ACT Director of Public Prosecutions v Xuan Cuang Can
[2019] ACTSC 164
•21 June 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Director of Public Prosecutions (ACT) v Can |
Citation: | [2019] ACTSC 164 |
Hearing Date: | 21 June 2019 |
DecisionDate: | 21 June 2019 |
ReasonsDate: | 26 June 2019 |
Before: | Mossop J |
Decision: | See [10] |
Catchwords: | CRIMINAL LAW – CONFISCATION OF CRIMINAL ASSETS – Meaning of “restricted access proceedings” in the Confiscation of Criminal Assets Act 2003 (ACT) – whether the order made by the primary judge to close the court and not issue notices to the defendant continued to apply to subsequent confiscation proceedings |
Legislation Cited: | Confiscation of Criminal Assets Act 2003 (ACT), ss 236(1), 243, 243(1), 243(2), 243(3), 243(5), 244, 245, Pt 7 |
Parties: | ACT Director of Public Prosecutions (Plaintiff) Xuan Cuong Can (Defendant) |
Representation: | Counsel S Pobihun (Plaintiff) M Kukulies-Smith (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Plaintiff) Kamy Saeedi Law (Defendant) | |
File Number: | SC 277 of 2018 |
MOSSOP J:
Introduction
On 20 June 2018, a judge of the Supreme Court (the primary judge) made a restraining order under the Confiscation of Criminal Assets Act 2003 (ACT) (COCA Act) in relation to certain property of the defendant. The first order made on that day was:
1. That pursuant to section 243 of the Confiscation of Criminal Assets Act 2003 (“the Act”), these proceedings be restricted access proceedings held in closed court without notices being given to the Defendant.
On 4 June 2019, following the defendant’s conviction, the ACT Director of Public Prosecutions (DPP) filed an application for a penalty order under Pt 7 of the COCA Act. The first order sought in that application was:
1.That order 1 of the [primary judge] within the General Form of Order dated 20 June 2018 does not apply to this confiscation proceeding or any further hearing in the proceeding.
On 21 June 2019, I refused to make that order and indicated that I would give my reasons for doing so. These are my reasons.
The relevant statutory provisions are as follows:
236 Meaning of confiscation proceeding
(1)In this Act:
confiscation proceeding means a proceeding in a relevant court in relation to any of the following orders under this Act:
(a)a restraining order;
(b)an additional order under section 39 in relation to a restraining order or restrained property;
(c)a conviction forfeiture order;
(d)an order under section 59 (Automatic forfeiture—court order declaring property automatically forfeited);
(e)an order under section 60 (Automatic forfeiture—court orders);
(f)a civil forfeiture order;
(g)an exclusion order;
(h)a penalty order;
(i)an order under section 105 (Order to stop sale, modification or destruction of restrained property);
(j)an order under section 113 for the discharge of a registered property interest in forfeited property;
(k)an order under division 9.4 (Sale of jointly owned forfeited property);
(l)a return or compensation order;
(m)a monitoring order;
(n)a transaction suspension order;
(o)a production order;
(p)an examination order;
(q)a buyback order;
(r)an order under section 239 (2) (c) or section 240 (2) to transfer a proceeding to another court;
(s)an additional order under section 250 (Confiscation proceedings—additional orders);
(t)an order under this Act in relation to an order mentioned in paragraphs (a) to (s), whether made before, at the same time, or after the making of that order.
Examples for par (t)—general
1an order under section 24 to set aside a dealing with restrained property
2an order under section 35 restricting the disclosure of the making of a restraining order
3an order under section 49 extending the operation of a restraining order
4an interlocutory order in relation to an order mentioned in paragraphs (a) to (s)
Examples for par (t)—additional orders under s 39 and s 250
1 see the examples to s 39 (1) for examples of additional orders in relation to restraining orders and restrained property
2 see the examples to s 250 (1) for examples of additional orders in relation to other confiscation proceedings
(2)However, a confiscation proceeding does not include—
(a)a registered corresponding law order that is taken to be a kind of order mentioned in subsection (1); or
(b)a proceeding under part 11 (Interstate orders).
243 Restricted access proceedings—notice of applications etc
(1)This section applies to a confiscation proceeding for any of the following orders (a restricted access proceeding):
(a)a restraining order;
(b)an application by the DPP or public trustee and guardian for an additional order under section 39 in relation to a restraining order or restrained property;
(c)an order under section 49 (Extension of time for restraining orders) that a restraining order—
(i) is to remain in force for a stated period (or as stated in the order); or
(ii) that has ended is to be revived for a stated period (or as stated in the order);
(d)a monitoring order;
(e)a transaction suspension order;
(f)a production order (other than an application to vary a production order under section 162);
(g)an examination order.
(2)An application to begin a restricted access proceeding may be made to a relevant court without notice to the person against whom the relevant order is sought.
(3)If an application is made to begin a restricted access proceeding without notice to the person against whom the relevant order is sought, the applicant is the only party to the application.
(4)If notice is given to the person against whom the order is sought, the person is entitled to appear and to present evidence at the hearing of the application, but the person’s absence does not prevent the court from making the order.
(5)The relevant court must hold a restricted access proceeding in closed court if the applicant asks and may give directions about who may be present.
244 Other confiscation proceedings—notice of applications etc
(1)This section applies to an application to a relevant court to begin a confiscation proceeding (other than a restricted access proceeding mentioned in section 243) or to amend such an application.
Note 1No notice of the application is required for a restricted access proceeding (see s 243 (2)).
Note 2In particular, no advance notice to anyone is required of the application for the order, and the application may be heard in closed court, without the offender or the public being present (see s 243).
Note 3Related confiscation proceedings are taken to be an interlocutory application and started in accordance with the procedure of the relevant court (see s 245).
(2)The applicant must give written notice of the application to each of the following people, if applicable (a notifiable person):
(a)if the application is made by the DPP—the person in relation to whom the order is sought;
(b)if the application is made by someone else—the DPP;
(c)if the public trustee and guardian has been directed to take control of the property—the public trustee and guardian;
(d)anyone else the applicant believes may have an interest in the property or benefits that are the subject of the proceeding (or, for forfeited property, may have had an interest in the property or benefits immediately before the property was forfeited).
(3)Notice of the application must include a statement of the grounds for the application.
(4)If a notifiable person proposes to oppose the application, the notifiable person must give the applicant written notice of the grounds on which the application will be opposed.
(5)However, the court may waive the requirement to give written notice of the application to a notifiable person if the person is present in the court when the application is made.
(6)The court may direct the applicant give notice of the application to anyone and may give directions about how the notice is to be given.
(7)A notifiable person, and anyone else who claims an interest in the property or benefits, is entitled to appear and to present evidence at the hearing of the application, but the person’s absence does not prevent the court from making an order.
245 Applications for another confiscation proceeding in relation to same offence
After the beginning of a confiscation proceeding in relation to a particular offence, any other confiscation proceeding in relation to the same or a related offence—
(a)is taken to be an interlocutory application in relation to the first proceeding; and
(b)may be started in accordance with the procedure of the relevant court.
In the present case a restraining order had previously been made. At that point the proceedings were clearly restricted access proceedings.
I observe that most of the order made by the primary judge (undoubtedly at the request of the DPP) went beyond what was required by s 243. Two aspects of the order were unnecessary:
(a)First, the terms of the order suggest that it is necessary for the court to make an order that the proceedings “be” restricted access proceedings. That is not the case. The proceedings are or are not “restricted access proceedings” depending upon whether they fall into one of the categories of “confiscation proceeding” set out in s 243(1). No order is required to make them restricted access proceedings.
(b)Second, the order makes reference to the absence of notice to the defendant. It is not necessary for the court to make an order to permit the proceedings to be brought without notice to the defendant. The statute itself gives that entitlement in s 243(2). The section appears to make the decision about whether or not to give any notice of the proceedings a decision of the applicant rather than the court. It is possible that there remains some residual capacity in the court to compel notice of a proceeding to be given. (It is not necessary to express any concluded view on that issue for present purposes.) If it was open to compel the giving of notice then an order would be necessary. However, no order was necessary in order to proceed without notice because that is what is expressly authorised by s 243(2)-(3).
The only aspect of s 243 which requires the making of an order is the closing of the court which is necessary to give effect to the mandatory terms of s 243(5).
Having regard to the fact that the order was made in the terms that it was, it is necessary to consider whether the order sought by the plaintiff disapplying it should be made.
Section 243 has a limited scope of operation. It only applies to “restricted access proceedings”. Those are a subset of “confiscation proceedings”. Confiscation proceedings are defined in s 236(1). For present purposes, it is notable that while an application for a restraining order is a restricted access proceeding, an application for a penalty order is not. Section 245 provides that after the beginning of a confiscation proceeding, any other confiscation proceeding in relation to the same or a related offence “is taken to be an interlocutory application in relation to the first proceeding”. That provision exists because the definition of confiscation proceeding includes a range of different possible applications under the COCA Act, and, in the usual case, there will need to be a number of different such applications arising out of a single criminal charge or set of criminal charges. The section removes the possibility that each of those needs to involve the commencement of a new set of proceedings and permits all applications arising out of a single offence or set of offences to be dealt with on a single file retaining some coherence, notwithstanding the variety of applications that may be made. Section 245 does not mean that all subsequent applications are taken to be interlocutory applications in a “restricted access proceeding” where such a proceeding is the first one brought arising out of an offence or set of offences. If that was the case, then the scope of s 243 would be dramatically expanded. Such an expansion would be inconsistent with the delineation in ss 243 and 244 between restricted access proceedings and other proceedings, because it would mean that proceedings which require notice under s 244 would be deemed by s 245 to be the continuation of restricted access proceedings under section 243 for which no notice was required.
As a consequence, the order made by the primary judge did not continue to apply to subsequent confiscation proceedings seeking a penalty order because proceedings for a penalty order are not restricted access proceedings and s 245 does not have the effect that they are deemed to be restricted access proceedings. It was therefore unnecessary to make any order in order to permit the proceedings to be conducted in open court or with notice to the defendant and it is for that reason that I declined to make the order sought.
| I certify that the preceding ten [10] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 15 November 2019 |
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Amendments
| 26 June 2019 | At [10] insert “not” after “s 245 does” and before “have the effect” | Paragraph: [10] |
| 15 November 2019 | At Case Title delete “ACT Director of Public Prosecutions v Xuan Cuang Can” and insert “Director of Public Prosecutions (ACT) v Can” | Case Title |
| 15 November 2019 | At Parties delete “Cuang” and insert “Cuong” | Parties |
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