DPP v Selcuk
[2008] VSC 37
•27 February 2008
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
No. 1447 of 2007
IN THE MATTER of the Confiscation Act 1997
| THE DIRECTOR OF PUBLIC PROSECUTIONS | Applicant |
| v | |
| ALTAMAN SELCUK | Respondent |
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JUDGE: | Hollingworth J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 August 2007 | |
DATE OF JUDGMENT: | 27 February 2008 | |
MEDIUM NEUTRAL CITATION: | [2008] VSC 37 | |
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Confiscation of assets – Respondent convicted of intentionally causing serious injury – Application for forfeiture order in respect of motor vehicle – Whether tainted property – Whether vehicle used “in connection with” offence – Whether hardship – Forfeiture ordered – Confiscation Act1997 ss 3, 32 and 33
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr D Gurvich | Office of Public Prosecutions |
| The Respondent appeared in person |
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HER HONOUR:
The application
On 4 October 2006, the respondent, Altaman Selcuk, pleaded guilty to one count of intentionally causing serious injury and one count of affray. On 29 November 2006, Mr Selcuk was sentenced to a total effective sentence of imprisonment of 6 years and 6 months, with a minimum non-parole period of 4 years.[1]
[1]R v Altaman Selcuk [2006] VSC 447. Having regard to pre-sentence detention, the earliest date at which Mr Selcuk may be released from custody is February 2009. His sentence expires in August 2011.
By notice dated 15 March 2007, the Director of Public Prosecutions (“the DPP”) applied for forfeiture of the car in which Mr Selcuk travelled to and from the scene of the crime (“the car”). The application is brought under s32 of the Confiscation Act 1997 (“the 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.
The DPP relies upon the fact that Mr Selcuk has been convicted of a Schedule 1 offence, namely intentionally causing serious injury (“the offence”).[2]
[2]Although the affray conviction is mentioned in one of the supporting affidavits, the application itself only relies on the conviction for intentionally causing serious injury. Accordingly, I will proceed on the basis that that is the only relevant offence.
The application is made before the expiry of the relevant period under s32(2)[3] and no previous application has been made under s32(1) in relation to the offence.
[3]Here, the application was made within 6 months after the conviction, and therefore falls within the definition of the “relevant period“ in s3 of the Act.
The key issues before me are whether the car has the relevant connection with the offending so as to be “tainted property” and, if so, whether I ought to exercise my discretion to order its forfeiture, particularly having regard to Mr Selcuk’s claim that loss of the car will cause hardship.
The DPP relies upon two affidavits of Rachel Marnie Fitzpatrick, sworn on 15 March 2007 and 26 April 2007, respectively. He also relies upon my sentencing remarks and the evidence before me at the plea hearing.[4]
[4]By virtue of s33(4) of the Act.
The application is opposed. Mr Selcuk was legally represented when the application was issued, but was unrepresented by the time of the hearing.[5]
[5]The matter was not listed for hearing until August 2007, at the request of the parties.
Although Mr Selcuk did not file any affidavit material, he gave oral evidence at the hearing. He also provided the court with written submissions by way of several letters,[6] to which the DPP responded (or was given an opportunity to respond) either orally at the hearing or in writing.[7]
[6]Dated 20 June and 29 August 2007, and undated (but received on 15 November 2007).
[7]Dated 6 September 2007.
Background facts
The offence
The offence involved a vicious and unprovoked attack on Ali Duran, Mr Selcuk’s uncle and father-in-law.
In 1999, Mr Selcuk married his cousin, Sezgin Duran, who was Mr Duran’s daughter. Following their separation in January 2005, Mr Selcuk contacted Ms Duran on a number of occasions, threatening to show her parents photographs he alleged he had, which showed Ms Duran with another man. Ms Duran knew that no such photographs existed and, during a telephone conversation with Mr Selcuk on 19 February 2005, told him that if he wanted her father to see the photographs, he should go to “the café” and he would be there.
Some hours later, Mr Selcuk telephoned his brother, Asim Selcuk, and asked for his help to locate Mr Duran. He asked Asim to collect him from his home in Brunswick, because he had drunk too much alcohol. He asked Asim to drive him in the car.
Asim Selcuk drove Mr Selcuk to a café in Sydney Road, Coburg, which was frequented by Mr Duran. Asim double-parked outside the café and kept the motor running whilst Mr Selcuk walked into the café carrying a baseball bat, where he made threats to kill Mr Duran. However, Mr Duran was not at the café.
Mr Selcuk returned to the car and Asim drove city-bound down Sydney Road. A short time later, they spotted Mr Duran waiting at a tram stop on Sydney Road.
Asim parked the car near Mr Duran, partially in the intersection, obstructing traffic and a tram. Mr Selcuk got out of the car and hit Mr Duran with the baseball bat about 15 times, causing him serious injury. Following the attack, the brothers left the scene hastily, driving down Sydney Road in the car. Mr Duran was taken to hospital, where he died a few days later.
The car
The car is a 2002 model Holden Commodore Club Sport sedan. The DPP led evidence that the car was worth between $30,700 - $35,900 in April 2007, based on the “Redbook” national average valuation. Although Mr Selcuk said he believes the car to be worth about $50,000, he led no independent evidence to support his belief.
The car was acquired in May 2003, and was last registered in the name of a company, A & S Selcuk Pty Ltd (“the company”). There is no evidence that Mr Selcuk has ever personally owned the car.
The company
The company was incorporated on 6 February 2002. It was the corporate vehicle through which Mr Selcuk and his former wife conducted a “7 Eleven” convenience store business. That business had to be sold at a loss when Mr Selcuk went into custody, following his attack on Mr Duran.
The company was deregistered on 23 July 2006, pursuant to s601AB(1A) of the Corporations Act2001 (“Corporations Act”), due to its failure to pay to ASIC review fees for the 2005 and 2006 calendar years.
Mr Selcuk was a director of the company from its incorporation, and a secretary from 9 May 2002; he remained in both roles until the company’s deregistration. Apparently he is the only shareholder of the company.
Upon deregistration, all of the company’s property, including the car, vested in ASIC, by reason of s601AD(2) of the Corporations Act. That is to say, the company does not own the car any more.
The fact that the car is now owned by ASIC, or was at the time of the offence owned by the company, does not prevent it from being forfeited to the Crown, if it is “tainted property”. However, the nature and extent of Mr Selcuk’s interest in the car (if any) is relevant to the question of hardship, if I find that the Act applies to the car.
After I had reserved my decision, I became concerned that ASIC ought to be given notice of the application, as it is “a person who has an interest in the property”, within the meaning of s32 of the Act. After giving the parties an opportunity to make further submissions on this point, on 22 October 2007 I ordered that the DPP give ASIC notice of the application. By letter dated 24 October 2007, ASIC advised that it has no objection to the application, does not wish to make any submissions in respect of it and will abide by any decision of the court.
Is the car tainted property?
The court has power to order the forfeiture of “tainted property”. “Tainted property” means, relevantly, property that “was used, or was intended by the defendant to be used in, or in connection with, the commission of the offence” (s3(a) of the Act).
It is clear from this definition that tainted property is not limited to property that is owned by Mr Selcuk. However, where (as here) a third party owns, or has an interest in tainted property, the court may take this fact into account when determining whether to make a forfeiture order.
The DPP did not argue that the car was used “in” the commission of the offence. That was clearly the correct approach, as the use of the car formed no part of the actual offence. However, the DPP argued that the car was used or intended to be used “in connection with” the commission of the offence.
The phrase “used in connection with” is broader than “used in”. Its use in the Act, in equivalent confiscation legislation and in other legislation, has been the subject of divergent judicial interpretation.
On the one hand, some courts in NSW and South Australia have construed “in connection with” as having a very wide meaning, and as not requiring a substantial or direct connection between the offending and the property.[8]
[8]Re Hadad (1989) 42 A Crim R 304, see especially 308; Taylor v Attorney-General (SA) (1991) 53 A Crim R 166 at 176; DPP (NSW) v King (2000) 49 NSWLR 727 at 730-31.
In Taylor v Attorney-General (SA),[9] the South Australian Court of Criminal Appeal held that the phrase “used in connection with”, in the Crimes (Confiscation of Profits) Act 1986 (SA), did not require a substantial connection between the use of the property and the offence, such that “the commission of the offence has to be related to or dependent upon or could not have been committed without or resulted directly from the use of the property”.[10] Instead, Millhouse J described “used in connection with” as “a grammatically loose phrase [with] a wide meaning”,[11] and Debelle J as “an expression of very wide import [which] requires no more than some relationship” – not necessarily a causal relationship or a substantial connection - between the property and the offence in question.[12] The court said that, had the legislature required there to be a substantial connection, it would have stated that the property must be used “in the commission of” the offence.
[9](1991) A Crim R 166.
[10]Ibid per Millhouse J at 170. Section 4(1)(a) of the Crimes (Confiscation of Profits) Act 1986 (SA) applied to property used “for the purpose of committing … or … used in connection with the commission of a prescribed offence.”
[11]Ibid per Millhouse J at 170, with whom King CJ agreed.
[12]Ibid per Debelle J at 175-176.
The NSW Court of Criminal Appeal adopted a similar approach in Re Hadad,[13] a case which concerned an application for the forfeiture of a car which was used to convey the drugs the subject of the offending. In considering the equivalent NSW provision,[14] the court held that the legislature intended that a wide scope be given to the concept of tainted property, and that it was not necessary that there be a substantial connection between the commission of the crime and the property.[15] The court held that the car was tainted property, but declined to order its forfeiture due to the hardship that would thereby flow to an innocent third party.
[13]Op cit.
[14]ss3 and 5, Crimes (Confiscation of Profits) Act 1985 (NSW); the definition of “tainted property” included property “used in, or in connection with, the commission of “a relevant offence.
[15]Per McInerney J at 309, with whom Enderby and Allen JJ agreed.
On the other hand, Hunt CJ took a much narrower approach in DPP (Cth) v Jeffery[16]. His Honour held that the phrase “used… in connection with any unlawful activity” in the Proceeds of Crime Act 1987 (Cth) required:
a substantial connection between the activity in question and the use of the property; it is not sufficient for there to be a mere accidental or incidental connection. The unlawful activity must be related to, or dependent upon, or could not have been committed without, or have resulted directly from, the use of the property.[17]
[16](1992) 58 A Crim R 310.
[17]At 316-317.
Hunt CJ appears to have distinguished the Hadad decision on the basis that the NSW legislation considered in Hadad differed in an important respect from the Commonwealth legislation he was considering. The NSW legislation contained a specific discretion to refuse forfeiture based on the existence of hardship, whereas the Commonwealth legislation did not. The absence of such a discretion led him to apply a stricter interpretation of the words “in connection with”, and to follow the approach of the Queensland Court of Criminal Appeal in Ward, Marles and Graham.[18]
[18](1987) 33 A Crim R 60.
The position in Victoria is less clear. The DPP referred me to the case of DPP v Debs Roberts,[19] in which Cummins J ordered the confiscation of a car used in connection with the murder of two police officers. The officers were shot after they pulled the defendants over at the side of the road; one was shot through the back window of the vehicle. His Honour held that “the vehicle was directly and intimately connected with the murders”.[20] His Honour’s reasons for decision were very brief and did not refer to any authority. It is not clear whether Cummins J was suggesting that the test for “in connection with” was such as to require “direct or intimate connection”, or whether he was merely holding that such a connection existed on the particular facts before him.
[19][2003] VSC 380.
[20]At [10].
There does not appear to be any decision of this court in which the meaning of the words “in connection with” in the Act has been discussed as a matter of principle.
Counsel for the DPP did refer me to the narrow interpretation adopted by a number of judges of this court when construing the phrase “in connection with” in s28(1) of the Road Safety Act1986 (Vic) (“RSA”) and its predecessor.[21] Section 28(1) authorises a court to suspend or cancel a driver’s licence where that person is guilty of an offence “in connection with the driving of a motor vehicle”.
[21]s26(1) Motor Car Act 1958 (Vic).
In one such case, Murdoch v Simmonds,[22] Adam J noted that the words “in connection with” are very wide, general words, and from their context can be given a variety of meanings, wide or narrow.[23] He observed that the cancellation of a licence is of a penal nature, and is an additional punishment above and beyond that otherwise provided for in respect of the offence. Accordingly, he held that “in connection with” required in a “very real sense” that the offence be related to the driving of a vehicle, that there must be a “substantial” connection or relation between the two.[24] That construction has been applied in a number of later cases under the RSA.[25]
[22][1971] VR 887.
[23]Ibid at 888.
[24]Ibid at 889-90.
[25]Including Rochow v Pupavac [1989] VR 73; Buckley v DPP (unreported, Supreme Court of Victoria, 4 August 1994, BC9401208); Crammer v McDougall (1995) 21 MVR 363; R v Lefebure [2000] VSCA 79; R v Novakovic [2007] VSCA 145.
I was also referred to the decision in Rochow v Pupavac.[26] After considering the purposes of s28(1) of the RSA, Nathan J held that the section could apply in four different circumstances, only the last of which might be relevant in the case before me, namely:
… where the driving of the vehicle is inextricably connected with the commission of an offence, but where the vehicle itself may not be driven in a way which itself amounts to an offence. … The test is purposive. If the purpose or reason for driving the vehicle is to commit an offence, even if other means are available to do so, the vehicle is being “driven in connection with” that offence.[27]
[26]Op cit.
[27]Ibid at 76.
Nathan J compared that to cases where the driving was merely an “incidental and peripheral event” to the commission of the offence. On the facts before him, he held that the section was satisfied, because the defendant had driven the car as a means of conveyance to the scene of the theft and for the purpose of getting away afterwards.
Nathan J went on to observe that “No firm rules could or should be expressed other than to say that a connection must not be so remote or fanciful as to offend a reasonable man’s concept of relationship of one event to another.”[28] Ashley J (as he then was) noted in Buckley v DPP, that the observation appeared to go “somewhat beyond” earlier passages in Nathan J’s judgment and the requirement in Murdoch v Simmonds of a “substantial” connection,[29] a criticism which His Honour repeated in R v Novakovic.[30] In R v Lefebure, Tadgell JA, with whom Chernov JA and Hedigan AJA agreed, said that it may be that the time has come to reconcile the conflict between Murdoch v Simmonds and Rochow v Pupavac, when a suitable case arises.[31]
[28]Ibid at 77.
[29]Op cit at 10.
[30]Op cit at [60].
[31]Op cit at [12].
Like the cancellation or suspension of a licence, the forfeiture of property is of a penal nature, and has the effect of imposing an additional punishment above and beyond that otherwise provided for in respect of the offence. That consideration could lead one to adopt the same narrow construction as in Murdoch v Simmonds, so as to require a substantial connection between the offence and the property.
On the other hand, the RSA does not contain a specific discretion not to cancel a licence due to factors such as hardship. Here, s33(5) of the Act permits the court to take into account, amongst other things, any hardship that may reasonably be likely to be caused to any person by the order. Giving weight to that consideration could lead one to adopt the broader construction applied in forfeiture cases such as Taylor v Attorney-General (SA) and R v Hadad.
In the end, it is not necessary for me to choose between the two different approaches, because I am satisfied on the particular facts of this case that there was a substantial or direct connection between the offence and the car. Mr Selcuk asked his brother to come over and drive him around in the car, for the specific purpose of looking for Mr Duran. Although it is not clear on the evidence whether the assault weapon (the baseball bat) was placed in the car at Mr Selcuk’s house, or whether it was already in the car, Mr Selcuk got out of the car at the café, armed with the baseball bat and threatening to kill Mr Duran. Unable to locate him at the café, Mr Selcuk got back in the car with the baseball bat and continued looking for Mr Duran, with the clear intention of using the baseball bat as a weapon when he found him. The car was also used to conceal the weapon as Mr Selcuk travelled around looking for his victim. When the Selcuk brothers came upon Mr Duran, Asim Selcuk parked the car in the intersection, ready for a quick getaway after the attack. After the assault, the brothers fled the scene in the car.
In the circumstances, the DPP has persuaded me that the car was used “in connection with” the offence. The car provided a means of concealment for the weapon used to commit the offence, the means by which Mr Selcuk hunted for his victim with the clear intention of attacking him, and the intended and actual getaway car. It follows that the car is “tainted property” within the meaning of the Act.
Discretionary matters
A forfeiture order “is not an order to be made in a perfunctory way as though it were a natural consequence of a conviction”.[32] Rather, the court has a wide discretion in determining whether to order forfeiture.
[32]Taylor v Attorney-General (SA), op cit at 177 per Debelle J.
Section 33(5) sets out a number of matters to which a court may have regard in determining this application:
(a)the use that is ordinarily made, or had intended to be made, of the property;
(b)any hardship that may reasonably be likely to be caused to any person by the order; and
(c)the claim of any person to an interest in the property having regard to the matters specified in section 50(1).
Each of these matters will be considered in turn.
Ordinary or intended use of the property
It appears that the last time that the car was used by anybody was prior to Mr Selcuk’s arrest for the offence.
Mr Selcuk’s evidence is that he used the car for private purposes, as well as to transport stock for the company’s business (which has subsequently been sold).
It is clear that Mr Selcuk does not intend to use the car as a means of transport, if it is able to be returned to the company (assuming the company were reinstated). Instead, he intends to sell it so that he can use the proceeds to assist his recently widowed mother and to rebuild his life upon his release from prison.
The claim of any other person to the property
Section 50(1) of the Act sets out certain grounds upon which the court can exclude property from the operation of a forfeiture order. In general terms, those grounds operate to protect the interests of “innocent” third parties, being persons who have an interest in the property but were not involved in and had no relevant knowledge of the offending. No exclusion application has been made in this case.
ASIC would be such a person, as it acquired its current ownership of the car without knowing that it was tainted property. However, ASIC has chosen not to make an exclusion application, and has said it will abide by any order of this court.
The company does not presently exist as a legal entity, so no exclusion application could be made on its behalf.
Even if the company had not been deregistered, and was still the owner of the car, an exclusion application by it would have been unlikely to succeed. That is because Mr Selcuk was the only officer of the company; his knowledge was effectively the company’s knowledge. It is difficult to see how the company could possibly have established that it did not have the relevant knowledge for the purposes of s50.
Hardship
The court must consider whether hardship may reasonably be likely to be caused to “any person” by the order. Although he is not the owner of the car, Mr Selcuk argues that he will suffer hardship if the forfeiture order is made.
Something more than “ordinary hardship” is required to be demonstrated, in order for relief to be granted under s33(1) of the Act.[33] In R v Lake, Kirby P said:
In considering hardship, it is necessary to bear in mind that, of necessity, in achieving its objects, the Act will cause a measure of hardship in the deprivation of property. Indeed that is its intention. It is not that kind of hardship, therefore, that can give rise to the relief under [the relevant section]. The provision for relief on that ground must not be so interpreted as to frustrate the achieving of the purpose of Parliament in enacting the exceptional provisions of the Act. Something more than ordinary hardship in the operation of the Act is therefore meant.[34]
[33]R v Lake (1989) 44 A Crim R 63, per Kirby P at 66-67; cited with approval in Taylor v Attorney-General (SA) op cit per Debelle J at 177, Tarzia (1991) 52 A Crim R 102 at 109 and DPP v Gyurcsik [2007] VSC 424 at [17]; R v Tran [2004] VSC 218 at [9]-[10].
[34]Op cit at 66-7.
In R v Winand[35], the Court of Criminal Appeal said that the following matters may be relevant in considering issues of hardship:
… the value of the subject property, the nature and gravity of the offence, the use made of the property, the degree of the offender’s involvement, the offender’s antecedents, the value of any other property confiscated and the penalty imposed, the nature of the offender’s interest in the property, the value of the drugs involved or the size of the crop, whether the property was acquired with the proceeds of the sale of drugs, the utility of the property to the offender, the length of ownership of the property, the extent to which the property was connected with the commission of the offence, the fact that forfeiture is intended as a deterrent, the interest of innocent parties in the property and the extent (if any) to which the retention of the property might bear on the offender’s rehabilitation.
[35](1994) 73 A Crim R 497 at 500-1.
Those factors are not exhaustive, nor are they intended to be applied in a formulaic manner.
I will briefly consider the relevant factors, before turning to what appears to me to be the single most decisive factor in this case, namely the fact that Mr Selcuk has no legal or beneficial interest in the car.
The offence was a very serious example of the offence of intentionally causing serious injury, involving a vicious, unprovoked attack with a weapon on a frail, unarmed victim. Mr Selcuk was the principal protagonist.
Mr Selcuk’s sentence reflected the seriousness of the offence and his role in it. However, it was imposed without any knowledge that the DPP intended to make any forfeiture application.
No other property has been forfeited or is sought to be forfeited in connection with the offence.
The car was lawfully acquired by the company in May 2003. The role which the car played in connection with the offence has already been discussed.
Apart from ASIC, no innocent third party has any interest in the car.
In the context of an application for forfeiture of a vehicle, there might, for example, be hardship caused by deprivation of mobility as a result of the loss of the vehicle.[36] However, no such hardship is claimed here; the only hardship is deprivation of the net proceeds of sale of the car.
[36]Kozarov v DPP [2007] VSCA 74 at [11] per Maxwell P.
Mr Selcuk has no money or other assets. If he had any right to receive the proceeds of sale of the car, I accept that being allowed to keep such money might assist him in his rehabilitation upon release from prison.
However, the facts of this case have thrown up a rather unusual problem, concerning the nature of Mr Selcuk’s interest in the car. In fact, Mr Selcuk has no legal or beneficial interest in the car. He is simply a shareholder in a company which no longer exists and which no longer owns the car.
Even before the company was deregistered, Mr Selcuk’s only rights were his rights as a shareholder in the company. He had no interest in specific assets of the company, such as the car.
The car vested in ASIC when the company was deregistered in July 2006. If no forfeiture order were made, ASIC would be free to dispose of or deal with the car as it saw fit.[37] It may apply the proceeds of sale to defray its own expenses in relation to deregistration and to pay out any liabilities imposed on the property by law.[38] ASIC must then deal with any balance in accordance with the unclaimed monies provisions in part 9.7 of the Corporations Act. In particular, if the company is not reinstated and the net proceeds claimed within 6 years, the proceeds will be paid into consolidated revenue.
[37]Corporations Act s601AE(2)(a).
[38]Corporations Act s601AE(2)(b).
In other words, even if no forfeiture order were made, Mr Selcuk has no interest in the car or the proceeds of its sale, because ASIC owns it. In those circumstances, how could it be said that forfeiture of the car would cause hardship to Mr Selcuk?
The most that might be said in Mr Selcuk’s favour is that there is a theoretical possibility that, at some future time, he may be able to receive an unknown amount of the net proceeds of the car, if he could overcome all of the following hurdles.
Before ASIC could be divested of the car (other than by forfeiture under the Act), the company would have to be reinstated under s601AH of the Corporations Act. If ASIC is not prepared to reinstate under s601AH(1),[39] then an application would have to be made to the Supreme or Federal Court for reinstatement under s601AH(2). Mr Selcuk’s status as a shareholder[40], or as a director,[41] is insufficient to give him standing to make a deregistration application as “a person aggrieved by the deregistration”. Furthermore, the court’s power to reinstate even on the application of an aggrieved person (such as the company itself) is entirely discretionary.
[39]ASIC has informed Mr Selcuk that it may reinstate the company if either there was a procedural error by ASIC prior to deregistration, or the company was carrying on business or in operation at the time of deregistration. In fact, it is clear on Mr Selcuk’s own evidence that the company was no longer carrying on business or in operation at the time of deregistration. There is also nothing in the evidence before me to suggest that ASIC made any procedural error.
[40]Re Waldcourt Investment Co Pty Ltd [1988] 1 WAR 1; Casali v Crisp (2001) 165 FLR 79; Euphron Pty Ltd v Hunter Valley Piggery Pty Ltd [2003] NSWC 543.
[41]Re Piccoli Tesori Pty Ltd (Deregistered); Ex parte Bertuol (2006) 151 FCR 109.
The company now owes ASIC more than $2,000 in fees and penalties.[42] Additional fees would need to be paid to ASIC if a reinstatement application were made to ASIC under s601AH(1). Even a relatively simple reinstatement application to a court would be likely to cost thousands of dollars, including the payment of ASIC’s legal fees. On the evidence before me, it is clear that neither Mr Selcuk nor the company has any capacity to pay the outstanding fees or the cost of any application for reinstatement.
[42]According to a letter from ASIC to Mr Selcuk dated 8 November 2007.
There is also no evidence before me as to whether any amount was owed by the company to any other creditor at the time of deregistration. A company search shows that there are two unsatisfied fixed and floating charges over the company’s assets, granted in 2002 in favour of 7 Eleven Stores Pty Ltd. It may be that, even if reinstated, the company would have no equity in the car if money was still owing to the secured creditor.
Even if:
(a) Mr Selcuk could somehow find the thousands of dollars needed to pay the outstanding ASIC fees and reinstatement costs;
(b) An application for reinstatement of the company was successful; and
(c) There was some equity left in the car after creditors had been paid out,
Mr Selcuk would then have to find some legal mechanism for obtaining the car or proceeds of its sale from the company (for example, by way of dividend, director’s fees or loan repayment). Although he may be the sole shareholder of the company, he cannot simply “take” the car or its proceeds from the company. Such a mechanism may well involve the payment of some income tax, thereby reducing even further the amount which Mr Selcuk might be left with.
As mentioned earlier, neither Mr Selcuk nor the company has any automatic right to have the company reinstated. Even if all relevant financial information were provided to me, I am not able to make any finding as to how a court hearing an application for reinstatement of the company would exercise its discretion, were such an application to be made.
The simple fact that Mr Selcuk has neither a legal nor beneficial[43] interest in the car seems to me to destroy any claim of hardship. Even if I were entitled to look beyond that simple fact, and could consider the theoretical chance of some future receipt of an unknown amount derived from the net proceeds of sale of the car, for the reasons just discussed I would conclude that Mr Selcuk’s prospects are too remote and uncertain to lead me to a finding of hardship.
[43]Kozarov v DPP op cit at [11].
For all of these reasons, I am not satisfied that the forfeiture of the car would cause relevant hardship to Mr Selcuk such as might justify not forfeiting the car.
Conclusion
I have concluded that the car is “tainted property” within the meaning of the Act.
There are no discretionary factors which would lead me to refuse to make the forfeiture order.
It follows that the DPP’s application for forfeiture of the car must succeed.
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