DPP v Nguyen
DPP v Duncan
On 7 August 2008, Justice Smith handed down his decision in DPP v Nguyen & DPP v Duncan [2008] VSC 292.
The judgment concerns the DPP’s applications for judicial review of decisions made by Judge McInerney refusing to strike out certain exclusion applications made under s.20 of the Confiscation Act.
Facts
In each case in the Court below Judge McInerney had found that the relevant defendant was not convicted for the purposes of the Confiscation Act on the date on which the defendant was arraigned, the allocutus was put and the plea date was fixed.
The date of conviction in each case was critical since, under s.35 of the Confiscation Act, automatic forfeiture takes place on the 60th day after conviction and, thereafter, a defendant cannot make application for exclusion of property.
Held
Justice Smith made the following observation in considering whether convictions had occurred:
The test in all cases is whether the conduct relied upon, considered in all the circumstances, indicates unequivocally that the accused has been found guilty and it is conceivable that there may be cases where a “remand” order is made where that may not be so – for example, the term might be used inappropriately. For present purposes, however, I will assume that, as a matter of law, where a person has pleaded guilty and the person has been remanded for plea and sentence or sentence, that act provides an unequivocal indication that the accused has been found guilty.
[Underlining added]
However, in finding against the DPP, Justice Smith stated that, on the facts of Nguyen & Duncan, the conduct of arraigning, the putting of the allocutus and the fixing of the pleas, were not unequivocal acts consistent only with a conviction because:
- Those acts occurred on a listing day in the Criminal List and not before the trial judge;
- The putting of the allocutus in that context can be seen as a procedural step taken before moving on to explore the management of the trial process;
- No remand order was made.
Therefore, when attempting to ascertain whether a defendant has been convicted, it is critical to consider the factual matrix to see whether there has been an unequivocal indication that an accused has been found guilty.
Despite the observations of Justice Smith, it is prudent and good practice to file applications for exclusion as early as possible. In any event, s.20(1A) of the Confiscation Act requires that exclusion applications are filed within 30 days of the date on which restraining orders are made.
