The final word – High Court determines DPP v Le
On 14 November 2007, the High Court (Gleeson CJ, Gummow, Kirby, Hayne and Crennan JJ) handed down the decision in DPP v Phan Thi Le [2007] HCA 52.
As a result of amendments made to the Confiscation Act, which became effective on 26 September 2007, the decision of the High Court is unlikely to have any significant impact on confiscation proceedings in Victoria.
The key issue on the appeal was whether a successful applicant for exclusion could obtain an exclusion order of the whole of the restrained property or only of the applicant’s interest in the restrained property.
The Court of Appeal (Maxwell P and Chernov J; Neave J dissenting on that point) had earlier determined that an applicant for exclusion was entitled to obtain an exclusion order in respect of the whole property and not only the applicant’s interest in the relevant property.
The majority of the High Court (Gleeson CJ, Kirby and Crennan JJ; Hayne and Gummow JJ dissenting) determined that an applicant for exclusion was only entitled to obtain an exclusion order of their particular interest in property.
In any event, from 26 September 2007, the Confiscation Act was amended so as to provide that exclusion orders are limited to the applicant’s interest in property only.
Costs and proceedings under the Confiscation Act
On 19 November 2007, Osborn J handed down a cost ruling in the matter of DPP v Loo [2007] VCS 437.
The ruling gives further guidance on the interpretation of s.133A of the Confiscation Act. That section places limits on the award of costs in confiscation proceedings.
In DPP v Loo, the DPP sought costs after successfully opposing an application by a third party to set aside part of a restraining order. The hearing before Osborn J was essentially a rehearing of the application for the restraining order inter partes.
Despite the fact that the DPP succeeded in maintaining the restraining order, Osborn J found that he had no power to award costs to the DPP. That finding was based on the fact that his Honour categorized the proceeding as a proceeding under s.133A(2) of the Confiscation Act (namely a proceeding to prevent a restraining order being made against property). Since s.133A does not provide for costs orders to be made in favour of the DPP and because the limitation on the award of costs in s.133A(1) applies to any proceeding which falls within the ambit of s.133A, the Court had no power to award costs.
Forfeiture and hardship suffered by third parties
On 1 November 2007, Kellam J (as he then was) handed down a decision in DPP v Gyurcsik [2007] VSC 424.
In that case, the DPP sought a forfeiture order under s.32 of the Confiscation Act in respect of the defendant’s half interest in a property which had been used to cultivate cannabis.
The offender was the registered proprietor, as tenant in common, with his mother. Each held a half interest in the property, which had been in the family for over 20 years.
The property, a farm, was occupied by the defendant, his wife, children, his mother and other family members. The Court accepted that only defendant was involved in and had knowledge of the offending.
The Court refused to order forfeiture. In his reasoning, Kellam J (as he then was) placed significant reliance on the fact that many innocent third parties would suffer hardship if a forfeiture order was made. His Honour categorized the question to be determined as follows:
The question is whether or not, having regard to the particular circumstances of the case, it would be fair, or would cause unacceptable hardship if forfeiture was ordered. …
Taking into account the need for deterrence, were it the case that the respondent was the sole occupant and proprietor of the property there would be much to be said in favour of the case advanced by the [DPP].”
The case provides a succinct discussion of the key authorities relevant to forfeiture applications.
