DPP v Nguyen

Case [2009] VSCA 147


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:

  1. 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.

  1. 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]

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DPP v Nguyen [2009] VSCA 147
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[2009] VSCA 147
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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).

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