DPP v Ali (No. 2)

[2010] VSC 503

Supreme Court of Victoria

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Interrogate

Catchwords

1. Civil Forfeiture
2. › Property used in connection with Schedule 2 offence
3. › Civil forfeiture order under s 38(1)
4. › Hardship discretion under s 38(2)
5. › Whether property should be excluded from forfeiture on hardship grounds
6. › Payment from sale proceeds under s 45(1)
7. › Confiscation Act 1997 (Vic), ss 18, 20, 24, 38, 45
1. Equity
2. › Constructive Trust
3. › Common intention constructive trust
4. › Whether common intention as to ownership established
5. › Whether common intention must exist at time of acquisition
6. › Whether post-acquisition common intention sufficient
1. Equity
2. › Constructive Trust
3. › Constructive trust on Muschinski v Dodds principles
4. › Joint relationship or endeavour
5. › Whether trust arises where joint relationship continuing
6. › Whether contributions as homemaker and parent sufficient
1. Human Rights
2. › Charter of Human Rights and Responsibilities Act 2006 (Vic)
3. › Right not to have family or home arbitrarily interfered with
4. › Relationship between Confiscation Act and Charter
5. › Whether Charter requires exclusion of property unless forfeiture justified under s 7(2)
6. › Whether Charter rights relevant to exercise of hardship discretion
7. › Charter of Human Rights and Responsibilities Act 2006 (Vic), ss 7(2), 13(a), 17, 32

Quick Take

Section 38(2) of the Confiscation Act is a purely ameliorative provision that does not limit Charter rights, and the Charter does not require the Court to exclude property from civil forfeiture unless forfeiture is justified under s 7(2). However, Charter rights must be taken into account as relevant circumstances in exercising the hardship discretion. In civil forfeiture cases (where there is no conviction), the starting point for the proportionality assessment is the degree of the property owner's involvement in the relevant offence, not the sentence imposed. A constructive trust on Muschinski v Dodds principles cannot arise where the joint relationship is continuing and has not failed.