On 12 April 2011, the Court of Appeal (Nettle and Mandie JJA and Hargrave AJA) dismissed the DPP’s appeal from the orders of the trial judge. Kaye J had made an order excluding a motor vehicle from a restraining order.
The key issue in the appeal was whether Kaye J erred in finding that the offender, Rizzo, was not in effective control of a motor vehicle.
In short, the motor vehicle was owned by the company, 24th Trengganu Pty Ltd, but driven almost exclusively by Rizzo, an employee of the company. The evidence was to the effect that although Rizzo had almost exclusive possession of the motor vehicle, he did surrender it at times when requested to do so by the company and was not in a position to agree to a sale of the motor vehicle without his father’s consent (who controlled the company).
Importantly, the Court of Appeal approved the test applicable when determining “effective control” as set out by Kaye J in DPP v Ferguson [2006] VSC 484, where his Honour stated:
“The whole scheme of the Act is to treat as the owner of property those who, in reality, exercise a fundamental incident of ownership, namely, the practical control of property. Accordingly, the question of whether the defendant has the effective control of property involves an examination of the actual practical exercise, or capacity to exercise, by the defendant of rights over the property in question, such as the right to possess, use, sell, mortgage, make fundamental improvements to, and exclude others from possession of, the items of property in question.”
Since the company’s interest in the motor vehicle was its legal interest as owner thereof and as Rizzo was not able to control the sale of the vehicle, the Court determined that the company had rightly demonstrated that Rizzo was not in effective control of its interest (as opposed to the vehicle). That being so, the appeal was dismissed.
The decision again highlights the need, when analysing the effective control test, to determine firstly the nature of the interest which the applicant for exclusion has and secondly whether the defendant is in effective control of it.
