Taha v Director of Public Prosecutions

[2011] VCC 1412

IN THE COUNTY COURT OF VICTORIA Revised

(Not) Restricted

AT MELBOURNE

CIVIL DIVISION

Case No. CI-08-02901

YOUSEF TAHA and RANA OMRAN	Applicants
v
THE DIRECTOR OF PUBLIC	Respondent
PROSECUTIONS FOR THE STATE OF VICTORIA

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JUDGE:	LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	8 August 2011
DATE OF JUDGMENT:	16 August 2011
CASE MAY BE CITED AS:	TAHA & ANOR V DPP
MEDIUM NEUTRAL CITATION:	[2011] VCC 1412

REASONS FOR JUDGMENT

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Catchwords: Confiscation Act 1997-application for leave to bring exclusion application out of time under s.20(1B) of the Act and after restrained property had been forfeited by operation of s.35(1)(e) of the Act. Applications refused on the basis the court does not have discretion to extend time within s.20(1B) once the previously restrained property has been forfeited.

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Ms. L G De Ferrari	SDR Law
For the Defendant	Mr. S G O’Bryan SC	Craig Hyland, Solicitor for Public Prosecutions
HIS HONOUR:

1 On 20 April 2011 Yousef Taha (‘Taha’) made application to the court for an order extending time to permit him to make application for an exclusion order relating to property restrained and for an exclusion order. Insofar as the application sought an extension of time it seeks to enliven the power of the court to make such an order found in s.20(1B) of the Confiscation Act 1997 (‘the Act’). The heading on the Taha application wrongly names him as the ‘Respondent’. I treat this as an error of no consequence and deal with his application treating him as the applicant.

2          On 21 April 2011 Rana Omran (‘Omran’) the wife of Taha also made an application in similar, but not identical, terms.

3          The applications are supported by affidavits of Taha sworn 30 May 2011 and 2 August 2011 and an affidavits of Omran sworn 31 May 2011 and 2 August 2001. Each application raises the same legal points for determination. The applications proceeded together. Ms De Ferrari appeared on behalf of both Taha and Omran. Mr S O’Bryan SC appeared on behalf of the Respondent.

4          For the reasons that follow each application is refused.

5 It is necessary to recite a brief chronology about which the parties are agreed. On 18 July 2008, the respondent made application under s.16(2)(c) of the Act for a restraining order in respect of property, being a property located at 16 Inverie Court, Greenvale and a BMW motor vehicle and a VW motor vehicle[1].

[1]             Paragraph 3 of the application dated 18 July 2008.

6 The application for a restraining order was made on the grounds that the applicant Taha had been charged with a Schedule 2 offence within the Act, and that Taha had an interest in the property, and/or the property was tainted property within the Act[2].

[2]             Paragraph 4 of the application dated 18 July 2008.

7 The application for a restraining order was made for the purposes set out in sections 15(1)(a) and (b) and (d) of the Act[3]

[3]             Paragraph 5 of the application dated 18 July 2008.

8 On 22 July 2008, a restraining order (‘the restraining order’) was made in respect of the property described above, by Judge McInerney in this court. The restraining order included a declaration pursuant to s.15(3)(a) of the Act that the purposes for the making of the restraining order were those founded in sections 15(1)(a) and (b) and (d) of the Act.

9 On 4 August 2008, Dean Andrew Solomon, a Detective Senior Constable of Police served Taha at his then place of residence with three documents. The first document was a copy of the restraining order. The second document was a Notice Requiring a Declaration of property Interests. That is a document required to be served by s.19A of the Act. It is a document in two parts. The first part (omitting formal parts) contains the following warning which is translated in several languages as set out hereunder. I assume the document includes an Arabic translation

“IMPORTANT: DO NOT IGNORE THIS DOCUMENT

As soon as you get this notice you should get legal advice to help you understand the notice and your obligations under the notice. Contact your lawyer or a community legal centre for advice”

10        The actual notice to which the above was attached includes, inter alia, the

following:

“WHAT YOU MUST DO

You must make a declaration in writing. You may use the attached form to make your declaration.

The declaration must state-

• whether or not you have an interest in the property described in the restraining order; and

• whether or not you believe that any other person has an interest in the property described in the restraining order.

If you believe that any other person has an interest in the property described in the restraining order, you must state the name of every such person in the declaration.

You must give the declaration to a member of the police force within 14 days after you were given this notice.”

11. The third document that was served by Solomon was a form described as ‘FORM 2-10M’. It is addressed to the applicant Taha under the heading “IMPORTANT NOTE” and it includes the following:

“The Order was made under Part 2 of the Confiscation Act 1997 of the State of Victoria. It was made for the purpose of satisfying automatic forfeiture of property that may occur under Division 2 of Part 3 of that Act.

Accordingly, the restrained property is forfeited to the State on the expiry of 60 days after the making of this restraining order or (if later) the conviction of Yousef Taha of the Schedule 2 (automatic forfeiture) offence in reliance upon which, or by reference to the charging or proposed charging of which, this Restraining Order was made UNLESS WITHIN 30 DAYS of the date you receive notice of the Restraining Order an application has been made for an exclusion order under section 22 of the Confiscation Act 1997.

The circumstances, in which the Court may make an exclusion order, excluding property from the operation of the Restraining Order, are set out in section 22. If you wish to make such an application you should act promptly.”

12. The documents served on the applicants are each prescribed by the Act. The terms of them reflect the intention of the Act, namely to impose strict time limits for the making of exclusion applications relating to restrained property.

13. Taha acknowledges receipt of the documents that were served on him by Solomon.[4] Taha says that he did not completely understand what the restraining order meant. He says he took responsibility for the restraining order on behalf of himself and his wife. He says he spoke with a co-accused and tried to discuss the matter with his lawyer acting in the criminal proceeding. His counsel at his plea David Grace QC told him the issue of the restrained property had to be resolved as an issue separate from the criminal proceedings.[5]

[4]             Affidavit of Taha sworn 30 May 2011 paragraph 4.

[5]             Affidavit of Taha sworn 30 May 2011 paragraphs 4 to 9.

14. Omran acknowledges that she knew of the documents that were served on her husband and it would appear from her affidavits that she read them. She says she did not understand the documents and that she effectively left it to Taha to resolve.[6]

[6]             See Omran affidavit sworn 31 May 2011 paragraphs 3 to 6.

15. S.20 of the Act requires that any person claiming an interest in property restrained by a restraining order made under s.18 must make application to the Court for an order under sections 21, 22 or 24 within 30 days after service of the restraining order. In this case it is agreed that 30 day period expired on or shortly after 5 September 2008.

16. On 22 February 2011 Taha was arraigned and pleaded guilty to one count of trafficking in a large commercial quantity of MDMA being a Schedule 2 offence within the Act. He was convicted of that offence on that day.

17. The period of 60 days from conviction of Taha for a Schedule 2 offence expired on 23 April 2011, two days after each application was filed.

18. S.35(1) of the Act provides that where a person has been convicted of a Schedule 2 offence and a restraining order is in place and there is no exclusion order under s.22, the restrained property is forfeited to the Minister on the expiration of 60 days after conviction.

19. The applicants, not having obtained leave to extend time for the making of an exclusion application within s.20(1B) before the conviction of Taha or before the expiration of 60 days after his conviction, the primary question for decision is whether or not this Court has the power to extend the period for the making of an exclusion application now in exercise of the power in s.20(1B). The applicants submit that this Court has the power. The respondent contends that on a proper construction of the Act, the property the subject of the restraining order has been forfeited by operation of the Act and the power found in s.20(1B) no longer exists.

20. It is necessary to have regard to the provisions of the Act.

21. S.20 of the Act is found in Part 2 of the Act which deals with ‘Restraining Orders’. Relevantly s.20 provides as follows:

Application for exclusion from restraining order

(1)	If a court makes a restraining order against property under section 18, any person claiming an interest in the property (including the accused) may apply to that court for an order under section 21, 22 or 24
(1A)	An application under subsection (1) must be made— (a) if notice is required to be given under section 19(1), within 30 days after service of notice of the making of the restraining order; or (b) in any other case, within 30 days after the making of the restraining order.

(1B) The court may extend the period within which an application may be made, whether or not that period has expired, if it is in the interests of justice to do so.

22. An application for exclusion must be made within 30 days after service of the restraining order. However, section 20(1B) gives the court a discretionary power to extend the time whether or not the period of 30 days has expired.

23. S.35 of the Act is relevant to the argument here. It is found in Part 3 of the Act which is concerned with the forfeiture of property. S.35 is concerned with the automatic forfeiture of restrained property on conviction for a Schedule 2 offence. Relevantly it provides as follows:

Automatic forfeiture of restrained property on conviction of certain offences

(1) If—

(a)

a person is convicted of a Schedule 2 offence; and

(b)

a restraining order is or was made under Part 2 in respect of property for the purposes of automatic forfeiture in reliance on—

(i)	the conviction of the accused of that offence; or
(ii)	the charging or proposed charging of the accused with that offence or a related offence that is a Schedule 2 offence; and

(c)

the restrained property is not the subject of an exclusion order under section 22—

the restrained property, subject to any declaration under section 23, is

forfeited to the Minister on the expiry of 60 days after—

(d)	the making of the restraining order; or
(e)	the conviction of the accused;

whichever is later.

(2)

If, within the period of 60 days referred to in subsection (1), an application has been made for an exclusion order under section 22 in respect of restrained property, the property is forfeited to the Minister —

(a)	if the application is refused or dismissed, at the end of the period during which the person may appeal against the refusal or dismissal or, if such an appeal is lodged, when the appeal is abandoned or finally determined without the order having been made; or
(b)	if the application is withdrawn or struck out, on that withdrawal or striking out.

24. Ms. De Ferrari who appeared as counsel for the applicants submitted that the operation of s.35(1) of the Act is subject to s.35(2). Her submission was that even though the 30 day time limit in s.20(1A)(a) and (b) of the Act has expired, without extension having been granted by a court within s.20(1B), the applications filed by Taha and Omran on 20 and 21 April respectively (both having been made within 60 days of conviction of Taha) should each be treated as an application for an exclusion order on foot and yet to be determined for the purposes of s.35(2) of the Act. She submits there is nothing in s.20(1B) that qualifies the power of the court such that it must be exercised before expiration of the 60 days after conviction in s.35(1). She relies on Shin Kobe Maru v Empire Shipping Co Inc (1994) 181 CLR 404 at 421.

25. Mr. S O’Bryan SC, who appeared on behalf of the respondent, submitted that the time limit in s.35(1) of the Act is a time limit going to jurisdiction. He argued that absent a restraining order, the restrained property was forfeited to the relevant Minister 60 days after the conviction of Taha. Mr. O’Bryan relied upon what the Court of Appeal said in DPP v Duncan & Anor (2009) VR 66 at page 89 where it said, inter alia:

“114. The DPP was right to characterise the alleged error as being jurisdictional in nature. If, as the DPP argues, the property was forfeited under s.35(1) because of the expiry of the 60 day period from conviction, a court has no jurisdiction to entertain an application under s.22 for an order excluding property from the scope of the restraining order. In this sense we think it correct to describe the time limit in s.35(1) as going to jurisdiction.”

26. The Court of Appeal in Duncan (supra) cited as authority for the proposition set out above what Justice Gummow said in David Grant & Co Pty Ltd v. Westpac Banking Corporation 184 CLR 265 at page 277. That was a case concerned with the power of a court to extend time within which to make application to set aside a statutory demand. In the passage cited by the Court of Appeal, Justice Gummow said, inter alia, at page 277:

“In providing that an application to the court for an order setting aside a statutory demand “may only” be made within the twenty-one day period there specified and that an application is made in accordance with s459G only if, within those twenty- one days, a supporting affidavit is filed and a copy thereof and of the applications are served, sub-ss (2) and (3) of s459G attach a limitation or condition upon the authority of the court to set aside the demand. In this setting the use in s459G(2) of the term ‘may’ does not give rise to the considerations which apply where legislation confers upon a decision maker an authority of a discretionary kind and the issue is whether “may” is used in a facultative and permissive sense or an imperative sense (25). Here, the phrase “[a}n application may only be made within 21 days” should be read as a whole. The force of the term “may only” is to define the jurisdiction of the court by imposing a requirement as to time as an essential condition of the new right conferred by s459G. An integer or element of the right created by s 459G is its exercise by application made within the time specified. To adapt what was said by Isaacs J in The Crown v McNeil (26), it is a condition of the gift in sub-s (1) of s 459G that sub-s (2) be observed, unless this is so, the gift can never take effect. The same is true of sub-s (3)”

27. Mr. O’Bryan also relies upon that passage in this court. He submitted the critical question is whether or not the applicants had made applications for exclusion orders within the 60 day period provided for in s.35(1). If so, automatic forfeiture would be stayed and the case proceeds to a hearing on the merits. If not, there is no provision for time to be extended and automatic forfeiture will have occurred on the expiry of the 60 days (by operation of s.35(1)). That is so irrespective of the merits of the case and irrespective of whether there is an acceptable explanation for the failure to make application within time. He relied upon what was said by the Court of Appeal in Duncan (supra) at page 89 paragraphs 116 and 117.

28. Mr O’Bryan further submitted sections 35(1) and 35(2) of the Act provide the criteria under which the legal consequence, namely; automatic forfeiture, occurs under the Act. He submitted, the happening of the legal consequence contemplated by those sections necessarily qualifies the court’s power to make orders under s.20(1B). He submitted it was significant that s.20(1B) has a limited reference to expiry of time under s.20(1A) and says nothing about time having run under s.35(1). Likewise, he submitted, s.47 of the Act sets out the circumstance in which automatic forfeiture under s.35 of the Act is discharged in respect of an interest in property. Section 20(1B) again, is noticeably absent from s.47 of the Act.

29. Mr O’Bryan relied upon Staples v Staples [1952] VLR 25 at 27 and also Parsons v Bunge (1941) 64 CLR 421 at 434.

30. I accept Mr O’Bryan’s submissions. An application for an order under sections 21, 22 or 24 of the Act must be made within time set out in s.20(1A) or within an extended permitted by a court order within s.20(1B). In my judgment, where property has been restrained by court order, and that property is subsequently forfeited within s.35(1)(e) of the Act, a court no longer has power to extend the period for making an exclusion application within s.20(1B).

31. It may well be that (as here) an application for extension of the period within which to make an exclusion application and the application for exclusion itself are each made in the one document. However, in my opinion, until the time for extension of the period to bring an exclusion application is granted within s.20(1B), that part of the application that relates to seeking an exclusion order is of no affect. In my view, the Act sets down a strict statutory framework for the bringing of exclusion applications. The Act does not permit applications for exclusion to be treated as valid and on foot for the purposes of s.35(2) unless brought within the time permitted by the Act or an extension of time as ordered by the court.

32. Unfortunate though it may be, the consequence for each applicant is that not having obtained an order extending the period within which an application for exclusion from the restraining order may be made within s.20(1B), no application under s.20 for an exclusion order was on foot in time to stay forfeiture pursuant to s.35(2). By operation of the Act, there is no longer any restrained property in existence it having been forfeited to the Minister on or about 23 April of this year pursuant to the operation of s.35(1)(e) of the Act.

33. Having taken the view I do not have the power to otherwise deal with these applications it is not necessary that I deal with other arguments advanced by the parties.

34. I will hear the parties on the question of costs.