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Meskovski v DPP

Meskovski v DPP

Case [2018] VSCA 293 12 November 2018

Civil Penalty

Judicial Review

Statutory Interpretation

Criminal Law

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SUPREME COURT OF VICTORIA

COURT OF APPEAL

S APCI 2018 0009

VELE MESKOVSKI	Applicant
v
DIRECTOR OF PUBLIC PROSECUTIONS	Respondent

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JUDGES:	MAXWELL P, TATE and WEINBERG JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	11 October 2018
DATE OF JUDGMENT:	12 November 2018
MEDIUM NEUTRAL CITATION:	[2018] VSCA 293
JUDGMENT APPEALED FROM:	[2017] VCC 1686 (Judge Misso)

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CONFISCATION – Civil forfeiture – Discretion to relieve from ‘undue hardship’ caused by civil forfeiture order – Alternative powers available – Power to exclude property or interest in property – Power to order payment of specified amount – Whether same threshold test applicable in each case – Effect of amendments to substitute ‘undue hardship’ for ‘hardship’ in both provisions – Gravity of offending – Forfeiture of applicant’s half interest in family home used in commission of offence – Whether ‘undue hardship’ – Finance Facilities Pty Ltd v Federal Commissioner of Taxation (1971) 127 CLR 106 discussed – Ali v Director of Public Prosecutions [2010] VSC 503 affirmed – Confiscation Act 1997 ss 38(2) and 45(1) – Leave to appeal granted – Appeal dismissed.

STATUTORY INTERPRETATION – Legislative intention – Judicial interpretation of provision – Subsequent amendment – Whether legislature intended to change meaning.

WORDS – ‘undue hardship’.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Dr N Orow with Mr F J Scully	WMB Lawyers
For the Respondent	Mr T Gyorffy QC	John Cain, Solicitor for Public Prosecutions

MAXWELL P
TATE JA
WEINBERG JA:

TABLE OF CONTENTS

*Introduction and summary*.........................................................................................	1
*Application for a civil forfeiture order*......................................................................	2
*Civil forfeiture regime*..................................................................................................	4
*The gravity of the offending*.......................................................................................	10
*Meskovski’s personal circumstances* .......................................................................	12
*The hearing of the hardship application*..................................................................	14
*The judge’s reasons – Ruling No 2* ............................................................................	18
*Did the judge fail to consider and/or determine the application under s 38(2)? — Ground 1* ..................................................................................................................	24
*Did the judge err in interpreting the meaning of ‘undue hardship’? — Ground 2* ........................................................................................................................................	31
*Did the judge ignore Meskovski’s individual circumstances? —Ground 3* ........	36
*Conclusion* ...................................................................................................................	40

Introduction and summary

The Confiscation Act 1997 (‘the Act’) confers a power on the court, when making a civil forfeiture order, to exclude certain property from the operation of the order if satisfied that otherwise the order may be reasonably likely to cause undue hardship to any person, pursuant to s 38(2) of the Act. The court also has the power to order that a specified amount be paid to a person out of the forfeited property if satisfied that undue hardship may reasonably be likely to be caused to any person by the order, pursuant to s 45(1) of the Act. This proceeding raises the issue of the relationship between these two sections of the Act and the powers they confer.

The proceeding also raises the issue of whether the judge erred, in the circumstances of the case, in refusing either to exclude the property or to order that a specified amount be paid out of the forfeited property.

For…

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 Meskovski v DPP

Details

AGLC: Meskovski v DPP [2018] VSCA 293
Case: [2018] VSCA 293
Decision Date: 12 November 2018

CaseChat Overview and Summary

Meskovski was before the Supreme Court of Victoria, where the applicant sought relief from a civil forfeiture order made under the Confiscation Act 1997. The central issue was whether the court had the discretion to relieve from "undue hardship" caused by such an order, and if so, whether the same threshold test applied to the court's alternative powers to exclude property or order a specified payment. The applicant argued that the forfeiture of his half interest in the family home, used in the commission of an offence, would cause undue hardship, especially considering the gravity of the offending. The court considered the statutory interpretation of "undue hardship" and whether the amendments to the Act, which substituted this term for "hardship," indicated a legislative intent to change the meaning of the provision.

The court examined the legislative history and noted that the amendments did not explicitly indicate an intention to alter the threshold test. It relied on previous case law, including Finance Facilities Pty Ltd v Federal Commissioner of Taxation, to conclude that the term "undue hardship" should be interpreted consistently across the Act. The court further affirmed Ali v Director of Public Prosecutions, finding that the threshold for undue hardship was not met in this case. The applicant's appeal for relief was dismissed, and leave to appeal to the Court of Appeal was granted.

The court's reasoning focused on the balance between the deterrence purposes of civil forfeiture and the protection of innocent parties from undue hardship. It held that the legislative amendments did not change the established threshold for relief, and the applicant's circumstances did not meet the criteria for undue hardship. The final orders of the court maintained the forfeiture of the applicant's half interest in the family home, despite the hardship caused.

Orders