Director of Public Prosecutions (Vic) v Le

The Director of Public Prosecutions for Victoria (DPP) appealed to the High Court of Australia against orders made by the Court of Appeal of Victoria concerning the exclusion of a property from forfeiture. The dispute arose after the husband, who was the sole registered proprietor of an apartment, was convicted of a serious drug trafficking offence. Prior to his conviction, the husband transferred the apartment to himself and his wife, the respondent, as joint proprietors for the consideration of "natural love and affection". The DPP had obtained a restraining order over the property, which was subject to automatic forfeiture upon conviction. The respondent sought an exclusion order under the *Confiscation Act 1997* (Vic).

The High Court was required to determine several legal issues. These included whether the whole of the property, or only the respondent's joint interest, could be excluded from forfeiture. The court also had to consider whether the respondent satisfied the condition in s 52(1)(a)(iii) of the Act, which requires that the circumstances of acquisition did not arouse a reasonable suspicion that the property was tainted. Furthermore, the court needed to decide whether the concept of "reasonable suspicion" should be tested wholly objectively and whether "natural love and affection" constituted "sufficient consideration" within the meaning of s 52(1)(a)(v) of the Act.

The High Court, in a joint judgment by Kirby and Crennan JJ, with Gleeson CJ providing additional reasons, allowed the appeal in part. The court held that "natural love and affection" did not constitute "sufficient consideration" for the purposes of the Act, as it was not "valuable consideration" in the eyes of equity. However, the court found that the respondent had satisfied the condition under s 52(1)(a)(iii) regarding reasonable suspicion, and that the test for reasonable suspicion was to be applied objectively. The court also determined that the respondent's interest as a joint proprietor could be excluded from forfeiture.

Consequently, the High Court set aside the orders of the Court of Appeal. It ordered that the respondent's interest as joint proprietor in the property be excluded from automatic forfeiture and declared that her interest was that of a tenant in common as to a one-half share. The DPP was ordered to pay the respondent's costs of the appeal to the High Court.