Trajkovski v Director of Public Prosecutions
[2012] VSC 121
•23 March 2012
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| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2006 1453
IN THE MATTER of the Confiscation Act 1997
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IN THE MATTER of an offender, BORIS TRAJKOVSKI
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IN THE MATTER of an application by BORIS TRAJKOVSKI for an exclusion order under Part 2 of the Confiscation Act 1997
| BORIS TRAJKOVSKI | Applicant |
| v | |
| DIRECTOR OF PUBLIC PROSECUTIONS | Respondent |
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JUDGE: | WHELAN J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 March 2012 | |
DATE OF JUDGMENT: | 23 March 2012 | |
CASE MAY BE CITED AS: | Trajkovski v DPP | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 121 | |
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CRIMINAL LAW – Confiscation – Restraining orders – Application for exclusion order following operation of automatic forfeiture – Whether a restraining order under Confiscation Act 1997 was ever made – Whether power to extend time for filing of exclusion application – DPP v Nguyen [2009] VSCA 147 applied – Application dismissed.
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APPEARANCES: | Counsel | Solicitors |
| For the Plaintiff | Mr V C Andreou (solicitor) | Victor Andreou |
| For the Defendant | Mr N J O’Bryan SC | Mr C Hyland, Solicitor for Public Prosecutions |
HIS HONOUR:
Before the court is an application by Boris Trajkovski under s 20 of the Confiscation Act 1997 (the “Act”) for an exclusion order under s 22 of the Act. The application seeks “to exclude from the restraining order dated 21 April 2006” a specified property. The order referred to was made by King J in this Court.
On 29 December 2005 the applicant had been arrested. Searches conducted by police of his car and of certain properties resulted in the seizure of a quantity of drugs. He was charged with a number of offences, including offences listed in Schedule 2 of the Act.
On 19 April 2006 the Director of Public Prosecutions (“DPP”) filed an application under s 16(2)(c) of the Act in relation to three specified residential properties. The affidavit in support of that application deposed to facts concerning Mr Trajkovski’s arrest, the matters with which he had been charged, and the matters by virtue of which it was said that Mr Trajkovski had an interest in the three specified properties.
The affidavit in support indicated that an order was sought so that the property would be available for three specified purposes, being:
(a)to satisfy any forfeiture order that may be made under Division 1 of Part 3 of the Act;
(b)to satisfy automatic forfeiture of property that may occur under Division 2 of Part 3 of the Act,
(c)to satisfy any pecuniary penalty order that may be made under Part 8 of the Act.
On 21 April 2006 King J made the following order ex parte:
THE COURT ORDERS THAT:
1.No person shall dispose of or otherwise deal with the property specified below or any interest in that property, subject to paragraph 2. of this order:
(a)Residential premises situated at 4 Thames Street, Heidelberg Heights, Victoria, 3081. This property is more particularly described in Certificate of Title Volume 04705 Folio 842.
(b)Residential premises situated at 6 Thames Street, Heidelberg Heights, Victoria, 3081. This property is more particularly described in Certificate of Title Volume 04712 Folio 300.
(c)Residential premises situated at 10 Lotus Court, Epping, Victoria, 3076. This property is more particularly described in Certificate of Title Volume 10258 Folio 976.
2.Paragraph 1. of this order shall remain in force until the final hearing and determination of the Applicant’s application for a restraining order filed on 19 April 2006 in this proceeding, or until further order.
3.Pursuant to Section 17 of the Confiscation Act 1997 the Applicant shall give notice of the application to Boris TRAJKOVSKI by serving a copy of the Applicant’s application for restraining order filed 19 April 2006 and a copy of this Order.
4.The further hearing of the Applicant’s application for a restraining order filed on 19 April 2006 is adjourned to 4 May 2006.
5. Liberty to apply generally.
THE COURT DECLARES pursuant to section 15(3) (a) of the Confiscation Act1997 that the property specified in paragraph 1 of this order be restrained for the following purposes:
(a)to satisfy any forfeiture order that may occur under Division 1 of Part 3 of the Confiscation Act1997;
(b)to satisfy automatic forfeiture of property that may occur under Division 2 of Part 3 of the Confiscation Act1997;
(c)to satisfy any pecuniary penalty order that may be made under Part 8 of the Confiscation Act1997.
Mr Trajkovski was given notice of the application, although it seems from the material on the court file that he did not get that notice until 24 May 2006.
On 4 May 2006 the matter returned to court before Hargrave J. He made an order adjourning the application which had been filed on 19 April to 17 May 2006. He also ordered that: “Paragraph 1 of the order made by Justice King on 21 April 2006 continue until 4 pm on 17 May 2006”. In that order, King J’s order was described as a “Restraining Order”.
On 17 May 2006 an order in relevantly similar terms to that made by Hargrave J was made by Kellam J. The application was adjourned to 25 May 2006 and King J’s order was ordered to continue until then. On 25 May 2006 similar orders were again made by Warren J, as she then was, adjourning the application and continuing the order until 16 June 2006. On 16 June 2006 Williams J made an order varying the “Restraining Order” made by King J on 21 April 2006 by removing one of the three properties. She also again made orders adjourning the application and extending King J’s order in terms similar to those made earlier.
On 14 July 2006 Gillard J made an order, expressed to be by consent, as follows: “Paragraph 1 of the Restraining Order dated 21 April 2006 do remain in force until further order”. I observe that there must be an error or slip in that order in that what ought to have been referred to was paragraph 1 of the order of King J, as varied by the order of Williams J. No point was taken in relation to that error or slip before me.
Thereafter, there were a number of applications made pursuant to s 26 of the Act to vary the “restraining order” and a number of such orders were made. An application was also made by Margaret Trajkovski under Part 6 of the Act for exclusion. That application was determined by an order of Dixon J made 17 December 2010. Orders were also made under s 143 of the Act concerning legal assistance in respect of a restraining order.
On 25 May 2009 Mr Trajkovski was convicted of six offences, including a Schedule 2 offence of trafficking in a large commercial quantity of methylamphetamine.
The application for an exclusion order, which is now before me, was filed on 20 October 2011.
Two preliminary matters were argued before me. The first was whether any restraining order within the meaning of the Act was ever made. The second was whether the application for exclusion must be dismissed because it is out of time and the court has no power to extend time or give leave to issue an application out of time.
The issue of whether any restraining order under the Act had ever been made first arose in a hearing before Cavanough J on 21 November 2011. Cavanough J made some observations in that respect which he recorded in “Other Matters”.
It is necessary to briefly review the relevant provisions of the Act.
Section 3 of the Act defines a restraining order as an order made under s 18. Section 18 provides that a court must make a restraining order if it is satisfied of certain specified matters. Under s 16(2)(c), the provision which was relied upon here, an application can be made if, amongst other things, a person has been charged with a Schedule 2 offence and that person has an interest in specified property. Under s 18, the order must be made if the court is satisfied that the person has been so charged and if the court considers, having regard to the affidavit in support and the other evidence, that there are reasonable grounds for making the order.
Section 14 provides that a restraining order is an order that no property or interest in property is to be disposed of or otherwise dealt with by any person except in the manner specified.
Section 15 provides, amongst other things, that a restraining order may be made for certain specified purposes, three of which are the purposes specified in the order made by King J here; and further provides that if the court makes a restraining order it must state the specified purposes of that order, as was done in the order made by King J here.
Section 17 of the Act regulates the procedure to be followed when applications are made under s 16. One issue of significance in that context is the question of notice. That issue was the subject of a Court of Appeal decision in Navarolli v Director of Public Prosecutions.[1]
[1](2005) 159 A Crim R 347 (“Navarolli”).
If a court does make a restraining order under s 18 any person with an interest in the property can apply for exclusion under s 20. A time limit for such applications is provided for by s 20(1A). The limit, subject to an exception not presently relevant, is 30 days after the making of the restraining order. That limit may be extended by the Court under s 20(1B) if it is in the interests of justice to do so.
Under s 35 of the Act, if a person is convicted of a Schedule 2 offence and if a restraining order “is or was made” and the restrained property “is not the subject of an exclusion order”, then the restrained property is forfeited to the Minister 60 days after the making of the restraining order or the conviction, whichever is later. Section 35(2) provides for the making of an exclusion application during that 60 day period.
Sections 51 and 52 provide for applications by persons other than the defendant claiming to have an interest in property forfeited under s 35 for the exclusion of their interest in that property from the operation of s 35.
On behalf of the DPP it was submitted before me that a restraining order under the Act had been made by King J on 21 April 2006, which had been subsequently extended on a number of occasions, until extended indefinitely “until further order” by Gillard J. It was submitted that there accordingly was a restraining order in place at the time of conviction and that the restrained property had been forfeited in accordance with the provisions of s 35 of the Act.
It was submitted on behalf of the DPP that King J’s original order was a restraining order because it met the description of such an order in s 14 of the Act and it contained a statement of purposes as required by s 15 of the Act. It was submitted that the terms of the order are explicable by reference to the Court of Appeal’s decision in Navarolli and that what Her Honour did was to make a restraining order on an ex parte basis in the manner described in that judgment and to then provide for the giving of notice. Counsel on behalf of the DPP did not accept that the order should properly be described as an interim order.
On behalf of Mr Trajkovski, Mr Andreou (appearing pro bono) submitted that the application filed on 19 April 2006 had never been determined and that that was made clear by the orders made progressively thereafter adjourning the application until 14 July 2006 when Gillard J made his order. It was submitted that Gillard J’s order cannot be seen as an order determining the application. Thus, it was submitted, the application had never been determined and accordingly no restraining order within the meaning of the Act had ever been made.
My conclusion is that the submissions made on behalf of the DPP ought to be accepted. The order made by King J does meet the description in s 14 and it is significant that it specifies the purposes as provided for in s 15 of the Act. I would describe the order as an interim order and I observe that in Navarolli, a decision which in my view was relevantly approved in Director of Public Prosecutions v Vu,[2] the making of what was expressly described as “an interim restraining order on an ex parte basis” was suggested as an appropriate course to follow when a judge determined that notice ought to be given under s 17.
[2][2006] VSCA 188.
Further, in my view the s 16 application was finally determined by Gillard J when he made the order he did by consent.
All of the applications and orders made thereafter, and there are many, could not have been made on any basis other than the basis that there was a restraining order under the Act then in effect.
Accordingly, my conclusion is that at all times between 21 April 2006 and the applicant’s conviction on the Schedule 2 offence a restraining order under the Act was in effect. Given that a restraining order was in effect at the time of conviction, and given that there was then no exclusion order and no application for any such order, the restrained property was automatically forfeited upon the expiration of 60 days. If an application for exclusion had been made within 60 days then forfeiture would not have occurred until that application had been dealt with.[3]
[3]Lemoussu v DPP [2012] VSCA 20.
There is no provision for extension of time in s 35. Under ss 51 and 52 of the Act, provision is made for applications for exclusion beyond the 60 day period, but those provisions only apply to applicants other than a defendant.
Under s 20 of the Act, the court has power to extend the period for making an exclusion application when the interests of justice require it to do so, but those provisions are of no assistance to the applicant here. The position here was described by the Court of Appeal in Director of Public Prosecutions v Nguyen[4] as follows:
“Everything turns upon whether or not the application for an exclusion order is made within the 60-day period. If it is, automatic forfeiture will be avoided and the case will proceed to a hearing on the merits. If it is not, there is no provision for time to be extended.”[5]
[4][2009] VSCA 147 (“Nguyen”).
[5]Nguyen [2009] VSCA 147, [12].
The Court of Appeal in Nguyen explained that once property had been automatically forfeited under s 35 there was no longer any restraining order in operation in respect of that property. Accordingly, no exclusion order could be made under s 22 and there could be no occasion to exercise the power of extension provided for in s 20(1B).[6]
[6]Nguyen [2009] VSCA 147, [117].
Mr Andreou, on behalf of Mr Trajkovski, sought to avoid these consequences submitting that the court should “read into” s 35 a provision like s 20(1B) or s 51(3) so as to enable an order to be made extending time or permitting an application for exclusion after time has expired. That cannot be done. I cannot supplement or add to provisions in the legislation, and the effect of the provisions as they stand has been clearly articulated and explained by the Court of Appeal in Nguyen.
In the circumstances Mr Trajkovski’s application for exclusion must be dismissed.
I would observe that this matter raises an issue of more general concern. When interim orders are made on applications under s 16 of the Act it seems to me to be important that there is no ambiguity as to whether an order is simply being made to preserve the subject matter of the application pending a hearing or whether what is being done is that a restraining order is being made on an interim basis in the manner described in Navarolli. Given the consequences, or potential consequences, of such orders it seems to me to be important that there should be no ambiguity in relation to that matter. Often it may be appropriate to simply make an interim order preserving the subject matter of the application rather than a restraining order itself. If so, the order itself should make that clear.
(An application for costs was subsequently made by the DPP, and argument followed. The ruling on costs was reserved. The parties were given leave to file any further written submission they wished to make by 12.00 noon on Monday 26 March 2012. The ruling below was made on Tuesday 27 March 2012.)
In this matter I made orders dismissing Mr Trajkovski’s exclusion application on Friday 23 March 2012. I gave reasons for the dismissal at that time. The DPP sought an order for costs.
After hearing oral submissions, I reserved the question of costs and directed any party who wished to make a further written submission to do so by 12 noon yesterday.
Counsel on behalf of the DPP did file a further written submission.
An exclusion application is a civil proceeding. Absent any relevant legislative provision, under ordinary costs rules, I would have ordered Mr Trajkovski as the unsuccessful applicant to pay the DPP’s costs.
I was concerned, however, that s 133A of the Act might alter the usual position.
Having read the DPP’s written submission and the authority annexed to it, Bow Ye Investments Pty Ltd (in liq) v Director of Public Prosecutions(No 2),[7] I have concluded that s 133A does not alter the usual costs rules in this case.
[7][2009] VSCA 278.
I accordingly order that the applicant, Mr Trajkovski, pay the DPP’s costs of the exclusion application, including any reserved costs.
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