DPP v Smith
[2003] VSC 138
•10 April 2003
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
No. 1521 of 2000
| DIRECTOR OF PUBLIC PROSECUTIONS | Applicant |
| v | |
| ALLAN JOHN SMITH and JODIE NICOLE SMITH | Respondents |
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JUDGE: | BONGIORNO J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 April 2003 | |
DATE OF JUDGMENT: | 10 April 2003 | |
CASE MAY BE CITED AS: | DPP v Smith & Anor | |
MEDIUM NEUTRAL CITATION: | [2003] VSC 138 | |
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Application under s. 32 Confiscation Act 1997 – application for dismissal application - whether application made at trial– requirement of written notice not complied with within time - strict compliance with the rules required in contested matters
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr P McDermott | Office of Public Prosecutions |
| For the First respondent | Mr S Grant | Victor C Andreou |
| For the Second respondent | Mr J Montgomery | Martin Irwin & Richards |
HIS HONOUR:
Allan John Smith was arraigned in the Mildura Supreme Court on 27 November 2001 on, among other things, one count of trafficking in a drug of dependence, namely ecstasy and cannabis. He pleaded guilty to that count, and on 14 January 2002 the Court heard a plea in mitigation and deferred sentencing. Sentence on Smith was passed on 12 April 2002, when he was sentenced to four years' imprisonment with a minimum term of two years and nine months.
On 14 January, at the end of the plea, a discussion occurred between the Court and the Crown prosecutor and counsel for the defence concerning an application, either made or to be made, by the Director of Public Prosecutions or the Crown for forfeiture of a number of items which had been seized by the police in the process of investigating and prosecuting Smith and, to some extent, his co-accused Starr.
That discussion, which is transcribed and commences at page 8 of the transcript of that day, included a number of passages to which I shall refer. The first of them was where the Crown prosecutor, Mr Moore, said:
"Your Honour, there is an application, Your Honour, for forfeiture of a number of items which have been seized by the police. Perhaps I'll just hand these exhibits lists to my learned friend. Actually, I'll go through them, I think, Your Honour. This was - I was doing this immediately before Your Honour came to the Bench, Your Honour. I've given copies of this exhibit list to my learned friend. I'll just indicate what are the items sought to be forfeited."
There was then some discussion about the items which the Crown was seeking to have forfeited, which went on for some time, and then at p age 10 the Court said: "That application is made under what section?" The prosecutor replied: "It's actually under the Confiscation Act, Your Honour, s.32 dealing with forfeiture of property." The Court said: "Yes. There may be different grounds in relation to different items, I take it." The discussion then continued.
There was further discussion concerning the opposition of defence counsel for Mr Smith to the making of an order, and it became clear that there was a contest in his case, if not in the case of Starr, in respect of some or all of the items that the Crown sought to seize.
At page 12 of the transcript Mr Grant, for Smith, said: "Perhaps I can indicate which ones will be argued." The Court replied: "I don't think you need to, Mr Grant, because I think I'll have to get the Crown to particularise its claim in relation to these."
There was further discussion during which counsel for Starr, Smith’s co-accused, indicated that his client did not oppose the making of any such order, and then this exchange took place, at p age 13.
The Court:"Some of them, as you say, are allegedly tainted property, some of them are things used in the commission of the crime. I think it might be more appropriate if this was particularised by the Crown for Mr Grant's client's benefit, and I don't know whether it's possible to have further discussions with Mr Grant. You may be able to resolve the matter, but perhaps you can't, and it will have to be litigated in some way."
Mr Moore:"Your Honour, there is under s.32 of the Confiscation Act that the normal situation would be that the applicant, being the prosecution, would be required to give written notice of the application. That can be waived either by consent or by order of the Court, as I understand the section. I hear what my learned friend says. If it has to be litigated, it will be, Your Honour, on written notice."
The Court:"I won't make any interlocutory orders in relation to - and I'll leave it to you to talk to Mr Grant - but the intention that I would express would be that the Crown would have to give proper particulars in one way or another. There's probably a statutory form, is there, for the application? Well, if there isn't, in any event…".
Mr Moore:"I can tell Your Honour the number of ones that I had where there's been confiscation applications they've actually been done on affidavit."
The Court:"Well, yes, you'll need - whether you need an affidavit or not, ultimately you'll need some evidence to justify the position."
Mr Moore:"Yes, Your Honour."
The Court:"And if that can conveniently be put on affidavit, well, then it ought to be and served on the defence and you'll have to - I'll then have to set aside whatever time is necessary to deal with that."
Further on, a further exchange took place. This is at page 14.
The Court"All right. Well, in that case I'll simply note that the Crown has made the application, that there's no objection to it by Mr Lindner's client so that he need be no further involved in it, and that the Crown will give appropriate notice to Mr Smith's solicitors for the purpose of bringing this application on before me on a convenient date in Melbourne at some time in the relatively near future by liaison with my Associate."
Mr Moore: "Thank you, Your Honour."
The Court: "Is that satisfactory to you, Mr Grant"
Mr Grant "Yes."
Subsequently on 12 April when Smith was sentenced, at the end of the sentencing remarks the Court said:
"Finally, I note that there is still outstanding an application by the Crown against you, Smith, for confiscation orders in respect of various items of property. I gave informal directions for the trial of that issue when this matter was heard in Mildura. I do not know whether those directions have been complied with, or whether the matter is still extant. I shall accordingly reserve liberty to the Crown and to you, Smith, to apply to either bring the application on for hearing or to dismiss it for want of prosecution on notice to the other party on a date to be arranged with my associate."
10. Section 32 of the Confiscation Act 1997, which confers the jurisdiction on the Court to make a forfeiture order refers to an application being made to the Court. It also commands that the applicant must give written notice of the application to the defendant and to any other person whom the applicant has reason to believe has an interest in the property which is sought to be forfeited.
11. In this case what in fact occurred was that no written notice was given or filed in the Court or served on the defendant until 22 December 2002. This notice, it appears, might well have been prompted by notification given on 6 December 2002 by the defendant’s solicitors that the defendant intended to move the Court for dismissal of the application for want of prosecution. The notice when it was given was accompanied by an affidavit which deposed to the grounds upon which the order was sought but made no reference to why the application had taken so long to be filed in the Court and served.
12. The time for making an application under s.32 in the circumstances of this case was six months from 27 November 2001; that is to say, before 27 May 2002.
13. There are relieving provisions in the Act for a failure to give notice and, of course, so far as the Rules are concerned there is always a power in the Court to dispense from compliance in an appropriate case.
14. In this case the argument has been confined by a proper concession made by Mr McDermott for the Director of Public Prosecutions that if the application was not in fact made in the exchange to which I have referred between the Crown prosecutor and the Court in Mildura on 14 January 2002 then no application has been made and there is no basis for the Court exercising any jurisdiction.
15. This relieves the Court from determining whether the form of the application now before the Court is appropriate. It does not appear to comply strictly with Order 6 of Chapter 6 of the Rules of the Supreme Court in a number of respects. Rules 6.03 and 6.04 were also not complied with as to the form of the application and as to service of it.
16. It follows then that the only matter I have to determine is whether on 14 January 2002 there was an application made to the Court by the DPP for a forfeiture order.
17. Notwithstanding the fact that some of the language used by the Court particularly, if not by the Crown prosecutor, would suggest than an application was on foot, I am satisfied that the discussion there did not constitute an application. The reason I say this is that it appeared to be clearly in the mind of both the Court and the prosecutor that if there was some statutory form or documentation required that that would be attended to.
18. There was no reference to the fact that time was running, or that time might expire in May of 2002, it being assumed that the application would be brought in the appropriate form within the appropriate time.
19. Counsel for Smith on this application, Mr Grant, has characterised what occurred on 14 January as the foreshadowing of an application, and I agree with that characterisation of what in fact occurred. It would appear that the Crown prosecutor was simply saying, "We are going to make such an application." If the forfeiture application had been consented to at that time the formalities might well have been waived and an order might have been able to have been made by consent without the necessity for notice, as was done in the case of Mr Starr the co-accused. But it was clear from the exchange between Mr Grant and the Court that there was to be a contest in respect of these items sought to be forfeited. That contest had to take place in accordance with the law.
20. The Court of Appeal in Savvinos v. Director of Public Prosecutions[1] made it clear that the act of forfeiture is a serious matter in that it enables the State to seize from a citizen property which in ordinary circumstances would be the property of that citizen. Strict compliance with the law as to such forfeiture is a condition precedent to the exercise of the jurisdiction. In Savvinos the Court was dealing with the question of whether there should be an indulgence granted to extend time. The Court made it clear that such indulgence would only be extended in appropriate cases and on appropriate material. That, of course, is not a matter that is before this Court because, as I have indicated, Mr McDermott accepts that if the application was not made on 14 January 2002 then it has not been made within time and that situation could not be rectified.
[1][1996] 2 VR 43
21. In all the circumstances, I am satisfied that the application was not made on 14 January 2002. Accordingly, the application which was instituted on 17 December and served on 22 December 2002, is out of time and should be dismissed.
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