Director of Public Prosecutions v Grillo

[2007] VSC 473

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 1595 of 2007

DPP	Plaintiff
v
DOMINIC GRILLO	Defendant

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JUDGE:	ROBSON J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 November 2007
DATE OF JUDGMENT:	1 November 2007
CASE MAY BE CITED AS:	DPP v. Grillo
MEDIUM NEUTRAL CITATION:	[2007] VSC 473

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APPEARANCES:	Counsel	Solicitors
For the Plaintiff	Mr D. Martin
For the Defendant	No appearance

HIS HONOUR:

1. In this matter I have an application before me under s.16(2)(c) of the Confiscation Act 1997. Mr Martin appears for the Director of Public Prosecutions. The application is made ex parte. Orders are sought that no person shall dispose of or otherwise deal with the property specified below or any interest in that property:

(a)       the property at 19 Winged Foot Drive, Sunshine North;

(b)      the property at 31 Bowen Street, Moonee Ponds;

(c)       the property at 10 Johnson Street, Sunshine North; and

(d)      all shareholdings and/or share interests recorded in the name of Dominic Grillo in certain listed public companies.

1. The order seeks a declaration under s.(15)(3)(a) of the Confiscation Act 1997 that the said property be restrained for the following purposes:

(a) to satisfy any forfeiture order that may be made under Division 1 of Part 3 of the Confiscation Act 1997;

(b) to satisfy automatic forfeiture of property that may occur under Division 2 of Part 3 of the Confiscation Act 1997; and

(c)       to satisfy any pecuniary penalty order that may be made under Part 8 of the Confiscation Act 1997[1].

[1]See sub-s.15(1).

1. The application is supported by the affidavit of Robert William Sneddon, a Detective Leading Senior Constable of Police at the Criminal Proceeds Squad.  He deposes that Dominic Grillo has been charged with two charges relevant to the application.  The first is that at Sunshine North he did traffic a drug of dependence namely cannabis L in a quantity that is not less than a commercial quantity applicable to that drug.  I am satisfied that Dominic Grillo is charged with a Schedule 2 offence.  Dominic Grillo is also charged that at Sunshine North he did cultivate a narcotic plant namely cannabis L.  Again I am satisfied that he is charged with a Schedule 2 offence.

1. The affidavit discloses that the marijuana was being cultivated at 19 Winged Foot Drive, Sunshine North and at 10 Johnson Street, Sunshine North.  Dominic Grillo's parents are the owners of the property at 10 Johnson Street, Sunshine North.  Dominic Grillo is the owner of the property at 19 Winged Foot Drive, Sunshine North.  Thus, of the properties that I referred to earlier, marijuana was allegedly found growing at the first property, that is the property at 9 Winged Foot Drive. The second property 31 Bowen Street, Moonee Ponds is merely property owned by Dominic Grillo; and marijuana was allegedly found growing at 10 Johnson Street, Sunshine North, which is the property of Dominic Grillo's parents.  The shares are merely property of Dominic Grillo.

1. So far as the parents' property is concerned at 10 Johnson Street, it appears that the relevant grounds upon which it may be forfeited or sold to satisfy any forfeiture order under Division 1 of Part 3 is as tainted property, or to satisfy any automatic forfeiture of property that may occur under Division 2 of Part 3 of the Confiscation Act 1997. Mr Martin agreed that the property at 10 Johnson Street could not be used to satisfy any pecuniary penalty order that may be made under Part 8 of the Confiscation Act 1997 against Dominic Grillo.

1. So far as Dominic Grillo's shares and the house at which marijuana was not allegedly found to be grown, those properties could not be used to satisfy any forfeiture order under Division 1 of Part 3 of the Confiscation Act as tainted property although that property might be the subject of automatic forfeiture or might be used to satisfy any pecuniary penalty.

1. It is a fundamental common law right that a person is normally not entitled to be deprived of his or her property without being heard.  That principle has clearly exercised the court's attention and I refer in particular to the decision of the Court of Appeal in Emidio Navarolli v. Director of Public Prosecutions [2005] V.S.C.A. 323 and also the decision of Director of Public Prosecutions v. Vu [2006] V.S.C.A. 188.

1. As a consequence of those decisions, the legislation was amended on the issue of the giving of notice to the persons whose property interests might be affected by a restraining order. Section 17(1) now provides:

“[1] If, having regard to the matters referred to in sub-s.(1A), the court is satisfied that the circumstances of the case justify the giving of notice to a person affected, the court may direct an applicant under s.16(1) or 16(2) to give notice of the application to any person whom the court has reason to believe has an interest in the property that is the subject of the application.”

1. Sub-section (1A) provides:

“In determining whether the circumstances of the case justify the giving of a notice, the court must have regard to:-

(a) the aim of preserving the property that is the subject of the application so as to ensure its availability for the purpose for which the restraining order is sought.”

1. I was told that para. (b) was not relevant to this case.  It provides:

“Any jeopardy to an investigation by a law enforcement agency into criminal activity that could result from the giving of notice.”

I agree that it is not relevant.  Paragraph (c) I was told was not relevant.  It provides:

“Any risk to the safety or security of a person including a potential witness in any criminal proceeding that could result from the giving of notice.”

I agree that it is not relevant.  Paragraph (d) provides:

“I will have regard to the provision made by this Act to enable a person claiming an interest in property that is subject to a restraining order to apply for an exclusion order to protect that interest from the operation of a restraining order;”

Paragraph (e) provides:

“the limited duration of a restraining order;”

Paragraph (f) provides:

“the submissions if any made by the applicant in relation to the giving of notice.”

1. I have read and accept entirely the decision of Whelan J in DPP v. Latorre [2006] VSC 398.

1. In those circumstances, I am prepared to proceed on this application without notice being given under s.17 of the Confiscation Act 1997 at this stage.

1. The orders that I will make, however, will be interim orders which will preserve the property so as to ensure its availability for the purposes for which it is sought pending the return of the application for interlocutory orders.  Such a procedure has been expressly sanctioned by the Court of Appeal in Emidio Navarolli v. DPP [2005] VSCA 323 at [42].

1. I am not prepared at this stage to make even an interim order that a restraining order be made for the purpose to satisfy an automatic forfeiture of property that may occur under Division 2 of Part 3 of the Confiscation Act 1997. I note that if I made such a restraining order under Part 2 in respect of property for the purposes of automatic forfeiture, that by itself may trigger automatic forfeiture under Division 2 of Part 3. In my opinion, there may very well be good reason and good public policy behind the purpose of having automatic forfeiture, and I should not be taken as making any criticisms at all of the purpose or object of those provisions. In the circumstances, however, I can see no harm being done in enabling the persons who may be affected by this order - and I am reminded that includes the parents of the accused - at least having the opportunity to consider the fact that such an application for automatic forfeiture is going to be made on the return of the application and giving them the opportunity to be heard.

1. In my view, by so preserving their rights, I am not in any way undermining or ruling contrary to the meaning and purpose of the amendments to s.17 or contrary to the requirements of s.18. I am prepared therefore to make the orders sought save I will delete sub-paragraph (b) of paragraph 3 in the draft order and I intend to adjourn this matter for a month - I will adjourn it to Thursday 29 November 2007. So the order will be until 4.15 p.m. on 29 November 2007 or further order; no person shall dispose of or otherwise deal with the properties specified below, and Mr Martin, otherwise paragraph 1 will be as you have it. As to paragraph 3, I am going to delete sub-paragraph (b).

1. I will just check to see whether I need another adjustment in view of the fact that - yes, I am going to add to 3, “save that the purpose in sub-paragraph (c) does not apply to the property in 1(c) and the purpose in sub-paragraph (a) does not apply to the property in sub-paragraph 1(b) and 1(d).”

1. I further order under s.17 of the Confiscation Act 1997 that notice of the application be given to Dominic Grillo and his parents, Natale Grillo and Antoinette Grillo of 10 Johnson Street, Sunshine North. I otherwise adjourn the further hearing of this application to 29 November 2007.