On 24 February 2012, the Court of Appeal (Redlich and Mandie JJA and Kyrou AJA) delivered the decision in Lemoussu v DPP.
The decision concerns the time by which an application for exclusion must be made under the Confiscation Act.
The Court determined that there are two separate opportunities for an applicant for exclusion to obtain an exclusion order in respect of restrained property.
The first opportunity arises by making application for exclusion within 30 days of the service of the restraining order, save that the Court has the ability to extend the time for making an exclusion application where it is just to do so. As to the principles governing an extension of time, see Finn v DPP [2011] VSC 234 and Pham v DPP (Warren CJ, unreported, 25 October 2011).
The second opportunity arises after conviction and, in that case, the time limits for making such application for exclusion are governed by section 35 of the Confiscation Act. That section provides that an application for exclusion can be made within 60 days after the date of conviction. Based on the reasoning of the Court of Appeal in Lemoussu, it would appear that an applicant for exclusion can file an application seeking an exclusion order between the date of conviction and 60 days thereafter without the need to obtain an extension of time under section 20(1B) of the Confiscation Act.
Until the decision in Lemoussu, the courts and practitioners had proceeded on the basis that, where an application for exclusion had not been made within 30 days of the service of the restraining order, it was necessary to obtain an order extending time for the filing of an application under section 20(1B) of the Confiscation Act.
Although the decision in Lemoussu will avoid the need to obtain orders extending time where an application for exclusion is filed between the date of conviction and 60 days thereafter, practitioners should be careful to accurately calculate that time period. That is so because, for the purposes of the Confiscation Act, a defendant who pleads guilty is deemed to be convicted at the time of the arraignment, which may be some time prior to the plea and sentence; see DPP v Nguyen and DPP v Duncan [2009] VSCA 147.
In the author’s view, it is still preferable to file an exclusion application as soon as possible, even if that requires an application for an extension of time, since it will minimise the risk of filing an application after automatic forfeiture has already occurred and because, based on the principles set out in Finn v DPP, it is now relatively easy to obtain an order extending time.
