Coleman v Director of Public Prosecutions
[2019] VCC 1183
•1 August 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE COMMON LAW DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-12-01075
| ANTHONY ROBERT COLEMAN | Applicant |
| v | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
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JUDGE: | HER HONOUR JUDGE COHEN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 August 2019 | |
DATE OF DECISION: | 1 August 2019 | |
CASE MAY BE CITED AS: | Coleman v DPP | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1183 | |
Written REASONS FOR DECISION
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Subject: CONFISCATIONS
Catchwords: Application for Extension of time to seek Exclusion Order; previous application withdrawn; automatic forfeiture occurred in May 2014; no jurisdiction to grant extension; amendment of withdrawn application misconceived
Legislation Cited: Confiscation Act 1997, ss 20(1B) and (1C); 26; 35
Cases Cited: DPP v Nguyen & Anor [2009] VSCA 147
Decision: Application dismissed with costs
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | No appearance | |
| For the Respondent | Mr T Gyorffy QC | Solicitor for the Director of Public Prosecutions |
HER HONOUR:
1 By notice filed 28 August 2017, Mr Anthony Robert Coleman (“the Applicant”) sought to make application under s20(1B) of the Confiscation Act 1997 (“the Act”) for an extension of time in which to apply for an order excluding certain property from a Restraining Order, or alternatively amendment of a previous application which he had withdrawn.
2 This matter was listed for a one day hearing. Mr Coleman had about two months’ notice of the hearing date, but on the morning of the hearing forwarded an email[1] indicating that he would not be attending, could not obtain legal representation, did not seek an adjournment, and asked the Court to decide his application on the materials already filed. The respondent, represented by Mr Gyorffy QC, submitted that it would be appropriate for the court to proceed to decide the matter on its merits, provided that no new material be taken into account, as that could infringe Mr Coleman’s right to natural justice.
[1]The email received just after 9am was from an email address in his name but purportedly from Ms Buchanan on his behalf, but commencing in the first person as if from him.
3 Two affidavits had been filed by Mr Coleman in support of his application[2], and I have read those and the exhibits to them. Two affidavits by Mr O’Keefe, a solicitor for the respondent, were filed on behalf of the respondent[3], and I have read those and the exhibits to them. There was also a detailed outline of the respondent’s submissions dated 30/6/19, which I am satisfied was also forwarded to Mr Coleman on behalf of the respondent well in advance of the hearing date. Mr Coleman had not filed submissions, but I have taken matters raised in his Affidavits to disclose his arguments.
[2]Affidavits of Anthony Coleman sworn 28 August 2017 and 5 September 2017
[3]Affidavits of Simon O’Keefe sworn 15 December 2017 and 9 March 2018
4 This proceeding has a very long history, and these reasons are limited to a brief summary of matters to which reference was made during the hearing, and the court’s findings on them.
5 On reading the affidavits and exhibits to them filed in relation to this application, I am satisfied of the following facts and sequence of relevant events.
(i)On 9 March 2012, his Honour Judge Parsons made a Restraining Order in relation to Anthony Robert Coleman, restraining, inter alia, a property known as 187 Ferrars Street, Southbank in which he was believed to have an interest[4]. The affidavit material on which the Order was made included description of alleged offending by him in his dealings with a Brunswick West unit which had been part of a deceased estate for which he acted as a solicitor and of which he was executor. He was shortly to be charged with theft of that property, and as that property was worth more than $50,000, he was therefore to be charged with a Schedule 2 offence, which could give rise to automatic forfeiture if he were convicted. The declared purposes for which the Order was made included any automatic forfeiture.
[4]He was registered proprietor as tenant in common of 6 [later said to be 8] of 40 undivided shares in that property.
(ii)On 13 March 2012, Mr Coleman completed a Declaration of Property Interests in which he declared that he had no interest in most of the property restrained, including 187 Ferrars Street, Southbank, stating that he believed that Ms Buchanan had a 20% interest in that property.
(iii)On 5 April 2012, an application for exclusion under s 20 of the
Act was filed on behalf of Mr Coleman by solicitors acting for him. That application listed each piece of property in respect of which he claimed an exclusion of his interests, including specifically the property at 187 Ferrars Street, Southbank. In the same application, there was listed under the properties restrained in another Restraining Order made 27 March 2012 in relation to his then partner, Ms Buchanan, the same property, namely 187 Ferrars Street, Southbank. On the same day the same solicitors files an application for exclusion under s 20 on behalf of Ms Buchanan, which also claimed exclusion of her interests in property restrained, including 187 Ferrars Street, Southbank.
(iv)On 3 June 2013, Mr Coleman pleaded guilty in the Supreme Court to 14 charges on an indictment. Charges 9 and 10 of those were of obtaining financial advantage by deception, and arose out of his disposition of sale proceeds in relation to the sale of the Brunswick West unit. Mr Coleman has since unsuccessfully challenged[5] that those were related charges to the charge of theft in respect of which the Restraining Order had been made. Charge 9 was of dishonestly obtaining a financial advantage by deception in the sum of $189,531.21, relating to the balance of sale proceeds on the sale of the Brunswick West unit. Charge 9[6] was therefore a Schedule 2 offence of which Mr Coleman was convicted, and which was a charge which could give rise to automatic forfeiture under the Act.
(v)On 25 October 2013, Mr Coleman was sentenced by Justice Dixon, and subsequently served a term of imprisonment. His application for leave to appeal[7] was dismissed.
(vi)On 20 May 2014, orders were made in this proceeding by his Honour Judge Murphy, that Mr Coleman’s application for an exclusion order under s 20 of the Confiscation Act, filed 5 April 2012, be withdrawn. The record of that Order shows that it was made by consent, with Mr Coleman in attendance by video link.
(vii)On 28 August 2017, the present application was filed, namely an application by Mr Coleman under s 20(1B) for an extension of time to apply for an exclusion order, or an application under s 26 to vary the application filed 5 April 2014. On the same date, terms of settlement were reached between the respondent and Ms Buchanan in respect of her application for exclusion in this proceeding.
(viii)On 24 October 2017, orders were made by his Honour Judge Murphy in this proceeding dealing with the disposition of the application by Ms Buchanan for exclusion. In paragraph 4 of that order, which was made by consent as between Ms Buchanan’s counsel and the solicitor for the Director of Public Prosecutions, it was expressed that her amended application for exclusion would be otherwise dismissed “with effect from the final determination of the application made by Anthony Coleman made under s20(1B) of the Act for leave to make an application under s20 of the Act.”
[5]Decision of Judge Carmody 21/2/18; decision of Court of Appeal 22/10/18 – [2018]VSCA 264; High Court 18/3/19
[6]Not Charge 10 as set out in paragraph 3.15 of the respondent’s submission. The material - including the charge sheet, summary of offending in Justice Dixon’s sentencing remarks, and the sentences themselves – clearly show that charge 9 was for obtaining financial advantage in a sum well over the $75,000 threshold as a single charge to be a Schedule 2 offence.
[7]Exhibit SOK-17 to affidavit of Simon O’Keefe made 15 December 2017.
6 The respondent’s primary submission is that the Court has no jurisdiction or power to make the order sought by Mr Coleman under s20(1B), nor the alternative one under s 26(1) of the Act. Further, it argues that were I to find that there is jurisdiction or power to make either such order, the applicant has not adequately explained why there has been delay in the making of an application requiring extension of time, nor that any such order should be made on the merits.
7 The core submission of the respondent is that the court no longer has jurisdiction or power to make the order sought under s 20(1B) in this case. That, it is submitted, is because by operation of s 35 of the Act, Mr Coleman’s interest in 187 Ferrars Street, Southbank, was automatically forfeited when on 20 May 2014, his previous application under s 20 was withdrawn. Therefore, as the property has been forfeited under the Act, s 20(1C) deprives the court of power to make an order extending the period within which an application may be made in respect of that property. Further, as a result of automatic forfeiture of his interest in any property still restrained by the Restraining Order, there is no longer any Restraining Order in operation in respect of his interest in the property[8], so no exclusion order could be made and an application for exclusion in respect of it would be meaningless.
[8]DPP v Nguyen [2009] VSCA 147 at [117]
8 Relevantly, s35 of the Act provides:
(1) If—
(a) a person is convicted of a Schedule 2 offence; and
(b) a restraining order is or was made under Part 2 in respect of property for the purposes of automatic forfeiture in reliance on—
(i) the conviction of the accused of that offence; or
(ii) the charging or proposed charging of the accused with that offence or a related offence that is a Schedule 2 offence; and
(c) the restrained property is not the subject of an exclusion order under section 22; and
(ca) the restrained property is not the subject of an application under section 20 that is still pending—
the restrained property, subject to any declaration under section 23, is forfeited to the Minister on the expiry of 60 days after—
(d) the making of the restraining order; or
(e) the conviction of the accused—
whichever is later.
(2) If an application under section 20 in respect of restrained property is still pending on the expiry of the period of 60 days referred to in subsection (1), the property is forfeited to the Minister—
…
(b) if the application is withdrawn or struck out, on that withdrawal or striking out.”
9 The respondent further relies on the decision in DPP v Nguyen & Anor[9], as confirming that for automatic forfeiture, everything depends on the expiry of the time limits set out in the relevant sections, and there is no provision for time to be extended, irrespective of the merits of the case, and irrespective of whether there is an acceptable explanation for the failure to lodge the application within time.[10]
[9][2009] VSCA 147
[10][12]
10 From Mr Coleman’s application and affidavits in support of it, he argues that automatic forfeiture has not occurred in respect of his interest in 187 Ferrars Street, Southbank, because Ms Buchanan’s application under s 20, filed 5 April 2012, also seeking exclusion of an interest in the Ferrars Street property, stood in the way of automatic forfeiture operating in respect of that property. He relies on her application remaining on foot because it was expressed in settlement terms on 28 August 2017 (the same date as his filing this application), and in the order of 24 October 2017 as not being dismissed until determination of his application under s 20(1B). I take the provision in settlement terms with Ms Buchanan, and the order made in resolution of her applications in the Court, as being designed by her or him to delay dismissal of her application for exclusion until his present application was determined.
11 Leaving aside questions of construction of the wording of her settlement, and of the relevant paragraph of the final order in relation to her application, I accept the submissions by the respondent that that argument is untenable. Ms Buchanan’s application for exclusion could only have been in respect of any interest she had in the restrained property. Automatic forfeiture under s 35 operated in respect of his interest in that property – not hers. Any interest she had in the property would not have been forfeited under the automatic forfeiture process under s35, because that related only to his interest in the property, he being the offender, but her pending application could not delay forfeiture of his interest once all of the conditions of s 35 occurred in respect of his interest in the restrained property.
12 Even if the proviso as to timing of final dismissal of her application has extended its duration until now, in that her application might be found to still be pending, it has not delayed the operation of s 35 in respect of Mr Coleman’s interest in the property.
13 Mr Coleman’s application for an extension of time could only be in respect of any interest he had in the restrained property, not any interest of Ms Buchanan. However, his interest was forfeited immediately after he withdrew his then existent application for exclusion, namely on 20 May 2014. Further, as explained in Nguyen’s case,[11] once automatic forfeiture operated on 20 May 2014, there was no longer on foot a Restraining Order in respect of which Mr Coleman could now apply for exclusion.
[11]At para [118]
14 Applying s35 to the facts already outlined, I am satisfied that a Restraining Order had been made in respect of Mr Coleman’s interest in the property known as 187 Ferrars Street, Southbank, based on alleged offending by him which included the subject matter of Charge 9 of which he was subsequently convicted. I am satisfied that he was convicted of a Schedule 2 offence (Charge 9 – obtaining by deception $189,531.21). I find that that conviction occurred on the date he pleaded guilty - 3 June 2013[12] - but in any event it could be no later than the date he was sentenced – 25 October 2013. On the expiry of 60 days after the date of his conviction on that Schedule 2 offence, there had been no exclusion order made under s22, but there was still pending his application under s 20. I am satisfied that on 20 May 2014, Mr Coleman consented to the Court ordering that his application for exclusion under s20 be withdrawn. On that occurring, pursuant to sub-s35(2)(b), his interest in the property so restrained was forfeited to the Minister.
[12]Criminal Procedure Act 2009 s 253B as to finding of guilt; and conviction occurs when court act on plea of guilty – DPP v Nguyen at [59]. In any event at latest it occurred on the date he was sentenced – 25 October 2013.
15 As I am satisfied that automatic forfeiture of all of Mr Coleman’s interest in the property at 187 Ferrars Street, Southbank, occurred 20 May 2014, pursuant to s 20(1C), the Court has no power to extend the period within which an application may be made in respect of that property.
16 Turning then to the alternative order sought in this application. Mr Coleman seeks an order under s 26 of the Act permitting amendment of his original application for exclusion, to include an application for exclusion of the property at 187 Ferrars Street, Southbank.
17 I find this part of his application to be totally misconceived. First, he withdrew that application, so it is no longer on foot and so cannot be amended. There is no apparent power to reinstate it even if Mr Coleman had sought that. Secondly, the Restraining Order ceased upon the operation under s 35 of automatic forfeiture of the only property still then restrained, so it is not open to the Court to allow an application for exclusion of an interest under that Order. Thirdly, s 26 allows for applications to made for orders in relation to the property restrained under a Restraining Order, but that is not what Mr Coleman is seeking. Apart from the Restraining Order no longer operating in respect of the property, due to the operation of automatic forfeiture and the Order having no further purpose, what Mr Coleman seems to be seeking is to restore and then amend an application he agreed to have withdrawn in 2014, and that would not fall within s 26 even if the Restraining Order were still operating in respect of the property.
18 Further, despite Mr Coleman’s assertions through his Declaration of Property Interest in March 2012 and his affidavits made in this application, that at the time he was served with the Restraining Order he did not believe he had an interest in the property at 187 Ferrars Street, Southbank, and considered that Fiona Buchanan had an interest in it instead, that is not borne out on the face of his original application for exclusion.
19 I am satisfied that his application for exclusion filed 5 April 2012 did include his interest in the property at 187 Ferrars Street, Southbank. It specifically listed that property – as restrained under both the Restraining Order made in this proceeding and under a Restraining Order made in relation to Ms Buchanan. Further, although he asserts in his second affidavit in this application that at the time he could not afford lawyers, did not understand the Confiscation Act, and was suffering illness that interfered with his mental capacities, I am satisfied that the application filed on his behalf on 5 April 2012, was filed by solicitors acting on his behalf. He was still represented by those solicitors in this proceeding when he applied later that year for an order for legal aid.
20 As already explained, I find that Mr Coleman’s Notice of Application for an exclusion order under s20, filed 5 April 2012, included his interest in the property at 187 Ferrars Street, Southbank. He agreed to have it withdrawn in May 2014, when although in prison he was not suffering the various health issues which he says interfered with his capacity to deal with this matter either at about the time when the Restraining Order was made, or after his release on parole. Even if s 26 enabled an order allowing restoration and amendment of a previous application, and even if the Restraining Order were still on foot and operating to restrain his interest in the Ferrars St property, I would not be satisfied that such an order was warranted in the interests of justice. In my view this part of the application is not only misconceived but totally without merit.
21 For these reasons, I am satisfied that Mr Coleman’s application of which notice was filed on 28 August 2017 should be dismissed.
22 I will make an order for costs against Mr Coleman in the usual terms, as costs in this instance should follow the event.
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