Siddique v Director of Public Prosecutions
[2015] VSC 99
•5 March 2015
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
PRACTICE COURT
S CI 2014 06711
IN THE MATTER OF AN APPLICATION BY THE DIRECTOR OF
PUBLIC PROSECTUIONS FOR A RESTRAINING ORDER
and
IN THE MATTER OF AN APPLICATON FOR A VARIATION OF THE
RESTRAINING ORDER
| MOHAMED AMANULAL SIDDIQUE and IRSHAD BEGUM SIDDIQUE | Applicants |
| v | |
| DIRECTOR OF PUBLIC PROSECUTIONS FOR VICTORIA | Respondent |
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JUDGE: | GINNANE J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 2 March 2015 |
DATE OF JUDGMENT: | 5 March 2015 |
CASE MAY BE CITED AS: | Siddique v DPP |
MEDIUM NEUTRAL CITATION: | [2015] VSC 99 |
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CRIMINAL LAW – Restraining order – Property – Application to vary order for payment of legal and living expenses – Whether variation order could be made enabling payment of legal expenses – Confiscation Act 1997 ss 14, 20, 21, 22, 22A, 26, 27, 143.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicants | Mr J A Ribbands | Defteros Lawyers |
| For the Respondent | Ms R Burton | Office of Public Prosecutions Victoria |
HIS HONOUR:
On 18 December 2014, upon the application of the Director of Public Prosecutions, T Forrest J made a restraining order pursuant to s 18 of the Confiscation Act 1997 (‘the Act’) in the terms that no person shall dispose of or otherwise deal with the property specified or any interest in that property. The properties were specified as properties at Templestowe, Collingwood, Epping and Berwick. Subsequently, the Epping property was removed from the restraining order because it had been previously sold. His Honour declared that the property specified be restrained for four purposes which were set out in the order.
By summons dated 24 February 2015, Mr and Ms Siddique, who owned the properties, sought a variation of his Honour’s order. The summons was supported by affidavits sworn by Mr Siddique. The summons sought orders that the Siddiques be allowed to draw down on the NAB Flexiplus mortgage facility secured over the Berwick and Templestowe properties up to the value of $500,000. I was informed that the effect of the order sought would be to increase the amount of the drawdown by about $320,000. Mr Siddique in his affidavit states that the purpose of the further drawdown is to pay legal costs, both those that have been incurred and those that may be incurred, and further day-to-day living expenses which were said to be approximately $50,000.
Mr Siddique has been charged with three counts of obtaining a financial advantage by deception and one of attempting to obtain a financial advantage by deception.
In the affidavit made in support of the restraining order, Detective Senior Constable O’Dwyer alleges that in 2007 or 2008 Mr Siddique, together with a Mr Gant, produced three paintings in the same style as paintings created by Brett Whiteley. The paintings were then, so it is alleged, falsely marketed by Mr Gant as being original art works by Mr Whiteley, which significantly inflated their market value.
The three paintings bore the names ‘Lavender Bay’, ‘Orange Lavender Bay’, and ‘Through the Window, Lavender Bay’. Mr Siddique’s counsel informed me that the Lavender Bay painting, or Blue Lavender Bay as it was also described, was purchased by a collector in Sydney for $2.5 million. That collector commenced civil proceedings against a number of parties and they were settled on terms not known to Mr Siddique as he was not a party to those proceedings.
The Orange Lavender Bay painting was purchased by a collector in Sydney for $1.1 million, but the dealer who sold that painting refunded the purchase price to him. The dealer subsequently resold the painting for $100,000 to a purchaser who was aware of the allegations that it was not an authentic Whiteley work. The dealer who sold the Orange Lavender Bay painting is said not to be a witness in the committal proceedings and has not provided a statement to the police and makes no claim arising from the sale of the painting.
The third painting, ‘Through the Window, Lavender Bay’ or ‘Blue Lavender Bay Through the Window’, is said to have been provided by Mr Gant to a creditor to give that creditor some assurance in respect of a debt which Mr Gant owed him. However, the creditor returned that painting to Mr Gant.
Mr Siddique’s case is that he did not receive any benefit from the sale of the paintings or from the provision of the third painting to Mr Gant’s creditor. He contends that the paintings were not the proceeds of crime or tainted property. He submits that the net equity in the properties restrained, after the increased drawdown sought, would still be sufficient to provide for the purposes for which the restraining order was made.
The Director contends that s 26 of the Act, under which the Siddiques’ application is brought, does not permit a restraining order to be varied to provide for the restrained property to be used to pay for legal costs. The Director submitted that once a restraining order is made it establishes a holding position until the completion of the proceeding or its termination or until an exclusion order is made. However, expenditure can be permitted for living expenses.
The Siddiques have applied for exclusion orders and their applications are to be heard on 9 June 2015. The grounds on which the Siddiques seek the exclusion orders are, in summary, that the interests in the properties were lawfully acquired, that the properties are not tainted or derived property, that the properties can be accounted for by legitimate business transactions and that the properties will not be required to satisfy any purpose for which the restraining order was made. In addition, Mr Siddique contends that some of the property was not subject to his effective control at the relevant time. Ms Siddique also relies on the grounds that she had acquired particular property for sufficient consideration and that she was not involved in the commission of the alleged offences.
The Director submitted that any variation or alteration to the restraining order would be premature. He has not completed consideration of the material that he may rely on at the hearing of the exclusion applications. Accordingly, he has not filed any affidavits in opposition to the present s 26 application. He pointed out that the directions for the conduct of the exclusion applications did not require him to file affidavits until May 2015 and he disputes any assertion that he has chosen not to file affidavits in opposition to the present application.
Consideration of the relevant provisions of the Act commences with its objects:
3A Objects
The main objects of this Act are —
(a)to deprive persons of the proceeds of certain offences and of tainted property; and
(b)to deter persons from engaging in criminal activity; and
(c)to disrupt criminal activity by preventing the use of tainted property in further criminal activity; and
(d)to undermine the profitability of serious criminal activity.
Sections 20, 21, 22 and 22A deal with exclusion orders. Section 27 deals with the duration and setting aside of restraining orders. Section 143 contains the circumstances in which the court can direct Victoria Legal Aid to provide legal assistance to persons whose property has been restrained.
Subsections 14(4) to (6) state:
14 Restraining orders
…
(4)A restraining order may, at the time it is made or at a later time, provide for meeting —
(a)the reasonable living expenses (including the reasonable living expenses of any dependants); and
(b)reasonable business expenses —
of any person to whose property the order applies if the court that makes or made the order is satisfied that these expenses cannot be met from unrestrained property or income of the person.
(5)A court, in making a restraining order, must not provide for the payment of legal expenses in respect of any legal proceeding, whether criminal or civil, and whether in respect of a charge to which the restraining order relates or otherwise.
(6)Subject to subsections (4) and (5), a restraining order may be made subject to any conditions that the court thinks fit.
…
Section 26 is headed ‘Further orders’ and states in relevant parts:
(1)The court may, when it makes a restraining order or at any later time, make such orders in relation to the property to which the restraining order relates as it considers just.
…
(5)Examples of the kind of order that the court may make under subsection 1 are—
(a)an order varying the property to which the restraining order relates;
(b)an order varying any condition to which the restraining order is subject;
(c)an order providing for the reasonable living expenses and reasonable business expenses of any person referred to in section 14(4).
…
Section 26(5) contains other examples. At the end of the text of s 26, the following appears:
The court may direct the carrying out of repairs on restrained premises.
The object of interpretation of legislation is to discern its purpose. The variation power contained in s 26 can be exercised on two occasions: when the restraining order is made or at any later time. I take into account that the section is widely expressed and permits the court to make such order in relation to the property to which the restraining order relates as it considers just. The list of matters or examples contained in s 26(5) does not limit the width of the powers conferred by sub-s (1), but indicates some of the circumstances in which the power may be exercised. I have taken into account that restraining orders infringe important rights of individuals to use their property, not least to pay for living expenses and for the cost of defending themselves if they are subject to criminal charges. Courts do not lightly find an intent to abrogate or curtail human rights unless it is clear from unambiguous language. However, the statutory scheme of restraining orders does interfere with the rights of individuals to use their property as they choose. The Act curtails, at least at the time the restraining order is made, using the restrained property to pay legal expenses.
The examples contained in s 26(5) overlap in some respects with the matters referred to in s 14. Both s 14(4) and s 26(5)(c) permit provision being made for living expenses.
I was referred to relevant cases concerning the application of the Act. In Sypott v The Queen,[1] Redlich J in dealing with an exclusion application stated:
An order made pursuant to ss 20, 21 or 26 is not a restraining order and the prohibition contained within s 14(5) is not repeated in ss 20, 21 or 26 of the Act nor do I see any basis for its implication in any of these provisions.
[1][2003] VSC 41, [18].
Redlich J stated that the purpose of s 14(5) is to ensure that when the court makes the initial restraining order it does not attempt to make provision for the payment of legal expenses.
In Director of Public Prosecutions v McEachran,[2] Ashley JA, with the agreement of Nettle JA and Smith AJA, described the operation of ss 14, 25 and 26 in the following terms:
The express prohibition upon a court, in making a restraining order, providing for the payment of legal expenses in respect of any legal proceeding: see s 14(5). This is a very wide prohibition. It specifically extends to civil as well as criminal proceedings; and in the latter case to any criminal proceedings.
[2](2006) 15 VR 268, 280.
Ashley JA also stated:
Provision for making further orders in relation to restrained property — that is, orders other than exclusion orders: see s 26. That section sets out examples of orders which might be made: see s 26(5). While the list is not intended to be exhaustive, it certainly does not suggest that the section could be used to make an order that legal costs be met out of restrained property, or that property could be rendered unrestrained in order that a defendant’s legal costs be met.[3]
[3]Ibid 281.
In my opinion, I should apply the approach of Ashley JA and the Court of Appeal in McEachran’s Case and conclude that s 26 does not permit the variation of the restraining order to enable the payment of legal expenses. The Act has to be read as a whole. Section 26, as I have indicated, provides power to make orders in relation to the restrained property both when the restraining order is made and also at later times. Section 14(5) prevents provision for the payment of legal expenses when a restraining order is made. The terms of s 26 do not suggest that it empowers payment of legal expenses out of restrained property when further orders are made ‘at any later time’. In my opinion, if it was intended that the power to make further orders contained in s 26 could be exercised at a later time to permit payment of legal expenses, it would have expressly so provided.
I have considered the applicants’ detailed submissions seeking to establish that the properties were lawfully acquired and that the orders sought would still leave property of sufficient unencumbered value to satisfy any purpose for which the restraining order was made. If I had accepted the applicants’ interpretation of s 26, I would have: (a) considered the evidence as to the amount that might be required to satisfy any purpose for which the restraining order was made, and considered whether the property might ultimately be found to be lawfully acquired, and (b) assessed the proof of past and likely future legal expenses. However, in view of my conclusion that s 26 does not permit the payment of legal expenses out of restrained property, I do not express a conclusion about the result of applying that approach in this case.
The parties accept that the court may order that the restrained property be used for living expenses in appropriate circumstances. The court yesterday received a further affidavit from Mr Siddique sworn on 4 March 2015. I will hear the parties about that affidavit and any further submissions they may wish to make before reaching any decision about living expenses.
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