Director of Public Prosecutions v Hall
[2014] SADC 156
•18 July 2014
DISTRICT COURT OF SOUTH AUSTRALIA
(Civil)
DIRECTOR OF PUBLIC PROSECUTIONS v HALL
[2014] SADC 156
Judgment of His Honour Judge Tilmouth
18 July 2014
CRIMINAL LAW - PROCEDURE - CONFISCATION OF PROCEEDS OF CRIME AND RELATED MATTERS - FORFEITURE OR CONFISCATION - PROCEDURE - GENERALLY
The defendant's application for the exclusion of property from a restraining order under the Criminal Assets Confiscation Act 2005 (SA), made outside the six months from the date of conviction as required by ss 74(1) and 74(6), is incompetant, as the property had already vested in the Crown under Part 4, Division 2 thereof.
His further application for the payment of reasonable living and business expenses, and for debts incurred in good faith, are foreclosed, because at the time of that application no restraining order remained in place.
Criminal Assets Confiscation Act 2005 (SA) s 3, s 7(1)(d)(ii), s 24, s 27(1) & (2), s 40, s 46(4), s 74(1), s74(6), s 75, s 76(1) & (2), s 77, s 78, s 79, s 80, s 90, s 91, s 93 s 95(1), 209(1); Della Patrona v Director of Public Prosecutions (No 2) (1995) 135 ALR 307; Director of Public Prosecutions v Helou (2003) 58 NSWLR 574; Director of Public Prosecutions v McCoid [1988] VR 982; Director of Public Prosecutions (SA) v Nguyen and Nguyen (2009) 262 LSJS 440; Criminal Assets Confiscation (Miscellaneous) Amendment Act No 57 of 2013 s 7; Attorney-General (NT) v Emmerson (2014) 88 ALJR 522; Director of Public Prosecutions (DPP v George (2008) 102 SASR 246; Mistretta v United States 488 US 361, referred to.
Griffiths v The Queen (1977) 137 CLR 293, applied.
LIMITATION OF ACTIONS - EXTENSION OR POSTPONEMENT OF LIMITATION PERIODS - OTHER CAUSES OF ACTION AND MATTERS
Although ss 47 and 48 of the Limitation of Actions Act is capable of application to the six months time limit under the Criminal Assets Confiscation Act, as that period is 'essential' to the nature and purpose of the forfeiture mechanism under the Criminal Assets Confiscation Act regime, s 47 does not apply. There is no resort to s 48.
Limitation of Actions Act 1936 (SA) s 47 and s 48; District Court Civil Rules 2006 (SA) 6R 89; Legal Practitioners Act 1981 (SA) s 13; Attorney-General (NT) v Emmerson (2014) 307 ALR 174; Legal Practitioners Act 1981 (SA) s 13; District Court Act 1991 (SA) s 8(5); In Re Litchfield (1989) 51 SASR 87, referred to.
General Motors Holden's Limited v Difazio (1979) 141 CLR 659, discussed.
DIRECTOR OF PUBLIC PROSECUTIONS v HALL
[2014] SADC 156The issues
The principal issue for resolution in this case is whether an extension of time can be granted in which to bring an application for the exclusion of property from the ambit of forfeiture, after forfeiture to the Crown has taken place under s 74(1) of the Criminal Assets Confiscation Act 2005 (SA). There are subsidiary questions to determine with respect to applications by the defendant for orders relieving him of some of the consequences of such forfeiture.
Factual context
The issues arise in this way. On 9 February 2010 police officers searched the residential premises owned by the defendant at Daw Park, where they found and seized 23 cannabis plants growing hydroponically in a ‘grow room’ and 15 cannabis clones, in what was described as a ‘very sophisticated set-up’. He was charged with cultivating a commercial quantity of the controlled drug cannabis.
On 17 August 2010 a Master of this court made an order on the application of the Director of Public Prosecutions for the State of South Australia (the DPP) for a restraining order over the real property on which the plants were grown, pursuant to s 24 of the Criminal Assets Confiscation Act. The charged offence was undoubtedly a ‘serious offence’ as defined in s 3 thereof. The following day an order was made by another Master varying the restraining order pursuant to s 40 of the Criminal Assets Confiscation Act, permitting the Daw Park property to be sold, selling agents to be appointed and upon the sale thereof, the discharge of a mortgage and the payment of associated conveyancing costs, with the remaining proceeds to be paid into the District Court Suitors Fund.
After committal for trial, the defendant was arraigned and pleaded guilty on 8 April 2013, to the offence before another Judge of this court, and the allocotus was administered. Submissions in mitigation and sentence were then adjourned. There is an affidavit of conviction recording Mr Hall’s conviction on that day. Quite apart from that, there can be no doubt that at common law a plea of guilty accompanied by an allocotus, constituted a perfected act of conviction: Griffiths v The Queen.[1] Those steps are likewise held to amount to acts of conviction for the purposes of criminal assets forfeiture: Della Patrona v Director of Public Prosecutions (No 2),[2] Director of Public Prosecutions v Helou,[3] Director of Public Prosecutions v McCoid,[4] Director of Public Prosecutions (SA) v Nguyen and Nguyen.[5]
[1] (1977) 137 CLR 293.
[2] (1995) 132 ALR 307, 315.
[3] (2003) 58 NSWLR 574.
[4] [1988] VR 982.
[5] (2009) 262 LSJS 440, [39-40].
On 1 August 2013 Mr Hall was sentenced to imprisonment for three years and nine months with a non-parole period of two years, unsuspended. Unfortunately the solicitor for Mr Hall mistakenly understood that conviction occurred when the sentence was imposed.
The applications before the court
The matter came again before the District Court in its civil jurisdiction, by way of an application by the DPP filed on 31 October 2013, seeking declarations that the sums paid into court together with interest thereon, be forfeited to the Crown pursuant to s 74 of the Criminal Assets Confiscation Act. This prompted an application by the defendant himself for an order excluding those monies from forfeiture under s 76, in which he sought an extension in which to file the application. By a further application filed on 21 March 2014, he applied for an extension of time under s 47 of the Limitations of Actions Act 1936 (SA) and for orders allowing for expenses to be paid out of the monies deposited with the court, pursuant to s 27(1) of the Criminal Assets Confiscation Act, being specified debts incurred in good faith and reasonable living expenses.
These applications came on for hearing in late March 2014. They were adjourned because of incomplete material being placed before the court in relation to the underlying merits on the defence side. As it became evident that important and difficult issues of statutory construction were involved (as will appear), the court directed an inquiry be made of Law Claims as to whether it might be amenable to an appearance as amicus curiae, pursuant to 6R 89 of the District Court Civil Rules 2006 (SA). In the event Mr White of counsel appeared pursuant to s 13 of the Legal Practitioners Act 1981 (SA) and made extensive submissions on the extension issue, on behalf of the Law Society.
Statutory framework
Section 74 of the Criminal Assets Confiscation Act provides for statutory forfeiture of property to the Crown automatically at the end of six months from conviction, in these terms:
74—Forfeiting restrained property without a forfeiture order if a person has been convicted of a serious offence
(1)Property is forfeited to the Crown at the end of the relevant period if—
(a)a person is convicted of a serious offence; and
(b)either—
(i)at the end of the relevant period, the property is covered by a restraining order that relates to the offence; or
(ii)the property was covered by a restraining order that relates to the offence, but the property was excluded, or the order revoked, under section 38 or section 44; and
(c)the property is not subject to an order under section 76 excluding the property from forfeiture under this Division.
(2)For the purposes of this section, it does not matter whether—
(a)the restraining order was made before or after the person’s conviction of the serious offence; or
(b)immediately before forfeiture, the property is the person’s property or another person’s property.
…
(6)In this section—
relevant period means—
(a)the 6 month period starting on the day of the conviction; or
(b)if an extension order is in force at the end of that period—the extended period relating to the extension order.
Other things being equal, the proceeds of the subject property were therefore ‘forfeited to the Crown’ by force of statute, on 8 September 2013. The period of six months derives in the first instance from the expression ‘relevant period’ appearing in s 74(1)(b)(i), and then in s 74(6) of the Criminal Assets Confiscation Act, ‘the 6 month period starting on the day of the conviction’. The day of conviction was 8 April 2013.
The capacity to seek an order excluding property from forfeiture is contained in s 76(1) of the Criminal Assets Confiscation Act:
76—Excluding property from forfeiture under this Division
(1)The court that made the restraining order referred to in section 74(1)(b) may make an order excluding particular property from forfeiture under this Division if—
(a)the person referred to in section 74(1)(a)—
(i) applies for the order; and
(ii) owns the property; and
(iii)has been convicted of a serious offence to which the restraining order relates; and
(b) the property is covered by the restraining order; and
(c) the court is satisfied that—
(i) the property is not proceeds of unlawful activity; and
(ii) the defendant’s interest in the property was lawfully acquired; and
(iii)it would not be contrary to the public interest for the property to be excluded from such forfeiture.
There is ample material before the court which satisfies each limb of s 76(1)(c), so that an order for exemption would otherwise be entirely appropriate on the merits. Mr Gupta, counsel for the DPP, openly conceded as much.
The question of forfeiture
However it is at this point that the application for exclusion under s 76(1) encounters a number of difficulties. The first is that the capacity to extend the six months limitation thereunder as conferred by s 75(1)(a) of the Criminal Assets Confiscation Act, required at times relevant to these proceedings, that the application for extension be made within the same six month period, that is ‘6 months or after the start day of the relevant conviction’. The ‘extension order’ referred to in s 74(6)(b) is one made under s 76. Obviously then, applications to extend must be brought within six months of conviction, by the combined effect of ss 74(6)(b) and 75(1)(a). The present application was made on 31 October 2013, just over three weeks out of time. This occurred only because of the misunderstanding as to the date of conviction referred to earlier.
A second obstacle arises from the application of s 76(2) of the Criminal Assets Confiscation Act, which provides:
76 – Excluding property from forfeiture under this Division
(2) To avoid doubt, an order under this section cannot be made in relation to property if the property has already been forfeited under this Division.
As seen earlier, the subject property had already been forfeited to the Crown under s 74(1)(b)(i) as of the end of the six month period. The Division to which s 74(1)(c) refers is Division 2 within Part 4 of the Criminal Assets Confiscation Act. This Division encompasses ss 74-89 inclusive.
In order to appreciate this observation better, the structure of the relevant Divisions in the Criminal Assets Confiscation Act was and still is, this:
Part 4—Forfeiture
Division 1—Forfeiture orders
Division 2—Forfeiture on conviction of a serious offenceSubdivision 1—Forfeiture on conviction of a serious offence [ss74-77]
Subdivision 2—Recovery of forfeited property [ss78-82]
Subdivision 3—The effect of acquittals and quashing of convictions [ss83-89]
Division 3—Forfeited property [ss90-94]
This structure will become a material consideration bearing upon the proper construction of the legislation, as will emerge. On the face of these provisions, an application for forfeiture is forbidden if made outside the six month period following conviction.
However the position is not nearly so clear as first appears. As has been demonstrated, automatic statutory forfeiture under s 74(1), effects a ‘forfeiture to the Crown’. Nevertheless forfeiture is not perfected until a court makes declarations that property is forfeited as required by s 77:
77—Court may declare that property has been forfeited under this Division
The court that made the restraining order referred to in section 74(1)(b) may declare that particular property has been forfeited under this Division if—
(a)the DPP applies to the court for the declaration; and
(b)the court is satisfied that the property is forfeited under this Division.
Once again ‘this Division’ is a reference to Division 1 of Part 4. When such a curial declaration is made, the property vests ‘absolutely in the Crown’ by virtue of s 90(1)(a) of the Criminal Assets Confiscation Act:
Division 3—Forfeited property
90—What property is forfeited and when
(1)Subject to this section—
(a)property specified in a forfeiture order vests absolutely in the Crown at the time the order is made; and
(b)property forfeited under section 74 vests absolutely in the Crown at the time of the forfeiture.
The forfeiture order referred to in s 90(1)(a), can only be a reference to an order made under s 77. However property automatically forfeited under s 74 also vests absolutely in the Crown by dint of s 90(1)(b). It can be seen then, that s 90, which serves to perfect the act of forfeiture, lies outside Division 2 and in fact, lies within Division 3 of Part 4. However it must follow that property forfeited under Division 2, through either s 74 or 77, vests absolutely in the Crown by virtue of s 90(1).
Even so such forfeitures are not necessarily inviolate. For instance, third parties can make applications under s 78 for the transfer of property forfeited, or to buy back such property under s 79. Indeed it would appear that Mr Hall himself could apply for such an order under s 79, and if successful the court is then empowered to ‘declare that the forfeiture ceases to operate’ under s 79(d). Even then, such applications must be brought within six months of the day of forfeiture, however permission to apply afterwards may be given by the court pursuant to s 80(2), in contradistinction to ss 74(1) and 76(2) which contain no such ameliorative power. Section 80 provides:
80—Applying for orders under sections 78 and 79
(1)An application for an order under section 78 or 79 must be made before the end of the period of 6 months commencing on the day on which the property to which the application relates is forfeited to the Crown.
(2)However, the court may give a person permission to apply after the end of that period if the court is satisfied that the delay in making the application is not due to neglect on the part of the person.
It is obvious then that the Criminal Assets Confiscation Act provides an exacting mechanism for the enforcement of restraining and consequential forfeiture orders. It confers narrow means of redress within strict and deliberately short limitations.
The Full Court held in Director of Public Prosecutions (DPP) v George,[6] that s 95(1) of the Criminal Assets Confiscation Act conferred a discretion on the court even though it provided that ‘(A) court must, on application by the DPP, make an order (a pecuniary penalty order)’. It did so because of the unintended and harsh consequences that might otherwise flow, so that ‘must’ therein was construed to mean ‘may’. For the same reasons, s 77 should be construed as conferring a discretion to make a declaration that property is forfeited, quite apart from the fact that it expressly provides ‘the court … may declare’.
[6] (2008) 102 SASR 246.
As a consequence of the decision in Director of Public Prosecutions v George, and so as to provide further relief from the perceived harsh and unfair nature of certain provisions, Parliament enacted extensive changes to the legislation in the Criminal Assets Confiscation (Miscellaneous) Amendment Act No 57 of 2013, effective from 26 January 2014. In these amendments s 75 was replaced, whereas ss 74 and 76 were partially amended.
The declaration mechanisms provided for s 77 (quoted earlier) is no mere formality. Although forfeited property vests absolutely in the Crown both when a forfeiture order is made thereunder, or statutorily under s 74 by reason of s 90(1)(b), the Administrator is prevented from dealing with such property until a forfeiture order is made and even then ‘only if the order is still in force’: s 90(1). In other words, the Crown could not deal with or dispose of forfeited property solely on the basis of automatic statutory forfeiture under s 74(1). If the position were otherwise, it would arguably cloak the work of the Executive (in this instance the DPP) ‘in the neutral colors of judicial action’: Mistretta v United States,[7] or as the High Court expressed matters in Attorney-General (NT) v Emmerson:[8] it might serve to:
… direct the courts as to the manner and outcome of any exercise of jurisdiction [which] is apt to impair, impermissibly, the character of courts as independent and impartial tribunals.
[7] 488 US 361, 407 (1989)
[8] (2014) 88 ALJR 522, [45].
It must follow from this survey of the provisions of the Criminal Assets Confiscation Act, that Parliament intended applications for exclusions of property from restraining orders under s 74, had to be brought without exception within the six month period immediately following conviction and correspondingly, that all orders extending that period made under s 75, had also to be brought within the same timeframe.
The s 27 application
A subsidiary submission by counsel for the defendant was that nevertheless an order could and should be made allowing expenses to be paid out of the subject property pursuant to s 27(1) of the Criminal Assets Confiscation Act:
27—Order allowing expenses to be paid out of restrained property
(1)A court that has made a restraining order may (when the restraining order is made or at a later time) order that one or more of the following may be met out of property, or a specified part of property, covered by the restraining order:
(a)the reasonable living expenses of the person whose property is restrained;
(b)the reasonable living expenses of any of the dependants of that person;
(c)the reasonable business expenses of that person;
(d)a specified debt incurred in good faith by that person.
(2)The court may only make an order under subsection (1) if—
(a)the person whose property is restrained has applied for the order; and
(b)the person has notified the DPP, in writing, of the application and the grounds for the application; and
(c)the person has disclosed all of his or her interests in property, and his or her liabilities, in a statement on oath that has been filed in the court; and
(d)the court is satisfied that the expense or debt does not, or will not, relate to legal costs that the person has incurred, or will incur, in connection with—
(i)proceedings under this Act; or
(ii)proceedings for an offence against a law of the Commonwealth, a State or a Territory; and
(e)the court is satisfied that the person cannot meet the expense or debt out of property that is not covered by—
(i)a restraining order; or
(ii)a recognised Australian restraining order; or
(iii)a foreign restraining order that is registered under the Mutual Assistance Act.
There is some not inconsiderable material demonstrating that Mr Hall has expended money on reasonable living expenses and that he has incurred debts in good faith so as to improve the subject property, within the meaning of s 27(1)(a), (c) and (d). However there is no material presently before the court capable of satisfying the requirement that he ‘cannot meet the expenses or debt out of property that is not covered’ by the restraining order, as provided for by s 27(2)(e).
Putting aside the merits, the intractable hurdle with this aspect of the application, is that an extant restraining order required by s 27(1) must be in place when an application thereunder is made. It can be accepted that s 27(1) permits an application may be made at any time, as it says ‘when the restraining order is made or at a later time’. The DPP contends there is no longer any such restraining order in place because statutory forfeiture was already effected by s 74(1)(b)(i), and therefore that no restrained property existed over which an order under s 27(1) was capable of applying to.
Section 46(4) of the Criminal Assets Confiscation Act provided at times relevant to these proceedings, as follows:
46—Cessation of restraining orders
…
(4) A restraining order ceases to be in force to the extent that property that it covers vests absolutely in the Crown under Part 4 Division 2 or Division 3.
By s 7 of the Criminal Assets Confiscation (Miscellaneous) Amendment Act the words ‘Part 4 Division 2 or Division 3’ were deleted and the words ‘this or any other Act’ were substituted in their place. Be that as it may, Part 4 Divisions 2 and 3 are referable to ss 74-94 inclusive. As was demonstrated earlier, s 74(1) which is in Division 2, has the effect of statutory forfeiture to ‘the Crown’, which nevertheless vests ‘absolutely in the Crown’ by the operation of s 90(1)(b). Section 90 is in Division 3.
Accordingly even though no declaration of forfeiture is yet made by the court pursuant to s 77 of the Criminal Assets Confiscation Act, there is no extant restraining order in place over which s 27 can operate, because of the combined effect of ss 46(4) and 90(1)(b). The court is therefore forced to the unfortunate conclusion that the s 27 application is foreclosed.
Finally it was put on behalf of Mr Hall, that the monies deposited in the court no longer retain their capacity as restrained property, because real estate was converted into money. The inescapable flaw in that submission is that, quite apart from the fact that the variation order permitting sale was made with his consent, s 7(1)(d)(ii) of the Criminal Assets Confiscation Act provides ‘property remains proceeds of an offence … even if it is … disposed of or otherwise dealt with’.
The Limitations of Actions Act
The application filed in March 2014 resorts to s 47 of the Limitations of Actions Act in order to overcome the six month limitation imposed by ss 74(1)(b) and 76(2) of the Criminal Assets Confiscation Act. It is to be remembered Mr Hall acted on erroneous legal advice, being that the date of conviction commenced to run from sentence rather than the date of his plea. There is evidence suggesting the DPP was aware he was expending monies to improve the subject property, which in the result, appears to have increased the value of the property liable to forfeiture to the Crown.
Turning first then to s 47 of the Limitations of Actions Act, this provides:
47—Extension of certain periods of limitation
(1) Where any Act, regulation, rule or by-law limits the time within which an action to which this section applies may be brought to a period of less than twelve months from the time the cause of action arises, then, notwithstanding that limitation, that action may be brought at any time within twelve months from the time the cause of action arises.
(2) This section applies to all actions except—
(a) a criminal action; and
(b) an action to try the validity of an election or of title to an office; and
(c) an action to try the validity of an assessment, rate or loan made by or to a local government body; and
(d) any other action to the nature or purpose of which the limitation is, in the opinion of the court, essential.
These proceedings are civil actions falling within the jurisdiction of the District Court both in respect of the original application for restraint under s 24, the application for a declaration effecting forfeiture under s 77, and for that matter in respect of the defence application for orders under s 27 of the Criminal Assets Confiscation Act, by virtue of s 8(5) of the District Court Act 1991 (SA). This provides all ‘proceedings before the Court, other than in its Criminal Division, are to be regarded as civil proceedings’.
The focus of submissions fell upon whether the limitation period of six months was ‘essential’ within the meaning of s 74(1)(d) of the Limitation of Actions Act. For this purpose counsel for the DPP relied heavily on two cases in particular. The first was General Motors Holden’s Limited v Difazio.[9] This case concerned an application for reinstatement of a dismissed employee which had to be brought within 21 days of dismissal. It was held this limitation was ‘essential’ within the meaning of s 47(2)(d) of the Limitation of Actions Act, but nevertheless that s 48 thereof permitted an extension of time for making such an applications outside the 21 days limitation provided for. Section 48(1) of the Limitation of Actions Act provides:
[9] (1979) 141 CLR 659.
48—General power to extend periods of limitation
(1)Subject to this section, where an Act, regulation, rule or by-law prescribes or limits the time for—
(a)instituting an action; or
(b)doing any act, or taking any step in an action; or
(c)doing any act or taking any step with a view to instituting an action,
a court may extend the time so prescribed or limited to such an extent, and upon such terms (if any) as the justice of the case may require.
Mason J (with whom the other members of the court agreed), concluded in General Motors Holden’s Limited v Difazio that the limitation would otherwise have fallen within s 47(1), but that it was caught by s 47(2)(d) as being ‘essential’. The reason for this consideration was:[10]
As an employer is likely in many cases to engage another person to take the place of a dismissed employee, and as proceedings under s. 15 (1) (e) may result in an order for the reinstatement of the dismissed employee, it is obvious that the time limitation of twenty-one days is essential to the nature and purpose of the proceedings.
[10] Ibid, 669-670.
His Honour considered however, that even when s 48(1) applies, a court would not permit an extension in the exercise of discretion, where to do so would cause injustice.[11] It follows from that observation that where an order for forfeiture is made vesting property ‘absolutely in the Crown’, an order under s 48(1) of the Limitation of Actions Act is not likely to be made once the property has been dealt with, except perhaps where the failure to institute within time ‘resulted from representations or conduct of the defendant’, within the meaning of s 48(3)(b)(ii) thereof.
[11] Ibid, 670.
The second decision relied upon by the DPP was In Re Litchfield.[12] That action concerned various provisions of the Worker’s Rehabilitation and Compensation Act 1986 (SA). The key issue was whether the worker was entitled to bring an application for review of a decision to refuse him compensation, for which an extension of time was required. It was unanimously held the limitation was ‘essential’, on the policy footing that the compensation scheme was designed to provide for ‘reasonably quick decisions’, rendering a different interpretation ‘manifestly inconvenient’.[13]
[12] (1989) 51 SASR 87.
[13] Ibid, 90.
Section 47(1)(d) of the Limitation of Actions Act ties the essential nature of the limitation to the ‘nature or purpose’ of the limitation itself. This requires the limitation to be indispensible to the efficient working of the statutory scheme of forfeiture itself. The utility of the restraint and forfeiture mechanisms were intended as strong and drastic sanctions: Attorney-General (NT) v Emmerson.[14] Those intentions would be undermined or even frustrated, if forfeiture proceedings became unduly delayed beyond the mandatory six months permitted, other than those already the subject to an extension order made under s 75 of the Criminal Assets Confiscation Act.
[14] (2014) 88 ALJR 522, [15].
The strict nature of the six month time limit prescribed by ss 74(1) and (6), the express and intractable words of s 76(2) ‘to avoid doubt, an order … cannot be made’, reinforcing as it does the absolute nature of the limitation, together with the outer limit of 15 months which pertained at relevant times for extension orders erected by s 75(2), serve to demonstrate Parliament’s intention that the six month period was essential to the nature and purpose of the forfeiture mechanisms contained in Part 4 of the Criminal Assets Confiscation Act.
There is little room for doubt that the six months period was designed to provide for expeditious determinations of forfeiture proceedings, following conviction. In reaching that conclusion it must be borne in mind the purpose of the Criminal Assets Confiscation Act is that orders for forfeiture vest the subject property in the Administrator under s 93(1), being a person appointed by the Minister (in this instance the DPP). The DPP is thereby charged with the obligation of disposing of the seized property ‘as soon as practicable’ for the express purpose of applying the proceeds to the costs of administering the Criminal Assets Confiscation Act and then towards the Victims of Crime Fund, as dictated by s 209(1).
It may well be that forfeiture to the Crown of property does not necessarily stand in the way of third parties applying for the recovery of forfeited property under Part 4, Division 2, Subdivision 2 of the Criminal Assets Confiscation Act. All the same, on the above construction they do not apply so far as persons convicted of serious offences subject to restraining orders are concerned, unless the forfeiture ceases to operate under s 79(d).
As no application under s 48 of the Limitation of Actions Act is made, that contingency requires no further consideration.
Conclusion and orders
Despite the manifest unfairness and injustice involved, the application by the defendant for exclusion of property pursuant to s 76(1) of the Criminal Assets Confiscation Act must be dismissed as incompetent, as it was not made within six months of his conviction for a serious offence, as required by the combined operation of ss 74(1), 74(6), 76(2) and 91(1)(b), thereof. His application for an extension of time under s 47 of the Limitation of Actions Act also stands to be dismissed, on the basis that the limitation of six months is ‘essential’ to the nature or purpose of the forfeiture regime. The application under s 27 for orders allowing expenses to be paid out of restrained property, is also precluded because the restraining order ceased to be in force before he applied, by the operation of s 46(4) of the Criminal Assets Confiscation Act.
Just where these conclusions now leave the application by the DPP for the declaration of forfeiture under s 77, remains for debate. The parties should be heard as to consequential orders, including costs.
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