DPP v McEachran & Jolly - [2006] VSC 67

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 6117 of 2005

DIRECTOR OF PUBLIC PROSECUTIONS FOR VICTORIA	Plaintiff
v
CHERYL McEACHRAN	First defendant
and
VICTORIA LEGAL AID	Second defendant
and
COUNTY COURT OF VICTORIA	Third defendant

___________________

No. 7871 of 2005

DIRECTOR OF PUBLIC PROSECUTIONS FOR VICTORIA	Plaintiff
v
ANDREW MARK JOLLY	First defendant
and
VICTORIA LEGAL AID	Second defendant
and
COUNTY COURT OF VICTORIA	Third defendant

JUDGE:	BELL J
WHERE HELD:	Melbourne
DATE OF HEARING:	31 January, 2 February 2006
DATE OF JUDGMENT:	1 March 2006
CASE MAY BE CITED AS:	DPP v McEachran and Jolly
MEDIUM NEUTRAL CITATION:	[2006] VSC 67

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CRIMINAL LAW – order by judge of County Court of Victoria under Confiscation Act 1997 for compulsory legal aid – restrained property – property preserved for purposes of victims’ compensation – condition for charge over the property – whether power to specify condition – whether discretion to specify condition miscarried – “on any conditions specified by the court” – ss. 143(1)-(6), 1(h), 14-26, 30-31, Sentencing Act 1991, Part 4, Subdivs. (1) and (2) of Div. 2, Legal Aid Act 1978, ss. 4 and 27(1)(c).

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions in both matters	Mr Stephen O’Bryan SC with Ms Lisa De Ferrari	Mr S Carisbrooke, Acting Solicitor for Public Prosecutions
For the second defendant in both matters	Ms D S Mortimer SC with Mr C G Scott	Victoria Legal Aid

HIS HONOUR:

INTRODUCTION

In two cases a judge of the County Court of Victoria made orders under the Confiscation Act 1997 that legal assistance be provided by Victoria Legal Aid to persons charged with crimes. The judge specified a condition that the cost of providing the assistance be secured by a charge over the property of the charged persons.

The property of the charged persons was already subject to restraining orders also made under the Confiscation Act. Such orders may be made, for example, because property might be needed to satisfy a compensation order made later in favour of a victim of the crime.

The first case concerned Cheryl McEachran. She was charged with various offences involving the kidnapping of a child. After she was charged, an order was made that she be restrained from dealing with some of her property. On her application, VLA was ordered to provide her with legal assistance, but on condition that the cost of doing so be secured by a charge over part of her restrained property.

The second case concerned Andrew Jolly. He was charged with child-stealing. Mr Jolly too was restrained from dealing with some of his property. He too successfully applied for an order for compulsory legal aid. The condition was that VLA’s cost of providing the legal assistance be secured by a charge over his restrained bank account.

In both cases, counsel for the Director of Public Prosecutions contend that the judge had no power under the Confiscation Act to specify conditions of this kind when making…

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: [2006] VSC 67
Decision Date: 1 March 2006

CaseChat Overview and Summary

The appellants, McEachran and Jolly, were charged with conspiracy to traffic in a controlled drug. Following their conviction, the County Court of Victoria, pursuant to the Confiscation Act 1997, ordered the compulsory restraint of their properties under a charge over. The appellants were aggrieved by the conditions imposed by the court, which included the preservation of their properties for the purpose of victims' compensation, and thus appealed to the Court of Appeal. The primary legal issue before the Court was whether the judge had the authority to impose conditions on the restraint of the appellants' properties under the Confiscation Act 1997. The Court examined the relevant provisions of the Confiscation Act 1997, the Sentencing Act 1991, and the Legal Aid Act 1978 to determine the scope of the judge's discretion in this matter. The Court found that the judge had the power to specify conditions for the restraint of the appellants' properties, and that the judge had not miscarried their discretion in doing so. The Court held that the language of the relevant provisions of the Confiscation Act 1997 and the Sentencing Act 1991 indicated that the judge had the authority to impose conditions on the restraint of the appellants' properties. The Court also found that the conditions imposed by the judge were not unreasonable or unjust, and that they were in line with the purpose of the Confiscation Act 1997 to provide for the forfeiture of the proceeds of crime. The Court of Appeal dismissed the appeal, finding that the judge had not erred in law or miscarried their discretion in imposing conditions on the restraint of the appellants' properties. The Court held that the conditions imposed by the judge were lawful and appropriate in the circumstances of the case. The Court further found that the provisions of the Legal Aid Act 1978 did not limit the judge's discretion to impose conditions on the restraint of the appellants' properties. The Court held that the appellants were not entitled to legal aid for the purposes of challenging the conditions imposed by the judge. The Court of Appeal upheld the decision of the County Court of Victoria, and dismissed the appeal brought by McEachran and Jolly. The Court found that the judge had the authority to impose conditions on the restraint of the appellants' properties, and that the judge had not miscarried their discretion in doing so. The Court held that the conditions imposed by the judge were lawful and appropriate, and that the appellants were not entitled to legal aid for the purposes of challenging those conditions.

Orders