A new Supreme Court case, DPP v Nguyen & Anor; DPP v Duncan & Anor  VSC 292, doesn’t actually apply the Charter itself but reveals that the Charter was applied earlier this year in the County Court. Once again, let me note the unfortunate fact that Victoria is the ONLY Australian jurisdiction that doesn’t make the judgments of its intermediate court publicly available online. (Qld‘s, SA‘s and WA‘s are on Austlii. NSW‘s is on Lawlink. ACT, NT and Tas don’t have intermediate courts.) It’s true that a random selection of VCC cases are available on the VCC website, but it’s also clear that numerous significant judgments aren’t there, including the one mentioned in this case. It’s an appalling situation. Michael Rozenes, what are you doing?
What’s especially interesting is that this VCC case applied one of the Charter’s weirdest rights:
20 A person must not be deprived of his or her property other than in accordance with law.
This right is weird because it isn’t in the ICCPR. It’s also weird because it seems to simply give a right against unlawful behaviour (which surely goes without saying.) However, as it turns out, the right may well do more than that.
The VCC case is another one concerning Victoria’s horribly drafted confiscation law. Unlike the previous VSC case on that law, this one concerned the more straightforward situation where a person is charged, a restraining order is placed on their property and then they are convicted. Or, at least, it should be straightforward. Here’s the relevant provision:
(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 defendant’s conviction of that offence; or (ii) the charging or proposed charging of the defendant 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 defendant’s conviction– whichever is later.
The complication is that it can be hard to work out what day a person was convicted. In the case of the two defendants in these cases, the matters were continually listed and relisted for hearing and, in the course of one of the hearings, the defendant announced that he would enter a guilty plea. The listing judge – who wouldn’t have known that was coming – noted the guilty plea and then adjourned the matter for sentencing. And, in each case, the defendant remained on bail until the sentencing matter came up.
At issue in each case was the question of whether the conviction occured when the guilty plea was made or at some later point, such as when the defendants were sentenced. This mattered because each defendant applied for an exclusion order, protecting the property from forfeiture, at a point that was more than 60 days after the guilty plea but less than sixty days after the sentence. The OPP’s confiscation squad (who pursue these matters like each of them will individually get a cut of the proceeds – surely not?) argued that conviction happened at guilty plea, thus avoiding any need for a court to work out if the property really ought to be forfeited or not. Indeed, there was another temporal confusion in one case because of the gap between the lodging of the application (within the 60 day limit on any view) and the hearing of it (outside of the limit on the OPP’s view of things.) Why the delay between lodgment and hearing should work against the applicant is beyond me, but their argument, turning on a since repealed County Court rule (model litigants my arse!), didn’t have to be dealt with.
Anyway, the courts gave short shrift to the OPP’s arguments. The OPP rested a lot of its argument on the fact that each of the listing judges responded to the guilty plea by getting their associates to give the defendants the ‘allocutus’ (a bizarre latin jargon for saying to the defendants “You have pled guilty. Do you have anything more you want to say?”, a practice that is itself a vestige of quaint old times when sentences were brought down moments after convictions.) But the courts noted that a finding that a conviction occured then and there was at odds with the adminsitrative nature of the hearing and the fact that, not only was neither defendant immediately punished, but they were each left on bail. From a policy basis, Smith J was decidely unimpressed with the OPP’s stance that all this bluriness should be resolved in its favour:
The legal approach suggested for the DPP, in my view, involves a significant change to the law. It would give preference to form over substance and introduce uncertainty and arbitrary outcomes. In the present case there was certainty with the remanding of the defendants for sentence after the hearing of the plea. What the DPP was seeking was “certainty” at the earliest time possible. A disadvantage to the DPP that flows from the alleged “uncertainty” is that he will have to argue the applications for extension orders on their merits. I assume that is not a matter of concern.
And it’s here that Charter s. 20 seems to matter. Justice Smith tells us that McInnery J, the County Court judge in both cases, referred to the Charter in determining that the OPP’s argument should be rejected:
His Honour also noted the relevance in interpreting a statutory provision of s.32 of the Charter of Human Rights and Responsibilities Act 2006, referring to the relevant human right being that spelt out in s.20, that a person must not be deprived of his or her property other than in accordance with law.
Frustratingly, without access to the VCC judgment, it’s hard to know what this means and if it was anything other than a passing reference. It might be thought that McInnery J was taking a fairly naive approach that equates Charter ss. 20 & 32 with a right to strict interpretation of statutes that remove property rights. I don’t think the narrow terms of Charter s. 20 necessarily require such an approach.
However, it may well be that McInnery J had a more subtle argument in mind, one alluded to by Smith J in laying into Victoria’s crappy confiscation legislation at the end of his judgment:
The legislation forfeits people’s property. Under such a scheme, there is a risk that property will be forfeited in ignorance and without lawful justification unless the owners of the property receive appropriate notice. Assuming that there is no intention to unfairly discriminate against the persons charged with criminal offences, it is important as a minimum protection that adequate notice be given to people affected by restraining orders about their rights and the circumstances in which their rights to property may be lost. On my reading of the Act, there is no provision which requires any notice to be given to a defendant about his or her rights, and the time limits within which they must be exercised, where such a person is subject to a restraining order and is convicted of an automatic forfeiture offence. The only notice that appears to be required is notice of the original restraining order application or, in the event that such an order is made ex parte, a subsequent notice of the making of the order under s.19. I suggest that consideration needs to be given to reform in this area. There may be also other situations where consideration should be given to additional notice provisions.
And that raises a neat argument indeed: that, amongst other things, the ‘other than in accordance with law’ proviso on Charter s. 20 includes a requireent that, if someone’s property is to be taken away, they need to know about the law that is doing so. A strict forfeiture rule that is triggered by a formal and incomprehensible exchage of words before a listing judge, with nary a reference to its implications for the defendants’ property, scarcely meets that requirement. So, there’s every reason to require judges to interpret the statute as only triggered by the substance rather than the form of the conviction.
Indeed, given that even that test the judges came up with – a typical, vague, multi-factor test – is neither certain nor linked clearly to the forfeiture time-line, it may well be that there’s an argument that s. 35(1) of the Confiscation Act might merit a declaration of inconsistent interpretation with respect to Charter s. 20. More practically, I think there may be a good argument that the good folks at the OPP’s proceeds-of-crime branch, Charter public auhorities the lot of them, may need to change their behaviour:
38(1) Subject to this section, it is unlawful for a public authority to act in a way that is incompatible with a human right or, in making a decision, to fail to give proper consideration to a relevant human right.
Acting includes a ‘failure to act’. So, why haven’t the OPP folks been proactive in sending out helpful notices to offenders on conviction informing them that of the date they need to apply for an exclusion order?