Sypott v Queen [2003] VSC 41

5. The accused is charged on one count of murder in that at Hamilton in the State of Victoria on 8 December 2001 he murdered Frances Margaret Rook.

8. On 30 January 2002, approximately one month after the accused had been charged with this offence, an ex parte application was made by the Director of Public Prosecutions to the Supreme Court for a restraining order in respect of property at Glenelg Highway, Coleraine, in the said State in which the accused had an interest. That application was made pursuant to s. 16 of the Act.

11. On that day, Habersberger J. ordered that the accused be restrained, whether by himself or by his servants or agents or otherwise, from disposing of or in any other way dealing with the said property. His Honour further declared that, pursuant to s. 15(3)(a) of the Act, the aforementioned property be restrained in order that it will be available to satisfy any compensation order that may be made under the Sentencing Act 1991.

14. On 9 April 2002 a further ex parte application was made to this Court by the Director of Public Prosecutions, again under s. 16 of the Act, seeking a restraining order in respect of the Challenger Managed Investments Limited/Howard Mortgage Trust Account No SC064 in the name of Peter James Sypott and in which the accused had an interest. Beach J. ordered that pursuant to s. 18 of the Act, the accused and Peter James Sypott be restrained by themselves or their servants or agents or otherwise from disposing of or in any other way dealing with the said fund. Peter James Sypott is the accused's brother and was a joint beneficiary under the account.

17. The Court further declared pursuant to s. 15(3)(a) of the Act that the aforementioned property be restrained in order that it will be available to satisfy any compensation order that may be made under the Sentencing Act 1991. Liberty to apply on reasonable written notice was given to the applicant.

20. I observe from the transcript of the proceedings before Habersberger J. that his Honour contemplated that Mr Sypott could make application to the Court if he wished to have the order that his Honour had pronounced on 30 January 2002 varied or to have part of the property the subject of the order excluded from the order.

23. Mr Gray, who appears on behalf of the Director of Public Prosecutions on this application, has submitted that, by virtue of s. 14(5) of the Act the Court has no jurisdiction to accede to the application now made on behalf of the accused. Section 14(5) reads:

"A court, in making a restraining order, must not provide for the payment of legal expenses in respect of any legal proceeding, whether criminal or civil, and whether in respect of a charge to which the restraining order relates or otherwise."

27. It is therefore necessary to briefly refer to some of the provisions of the Act. Section 16 provides that the Director of Public Prosecutions may apply for a restraining order where a person has been charged with one of the categories of offences referred to therein. One category of offences is a forfeiture offence. Schedule 1 to the Act contains a list of forfeiture offences. The first category of forfeiture offences are indictable offences against the law of Victoria.

30. A restraining order is defined in s. 1 of the Act as meaning an order made under s. 18. The relevant part of s. 18, for the purposes of the present case, provides that a court must make a restraining order if the court is satisfied that the defendant has been charged with a forfeiture offence and considers that there are reasonable grounds for making the order and is satisfied if the order is being sought for a purpose referred to in s. 15(1)(e) of the Act that an order of the court under the Sentencing Act 1991, if made, is likely to exceed $10,000.

33. The orders made by Habersberger J. and Beach J. were made to ensure that the property would be available to satisfy any compensation order made pursuant to the Sentencing Act 1991 in the event that the accused was convicted of the charge which he is facing.

36. Section 14 of the Act, in sub-section (1), explains with precision what a restraining order is:

"A restraining order is an order that no property or interest in property, that is property or an interest to which the order applies, is to be disposed of or otherwise dealt with by any person except in the manner and circumstances (if any) specified in the order."

40. It can be seen from the provisions of the Act that the term "restraining order" has a specific meaning.

43. The application made by the accused is one made pursuant to s. 20 of the Act. The relevant portion of s. 20 reads:

"(1) If a court makes a restraining order against property under s. 18, any person claiming an interest in the property (including the defendant) may apply to that court for an order under section 21, 22 or 24."

"On an application made under section 20, where the restraining order has been made in relation to a forfeiture offence ... - (a) if the court is satisfied that the property in which the applicant claims an interest - (i) is not tainted property; and (ii) will not be required to satisfy any purpose for which the restraining order was made the court may make an order excluding the property from the operation of the restraining order; ..."

51. Mr Gray, on behalf of the Director of Public Prosecutions, submitted that by virtue of s. 14(5) no order could be made pursuant to s. 21 of the Act as it was clear from the correspondence which had passed between the legal representatives of the accused and the Director of Public Prosecutions and from para. 16 of the affidavit of Mr Noel John Kennedy sworn 21 February 2003 that the purpose for the present application was to obtain the release of sufficient assets to provide for legal expenses which would ensure that he was represented at his trial by counsel of his choice rather than by someone appointed by Victoria Legal Aid.

54. I should also refer to s. 26 of the Act which provides that when a restraining order has been made, the court may at a later time make such orders in relation to the property to which the restraining order relates as it considers just.

57. An order made pursuant to ss. 20, 21 or 26 is not a restraining order and the prohibition contained within s. 14(5) is not repeated in ss. 20, 21 or 26 of the Act nor do I see any basis for its implication in any of these provisions.

60. Mr Gray referred me to s. 143 of the Act. This provision comes into operation where a restraining order has been made and the accused as a result of the restraining order does not have sufficient assets that are unencumbered to enable him to pay for the full cost of legal assistance from a private practitioner. In circumstances where the accused cannot gain access to any of their assets pursuant to any provision of the Act the court may make an order pursuant to s. 143 that Victoria Legal Aid provide legal assistance. In my view s. 143 provides no assistance in determining the scope of the prohibition contained in s. 14(5) of the Act.

63. Written submissions were furnished to the Court on behalf of the accused, which I have found helpful. In those submissions reference was made to the decision of the South Australian Full Court in Director of Public Prosecutions v Duggan.[1] The South Australian legislation is markedly different to the Victorian Act as the court is expressly empowered to make an order for payment of legal expenses out of restrained property. The Full Court drew attention to the fundamental principle that a person accused of a crime is entitled to employ out of his own resources the legal representation of his choice.[2] The Full Court also referred to the case of Director of Public Prosecutions v Vella[3] and the judgment of Kirby P., as he then was, in Director of Public Prosecutions v Saxon.[4] I was also referred to the decision of Director of Public Prosecutions v King[5] where O'Keefe J., after referring to s. 45 of the New South Wales Confiscation of Proceeds of Crime Act 1989, which is similar terms to s. 26 of the Victorian Act, observed:

"... The Act establishes a scheme for the making of orders depriving persons of rights of property, rights which the law recognises and protects. As Kirby A-CJ pointed out in Director of Public Prosecutions v Logan Park Investments Pty Ltd (1995) 37 NSWLR 118 at 125: '... The right to own and to control property is an important civic right in a society such as ours. Indeed, it is an attribute of economic liberty. The ownership of property is recognised in the Universal Declaration of Human Rights. Article 17 provides: "17.1 Everyone has the right to own property alone as well as in association with others. 2 No-one shall be arbitrarily deprived of his property." Although these provisions are not, as such, part of Australian municipal law, they reflect fundamental principles of the law of civilised countries including principles upheld by the common law in Australia.' Statutes providing for the forfeiture of property have conventionally been construed strictly: Murphy v Farmer [1988] HCA 31; (1988) 165 CLR 19 at 27. Such an approach to their construction applies to such statutes generally and not just to those provisions under which the ultimate forfeiture is made." I adopt such an approach to the construction of this statute.

67. Provisions such as ss. 20 and 21 of the Act are not uncommon. These provisions provide relief against forfeiture which has typically been regarded as being beneficial and protective of the rights of individuals. Such provisions should not be construed narrowly.[6]

70. I was informed that ss. 14, 18, 20 and 21 of the Act have not been the subject of judicial consideration and my brief researches confirm this.

73. I was referred to the unreported decision of Gillard J. in Whyte & Victoria Legal Aid v Office of Public Prosecutions.[7] In that case his Honour considered an application on behalf of Victoria Legal Aid for access to the assets of an accused which were the subject of an existing restraining order. Although his Honour ultimately concluded that he should refuse the application for reasons which are irrelevant for present purposes, his Honour's judgment is predicated upon the assumption that he had jurisdiction to grant such an application if he saw fit. Victoria Legal Aid claimed an interest which gave it standing under s. 20 of the Act.

76. The rights conferred by ss. 20 and 21 of the Act are not fettered in the way in which Mr Gray on behalf of the Director has contended. The purpose of s. 14(5) is to ensure that when the court makes the initial restraining order, it does not attempt to make provision for the payment of legal expenses. Pursuant to s. 14(4) of the Act, the court when making a restraining order may make provision for reasonable living expenses and reasonable business expenses of the accused. It was clearly Parliament's intention that a court when making a restraining order which might make provision for such expenses, should not make provision for legal expenses.

79. I was referred to the second reading speech of the then Attorney-General who referred to the difficulties that can arise where the Director of Public Prosecutions, as a party to the application for a restraining order, may become involved in the determination of how much money a defendant needs to properly conduct a defence. The Attorney-General also expressed concern that the legislation which then existed permitted restrained property to be dissipated through legal expenses and referred to a Queensland case where a defendant had been given access to restrained assets which were then exhausted in payment of legal expenses. The Attorney-General expressed the view that there was no reason why a defendant "should receive a benefit from the crime in the form of a Rolls Royce defence funded by illegally-acquired property". This was clearly a reference to the use of assets which had been acquired with the proceeds of crime. Those were the reasons which the Attorney-General expressed for the inclusion of sub-s. 5 of s. 14 of the Act. It is not clear from the Attorney-General's remarks that such a prohibition was intended when an application is subsequently made for exclusion of assets from a restraining order. In any event the provisions enacted do not have such an effect.

82. Sections 20 and 21 of the Act are concerned with applications by a person who claims an interest in the property (in this case the accused) for property to be excluded from the restraining order. Section 21 expressly provides that an order cannot be made unless the court is satisfied that the property to be excluded will not be required to satisfy the purpose for which the restraining order was made. In this case, no order can be made excluding property until such time as it is demonstrated to the satisfaction of the court that sufficient property will remain restrained and available to satisfy any compensation order that may be made under the Sentencing Act 1991 so that the purpose for which the restraining order was made will be achieved. In the case where the property restrained is said to be tainted it may be that no property can be excluded, but this is not such a case.

85. For these reasons, I reject the submission that the scheme of the legislation prohibits an application pursuant to ss. 20 and 21 of the Act of the sort that is presently before me.

88. Given the consequences of an exclusion order under s. 21 of the Act and the requirement that the Court must be satisfied that sufficient property remains restrained to ensure that the purpose of the restraining order is achieved, it is necessary for all those parties who have an interest in that property - which includes a party who might be the subject of a compensation order - to be given proper notice of the application.[8] Section 20, sub-section (2) of the Act provides that an applicant:

"... must give notice of the application and of the grounds on which it is made - (a) to the applicant for the restraining order; and b) to any other person whom the applicant has reason to believe has an interest in the property." Gillard J. in the decision of Whyte & Victorian Legal Aid v Office of Public Prosecutions[9] was of the view, with which I agree, that no application should be made to vary an existing restraining order without notice being given to those who might be affected by an order varying the original order such as those parties who may seek compensation under the Sentencing Act 1991.

92. I will therefore hear argument as to how the matter should proceed in the light of those observations.

[1] [1996] SASC 5546; (1996) 66 SASR 538 at 543.

[2] See observations of Gleeson CJ. and Kirby P. in New South Wales Crime Commission v Fleming (1991) 24 NSWLR 116 at 124 and 136.

[3] [1993] SASC 4353; (1993) 61 SASR 379.

[4] (1992) 28 NSWLR 263.

[5] [2000] NSWSC 394; (2000) 49 NSWLR 727.

[6] See Minister for Lands and Forests v McPherson (1990) 22 NSWLR 687 at 699; Director of Public Prosecutions v Logan Park Investments Pty Ltd (supra) at 127; Director of Public Prosecutions (New South Wales) v King (supra) at 736.

[7] [2002] VSC 130.

[8] See s. 20(2) to which I have referred.