Lemoussu v Director of Public Prosecutions
[2012] VSCA 20
•24 February 2012
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2011 0077
| ERIC LEMOUSSU | |
| Appellant | |
| v | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
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JUDGES: | REDLICH and MANDIE JJA and KYROU AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 16 February 2012 | |
DATE OF JUDGMENT: | 24 February 2012 | |
MEDIUM NEUTRAL CITATION: | [2012] VSCA 20 | |
JUDGMENT APPEALED FROM: | Eric Lemoussu v Director of Public Prosecutions (Unreported County Court of Victoria, Judge Murphy, 6 May 2011) | |
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CONFISCATION – Time limits for application for exclusion order – Whether s 35(2) Confiscation Act 1997 confers independent right to apply for exclusion order within 60 days of conviction – Confiscation Act 1997 (Vic)
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr T J Sowden | Nicholas O’Donohue |
| For the Respondent | Mr S G O’Bryan SC with Mr J P Tomlinson | Office of Public Prosecutions |
REDLICH JA:
I agree with Mandie JA.
The application for an exclusion order was made within the time specified in s 35(2) of the Confiscation Act 1997. I would remit the application for an exclusion order to the County Court for hearing and determination on the merits.
MANDIE JA:
Introduction
This appeal raises questions concerning the time limits for making an application for an exclusion order under the provisions of the Confiscation Act 1997 (Vic) (‘the Act’). After being convicted of a Schedule 2 offence, the appellant made an application for an exclusion order in relation to real property of which he was the sole registered proprietor situated at 105 Townsends Road, Budgeree (‘the property’). The property was the subject of a restraining order and has been the subject of automatic forfeiture under the Act unless, contrary to the decision of a judge in the County Court, the appellant’s application for an exclusion order was duly made within any applicable time limit and thus can still be entertained.
The relevant chronology is as follows. By an application dated 17 July 2008, which came on for hearing before a judge in the County Court on 22 July 2008, the respondent sought a restraining order in respect of the property pursuant to s 16 of the Act. The application was supported by an affidavit of a detective senior constable sworn 17 July 2008. The affidavit stated that the appellant had been charged[1] with cultivating a narcotic plant (cannabis) in an amount not being less than a commercial quantity and trafficking cannabis in an amount not being less than a commercial quantity. The affidavit disclosed among other things that the police had executed a search warrant at the property and had found a number of
‘hydroponic grow rooms’ containing relevant equipment and a number of cannabis plants. The affidavit stated that it was alleged that the appellant cultivated and trafficked a commercial quantity of cannabis and that the deponent believed that the appellant had committed ‘automatic forfeiture offences’ as defined by Schedule 2 of the Act and that the deponent further believed that the property was tainted property as defined by the Act in that it was used in or in connection with the offences of which the appellant was charged. The affidavit further stated that the appellant was the sole registered proprietor of the property. The affidavit thus was directed to the requirements for a restraining order set out in s 16(2)(a) and (c) of the Act.
[1]The appellant had been so charged on 6 September 2007.
On 22 July 2008, a judge in the County Court made a restraining order providing that no person should dispose of or otherwise deal with the property and declaring that the property was restrained for the purposes, inter alia, of satisfying automatic forfeiture of property that might occur under Division 2 of Part 3 of the Act.
The prescribed notice requiring a declaration of property interests and a copy of the restraining order were served on the appellant and he made a declaration in writing dated 11 August 2008 that he had an interest in the property described in the restraining order and that he did not believe that any other person had an interest in the property.
On 18 October 2010, the appellant (and a co-accused) pleaded guilty to one count of cultivation of a narcotic plant in not less than a commercial quantity and one count of theft of electricity and were convicted on those counts. On 21 October 2010, the appellant was sentenced for the cultivation offence to imprisonment for 22 months, that term being wholly suspended for an operational period of 36 months.[2] In the course of his remarks, the sentencing judge referred to the circumstances of the appellant’s offending as appeared from the Crown opening and the depositions. The sentencing judge said that, on 28 August 2007, the police located a number of cannabis plants cultivated by a hydroponic method, growing in a shed and under a house on the property and that it seemed that the shed was used as a drying or propagation room and the system was sophisticated.
[2]For the offence of theft of electricity, the appellant was placed under a community based order for 12 months subject to a number of applicable conditions.
On 17 December 2010, the appellant filed in the County Court a notice that he intended to apply under s 20 of the Act for an exclusion order in respect of the property on the grounds, in substance, that the cannabis located on the property was not planted on the property and was located under a dwelling and a shed thereon, that the land was used for legitimate agricultural purposes and that the cannabis occupied ‘a trifling or insignificant portion of the land’ and that ‘in the premises’ the applicant denied that the property was tainted property.
On 6 May 2011, a judge of the County Court ruled that it was not open to the appellant to make an application for an exclusion order on 17 December 2010 because the application had been made outside the 30 day time limit provided by s 20(1A)(a) of the Act and that no extension of time had been granted pursuant to s 20(1B) of the Act. Accordingly, the property had been automatically forfeited to the Minister on the expiry of 60 days after the appellant’s conviction pursuant to s 35 of the Act.
The judge rejected the appellant’s submission that s 35(2) of the Act should be interpreted as permitting or entitling him to make an application for an exclusion order within 60 days of conviction.[3]
[3]It was common ground below that the appellant’s application for an exclusion order had been made within the period of 60 days from conviction, i.e. by the filing of his notice of application.
On 6 May 2011, the judge ordered that the appellant’s application for an exclusion order be dismissed.
On 20 May 2011, the appellant filed a notice of appeal seeking an order that the order below be set aside, a declaration that the application for an exclusion order was valid and an order that the proceeding be remitted to the County Court for a determination according to law. The grounds of appeal are stated as follows.
1.The learned judge erred in finding that [the appellant] had failed to file an application for an exclusion order within the time limit stipulated by [the Act] and in particular s 35(2) and in so finding:
(a)failed to construe the provisions of the Act in accordance with established rules relating to statutory interpretation as identified by this Honourable Court and the Interpretation of Legislation Act (1984) (Vic):
(b)accorded a meaning to s 35(2) of the Act that does not correspond with the wording of that provision;
(c)further and alternative failed to construe any ambiguity in the Act in favour of [the appellant]; and
(d)gave insufficient regard to the decision of this Honourable Court in DPP v Nguyen & Duncan [2009] VSCA 147.
2. The learned Judge ought to have held that:
(a)s 35(2) of the Act confers a right on an accused person to apply for an exclusion order under the Act within 60 days of conviction;
(b)the appellant had made an application for an exclusion order within the time period set down by s 35(2) of the Act and accordingly the application for an exclusion order was validly made.
On 12 September 2011, the respondent filed a notice of contention. The respondent contended that the decision below should be affirmed on additional grounds which were argued below, as follows:
… the learned trial judge should have held that it would not be in the interests of justice to extend the period within which [the appellant] may make application under s 20(1B) of the Act because –
(a) there was no adequate or sufficient excuse for the delay in making any application under s 20 of the Act, and/or;
(b)no adequate or sufficient prima facie case to be argued under s 22 of the Act was demonstrated
A summary of the proceedings, issues and facts has been filed with the Court of Appeal and states that it was common ground below that, if the application for an exclusion order had been made out of time, then the property had been forfeited to the Minister.
Relevant Provisions
Section 16 of the Act makes provision for applications for restraining orders and it is apparent from s 18 of the Act that the court is empowered to make a restraining order where a defendant has been, or within the next 48 hours will be, charged with a Schedule 1 or Schedule 2 offence, or has already been convicted of such an offence.
Section 20(1) of the Act provides that if a court makes a restraining order against property under s 18, any person claiming an interest in the property (including the defendant) may apply to that court for an order, relevantly, under s 22 of the Act. Section 20(1A)(a) provides that an application under s 20(1) must be made within 30 days after service of notice of the making of the restraining order.[4] Section 20(1B) provides that 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.
[4]Or in any other case, within 30 days after the making of the restraining order – see s 20(1A)(b) of the Act.
Section 22 of the Act provides that, on an application made under s 20, where the restraining order had been made in relation to a Schedule 2 offence for the purposes of automatic forfeiture, the Court may make an order excluding the applicant’s interests in the property from the operation of the restraining order if the Court was satisfied that, inter alia, the property is not tainted property.[5]
[5]See s 22(a)(ii) of the Act.
Section 35 of the Act relevantly provides as follows:
(1) If—
(a) a person is convicted of a Schedule 2 offence; and
(b)a restraining order is or was made under Part 2 in respect of property for the purposes of automatic forfeiture in reliance on—
(i) the conviction of the accused of that offence; or
(ii)the charging or proposed charging of the accused with that offence or a related offence that is a Schedule 2 offence; and
(c)the restrained property is not the subject of an exclusion order under section 22—
the restrained property, subject to any declaration under section 23, is forfeited to the Minister on the expiry of 60 days after—
(d) the making of the restraining order; or
(e) the conviction of the accused—
whichever is later.
(2)If, within the period of 60 days referred to in subsection (1), an application has been made for an exclusion order under section 22 in respect of restrained property, the property is forfeited to the Minister—
(a)if the application is refused or dismissed, at the end of the period during which the person may appeal against the refusal or dismissal or, if such an appeal is lodged, when the appeal is abandoned or finally determined without the order having been made; or
(b) if the application is withdrawn or struck out, on that withdrawal or striking out.
Finally, s 47(1)(b) of the Act provides that automatic forfeiture under s 35 is discharged in respect of an interest in property if an exclusion order in respect of the interest is made, whether on appeal or otherwise.
Submissions
The appellant submitted that s 35(2) of the Act entitled a defendant to apply for an exclusion order within 60 days of conviction. The appellant contended that s 35(2) provided a discrete path to applying for an exclusion order and argued that this interpretation was supported by what was said by the Court of Appeal in DPP v Nguyen[6] (‘Nguyen’) because that case proceeded upon the presumption that a person convicted of a Schedule 2 offence could apply for an exclusion order under s 22 of the Act provided that that application was made within 60 days of conviction.
[6](2009) 23 VR 66.
The appellant submitted that the judge’s interpretation of s 35(2) deprived that provision of much of its utility and stripped the words ‘if, within the period of 60 days referred to in subsection (1), an application has been made for an exclusion order under s 22’ of their natural meaning. The appellant submitted that the statute was penal in nature and any ambiguity should be resolved in favour of the subject. Insofar as there was a conflict between s 20(1A) and s 35(2), such conflict should be resolved in the appellant’s favour.
The respondent argued that, on its proper construction, s 35(2) did not provide a right to seek an exclusion order – the provision merely spelled out a consequence of the exercise of such right that was found in s 20(1). It was s 20 of the Act that created the right to apply for an exclusion order and that also regulated that right, including the timing of it under s 20(1A) and (1B). It was unlikely that the legislature, having by s 20 of the Act regulated in some detail the right to apply for exclusion orders, would have failed in any way to regulate the right said by the appellant to separately arise under s 35(2). The respondent submitted that Nguyen did not support the appellant’s arguments and was concerned with a different problem.
Is leave to appeal required?
The Court raised with the parties whether leave to appeal was required or whether the appellant had an appeal as of right. The appellant made some submissions about the meaning and effect of s 142 of the Act but pointed out that the provisions in that section were expressed to take effect ‘without affecting any other right of appeal’. The appellant submitted that s 133(1) of the Act provided that proceedings on an application under the Act were civil in nature (except as otherwise provided) and therefore submitted that s 74 of the County Court Act provided an avenue for appeal from the refusal of an exclusion order. The appellant further submitted that the refusal of an exclusion order was a ‘final’ order and not a judgment or order on an interlocutory application within the meaning of s 74(2D) of the County Court Act because the rights of the parties in a principal cause between them had been finally decided. I tend to the view that the appellant’s submissions are correct but the respondent indicated that he was not disposed to dispute them. Accordingly, it is not necessary to decide these questions.
Resolution of Appeal
Section 35(2) of the Act contemplates that an application for an exclusion order under s 22 might be made within the period of 60 days referred to in s 35(1). Having regard to the terms of s 35(1)(d) and (e), it is expressly envisaged that an application for an exclusion order under s 22 might be made within 60 days after the making of the restraining order or within 60 days after a defendant’s conviction. Of course, in the present matter, the conviction occurred later than the making of the restraining order but the section contemplates these events occurring in reverse order. Thus, if a defendant is convicted and a restraining order is then sought and made, automatic forfeiture will not occur until after any application for an exclusion order made within 60 days of the making of the restraining order is determined. The foregoing analysis raises a strong argument that the legislature could not have intended the time limit of 30 days laid down by s 20(1A) to be applicable to the application for an exclusion order referred to in s 35(2).[7] On the face of it, it does not make sense to prescribe a time limit (for seeking an exclusion order) of 60 days from the making of a restraining order, if the time limit is 30 days under some other applicable provision. No doubt, it could be argued that the existence of the provision enabling an application for an extension of time to make an application for an exclusion order[8] resolves the apparent conflict but that would seem to me to be a less than persuasive argument. In that regard, it might also be noted that s 20(1B) does not limit the extent of any extension of time that might be granted.
[7]I note that the appellant also pointed out that the time limit of 60 days was contained in the Act prior to the introduction of time limits into s 20 by Act No. 108 of 1997.
[8]Section 20(1B).
Further, s 35(2) refers to the making of ‘an application … for an exclusion order under section 22’. When one turns to s 22, there is nothing in it which authorises such an application. What s 22 does is grant, among other things, power to a Court to make an exclusion order in certain circumstances ‘on an application made under section 20’. Section 35(2) does not refer to an application under s 20 but simply to ‘an application’. Again, it seems to me strongly arguable that the absence of a reference to s 20 in s 35(2) shows that the legislature intended to create an independent avenue for obtaining an exclusion order, as the appellant argues. On the other hand, the respondent’s argument appears to necessitate reading words into s 35 which are not there.
It seems to me that the present scheme of the Act is that a person affected has two opportunities to obtain the exclusion of a property from a restraining order. The first opportunity arises where a restraining order is made prior to conviction and, in that event, s 20 governs the time limits for making the relevant application. The second opportunity arises after conviction and s 35 provides the time limits within which the relevant application might then be made.
The foregoing considerations seem to me to point to the correctness of the construction advanced by the appellant but there is another good reason for adopting that construction. The decision of the Court of Appeal in Nguyen, although the present question of construction was not debated in that case, proceeded on the clear presumption that s 35(2) created an independent avenue for obtaining an exclusion order. As the Court[9] said[10] ‘the application for exclusion had to be made within 60 days of the date on which the applicant was convicted of the offence giving rise to the automatic forfeiture.’ In that case,[11] the restraining order had been
granted on 7 October 2003 and the application for an exclusion order was made on 28 September 2007. The question to be decided in the case was whether the defendant had been convicted when he first pleaded guilty on 14 September 2006 or when he was ultimately sentenced on 24 September 2007. Obviously, on those facts, the application for an exclusion order was well out of time under s 20(1A).[12]
[9]Maxwell P, Weinberg JA and Kyrou AJA.
[10](2009) 23 VR 66 [3].
[11]I will deal only with the facts relating to Nguyen – there was also another appeal of Duncan heard and dealt with at the same time.
[12]The Court also dealt with an argument relating to s 20(1B) but it is unnecessary to refer to that argument.
Notwithstanding that the construction urged by the appellant in the present matter was not the subject of controversy in Nguyen but was simply assumed, I consider that the stance taken by the Court in that case affords an additional reason for adopting the same construction in the present case, for the sake of consistency[13] – particularly as I think that the appellant’s arguments are independently quite persuasive. I note also that the construction assumed in Nguyen was also earlier adopted in DPP v Phan Thi Le[14] in the following terms:
The combined effect of s 35(1) and (2) was that the property would be forfeited to the Minister 60 days after Le’s conviction, unless within that period an application had been made for an exclusion order under s 22.
[13]Compare H A T & Ors v The Queen [2011] VSCA 427 [31].
[14][2007] VSCA 18 [4] (Maxwell P, Chernov and Neave JJA).
As a result, the operation of s 20(1B) is irrelevant and the notice of contention fails.
For the foregoing reasons, I would allow the appeal and order that the application for an exclusion order be remitted to the County Court for hearing and determination on the merits.
KYROU AJA:
I agree with Mandie JA.
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