Director of Public Prosecutions v Schweitzer

[2006] VSC 350

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 1546 of 2006

IN THE MATTER of the Confiscation Act 1997

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IN THE MATTER of an alleged offender, Julian SCHWEITZER

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IN THE MATTER of an application by the DIRECTOR OF PUBLIC PROSECUTIONS FOR VICTORIA

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JUDGE:	HOLLINGWORTH, J.
WHERE HELD:	Melbourne
DATE OF HEARING:	19 September 2006
DATE OF JUDGMENT:	19 September 2006
CASE MAY BE CITED AS:	DPP v Schweitzer
MEDIUM NEUTRAL CITATION:	[2006] VSC 350

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Application under s16 of the Confiscation Act 1997 for a restraining order

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APPEARANCES:	Counsel	Solicitors
For the applicant	Mr A. Hanger (solicitor)	Office of Public Prosecutions

HER HONOUR:

1. I have before me an application brought by the Director of Public Prosecutions seeking a restraining order under s.16 of the Confiscation Act 1997 in respect of property in which Julian Schweitzer has an interest, or which is said to be tainted within the meaning of that Act.

1. I have had regard to the affidavit of Simon John Foster sworn on 19 September 2006.  The affidavit sets out the circumstances giving rise to recent charges against Mr Schweitzer in relation to a number of drug offences, including trafficking and possession of cannabis, methyl-amphetamine, cocaine and ecstasy.  During the course of searches in relation to those offences, the investigators seized a number of items of property.  They also identified other assets including cash, funds in various bank accounts and motor vehicles, which Mr Schweitzer told them had been purchased with the proceeds of drug trafficking. 

1. The DPP has drawn my attention to the decision of Maxwell, P and Eames, JA in Navarolli v Director of Public Prosecutions [2005] VSCA 323, and in particular paragraphs [41] and [42] of that decision. I bear in mind the comments of their Honours that, as far as practicable, a judge in the Practice Court hearing such an application should start from the position that notice of the application should be given to any person whose property may be affected if the order is made. However, the Court of Appeal also noted that nothing the court said was to preclude a judge from exercising his or her discretion against giving notice where relevant circumstances exist which justify the denial of a right to be heard.

1. Having regard to the seriousness of the charges, the nature and extent of the admissions alleged to have been made by Mr Schweitzer, and the nature of the property which is proposed to be the subject of the restraining order (in particular, its highly portable and disposable nature), in my opinion this is an appropriate case in which to exercise my discretion so as to make orders on an ex parte basis.  I will make the orders for a short period of time only, and require that notice be given to Mr Schweitzer so that he may be heard on the return date.