Kozarov v DPP [2007] VSCA 74

"(1) Without affecting any other right of appeal, a person who has an interest in property in respect of which -

(a) a forfeiture order is made;

...

may appeal against that order ...--

(c) in the case of a person convicted of an offence in reliance on which the order was made--in the same manner as if the order were, or were part of, the sentence imposed in respect of the offence; or

(d) in any other case--in the same manner as if the person had been convicted of the offence in reliance on which the order was made and the order were, or were part of, the sentence imposed in respect of the offence."

The applicant makes the application as a person having an interest in the property the subject of the forfeiture order.

2 Mr Traczyk has made detailed and forceful submissions, advancing every argument reasonably available to the applicant to establish the requisite error to warrant intervention by this Court. For the reasons which follow, however, I am not persuaded that there was any error.

3 The relevant power exercised by the judge on the application of the Director of Public Prosecutions under s 32, was the power conferred by s 33(1) to make an order that property be forfeited to the Minister. The provisions of that section provide some guidance as to the discharge of that task. Sub-s (4) entitles the court to take into account any material that it thinks fit. Under sub-s (5), the court in considering whether to make an order may have regard to three types of matter, namely:

"(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)."

4 The exercise of power is, in my opinion, properly to be regarded as the exercise of a discretionary power. It follows that the nature of the appeal is the same as in an appeal from a sentencing decision; that is, this Court would not intervene unless error of the kind identified in House v The King[1] was established.

5 In this application, Mr Traczyk has relied both on the content of sub-s (5), being the matters which he argues ought to have been taken into account, and on the longer list of matters set out by Warren CJ in R v Tran[2]. As the High Court made clear some years ago, the question of what is a relevant consideration for this purpose is a matter of construction of the statute. The ground of failing to take into account a relevant consideration will only be made out where the decision-maker fails to take into account something that he, she or it was bound to take into account.

6 The use of permissive language in sub-s (5) ("may have regard to") might be thought to indicate that, even where an argument was made out about hardship, the court was at liberty to disregard it. It seems clear to me, however, that Parliament contemplated that the court considering a forfeiture application ought to have regard to any matter of the kind described in the sub-paragraphs of sub-s (5). If, for example, there were evidence of hardship but the court expressly declined to give it any consideration, that would amount to a failure to take into account a relevant consideration.

7 This Court is often called upon to examine the adequacy of reasons given by trial judges. In my opinion, the reasons in the present case, while rudimentary, are sufficient to demonstrate that the relevant matters were considered. I would add the following, however, for the assistance of other judges. In considering an exercise of power by reference to matters which the statute requires to be considered, the judge should identify that each such matter has been considered, by reference to the statutory language, and indicate the view arrived at in respect of that matter. So to do ensures, first, that the relevant matters are all considered and, secondly, that the applicant for the forfeiture order, and the opponent of it, are adequately informed as to why the decision was made as it was.

8 In the present case, each of the matters referred to in sub-s (5) was relevant. The first was the use that was ordinarily made, or intended to be made, of the car. In my opinion it is clear that his Honour considered that matter in coming to the conclusion which he did about the nature of the applicant's ownership. His Honour noted, as was the fact, that the car in question was registered in the applicant's name, having been purchased by her son with insurance proceeds, but that she claimed to be both the legal and the beneficial owner. His Honour then said:

"In my view, the latter, the equitable interest, cannot be sustained because it was [the applicant's son's] money. The registration was, in my view, something of a ruse to protect the driving vagaries of her son. It was also put to me that the consideration for this car was the love and affection as held between the son and the mother. In my view that is bogus humbug."

9 Mr Traczyk properly conceded that it was open to his Honour on the evidence to conclude that the applicant contemplated, when the car was registered in her name, that her son would use it; that he would use it in connection with his work; and that its use by him would be substantial enough to warrant his having special number plates made to his specifications. Indeed, given that the applicant possessed another car, it seems to me that it was open to his Honour to conclude that the son's use would be the predominant use of the vehicle. But it is not for this Court to decide what the correct finding of fact was. It is sufficient to be satisfied, as I am, that his Honour had regard to the use that was, and would be, made of the car.

10 I turn then to the second criterion, of hardship. As Warren CJ noted in Tran: "Something more than ordinary hardship in the operation of the Act is therefore meant."[3] His Honour did not (as I think he should have) refer explicitly to this criterion and express a view about hardship. But it is implicit in the finding that the applicant was a bare trustee of the vehicle - which her son would continue to own beneficially and would continue to use - that his Honour did not regard the hardship contended for as being of any sufficient weight to justify refusing the order. Had it fallen to me to decide the question, I would have come to exactly the same view.

11 As Nettle JA pointed out in argument, this was not a case where it was said that there would be a deprivation of mobility as a result of the loss of the car. Because the applicant had the use of another car, counsel for the applicant before the learned judge confined his submission with respect to hardship to the loss of the valuable asset. As Nettle JA also pointed out, that argument collapses once the finding is made that the applicant had no beneficial interest in the property. That is, if she were to sell the car in her capacity as legal owner, she would have no beneficial right to the proceeds. She would hold the proceeds as trustee for the beneficial owner and - hence - would suffer no hardship from the loss of the vehicle.

12 The third criterion, the matter referred to in sub-s (5)(c), is the claim of any person to an interest in the property. That, of course, was exactly what his Honour was considering. The very essence of the reasoning concerned the nature of this applicant's interest in the property. His Honour made the ruling to which I have already referred, that it was a bare legal interest, conferred upon the mother by arrangement with the son for the reason she gave, that is, to give her more control over his driving.

13 In my opinion, this case could not be more different from Tran. In that case, as Warren CJ noted, the forfeiture in question would have had the result that the defendant would have been rendered homeless. Her Honour concluded that the making of the forfeiture order would impose unacceptable hardship. In the present

case, we are dealing with no hardship at all or, at least, no hardship remotely like the hardship there considered.

14 It follows, in my opinion, that there is no ground made out to show error in the discretionary decision of his Honour to make the forfeiture order. I would refuse the application for leave.

15 For the reasons given by the learned President, I agree that this application for leave to appeal should be refused.

16 I also agree. Sub-s (5) of s 33 of the Act requires a judge to consider those of the factors mentioned in the section which are relevant to the proceeding before the judge. As appears from the judge's ruling in this case, his Honour dealt specifically with the matters identified in paragraphs 33(5)(b) and (c), that is, hardship and interest in property. It is true that the judge did not refer specifically to the factor identified in paragraph 33(5)(a), namely, the use that is ordinarily made of the property, but in referring to the registration of the property being a ruse to protect the driving vagaries of the applicant's son, it is plain enough that the judge had in mind the evidence that was given below that the vehicle was mostly, if not exclusively, used by the defendant and was registered in the applicant's name because of the defendant's driving vagaries.

17 I see no error in principle in the judge's approach or any error of fact in his Honour's findings. The evidence is plain that the applicant had her own car and that the vehicle the subject of the order was purchased by the defendant with his own money, substantially if not wholly for his own use, albeit registered for one reason or another in the applicant's name, without intention to confer any beneficial interest in the property on the applicant. If, therefore, the applicant had any interest in the

property, it was, as the judge found in effect, no more than a bare legal interest as trustee for the defendant. And if she ever used or intended to use the property, it was only ever to be on a few desultory occasions.

18 These facts having plainly appeared in the course of running below, the applicant submitted below that the hardship for which she contended inhered in the fact that she would, if the order stood or was made, be deprived of an interest in an asset of value of $18,000. Given the finding of the judge that the applicant did not have any beneficial interest in the property, and that the finding was well based on the evidence which was before him, that claim was bound to fail.

[1] [1936] HCA 40; (1936) 55 CLR 499.

[2] [2004] VSC 218 at [10].

[3] Lake (1989) 44 A Crim R 63 at 66 - 67 per Kirby P cited in Tran, supra at [9].