McMunn v DPP

[2010] VSCA 330

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2009 3771

CORNELIA MARIA McMUNN
	Appellant
v
DIRECTOR OF PUBLIC PROSECUTIONS FOR VICTORIA	Respondent

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JUDGE	MAXWELL P, WEINBERG and MANDIE JJA
WHERE HELD	MELBOURNE
DATE OF HEARING	16 November 2010
DATE OF JUDGMENT	16 November 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 330
JUDGMENT APPEALED FROM	McMunn v DPP [2009] VSC 44 (Harper J)

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CRIMINAL LAW – Confiscation – Restraining order – Application for exclusion of interest – Family home purchased in applicant’s name – Funds provided by husband – Prior convictions for dishonesty – Whether husband’s explanation of source of funds plausible – Whether reasonable person in applicant’s position would have had a suspicion – Trial judge correct to refuse application – Appeal dismissed – Confiscation Act 1997 (Vic) s 22(b)(i).

APPEARANCES:	Counsel	Solicitors
For the Appellant	Mr C G Juebner	Randles, Cooper & Co Pty Ltd
For the Respondent	Mr M Derham QC with Mr S K McGregor	Mr C Hyland, Solicitor for Public Prosecutions

MAXWELL P:

1. We have been greatly assisted by the clarity of submissions provided in advance, which we have read, and by the oral argument presented on both sides.  That has enabled us to come to the unanimous conclusion that the appeal should be dismissed.  It follows that the matters in the Notice of Contention do not need to be addressed.  The cross-appeal on costs will be allowed.  My reasons for joining in those orders are as follows.

1. Sitting in the Trial Division of this Court, Harper J refused an application by the appellant, Mrs Cornelia McMunn, under s 20 of the Confiscation Act1997 (Vic) (‘Act’) for exclusion from a restraining order of an interest which she claims in a property at 3 Bendall Street, Kensington (‘the property’).

1. At the relevant time, sub-section 20(1) of the Act read as follows:

20       Application for exclusion from restraining order

(1) If a court makes a restraining order against property under section 18, any person claiming an interest in the property (including the defendant) may apply to that court for an order under section 21, 22 or 24.[1]

[1]As the sub-section read in 2005.

1. The conditions which had to be satisfied before such an order could be made were set out in sub-s 22(b) of the Act, as follows: [2]

   [2]The appellant’s application for exclusion was made in 2005, prior to the commencement of the Confiscation Amendment Act 2007 (Vic), which, inter alia, amended s 22 of the Act. However, by virtue of s 177(1)(b) of the Act, the amendments to s 22 had retrospective effect, and therefore the amended s 22, as extracted above, applied here. None of the remaining amendments with relevance here operated retrospectively.

22 Determination of exclusion application—restraining order—automatic forfeiture

On an application made under section 20, where the restraining order has been made in relation to a Schedule 2 offence for the purposes of automatic forfeiture—

(a)       …

(b) where the application is made by a person other than the…