Director of Public Prosecutions v Chan & Anor

(2004) 150 A Crim R 163; [2004] ACTSC 101

Supreme Court of the ACT

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Interrogate

Catchwords

1. Criminal Law
2. › Proceeds of crime
3. › Restraining orders
4. › Reasonable grounds for suspicion
5. › Standard required under s 17(1)(f) Proceeds of Crime Act 2002 (Cth)
6. › Whether evidence sufficient to ground reasonable suspicion of indictable offence
7. › Proceeds of Crime Act 2002 (Cth), s 17
1. Criminal Law
2. › Proceeds of crime
3. › Exclusion of property from restraining order
4. › Whether motor vehicle an 'instrument' of offence of possessing prohibited import
5. › Distinction between possession simpliciter and possession for purpose of supply
6. › Proceeds of Crime Act 2002 (Cth), ss 29, 329(2)
1. Criminal Law
2. › Proceeds of crime
3. › Examination orders
4. › Discretionary power under s 180
5. › Whether adequate grounds established by sworn evidence
6. › Proceeds of Crime Act 2002 (Cth), s 180
1. Criminal Law
2. › Proceeds of crime
3. › Exclusion of property from restraining order
4. › Precondition of examination opportunity under s 32
5. › Whether s 32 bars exclusion application where examination order sought and refused
6. › Proceeds of Crime Act 2002 (Cth), ss 29, 32, 180

Quick Take

A motor vehicle used merely to transport a person who possesses a prohibited import is not an 'instrument' of the offence of possession within s 329(2) of the Proceeds of Crime Act 2002 (Cth), because the possession exists independently of the vehicle. The position may differ where the offence involves an additional element such as possession for supply. Section 32 does not permanently bar an exclusion application where the DPP has had a reasonable opportunity to seek an examination order under s 180 and that application has been refused. The power to make an examination order under s 180 is discretionary and requires adequate grounds established by sworn evidence.