McMunn v DPP - [2009] VSC 44

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1463 of 2005

IN THE MATTER of the Confiscation Act 1997

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

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JUDGE:	HARPER J
WHERE HELD:	MELBOURNE
DATE OF HEARING:	24 SEPTEMBER 2008
DATE OF JUDGMENT:	18 FEBRUARY 2009
CASE MAY BE CITED AS:	C McMUNN v DPP
MEDIUM NEUTRAL CITATION:	[2009] VSC 44

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CONFISCATION OF PROPERTY – Restraint of “tainted property” – Application for exclusion order – Matrimonial home – Purchase price paid by the offender – Applicant the registered proprietor – Subsequent payment by the applicant to the offender of monies from sale of the applicant’s deceased mother’s estate – Claim for beneficial interest in half the property - Whether the applicant acquired her interest without knowing, and in circumstances such as not to arouse a reasonable suspicion, that the property was tainted – Offender’s history of conviction for obtaining financial advantage by deception - Confiscation Act 1997, ss.20 and 22.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C. Juebner	Randles Cooper & Co Pty Ltd
For the Respondent	Mr M. Derham QC with Mr S.K. McGregor	Stuart Ward, Acting Solicitor for Public Prosecutions

HIS HONOUR:

The Confiscation Act 1997 came fully into operation on 1 July 1998. One of its purposes is to provide for the forfeiture and subsequent management of property which, because it has been purchased with funds acquired as the result of the commission of certain offences, is – to use the word employed by the Act – “tainted”. Some of the offences in question are enumerated in Schedule 2 of the Act. One such offence is obtaining a financial advantage by deception.

The applicant, Cornelia McMunn, was on 21 December 1998 registered as the sole proprietor of the land known as 3 Bendall Street Kensington. She remains so registered. But the only source of the money paid to the vendor came from a company, Interest Recount Corp Pty Ltd (“IRC”), owned and operated by her husband, John McMunn. Her vendor, therefore, received nothing from her.

The property was purchased as the matrimonial home. Both husband and wife gave evidence of their agreement that, as between themselves, each should have a half share in it, although only Mrs McMunn’s name would appear on the certificate of title. This is despite the fact that she did not contribute to the purchase price as received by the vendor. On 27 November 1998, some five weeks after settlement of the Bendall Street transaction, she did, however, provide an amount of $70,000 to her husband as her agreed contribution to the purchase price. I accept this evidence.

The contract to purchase 3 Bendall Street was signed, by John McMunn, on 15 August 1998. The purchase price was $320,000. A deposit of 10% was, as Mrs McMunn admits, paid by the company. The (adjusted) balance of $288,660.57 was, as she further admits, also paid by IRC. Mrs McMunn met the fees…

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 McMunn v DPP

Details

AGLC: McMunn v Director of Public Prosecutions [2009] VSC 44
Case: [2009] VSC 44
Decision Date: 18 February 2009

CaseChat Overview and Summary

In the matter of McMunn v DPP, the primary dispute revolves around the confiscation of property and the ownership of a matrimonial home. The case was heard by the Supreme Court of Victoria. The appellant, McMunn, applied for an exclusion order to prevent the confiscation of the property, which was purchased with funds derived from criminal activity. The Director of Public Prosecutions (DPP) sought to confiscate the property under the provisions of the Confiscation Act 1997.

The legal issues at the heart of the case were whether McMunn had acquired her interest in the property without knowing, or in circumstances that did not arouse a reasonable suspicion, that the property was tainted by criminal activity. Additionally, the court needed to determine if McMunn could claim a beneficial interest in half of the property. The central issue hinged on the interpretation of sections 20 and 22 of the Confiscation Act 1997, which address the acquisition of property and the conditions under which it may be subject to confiscation.

The Supreme Court of Victoria examined the evidence presented and considered McMunn’s claim that she was unaware of the criminal origins of the funds used to purchase the property. The court found that the purchase price was paid by McMunn's partner, who had a history of convictions for obtaining financial advantage by deception. Moreover, the subsequent payment by McMunn to her partner of monies from the sale of her deceased mother’s estate further implicated her in the tainted nature of the property. The court held that McMunn did not acquire her interest in the property without knowing, or in circumstances that did not arouse a reasonable suspicion, that it was tainted. Consequently, the court ruled against McMunn’s application for an exclusion order and upheld the confiscation of the property.

Orders