Thi Thu Ha Nguyen v Director of Public Prosecutions and Attorney-General for the State of Victoria

In the matter of Thi Thu Ha Nguyen v Director of Public Prosecutions and Attorney-General for the State of Victoria, the Supreme Court of Victoria was presented with an appeal regarding the validity of an unexplained wealth restraining order. The case involved the application of the Confiscation Act 1997, specifically the provisions that allow for self-executing forfeiture orders. The central dispute was whether the statutory scheme permitted the forfeiture of property without ensuring a hearing before a court, and if the powers of the court were sufficient to address procedural fairness concerns.

The legal issues before the court encompassed the interpretation of the Confiscation Act, particularly in the context of the court’s inherent or implied powers to observe natural justice principles. The court had to determine whether these powers were sufficient to compel notice to an affected party, to set aside ex parte orders, and to issue any orders deemed just. This was evaluated against the backdrop of relevant precedents such as Director of Public Prosecutions v Vu, Director of Public Prosecutions (Cth) v Kamal, and Ruzehaji v Commissioner of the Australian Federal Police. Additionally, the court considered the constitutionality of the statutory scheme in light of cases such as International Finance Trust Co Ltd v New South Wales Crime Commission, Kable v Director of Public Prosecutions (NSW), and Nicholas v The Queen.

The Supreme Court of Victoria held that the statutory scheme was valid and that the court’s inherent or implied powers were sufficient to observe procedural fairness. The court reasoned that the powers to direct notice, to set aside ex parte orders, and to issue just orders were sufficient to ensure compliance with natural justice principles. This decision was distinguished from International Finance Trust Co Ltd v New South Wales Crime Commission, where the absence of these powers was found to render the scheme unconstitutional. The court further noted that the Charter of Human Rights and Responsibilities did not necessitate a different outcome. Consequently, the appeal was dismissed, and leave to appeal was granted to the High Court of Australia.

No specific final orders were made in the Supreme Court decision as the appeal was dismissed with leave to appeal to the High Court.