DPP v Le

Case [2007] VSCA 18 15 February 2007

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

No. 3723 of 2006

DIRECTOR OF PUBLIC PROSECUTIONS
	Appellant
v
PHAN THI LE	Respondent

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JUDGES:	MAXWELL P, CHERNOV and NEAVE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	2 November 2006
DATE OF JUDGMENT:	15 February 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 18	First revision – 19 March 2007

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CONFISCATION – Confiscation of property – application for exclusion from automatic forfeiture – whether reasonable suspicion that property is “tainted property” determined by reference to reasonable person in applicant’s circumstances or any reasonable person – whether “natural love and affection” constitutes “sufficient consideration” – whether exclusion order under s 52(1) extends to entire subject property or limited to applicant’s interest in the property – Confiscation Act 1997 (Vic), s 52(1).

CONFISCATION – Appeal – Confiscation Act 1997 (Vic) ss 52(1), 142 – whether implied exclusion of right of appeal by Director of Public Prosecutions from exclusion order made under s 52(1) – whether right of appeal under County Court Act s 74.

STATUTES – Statutory construction – Confiscation Act 1997 (Vic), s 52(1) – power to make exclusion order if court satisfied as to certain matters – whether power discretionary in nature – whether ambiguity in language of s 52(1) permitting reference to extrinsic materials.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr N J O’Bryan SC with Mr C G Juebner	Ms A Cannon, Solicitor for Public Prosecutions
For the Respondent	Mr D C Hallowes	Melinda Walker

MAXWELL P,
CHERNOV JA:

Roy Le (“Le”) is a convicted drug trafficker. He is serving a sentence of four years’ imprisonment, with a non-parole period of two years. At the time the trafficking offence was committed, Le was living with his second wife, Phan Le (“Phan”), in an apartment in Sunshine (“the property”). Because Le used the property to store, and prepare, heroin for sale, the property is “tainted property” in relation to the offence, for the purposes of the Confiscation Act 1997 (Vic).[1]
[1]The property “was used ... in connection with the commission of the offence”: para (a) of definition of “tainted property” in s 3.

Le and Phan were married in Vietnam in September 1997. There are no children of the marriage. Phan came to Australia in July 1999. Le had purchased the property before she arrived. Until his imprisonment, Le and Phan lived together at the property. It is their family home.

After Le was charged (with trafficking in not less than a commercial quantity of heroin), the Director of Public Prosecutions applied to the County Court for a restraining order in respect of the property. The application was made under s 16(2)(c) of the Act. A restraining order was made, on 18 September 2003, pursuant to s 18(1)(a) of the Act. As required by s 15(3)(a), the court declared that the property had been restrained for the purpose, amongst others, of satisfying “automatic forfeiture of property that may occur under Division 2 of Part 3”.

The combined effect of s 35(1)…

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 Le

Details

AGLC: DPP v Le [2007] VSCA 18
Case: [2007] VSCA 18
Decision Date: 15 February 2007

CaseChat Overview and Summary

The case of the Director of Public Prosecutions versus Le was heard in the County Court of Victoria. The dispute centred around the application for an exclusion order to prevent the automatic forfeiture of property under the Confiscation Act 1997 (Vic). The respondent, Le, sought an exclusion order for a property which was in dispute as to whether it was tainted property. The legal issues involved the interpretation of the relevant sections of the Confiscation Act and the County Court Act, including whether the power to grant an exclusion order under section 52(1) was discretionary, the standard for determining whether a property is tainted, and the extent of the exclusion order.

The court considered whether the standard for determining if a property is tainted was based on a reasonable person in the applicant's circumstances or any reasonable person. It also examined whether natural love and affection constituted sufficient consideration for the transfer of the property. The court held that the test for determining if property is tainted is based on any reasonable person, not one in the applicant's specific circumstances. Regarding consideration, the court found that natural love and affection did not constitute sufficient consideration for the transfer. The court further found that the exclusion order under section 52(1) extends to the entire property, not just the applicant's interest in it. The court also clarified that there was no implied exclusion of the right of appeal by the Director of Public Prosecutions from an exclusion order made under section 52(1), and that the right of appeal was available under the County Court Act section 74.

The court's decision was that the application for an exclusion order was dismissed. The court found that there was no reasonable suspicion that the property was tainted, and the consideration provided for the transfer did not meet the required standard. The court also held that the language of section 52(1) did not permit reference to extrinsic materials and that the power to make an exclusion order was not discretionary. The court's ruling clarified the interpretation of the relevant sections of the Confiscation Act and provided guidance on the application of exclusion orders.

Orders