Director of Public Prosecutions (Vic) v Cini

The Director of Public Prosecutions (Vic) brought an appeal against the dismissal of an application for a forfeiture order under section 32 of the Confiscation Act 1997 (Vic). The respondent had been convicted of trafficking in a drug of dependence, and the Director sought forfeiture of the property where the respondent had grown cannabis. The property had been the respondent's home for 20 years and was acquired lawfully. The Director raised concerns that an underground bunker on the property, used for cultivating cannabis, might be reactivated in the future. The judge below adjourned the forfeiture application on the respondent's undertaking to fill in the bunker, which was later confirmed in affidavit evidence. The application was subsequently dismissed, and the Director appealed on the basis that the judge below had acted for an improper purpose and had taken irrelevant considerations into account.

The legal issues before the court were whether the judge below had acted for an improper purpose and whether irrelevant considerations had been taken into account. The court considered whether the objects clause inserted into the Act in 2010 limited the range of matters the court could take into account in exercising its discretion and whether the statutory list of matters in section 33(5) of the Act should be interpreted in light of decided cases. The court held that the introduction of section 3A was not intended to preclude regard to relevant case law.

The court found that the judge below had appropriately addressed the Director's concerns about the potential reactivation of the bunker and had not acted for an improper purpose or taken irrelevant considerations into account. The court also noted that the Director's delay in bringing the application was relevant but did not constitute an error in the exercise of discretion. The appeal was dismissed, and the decision of the judge below was upheld. The court applied the principles from R v Winand (1994) 73 A Crim R 497 in its reasoning.