Effective Control – but when?
An applicant to an exclusion application under s.20 of the Confiscation Act 1997 (Act) must satisfy the Court that the applicant’s interest in the property sought to be excluded is not subject to the effective control of the defendant.
Interestingly, the Act expressly states “is not” rather than “was not”, whilst the rest of the exclusion tests in s.21 and s.22 of the Act are expressed in the past tense.
The question which arises is whether the absence of effective control must be demonstrated at the time of the hearing of the exclusion application or at some earlier time, such as the time that the offending occurred or the restraining order was obtained.
There are differing views on this issue. In two very recent decisions of the County Court of Victoria, being DPP v Panagos, Judge Stott, 5 April 2006 and DPP v Do & Le, Judge Dyett, 7 July 2006, judicial comments favour the view that the time of assessing effective control is the time of the hearing of the exclusion application.
However, the cases of Logan Park Investments v DPP (Cth) 122 FLR 1 and Gray v Official Trustee in Bankruptcy (1991) FCR 166, which dealt with non-Victorian confiscation legislation, suggest that effective control is to be assessed at the time of the offending.
Unfortunately, the leading Victorian authority on effective control, DPP v Loo [2002] VSC 231, is of no assistance because that case dealt with effective control for the purposes of a declaration under s.70 of the Act and, under that section, the Act expressly provides that the time of assessment of effective control is the time of the making of the restraining order.
For the time being, there are persuasive arguments that can be employed to argue either way. Because this is a fundamental issue in the interpretation of the Act, this issue will eventually be determined by a superior Victorian Court.
