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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2000] VSCA 40
Decision Date: 22 March 2000

CaseChat Overview and Summary

In the case of Director of Public Prosecutions (Commonwealth) v Peniche, also known as Merrit, the parties involved were the Director of Public Prosecutions for the Commonwealth of Australia as the appellant, and Peniche, also known as Merrit, as the respondent. The nature of the dispute centred around the interpretation and application of the Mutual Assistance in Criminal Matters Act 1987, specifically regarding the definition of a "foreign restraining order." The High Court of Australia was tasked with determining the legality of an order for the seizure of property, and whether it qualified as a "restraining order" under the Act.

The central legal issue before the court was whether an order for the seizure of property, which was not explicitly restraining a particular person or all persons from dealing with the property, could be classified as a "foreign restraining order" under the Mutual Assistance in Criminal Matters Act 1987. The court needed to interpret the phrase "restraining a particular person, or all persons, from dealing with property" and decide if it encompassed orders for the seizure of property that did not explicitly restrain individuals from dealing with the property.

The court held that the order for the seizure of property did not constitute a "foreign restraining order" as it was not explicitly restraining a particular person or all persons from dealing with the property. The court emphasised the importance of the language used in the Act, noting that the order in question did not fit the definition of a "restraining order." Consequently, the appeal was dismissed as the appeal was deemed hopeless on its merits. The court also considered the competency of the appeal, but found that the appeal's hopelessness on the merits was a sufficient ground to determine the appeal's competency.

The final orders of the court were that the appeal was dismissed, and the earlier decision of the Full Court of the Federal Court of Australia, which had ruled in favour of the respondent, was affirmed. The High Court upheld the interpretation that the order for the seizure of property did not qualify as a "foreign restraining order" under the Mutual Assistance in Criminal Matters Act 1987.

Orders