JUDGE:	Richards J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 February 2022
DATE OF JUDGMENT:	9 February 2022
CASE MAY BE CITED AS:	Cao v Collister
MEDIUM NEUTRAL CITATION:	[2022] VSC 36

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ADMINISTRATIVE LAW – Judicial review – Plaintiff charged with trafficking heroin – Restraining order granted over plaintiff’s home under Confiscation Act 1997 (Vic) – Plaintiff pleaded guilty and was convicted and sentenced by Magistrates’ Court – Confiscation Act 1997 (Vic) provides for automatic forfeiture of restrained property on conviction of trafficking offence – Appeal to County Court against conviction and sentence lodged 699 days out of time – Judge found no exceptional circumstances and material prejudice to the prosecution case due to delay – Judge struck out appeal – Whether further evidence admissible on judicial review – Whether judge erred in finding no exceptional circumstances – Whether judge failed to recognise plaintiff failed to receive legal representation – No error established – Proceeding dismissed – Criminal Procedure Act 2009 (Vic), ss 254, 255, 263 – Confiscation Act 1997 (Vic), ss 18, 35.

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Ms K Farrell	Lanham Lawyers
For the First Defendant	Mr N Hutton	Abbey Hogan, Solicitor for Public Prosecutions
For the Second Defendant	No appearance

HER HONOUR:

On 15 March 2017, police executed a search warrant at Mai Cao’s home in Ardeer. The items seized during the search included a bag containing a block of a white chalk-like substance, which was found in the lounge room. Ms Cao was arrested and interviewed, with the assistance of a Vietnamese interpreter, in relation to trafficking heroin. Ms Cao denied knowing anything about the substance found in her lounge room, and said that it must have belonged to her husband — who was at that time serving a sentence of imprisonment for trafficking heroin. She was charged with offences including trafficking a drug of dependence, namely heroin, contrary to s 71AC of the Drugs Poisons and Controlled Substances Act 1981 (Vic).

Soon after Ms Cao was charged, the Director of Public Prosecutions applied to the County Court for a restraining order under s 18 of the Confiscation Act 1997 (Vic), in relation to the Ardeer property. A restraining order was made by Judge Lacava on 11 April 2017. Ms Cao instructed Anh Liang of Giorgianni & Liang Lawyers in relation to the confiscation proceeding. In May 2017, Giorgianni & Liang filed an application by Ms Cao for exclusion from the restraining order, under s 20 of the Confiscation Act. The application was stayed pending finalisation of the criminal charges.

The criminal charges were dealt with at the Magistrates’ Court at Sunshine on 25 May 2018. Ms Cao was represented by Sophie Brooks-Miller of Richard Revill Lawyers, the solicitors she had instructed in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Cao v Collister

Details

AGLC: Cao v Collister [2022] VSC 36
Case: [2022] VSC 36
Decision Date: 9 February 2022

CaseChat Overview and Summary

The plaintiff, Cao, was convicted and sentenced by the Magistrates' Court for trafficking heroin. Following his conviction, a restraining order was granted over his home under the Confiscation Act 1997 (Vic). Cao appealed against his conviction and sentence to the County Court, but the appeal was lodged 699 days out of the statutory time limit. The County Court judge dismissed the appeal, finding no exceptional circumstances and no material prejudice to the prosecution due to the delay. Cao subsequently sought judicial review of the County Court's decision.

The primary legal issues were whether further evidence could be admitted in the judicial review proceeding, whether the judge erred in finding no exceptional circumstances, and whether the judge failed to recognise that the plaintiff did not receive legal representation during the appeal process. The court considered these issues in the context of the relevant statutory provisions, specifically sections 254, 255, and 263 of the Criminal Procedure Act 2009 (Vic) and sections 18 and 35 of the Confiscation Act 1997 (Vic). The court found that no error was established in the County Court's decision, as the delay in lodging the appeal was significant and there were no exceptional circumstances or material prejudice to the prosecution. The court also noted that the failure to receive legal representation did not constitute exceptional circumstances.

The court concluded that the County Court's decision to dismiss the appeal was correct, and no further evidence was admissible in the judicial review proceeding. The court held that the judge properly considered the statutory requirements and did not err in finding no exceptional circumstances. As a result, the plaintiff's application for judicial review was dismissed. The court did not make any further orders.

Orders