Tainted property, tainted statute

Another non-use of the Charter today! Here’s the thrilling paragraph from DPP v Ali & Anor [2008] VSC 167:

Initially the respondent called in aid s.26 of the Charter of Human Rights Act 2007. After notice was served under s.35 of that Act upon the Attorney-General and the Equal Opportunities Commission, the Attorney-General intervened and filed submissions. After discussions between the parties’ representatives, the Court was advised on the return hearing date on 17 March 2008 that the respondents no longer sought to rely upon arguments based upon the Charter.

So, once again, the Charter’s requirement that the Attorney-General be notified about any questions of law arising under the Charter has had the result that the defendant withdrew the argument. Alas, we aren’t told why. It might be because the respondent’s arguments were daft and the Attorney-General’s submissions made that obvious. In that case, I guess justice has been served. Or it might be because the Attorney-General threw around a bunch of big, scary, expensive and dubious arguments about the Constitution, thus scaring the defendant away. If that’s the case, then this is a very bad thing, as this case could have been assisted by a bit of Charter-style lovin’. The frustrating thing is that the reasons don’t tell us what happened. The Charter is being settled away out of the public eye. That can’t be a good thing.

It’s a real pity that the Charter wasn’t ultimately involved in this case, because the case involved what I regard as the Charter’s raison d’etre: harsh legislation that’s hilariously badly drafted. The case, of course, is an interlocutory criminal case (of a sort). The respondent, Khodi Ali, was charged with three others with trafficking speed. The DPP used to charge against Ali to get a restraining order put on the house owned by Ali and his wife, on the basis that the speed was produced in the garage. (Anyone who has seen Underbelly will, at this point, have some hideous images of Carl and Roberta Williams flashing through their heads. Aarrgh.) Alas, the defendant was acquitted, although the three others were convicted. As a result, the restraining order instantly ceased. This case involves the DPP’s attempt to start the process again.

But the problem is that Victoria’s Confiscation Act 1997 has been totally botched by successive amendments. When the Act was first passed, there was just one process to grab the proceeds of crime: wait until the defendant is charged, then apply for a restraining order and later a forfeiture order. A section of the legislation made it clear that it didn’t matter if the charge was later withdrawn or quashed. If that legislation had applied here, then Ali’s house would clearly have been covered and the only course he and his wife would have had was to argue that they knew nothin’ about the use being made of their property. Good luck with all that. Alas, the government decided to toughen up the legislation in 2004 by removing the need to wait for a charge first. A reasonable suspicion would be good enough to start the process and it didn’t matter whether or not someone was ever charged. Nice. As a result, someone decided that there was no need for that provision spelling out what happens if charges were dropped. Ooops.

The big problem was that the provisions now had to straddle two situations: (1) where the defendant was chraged, with the charge and hoped-for conviction serving as fast-tracks to restraining the property; and (2) where the defendant wasn’t charged, so the focus was on the property, not the defendant. That’s tricky to do when the argument isn’t about proceeds of crime, but about property that was used to commit a crime. Used by who? The 2004 amendments didn’t change the relevant definition, which the Victorian parliament botched back in 1997:

tainted property, in relation to an offence, means property that…  was used, or was intended by the defendant to be used in, or in connection with, the commission of the offence

Try reading this a few times. One situation is where the property was intended to be used to commit a crime. It’s clear that it’s the defendant who has to use such a property. (That’s the defendant who was charged or convicted. So, it doesn’t work where there’s no charge.) The other situation – which is what applied in this case – is property that was allegedly already used to commit an offence. Does the defendant have to be the one doing the using? One hideous problem is the underlined pasage and, in particular, the commas on either side. If you leave out that phrase, as you should be able to, the provision reads “was used or in connection with”. Bwa ha ha! Anyway, the judge held that, although neither argument was satisfactory, it probably made sense that there was no need to prove that the person who happened to be charged was the one who used the property in question to commit an offence. Score one for the DPP.

Alas for the DPP, there was another problem. The new provision allowing a restraining order to be imposed was this one:

16(2) The DPP or a prescribed person, or a person belonging to a prescribed class of persons, may apply, without notice, to the Supreme Court or the County Court for a restraining order in respect of property if-

(a) a member of the police force suspects on reasonable grounds that the property is tainted property in relation to a Schedule 2 offence; or

(b) a member of the police force or a person authorised by or under an Act to prosecute the relevant type of offence believes that- (i) within the next 48 hours a person will be charged with a Schedule 2 offence; and (ii) that person has an interest in the property or that the property is tainted property in relation to that offence; or

(c) a person has been charged with a Schedule 2 offence and that person has an interest in the property or the property is tainted property in relation to that offence; or

(d) a person has been convicted of a Schedule 2 offence and that person has an interest in the property or the property is tainted property in relation to that offence.

So, the provisions cover suspicion, pending charge, actual charge and conviction. In this case, the DPP relied on (c) when the defendant was charged, but that died when the charged was quashed. So, now the DPP wants to go back to (a), relying on the new 2004 approach that allows restraints even if there never was a charge. Ali argued that the provisions are arranged in order, and that you can’t go backwards. He pointed to another provision that expressly provided for a move from (a) to (c), but which didn’t mention the reverse. He also argued that, without express perission in the statute, the DPP shouldn’t be allowed to have two goes at the process. He pointed to another provision that provided (in narrow circumstances) for repeated applications (although it didn’t cover this particular application.) The judge went for Ali’s arguments, citing various common law arguments about the need to construe these provisions narrowly and to not overturn principles like finality. Score one (and the whole game) for Ali and his wife.

The fault is, of course, Parliament’s. Justice Smith said:

When regard is had to the whole Act, it is difficult to accept that Parliament chose to leave the issue unaddressed if it intended that second applications for restraining orders could be brought. It attempts in the Act to cover all aspects and potential issues in detail and so attempts to minimise uncertainty. It is that attempt, among other things, that gives rise to the Act’s complexity. Further, the Act did address the issue of subsequent applications in relation to confiscation orders on three occasions. In all the circumstances it would be remarkable with such detailed and complex legislation for Parliament not to address the issue if it intended that subsequent applications could be brought.

Ouch. I guess we’ll see some further amendments soon.

But what a pity that the Charter wasn’t brought to bear on these issues! Why is this being left to common law principles of interpretation, rather than the Charter’s interpretation mandate? The problem may have been the Charter right the defendant chose to rely on:

26 A person must not be tried or punished more than once for an offence in respect of which he or she has already been finally convicted or acquitted in accordance with law.

While the principle of double jeopardy does seem relevant here, the terms of this right are narrowed by the concepts of ‘tried’ and ‘punished’, both of which arguably don’t cover tainted property proceedings. Arguably.

There were some alternative rights the defendant could have relied upon instead:

20 A person must not be deprived of his or her property other than in accordance with law.

25(2) A person charged with a criminal offence has the right to be presumed innocent until proved guilty according to law.

Neither of these rights is limited to criminal proceedings (although the Attorney-General dubiously argues that the second right is.)  While both of these rights are fuzzier than the ‘thou shalt not’ Charter s. 26, they are both potentially relevant in resolving questions about interpretation. Couldn’t you argue that the combination of Charter ss 20 and 32 requires (where the words and purpose of a provision permit) the narrowest reading of statutes that infringe on property rights (on the basis that an ambiguous removal of property rights isn’t ‘in accordance with law’)? And couldn’t you argue that the combination of Charter ss 25(2) and 32 requires (where the words and purpose of a provision permit) a statute to be read in a way that gives meaning to a person’s acquittal over one (like the one proposed by the DPP in this case) which treats such an acquittal as essentially irrelevant?

In short, a clear missed opportunity to apply the Charter. It’s a pity that the attorney-general seems to have had a hand in giving the Charter the kibosh.

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