Kozarov v DPP - [2007] VSCA 74

SUPREME COURT OF VICTORIA

COURT OF APPEAL

No. 97 of 2006

ROSEMARY KOZAROV
	v
DIRECTOR OF PUBLIC PROSECUTIONS

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JUDGES:	MAXWELL P, EAMES and NETTLE JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	18 April 2007
DATE OF JUDGMENT:	18 April 2007
MEDIUM NEUTRAL CITATION:	[2007] VSCA 74

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CONFISCATION – Confiscation of assets – Tainted property – Application for civil forfeiture – Motor vehicle registered in name of offender’s mother – Whether mother had beneficial interest or bare legal interest – Whether forfeiture would occasion hardship – Matters required by statute to be considered – Confiscation Act 1997 ss 32, 33.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr G J Traczyk	C Marshall & Associates
For the Director	Mr N J O'Bryan SC	Ms A Cannon, Solicitor for Public Prosecutions

MAXWELL P:

This is an application for leave to appeal from the making of a forfeiture order by a judge of the County Court on 22 March 2006. The appeal is governed by s 142(1) of the Confiscation Act 1997, which provides:

"(1)Without affecting any other right of appeal, a person who has an interest in property in respect of which –
(a) a forfeiture order is made;
…
may appeal against that order …—
(c)in the case of a person convicted of an offence in reliance on which the order was made—in the same manner as if the order were, or were part of, the sentence imposed in respect of the offence; or
(d)in any other case—in the same manner as if the person had been convicted of the offence in reliance on which the order was made and the order were, or were part of, the sentence imposed in respect of the offence.”

The applicant makes the application as a person having an interest in the property the subject of the forfeiture order.

Mr Traczyk has made detailed and forceful submissions, advancing every argument reasonably available to the applicant to establish the requisite error to warrant intervention by this Court. For the reasons which follow, however, I am not persuaded that there was any error.

The relevant power exercised by the judge on the application of the Director of Public Prosecutions under s 32, was the power conferred by s 33(1) to make an order that property be forfeited to the Minister. The provisions of that section provide some guidance as to the discharge of that task. Sub-s (4) entitles the court to take into account any material that it thinks fit. Under sub-s (5), the court in considering whether to make an order may have regard to three types of matter, namely:

"(a)the use that is ordinarily made, or had been intended to be made, of the property; and
(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).”

The exercise of power is, in my opinion, properly to…

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.

Continue reading Kozarov v DPP

Details

AGLC: Kozarov v Director of Public Prosecutions [2007] VSCA 74
Case: [2007] VSCA 74
Decision Date: 18 April 2007

CaseChat Overview and Summary

Kozarov v DPP involved a matter before the court where the Director of Public Prosecutions sought the confiscation of a motor vehicle registered in the name of the offender’s mother under the provisions of the Confiscation Act 1997. The central issue in the case was whether the mother had a beneficial interest in the vehicle or if she merely held a bare legal interest, and if the forfeiture of the vehicle would cause undue hardship. The court was tasked with interpreting the relevant sections of the Act and determining whether the statutory requirements for the confiscation of assets were met.

The legal issues that the court had to decide included the interpretation of the terms "beneficial interest" and "bare legal interest" as they pertain to the ownership of the vehicle, and whether the forfeiture would occasion undue hardship. The court needed to consider the provisions of the Confiscation Act 1997, specifically sections 32 and 33, which outline the considerations for asset forfeiture and the factors that may mitigate against such action. The court also needed to assess the evidence presented regarding the mother's actual interest in the vehicle and any potential hardship that might result from the confiscation.

The court examined the evidence and concluded that the mother did not have a beneficial interest in the vehicle but rather held a bare legal interest. It found that the statutory considerations for confiscation, including the need to prevent the offender from benefiting from their criminal activities, outweighed any potential hardship to the mother. The court determined that the confiscation of the vehicle was justified under the relevant sections of the Act. As a result, the court ordered the civil forfeiture of the vehicle to the State.

Orders