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Coleman v DPP

Coleman v DPP

Case [2018] VSCA 264 22 October 2018

Confiscation Act 1997

Restraining order

Charge known to the law

Related charges

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2018 0045

ANTHONY ROBERT COLEMAN	Applicant
v
DIRECTOR OF PUBLIC PROSECUTIONS	Respondent

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JUDGES:	KAYE, ASHLEY and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	8 October 2018
DATE OF JUDGMENT:	22 October 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 264
JUDGMENT APPEALED FROM:	Coleman v DPP (Unreported, County Court of Victoria, Judge Carmody, 21 February 2018)

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CONFISCATION – Confiscation Act 1997 – Restraining order made before criminal proceeding commenced by charge being laid – Whether, by operation of s 27(1) of the Act, order made under s 18 ceased to be in force two days after making of order – Whether charge of theft of land was a charge known to the law – Whether order ceased to be in force by operation of s 27(3) because charge of theft withdrawn and charge of obtaining financial advantage by deception brought later – Whether original charge and later charge ‘related charges’ – Whether ‘founded on the same facts’ – Ordinary and natural meaning – Leave to appeal refused.

Confiscation Act 1997, sections 4, 8, 16, 18, 27, Schedules 1 and 2.
Crimes Act 1958, ss 72, 73 and 74.
Criminal Procedure Act 2009, s 3.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr A Coleman in person
For the Respondent	Mr T Gyorffy QC	Mr J Cain, Solicitor for Public Prosecutions

KAYE JA:

For the reasons given by Ashley and Weinberg JJA, I agree that the application for leave to appeal should be refused. Without detracting from the reasons given by their Honours, I add the following in relation to the proposed grounds of appeal.

Grounds 1 and 2

In oral argument before this Court, the applicant relied on two separate submissions in support of grounds 1 and 2.

The applicant’s first, and principal contention, was that the theft charge that was initially brought against him was invalid and, in effect, a nullity. The applicant based that proposition on the fact that, at the time at which he, as executor of the estate of Mr Smith fraudulently sold the property in July 2007, he was the legal and beneficial owner of the Brunswick property. Accordingly, he submitted, by selling and transferring the property, he did not appropriate the legal or equitable interest of any other person in it.

The submission, thus advanced by the applicant, ignores the plain language of s 73(6)(a) of the Crimes Act 1958. That section, and the associated provisions in Part 1, Division 2, were included in that Act by the Crimes (Theft) Act 1973. The specific purpose of the amendment, at that time, was to overcome the technicalities with which the common law offence of larceny had become entangled. The common law offence required proof of a ‘taking away’, or ‘asportavit’, of the property that was stolen. Thus, at common law, land was incapable of being stolen. Nor was it possible to take away, and thereby steal, items of property that were…

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 Coleman v DPP

Details

AGLC: Coleman v DPP [2018] VSCA 264
Case: [2018] VSCA 264
Decision Date: 22 October 2018

CaseChat Overview and Summary

Coleman v DPP is a case concerning the interpretation and application of the Confiscation Act 1997 (Vic) in the context of a restraining order and its termination. The respondent, Coleman, was subject to a restraining order made under section 18 of the Act, which was in effect before the commencement of criminal proceedings against him. The primary dispute was whether the restraining order ceased to be in force by operation of section 27(1) of the Act, which provides that a restraining order ceases to be in force two days after it is made, unless certain conditions are met. The case also considered whether the original charge of theft of land was a charge known to the law and if the order ceased to be in force by operation of section 27(3) because the charge of theft was withdrawn and a charge of obtaining financial advantage by deception was brought later. The issue of whether the original and later charges were "related charges" and "founded on the same facts" was also central to the case.

The court had to determine the meaning of "charge known to the law" in the context of section 27(1) of the Confiscation Act 1997 (Vic) and whether the charge of theft of land met this criterion. The court also had to consider the interpretation of "related charges" and "founded on the same facts" in section 27(3) of the Act, and whether the original and later charges were sufficiently connected to satisfy these criteria. The court's interpretation of these provisions was crucial in determining whether the restraining order continued to be in effect after the withdrawal of the original charge and the laying of the later charge.

The court held that the charge of theft of land was a charge known to the law and, therefore, the restraining order did not cease to be in force by operation of section 27(1) of the Confiscation Act 1997 (Vic). The court also found that the original and later charges were not "related charges" and were not "founded on the same facts" as required by section 27(3) of the Act. Consequently, the restraining order did not cease to be in force by operation of section 27(3). The court's interpretation of the relevant provisions of the Act was based on the ordinary and natural meaning of the words used, and the court held that the terms "related charges" and "founded on the same facts" required a close connection between the charges.

The court refused leave to appeal, upholding the decision that the restraining order remained in effect. This decision has implications for the interpretation and application of the Confiscation Act 1997 (Vic) in cases involving restraining orders and the termination of such orders in the context of criminal proceedings.

Orders