Director of Public Prosecutions for Victoria v Le

[2007] HCATrans 250

[2007] HCATrans 250

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Melbourne  No M17 of 2007

B e t w e e n -

DIRECTOR OF PUBLIC PROSECUTIONS FOR VICTORIA

Applicant

and

PHAN THI LE

Respondent

Application for special leave to appeal

GUMMOW J
KIRBY J
HAYNE J

TRANSCRIPT OF PROCEEDINGS

FROM CANBERRA BY VIDEO LINK TO MELBOURNE

ON FRIDAY, 25 MAY 2007, AT 10.33 AM

Copyright in the High Court of Australia

MR N.J. O’BRYAN, SC:   If the Court pleases, I appear in that matter for the applicant, the Director of Public Prosecutions for Victoria.  (instructed by Solicitor for Public Prosecutions)

MR D. GRACE, QC:   If the Court pleases, I appear with MR D.C. HALLOWES for the respondent.  (instructed by Melinda Walker & Co)

GUMMOW J:   Yes, Mr O’Bryan.

MR O’BRYAN:   Your Honours, this application for leave to appeal raises four questions of law which are submitted to be of great public importance.

GUMMOW J:   Exactly.  Now, let me interrupt you there, Mr O’Bryan.  Is there any offering by your client of an undertaking to bear the costs of the respondent, in any event?

MR O’BRYAN:   Yes, your Honours, if such an undertaking is requested it will be given.

GUMMOW J:   Thank you.  Yes, go on, Mr O’Bryan.

MR O’BRYAN:   The questions, your Honours, concerned the meaning and effect of the exclusion provisions of the Confiscation Act (Vic). In a nutshell, the questions are first, the extent of exclusion from forfeiture under section 52 and under cognate exclusion provisions of the Act and in a nutshell ‑ ‑ ‑

GUMMOW J:   Yes.  We do not need to hear you any further at this stage, Mr O’Bryan.  We will be assisted by hearing from Mr Grace.

MR O’BRYAN:   If your Honours please.

MR GRACE:   If the Court please.  The statutes providing for the forfeiture of property have conventionally been construed strictly and I only need to refer to this Court’s decision in Murphy v Farmer (1988) 165 CLR 19 to emphasise that point. The language of section 52(1), if I could deal with the issue of exclusion of property first, clearly does not permit the Director’s construction, in our submission. The legislature intended in the factual circumstances of a case such as this that the property which is automatically forfeited is the same property ‑ ‑ ‑

HAYNE J:   Mr Grace, you are putting your papers on the microphone, I think.  Thank you.

MR GRACE:   I am sorry.

KIRBY J:   We want to hear every word.

MR GRACE:   Yes, thank you, your Honours.  The legislature in the factual circumstances postulated by this case intended that the property which is automatically forfeited is the same property which would be made the subject of the restraining order and it is that property which is to be the subject of any exclusion order.  The Director could have sought restraint of the respondent’s interest only but he chose not to.

If he had done so, that would have been the property that would have been the property excluded from the operation of the automatic forfeiture order.  Section 3 of the Act defines property as including interests in property.  Presumably, the Director sought the restraint of the whole property for the dual but alternative purposes of forfeiture and pecuniary penalty, compensation or restitution.  That really was the way in which the Director posted his colours to the mast.

The Director now, seeing for the first time the ramifications of his approach, seeks to impose on the Court a construction that the language of the Act does not allow or permit.  The answer is legislative amendment, not this Court’s intervention.  Could I take your Honours to the judgment of the court below at paragraph 53 on page 39.

KIRBY J:   You might well be right and in the end your argument might prevail but can there be doubt that this is a matter of importance?  We have the dissenting opinion of Justice Neave in the Court of Appeal and there is at least a risk that if the majority view is correct that the people who would otherwise be subject to orders under the Act could use their spouses or partners to escape the operation of the Act so that ‑ ‑ ‑

MR GRACE:   There is a short answer to that.  The property, once it is excluded from the automatic forfeiture provisions, still remains restrained, so let us take the position of the convicted defendant, in this case, the respondent’s husband, Roy Le.

KIRBY J:   Here there was a passing of property, was there not, after the charge, I think, and before conviction?

MR GRACE:   Correct, your Honour, and prior to the application for the restraining order.

KIRBY J:   Yes, but it was when something was in the wind, something very nasty.

MR GRACE:   That goes to other issues, yes, but that was the case.  There is no doubt that between June ‑ ‑ ‑

KIRBY J:   That is what is going to happen, you see.  That is what is going to happen.

MR GRACE:   But the Director is protected and the reason he is protected is because just because there is being exclusion from automatic forfeiture of the property does not mean that the property remains unrestrained so that any interest of the defendant or any other party is still restrained.  So that property could be attached in respect of a pecuniary penalty order, it could be attached in respect of a compensation or a restitution order.

KIRBY J:   That may be an answer to the second matter that I raised that was concerning me but there remains the first.  This is a statute of wide application and it is a statute in which we have a dissenting opinion in the Court of Appeal and it is a matter of general importance and the applicant has offered to pay your costs in the terms, as I understand it, that you sought in your response.

MR GRACE:   If I can just mention one aspect of that costs issue, the applicant has not announced to the Court that it would not seek to disturb the costs order of the court below.  That is one matter.

KIRBY J:   We have read what you say is the proper costs undertaking that is required.

MR GRACE:   Yes.

GUMMOW J:   Paragraph 4.1 on page 78, the second sentence.  I took what Mr O’Bryan said to us as acceptance of that and if that is not so he will tell us, so let us get on, Mr Grace.

MR GRACE:   Yes.  Your Honours, could I move on to the other issues raised by the grounds of appeal.  They include the issue of sufficiency of consideration, the reasonable suspicion test and the effective control test.  Your Honours will see in the written outline of submissions what we have to say in relation to those issues.  Beyond that and beyond saying that the dissenting judge in relation to the exclusion of property issue, Justice Neave, did not dissent from the majority in relation to the conclusions that the majority made in respect of those particular issues.

They are factual matters, predominantly.  The conclusions that were made by the trial judge were open on the material.  As the Court of Appeal found, unanimously, those conclusions of fact, insofar as they were made, were unimpeachable.  In our submission, if your Honours were to grant

special leave in relation to the exclusion of property issue, there is no warrant to grant special leave in relation to the subsidiary issues which are essentially matters of fact and will require the Court to consider issues of credibility that were before the learned trial judge and which the Court of Appeal found were unimpeachable.

HAYNE J:   In considering the base question of construction that arises, it would be useful, would it not, to consider the application of the competing constructions to the common circumstance where land is the item in question and that land is mortgaged.  Now, it is not immediately apparent to me why, on the majority view, the bare fact of the mortgage of the land would not take the land outside the reach of the legislation.  If that is the consequence that is the consequence, but it is issues like that that would have to be considered.

MR GRACE:   Mortgagees are protected under the legislation, your Honour, and chargees and the like, so their interests are not the subject of forfeiture.  The forfeiture is subject to those interests being recognised and allowed for, so if there was a forced sale, for instance in this case, to the Westpac Bank the bank would be protected.  Those are the matters, your Honours.

GUMMOW J:   Mr O’Bryan, you heard what has been said about the statement respecting costs in the second sentence in paragraph 4.1 in page 78.  We take it that that is what is proffered?

MR O’BRYAN:   It is, your Honour.

GUMMOW J:   There will be a grant of special leave in this matter so we do not need to hear you any further, Mr O’Bryan, but we do alert the parties to the possibility that it may be that the appeal will be listed in the Adelaide sittings in August.  That should not present any difficulties for counsel, should it?

MR O’BRYAN:   No, your Honours.

MR GRACE:   No, your Honours.

GUMMOW J:   Very well.

KIRBY J:   This is really quite a short matter, is it not?  It is a half a day?  Would that be correct?

MR O’BRYAN:   Yes, your Honours.

GUMMOW J:   Probably half a day or perhaps a little bit more.  We will act on that basis.

There is a grant of leave in application No M17 of 2007 upon that condition, as indicated, as to costs.

AT 10.44 AM THE MATTER WAS CONCLUDED