by requiring a substantial connection. That is to introduce an epithet which the draftsman has not used. As I have said, it will always be a question of fact and degree in every case whether there has been, on any sensible meaning of the expression, use of the property in connection with the commission of the offence. Whenever property is used in connection with the commission of the offence it will be liable to forfeiture. The use of property in connection with the commission of the offence attracts the jurisdiction of the court: whether the order for forfeiture should be made is a matter in the exercise of the discretion of the court, and, in its exercise of the discretion, the court can have regard to the extent to which the use might have been merely incidental.

25 To the extent that it is appropriate to apply Debelle J's words to the situation before me, it could not be said that absent the Ormond Road property, the murder of Desmond Moran would not have occurred. It might well be said, to use his Honour's words, that having regard to the extent of the use of the property in relation to this matter, that use was little more than incidental.

26 In Director of Public Prosecutions v Milieno,[5] Lee CJ at CL was concerned with an application to forfeit a property at which stolen property had been secreted. In rejecting the application his Honour said:

I am of the opinion that the words "in, or in connection with, the commission of a serious offence" relates to the use of the property under consideration temporally to the period over which the happenings and events constituting the commission of the crime occurred. That period will not be restricted to the actual moments in which the crime, in law, was committed and it will be a question of fact in every case whether the user of the property had the necessary contemporaneous association with "the commission of the crime".

But the mere relationship of the use of the property to the time of the commission of the offence does not of itself prove that the property is tainted (as subs (3)(b) of s 5 makes abundantly clear). There still remains the question whether the use shown is a use "in, or in connection with, the

commission" of the crime. As I have said, I regard that phrase as a composite phrase and no doubt there will be many cases in which it will be a question of degree as to whether the required connection between the user of the property and the commission of the crime exists. Cases where the evidence shows actual use of the property in the commission of the crime should not present a difficulty.

27 In the Director of Public Prosecutions (NSW) v King,[6] O'Keefe J was concerned with an application for the forfeiture of a boat which was a 43 foot yacht on which the respondent was alleged to have sexually assaulted the victim and was later charged in relation to those matters. As his Honour noted, the case made by the Director of Public Prosecutions was that it was sufficient to constitute use in connection with the commission of an offence if the vessel was the location at which the offences had actually been committed. Pursuant to the New South Wales Confiscation of Proceeds of Crime Act 1989, for property to be tainted it must be "used in or in connection with, the commission of a serious offence". "Used in connection with the commission of a serious offence" has a wider connotation than "used in the commission of the offence". However, as O'Keefe J found, there must be "a relationship between the commission of the offence and the property in question". His Honour went on:[7]

That relationship need not be substantial or direct, but the need for a connection poses questions of proximity and degree "and must be understood in the light of the word 'used'. The resolution of the question of proximity and degree posed by the section is essentially a question of fact".

28 Ultimately, his Honour came to describe what he referred to as the "overarching principle" in the following terms:[8]

...that some activity connected with the relevant crime must have involved the utilisation or employment of the property with the aim or purpose of committing or furthering the commission of the crime in question.

29 His Honour concluded that although the boat which was under consideration in the application before him was the place at which the offences were committed, it was not used in connection with those offences. As his Honour said in relation to that:[9]

It was not in any relevant sense "used" in connection with the commission of the offence. It was no more than the place where the alleged offences took place. Furthermore, the necessary nexis between "the commission" of the alleged offences and the boat is not there; the necessary proximity and degree had not been proved.

30 In a DPP v Selcuk,[10] Hollingworth J was confronted with an application for the forfeiture of a motor vehicle. The respondent to the application had pleaded guilty to one count of intentionally causing serious injury and one count of affray and had been sentenced to imprisonment for six and a half years with a minimum period of four years. The Director of Public Prosecutions applied to forfeit the car in which the respondent had travelled to and from the scene of the crime.

31 The first question in that case for her Honour to determine was whether or not the car was tainted property. Her Honour reviewed the authorities and identified that in Victoria, at least, there appeared to be two approaches to such a question. Her Honour referred to the confusing consequence of the ruling of Cummins J in DPP v Debbs and Roberts,[11] where his Honour held that the vehicle used in that case in connection with the murder of two police officers was "directly and intimately connected with the murders". As Hollingworth J pointed out, it was not clear whether Cummins J was suggesting the test for "in connection with" was such as to require "direct or intimate connection" or whether he was holding that such a connection existed in the case before him.

32 Her Honour referred to other cases in connection with the Road Safety Act 1986, permitting the suspension or cancellation of a driver's licence where that person is guilty of an offence "in connection with the driving of a motor vehicle".

33 Ultimately, Hollingworth J determined that whatever the approach, she was satisfied on the particular facts of the case that there was a substantial or direct connection between the offence committed and the vehicle sought to be forfeited. The respondent had asked his brother to drive him around in the car for the specific purpose of looking for the victim of the offence and, having been unable to locate him, the respondent himself got back into the vehicle and continued to look for the victim of the offence with the clear intention of using a baseball bat that he had brought with him in the vehicle, as a weapon when the victim was located. The vehicle was also used to conceal the weapon as the respondent travelled around looking for the victim. After the victim had been located and the offence committed, the vehicle was made ready for a quick getaway and the respondent and his brother fled the scene in that car.

In the circumstances, the DPP has persuaded me that the car was used "in connection with" the offence. The car provided a means of concealment for the weapon used to commit the offence, the means by which Mr Selcuk hunted for his victim with the clear intention of attacking him, and the intended and actual getaway car. It follows that the car is "tainted property" within the meaning of the Act.[12]

35 Ultimately, her Honour concluded that not only was the vehicle "tainted property" within the meaning of the Act but there was no discretionary factors which would lead her to refuse to make the forfeiture orders and the application was granted.

36 In written submissions, the Director of Public Prosecutions contended that although the property was not used in the commission of the offence of murder, it was used in connection with the commission of the offence and there are five bases on which that proposition is sought to be supported on the evidence:

(a) it was used as a base from which the murder would have been planned and discussed;

(b) various items used in the murder (including the murder weapon) were stored and therefore concealed in the safe at the property;

(d) the Ford Fairlane vehicle, which was the transport to the scene of the murder and the getaway car, was temporarily stored and therefore concealed at the property after the murder; and

(e) the property was provided as security for a loan of monies from Westpac, used partly to pay or reward Armour for the murder.

37 First, it is submitted that it was used "as a base" from which the murder would have been planned and discussed. It is argued that it is a "fair inference to draw" that since the plan was in place at the time of its execution on 15 June 2009 the murder would have been discussed by Armour and Moran during Armour's stay in her home.

38 In my opinion, such a conclusion would be nothing more than speculation and would not be supported by any evidence. It may very well be the case that the matter was discussed at the premises but the potential for that fact to support a conclusion that the property is tainted is not factually supported by, for example, the product of listening devices which record such conversations. Mr Farrugia was present at Moran's house on two occasions, close to the date on which Desmond Moran was killed and on the day itself, and he gave no evidence about such a plan being discussed in his presence.

39 Even if it were the case that if it could be established that there was such a discussion at the premises, in my opinion the fact that it occurred at the premises falls within the logic applied by O'Keefe J in DPP v King[13] resulting in the connection to the property being merely incidental.

40 Second, it is argued (in both (b) and (c) of the applicant's written submissions) that the various items used in the murder were stored in the safe located at the Ormond Road property, including the firearm that was used by Armour to kill Desmond Moran, thus concealing "matters involved with the crime". As part of this argument, it is also put that in that safe were clothes and a wig worn by Armour and Farrugia. It should be made clear that whether or not such items were stored at the premises prior to the commission of the offence is unknown on the evidence. It is true that items from the commission of the offence were stored in the safe after the offence had been committed. The safe was unlocked and was discovered by police during the course of the execution of a search warrant. In my opinion, and consistent with the opinion expressed in Milienou,[14] this would not be sufficient to taint the property.

41 The next basis on which it is suggested that the property is tainted is that the Ford Fairlane, which was the vehicle purchased to be used as a means of arrival at and departure from the murder scene had been stored in the garage at the Ormond Road property prior to the murder, and returned to that garage after the murder.

42 Again, I am not able to accept that such activity in keeping the car at the premises involves the "utilisation or employment of the property with the aim or purpose of committing or furthering the commission of the crime in question".[15]

43 Adapting O'Keefe's J's language, the property is nothing more than a place where items were stored, which carried no further consequence as far as tainting is concerned than it being the place where the crime was actually committed as in King's case.

44 The last basis on which the Director of Public Prosecutions relies is that the Ormond Road property was given as security for a loan of money from Westpac, part of which money was used by the respondent Moran to reward the respondent Armour for killing Desmond Moran in advance by providing him with a new motor vehicle. In the course of oral submissions in this matter, this was the subject of some significant discussion.

45 The Director of Public Prosecutions' submission was initially cast in broad terms but, as I pointed out to Ms Sofroniou of counsel who appeared for the Director, the respondent Moran had borrowed approximately $400,000 on the security of her premises. Of that sum, she retained $50,000. From the balance, which was placed in her accountant's trust account, $73,000 was used to purchase the Land Rover Discovery that was given to Armour and registered in the name of the third respondent, Environmental Concrete Constructions Pty Ltd. Moran also purchased two other vehicles - one for herself and one for Suzanne Kane. It might have been argued that the vehicle purchased and intended for Kane was part of some inducement directed at Armour to participate in the murder of Desmond Moran but there simply is no evidence to support such a conclusion and, indeed, any such arrangement was not met.

46 Ms Sofroniou submitted that the house was used "as an aspect of facilitation of the offence". I cannot accept that submission. In many respects the flaw in the applicant's submission lay in the argument that, as I followed it, even if the money had been borrowed months before the event, the use of any of the proceeds in the commission of the offence of murder would taint the house, whether or not at the time of the borrowing it was intended that the money be used for that purpose.

47 In my opinion the definition of "tainted property" under s 3 of the Act requires a use of the property (in this case the property at 10 Ormond Road) in connection with the commission of the offence. The property (as opposed to the proceeds of the loan) can only be said to be used in that connection if, at the time of money being borrowed on the security of the property, it was intended that the offence be committed and the money was being borrowed so that could occur. If that was not the intention, or more precisely there is no evidence to conclude that it was, then at the time that a use is made in connection with the commission of the offence, what is being used is money - not the property. Consistent with that, as I have already indicated, for that reason I propose to order the forfeiture of the vehicle. It was purchased with a small part of the proceeds of the loan.

48 On the evidence as I understand it, the Director of Public Prosecutions' argument would not come within the analysis conducted by Lee CJ at CL in DPP v Mileinou[16] to which I have already referred and to which Ms Sofroniou, very fairly, made reference. As his Honour said in that case, the mere relationship of the use of the property to the time of the commission of the offence does not of itself prove that the property is tainted, and there still remains the question whether the use shown is a use "in, or in connection with, the commission" of the crime.

49 I am not able to conclude that at the time that Moran commenced the arrangements for the loan on the security of her property, she had decided to kill Desmond Moran, or that Armour had already agreed to undertake the killing in return for a vehicle which she was to purchase and give to him as a reward. Whatever suspicions might be held about that, the absence of evidence means the application cannot succeed.

50 In my opinion the application for forfeiture of the proceeds of the property at 10 Ormond Road, Ascot Vale must fail. However, for the reasons set out above, the application in respect of the Land Rover Discovery vehicle will succeed.

(1) That the application for forfeiture of property comprising the balance of the proceeds of the sale of the property located at 10 Ormond Road, Ascot Vale, being the property more particularly described in Certificate of Title Volume 08007 Folio 145, is dismissed.

(2) That the property comprising the grey coloured 2009 model Land Rover Discovery motor vehicle with registration number WZF-020 is forfeited.

(3) Liberty to apply is reserved to the parties, including as to the issue of costs.

[1] The instructing solicitor for the second respondent advised the Court and all parties that Mr Armour would not oppose the forfeiture application by email dated 14 June 2011. See further transcript of the forfeiture application of 28 July 2011, at 2.

[7] Ibid, at [731] (citations removed).

[15] See per O'Keefe J in DPP (NSW) v King at [33].

[16] (1991) 22 NSWLR 489 in particular at 493.

Proceeds of Crime Act 1989

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