Re Shield - [2006] VSC 59

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1612 of 2005

IN THE MATTER of the Confiscation Act 1997

IN THE MATTER of the deemed conviction of GARY MICHAEL SHIELD (deceased)

IN THE MATTER of an application by the DIRECTOR OF PUBLIC PROSECUTIONS

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JUDGE:	HABERSBERGER J
WHERE HELD:	Melbourne
DATE OF HEARING:	1 February 2006
DATE OF JUDGMENT:	24 February 2006
CASE MAY BE CITED AS:	Re Shield
MEDIUM NEUTRAL CITATION:	[2006] VSC 59

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Criminal Law – Confiscation of profits – Person charged with an automatic forfeiture offence – Person died before charge finally determined – Application for order that the evidence against the deceased person is of sufficient weight to support a conviction – Question as to what degree of proof that test requires – ss. 4(1) and (2), 5(a) and (d), 35 and 132 of the Confiscations Act 1997.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr C Juebner	Stephen Carisbrooke, acting for Solicitor for Public Prosecutions
For the Estate of Shield	Mr JB Saunders	Hill Legal Lawyers

HIS HONOUR:

This is an application by the Director of Public Prosecutions ("the DPP") under the Confiscation Act 1997 ("the Confiscation Act") for a deemed conviction of Gary Michael Shield of the offence of trafficking a drug of dependence, namely cannabis, in a quantity that was not less than a commercial quantity applicable to that drug contrary to s.71AA of the Drugs Poisons and Controlled Substances Act 1981 ("the Drugs Act"), and for a declaration pursuant to s.35(3) of the Confiscation Act that the date of conviction is the date on which the order is made.

The Background

On 14 May 2004 Shield was charged that at Frankston on that day he did "traffick a drug of dependence namely cannabis in a quantity that is not less than a commercial quantity applicable to that drug "contrary to s.71AA of the Drugs Act 1981 ("the Drugs Act"). This is an "automatic forfeiture" offence as defined in Schedule 2 of the Confiscation Act. Shield was also charged with stealing electricity and dealing with property suspected of being the proceeds of crime.

On 17 June 2004 a Judge of the County Court of Victoria made a restraining order pursuant to s.18 of the Confiscation Act in respect of certain property in the name of Shield or his wife Vianna Shield or jointly in both their names, including seven real estate properties in Frankston. The restraining order was subsequently varied on three occasions.

Shield died on 25 June 2004, before he was committed to stand trial. Probate of Shield's estate was granted to his brother, the executor named in his Will, on 28 February 2005.

By an application filed on 29 December 2005 the DPP sought a declaration pursuant to ss.4(1)(d), 5(a) and (d) of the Confiscation Act that for the purposes of that Act Shield is deemed to have been convicted of the automatic forfeiture offence of which he was charged, and…

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 Re Shield

Details

AGLC: Re Shield [2006] VSC 59
Case: [2006] VSC 59
Decision Date: 24 February 2006

CaseChat Overview and Summary

The case of Re Shield involved an application for an order that the evidence against the deceased, who was charged with an offence under the Confiscations Act 1997, was of sufficient weight to support a conviction. The deceased had been charged with an offence under section 4(1) and (2) of the Act, and the issue before the court was the degree of proof required to satisfy the test for a sufficient weight of evidence in such cases. The application was brought under sections 5(a) and (d), 35, and 132 of the Act.

The primary legal issue was whether the test for sufficient weight of evidence required proof beyond reasonable doubt or whether a lower standard of proof was appropriate. The court considered the purpose of the test and the nature of the proceedings, which were quasi-criminal in nature. The court noted that the test for sufficient weight of evidence was not the same as the test for proof beyond reasonable doubt, but rather a less stringent standard. The court held that the test required proof on the balance of probabilities, which was a lower standard of proof than beyond reasonable doubt.

The court concluded that the evidence against the deceased was of sufficient weight to support a conviction on the balance of probabilities. The court found that the evidence established that the deceased was involved in criminal activity and that there was a strong likelihood that he had derived a benefit from that activity. The court noted that the deceased had died before the charge was finally determined, and that the application was brought under section 5(d) of the Act. The court held that the application was properly before it and that the test for sufficient weight of evidence had been satisfied.

The court made an order that the evidence against the deceased was of sufficient weight to support a conviction and that the court was satisfied that the deceased had derived a benefit from criminal activity. The court also made an order that the evidence be referred to the Director of Public Prosecutions for consideration of whether to proceed with a prosecution against the deceased's estate.

Orders