Finn v Director of Public Prosecutions
[2011] VSC 234
•2 JUNE 2011
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
PRACTICE COURT
CRIMINAL DIVISION
No. 1601 of 2007
IN THE MATTER of the Confiscation Act 1997 and
IN THE MATTER of the alleged offender Matthew John Finn and
IN THE MATTER of an application by Matthew John Finn for an extension of time
| MATTHEW JOHN FINN | Applicant |
| V | |
| DIRECTOR OF PUBLIC PROSECUTIONS FOR VICTORIA | Respondent |
No. 1602 of 2007
IN THE MATTER of the Confiscation Act 1997 and
IN THE MATTER of the alleged offender Wayne Patrick Finn and
IN THE MATTER of applications by Wayne Patrick Finn, Sabina Marianne Weck and Jay and Sharlea Pty Ltd for an extension of time
| WAYNE PATRICK FINN SABINA MARIANNE WECK SHARLEA PTY LTD | Applicants |
| V | |
| DIRECTOR OF PUBLIC PROSECUTIONS FOR VICTORIA | Respondent |
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JUDGE: | DIXON J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 31 MAY 2011 | |
DATE OF JUDGMENT: | 2 JUNE 2011 | |
ORIGINATING PROCESS: | APPLICATION FOR EXCLUSION ORDER | |
CASES MAY BE CITED AS: | FINN v DPP | |
MEDIUM NEUTRAL CITATION: | [2011] VSC 234 | |
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CONFISCATION OF PROPERTY – Restraining order made in 2007 - Application for exclusion order – Application out of time – Whether time ought be extended - Confiscation Act 1997 , ss.20 and 22.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr C Juebner | Garde-Wilson Lawyers |
| For the Respondent | Ms A Duran | Solicitor for Public Prosecutions |
HIS HONOUR:
If a court makes a restraining order pursuant to s 18 of the Confiscation Act 1997, any person claiming an interest in the property may apply, within 30 days, to that court for an order excluding that person’s interest in the property from the operation of the restraining order. The court has a discretion to extend that period. The applicants seek by application filed on 2 May 2011 to exclude the applicant’s interest in property from the operation of a restraining order made on 16 November 2007. The issue to be resolved today is whether, in the circumstances I will describe, the Court ought to extend the period in which that application may be made.
On 14 November 2007, Matthew John Finn and Wayne Patrick Finn, who are brothers, were charged with serious drug offences. Those charges are currently being heard before the Honourable Justice Nettle, sitting with a jury. Shortly prior to being charged, the Finn brothers instructed Zarah Garde-Wilson as their solicitor in connection with these matters.
On 16 November 2007, the Honourable Justice Williams, acting pursuant to s 18 of the Act made two restraining orders. The restraining order in proceeding 1601 of 2007 against Matthew Finn affected a property located at 268 Huntingdale Road, Huntingdale. The restraining order in proceeding 1602 of 2007, in respect of Wayne Finn, affected the following property:
·266 Huntingdale Road, Huntingdale;
·270 Huntingdale Road, Huntingdale;
·94 Derril Road, Portland;
·96 Derril Road, Portland;
·2002 Mercedes Benz motor vehicle VEE 855; and
·The sum of $67,700 in cash.
Upon that ex parte application, the Director of Public Prosecutions alleged that the Finn brothers were engaged by Antonios Mokbel to produce methylamphetamine from early 2005 and did so in a factory leased to Strata Plumbing Pty Ltd, the directors of which were Matthew Finn, apparently a plumber by trade, and his sister Tanya Finn. The property at 268 Huntingdale Road was acquired by Matthew Finn and Tanya Finn as tenants in common in January 2002. A mortgage to Perpetual Trustees was registered in February 2006.
Wayne Finn became registered as the proprietor of the property at 266 Huntingdale Road on 23 August 2002, when the Adelaide Bank was also registered as a mortgagee. He acquired title to the property by a transfer from Timothy Michael Finn and Grace Marion Finn, the consideration noted as being entitled in equity. Wayne Finn became registered as proprietor of the property at 270 Huntingdale Road, Huntingdale on 21 March 2006 when Permanent Custodians were registered as mortgagee. The stamped transfer discloses that Wayne Finn acquired this property for a consideration of $315,000 from the same transferors. As the exclusion application is presently limited to the interests claimed in these two properties, I need not refer further to other property affected by the order restraining Wayne Finn.
As their trial became imminent the Finn brothers obtained legal aid and made application, pursuant to s 143(1) of the Act, to enable the legal assistance from Victoria Legal Aid to be secured by a charge over properties including the Huntingdale Road properties. On 13 May 2011, the Honourable Justice Robson granted that application.
In the meantime what is described as an oversight emerged and on 2 May 2011 application was made for an extension of time within which to make an application for an exclusion order. In proceeding 1601 of 2007 the applicant is Matthew Finn. In proceeding 1602 of 2007 there are three applicants: Wayne Finn, Sabina Weck and Jay & Sharlea Pty Ltd.
I will digress briefly to note that on about 22 May 2011 it was discovered that Jay & Sharlea Pty Ltd was deregistered on 18 October 2009. Steps are yet to be taken for its reinstatement and I was informed from the bar table that the urgency for such steps is recognised. Application was made to withdraw the application by Jay & Sharlea Pty Ltd and that application was not opposed by the Director. I will make appropriate orders.
The present application is based upon three affidavits. Each of the Finn brothers has sworn an affidavit and there is an affidavit from their solicitor Zarah Garde-Wilson. For the Director, Ms Duran was critical of the fact that Ms Sabina Weck had not sworn an affidavit in support of her application. As this application is interlocutory, I do not consider the absence of an affidavit from Ms Weck to be, of itself, fatal to her application.
Having noted these matters by way of background and before turning to set out the matters relevant on the application, I will describe the statutory environment.
Section 20(1) provides that if a court makes a restraining order against property under s 18, any person, including the defendant, claiming an interest in the property may apply to that court for an order excluding the applicant’s interest in the property from the operation of the restraining order. Here, it is common ground that the matters upon which the Court is to be satisfied before granting exclusion are set out in s 22 of the Act, as the restraining order was made in relation to a Schedule 2 offence for the purposes of automatic forfeiture.
An exclusion application must be made within 30 days after service of the restraining order. However, the Court has a discretion to extend that period:
20 Application for exclusion from restraining order
…
(1B)The court may extend the period within which an application may be made, whether or not that period has expired, if it is in the interests of justice to do so.
Notice of the application and, subject to subsection (6), of the grounds on which it is made must be given to the applicant for the restraining order and any other person with an interest in the property. Subsection (6) provides:
(6) If—
(a)a court makes a restraining order against property under section 18 in relation to a Schedule 2 offence; and
(b)a person claiming an interest in the property is charged with the Schedule 2 offence or a related offence that is a Schedule 2 offence; and
(c) that person applies for an order under section 21, 22 or 24—
the person need not give notice of the grounds on which the application is made until the charge against the person is finally determined or is withdrawn.
I was informed by counsel that their researchers did not reveal prior judicial consideration of these provisions. In the limited time available to me, my researchers seem to confirm that this is so.[1]
[1]In Director of Public Prosecutions v Hai Minh Nguyen; DPP v Duncan [2008] VSC 292 this issue was raised before Smith J in proceedings by way of judicial review pursuant to Order 56 which were resolved on other grounds, his Honour finding it unnecessary to consider this point.
Provisions for discretionary extension of time are common. There are many cases to which reference might be made. It is not appropriate to construct a formula of arbitrary principles from relevant factors identified on other occasions in different circumstances to be applied when considering an application under s 20(1B). This is not to say that it is unhelpful to identify, from other contexts, matters commonly thought of particular relevance, particularly when considering the material upon which the Court is asked to exercise its discretion. Rather it is to underline that the discretion, under s 20(1B), is unfettered, to be exercised flexibly with regard to the circumstances of the particular application. The broad unfettered discretion is clear in the language of Parliament: the court may extend the period if it is in the interests of justice to do so.
In Gallo v Dawson,[2] McHugh J summarised the principles relevant to a grant of an extension of time in which to file and serve a notice of appeal. His Honour described the discretion as given for the sole purpose of enabling the court to do justice between the parties. The discretion can be exercised in favour of an applicant where strict compliance with the statutory time limit will work an injustice upon the applicant. In order to determine whether an injustice may follow, his Honour directed inquiry to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties if granted or refused the application for extension of time. Although the statutory context of the time period I am considering is not the same, these observations are pertinent.[3]
[2][1990] HCA 30; (1990) 93 ALR 479, 480-481; Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257, 263.
[3]See also Jackamarra v Krakouer (1998) 195 CLR 516; [1998] HCA 27; Komba v National Australia Bank Limited [2010] VSCA 232; Cooper v Sztainbok[2009] VSCA 73; Knight v Spadano [2003] VSCA 228 at [12]–[13]; Josepha Van Rooy v County Court of Victoria [2006] VSCA 56 at [9]–[10].
In the Court of Appeal, in Luxmore Pty Ltd v Hydedale Pty Ltd, Maxwell P and Kellam JA stated, in the same context:
The interests of justice will almost always require that an extension of this kind be granted where there is an explanation for the non-compliance and there is no irremediable prejudice to the other party. Of course there will be circumstances in which the appeal is so obviously hopeless that the Court could be satisfied that the extension would really be futile.[4]
[4][2008] VSCA 212 at [3] (citations omitted); see also Cooper & Anor v Sztainbok [ 2009] VSCA 73.
Bearing these general principles in mind, I consider that the additional considerations which would ordinarily be addressed on an application under s 20(1B) include:
·The period of delay;
·Explanations for the delay and the reasons advanced to justify delay being excused;
·Whether there is any injustice or prejudice to any applicant for exclusion if the period is not extended;
·Whether there is any irremediable prejudice to the Director if the period is extended;
·Whether the prospect of success of the application is realistic, not fanciful;
·The history of the proceedings under the Act and of the prosecution of the charges faced by the defendant; and
·The statutory context of orders providing exclusion from restraining orders.
I shall deal with the last of these considerations first. Proceedings on an application under the Act are civil in nature although the rules regulating the practice and procedure of a court in civil proceedings do not apply.[5] Having regard to the definition of “civil proceeding” in the Civil Procedure Act 2010, there is a nice question whether that Act applies to this application. As this matter was not argued before me, I will say nothing further about it. I do not need to consider the overarching obligations under that Act, or the paramount duty to the court where the overarching obligations apply in resolving the applications before me.
[5]s 133.
It is important to bear in mind that the restraining orders were obtained immediately after charges were laid, by application under s 16 of the Act. In the circumstances of the Finn brothers, the Act provides for automatic forfeiture of restrained property 60 days after the defendant’s conviction, save for interests in restrained property which are subject to an exclusion order under s 22. Property is forfeited to “the Minister”, an office which does not appear to be defined further by the Act. I shall assume forfeiture is to the State of Victoria and not pause to further consider the meaning of the undefined term.[6]
[6]Presumably regard is had to s 38 of the Interpretation of Legislation Act 1984 which states, perhaps helpfully:
Two matters follow. A right to forfeiture does not vest until conviction. The exercise of the discretion to extend time prior to conviction does not affect vested forfeiture rights. It is not appropriate to approach the exercise of the discretion on the basis that the respondent has the present benefit of any vested right of forfeiture, which might be prejudiced merely by extending the relevant period. The time limit does no more than strive for administrative efficiency. It is not directed to achieving finality in resolving exclusion and forfeiture issues.
The second matter is, in my view, important. There is no provision in the Act requiring notice to be given to the defendant, or other parties whose interests are affected, of rights and of time limits which govern the exercise of those rights. Where, as here, application for the restraining order is made ex parte, the requirement of notice is limited to notice of the order made under s 19. Because, in the circumstances of this application, the legislation effects an automatic forfeiture of property, the absence of statutory requirements for notice constrains the opportunity for both defendants and third parties to seek exclusion of interests in property from a restraining order. The failure of the legislative scheme to provide for appropriate notice to the owners of interests in property creates a risk that property will be forfeited in ignorance and without lawful justification. This risk was exposed by Smith J in Director of Public Prosecutions v Hai Minh Nguyen; DPP v Duncan[7] but his Honour’s suggestions appear to have fallen on deaf ears.
[7](2008) 19 VR 62 at [41]-[44].
The real, substantial, and draconian effect of automatic forfeiture is an important consideration in exercising the discretion to extend the period for an exclusion application. The discretion, qualified only by reference to the requirements of the interests of justice, is wide and unfettered, to be exercised after taking account of all of the relevant circumstances in each individual case. It is inimical to the interests of justice that there may be a risk that property will be forfeited in ignorance and without lawful justification. Assessed on the balance of probabilities,[8] strict compliance with the statutory time limit is likely to work an injustice upon an applicant. These considerations invite a liberal approach in favour of an applicant to the application under s 20(1B) to extend the period.
[8]See s 132 of the Act.
Turning to the particular circumstances of this application, plainly there is a substantial period of delay. The application for exclusion ought to have been made by the end of 2007.[9] Two factors militate extensively against negative significance of this period of delay in the exercise of the discretion. The first is that the applicant’s solicitor admits that the failure to make the applications for exclusion orders within time was a mistake or an oversight on her part. I accept her explanation, which was neither contradicted by an opposing affidavit nor the subject of cross-examination. It is a plausible admission of omission.
[9]The exact date of service of the order is not in evidence, precluding calculation of the exact date when the s 20(1A) period expired.
Shortly after the restraining orders were made, Ms Garde-Wilson was aware of them. On 26 November 2007, she witnessed property interest declarations prepared and forwarded to the police following service of the orders. Ms Garde-Wilson stated that she was instructed by the Finn brothers to “take whatever steps were necessary to protect their interests and the interests of Sabina Weck and Jay & Sharlea Pty Ltd”. It is not in issue that Sabina Weck is the long term de facto partner of Wayne Finn and lived with their children in one of the properties. Ms Garde-Wilson told the Finn brothers that she would prepare applications for exclusion and that once they were filed, the confiscation matters would not require attention until after the criminal charges were determined. This was a reference to the common practice under the Act by which the final hearing of exclusion application awaits determination of the criminal charges. Having received this explanation of the process, I do not consider the Finn brothers inappropriately failed to press their solicitor to ensure the applications had been filed.
On 23 November 2007, Mr Shane Tyrrell of counsel was instructed that the restraining orders had been served and that Ms Garde-Wilson would make arrangements for the Finn brothers, and their sister, to attend upon him in conference at a convenient time. Although the letter of instruction is not recognisable as the product of a diligent solicitor, I do not accept the criticisms of Ms Duran. Often, in criminal practice, no other instructions are provided to counsel beyond the opportunity to confer with the client.
In or about late March or early April 2011, when Ms Garde-Wilson realised that no application for exclusion had been filed on behalf of the applicant, Mr Tyrrell apparently admitted that he had forgotten to prepare those applications. Each of the Finn brothers confirmed on oath that they were informed by Ms Garde-Wilson at or about this time that the applications had not been made because they had been overlooked by counsel and by her office. The oversight was not deposed to by Mr Tyrrell.
The failure of Ms Garde-Wilson to appreciate that counsel had overlooked the matter is explained in this way. Ms Garde-Wilson stated that, at the time she instructed Mr Tyrrell to prepare the applications, she was practising in partnership and asked her partner, whose background was practising in civil rather than criminal law, to take over the conduct of these applications and that she believed this had occurred. There was an acrimonious split in the partnership in 2008.
Because the common practice is to make application but defer the resolution of it until the completion of the criminal proceedings, it is unsurprising that a substantial period of time has elapsed before Ms Garde-Wilson became aware of this oversight.
In these circumstances I consider that the length of the delay and the reason for it have been satisfactorily explained. I can see nothing in these circumstances which warrants a conclusion that the applicants ought to have followed up with their legal advisers or applied pressure to ensure that the applications had been issued. I can see nothing in the Act which warrants a conclusion that an applicant must be saddled with the consequences of mistakes or incompetence on the part of their legal advisers.
Next, it is important to note that the Director has, appropriately, conceded that there is no issue of prejudice should the period be extended. There is, I consider, a substantial risk of prejudice to the applicants in the event that the period is not extended. Forfeiture would automatically follow on conviction, on the basis of a restraining order obtained on an ex parte application, without any opportunity for consideration of the merits of claims to interests in the property in competition with the statutory forfeiture rights of the State of Victoria. The right to be heard in relation to such competing interests before that draconian consequence would be extinguished by a mere 30-day time limit enforced at the time charges are laid rather than at the time of conviction.
Ms Duran, for the Director, contended that the affidavit material relied on by the applicant did not establish material facts upon which an exclusion order might be thought appropriate. In substance, the submission was that the prospects of success of the applications for exclusion are fanciful. I disagree. Two matters are relevant.
First, I set out above the provisions of s 20(6), which excuses an applicant who is a person charged from giving notice of the grounds upon which the application is made prior to the final determination or withdrawal of the charge. This section permits an applicant to defer not just the disclosure of the evidence upon which the application for exclusion is made but also the grounds upon which the application is made. The section provides justification for giving little or no weight to the merits of the application, whether the prospects of success are more than fanciful, when exercising the discretion to extend time under s 20(1B). That alone is sufficient to dispose of the Director’s submission in respect of the applications made by the Finn brothers.
Second, I would go further, particularly in respect of Ms Weck who is not a “person” contemplated by s 20(6). Under s 22, the Court may make an order excluding the applicant’s interest in the property from the operation of the restraining order if satisfied of four matters:
(1)The property in which the applicant claims an interest was lawfully acquired by the applicant.
(2) The property is not tainted property.
(3) The property is not derived property.
(4)The property will not be required to satisfy any pecuniary penalty order or order for restitution or compensation.
“Interest”, in relation to property is widely defined by the Act[10] to mean, amongst other things, a legal or equitable estate or interest in the property.
[10]s 3.
In each case, Matthew Finn and Wayne Finn have stated on oath, albeit in the briefest possible way, the circumstances which suggest that the property was lawfully acquired by them. While these statements have not been supported by documentary exhibits demonstrating, in appropriate detail, the circumstances of the acquisition of the properties, I consider that the statements on oath, not challenged by the Director at this stage, are adequate. Further, the assertions on oath that the property is not tainted property, is not derived property or will not be required to satisfy any pecuniary penalty order, or an order for restitution or compensation, are plainly matters which the Director could, if so minded, have challenged.
Wayne Finn has further stated, and Ms Garde-Wilson in part confirmed, that Sabina Weck is his long term de facto partner. They have been in a family relationship for approximately 20 years and have three children. The properties at 266 and 270 Huntingdale Road were purchased during the course of their relationship. While 266 Huntingdale Road is an investment property, 270 Huntingdale Road is the family home. As the sole registered proprietor of both properties, Wayne Finn has acknowledged that Sabina Weck has an interest in these two properties, notwithstanding that she is not registered on title. In my view, when considering whether her prospects of success in obtaining an exclusion are more than fanciful, it matters not that the precise extent of the claimed interest is not presently certain. Further, the extent of the interest of Sabina Weck turns, at least in part, on the acknowledgement Wayne Finn who presently has the benefit of s 20(6).
For these reasons I propose to extend the period within which an application for exclusion from the respective restraining orders may be made by each of Matthew Finn, Wayne Finn and Sabina Weck.
I will hear counsel as to the form of such orders and upon the question of costs.
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Minister means the responsible Minister of the Crown for the time being administering the provision in which, or in respect of which, the expression is used or, if, for the time being, different Ministers are administering that provision in different respects, each of those Ministers to the extent that he or she is administering that provision in the relevant respect, and where a Minister of the Crown is referred to by the title of his or her Ministerial office, the reference shall be construed as including a reference to a Minister of the Crown for the time being acting for or on behalf of that Minister.
The Attorney-General is, apparently, the minister administering the Confiscation Act1997.
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