DPP (C'th) v Peniche (aka Merrit)

[2000] VSCA 40

SUPREME COURT OF VICTORIA
COURT OF APPEAL	Not Restricted

No. 1627 of 1998

DIRECTOR OF PUBLIC PROSECUTIONS
(COMMONWEALTH)

Appellant

v

CARLOS CABAL PENICHE (also known as
RAFAEL CERTI MERRIT)

Respondent

HER MAJESTY’S ATTORNEY-GENERAL FOR THE COMMONWEALTH OF AUSTRALIA

Intervenor

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JUDGES:	BROOKING, PHILLIPS and CHERNOV, JJ.A.
WHERE HELD:	MELBOURNE
DATE OF HEARING:	22 March 2000
DATE OF JUDGMENT:	22 March 2000
MEDIUM NEUTRAL CITATION:	[2000] VSCA 40

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CRIMINAL LAW – Practice and procedure – "Foreign restraining order" – Order for seizure not "restraining a particular person, or all persons, from dealing with property".

APPEALS – Practice and procedure – Competency of appeal – Not determined where appeal hopeless on merits.

Mutual Assistance in Criminal Matters Act 1987, ss.3, 34(4).

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APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr C.M. Maxwell Q.C. and Ms L. Ruschena	Commonwealth Director of Public Prosecutions
For the Respondent	Mr D. Grace Q.C., Mr C. Scott and Mr D.J. Batt	Clive Scott
For the Intervenor	Mr D.M.J. Bennett Q.C.   S.G. (Cth.) and Mr P.J. Hanks Q.C.	Australian Government Solicitor

BROOKING, J.A.: 

1 On 30 July 1999, Mandie, J. dismissed an application by the Commonwealth Director of Public Prosecutions for registration of an order made on 11 November 1998 by a federal prosecutor of the United Mexican States in respect of the property of Carlos Cabal Peniche (also known as Rafael Certi Merrit) located in Australia. The application was made under s.34(4) of the Mutual Assistance in Criminal Matters Act 1987 of the Commonwealth on the basis that the order was a "foreign restraining order" within the meaning of s.3 of that Act. It was resisted simply on the ground that the order did not fall within the definition in s.3. Mandie, J. thought that it did not, and dismissed the application. His Honour considered that the order was one for the seizure of property, not one "restraining a particular person, or all persons, from dealing with property", as required by the definition.

2 We think his Honour was right in reaching that conclusion, a conclusion which, if correct, was of course fatal to the application. The Director has appealed. Notice of contention has been given by the respondent, setting up points not taken below as alternative grounds for upholding the dismissal of the application. One of these suggested grounds for upholding the decision of Mandie, J. is the supposed existence of a discretion to refuse to register a foreign restraining order. The other is the more fundamental ground that s.34(4) is invalid by reason of inconsistency with the requirements of the Commonwealth Constitution. The taking of this point has resulted in the giving of notice pursuant to s.78B of the Judiciary Act 1903. This has in turn led to the appearance before us of the Solicitor-General for the Commonwealth and Mr Hanks, representing the Commonwealth Attorney-General.

3  While the matter of the competency of the appeal is not one with which a notice of contention should be concerned, the respondent also used the notice of contention as a means of notifying the appellant Director of an objection to the competency of the appeal, based on the contention that the Director has no power to appeal against the decision below.

4  As regards the points taken in the notice of contention as alternative bases for upholding the decision of Mandie, J., we see no reason why we should consider these, since we are of opinion that his Honour was right, for the reasons which he gave, in dismissing the application by upholding the point taken below.  The question now raised about discretion and the constitutional question now raised have not been argued before us and need not be considered by us.  That leaves the objection to competency, based on the suggested lack of a power in the Director to appeal.  Logically, the question of competency precedes the question whether an appeal should fail on the merits.  We have no jurisdiction to entertain the appeal and pass upon its merits unless there is a competent appeal before us.  But the written outlines of submissions and the supplementary oral argument on behalf of the Director leave us with a clear view that the appeal, if competent, cannot succeed, since the judge was right in dismissing the application on the ground of opposition to it then raised.  It would be idle to hear extensive argument about the competency of an appeal which we regard as doomed to fail on the merits, assuming it to be competent. The appellant's dilemma is this: If we are properly seized of the appeal, it must be dismissed on the merits, and if we are not properly seized of the appeal, it must be dismissed as incompetent.  Nothing turns on the distinction so far as the costs of the appeal are concerned: On either view we would order the respondent's costs of the appeal to be paid by the appellant.

5  It is true that the practice with successful objections to the competency is to dismiss the appeal as incompetent in terms.  We intend, in this somewhat unusual case, simply to dismiss the appeal.  Reference to our reasons will show that we formed the view that the judge's decision was correct on the point argued before him and that we have not determined the question of competency.  No party suggested that we should not adopt the course procedurally which we have adopted.

6  Accordingly, the appeal is dismissed and the appellant is ordered to pay the respondent's costs of the appeal.

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