DPP v Ali & Anor [2009] VSCA 162

DPP v Ali & Anor [2009] VSCA 162 - VSCA 2009 case summary — Zoe

[16]

16 Application for restraining order

...

(2) The DPP or a prescribed person, or a person belonging to a prescribed class of persons, may apply, without notice, to the Supreme Court or the County Court for a restraining order in respect of property if -

(a) a member of the police force suspects on reasonable grounds that the property is tainted property in relation to a Schedule 2 offence; or

(b) a member of the police force or a person authorised by or under an Act to prosecute the relevant type of offence believes that -

(i) within the next 48 hours a person will be charged with a Schedule 2 offence; and

(ii) that person has an interest in the property or that the property is tainted property in relation to that offence; or

(c) a person has been charged with a Schedule 2 offence and that person has an interest in the property or the property is tainted property in relation to that offence; or

(d) a person has been convicted of a Schedule 2 offence and that person has an interest in the property or the property is tainted property in relation to that offence.

(2A) An application under subsection (2) for the purposes of civil forfeiture may only be made in respect of property that is reasonably suspected to be tainted property.

(3) An application under subsection (2) for the purposes of automatic forfeiture may only be made before the end of the relevant period in relation to the conviction.

(4) An application under subsection (1) or (2)(b), (c) or (d) must be supported by an affidavit of -

(a) a member of the police force; or

(b) a person authorised by or under an Act to prosecute the relevant type of offence -

setting out any relevant matters and stating that the member or person believes the following matters and setting out the grounds on which the member or person holds those beliefs -

(c) in the case of an application made in reliance on the proposed charging of the defendant with an offence, that the defendant will be so charged within the next 48 hours; and

(d) that the defendant has an interest in the property or the property is tainted property, as the case may be; ...

(5) An application under subsection (2)(a) must be supported by an affidavit of a member of the police force setting out any relevant matters and stating that the member suspects that the property is tainted property in relation to a Schedule 2 offence and setting out the grounds on which the member has that suspicion.

[21]

24 Determination of exclusion application - restraining order - civil forfeiture

On an application made under section 20, where the restraining order has been made in relation to a Schedule 2 offence for the purposes of civil forfeiture -

(a) the court may make an order excluding the applicant's interest in the property from the operation of the restraining order if the court is satisfied that -

(i) the property is not derived property; and

(ii) the property is not tainted property; or

* * * * *

(b) the court may make an order excluding the applicant's interest in the property from the operation of the restraining order if the court is not satisfied that the property in which the applicant claims an interest is not tainted property or derived property but is satisfied that -

(i) the applicant was not, in any way, involved in the commission of the Schedule 2 offence; and

(ii) where the applicant acquired the interest before the commission, or alleged commission, of the Schedule 2 offence, the applicant did not know that the property would be, or was intended to be, used in, or in connection with, the commission of the Schedule 2 offence; and

(iii) where the applicant acquired the interest at the time of or after the commission, or alleged commission, of the Schedule 2 offence, the applicant acquired the interest without knowing, and in circumstances such as not to arouse a reasonable suspicion, that the property was tainted property or derived property; and

(iv) the applicant's interest in the property was not subject to the effective control of the person who is suspected to have committed the Schedule 2 offence on the earlier of the date on which that person was charged with the Schedule 2 offence (if such a charge was filed) or the date that the restraining order was made in relation to the property; and

(v) where the applicant acquired the interest, directly or indirectly, from the person who is suspected to have committed the Schedule 2 offence, that it was acquired for sufficient consideration.

* * * * *

[25]

37 Application for civil forfeiture order

(1AA) In this section -

the Court means the Supreme Court or the County Court.

(1) If a restraining order is in force under section 18(2) in respect of property, the DPP or a prescribed person, or a person belonging to a prescribed class of persons, may apply to the Court for a civil forfeiture order in respect of the property.

* * * * *

...

(10) If an application under subsection (1) has been finally determined, no further application may be made under that subsection in relation to the same Schedule 2 offence, except with the leave of the Court.

(11) The Court must not grant leave under subsection (10) unless it is satisfied that -

(a) the property to which the new application relates was derived, realised or identified only after the earlier application was determined; or

(b) necessary evidence became available only after the earlier application was determined; or

(c) it is otherwise in the interests of justice to do so.

...

38 Determination of application for civil forfeiture order

(1AA) In this section -

the Court means the Supreme Court or the County Court.

(1) On an application under section 37(1), the Court must order that the restrained property be forfeited to the Minister if the Court is satisfied that -

(a) the requirements of section 37 as to notice of the application have been complied with; and

(b) not less than 30 days have elapsed since the last notice given in accordance with section 37; and

(c) there are no pending applications under section 20 in relation to the restrained property.

(2) The Court may exclude particular property or any particular interest in property from the operation of a civil forfeiture order if satisfied that otherwise hardship may reasonably be likely to be caused to any person by the order.

(3) A civil forfeiture order must specify the interests in property to which it applies.

(4) The Court may, subject to any rules of court, take into account in determining the application any material that it thinks fit.

* * * * *

(6) The making of a civil forfeiture order does not prevent the making of a pecuniary penalty order.

[40]

(3) Paragraphs (a), (b), (c), & (d) of s.16(2) are placed sequentially reflecting the normal progress of a police investigation into, for example, drug trafficking, and its ultimate resolution with conviction. As the investigation progresses, and greater certainty arises, the requirements in paragraphs (a) to (d) change from suspicion, to belief and to the fact of the property being tainted. The situation becomes one where the requisite belief can be asserted as opposed to suspicion. That sequential analysis is supported by s.15(4), a provision relied upon by counsel for [KA and DA]. It provides that if a restraining order has been made on the basis of a police officer suspecting on reasonable grounds that the property is tainted (s.16(2)(a)) and, subsequently, a person is charged with a Schedule 2 offence in relation to which the restrained property or interest is tainted property (s.15(2)(c)), the restraining order can have added to it, or substituted, the purpose for which the property interest is restrained. This lends support to the conclusion that Parliament did not consider it appropriate, and therefore did not intend, that s.16(2)(a) be used or available where a person is subsequently charged or convicted.

(4) Artificial situations would be created if sub-paragraph (a) could apply in situations where the matter had progressed to the point where someone had been charged or had been convicted. If the [DPP's] construction is accepted, s.16(2)(a) and s.16(5) would require a police officer to swear an affidavit that he or she "suspects" that the property is "tainted property" in relation to a Schedule 2 offence and the "grounds" of that suspicion even when the situation is one where the officer legitimately has no doubts - for example, after conviction.

In my view, therefore, a consideration of the legislation itself supports [KA's and DA's] construction. Properly construed, s.16(2)(a) is only available prior to charges being laid. Alternatively, the circumstances of this case do not come within any of the circumstances described in s.16(2).[7]

[42]

There are several reasons why express provisions would be expected if Parliament intended that more than one application could be made in respect of the same property.

(1) In our legal system, there are two well recognised and long accepted public policies that

• there be an end to litigation and

• no-one should be sued more than once.

A number of common law rules [issue estoppel, res judicata, Anshun estoppel, abuse of process] have been developed to give effect to those policies. One would expect Parliament to address such fundamental policies in legislation if it was intended to depart from them.

(2) Further, if the [DPP's] construction is correct, Parliament chose to leave control of the issue of repeat applications to common law principles. Leaving the common law to apply inevitably leaves open the opportunity to mount arguments relying on the above rules in respect of any subsequent applications; for, as here, in relation to the property, there will be situations involving the same litigants, the same property, the same offence and the same reliance on "tainted property". Generally, much will be at stake. Further, if the construction of the [DPP] is correct, there is no statutory limit to the number of times an application may be brought.

(3) When regard is had to the whole Act, it is difficult to accept that Parliament chose to leave the issue unaddressed if it intended that second applications for restraining orders could be brought. It attempts in the Act to cover all aspects and potential issues in detail and so attempts to minimise uncertainty. It is that attempt, among other things, that gives rise to the Act's complexity. Further, the Act did address the issue of subsequent applications in relation to confiscation orders on three occasions. In all the circumstances it would be remarkable with such detailed and complex legislation for Parliament not to address the issue if it intended that subsequent applications could be brought.

In my view, the construction arguments supporting [KA's and DA's] construction on this issue are to be preferred.

...

... Parliament intended to permit only one application for a restraining order against the same property. The only variation or departure permitted is covered by s.15(4).[9]

At a glance

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Cases Cited (9)