Shahi v DPP & Victoria Legal Aid

[2006] VSC 311

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

PRACTICE COURT

No. 1457 of 2006

RAJBINDER SINGH SHAHI	Applicant
v
THE DIRECTOR OF PUBLIC PROSECUTIONS	First Respondent
and
VICTORIA LEGAL AID	Second Respondent

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JUDGE:	TEAGUE J
WHERE HELD:	Melbourne
DATE OF HEARING:	9 August 2006
DATE OF JUDGMENT:	9 August 2006
CASE MAY BE CITED AS:	Shahi v DPP & VLA
MEDIUM NEUTRAL CITATION:	[2006] VSC 311

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PRACTICE AND PROCEDURE – Application pursuant to s. 143 of the Confiscations Act 1997 – Variation of Restraining Order – Equitable charge to rank second in priority to any order for compensation, restitution or damages that may be made against the Applicant

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms R. Ellyard
For the First Respondent	Mr D. Murphy	Office of Public Prosecutions
For the Second Respondent	Mr T. Moore	Victoria Legal Aid

HIS HONOUR:

1. On 27 April 2006, an interim restraining order under s. 16 of the Confiscation Act 1997 (“the Act”) was made in this Court on the ex parte application of the Director of Public Prosecutions (“DPP”). The order restrained any dealing in a property at 29 Granite Outlook, Epping (“the property”). The order stated that the property was to be restrained to satisfy any compensation order that may be made under the Sentencing Act 1991. The order required that notice of the order be given to Rajbinder Singh Shahi (“Shahi”).

1. In support of the DPP’s application for the order, an affidavit was sworn as to information provided concerning events that were said to have occurred on 6 December 2005. In short, that information was that Shahi was a taxi driver. He picked up a number of youths in the Melbourne Central Business District and dropped them in Port Melbourne. At the time of the dropping off, there was some verbal abuse. Xavier Salmon (“Salmon”) was one youth who remained in the area where a larger number of youths had been dropped off. Shahi drove his taxi in a manner that led to the taxi colliding with Salmon.  Salmon suffered head injuries, which led to his being taken to hospital, where he died later on the same day. Shahi was charged with the murder of Salmon. Searches revealed that Shahi was the registered proprietor of the property subject to a substantial mortgage liability. The result of enquiries of the local council and of the mortgagee was that the equity of Shahi in the property was estimated to be of the order of $27,000. 

1. On 17 May 2006, the Court, having been satisfied that a copy of the order of 27 April had been served on Shahi, made a continuing restraining order as to the property. On 24 July, Shahi gave notice of his intention to apply under section 143 of the Act for an order excluding the property from the restraining order because of his need for legal representation. In support of his application there was filed an affidavit sworn by Shahi to the effect that he estimated his equity in the property to be of the order of $12,000.

1. On the hearing of the application before me, Shahi was represented by Ms Ellyard, Victoria Legal Aid (“VLA”) by Mr Moore and the DPP by Mr Murphy. All three accepted that it was proper that an order be made under s. 143(1) of the Act directing that legal assistance be provided to Shahi. The area of dispute was as to the propriety of making an unconditional order under s. 143(3) as to the provision by Shahi of a charge on the property. That was what Mr Moore sought. Mr Murphy contended that it was not proper to so order because of information placed before the Court as to a proposed claim for compensation against Shahi under the Sentencing Act 1991 by the mother and possibly the father of Salmon.

1. I was referred to the decision of Bell J in DPP v McEachran and Jolly [2006] VSC 67. I was informed that that decision was the subject of an appeal still to be heard. Before me, it was not sought to re-argue the basic positions of the DPP and VLA. The issue was confined to the adequacy of the materials before me. Mr Murphy put to me that the position was different in the light of the information provided (as summarised below) as to the proposed compensation claim to be made against Shahi. Mr Moore argued that the material before me was inadequate to justify declining to make an unconditional order as to the provision by Shahi of a charge over the property in favour of VLA. Ms Ellyard noted that I ought to have regard to two matters. The first was as to the lack of certitude as to future events given that the proceedings were still at an early stage. The second was as to the relative importance of the compensation provisions of the Sentencing Act, and specifically s. 85H,  that specified that in determining the amount of any compensation the court may have regard to the financial circumstances of the offender and the nature of the burden that its payment will impose.  I drew to the attention of those appearing before me the decision of Court of Appeal on 31 May 2006 in DPPv Energy Brix Australia Corporation Pty Ltd [2006] VSCA 116 (“Energy Brix”).  I broadly outlined why I considered that it was relevant. I offered the opportunity to consider the details of that decision, but was told that that was not required.

1. DPP v McEachran and Jolly was a review of two decisions in the County Court. Bell J rejected the submission of the DPP that the judge hearing an application for the provision of legal assistance had no jurisdiction to require that security by way of charge be provided by the applicant, and the further submission that the discretion had been inappropriately exercised, having regard to the competing interests of  VLA and potential claimants for compensation. In McEachran, the context of the application was found to be one where there were no competing interests.  In Jolly, Bell J accepted that the County Court judge was correct in making the assessment that there was no material before the Court to substantiate the claim of potential victims.

1. The situation before me is significantly different.  An Acting Senior Sergeant of Police had contacted the parents of Salmon. In his affidavit, he swore that the mother of Salmon had indicated that she would be pursuing a claim for compensation from Shahi. The father did not indicate whether he would be making an application, but expressed the hope that any compensation would go to the mother of Salmon as she was Salmon’s primary carer.  I am satisfied as to the relative adequacy of the material before me.  There has to be a degree of realism to assessing the level of certitude of the prognosis that there will be a claim and that it will be of such an order as to impact on the property the subject of the restraining order.  The situation is comparable, as to future events, to having a basis, as to past events, for drawing a reasonable inference as against speculating.  I have had regard to the two matters raised by Ms Ellyard.  As to amounts, I also found helpful a number of the observations made by each member of the Court in Energy Brix.

1. While satisfied as to there being a sufficient basis to accord priority to the proposed claim for compensation, I was also satisfied that it was proper to provide some limited protection to VLA, provided that it was clearly to rank behind the proposed claim for compensation.  I enquired of counsel as to formulae used in other cases.  I was informed that Judge McInerney had recently adopted a position akin to that which I favoured.  I was later provided with a copy of the order made by him in a matter last month.  Subject to any further submission that may be made as to form, I propose to make orders in these terms:

1That Victoria Legal Aid (“VLA”) provide legal assistance to Rajbinder Singh Shahi at the committal and any later hearing of any murder or other charge arising out of the events leading to the death of Xavier Salmon on 6 December 2005.

2That Rajbinder Singh Shahi provide to VLA an equitable charge over his interest in the property at 29 Granite Outlook Epping, more particularly described in Certificate of Title Volume 10833, Folio 639 as security for the cost or part of the cost of the provision of legal assistance, such charge to rank second in priority to any order for compensation, restitution or damages that may be made against Rajbinder Singh Shahi as contemplated by the Confiscation Act 1997 and the Sentencing Act 1991.

3That the restraining order made on 17 May 2006 be varied by inserting the following paragraphs:

1AThat Rajbinder Singh Shahi be permitted to deal with the property at 29 Granite Outlook, Epping for the purpose of providing VLA an equitable charge over his interest in the property as security for the cost or part of the cost of legal assistance to be provided to him by VLA.

1B That VLA be permitted to register a caveat on the title to the property.

4That there be liberty to any party to apply to this court for any variation of the terms of this order on reasonable notice to all other parties.