Director of Public Prosecutions v Tomas

The case before the court involved the Director of Public Prosecutions seeking a restraining order under the Confiscation of Criminal Assets Act 2003 (ACT) against Tomas, the defendant. The dispute centered on the confiscation of certain real property believed to be the proceeds of criminal activity. The Director of Public Prosecutions argued that the property should be restrained as it was derived from Tomas’ criminal conduct. Tomas contested the application, arguing that the statutory requirements for the application and the affidavit in support were not met, and that there were no reasonable grounds for the suspicions and beliefs underlying the application.

The court was required to determine whether the statutory requirements for the application and the affidavit in support were properly complied with, and whether there were reasonable grounds for the suspicions and beliefs expressed in the affidavit. The court considered whether the failure to meet these requirements precluded the making of a restraining order. Additionally, the court had to assess whether the real property was adequately identified in the application and affidavit.

In its decision, the court found that the application and affidavit did not meet the statutory requirements as they were not properly sworn and verified. The court held that this procedural flaw was fatal to the application. Furthermore, the court determined that there were no reasonable grounds for the suspicions and beliefs expressed in the affidavit, as the Director of Public Prosecutions had not provided sufficient evidence to support the claim that the property was derived from criminal activity. Consequently, the application was dismissed.

The court ordered that the application filed on 23 July 2015 be dismissed and that the plaintiff, the Director of Public Prosecutions, pay the costs of the defendant and the first interested party of the application.