Interim Restraining Orders
The Victorian Court of Appeal recently handed down its decision in Navarolli v DPP [2005] VSCA 323. The Court of Appeal determined that persons whose property is sought to be restrained by the DPP under the Confiscation Act 1997 (Vic) (Confiscation Act) are entitled to be heard on the making of the restraining order.
As a result of Navarolli, the practice of the DPP in obtaining restraining orders has changed. An interim restraining order is now sought by the DPP ex parte. The interim restraining order is made for a limited period only and, on its return date, persons with an interest in restrained property are entitled to make submissions in relation to the continuation of the interim restraining order.
Where an interim restraining order is made in the County Court (as is most common), the return date will usually be a Tuesday. Approximately 12 months ago the County Court established a special Confiscation List which sits from 9.30 am every Tuesday.
If the continuation of the interim restraining order is to be contested, it will, in all likelihood, not be heard on its return date. The Confiscation List is primarily a directions list. Due to the large number of matters in that list the Court will generally refer contested applications into the Causes List.
It must be remembered that the threshold which the DPP is required to establish in order to obtain a restraining order is relatively low. However, despite that there may be matters which can be submitted, particularly on behalf of third parties (being persons other than the alleged offender), which would cause the Court not to continue the interim restraining order over third party interests in property.
In the context of a Schedule 2 (automatic forfeiture) offence, one obvious advantage of challenging the continuation of an interim restraining order is that, if challenged successfully, there will be no need to bring an application for exclusion under section 20 of the Confiscation Act.
Conviction after death
The Confiscation Act contains, at sections 4 and 5, the mechanism by which a person may be convicted of an offence after their death and without a criminal trial. The conviction is for the purposes of the Confiscation Act only. The conviction forms the basis upon which the DPP can seek forfeiture of restrained property or by which automatic forfeiture of restrained property may occur.
In the case of Re Shield [2006] VSC 59 the late Mr. Shield had been charged with trafficking in a commercial quantity of cannabis but died before he was committed to stand trial.
In order to obtain a conviction, the Court had to determine whether the evidence against Mr. Shield was of sufficient weight to support a conviction for the offence charged.
Habersberger J. considered the degree of proof which was required to satisfy that test. Was it to be decided on the balance of probabilities or beyond reasonable doubt or on some other basis? Ultimately, as a result of the strength of the evidence against the late Mr. Shield, Habersberger J. was not required to finally determine the matter. However, in His Honour’s judgment he indicated that the test to be employed is the same test as is used by a magistrate in committing a person to stand trial.
Did you know?
Extent of power to restrain
There is a common misconception that the DPP can only restrain “tainted property”. In fact, the DPP is entitled, under section 16 of the Confiscation Act, to restrain property which is either “tainted property” or property in which the defendant has an “interest”. The expression “interest” is broadly defined and includes property which is under the effective control of the defendant.
30 days to make application
Section 20(1A) of the Confiscation Act requires that an application for exclusion of property is made within 30 days of the date on which notice is given of the making of the restraining order.
In light of the recent decision in Navarolli, it is yet to be determined whether the 30 day time period starts to run from the date on which the interim restraining order is made or the date on which the interim restraining order becomes permanent.
Which version of the Confiscation Act applies?
The Confiscation Act was significantly amended with effect from 1 January 2005.
Where an application for exclusion was made prior to 1 January 2005, Reprint 3 of the Confiscation Act applies. Where the application for exclusion is made on or after 1 January 2005, Reprint 4 of the Confiscation Act applies.
The distinction is particularly relevant in the context of an exclusion application brought by a defendant if the offence is a Schedule 2 (automatic forfeiture) offence. The test for exclusion in those circumstances changed on 1 January 2005.
Selling restrained property
A restraining order prevents persons from dealing with the restrained property. If, for example, a house is restrained over which there is a mortgage, it may be beneficial to persons asserting an interest in the house to obtain the DPP’s permission to sell the house. Upon sale, the mortgagee is paid out and the net proceeds of sale are paid to the Asset Confiscation Office until the determination of the confiscation proceedings. As a result, the requirement to make mortgage repayments ceases and the equity in the house is preserved.
The alternative is that mortgage repayments must be maintained in the context where there is a risk that the house may ultimately be lost to the State.
