Cini v The Commissioner of the Australian Federal Police

(2016) 312 FLR 432; [2016] VSCA 227

Victorian Court of Appeal

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Interrogate

Catchwords

1. Proceeds of Crime
2. › Forfeiture orders
3. › Exclusion from forfeiture
4. › Whether property an instrument of unlawful activity
5. › Whether interest in property used in or in connection with commission of offence
6. › Whether substantial connection required
7. › Proceeds of Crime Act 2002 (Cth), ss 92, 94, 329(2)
1. Proceeds of Crime
2. › Statutory construction
3. › Meaning of 'used in, or in connection with, the commission of an offence'
4. › Whether word 'substantially' should be read into statutory definition
5. › Principle of legality
6. › Proceeds of Crime Act 2002 (Cth), s 329(2)
1. Real Property
2. › Concept of property as bundle of rights
3. › Interest in property
4. › Whether interest in property as distinct from physical property was used in connection with offence
5. › Proceeds of Crime Act 2002 (Cth), s 338

Quick Take

The phrase 'used in, or in connection with, the commission of an offence' in s 329(2) of the Proceeds of Crime Act 2002 (Cth) does not require a 'substantial connection' between the property and the offence. Whether there is a sufficient connection is a question of fact and degree. Where an owner uses rights inherent in property ownership — such as possession and control of access — to store or safeguard drugs, the owner's 'interest' in the property is an instrument of unlawful activity, even where the property was primarily used as a residence for many years and only a small portion was used for the offending for a short period.