Director of Public Prosecutions (ACT) v Can (No 2)
[2019] ACTSC 308
•20 November 2019
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Director of Public Prosecutions (ACT) v Can (No 2) |
Citation: | [2019] ACTSC 308 |
Hearing Dates: | 5 November 2019 |
DecisionDate: | 20 November 2019 |
Before: | Mossop J |
Decision: | See [20] |
Catchwords: | CONFISCATION OF CRIMINAL ASSETS – APPLICATION FOR ORDERS BY CONSENT– Need to formulate consent orders that are consistent with the Confiscation of Criminal Assets Act 2003 (ACT) – scope of s 252 – duty of parties under s 5A of Court Procedures Act 2004 (ACT) |
Legislation Cited: | Confiscation of Criminal Assets Act 2003 (ACT), ss 33, 43, 44, 45, 46, 47, 48, 58, 75(3), 75(4), 85, 86, 87, 252 Div 4.3 Court Procedures Act 2004 (ACT), s 5A |
Cases Cited: | Director of Public Prosecutions (ACT) v Can [2019] ACTSC 164 |
Parties: | ACT Director of Public Prosecutions (Plaintiff) Xuan Cuong Can (Defendant) |
Representation: | Counsel D Butler (Plaintiff) M Kukulies-Smith (Defendant) |
| Solicitors ACT Director of Public Prosecutions (Plaintiff) Kamy Saeedi Law (Defendant) | |
File Number: | SC 277 of 2018 |
MOSSOP J:
Introduction
These proceedings under the Confiscation of Criminal Assets Act 2003 (ACT) (COCA Act) were commenced by Originating Application on 19 June 2018. The Originating Application sought restraint of certain property being real property and three motor vehicles. On 20 June 2018 a restraining order was made by Elkaim J. The order was made ex parte.
Almost a year later, on 24 May 2019 the defendant was convicted of one count of cultivating a commercial quantity of a controlled plant, namely cannabis, with the intention of selling the plants or their products. He was given a custodial sentence. An offence against s 616(3) of the Criminal Code2002 (ACT) is a “serious offence” for the purposes of the COCA Act.
On 21 June 2019 the matter was listed before me. On that occasion a solicitor for the defendant appeared. Two applications were before me:
(a)Application in Proceeding dated 4 June 2019; and
(b)Application in Proceeding dated 13 June 2019.
The Application dated 4 June 2019 sought an order disapplying the earlier order made by Elkaim J that the proceedings be restricted access proceedings held in closed court without notice being given to the defendant. I dismissed the application insofar as it sought that the proceedings be restricted access proceedings and subsequently published my reasons for doing so: Director of Public Prosecutions (ACT) v Can [2019] ACTSC 164.
The Application dated 4 June 2019 also sought an order “that a penalty order calculated in accordance with Division 7.3 of the Act be made payable by the Defendant to the Australian Capital Territory.” The Application identified the amount of the penalty payable as follows:
The amount of the penalty payable under the order is assessed as the value of benefits derived by the Defendant on the following terms:
(a)the value of all of the Defendant’s property on the day this application is made;
(b)the value of any property held by the Defendant 6 years immediately before the day the application is made;
(c)the value of any narcotic substance to which the offence referred to in ground 1 relates, that being, $1,295,000;
(d)all the Defendant’s expenditure during the 6 years immediately before the day the application is made other than expenditure to the extent that it resulted in the acquisition of property mentioned in grounds 6 a. or b.
So far as that part of the Application was concerned, I simply adjourned the matter until 15 July 2019 and gave the parties liberty to provide consent directions relating to the progress of the matter that could be made in chambers.
The Application in Proceeding dated 13 June 2019 sought restraint of an amount of cash and a number of listed items relevant to the artificial cultivation of cannabis. The only orders made on 21 June 2019 in relation to that application were that it be adjourned until 15 July 2019 for mention and that liberty was granted to provide consent orders to be made in chambers.
After that hearing of the matter was adjourned on 15 July 2019, 5 August 2019, 26 August 2019, 24 September 2019 and 8 October 2019. Each of those adjournments were at the request of the parties who were attempting to resolve the substance of the proceedings by consent.
On 11 October 2019 the parties sought to file consent orders in the Registry. The orders proposed are as follows:
1. The Defendant’s name be amended to Xuan Cuong Can.
2. The restraining orders made by the Australian Capital Territory (ACT) Supreme Court on 20 June 2018 and 21 June 2019 be revoked.
3. An amount of $10,000.00 be returned by the Plaintiff to the Defendant within 28 days.
4. The remaining property that is the subject of the restraining orders made by the ACT Supreme Court on 20 June 2018 and 21 June 2019 is forfeited to the ACT pursuant to Part 5 of the Confiscation of Criminal Assets Act 2003 (the Act).
And the Court notes that:
1. The restraining order made by the ACT Supreme Court on 20 June 2018 restrains the following property:
i. The Defendant’s interest in the Crown lease over [a residential property in Spence];
ii. A 2016 Grey Nissan Pathfinder [details set out];
iii. A 2007 White Mistubishi 380 [details set out];
iv. A 2013 Black Daelim Besbi motorcycle [details set out].
2. The restraining order made by the ACT Supreme Court on 21 June 2019 restrains the following property:
i. $22,000.00;
ii. Unopened box of Zebra Polyfilm;
iii. 3 roof mounted filters;
iv. 32 light bulbs;
v. 3 seizures of blackout material;
vi. garden piping;
vii. 3 seizures of black pots with piping;
viii. 7 pieces of conduit;
ix. a ‘T’ shaped pipe;
x. 2 light fixtures;
xi. seizure of 11 roof lights and 5 ground lights;
xii. seizure of 8 roof lights and 5 ground lights;
xiii. seizure of 37 roof lights and 6 ground lights;
xiv. 12 roof lights;
xv. 83 transformers;
xvi. 8 switchboards;
xvii. 2 fan units;
xviii. 4 “kuger” motors;
xix. seizure of 3 filters and 1 motor;
xx. seizure of 4 filters and 1 motor;
xxi. a fluorescent light.
The Registrar did not enter the proposed orders and had the matter listed before me.
There were a number of problems with the orders proposed.
So far as Order 2 was concerned, it sought to revoke two separate restraining orders said to have been made on 20 June 2018 and 21 June 2019. However, as the history of the proceeding set out above illustrates, orders were only made on 20 June 2018. The Application for orders relating to the cash and items associated with artificial cultivation were not made on 21 June 2019. Rather, the court on that date simply adjourned the Application dated 13 June 2019. It was never determined. It is not logically possible for a court to revoke an order that it has not made.
So far as Orders 2, 3 and 4 sought to, in effect, permit the forfeiture of all but $10,000 worth of the property, they are not consistent with the operation of the COCA Act. Order 3 does not fit with any order that may be made under the statute.
While there is power under s 252 of the COCA Act to make orders by consent, the power is not unconstrained. Although orders may be made “without consideration of the matters which the court would otherwise consider in the proceeding”, orders must still be consistent with the types of orders available under the Act. The section does not provide to the court a power to make any order that it thinks fit.
What the parties appeared to have agreed to was that the defendant forfeit all of the restrained property except an amount that will not be forfeited. Had the property been restrained then that could be done if an application for an exclusion order had been made so as to remove the property specified from the operation of the restraining order. However, no relevant restraining order was in place and no such application had been made. Under the Act it is possible to make an application for an exclusion order at any point up until the property is forfeited: s 75(3); but not subsequently: s 75(4).
In summary, the position was:
(a)The property the subject of the order on 20 June 2018 was forfeited to the Territory under s 58 14 days after the conviction. The conviction occurred on 24 May 2019. The 14th day after that date was 7 June 2019. The property was forfeited at the end of that day. An application for a penalty order was filed on 4 June 2019. The making of that application did not prevent the forfeiture because the only bar to automatic forfeiture is the making of an application for an exclusion order: s 58(3). Therefore, the property was forfeited and there was no need to address the application for a penalty order in relation to that property.
(b)The property said to be subject to an order on 21 June 2019 (which included a sum of $22,000 in cash) was never subject to a restraining order. Therefore the property was not restrained and no automatic forfeiture occurred. It remained open to the parties to agree to the making of a restraining order, to the filing and making of an exclusion order in relation to the $10,000. That would then result in s 58(2)(b) achieving the automatic forfeiture of the balance of the property 14 days after the day the restraining order came into force.
In order to achieve the substantive outcome proposed by the parties it was therefore open to them to agree to orders to the following effect:
1.A restraining order to the effect of that sought in the Application in Proceeding dated 13 June 2019, the content of which would have to comply with s 33 of the Act.
2.The Application for an exclusion order under s 75 of the Act and the making of an exclusion order under s 77 in relation to $10,000 of the money restrained under the previous order.
3.Making no order in relation to the balance of the property the subject of the restraining order leaving it to be automatically forfeited after a period of 14 days.
They did so agree. As a result, on 5 November 2019 I made, by consent, a restraining order as had been sought in the Application in Proceedings dated 13 June 2019. On 7 November 2019 the defendant then filed an Application for an exclusion order under s 77 of the Act in relation to $10,000 of the $22,000 restrained under the order. I will now make that order by consent, leaving the balance of the items the subject of the restraining order to be automatically forfeited.
Had the parties properly analysed what they were seeking to do and considered how to achieve that substantive outcome within the framework of the COCA Act, the proceedings might have been disposed of more promptly and with less expense. Proceedings under the COCA Act are civil proceedings and the parties are required to conduct themselves so that the resources of the court are used efficiently and that matters may be disposed of in a timely manner: Court Procedures Act 2004 (ACT), s 5A. The Director, as a repeat and model litigant under the COCA Act bears a particular responsibility in this regard. This case does not represent a model for the conduct of cases under the COCA Act in a manner consistent with that obligation.
The orders of the Court are:
1. The consent orders dated 9 October 2019 are not to be filed and are to be returned to the plaintiff.
2. By consent, an exclusion order is made under s 77 of the Confiscation of Criminal Assets Act 2003 (ACT) in relation to $10,000 of the $22,000 the subject of the restraining order made on 5 November 2019.
| I certify that the preceding twenty [20] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 20 November 2019 |
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