Australian Capital Territory v McDowall

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

Australian Capital Territory v McDowall

Citation:

[2017] ACTMC 6

Hearing Date(s):

30 March 2016

DecisionDate:

8 February 2017

Before:

Magistrate Morrison

Decision: 

See [18]

Category:

Principal Judgment

Catchwords: 

CIVIL LAW – objection to confirmation of provisional restitution order under Victims of Crime (Financial Assistance) Act 1983 (ACT)

Legislation Cited:

Sentencing Act 1991 (Vic), s 85B
Victims of Crime (Financial Assistance) Act 1983 (ACT), ss 54, 59

Cases Cited:

Australian Capital Territory v Shaor [2017] ACTMC 1
Rodney Kelly (a pseudonym) v R1 (a pseudonym) and Ors [2016] VSCA 90

Parties:

Australian Capital Territory (Applicant)
Keith McDowall (Objector)

Representation:

Counsel
Ms C Warden (Applicant)
Mr C Painter (Objector)

Solicitors
ACT Government Solicitor (Applicant)
Snedden Hall & Gallop Lawyers (Objector)

File Number:

AP 81 & 82 of 2015

MAGISTRATE MORRISON:

1. On 16 October 2015 and 21 October 2015 the Deputy Registrar of this Court made provisional orders under s54 of the Victims of Crime (Financial Assistance) Act 1983 (ACT); each order requiring Keith McDowall to pay the Territory the sum of $50,000.00. Mr McDowall filed a notice of objection to each order.

2. The objections were heard together.  The evidence comprised 2 affidavits by Mr McDowall, and one by Ms Sherman, the lawyer representing the Territory, as well as an extract of the transcript of the sentencing proceedings for Mr McDowall.  Mr McDowall was not required for cross examination and no other evidence was received at the hearing.

3. In my reasons for decision in the matter of Australian Capital Territory v Shaor [2017] ACTMC 1 published on 8 February 2017 I set out my conclusions on some of the decision making criteria to be applied in dealing with objections to provisional orders. I rely upon the conclusions reached on decision making criteria in those reasons without repeating them here.

4. Mr McDowall’s circumstances differ from those of most convicted persons who object to provisional orders, in that he has assets. 

5. The main asset comprises his interest as sole proprietor of a residential unit in Victoria.  Mr McDowall does not express any opinion as to its value in his affidavits and he was not required for cross examination to be asked what he believed its value to be.  Mr McDowall’s affidavit of 15 March 2016 makes reference to a range of expenses and annexes some accounts.  I note that one of them is for rates and that the rates notice refers to the property having what is described as a “capital improved value” of $235,000.00.  There is no evidence before me as to the source of that assessment, when it was made or what relationship it bears to the property’s market value. 

6. The affidavit filed by Ms Sherman indicates that a sale of the property in the year 2011 is recorded on some website as having taken place for a price of $241,200.00.  The evidence does not demonstrate the source of the information available via that website.  It is possible that the source is the…