DPP v Moran [2012] VSCA 154

1 On 17 May 2011, the appellant, the Director of Public Prosecutions, made application under s 32 of the Confiscation Act 1997 for a forfeiture order in respect of certain property owned by the respondent, Judith Moran. The property in issue ("the property") consisted of the balance of the proceeds of sale of premises situated at 10 Ormond Road, Ascot Vale. The basis of the application was that on 9 March 2011, the respondent was convicted of a Schedule 1 offence under the Confiscation Act - namely, murder.

2 On 10 August 2011, Lasry J dismissed the appellant's application for forfeiture of the property. This is the appellant's appeal from that order.[1]

The Confiscation Act 1997

3 The relevant provisions of the Confiscation Act are ss 32 and 33. Section 32(1) relevantly provides:

(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 Section 33 of the Confiscation Act relevantly provides:

Determination of application for forfeiture order

33. Determination of application for forfeiture order

(1) On an application under section 32(1), if the court is satisfied that the property is tainted property in relation to the offence, the court may order that the property, or such of the property as is specified by the court in the order, be forfeited to the Minister.

...

(5) In considering whether to make an order under subsection (1) in respect of particular property, the court may have regard to-

(a) the use that is ordinarily made, or had been intended to be made, of the property; and

(b) any hardship that may reasonably be likely to be caused to any person by the order; and

(c) the claim of any person to an interest in the property having regard to the matters specified in section 50(1).

...

5 At the time of the respondent's application, the relevant part of the definition of "tainted property" was contained in paragraphs (a) and (b) of the definition set out in s 3. The definition in s 3 relevantly provided:

tainted property, in relation to an offence, means 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 in paragraph (a); ...

6 This appeal concerns the construction of paragraphs (a) and (b) of the definition of "tainted property" as they were prior to being amended on 1 April 2012.[2]

7 The facts relating to the murder and the matters relevant to the respondent's application are not in dispute.[3] Desmond Moran, the respondent's brother-in-law, was shot and killed around 11.59 am on 15 June 2009 at the Union Road Deli in Ascot Vale by Geoffrey Leslie Armour. Armour shot Desmond Moran as part of a plan or arrangement between Armour and the respondent.

8 From about 3 May 2009, Armour (and from about 18 May his partner, Suzanne Patricia Kane, and their son) had been staying at the Ormond Road property with the respondent. Prior to that time, Armour and Kane had been living together in Western Australia.

9 On the morning of the shooting the respondent drove Armour and Armour's friend, Michael Sam Farrugia, from the Ormond Road property to the place of the murder and back to the Ormond Road property afterwards. The respondent was driving a Ford Fairlane ("the Ford") with registration number UOV 145.

10 When they returned to the Ormond Road property, the respondent drove the Ford into the garage at the Ormond Road Property, the garage door was closed and the Ford was thereby presumably concealed from view from the street.

11 Police later attended the Ormond Road Property and saw the Ford, still in the garage. The respondent later moved the Ford and left it in Brunswick.

12 After the murder, the respondent took charge of various items used in the murder (including the murder weapon - a handgun; clothing (and a wig) worn in the commission of the murder by Armour; and clothing worn by Farrugia at the time of the murder).

13 Following the murder, police conducted a search of the Ormond Road property pursuant to a search warrant obtained by them. They found the above items stashed in a safe found in the Ormond Road property.

14 During May 2009 the respondent had caused her accountant, Peter Cook, to set up a company named Environmental Concrete Constructions Pty Ltd.

15 On about 13 May 2009, the respondent, with the assistance of a finance company named Lending Link, obtained a loan from Westpac Bank in an amount of $400,000. The Ormond Road property was provided as security for this loan. Of the loan monies, the respondent received $50,000 on 18 May 2009 and $349,124.90 of the loan monies was deposited in the respondent's accountant's trust account on 19 May 2009.

16 On 14 May 2009 the respondent purchased two 2009 Chrysler vehicles, in a total amount of about $110,000 from a car dealership at Nunawading. One of the vehicles was purchased in the name of Environmental Concrete Constructions Pty Ltd and was intended to be given to Kane, and the other vehicle purchased in the respondent's name and intended for her use.

17 On 15 May the respondent purchased a 2009 Land Rover Discovery vehicle registration WZF 020 for the sum of $73,000, and registered in the name of "Environmental Concrete Constructions". The balance of the purchase price, $72,000, was paid on 29 May 2009 by the respondent's accountant, Cook, by bank cheque from the loan funds deposited in his trust account and held for the respondent. The respondent gave this vehicle to Armour for his use.

18 The Ormond Road property was sold on 5 March 2011 for an amount of $1,077,000. The settlement of the sale occurred on 17 August 2011 and the nett proceeds of approximately $356,142 remain held on trust by the Department of Justice, Asset Confiscation Office, pursuant to a restraining order made by Emerton J on 4 March 2011.

19 The issue on this appeal is whether the property was used, or was intended by the respondent to be used in, or in connection with, the commission of the murder of Desmond Moran. The Court below considered five specific grounds upon which the DPP relied to support the submission that the Ormond Road property was tainted property, namely:

(a) its use as a base from which the murder would have been planned and discussed. In this regard, the evidence that prior to 3 May 2009, Armour had been living in Western Australia was of relevance. As set out above, the evidence was that Armour had been staying with the respondent since about 3 May 2009. The DPP could go no further than seeking the Court to draw a fair inference that, since the plan to murder Desmond Moran was in place at the time of its execution on 15 June 2009, that murder would have been discussed by Armour and the respondent during his stay in her home;

(b) the storing in the safe located on the Ormond Road Property - and, therefore, concealment - of various items used in the murder, including the murder weapon used to kill Desmond Moran;

(c) the storing in that same safe and, therefore, concealment of the clothes and a wig worn by Armour and Farrugia;

(d) the temporary storing in the garage of the Ormond Road Property, and, therefore, concealment of, the Ford used as the means of travelling to the place of the murder and also the 'getaway car' in the murder;

(e) the provision of the Ormond Road Property as security for a loan of monies from Westpac, which monies were partly used by the defendant to pay or reward the perpetrators in return for killing Desmond Moran.[4]

20 On this appeal, the appellant eschewed any reliance upon the ground set out in sub-paragraph (a) above.[5]

21 The appellant contends that the trial judge was wrong to conclude that the property was not tainted property. The appellant seeks to overturn the order dismissing the forfeiture application in relation to the property and the remittal of the proceeding for rehearing. The grounds of appeal are as follows:

1. Finding that 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 ("the Property") was not "tainted property", within the definition of that term in section 3 of the Confiscation Act 1997 (Vic) ("the Act");
2. Failing to hold that the Property was tainted property, in that it had been "used or was intended by the accused to be used in ... connection with the commission of the offence", within the definition of "tainted property" in section 3 of the Act;
3. Holding that, in order to ascertain whether the Property was "used or was intended by the accused to be used in ... connection with the commission of the offence", or whether it was merely "incidental", it was relevant to consider whether it could be said that "absent the Property, the murder ... would not have occurred" (Judgment paragraph 25);
4. Disregarding the use of the Property for the purpose of concealment of clothing and the weapon used in the commission of the offence as a factor tainting the Property (Judgment paragraph 40);
5. Disregarding the use of the Property for the purpose of concealment of a motor vehicle used as a means of arrival at and departure from the murder as a factor tainting the Property (Judgment paragraphs 41 to 43);
6. Holding that the Property was not tainted by its use as security for the borrowing of monies, part of which were used to pay or reward the effecting of the murder unless it could be shown that "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" (paragraph 47), in circumstances where, notwithstanding any such original intention or otherwise, the Property was in fact used in part to facilitate the commission of the murder;
7. Holding that the Property was not tainted by its use as security for the borrowing of monies, part of which were used to pay or reward the effecting of the murder because his Honour was "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 ... the absence of evidence means the application cannot succeed" (paragraph 49), in circumstances where, notwithstanding any such original decision or agreement or otherwise, the Property was in fact used to reward Armour for the commission of the murder;
8. Applying the definition of "tainted property" in section 3 clause (a) of the Act (Judgment paragraphs 8, 47 and 49) as though the words "property that was used or was intended by the accused to be used in ... connection with the commission of the offence" actually read only "property that was used or was intended by the accused, prior to such use, to be used in ... connection with the commission of the offence".

22 In Chalmers v The Queen,[6] this Court[7] gave detailed consideration to the authorities dealing with the interpretation of the phrase "used in connection with the commission of the offence" in the definition of "tainted property". The Court said:[8]

77. We have found the analyses by the respective courts illuminating, and they disclose a high degree of unanimity of approach. We would respectfully adopt the following propositions which emerge from those authorities:

1. The word 'used' should be given its ordinary meaning of 'employed, or made use of, for a particular end or purpose'.[9]
2. The statutory phrase is of wide scope. The inclusion of the words 'in connection with' was plainly intended to extend the scope of the definition of 'tainted property' beyond circumstances where the property could be said to have been 'used in the commission of' the offence.[10]
3. Whether there is a connection between the use of the property and the commission of the crime is a question of fact and degree.[11] It is not necessary for it to be established that there was a 'substantial' connection, or that the crime could not have been committed without using the property.[12]
4. The nature, extent and significance of the use of the property in connection with the commission of the crime will be matters which go to the Court's discretion whether or not to order forfeiture of the property.[13]

78. Very often, the decisive issue will be whether the relevant property can be said to have been 'used',[14] 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.

79. The importance of the 'use' question is illustrated by cases in which the requisite connection was found to exist between the use of the property and the commission of the offence, as follows:

• the use of a yacht to monitor arrangements for the importation of drugs;[15]
• the use of a car for storage, concealment and/or transportation of drugs in connection with drug trafficking;[16]
• the use of a farm or a house to grow cannabis;[17]
• the use of cash to facilitate drug trafficking deals;[18]
• the use of (activities in) a boat or a house as a lure for intended victims of sexual assault;[19] and
• the use of a fenced property to facilitate murder, and to store the body of the victim.[20]

80. Express statutory provision apart,[21] the mere fact that an act is done in or on a particular property will ordinarily not suffice to bring that property within the definition.[22] That is because, as a matter of ordinary language, this could not be characterised as a 'use' of the property.[23] In their joint judgment in White, French CJ and Crennan and Bell JJ said:

On the face of it, the mere doing of an act in or on a property in connection with the commission of a confiscation offence, does not necessarily fit comfortably within the concept of use applied to property. The relevant ordinary meaning of the verb 'use' is to [m]ake use of [a thing], esp. for a particular end or purpose; utilise, turn to account.[24]

81. It is only when the property, or some feature or attribute of it, has been turned to advantage by the offender, or enlisted to the offender's purpose, that it will be possible to say that the property has been 'used'. In King,[25] for example, the offending took place on board a boat but it was held that the boat was no more than the location of the offending. The boat had not been 'employed' for any purpose related to the offending. In Garner,[26] by contrast, the court held that the offender had used a houseboat to provide the intended victims with 'a pleasurable environment and exciting activities', such that the boat became 'an efficient tool of seduction'.

82. Conduct after an offence is completed may also constitute a use of property in connection with the commission of the offence.[27] In White,[28] for example, the West Australian Court of Appeal held that the use of the relevant property to store the body of the murder victim was use in connection with the offence. The issue arose in the context of the commission of a murder by White on an industrial property that was leased by him.

83. The property was enclosed by a six foot cyclone fence, with two double cyclone metal gates at the front of the property. While the victim was at the property, and before White arrived, he arranged for the gates to be locked. After White arrived, he shot the victim in the shoulder. As the victim ran through the yard, White pursued him and fired three more times. As the victim climbed on top of the gate in order to escape, White shot him in the buttocks. The victim fell to the ground outside the property. White left the property through the gate and, as the victim lay on the ground struggling for breath, White fired a sixth shot at the victim's head and killed him. White then dragged the victim's body back onto the property.

84. McLure P, with whom Owen and Buss JJA agreed, held that the expression 'in connection with' required that there be 'a link between the relevant use of, or act or omission on, the property on the one hand and the commission or facilitating the commission of a confiscation offence on the other'.[29] Her Honour concluded:

It is clear from the statutory language that the relationship between the use of, or the act or omission on (the conduct), the property and the confiscation offence does not have to be direct and immediate. However, having regard to the consequence of falling within the definition of crime-used, it is not sufficient if the relationship be merely tenuous and remote. The requisite relationship would fall between these two extremes and involve matters of degree and judgment. In considering whether the relationship is sufficiently proximate, the purpose and effect of the conduct would be relevant considerations.[30]

85. On the facts of the case before her, McLure P held that, as intentional locking of the gates of the property was for the purpose, and had the effect, of preventing or impeding the victim departing from the property before White finished dealing with him, the use of the property facilitated the murder. Her Honour held that White's subsequent conduct in using the land to store the body away from public view pending its disposal was also a relevant use.

86. Whether there has been a relevant use will depend upon the property in question and the precise way it was used. As the same property can be put to different uses, the determination of whether there is a connection between the particular use of the property and the commission of the offence will involve questions of fact and degree that need to be determined in a commonsense manner.[31]

87. In George, the Full Court of the South Australian Supreme Court was concerned with land on which was situated a shed in which cannabis plants had been grown hydroponically. Doyle CJ (with whom White J agreed) held that the composite expression 'used ... in connection with the commission of an offence' involved practical considerations and matters of degree, such that each case would turn on its own facts.[32] His Honour held that the composite expression did not require a causal connection between the property and the offence. Nor was it necessary that the property be something which was essential or necessary for, or made a unique contribution to, the commission of the offence.[33] His Honour concluded as follows:

As a matter of ordinary language, and bearing in mind that the word defined is 'instrument', I consider that the definition refers to a use of property that facilitates, assists or contributes to the commission of an offence. That is a starting point, not a conclusion. The use of the property must be sufficiently significant (I realise that this is question begging) to warrant a conclusion (especially when the property is the place where the offence is committed) that the property is used in connection with the commission of the offence. This invites attention to the role that the property plays in the commission of the offence, to the extent to which the property is so used, and to how much of the property, or what part of it, is used. I doubt whether one can usefully go any further than that.[34]

88. Doyle CJ held that the land was used in connection with the commission of the offence of producing cannabis. It could be inferred that the offender had chosen the shed 'as a suitable place to grow the cannabis.'[35] The use of the land 'facilitated and contributed to the commission of the offence. It was not just the place where the offence was committed.'[36] (Vanstone J dissented, holding that the property was merely the place where the crime occurred.[37])

89. At one end of the spectrum are cases where the property is deployed in an instrumental sense to commit the offence. An obvious example is the weapon that is used to inflict an injury. Land can be used to cause death or injury, such as where a domestic pool is used to drown the victim. Another example is where a beam in a ceiling of a house is used to support a rope for the purpose of hanging the victim. A further example is where the victim is thrown off a second floor balcony. These are examples of cases where an attribute or feature of the property is actively used in the commission of the offence.

90. At the other end of the spectrum are cases where the property is merely the passive location at which the offence is committed. An example is where a discussion takes place in the offender's home which constitutes a conspiracy to commit an offence at another location. Another example is where, during dinner in the family home, a domestic dispute erupts spontaneously which leads to one person reaching across the table and assaulting another person. These are examples of cases where an offence is committed at the property (the home) but there is no relevant connection between the use of the property and the commission of the offence.

91. There will, of course, be cases along this spectrum where the question whether the requisite connection exists (between the use of the property and the commission of the offence) will be a matter of difficulty. Those cases will require a close examination of the nature of the property, its precise use, the nature of the offence that was committed and the manner, if any, in which the property was used in connection with the commission of the offence. The more passive the use of the property and the more incidental its role, the less likely it is that the requisite connection will be found to exist.[38]

23 As the authorities show, there may well be cases where premises will be held to be tainted property because items of property used in the commission of an offence were concealed or stored at the premises. There are, as the Court of Appeal observed in Chalmers, questions of fact and degree. Additionally, the authorities show that it would not be correct to conclude that simply because absent the property, the offence would not have occurred.[39]

24 In our view, the trial judge was correct to conclude that the property was not tainted property. While the Ford may have been in the garage of the premises with the garage door closed for a period of time after the murder, there is insufficient evidence that the garage door was closed for the purpose of concealing the view of the Ford from the street. Indeed, the agreed facts between the parties only go so far as asserting that the Ford was "presumably concealed from view from the street". That said, the relevant evidence was in the affidavit sworn by Detective Senior Constable Stephen Reidy.[40] His evidence on the topic was as follows:

38. Moran drove back to the property and went into the garage although there were problems opening the garage door. Farrugia went to open the garage door manually but it eventually opened. Moran drove the Ford nose first into the garage. The door closed by itself.

...

43. Moran returned to the property with the police later in the afternoon. She told police not to park in the garage as there was another vehicle parked inside. Police officers remained with her and she made a statement to them regarding her movements that day.

...

45. A police officer who had attended at the murder scene and viewed some of the CCTV footage from the florist, later attended at the Property. That evening he observed in the garage at Ormond Road a Ford Fairlane bearing number plates UOV 145, similar to the car he had observed on the CCTV footage. This is the Ford that was purchased from Lemon Motors.

46. The Property remained under police surveillance. At about 9.30 pm police observed Moran driving the Ford out of the garage and leaving it in Mincha Street, Brunswick. As she left the car she was observed disposing of various items including white gloves.

25 This evidence does not bespeak a use of the premises for the purpose of concealing the Ford. Rather, the Ford was, if anything, removed from the premises to conceal it from police.

26 Similarly, we do not think it would be correct to conclude from the evidence that the premises were used in the way contemplated by the Act simply because the murder weapon, the relevant clothes and the wig were stored in a safe at the premises (whatever might be the position of the safe so far as the issue of tainted property is concerned).

27 Finally, we reject the contention by the appellant that the premises used as security for the loan from Westpac is tainted because part of the loan moneys were used to purchase a vehicle (or vehicles) which was then given to a perpetrator as a payment or reward for committing the offence. In our view, it was the relevant vehicle itself which became tainted when given to a perpetrator as a payment or reward. But in this case, the connection between any such payment or reward and the premises used as security for the Westpac loan is too remote for the premises to be considered as having been used in connection with the commission of the offence.

[1] No party contended before us that the appellant required leave to appeal. In the circumstances, we are prepared to proceed on the basis that leave to appeal is not required: see ss 133 and 142 of the Confiscation Act, ss 10 and 17A of the Supreme Court Act 1986 and Lemoussu v Director of Public Prosecutions [2012] VSCA 20, [23].

[2] See s 35(5) of the Confiscation Amendment Act 2010.

[3] See the parties' agreed summary dated 14 December 2011 at paragraphs 17-30.

[4] See the parties' agreed summary dated 14 December 2011 at paragraph 33.

[5] See the appellant's submissions dated 15 February 2002 at footnote 2.

[6] [2011] VSCA 436.

[7] Constituted by Maxwell P, Redlich JA and Kyrou AJA.

[9] Rintel (1991) 3 WAR 527, 529, 542; White [2010] WASCA 47; (2010) 41 WAR 249, 257 [27]; White (HCA) [2011] HCA 20, [21].

[10] Taylor (1991) 55 SASR 462, 471; Hadad (1989) 16 NSWLR 476, 481D; George [2008] SASC 330; (2008) 102 SASR 246, 261 [57].

[11] Taylor (1991) 55 SASR 462, 472; DPP (NSW) v King [2000] NSWSC 394; (2000) 49 NSWLR 727, 731 [15] (O'Keefe J) ('King'); George [2008] SASC 330; (2008) 102 SASR 246, 261 [57].

[12] Taylor (1991) 55 SASR 462, 466, 471-2; George [2008] SASC 330; (2008) 102 SASR, 246, 262 [62]; Hadad (1989) 16 NSWLR 476, 482E; Rintel (1991) 3 WAR 527, 531.

[13] Hadad (1989) 16 NSWLR 476, 481-2; Rintel (1991) 3 WAR 527, 530.

[14] White [2010] WASCA 47; (2010) 41 WAR 249, 258-9 [37]-[39].

[15] DPP v Brauer (1991) 2 Qd R 261, 270.

[16] Hadad (1989) 16 NSWLR 476, 482F; Rintel (1991) 3 WAR 527, 533, 543.

[17] Taylor (1991) 55 SASR 462, 472; George [2008] SASC 330; (2008) 102 SASR 246, 263 [76]-[78]; cf DPP v Dickfoss [2011] NTSC 4; (2011) 28 NTLR 71, 93-4 [67].

[18] King [2000] NSWSC 394; (2000) 49 NSWLR 727, 731 [16]-[17], citing Sultana v The Queen (1994) 74 A Crim R 27 and R v Polain (1989) 52 SASR 526.

[19] King [2000] NSWSC 394; (2000) 49 NSWLR 727, 732 [22], citing DPP v Garner (unreported, County Court of Victoria, Judge Kelly, 26 April 1999) ('Garner'); King [2000] NSWSC 394; (2000) 49 NSWLR 727, 733-4 [30], citing DPP (WA) v Farley (unreported, Supreme Court, WA, Heenan J, 17 September 1996).

[20] White [2010] WASCA 47; (2010) 41 WAR 249, 259 [39].

[21] Under s 146(1)(c) of the Criminal Property Confiscation Act 2000 (WA), property is 'crime-used' if 'any act ... was done ... in or on the property' in connection with the commission of a relevant offence: see White [2010] WASCA 47; (2010) 41 WAR 249, 254 [15]-[16] and White (HCA) [2011] HCA 20, [33].

[22] Rintel (1991) 3 WAR 527, 542-3; George [2008] SASC 330; (2008) 102 SASR 246, 263 [76]-[77]; White [2010] WASCA 47; (2010) 41 WAR 249, 257-8 [27]-[31].

[23] White (HCA) [2011] HCA 20, [21].

[25] King [2000] NSWSC 394; (2000) 49 NSWLR 727, 735 [36].

[26] Cited in King [2000] NSWSC 394; (2000) 49 NSWLR 727, 732 [22].

[27] Hadad (1989) 16 NSWLR 476, 482-3; White [2010] WASCA 47; (2010) 41 WAR 249, 259 [39].

[28] White [2010] WASCA 47; (2010) 41 WAR 249, 259 [39].

[29] White [2010] WASCA 47; (2010) 41 WAR 249, 258 [31].

[31] Taylor (1991) 55 SASR 462, 471-2; Sultana v The Queen (1994) 74 A Crim R 27, 31; King [2000] NSWSC 394; (2000) 49 NSWLR 727, 730-1 [14]; R v Zerafa [2003] NSWCCA 101; (2003) 139 A Crim R 439, 443-5 [9]-[17]; George [2008] SASC 330; (2008) 102 SASR 246, 261 [57]; White [2010] WASCA 47; (2010) 41 WAR 249, 258 [33].

[32] George [2008] SASC 330; (2008) 102 SASR 246, 261 [57].