DPP v Basham & Anor [2023] VSC 655

2 The murder took place on 23 July 2018 at 19 Seagrove Way, Cowes ('real property' or '19 Seagrove Way'). Basham rode a black 2018 model Kawasaki Ninja ZX1000 motorcycle ('motorcycle') to and from the scene of the crime.

3 By an amended notice dated 11 October 2022, the Director of Public Prosecutions ('DPP') applied for forfeiture of 19 Seagrove Way and the motorcycle. The applications were brought under s 32 of the Confiscation Act 1997 ('Act') which empowers the DPP to apply for an order that property used in or in connection with certain serious criminal offences be forfeited to the Crown.

4 Basham, who was unrepresented in these proceedings, opposed both applications.

5 By noticed dated 11 October 2022, the second respondent, who is the father of Basham, sought an order under s 49 of the Act excluding his interest in the motorcycle from the operation of any forfeiture order made in respect of it.

6 For the reasons that follow, I am satisfied that the application by the DPP for forfeiture of 19 Seagrove Way and the motorcycle should be granted and that the application by the second respondent for exclusion of his interest in the motorcycle should be refused.

7 The circumstances of the murder committed by Basham have been extensively summarised elsewhere.[1] It is unnecessary to rehearse the full detail of those circumstances, the following precis suffices.

8 Ms Fraser and Basham separated in April 2017. Ms Fraser obtained a Family Violence Intervention Order ('FVIO') to which Basham was the respondent. She also swore two police statements that detailed allegations of rape during the marriage. Basham was charged with rape in August 2017. He faced a contested committal hearing with respect to those charges on 30 July 2018.

9 Basham was overseas between 6 and 19 July 2018. On the morning of 20 July 2018 he left his sister's Melbourne home, where he had spent the night, riding the motorcycle. He travelled to San Remo and spent some three nights there. On 22 July 2018 he rode the motorcycle to Cowes and, at about 11:30 am, slowly past 19 Seagrove Way.

10 On the morning of 23 July 2018, Basham rode the motorcycle to the vicinity of 19 Seagrove Way, arriving at about 7:37 am. Just before 9:00 am he approached that address on foot moments after Ms Fraser had left to drive the children to school. He entered the front garden, secreted himself and lay in wait.

11 Upon her return later that morning at about 11:22 am, Ms Fraser drove into the garage and parked her car. Basham also entered the garage. He subjected Ms Fraser to a beating before tying a noose around her neck and hanging her from the garage door. The post-mortem examination established that she died of hanging in the setting of multiple blunt force injuries.

12 After attempting to stage the scene to suggest suicide, Basham left 19 Seagrove Way on foot and retrieved the motorcycle. He first rode to San Remo and then to his father's house in Paynesville.

13 On 27 February 2022 Basham was sentenced to life imprisonment with a non‑parole period of 30 years. I found beyond reasonable doubt that the murder was premeditated and that Basham left his sister's house on 20 July 2018 with the intention of killing his estranged wife.[2]

14 The purposes of the Act include to provide for the forfeiture of property used in connection with the commission of certain offences.[3] 'Property' is broadly defined to mean real or personal property 'of every description'[4].

15 Section 32(1) allows the DPP to apply, relevantly, to the Supreme Court for a forfeiture order in respect of tainted property if an accused is convicted of a Schedule 1 offence. A 'Schedule 1 offence' includes any indictable offence against the law of Victoria. Murder is such an offence. Relevant to this application, 'tainted property' means property that was used (or was intended to be used) by an accused in connection with the commission of the offence,[5] or was derived or realised (or substantially derived or realised) directly or indirectly, by any person from the commission of the offence.[6]

16 On such application, s 33(1) allows the court to order that the property or a portion of it be forfeited to the Attorney-General[7] if satisfied that the property is tainted property in relation to the offence. In making that determination the court may take into account any material that it thinks fit, including evidence given in the trial leading to conviction.[8] The court may also have regard to the use that is ordinarily made, or had been intended to be made, of the property; any undue hardship that may reasonably be likely to be caused to any person;[9] and the claim of any person to an interest in the property, considering the matters delineated in s 50(1)(a).[10] These statutory considerations are not exhaustive. A court may also have regard to the nature of the offender's interest in the property, its value, the nature and gravity of the offending, the degree of the offender's involvement and his/her criminal history, the utility of the property to the offender and the deterrent purpose of forfeiture.[11]

17 Section 49 of the Act allows a person, other than the accused, who claims an interest in property sought to be forfeited, to apply to the Supreme Court for an order under s 50 excluding their interest in the property from the operation of a forfeiture order.

18 If the Court is not satisfied that the property is not tainted property, it can make an exclusion order if satisfied that the applicant for the order:

(a) was not involved in the commission of the offence;

(b) did not know that the accused would, or intended to, use the property in or in connection with the offence (if the interest was acquired before the offence);

(c) acquired the interest without knowing and in circumstances such as not to arouse a reasonable suspicion that the property was tainted property (if the interest was acquired at the time of or after the offence);

(d) the applicant's interest was not subject to the effective control of the accused on the date the accused was charged with the offence; and

(e) the applicant acquired the interest from the accused for sufficient consideration.[12]

19 Any question of fact to be decided on an application under the Act is to be decided on the balance of probabilities.[13]

20 The statutory definition of 'tainted property' has been judicially considered. In Chalmers v The Queen[14] the Court of Appeal distilled four propositions from the phrase 'used in connection with the commission of the offence'.[15]

21 First, the word 'used' should be given its ordinary meaning of 'employed, or made use of, for a particular purpose'. Second, the statutory formulation is of wide scope. So much is evident from the use of the words 'in connection with' which are plainly intended to extend the scope of the definition of 'tainted property' beyond circumstances of mere use. Third, whether there is a connection between the use of the property and the commission of the offence is a question of fact and degree. A 'substantial' connection is unnecessary, nor does it need to be shown that the crime could not have been committed without using the property. Fourth, the nature, extent and significance of the use of the property in connection with the commission of the crime are matters relevant to the court's discretion whether or not to order forfeiture.

Very often, the decisive issue will be whether the relevant property can be said to have been 'used', since 'use' is (by definition) employment for a purpose. Once it is concluded that the offender 'used' the property at or around the time of the commission of the offence, it will usually follow that there was the requisite connection between the use of the property and the commission of the offence. Put differently, if the offender (or some other person) 'employed or made use of' the property for a purpose associated with the offending, then it would follow that the property was 'used in connection with the commission' of the offence.[16]

23 However, the property, or some feature of it must have been 'turned to advantage' by the offender or 'enlisted to the offender's purpose' before it can be said that the property has been used.[17] The more passive the use of the property, the less likely it is that the relevant connection will be found.[18] Thus the Court spoke of a spectrum of which at one end the property 'is deployed in an instrumental sense to commit the offence'[19] and, at the other, 'is merely the passive location at which the offence is committed'.[20] The Court acknowledged the difficulty of determining where certain cases would fall on that spectrum and said such cases would require close examination of the manner, if any, in which the property was used in connection with the commission of the offence.[21]

24 Of particular importance to this matter, the Court in Chalmers illustrated its analysis, in part, by reference to examples considering real property. A passive use of real property would encompass a situation where co-conspirators were in the home of one offender when they reached their agreement to commit an offence at another location. It would also include the eruption of a spontaneous domestic dispute in a home.[22] Conversely, an example of real property being instrumental in the commission of an offence would be 'where a beam in a ceiling of a house [was] used to support a rope for the purpose of hanging the victim'.[23]

25 Basham and Samantha Fraser were registered as joint proprietors of 19 Seagrove Way on 27 November 2012. The real property was purchased for consideration of $500,000.

26 No other evidence was called concerning the real property. Basham, who - as has already been noted - was unrepresented at the hearing and called no evidence, stated during the course of submissions that he was the sole financial contributor to its purchase price.

27 The DPP filed an affidavit of Detective Sergeant Luke Brendan Farrell sworn 27September 2022. DS Farrell was the informant in the murder trial. He deposed that the motorcycle was seized by police under warrant on 26 July 2018. At the time of its seizure it was in a rear shed at the home of the second respondent. Exhibited to the affidavit were a number of documents relating to the sale and registration of the motorcycle. They establish that it was purchased new by Basham on 16 March 2018 for $15,800. He paid $10,300 and traded in another motorcycle valued at $5,500. It was registered with VicRoads in his name that same day. The registration of the motorcycle was transferred to the second respondent on 1 June 2018. Also exhibited to the affidavit were excerpts from the trial transcript concerning the motorcycle, including the evidence of the second respondent, and the second respondent's police statement made 29 July 2018.

28 DS Farrell was cross-examined by counsel for the second respondent. He said that he was not present when the motorcycle was seized on 26 July 2018 and did not know whether the shed from which it was taken was locked or not. By appointment Basham was arrested that day in Melbourne and did not have keys to the motorcycle or a shed in his possession at that time. DS Farrell said that after the motorcycle was seized it was immediately taken to the Bairnsdale police station and then later moved to the Victoria Police Forensic Services Centre at Macleod. He had no knowledge of what happened to the motorcycle between 23 and 26 July 2018.

29 DS Farrell said that on 23 July 2018 Basham used the motorcycle to get to and from Phillip Island. There was evidence in the trial that when leaving the Cowes area he travelled at speeds greater than the rest of the traffic and that upon later reaching Paynesville, he told his father that he had travelled at speeds of 200 kilometres per hour. He was also stopped by police in Bairnsdale for speeding. At the specific invitation of counsel for the second respondent to comment on whether speed was an advantage connected to the offence, DS Farrell said that, while speculative, a motorcycle offers an advantage where a rider's intention would be to get to another location as fast as possible in order to progress an alibi. DS Farrell accepted that in relation to the times taken by Basham to travel from Cowes to San Remo and from there to Paynesville, those times could have been achieved using any other functioning vehicle.

30 When it was suggested that given the registration history of the motorcycle, there was no advantage to Basham in using it, DS Farrell said that the covering of the face of a motorcycle rider by a helmet is an advantage not available to the driver of a car.

31 DS Farrell said that shortly after Basham was charged he was contacted by the second respondent via telephone. While DS Farrell could no longer recall the words spoken, he gained and retained the impression that the second respondent had said that the transfer of the registration of the motorcycle was in the nature of a lien or security for a debt rather than satisfaction of a debt or an outright purchase.

32 The second respondent filed an affidavit affirmed by him on 14 October 2022. He deposed that he had no knowledge of or involvement in Basham's offending before describing the circumstances in which he had acquired the motorcycle. The second respondent said that in September 2017 Basham told him that he was in financial difficulty as a result of the breakup of his marriage and asked if the second respondent could help by paying some of his legal bills and lending him some money to tide him over. The second respondent agreed to do so. Basham said that he would pay the money back as soon as he was able to. Between 15 September 2017 and 10 May 2018 the second respondent lent Basham a total of $22,367 by paying legal fees to both a firm of solicitors and a member of counsel as well as making payments directly to Basham. Exhibited to the affidavit were seven Australia and New Zealand Banking Group Limited (ANZ) lodgement receipts, summarised in the table below:

33 The second respondent deposed that in May 2018 he became aware that Basham had purchased a motorcycle and was annoyed about it. In late May the second respondent confronted Basham about feeling deceived as to Basham's financial position and said that as the motorcycle had been bought with his money, it was fair that Basham transfer its ownership to repay some of the debt. Basham agreed. The transfer was effected on 1 June 2018. The second respondent told Basham that he could continue to use the motorcycle until it was sold, but significant additional kilometres would affect the sale price and therefore the extent to which Basham's debt was paid down from the sale. He no longer held any expectation that Basham would now repay his debt.

34 The second respondent deposed that he had expected Basham to attend his home on 22 July 2018. Basham arrived a day later and told the second respondent that he had come from San Remo and had been travelling at 'break-neck speeds', in excess of 200 km/h. The second respondent deposed that he told Basham that he was an idiot for taking such risks and would have to leave the motorcycle with him for his own safety. The second respondent said he would not let Basham ride it again, and so took possession of it on 23 July 2018.

35 The second respondent also gave viva voce evidence on the application. He said he considered that Basham owed him monies associated with legal costs and his own upkeep, so he put a claim on the motorcycle to offset those monies. The second respondent had never ridden the motorcycle. On 23 July 2018 the motorcycle was locked in a secure shed at the second respondent's Paynesville home. He was the only person with keys to that shed. Those keys and the keys to the motorcycle were kept at his property or on his person. He made it clear to Basham at the time the motorcycle was locked in the shed that it was inaccessible to him. The second respondent said that he was 76 years of age, retired and in receipt of an old age pension. He had no other source of income and savings of about $4,000 or $5,000. He lived in a home which he owned. Money from the sale of the bike would 'take a little bit of pressure off' him and add to his asset pool. The second respondent said that he also had an interest in a Smiths Beach property owned by Basham.

36 In cross-examination by counsel for the DPP, the second respondent was asked about differences between his affidavit and the statement he gave to police on 29 July 2018, in particular what he said about who suggested locking the motorcycle in the shed on 23 July 2018 and about Basham having passed him cash in envelopes to 'pay him back'. The second respondent said he did not perceive the two accounts to be inconsistent or contradictory. In particular, his police statement was given voluntarily and taken 'on the spot' without detailed questioning. When asked if the monies advanced to and on behalf of Basham were a loan or a gift, the second respondent said that it 'was a gift at the time, but I did expect it back'.

37 When cross-examined by Basham, the second respondent said that the motorcycle was Basham's pride and joy and that on 23 July 2018 it was cleaned, fuelled and had both a new helmet and dust cover.

38 In re-examination the second respondent said that the cash he received from Basham was provided for safekeeping rather than as a repayment. He said that he kept it safe for quite a long period of time. The second respondent further said that the police statement was incomplete in comparison with the affidavit.

39 No other evidence was called concerning the motorcycle. Of note, Basham did not file any affidavit in the proceedings.

40 The DPP argued that 19 Seagrove Way is tainted property in two ways: it was used in connection with the murder of Samantha Fraser[24] and Basham's current interest in the property was substantially derived from the commission of that offence.[25]

41 It is submitted that the real property was used in connection with the murder because features of it were instrumental in the commission of the offence:

(a) The metal track of the garage roller door was used to support the rope used to hang Ms Fraser. That is, the house itself played an active role in her death.

(b) Basham attempted to disguise the murder as a suicide, which entailed him staging a false scene in the property.

(c) Basham knew the property intimately. That knowledge allowed him to secrete himself and lie in wait so that he could enter the garage unobserved by Ms Fraser as she drove into it.

(d) The murder was premeditated by Basham. He chose the house as the location for the crime and stalked the property in the lead up to its commission.

42 The DPP also argued that 19 Seagrove Way is tainted property by virtue of Basham obtaining an enlarged interest in the property by survivorship following the death of Ms Fraser. He now has the whole of the legal interest in the property. That interest was substantially derived or realised from the murder.

43 In making this submission, the DPP relied upon the decision of Director of Public Prosecutions for the State of South Australia v Dansie.[26] In that case the offender was convicted of the murder of his wife. At the time of her death they were registered as joint proprietors of their matrimonial home ('Waterfall Gully Road'). Following her death, the offender had that property transferred into his own name. A restraining order was made ex parte in relation to Waterfall Gully Road and two other rural properties. The offender filed applications seeking exclusion of his interest in all three properties, but only pressed the application in relation to Waterfall Gully Road. In order to succeed, the offender had to satisfy the court of certain statutory criteria in the Criminal Assets Confiscation Act 2005 (SA) ('CAC Act'), including that the property was not 'proceeds'[27] of an offence.

44 In refusing the offender's application for an exclusion order, the judge noted that his interest in the property had, as a consequence of his wife's death, enlarged or expanded when he became the sole registered proprietor.[28] The judge found that that interest arose, at least partly, by reason of the commission of the offence and that based on the definition of 'proceeds,' it was arguable that the whole of that interest constituted 'proceeds of an offence.'[29]

45 The submissions of the DPP also noted the judge's observation in Dansie that while the legal principle of survivorship is not affected by the murder of a joint tenant, a constructive trust may be imposed on the enlarged portion of the interest.[30] The DPP noted that no such proceedings had been commenced in relation to 19 Seagrove Way.

46 The DPP then addressed the factors under s 33(5) of the Act and other factors argued to be in favour of forfeiture, as follows.

(a) Murder is the most serious offence known to Victorian law. Basham's offending fell into the worst category of that offence.

(b) Basham offended alone.

(c) While some hardship would be inevitable upon the forfeiture of the real property, it would not be undue. Basham would have access to what remained of other restrained property in which he has an interest once any compensation applications made were satisfied. Forfeiture is therefore proportionate to the severity of his offending.

(d) 19 Seagrove Way is ordinarily a home, but it was not Basham's home at the relevant time. He had not lived there for more than a year prior to the murder.

(e) The capital improved value of 19 Seagrove Way in 2018 was $535,000. That value has likely significantly increased.[31]

(f) There are no claims by other parties to the real property.

(g) That Basham is serving a significant sentence means that the property will be of no utility to him for decades.

(h) Forfeiture is intended by Parliament to be a deterrent to the commission of such serious offences.

47 On 12 December 2022, Basham's then solicitor filed written submissions stating that in light of the verdict and the observations of the Court of Appeal in Chalmers, it was open to this Court to find that 19 Seagrove Way was tainted property on the basis that the house itself played an active role in the death of Ms Fraser. It was further conceded that forfeiture would be proportionate to the offending. However, it was submitted that such forfeiture would cause undue hardship as the yet unknown quantum of compensation applications made it uncertain how much, if any, of the other restrained property owned by Basham would be left to him.

48 Those submissions, made in advance of the Sentence, did not concede that the murder was premeditated or that it fell into the worst category of such offending.

49 At the hearing of the application and in a written document authored by Basham and later accepted by the Court, Basham made the following submissions.

(a) He maintains his innocence and disputes the findings of fact made beyond reasonable doubt in the Sentence with respect to the circumstances of the murder. He intends to appeal his conviction.

(b) The real property was bought in joint names but he was the sole financial contributor to its purchase price.

(c) 19 Seagrove Way could be rented out for the benefit of his children. If it is sold it will cause undue hardship to them.

(d) If he loses 19 Seagrove Way, his pool of assets will be reduced to his property at Smiths Beach. While that is worth approximately $2.1 million, it has a tax liability and other liabilities associated with it. It will be insufficient to discharge any compensation or other claims and will negatively impact him in the event that he is released.

50 I am satisfied on the balance of probabilities that 19 Seagrove Way is tainted property as defined in the Act. Specifically, I am satisfied that it was used in connection with the murder Basham committed on 23 July 2018. Indeed it was instrumental[32] to it. The track of the garage door was used to hang Ms Fraser.

51 Part of a house used to support a rope to hang a victim was the very example given by the Court in Chalmers to illustrate how real property could be deployed in the commission of an offence. That alone is sufficient. But, if more were required, I accept the DPP's submission that Basham's intimate knowledge of the house and his choice of it as the location of his premeditated offending augment the degree to which the house was used in connection with the murder. His mere presence at that house was a breach of the FVIO and he had not, until the day before - when he rode the motorcycle slowly past 19 Seagrove Way - breached that order. He was able to hide himself and wait until he could ambush Ms Fraser in the garage. The house was also used to suggest suicide. Basham moved a step ladder onto its side, used a powder room sink to wash blood away and rearranged the shoes Ms Fraser had been wearing in the hallway next to other shoes.

52 It is therefore unnecessary to determine whether 19 Seagrove Way is also tainted property by reason of Basham's enlarged interest in it being substantially derived from the commission of the murder.

53 After considering the statutory criteria and authorities relevant to the decision to make a forfeiture order, I am of the view that the real property should be forfeited. In particular, I have had regard to the following matters.

(a) The objective gravity of Basham's offending and his moral culpability for it are of the highest order. It was a premeditated murder that occurred against a background of family violence and seven days before Ms Fraser was to give evidence in the committal hearing of rape allegations she made against Basham. The offending itself consisted of Ms Fraser being subjected to a savage beating in which she sustained 41 separate blunt force injuries before being hanged. The forfeiture of 19 Seagrove Way is proportionate to the nature and gravity of the offending, being a 'worst case' murder.

(b) Forfeiture also advances deterrence in relation to serious crimes. Deterrence is of particular note when offending occurs in the context of family violence.[33]

(c) 19 Seagrove Way had not been the residence of Basham for about a year before the offence. It is now unoccupied. Evidence before me during the plea hearing was to the effect that the vacant house causes significant stress to the parents of Samantha Fraser, who are now guardians of her three children. Basham is serving a sentence of life imprisonment with a non-parole period of 30 years and will have little utility for the property in that time.

(d) While I accept, as a general proposition, Basham's submission that the forfeiture of 19 Seagrove Way will cause him hardship insofar as it will reduce his asset pool, there is no evidence before me as to the value of the Smiths Beach property or any encumbrances on it. In any event, I am of the view that any hardship is not undue. The authorities make plain that the word 'undue' has real work to do.[34] Basham still owns the Smiths Beach property and he may have access to that property, which is currently restrained but not sought to be forfeited, after the determination of the compensation applications filed pursuant to s 85B of the Sentencing Act 1991 ('compensation applications').

(e) I do not accept the submission that forfeiture will cause Basham's children undue harm. Those three children, as well as the parents of Ms Fraser, have filed compensation applications. Section 31 of the Act operates to ensure that any order for compensation must be paid out of forfeited property. And, given the circumstances of their mother's death, I am doubtful that her children would wish to derive rental income from 19 Seagrove Way. Further, there is no evidence that Basham has to date taken any steps to allow his children financial benefit from his interest in the real property.

(f) The property was last valued in 2018 at $535,000. It is immaterial that Basham states that he funded the full purchase price and notable that there is no evidence of that fact. It suffices that he and Ms Fraser were registered as joint tenants on the title.

54 Pursuant to s 33(1) of the Act, 19 Seagrove Way will be forfeited.

55 The DPP submitted that the motorcycle was used in connection with the offence. It was the mode by which Basham travelled to and fled from the vicinity of 19 Seagrove Way. On 23 July 2018, CCTV footage tendered in the trial showed that Basham departed San Remo and approached Cowes between 7:21 am and 7:37 am. At 8:55 am, he was captured on CCTV footage walking past 13 Seagrove Way towards 19 Seagrove Way. Samantha Fraser had been captured on CCTV footage driving past 13 Seagrove Way, away from her home, at 8:52 am.

56 CCTV footage captured Samantha Fraser driving past 13 Seagrove Way back to her home at 11:22 am. She was murdered between then and 12:04 pm, when Basham was captured running past 13 Seagrove Way. It is likely she was murdered shortly after she drove into the garage.[35]

57 The DPP submitted that the motorcycle was instrumental in Basham's plan to murder Ms Fraser, both in the days leading up to and on the day of the offending. In particular:

(a) Basham deliberately chose the motorcycle over driving his maroon Toyota utility. The motorcycle afforded him a greater chance of travelling to the vicinity without being identified, being less distinctive and obvious than the large maroon utility.

(b) Using the motorcycle allowed Basham to wear a full face covering - a helmet - which increased his chances of not being detected.

(c) The motorcycle was more easily secreted in the vicinity of 19 Seagrove Way than the Toyota utility and made it easier for him to lay in wait.

(d) The motorcycle allowed a swifter egress from Phillip Island to Paynesville.

58 In addressing the s 33(5) factors and other factors argued to be in favour of forfeiture, the DPP repeated the general propositions made with respect to 19 Seagrove Way regarding the nature and gravity of the offence, the fact that Basham acted alone and the deterrent purpose of forfeiture. The DPP's specific contentions in respect of the motorcycle were as follows.

(a) The motorcycle was purchased on 16 March 2018 for $15,800. There is no evidence as to its current value, but it is likely to have depreciated.

(b) The motorcycle will be of no utility to Basham as he serves his significant gaol sentence.

(c) The nature of Basham's interest in the motorcycle is that it was subject to his effective control, notwithstanding the transfer of registration on 1 July 2018 to the second respondent.

59 In relation to the s 50(1) considerations with respect to the second respondent's application for exclusion, the DPP submitted that the Court can be satisfied that the second respondent was not involved in the murder and did not know that Basham would use the motorcycle in connection with the murder.

60 However, the Court cannot be satisfied that the second respondent's interest in the motorcycle was not subject to Basham's effective control on the date he was charged with murder. Basham's effective control is argued to arise from the following matters.

(a) Basham purchased the motorcycle on 16 March 2018.

(b) On the same date, he registered the motorcycle in his own name and in his sister's address, where he was then residing.

(c) The motorcycle was Basham's 'pride and joy'.

(d) A witness in the trial, Cameron Brown, knew Basham to own or regularly use a black Kawasaki motorcycle.

(e) When the transfer of registration was effected on 1 June 2018, Basham retained use of the motorcycle.

(f) When the motorcycle was locked in the shed of the second respondent's home between 23 and 26 July 2018, Basham knew that he had murdered Ms Fraser and used the motorcycle in connection with that offence.

(g) The second respondent never rode the motorcycle.

61 The DPP further submitted that the Court cannot be satisfied that the second respondent's interest in the motorcycle was acquired from Basham for sufficient consideration. The evidence concerning the transfer arrangement as between Basham and the second respondent was argued to be incomplete and contradictory.

62 The second respondent submitted that the use of the motorcycle lacked sufficient connection to the murder and its use was merely incidental to the offending. Basham may just as well have used any other vehicle and, ultimately, he approached 19 Seagrove Way on foot.

63 With respect to the s 33(1) factors, it was argued that forfeiture of the motorcycle would cause undue hardship to the second respondent. He was a pensioner with limited assets and the proceeds of the sale of the bike would not be inconsequential to him. His receipt of envelopes of cash from Basham was irrelevant to the matter.

64 The second respondent also made submissions about effective control and sufficient consideration in relation to s 50(1). It was argued that when Basham was charged with murder on 2 August 2018, the motorcycle was under the effective control of the police. It was further argued that the evidence of the second respondent was that the monies advanced on behalf of Basham had to be repaid, so that was sufficient consideration for the motorcycle.

65 As far as I was able to discern, Basham's contentions in relation to the motorcycle were chiefly intended to support the second respondent's application for exclusion of his interest but also adopted the submissions of the second respondent that the Court should not conclude that the motorcycle was tainted property. Basham submitted that legal ownership of the motorcycle passed to the second respondent on 1 June 2018. Physical transfer did not occur at that time because he was out of the country and did not have a chance to deliver it to the second respondent until 23 July 2018. Reinforcing that submission, Basham pointed to the fact that on 23 July 2018, the bike was cleaned, fully fuelled and left with a dust cover and brand new helmet.

66 I am satisfied on the balance of probabilities that the motorcycle is tainted property as defined in the Act. Specifically, I am satisfied that it was used in connection with the murder.

67 Most obviously, it was the mode of transport chosen by Basham to get to and from Phillip Island on 23 July 2018. But there were aspects of that choice that evidence the nature of the connection between the motorcycle and the offence.

68 It must be remembered that the murder was premeditated. Basham intended for Samantha Fraser to die from the time he left his sister's address riding the motorcycle. Further, Basham took considerable steps to disguise his presence on Phillip Island. He left his own mobile phone behind and took a phone registered in a different name. That mobile service did not make contact with any phone tower between 7:56 am and 5:47 pm on 23 July 2018, suggesting it had been switched off for that time. When Basham walked to and from 19 Seagrove Way he was wearing a hooded jacket tightly drawn around his face. The day after the murder he told his friend Michael Lee that he had been nowhere near Phillip Island at the time of Ms Fraser's death and had left no electronic trace.

69 The use of the motorcycle gave Basham an advantage in his attempts to disguise himself and his presence. Jacketed and helmeted motorcycle riders are more difficult to identify than users of other vehicles. The use of the motorcycle also meant that Basham did not need to risk his distinctive maroon Toyota utility being observed on Phillip Island generally and in the Cowes vicinity specifically. Basham's plan depended on his ability to surprise Ms Fraser at 19 Seagrove Way. Days before she died Ms Fraser told Sharon Churchill, a counsellor, that she was more vigilant for her safety as Basham had been sighted on Phillip Island.

70 Further, Basham used the motorcycle to ride past 19 Seagrove Way on the morning of 22 July 2018. He did so slowly. It may be inferred that he was observing the house in relation to his plan. He returned the following morning and, moments after Ms Fraser left, approached the property on foot leaving his motorcycle some distance away from the house and waited some two and a half hours for her to return.

71 It is immaterial that Basham could have committed the offence using another vehicle.[36] The use of the motorcycle was far from passive.

72 I have not found it necessary to address the arguments concerning the motorcycle giving Basham an advantage of speed in leaving the Cowes area and then travelling to Paynesville. While it is clear that Basham was speeding at some stages during his journey - indeed he was stopped by police in Bairnsdale for speeding - that matter adds little to the above considerations.

73 The potential hardship caused to the second respondent is the central issue in dispute with respect to the determination of whether the motorcycle should be forfeited. It is therefore convenient to deal first with the exclusion order application and the relevant considerations under s 50(1) of the Act. These are whether the second respondent's interest in the motorcycle was subject to Basham's effective control on the date Basham was charged with murder[37] and whether the second respondent acquired the interest from Basham for sufficient consideration.[38]

74 In Director of Public Prosecutions v Ferguson[39] Kaye J said

The whole scheme of the Act is to treat as the owner of the property those who, in reality, exercise a fundamental incident of ownership, namely, the practical control of property. Accordingly, the question whether the defendant has the effective control of property involves an examination of the actual practical exercise, or capacity to exercise, by the defendant of rights over the property in question, such as the right to possess, use, sell, mortgage, make fundamental improvements to, and exclude others from possession of, the items of property in question.[40]

75 For the purposes of determining whether or not property is subject to the effective control of a person, regard may be had to family relationships.[41]

76 The relevant date with respect to the issue of effective control in this matter is 2 August 2018, being the date Basham was charged with murder. At that time the motorcycle was in the physical possession of the police.

77 I do not accept the argument of the second respondent that that means the motorcycle was under the effective control of Victoria Police. Such a submission fundamentally misunderstands the nature of the Act. It contemplates the consequence that any property seized during an investigation but pre-arrest, subsequently restrained and sought to be forfeited could never be forfeited if a third party made application for exclusion of his or her interest in it.

78 Rather, the question to be asked is whose effective control the motorcycle was under at the time it was seized by police - that is at the time it was last subject to the effective control of someone other than the police.

(a) The motorcycle was purchased by Basham. He became the registered owner of it on 16 March 2018. It was his 'pride and joy'.

(b) The second respondent became the registered owner on 1 June 2018.

(c) Thereafter, Basham continued to use the motorcycle.

(d) The second respondent never rode the motorcycle.

(e) Basham was overseas between 6 and 19 July 2018. He left the motorcycle at his sister's residence.

(f) The motorcycle was stored in a locked shed at the second respondent's property between 23 and 26 July 2018.

80 Other facts are in issue, in particular as to how and why the motorcycle came to be locked in the second respondent's shed on 23 July 2018.

81 In his police statement sworn 29 July 2018, the second respondent said:

On Monday 23rd of July 2018 Adrian arrived at my home at 6 McMillan Street, Paynesville between 5:15 - 5:30 pm as I have already told Police. He rode to my house on my motorbike; a Kawasaki Ninja 1000cc sports bike. Adrian was dressed in motorcycle pants, jacket and helmet which have since been seized by Police.

The motorbike was originally bought by Adrian. A few months later he transferred it into my name. I have never actually ridden that bike and have only touched it once on the right handlebar - the one with the cruise control. I may have touched it in addition although I don't think so.

The bike is Adrian's pride and joy. When he arrived he suggested placing it in the shed. He wiped down the front forks and fairing and the helmet visor with baby wipes which is a technique to get rid of any bugs from the trip.

When he arrived, there was nothing in his demeanour that gave me cause for concern. ...

...

When he arrived with the bike he did mention that it had a full tank. I can't remember his exact words but the inference was that it could sit there for a period of time.

...

Adrian expressed to me that while riding his bike here the other day that he was suicidal. He told me that he did some astronomical speeds. They alarmed me. I have travelled fast at times but never in my life have I gone that fast. I believe (and I am currently under some stress myself so cannot be 100% accurate) that he spoke of speeds in excess of 200 km/h. I was shocked.

Part of the reason Adrian suggested locking the bike in the shed was that he felt suicidal. Also while Adrian was at our house he passed to me two boxes of medication of which only a small number of pills were missing. I believe one of them was Zoloft and the other one was possibly Sertraline. I understand they are drugs to help with anxiety. He indicated that he didn't want them around him.

82 The second respondent was called as a witness during Basham's trial. In evidence given on 5 April 2022 he was asked whether it was Basham or himself who suggested that the motorcycle be placed in the shed. The second respondent said that he was unsure how it was decided.

83 In his affidavit affirmed 14 October 2022, the second respondent deposed the following under a subheading titled 'effective control':

On 23 July 2018 in the late afternoon, Adrian arrived at my residence at 6 McMillan Grove, Paynesville on the Motorbike. I had been expecting him the previous evening, but he hadn't turned up. He told me he had come from San Remo. Later that evening, Adrian told me that he had been travelling at break-neck speeds, in excess of 200 km/hour, to get to Paynesville from San Remo that day. When I heard this, I used words to him to the effect that he was an idiot for taking such risks. I told him that he would have to leave the Motorbike with me, for his own safety. I said I would not let him ride it again. Accordingly, I took possession of the Motorbike on 23 July 2018.

84 As noted above, in evidence given during the hearing of the application, the second respondent stated that he 'made it plain' to Basham that the motorcycle was inaccessible to him as of 23 July 2018.

85 The evidence of the second respondent has been inconsistent on this issue. In my view the police statement and affidavit are not reconcilable on the basis that one is more complete than the other. Further, the police statement was not made 'on the spot'. Its fourth paragraph makes clear that the second respondent spoke to police on 26 July 2018 but was not prepared to sign the notes taken on that day. He also had a telephone conversation with a police officer on 28 July 2018. The statement was made on 29 July 2018. While it may be accepted that the second respondent was not extensively questioned by police, he twice stated that the motorcycle was placed in the shed at the suggestion of Basham. Further, there is no mention in that statement that the shed was then locked at all or for the purpose of preventing Basham having access to the motorcycle because of his mental state or for any other reason. Indeed there is no mention of the fact that the second respondent intended that Basham could have no further access to the motorcycle. To the contrary, the statement refers to the motorcycle being Basham's pride and joy, carefully cleaned by him after the ride from San Remo.

86 Basham gave no evidence on this issue. To the extent that, during submissions, he suggested that he only had the motorcycle after 1 June 2018 because he had not had an opportunity to give possession of it to the second respondent, that suggestion is only partially supported by other evidence. The second respondent's evidence was that he allowed Basham to continue to use the motorcycle with the warning that if excessive kilometres were put on the bike, that would affect their agreement. The second respondent never stated that there was an arrangement to return the motorcycle to him on 23 July 2018. He did say in his police statement

I have previously spoken with Adrian about the transfer of the motorbike into my name which could act as reimbursement for some of his legal fees. At the time I said that he could continue to ride it which he did. He has now chosen to return it. He discussed this with me some time before he came to visit, even not long after he bought it.

87 Further, the second respondent took no steps to sell the motorcycle to recoup the monies advanced on behalf of Basham. If the transfer of registration was security for the debt, that indicates that legal ownership but not control had passed. If the transfer was intended to facilitate sale of the motorcycle by the second respondent to realise the asset, there is no evidence as to when and how that sale was to be effected. In fact, he continued to allow Basham to keep possession of it.

88 Considering all of these matters, I am not satisfied that the second respondent's interest in the motorcycle was not subject to the effective control of Basham at the relevant time.

89 The second respondent submitted that he advanced $22,367 to Basham for legal fees, (including paying such fees on his behalf) and to assist with living expenses. Upon discovering that contemporaneously with those advances Basham had bought a new motorcycle, he required Basham to transfer title in that property to him as reimbursement. He says that he has, therefore, paid $22,367 for the motorcycle.

90 I accept from the ANZ lodgement receipts that the second respondent did advance $22,367 to and on behalf of Basham. However, the evidence concerning repayment of those monies is less clear.

91 In his affidavit, the second respondent did not refer to the envelopes of cash he received from Basham. This is a surprising omission.

92 In his police statement, the second respondent said

In addition to this, Adrian passed me an amount of cash. It was my understanding that this was to pay me back for some legal cost I have been funding for Adrian regarding his other matters. I have been paying his Barrister; the Solicitor has a caveat over the two properties, both jointly owned by Adrian and Sam.

I have not opened the envelopes but believe it is a significant amount. I don't know where Adrian got the money. I don't consider Adrian's handling of a large amount of cash unusual as he has worked Fly‑In‑Fly‑Out work and was very well paid.

93 When cross-examined in this matter, the second respondent said he did not know why there was no reference to the envelopes of cash in his affidavit, but it was not because he wanted the court to believe he had not received any money from Basham. In re‑examination the second respondent said that he believed that he was given the cash for safekeeping and did so for some time. No further questions were asked.

94 The state of the evidence is unsatisfactory. The reasons for the receipt of envelopes of cash as given in the police statement and in viva voce evidence are irreconcilable. The total omission of any reference to the envelopes from the affidavit is not easily explained. Further, the quantum of cash in those envelopes is unknown, but described as 'significant'. That descriptor is supported by several references in the police statement to how well paid Basham was.

96 In all the circumstances I cannot be satisfied that the second respondent's interest in the motorcycle was acquired for sufficient consideration. The motorcycle was transferred, seemingly, not for the second respondent to sell but as security for repayment. On 29 July 2018 the second respondent swore a police statement stating that had he had, approximately 6 days earlier, received envelopes of cash from Basham which contained 'a significant amount', understanding that it was to pay back some of the legal costs advanced.

97 Returning to the matters under s 33(1) of the Act, the observations made above with respect to 19 Seagrove Way concerning the nature and gravity of the offending, that Basham offended alone and the importance of deterrence are apposite to consideration of the motorcycle. Further, I am of the view that neither the second respondent nor Basham will face undue hardship from the forfeiture of the motorcycle. The second respondent took on the financial risk of funding Basham's legal fees and assisting with living expenses well in advance of having the motorcycle as security. He attested to receiving a 'significant amount' of cash from Basham as some form of repayment. The value of the motorcycle is unknown but likely to have depreciated from its purchase price of $15,800. The second respondent did not suggest that he made ordinary use of the motorcycle. And, the motorcycle will be of no utility to Basham whilst he serves his life sentence.

98 It follows that the second respondent's application for an exclusion order in respect of the motorcycle must be refused.

99 Pursuant to 33(1) of the Act, the motorcycle will be forfeited.

100 Pursuant to 33(1) of the Act, orders for the forfeiture of 19 Seagrove Way and the motorcycle will be made in the terms proposed by the DPP.

[1] See R v Basham (Sentence) [2023] VSC 79 ('Sentence').

[5] Act, s 3, definition of 'tainted property', ss (b)(i).

[6] Act, s 3, definition of 'tainted property', ss (b)(iii).

[7] The Minister responsible for administering the relevant provisions of the Act.

[9] Except, in relation to the person convicted of the offence, the impact on that person of the sentence given for that offence - Act, s 33(5A).

[11] R v Winand (1994) 73 A Crim R 497, 500-1 (Phillips CJ, Crockett and Southwell J) ('Winand'). In relation to the deterrent purpose of forfeiture, see R v McLeod [2007] VSCA 183; (2007) 16 VR 682, 686 [18] (Maxwell P, Redlich JA and Habersberger AJA) and Meskovski v DPP [2018] VSCA 293, [108] (Maxwell P, Tate and Weinberg JJA) ('Meskovski').

[14] [2011] VSCA 436; (2011) 37 VR 464 (Maxwell P, Redlich JA and Kyrou AJA) ('Chalmers'). See also Director of Public Prosecutions v Moran [2012] VSCA 154; (2012) 37 VR 624 (Warren CJ, Buchanan AP and Beach AJA) and Cini v Commissioner of Australian Federal Police (2016) 312 FCR 432 (Priest, Santamaria and Kaye JJA).

[15] Chalmers [2011] VSCA 436; (2011) 37 VR 464, 479 [77].

[16] Chalmers [2011] VSCA 436; (2011) 37 VR 464, 480 [78].

[17] Chalmers [2011] VSCA 436; (2011) 37 VR 464, 481 [81].

[18] Chalmers [2011] VSCA 436; (2011) 37 VR 464, 483 [91].

[19] Chalmers [2011] VSCA 436; (2011) 37 VR 464, 483 [89].

[20] Chalmers [2011] VSCA 436; (2011) 37 VR 464, 483 [90].

[21] Chalmers [2011] VSCA 436; (2011) 37 VR 464, 483 [91].

[22] Chalmers [2011] VSCA 436; (2011) 37 VR 464, 483 [90].

[23] Chalmers [2011] VSCA 436; (2011) 37 VR 464, 483 [89].

[24] Act, s 3, definition of 'tainted property', ss (b)(i).

[25] Act, s 3, definition of 'tainted property', ss (b)(iii).

[26] [2023] SASC 21 (Judge Dart, Master) ('Dansie').

[27] The definition of 'proceeds' in s 7 of the CAC Act is similar to part of the definition of 'tainted property' in the Victorian Act. Under the CAC Act, property is 'proceeds' if it is wholly derived or realised, whether directly or indirectly, from the commission of the offence or partly so. The Victorian Act does not use 'wholly' or 'partially' in the definition of tainted property. Rather, it uses the formulation of 'was derived or realised, or substantially derived or realised'.

[28] Dansie [2023] SASC 21, [22].

[29] Dansie [2023] SASC 21, [27]-[28].

[30] Dansie [2023] SASC 21, [23]. Specifically, the son of the deceased commenced separate proceedings seeking a declaration that the deceased's former interest in the property was to be held by the offender on trust for the benefit of the deceased's estate pursuant to the common law forfeiture rule.

[31] This figure was referenced in the DPP's Submissions as having been taken from an affidavit of Detective Senior Constable Jonathan Allie dated 17 August 2018, filed in support of an application for a restraining order.

[32] Chalmers [2011] VSCA 436; (2011) 37 VR 464, 483 [89].

[33] Skeates (a pseudonym) v The King [2023] VSCA 226, [55]-[60], [79] (Emerton P, Niall and Taylor JJA).

[34] See for example, Meskovski [2018] VSCA 293, [97] and R v Lake (1989) 44 A Crim R 63, 66-67 (Kirby P).

[36] Chalmers [2011] VSCA 436; (2011) 37 VR 464, 479 [77].

[39] [2006] VSC 484 ('Ferguson').

[40] Ferguson [2006] VSC 484, [54].