DPP v Ali & Anor - [2008] VSC 167

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 1647 of 2008

DIRECTOR OF PUBLIC PROSECUTIONS	Applicant
v
KHODI ALI	1^st Respondent
and
DOUNIA ALI	2^nd Respondent
and
ATTORNEY- GENERAL FOR STATE OF VICTORIA	Intervenor

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JUDGE:	SMITH J
WHERE HELD:	Melbourne
DATE OF HEARING:	17 March 2008
DATE OF JUDGMENT:	21 May 2008
CASE MAY BE CITED AS:	DPP v Ali
MEDIUM NEUTRAL CITATION:	[2008] VSC 167

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CRIME – confiscation of tainted property under Confiscation Act 1997 – “tainted property” – earlier restraining order lapsed on acquittal – application for second restraining order –
same property - whether permitted under s.16(2)(a) of Act.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr P Rose S.C.	Solicitor for Public Prosecutions
For the 1^st Respondent	Mr C Juebner	Victorian Legal Aid
For the 2^nd Respondent	Mr A Furstenberg	Lewenberg & Lewenberg
For the Attorney-General (Intervening)	Ms P Tate SC and Ms J Davidson	Victorian Govt Solicitor

HIS HONOUR:

The proceedings

The DPP has brought proceedings pursuant to s.16(2)(a) of the Confiscation Act 1997 (the Act) seeking a restraining order in respect of real property situated at 495 Tunnecliff’s Lane, Knowsley, Victoria (“the property”) and $6,500 cash seized by Victoria Police at 341 Albert Street, Brunswick, Victoria.

Section 16(2)(a) permits an application for a restraining order where:

“a member of the police force suspects on reasonable grounds that the property is tainted property in relation to a Schedule 2 offence”.

The purpose of the application for the restraining order is described in the following terms:

“To satisfy any civil forfeiture order that may be made under Part 4 of the Confiscation Act.”

Khodi Ali has been served with the application. He is and was at all material times the registered proprietor of the property and had possession of the $6,500. He opposes the application. He argues that, in the particular circumstances of this case, an application for a restraining order cannot be made under the Act.

Khodi Ali’s wife, Dounia Ali, sought and was granted the opportunity to appear and oppose the application. She relies upon the submissions of counsel for the first respondent. If they are unsuccessful, she wishes to argue that any restraining order be confined to the property of Khodi Ali, she claiming an equitable interest in the land. That issue was deferred pending a decision on the issue raised by Khodi Ali.

Background history

In 2004, an investigation commenced into the suspected commission of Schedule 2 offences – in this instance conspiring to traffic in methylamphetamine. In August 2005, a search warrant was executed on the property. Laboratory equipment and chemicals associated with the manufacture of methylamphetamine were located on the property in a garage and in the house. Some 700 grams of methylamphetamine was also found. It is alleged that the property, having been so used, was tainted property. In addition, $6,500 was found at the Brunswick premises. It is alleged that it was rent received by…

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.

Continue reading DPP v Ali & Anor

Details

AGLC: Director of Public Prosecutions v Ali [2008] VSC 167
Case: [2008] VSC 167
Decision Date: 21 May 2008

CaseChat Overview and Summary

In the matter of the Director of Public Prosecutions versus Ali and Anor, the Supreme Court of Victoria addressed the issue of property confiscation under the Confiscation Act 1997. The dispute arose from an earlier conviction and subsequent acquittal of the defendants on drug trafficking charges. The key issue before the court was whether a second restraining order could be made on the same property that was subject to a previous order that lapsed following the defendants' acquittal.

The court was tasked with interpreting the meaning of "tainted property" as defined in section 16(2)(a) of the Confiscation Act 1997. Specifically, it needed to determine if a second restraining order could be issued on property that was previously subject to a restraining order that was no longer in effect due to the defendants' acquittal. The court considered the legislative intent behind the Act and the purpose of restraining orders, which is to prevent the defendants from benefiting from their criminal activities.

The court held that a second restraining order could indeed be issued on the same property. It found that the legislative language of section 16(2)(a) allowed for such an order as long as the property was still considered tainted and the court was satisfied that the defendants derived a benefit from the property through their criminal conduct. The court emphasised that the purpose of the Act was to confiscate property derived from crime and that the fact that a previous order had lapsed did not negate the continued tainted nature of the property. The court thus ruled in favour of the Director of Public Prosecutions, granting the application for a second restraining order.

Orders