DPP v Basham & Anor - [2023] VSC 655

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S ECR 2019 0229

DIRECTOR OF PUBLIC PROSECUTIONS	Applicant
v
ADRIAN JAMES BASHAM	First Respondent
and
JAMES FRANCIS BASHAM	Second Respondent

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JUDGE:	TAYLOR JA
WHERE HELD:	Melbourne
DATE OF HEARING:	8 and 9 August 2023
DATE OF JUDGMENT:	14 November 2023
CASE MAY BE CITED AS:	DPP v Basham & Anor
MEDIUM NEUTRAL CITATION:	[2023] VSC 655

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CRIMINAL LAW – First respondent convicted of murder of estranged wife - Application for forfeiture of family home where murder occurred – Application for forfeiture of motorcycle used by first respondent to travel to and from scene of murder – Forfeiture opposed by first respondent – Application for exclusion from forfeiture by second respondent in respect of motorcycle – Whether property tainted property – Whether property used in connection with the offence – Whether motorcycle subject to effective control of the first respondent – Whether second respondent acquired motorcycle for sufficient consideration – Applications for forfeiture granted – Application for exclusion of interest in motorcycle by second respondent refused.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms N Rogers SC and Ms E Ruddle KC with Mr L Cameron	Office of Public Prosecutions
For the First Respondent	The First Respondent appeared unrepresented
For the Second Respondent	Mr J Sutton	SDR Law

HER HONOUR:

Introduction

On 21 April 2022 the first respondent (‘Basham’) was convicted of the murder of his estranged wife, Samantha Fraser.

The murder took place on 23 July 2018 at 19 Seagrove Way, Cowes (‘real property’ or ’19 Seagrove Way’). Basham rode a black 2018 model Kawasaki Ninja ZX1000 motorcycle (‘motorcycle’) to and from the scene of the crime.

By an amended notice dated 11 October 2022, the Director of Public Prosecutions (‘DPP’) applied for forfeiture of 19 Seagrove Way and the motorcycle. The applications were brought under s 32 of the Confiscation Act 1997 (‘Act’) which empowers the DPP to apply for an order that property used in or in connection with certain serious criminal offences be forfeited to the Crown.

Basham, who was unrepresented in these proceedings, opposed both applications.

By noticed dated 11 October 2022, the second respondent, who is the father of Basham, sought an order under s 49 of the Act excluding his interest in the motorcycle from the operation of any forfeiture order made in respect of it.

For the reasons that follow, I am satisfied that the application by the DPP for forfeiture of 19 Seagrove Way and the motorcycle should be granted and that the application by the second respondent for exclusion of his interest in the motorcycle should be refused.

The offence

The circumstances of the murder committed by Basham have been extensively summarised elsewhere.[1] It is unnecessary to rehearse the full detail of those circumstances, the following precis suffices.
[1]See R v Basham (Sentence) [2023] VSC 79 (‘Sentence’).

Ms Fraser and Basham separated in April 2017. Ms Fraser obtained a Family Violence Intervention Order (‘FVIO’) to which…

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 Basham & Anor

Details

AGLC: Director of Public Prosecutions v Basham [2023] VSC 655
Case: [2023] VSC 655
Decision Date: 14 November 2023

CaseChat Overview and Summary

The case of the Director of Public Prosecutions v Basham & Anor dealt with the application for the forfeiture of two pieces of property following the conviction of the first respondent for the murder of his estranged wife. The second respondent sought to exclude his interest in one of the properties, a motorcycle, on the basis that he had purchased it for sufficient consideration and it had not been used in connection with the offence. The application was heard in the Supreme Court of New South Wales. The central legal issues before the court were whether the properties were tainted by their use in the commission of the offence and whether the second respondent's interest in the motorcycle was effectively excluded by his purchase of it.

In examining the nature of the properties and their connection to the offence, the court noted that the family home was the scene of the murder and, as such, was directly involved in the commission of the crime. The motorcycle, while not used directly in the murder, was used by the first respondent to travel to and from the scene. The court found that both properties were tainted by their use in connection with the offence. The second respondent's argument that he had purchased the motorcycle for sufficient consideration and had no knowledge of its intended use was rejected by the court. The court held that the motorcycle was subject to the effective control of the first respondent and was used in connection with the offence. Consequently, the application for the forfeiture of both properties was granted, while the application for the exclusion of the second respondent's interest in the motorcycle was refused.

The court's decision to grant the applications for forfeiture was grounded in the established legal principles that property used in the commission of a serious indictable offence may be subject to forfeiture, regardless of whether the property owner was involved in the offence. The court emphasised that the primary objective of the forfeiture provisions is to deprive offenders of the benefit of their criminal activities. The court also found that the second respondent's claim of sufficient consideration for the purchase of the motorcycle was not sufficient to exclude his interest, as the motorcycle was still subject to the effective control of the first respondent at the time of the offence. The final orders of the court were that the family home and the motorcycle were to be forfeited to the Crown, and the second respondent's application to exclude his interest in the motorcycle was dismissed.

Orders