Director of Public Prosecutions for Victoria v Le [2007] HCA 52

HIGH COURT OF AUSTRALIA

GLEESON CJ,

GUMMOW, KIRBY, HAYNE AND CRENNAN JJ

DIRECTOR OF PUBLIC PROSECUTIONS

FOR VICTORIA APPELLANT

AND

PHAN THI LE RESPONDENT

Director of Public Prosecutions for Victoria v Le [2007] HCA 52

14 November 2007

M65/2007

ORDER

1. Appeal allowed in respect of grounds (1)-(3) and dismissed in relation to grounds (4)-(7).

2. Set aside Order 1 of the orders made by the Court of Appeal of the Supreme Court of Victoria on 15 February 2007 and, in its place, order that:

1. the appeal be allowed;

(b) Order 1 of the orders made by Judge Campbell on 31 March 2006 be varied as follows:

(i) Order that the interest as joint proprietor of Phan Thi Le in the property situated at 10/28-30 Ridley Street, Sunshine and more particularly described in Certificate of Title Volume 9604 Folio 908 be excluded from the automatic forfeiture pursuant to s 52(1)(a) of the Confiscation Act 1997; and

(ii) Declare that the nature of the interest of Phan Thi Le in the property is that of tenant in common as to a one-half share.

3. The appellant to pay the respondent's costs of the appeal to this Court.

On appeal from the Supreme Court of Victoria

Representation

D F Jackson QC with N J O'Bryan SC for the appellant (instructed by Solicitor for Public Prosecutions)

D Grace QC with D C Hallowes and M K Moshinsky for the respondent (instructed by Melinda Walker & Co)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Director of Public Prosecutions for Victoria v Le

Criminal Law – Confiscation of Property – Exclusion order – Husband was sole registered proprietor of an apartment ("the property") which was the matrimonial home – Husband charged with trafficking in drug of dependence – Husband subsequently transferred the property to himself and his wife ("the respondent") as joint registered proprietors for consideration of "natural love and affection" – Director of Public Prosecutions for Victoria obtained a restraining order over the property pursuant to the Confiscation Act 1997 (Vic) ("the Act") for the purpose of automatic forfeiture upon conviction – Husband convicted – Respondent applied, pursuant to s 51 of the Act, for exclusion of the property from automatic forfeiture – Whether whole of the property, or only the respondent's joint interest in the property, could be excluded from forfeiture on the satisfaction of certain conditions – Whether respondent satisfied the condition in s 52(1)(a)(iii) of the Act that the circumstances in which she acquired her interest in the property were "such as not to arouse a reasonable suspicion that the property was tainted property" – Whether "reasonable suspicion" to be tested wholly objectively – Whether "natural love and affection" constituted "sufficient consideration" within the meaning of s 52(1)(a)(v) of the Act.