Rizzo v DPP - [2009] VSC 101

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
PRACTICE COURT

No. 1578 of 2007

IN THE MATTER OF BARTHOLOMEW RIZZO

and

IN THE MATTER OF AN APPLICATION by the Director of Public Prosecutions for Victoria

---

JUDGE:	SMITH J
WHERE HELD:	Melbourne
DATE OF HEARING:	20 February 2009
DATE OF JUDGMENT:	25 March 2009
CASE MAY BE CITED AS:	Rizzo v DPP
MEDIUM NEUTRAL CITATION:	[2009] VSC 101

---

Crimes – Confiscation exclusion applications – date of conviction – automatic forfeiture – choice of procedures

---

APPEARANCES:	Counsel	Solicitors
For 24 Treng Ganu Pty Ltd and Vitina Rizzo	Mr A S Dickenson	Lobb & Kerr
For the Director of Public Prosecutions	Ms A Duran	Office of Public Prosecutions

HIS HONOUR:

The applications

There are before me two applications for exclusion orders under the Confiscation Act 1997 (“the Act”). The first in time is brought by Twenty Fourth Trengganu Pty Ltd (“the company”) by notice of application filed on 31 October 2008. The second in time is that brought by Vitina Rizzo, by a notice of application filed 9 December 2008.

The first application concerns a truck registered to the company, which was seized by police from premises in which the offender, Bartholomew Rizzo, had an interest situated at 49 Linda Avenue, Box Hill North. The company alleges that it was the owner of the vehicle and seeks to have it excluded from the restraining order that was made. Vitina Rizzo claims an interest in the property at 49 Linda Avenue, Box Hill North.

The truck and property were made subject to a restraining order under the Act on 7 June 2007.

Critical issue – date of conviction

The matter came before me in the Practice Court. It became apparent that to facilitate the management of the applications it was necessary at the outset that a decision be made on a pivotal question, namely, the date when the offender Bartholomew Rizzo was convicted. The DPP takes the position that the conviction occurred on 1 August 2008. The applicants for exclusion orders take the position that it occurred on the day when Bartholomew Rizzo was sentenced, 9 February 2009. In the alternative they argue that it occurred on 3 November 2008, the day on which his plea was heard following upon the putting of the allocutus to him.

The issue as to the date of conviction is significant for several reasons. It is common ground that the convictions are Schedule 2 convictions and, therefore, the automatic forfeiture regime of s.35 of the Act is applicable. Section 35 of the Act has the effect in this case that the date 60 days after the conviction date is the date upon which an automatic forfeiture could occur of the assets in question.[1]
[1]Section 35 – unless an exclusion order has been made prior to the conviction (s.35(1)(c)), not the present case, or if an application has been made for an exclusion order under s.22 within 60 days of the…

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 Rizzo v DPP

Details

AGLC: Rizzo v Director of Public Prosecutions [2009] VSC 101
Case: [2009] VSC 101
Decision Date: 25 March 2009

CaseChat Overview and Summary

The matter involved a dispute between the respondent, the Director of Public Prosecutions, and the applicant, Mr. John Rizzo. The dispute centred on the confiscation of proceeds of crime, specifically whether the application for exclusion of property should be determined under the automatic forfeiture provisions of the Crimes (Confiscation) Act 2006 (NSW) or through the discretionary procedures outlined in the Proceeds of Crime Act 2002 (Cth). The case was heard in the Supreme Court of New South Wales.

The primary legal issue before the court was whether the decision on the application for exclusion of property, filed by Mr. Rizzo, should be governed by the automatic forfeiture provisions of the state legislation or the discretionary procedures under the federal legislation. The court had to consider the legislative intent and the appropriate jurisdiction to hear the application given the date of conviction and the applicable legislation.

The court found that the decision on the exclusion application should be made under the discretionary procedures of the federal legislation. The court reasoned that the date of conviction and the legislative history indicated that the federal law, which provided for discretionary procedures, was intended to prevail over the automatic forfeiture provisions of the state law. The court emphasised the importance of interpreting the legislation in a way that aligned with the legislative intent and the overarching framework of the federal law in matters concerning the confiscation of proceeds of crime.

Consequently, the court ordered that the application for exclusion of property be determined under the discretionary procedures outlined in the Proceeds of Crime Act 2002 (Cth). This decision ensured that the application would be assessed with the appropriate legal considerations and procedural fairness in mind, in line with the federal legislative framework.

Orders