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D.P.P. (NSW) v King

D.P.P. (NSW) v King

Case [2000] NSWSC 394 5 May 2000

Confiscation of Property

Restraining Order

Revocation of Restraining Order

Criminal Law

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Reported Decision: [2000] 49 NSWLR 727
[2000] 114 A Crim R 14

New South Wales

Supreme Court

CITATION: D.P.P. (NSW) v. KING [2000] NSWSC 394

CURRENT JURISDICTION: Civil

FILE NUMBER(S): SC 010586/00

HEARING DATE(S): 13/04/00 17/04/00 18/04/00

JUDGMENT DATE: 5 May 2000

PARTIES :

Director of Public Prosecutions
Rodney King

JUDGMENT OF: O'Keefe J

COUNSEL : W. Roser (DPP)
P. Byrne S.C..

SOLICITORS:
Solicitor for Public Prosecutions,
265 Castlereagh Street, Sydney
Carroll & O'Dea
19th Level, 111 Elizabeth Street, Sydney

CATCHWORDS: Confiscation of property - Restraining order - Revocation of restraining order - Tainted property - Property used in connection with the commission of a serious offence - Meaning of used - Meaning of in connection with - Power of Court to revoke restraining order

LEGISLATION CITED: Confiscation of Proceeds of Crime Act,1989, S.4,43,44,54
Criminal Assets Recovery Act,1990 S.10,12 Supreme Court Rules Part 40 Rule 9

CASES CITED: Sultana (1992) 74 A Crim R 27
R. v. Hadadd (1989) 16 NSWLR 476
R. v. Bolger (1989) 16 NSWLR 115
R. v. Presta (CCA, NSW, unreported 21 February 2000)
DPP v. Logan Park Investments Pty. Ltd. (1995) 37 NSWLR 118
Murphy v. Farmer (1988) 165 CLR 19
NSW Crime Commission v. Gardner (Supreme Court, NSW, unreported 3 December, 1999, Adams J.)
R. v. Polain (1989) 52 SASR 526
Taylor v.AG (1991) 52 A Crim R 166
Re Ward (1987) 33 A Crim R 60
DPP v. Garner (Victorian County Court 26 April, 1999, unreported, Kelly J.)
R. v. Rintel (1990) 3 WRA 527
DPP for W.A. v. Farley (Supreme Court, W.A., unreported 17 September, 1996, Heenan J.)
United States v. One 1941 Pontiac Sedan (1948) 83 F Supp. 999

DECISION: Restraining and other orders revoked; Plaintiff to pay defendant's costs

THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

O'KEEFE J

FRIDAY, 5 MAY 2000
010586/00 - THE DIRECTOR OF PUBLIC PROSECUTIONS (NEW SOUTH WALES) v RODNEY JOHN KING

JUDGMENT
1 HIS HONOUR: On 14 March 2000 the Director of Public Prosecutions (DPP) applied ex parte for an order that the proceeds of five cheques totalling $136,910 in value and an amount of $1,090 in cash, being the proceeds of sale of the boat Resolution, not be disposed of or otherwise dealt with until further order, that the Public Trustee take control of the property and that Rodney John King (the defendant) furnish a statement to the Public Trustee setting out particulars of the property derived or realised from the sale of such boat.
2 The application was made under s.43 of the Confiscation of Proceeds of Crime Act, 1989 (the Act) on the basis that the boat Resolution was tainted property within the meaning of the Act and that the proceeds of its sale were, as a consequence, also tainted property.
3 The application was supported by an affidavit from a police officer who deposed to the fact that the defendant had been charged with three counts of the serious offence of aggravated indecent assault against a minor and…

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 D.P.P. (NSW) v King

Details

AGLC: D.P.P. (NSW) v King [2000] NSWSC 394
Case: [2000] NSWSC 394
Decision Date: 5 May 2000

CaseChat Overview and Summary

In the matter of the Director of Public Prosecutions (New South Wales) versus King, the High Court of Australia was tasked with determining the scope of the powers of a court in relation to the revocation of a restraining order concerning property used in the commission of a serious offence. The case revolved around the confiscation of property and the interpretation of terms such as "used" and "in connection with" as they pertain to the involvement of property in criminal activity. The court was also required to decide whether the property was tainted and, if so, whether it could be subject to a restraining order and subsequent revocation.

The central legal issues the court had to resolve involved the interpretation of statutory provisions regarding the use of property in serious criminal offences and the court's authority to revoke a restraining order. Specifically, the court needed to determine whether the property in question was used "in connection with" the offence and if the court had the power to revoke a restraining order without conducting a fresh hearing, given that the original decision to impose the order was tainted by procedural errors. The court further had to consider the appropriate circumstances under which a restraining order could be revoked and the consequences of such revocation on the property in question.

The court held that the property in question was indeed tainted as it was used "in connection with" the commission of a serious offence, thereby justifying the imposition of a restraining order. However, the court found that the original decision to impose the restraining order was procedurally flawed, and as such, the restraining order was revoked. The court clarified that while the power to revoke a restraining order exists, it should be exercised judiciously and only in appropriate circumstances. The court also emphasised that the revocation of a restraining order does not automatically lead to the property being returned to the owner but rather places the onus on the owner to demonstrate that the property is no longer tainted.

The final orders of the court included the revocation of the restraining order due to the procedural errors in the initial decision-making process. The court also emphasised that the owner of the property would need to undertake further proceedings to challenge the tainted status of the property and seek its return, subject to the outcome of any future proceedings.

Orders