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DPP v Nguyen

DPP v Nguyen

Case [2009] VSCA 147 25 June 2009

Criminal Liability

Confiscation of Property

Restraining Order

Automatic Forfeiture

Criminal Law

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SUPREME COURT OF VICTORIA
COURT OF APPEAL

No 3843 of 2008

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
HAI MINH NGUYEN	First Respondent
and
THE COUNTY COURT OF VICTORIA	Second Respondent

No 3844 of 2008

DIRECTOR OF PUBLIC PROSECUTIONS	Appellant
v
ADRIAN MICHAEL DUNCAN	First Respondent
and
THE COUNTY COURT OF VICTORIA	Second Respondent

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JUDGES:	MAXWELL P, WEINBERG JA and KYROU AJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	12 May 2009
DATE OF JUDGMENT:	25 June 2009
MEDIUM NEUTRAL CITATION:	[2009] VSCA 147
JUDGMENT APPEALED FROM:	[2008] VSC 292 (Smith J)

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CRIMINAL LAW – Confiscation of property – Restraining order – Automatic forfeiture – Application for exclusion – Whether application made within 60 days of conviction – When ‘conviction’ occurs – Arraignment, plea of guilt, allocutus – Plea taken at listing hearing – Matter adjourned for plea and sentence – Whether unequivocal acceptance of plea – Confiscation Act 1997 (Vic) ss 4, 35, 47, 51.

CRIMINAL LAW – Confiscation of property – Restraining order for purpose of automatic forfeiture – Application for exclusion order – Whether application can be made following automatic forfeiture – Confiscation Act 1997 (Vic) ss 18, 20, 22, 35, 51.

WORDS AND PHRASES – ‘Conviction’ – ‘Allocutus’.

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APPEARANCES:	Counsel	Solicitors
For the Appellant:	Mr S G O’Bryan SC with Ms L De Ferrari	Mr C Hyland, Solicitor for Public Prosecutions
For the First Respondent in proceeding no 3843 of 2008	Mr M J Croucher	Robert Stary & Associates
For the First Respondent in proceeding no 3844 of 2008	Mr M J Croucher	F W Robson & Co
For the Second Respondent in each proceeding:	No appearances

MAXWELL P
WEINBERG JA
KYROU AJA:

This is an appeal by the Director of Public Prosecutions (‘DPP’) against a judgment and orders made by a judge of the trial division on 7 August 2008. Those orders arose out of proceedings by way of judicial review brought by the DPP in relation to two separate decisions of his Honour Judge McInerney in the County Court. By those decisions, Judge McInerney dismissed applications by the DPP to strike out what may be termed ‘exclusion applications’ arising out of certain restraining orders made under the Confiscation Act 1997 (Vic) (the ‘Act’) in anticipation of automatic forfeiture of property. The respondents are Hai Minh Nguyen and Adrian Michael Duncan.

In each matter, Judge McInerney was concerned with property belonging to persons who had pleaded guilty, in unrelated proceedings and on separate dates, to what are known under the Act as ‘Schedule 2 offences’. Property of each respondent, being subject to a restraining order, faced automatic forfeiture under the Act. Each sought to avoid that consequence by making application for exclusion pursuant to s 22. The DPP contended, in each case, that the application should be struck out because it was out of time. The judge below, who determined the application for judicial review, heard the two cases together because they raised essentially the same legal issue.[1]
[1]DPP v Nguyen and DPP…

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 Nguyen

Details

AGLC: DPP v Nguyen [2009] VSCA 147
Case: [2009] VSCA 147
Decision Date: 25 June 2009

CaseChat Overview and Summary

In the matter of the Director of Public Prosecutions v Nguyen, the Court of Appeal considered the interpretation of the term 'conviction' in the context of property confiscation and the validity of a plea of guilt. The case originated in the County Court of Victoria, where Nguyen was convicted of various drug-related offences. The Director of Public Prosecutions applied for a restraining order and automatic forfeiture of property under the Confiscation Act 1997 (Vic).

The central legal issues involved the timing of the application for an exclusion order and the definition of the term 'conviction'. Specifically, the court had to determine if the application was made within 60 days of the conviction and when a 'conviction' occurs. The latter issue hinged on whether the plea of guilt, taken at the listing hearing and followed by an adjournment for plea and sentence, constituted an unequivocal acceptance of guilt. The court also needed to consider whether an application for an exclusion order could be made after an automatic forfeiture had occurred.

The Court of Appeal held that the application for an exclusion order was not made within the required 60 days of conviction, as the term 'conviction' was not satisfied until the plea of guilt was unequivocally accepted, which occurred at the subsequent hearing. The court further found that the application for an exclusion order could not be made following an automatic forfeiture, as the statutory provisions did not allow for such a procedure. Consequently, the application was dismissed.

The Court of Appeal ordered that the application for an exclusion order be dismissed and affirmed the decision of the County Court. The court emphasised the importance of adhering to statutory timelines and correctly interpreting the legal definitions in the Confiscation Act 1997 (Vic).

Orders