Franco v State of SA - [2016] SASC 29

SUPREME COURT OF SOUTH AUSTRALIA
(Magistrates Appeals: Criminal)
FRANCO v STATE OF SA
[2016] SASC 29
Judgment of The Honourable Justice Bampton
4 March 2016
MAGISTRATES - APPEAL AND REVIEW - SOUTH AUSTRALIA - APPEAL TO SUPREME COURT
CRIMINAL LAW - PROCEDURE - CONFISCATION OF PROCEEDS OF CRIME AND RELATED MATTERS - FORFEITURE OR CONFISCATION - APPEAL OR REVIEW
Appeal against Magistrate’s dismissal of application for interest on monies seized in January 2004 pursuant to s 30 of the Criminal Assets Confiscation Act 1996 (SA) (the 1996 Act) – the 1996 Act repealed and replaced by the Criminal Assets Confiscation Act 2005 (SA) (the 2005 Act) on 2 April 2006 – no interest entitlement under the 1996 Act – section 228 of the 2005 Act entitles a person whose money is seized and required to be paid back to interest – whether transitional provision in clause 11 of Part 7 of Schedule 1 of the 2005 Act operates so as to deem seizures pursuant to warrants issued under the 1996 Act to have occurred under the 2005 Act.
Held:
1. Transitional provision of the 2005 Act does not apply to warrants issued under the 1996 Act.
2. Appeal dismissed.
Criminal Assets Confiscation Act 1996 (SA) s 8, s 9, s 30, Part 3; Criminal Assets Confiscation Act 2005 (SA) s 228, Sch 1, cl 11; Taxation Administration Act 1953 (Cth) Sch 1, s 260-5, referred to.
Director of Public Prosecutions v Kobelt & Ors [2007] SADC 57, distinguished.
Love v Attorney-General (NSW) (1990) 169 CLR 307, considered.

FRANCO v STATE OF SA
[2016] SASC 29
Magistrates Appeal: Civil

BAMPTON J: Vittorio Franco appeals a Magistrate’s dismissal of his application for interest on monies seized in January 2004 during the execution of two warrants issued pursuant to s 30 of the Criminal Assets Confiscation Act 1996 (SA) (the 1996 Act).
The Criminal Assets Confiscation legislation
The 1996 Act was repealed and replaced by the Criminal Assets Confiscation Act 2005 (SA) (the 2005 Act) which came into operation on 2 April 2006. The 1996 Act did not provide an entitlement to interest. By contrast, the 2005 Act entitles a person to interest payable by the Crown in respect of property seized or forfeited and required to be paid back. Section 228 of the 2005 Act provides:
228—Interest
(1)If—
(a) money of a person is seized or forfeited under this Act; and
(b) not less than one month after the seizure or forfeiture, the money (or an equal amount of money) is required under this Act to be paid back to the person or the person is required to be compensated by the Crown under this Act in respect of the seizure or forfeiture,
the person is entitled to be paid interest on the money at the prescribed rate.
(2)An amount payable by the Crown under this section is recoverable as a debt.
(3)Except as provided by this section, no interest is payable by the Crown in respect of property…

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.

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Details

Case: [2016] SASC 29
Decision Date: 4 March 2016

CaseChat Overview and Summary

In the case of Franco v State of South Australia, the appellant sought interest on funds seized by the police under section 30 of the Criminal Assets Confiscation Act 1996 (SA) in January 2004. The seizure occurred prior to the Act's repeal and replacement by the Criminal Assets Confiscation Act 2005 (SA) on 2 April 2006. The primary legal issue was whether the appellant was entitled to interest on the seized funds, and if the transitional provisions of the 2005 Act could be applied to the seizure made under the 1996 Act.

The court was required to determine the applicability of section 228 of the 2005 Act, which provides for interest to be paid to a person whose money is seized and subsequently required to be paid back. The central question was whether clause 11 of Part 7 of Schedule 1 of the 2005 Act, the transitional provision, could be interpreted to deem seizures under the 1996 Act as occurring under the 2005 Act, thereby entitling the appellant to interest.

The court examined the language and intent of the transitional provision in the 2005 Act, considering whether it was meant to apply retroactively to seizures made under the 1996 Act. After careful analysis, the court concluded that the transitional provision did not extend to include seizures under the repealed Act. The court held that because the 1996 Act did not provide for interest, and the transitional provision did not effectively deem the seizure to have occurred under the 2005 Act, the appellant was not entitled to interest on the seized funds.

The appeal was dismissed, and the decision of the Magistrate was upheld. The court's ruling clarified the scope of transitional provisions in the context of legislative changes and the entitlement to interest on seized assets.

Orders