DPP v McEachran & Jolly [2006] VSC 67 (1 March 2006)

Last Updated: 1 March 2006

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

No. 6117 of 2005

DIRECTOR OF PUBLIC PROSECUTIONS FOR VICTORIA	Plaintiff
v
CHERYL McEACHRAN	First defendant
and
VICTORIA LEGAL AID	Second defendant
and
COUNTY COURT OF VICTORIA	Third defendant

___________________

No. 7871 of 2005

DIRECTOR OF PUBLIC PROSECUTIONS FOR VICTORIA	Plaintiff
v
ANDREW MARK JOLLY	First defendant
and
VICTORIA LEGAL AID	Second defendant
and
COUNTY COURT OF VICTORIA	Third defendant

JUDGE:	BELL J
WHERE HELD:	Melbourne
DATE OF HEARING:	31 January, 2 February 2006
DATE OF JUDGMENT:	1 March 2006
CASE MAY BE CITED AS:	DPP v McEachran and Jolly
MEDIUM NEUTRAL CITATION:	[2006] VSC 67

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CRIMINAL LAW – order by judge of County Court of Victoria under Confiscation Act 1997 for compulsory legal aid – restrained property – property preserved for purposes of victims’ compensation – condition for charge over the property – whether power to specify condition – whether discretion to specify condition miscarried – "on any conditions specified by the court" – ss. 143(1)-(6), 1(h), 14-26, 30-31, Sentencing Act 1991, Part 4, Subdivs. (1) and (2) of Div. 2, Legal Aid Act 1978, ss. 4 and 27(1)(c).

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions in both matters	Mr Stephen O’Bryan SC with Ms Lisa De Ferrari	Mr S Carisbrooke, Acting Solicitor for Public Prosecutions
For the second defendant in both matters	Ms D S Mortimer SC with Mr C G Scott	Victoria Legal Aid

HIS HONOUR:

INTRODUCTION

1 In two cases a judge of the County Court of Victoria made orders under the Confiscation Act 1997 that legal assistance be provided by Victoria Legal Aid to persons charged with crimes. The judge specified a condition that the cost of providing the assistance be secured by a charge over the property of the charged persons.

2 The property of the charged persons was already subject to restraining orders also made under the Confiscation Act. Such orders may be made, for example, because property might be needed to satisfy a compensation order made later in favour of a victim of the crime.

3 The first case concerned Cheryl McEachran. She was charged with various offences involving the kidnapping of a child. After she was charged, an order was made that she be restrained from dealing with some of her property. On her application, VLA was ordered to provide her with legal assistance, but on condition that the cost of doing so be secured by a charge over part of her restrained property.

4 The second case concerned Andrew Jolly. He was charged with child-stealing. Mr Jolly too was restrained from dealing with some of his property. He too successfully applied for an order for compulsory legal aid. The condition was that VLA’s cost of providing the legal assistance be secured by a charge over his restrained bank account.

5 In both cases, counsel for the Director of Public Prosecutions contend that the judge had no power under the Confiscation Act to specify conditions of this kind when making orders for compulsory legal aid. Alternatively, if the judge had this power did, it was discretionary, and the judge committed a legal error in exercising the discretion to specify the conditions. In any contest between the interests of victims and the interests of VLA, victims’ interests should prevail, yet the judge afforded priority to the interests of VLA. On these grounds the DPP seeks judicial review of the judge’s decisions.

6 Counsel for VLA contend that the judge had a discretionary power under the Confiscation Act to make an order for compulsory legal aid on the disputed conditions and made no legal error in exercising the discretion in the manner that he did. The judge properly balanced the competing interests in the circumstance before him and it is not for me to interfere. Therefore VLA submits the application for judicial review should be dismissed.

7 It is necessary to determine whether the judge had a discretionary power to specify the disputed conditions and, if so, whether, having regard to the nature and scope of the discretion, his Honour improperly exercised this power. Counsel for the DPP and VLA made their submissions upon the basis that these were test cases on those two issues.

DID THE JUDGE HAVE A DISCRETIONARY POWER TO IMPOSE THE DISPUTED CONDITIONS?

8 Section 143(1) the Confiscation Act allows a court to order legal aid to be provided where it is satisfied of two things. The first is that a restraining order has been made over property of a person (par (a)). The second is that the person needs legal assistance for legal proceedings and is unable to afford the full cost of obtaining it from a private practitioner from unrestrained property or income. Where the court is so satisfied, it can order VLA to provide the legal aid, and do so "on any conditions specified by the court".

9 The words "on any conditions specified by the court" are very wide. In their natural and ordinary meaning they would be sufficient to empower the court to specify a condition that the cost of the assistance provided be charged over the property of the person. Counsel for the DPP contend that the words should be read restrictively because the scheme of the Confiscation Act indicates that restrained property has to be maintained for particular purposes, for example, to satisfy an order for victim’s compensation.

10 It may be accepted that the meaning of the words "on any conditions specified by the court" must be ascertained by considering the context in which they appear and the purposes of the Confiscation Act as a whole. This approach is adopted to ascertain the meaning of words in a statute in the first instance and not merely at some later stage when ambiguity may be thought to arise.^[1]

11 None-the-less, the submissions of counsel for the DPP must be rejected. The provisions of the Confiscation Act on which they rely, which I will now consider, do not require s. 143(1) to be interpreted in the restrictive manner for which they contend.

12 The Confiscation Act imposes significant constraints upon the capacity of a person to deal with restrained property. Under s. 14(1), a person cannot dispose of or otherwise deal with such property except in the manner and circumstances specified in the restraining order. The order can provide for the meeting of a person’s reasonable living and business expenses but not for the payment of their legal expenses (s. 14(4) and (5)).

13 Section 15(1) provides that restraining orders are made so that property may be available for particular purposes. In summary, these are to satisfy forfeiture orders, pecuniary penalties and, significantly in the present cases, restitution and compensation orders made in favour of victims of crime. These purposes are regarded as so important that the application for the order must state the intended purpose and the court must specify the purpose in the order: s. 15(2) and (3).

14 While the legislation was enacted to enable orders to be made to restrain dealings with property possibly needed for a stated purpose, neither by express language nor by necessary implication do its general provisions require s. 143(1) to be read to exclude a discretion to specify a condition for a charge over restrained property.

15 Section 14(5) represents a significant departure from the previous provisions. Under s. 16(9) of the Crimes (Confiscation of Profits) Act 1986 a restraining order could provide for meeting the "reasonable costs and expenses of the person defending any criminal charge". Under s. 14(5) of the Confiscation Act, this is prohibited. The reasons were made clear in the Second Reading Speech dated 13 November 1997 made by the Attorney-General when the new legislation was introduced. The new legislation was intended to prevent accused persons from dissipating their assets on legal expenses. If accused persons had insufficient unrestrained assets or income to pay for private legal representation, they could ask the court to make an order for compulsory legal aid under s. 143(1).

16 Section 14(5) does not require s. 143(1) to be read restrictively. Section 14(5) does not deal with the subject of the conditions that may be specified by the court in making an order for compulsory legal aid under s. 143(1). The two provisions sit comfortably together. They operate so that a court, in making a restraining order, cannot provide for the payment of legal expenses. But it can, in making an order for compulsory legal aid, specify a condition that the cost of providing the aid be secured against the person’s property, including their restrained property.

17 The Confiscation Act allows a person to apply to have property excluded from a restraining order. For example, s. 21 allows a court to exclude property from a restraining order made in a particular situation if it is satisfied that the property is neither tainted nor needed to satisfy any purpose for which the restraining order was made. Unless the person establishes (among other things) that the property is neither tainted nor so needed, it must remain protected and restrained. Sections 22 and 24 contain similar provisions for dealing with restraining orders made in other situations.

18 We can therefore see that the Confiscation Act treats the protection of property potentially needed for forfeiture or victim’s compensation as a very significant matter. This may be important when a court exercises the discretion to specify conditions on a grant of compulsory legal aid under s. 143(1), as I shall later explain. But it does not mean that the court has no power to specify a condition that the cost of the assistance be secured by a charge over the recipient’s restrained property.

19 Section 26(1) confers a power upon the court, expressed in very wide terms, to make such orders in relation to the restrained property as it considers just. Examples are given in s. 26(5) and, notably, these do not include an order for the payment of legal expenses. Counsel for both the DPP and VLA submit – here being strange bedfellows - that s. 26(1) does not permit the court to make an order for this kind of payment because this is the very matter prohibited by s. 14(5). This submission may or may not be correct. Whatever the width of the court’s powers under s. 26, the provisions of this section do not suggest that there in no discretion in s. 143(1) to specify the disputed conditions.

20 An important submission of the counsel for the DPP was that the policy of the Confiscation Act was that restrained property should be preserved for victim’s compensation and not dissipated by the cost of providing compulsory legal aid. It was submitted that this policy could be discerned from such provisions as ss. 30 and 31, as well as the other provisions I have already examined.

21 Section 30 requires the State to ensure that a victim’s right to enforce an order for restitution, compensation or damages takes priority over any other purpose for which a restraining order was made. So, for example, if the order was made to ensure that the property would be available both to satisfy an order for forfeiture and an order for restitution or compensation for a victim, the victim’s rights come first.

22 Under s. 31, even where a restraining order was made only for the purpose of forfeiture, the State must satisfy any order for restitution, compensation or damages from the value of the forfeited property.

23 These provisions amply demonstrate the scheme of the legislation affords particular priority to the payment of victim’s compensation. But, again, there is nothing expressly present or necessarily implicit in the language of ss. 30 and 31 to exclude the discretionary power of the court under s. 143(1) to specify the disputed conditions.

24 If the legislature had intended restrained property to be kept free of charges in favour of VLA, it could have included an express provision to this effect. Victim’s compensation could have been afforded absolute priority against such a charge, either specifically under s. 30 or by way of an express qualification upon the condition-specifying discretion under s. 143(1). This was not done.

25 It is necessary to note that neither did the legislature do the opposite. The legislature did not, in s. 143(1) or elsewhere in the Confiscation Act, provide that a charge should be granted in favour of VLA whenever compulsory legal aid was ordered, even when the person’s property was restrained.

26 It can be seen, therefore, that the Confiscation Act does not contain a scheme, or supply a context, into which s. 143(1) can fit only, or even best, if it is to be read in the restrictive manner for which counsel for the DPP contend.

27 There is a clear indication in s. 143 itself that the court can do what counsel for the DPP dispute. Section 143(3)(b) expressly contemplates that a condition of the provision of legal assistance ordered by a court under s. 143(1) might be that the cost of providing the assistance "be secured by a charge over any land or any other property in which the person has an interest..."

28 The words "any land or any other property in which the person has an interest" are very wide. They are sufficient to include, and importantly are not qualified to exclude, restrained property of the person. In the circumstances specified in s. 143(3), VLA is authorised to take out a charge over land, including land that is restrained property.

29 Counsel for the DPP correctly submitted that unless the words "any land or any other property in which the person has an interest" in s. 143(3)(b) were read as excluding restrained property, their submission as to the interpretation of the words "on any conditions specified by the court" in s. 143(1) would be very difficult to accept. There are no compelling reasons to read down the words of s. 143(3)(b), just as there are no compelling reasons to read down the words of s. 143(1). Interpreted as I think they should be, the words of s. 143(1) and 143(3)(b) support each other and fit comfortably into the Confiscation Act as a whole.

30 Section 143(6) contains a mechanism for adjusting the amount of unpaid legal aid against restrained property forfeited to the State. Section 143(6) neither states nor implies that legal aid cannot be ordered under s. 143(1) pursuant to a condition that includes a charge on restrained property.

31 For these reasons, I must reject the submissions of counsel for the DPP that the judge possessed no discretionary power to make an order for compulsory legal aid on the disputed conditions. The judge did not err in law on the face of the record in deciding he had this jurisdiction.

DID THE JUDGE IMPROPERLY EXERCISE THE DISCRETIONARY POWER TO IMPOSE THE DISPUTED CONDITIONS?

32 The fall-back submission of counsel for the DPP was that the judge committed an error of jurisdiction or law on the face of the record by misunderstanding his functions under s. 143(1). This misunderstanding led the judge to start with a predisposition in favour of ordering compulsory legal aid on condition of charge against the restrained property of the person. Therefore he did not properly balance the competing interests involved.

33 The nature of the power in s. 143(1), and the considerations relevant to its exercise, are to be derived from its subject matter, scope and purpose, ascertained in the context of the scheme of the Confiscation Act as a whole^[2].

34 The occasion for exercising the power in s. 143(1) arises because a person’s property is subject to a restraining order (s. 143(1)(a)). A restraining order is one element of the scheme by which the purposes of the Confiscation Act may be implemented. These purposes are specified in s. 1 and include the forfeiture of property being the proceeds of crime (par (a)) and, importantly in the present case, the preservation of assets for the restitution or compensation of victims of crime (par (h)).

35 The power to order compulsory legal aid is part of, and does not stand outside of, this statutory scheme. Section 143(1) occupies an important place in the scheme because it allows the court to order VLA to provide legal assistance to persons who cannot afford it because their property has been restrained. Otherwise they might be placed in the intolerable situation of not being able to exercise their legal rights because they cannot deal with their own property. This consideration is so important to the policy of the Confiscation Act that legal aid, once ordered, must be provided by VLA "[d]espite anything in the Legal Aid Act 1978" (s. 143(2)). This is so whether or not any conditions have been specified.

36 We have seen from s. 143(3) that the discretion is s. 143(1) to specify conditions includes a condition that the costs of the assistance "be secured by a charge over land or any other property in which the person has an interest..."

37 If the person’s property is unrestrained, the exercise of the discretion to impose such a condition will be influenced by a number of considerations. It may be legitimate to take have regard to the objectives of VLA under the Legal Aid Act. These emphasise the need for legal aid to be provided "in the most effective, economic and efficient manner" (s. 4(a)) and "at a reasonable cost to the community and on an equitable basis..."(s. 4(b)). It may also be legitimate to consider that, if VLA were providing the assistance in the normal way under Legal Aid Act, it could exercise the power in s. 27(1)(c) to impose a condition that the cost of doing so be secured by a charge over the recipient’s property. Therefore the court could take into account the desirability of charging property in favour of VLA so that it might recover the cost of the assistance provided.

38 By contrast, if the person’s property is restrained, as it will be in very many cases, the exercise of the discretion will be significantly influenced by the preservatory purposes for which, under the scheme of the Confiscation Act, the property has been restrained.

39 The policy of the Confiscation Act, most plainly expressed in s. 14(5), is that the value of restrained property required, say, to satisfy an order for compensation for victims of crime, should not be diminished through dissipation on legal expenses. As I have already noted, to balance the potentially draconian consequences, the court is given power to order VLA to provide legal assistance in the circumstances specified in s. 143(1). However, it would be anomalous if the condition-specifying power in s. 143(1) could be exercised in a manner that might result in the diminution of the value of that same property.

40 Whether, in given circumstances, the court should, under s. 143(1) of the Confiscation Act, impose a condition for a charge over restrained property will involve a number of considerations. Without being exhaustive, and depending upon the circumstances, these could include the purposes for which the property was restrained, the value of the property, the extent to which the property might be needed for claims for victim’s restitution or compensation, the likely cost of the legal assistance ordered and the desirability that, where appropriate, the cost of compulsory legal assistance be secured against the property, including, potentially, the restrained property, of the recipient.

41 If the stated purpose of the restraining order is forfeiture, there may be few competing interests. It may be that the stated purpose is compensation for victims of crime. If so, there may need to be some evaluation of the potential claims, if any. If the court finds the potential claims to be negligible or manifestly unsound, it might take this into account in deciding whether or not to make an order for compulsory legal aid with a condition for a charge. If the potential claims are not found to be negligible or manifestly unsound, the claims could be frustrated by making an order with such a condition. Instead of being available to satisfy the claims, which is the purpose stated in s. 1(h) of the Confiscation Act, the value of the restrained property could be diminished or exhausted by enforcement of the charge, which is inconsistent with that stated object. This must be a significant consideration to be taken into account when exercising the condition-specifying power in such circumstances.

42 I have referred to s. 21 (and other sections) which allows property to be excluded from the operation of a restraining order if it "will not be required to satisfy any purpose for which the restraining order was made". The predicate of this provision is the need to preserve the property for the stated purpose, which is an important object of the Confiscation Act (s. 1(h)).

43 Of course the fact that a victim may wish to make a claim for an order for restitution or compensation does not mean that the order will necessarily be made.

44 The circumstances in which a person may make a claim for an order for restitution are set out in s. 84 of the Sentencing Act 1991. The power to make such an order arises where goods have been stolen and a person is found guilty or convicted of an offence connected with the theft. This was not relevant in the instant cases.

45 The circumstances in which a person may claim for an order for compensation for pain or suffering are set out in s. 85B(1) and (2) of the Sentencing Act. Before the court can make such an order, a number of matters must be established. The court must have found a person guilty of or convict a person for an offence. An application for compensation must be made. The applicant must be found to be a person who has suffered an injury as a direct result of the offence. Having regard to the matters listed in s. 85B(2), the court must determine what if any amount of compensation it is proper to order the offender to pay. These include the pain and suffering experienced by the victim (par (a)) and the reasonable counselling, medical and other expenses incurred as a direct result (pars (b), (c) and (d)). The method of payment (s. 85B(4)) and the financial circumstances of the offender (s. 85H(1)) must also be considered.

46 The circumstances in which a compensation order can be made for property loss are set out in s. 86(1) and (2) of the Sentencing Act. Again, before the court can make such an order, a number of matters must be established. The court must find a person guilty of or convict a person for an offence. An application for compensation must be made. The applicant must establish that he or she has suffered loss or destruction, or damage to, property as a result of the offence. The value of the property lost, destroyed or damaged must be ascertained. The court must make a decision as to how much compensation should be paid, not exceeding that value. In determining the amount of the compensation, the court must address both the amount and the method of payment. It must take into account, as far as is practicable, the financial circumstances of the offender and the nature of the burden that payment of compensation will impose.

47 By reason of these matters, it is correct to describe the nature of the interest of victims who claim compensation as contingent. However, I take the legislature to have known, when it enacted the Confiscation Act, that the actual entitlement of a victim to an order for compensation would depend upon the satisfaction by the court of the matters specified in Subdivisions (1) and (2) of Division 2 of Part 4 of the Sentencing Act (which contain the provisions to which I have referred) and also the proper exercise of the power to make such an order. In other words, the legislature knew that, until such an order was made, the interest of a victim was contingent. With this knowledge, the legislature enacted the legislation in terms that treat the preservation of property that might be needed to realize this interest as an important object (s. 1(h)). Therefore, labelling the interests of victims as contingent does not alter their nature or reduce their value for the purposes of the condition-specifying discretion in s. 143(1).

48 It is now necessary to examine the reasons for decision of the judge in the two cases to determine whether they reveal any error of jurisdiction or law on the face of the record in the exercise of the discretionary power to specify the disputed conditions.

49 The first case concerning Ms McEachran is complicated by the fact that the restraining order, which was made by a different judge on 10 September 2004, specified the relevant purpose to be:

"(b) To satisfy any compensation order that may be made under Part 8 of the Confiscation Act 1997."

50 This was probably a mistake because both the application for the restraining order and the affidavit in support stated the purpose to be:

"(b) to satisfy any compensation order that may be made by the Court under the Sentencing Act 1991."

51 The judge declined to exercise his undoubted power to correct this probable mistake, essentially because, in his view, the matter had gone too far. I can discern no error of jurisdiction or law in his Honour’s decision. It was for his Honour to determine how to exercise the discretion to correct the probable mistake. Under the Confiscation Act, the DPP had other options available which his Honour no doubt took into account.

52 The judge therefore treated the matter as one in which the stated purpose of the order was to satisfy any order for compensation that might be made under Part 8 of the Confiscation Act. Part 8 makes provision for pecuniary penalty orders, not compensation orders. In these circumstances, his Honour held that the exercise of the power to order legal aid to be provided on the disputed condition arose in a context where there were no competing interests. He considered there were several compelling considerations in favour of ordering the provision of legal aid on the disputed condition. I can discern no error of jurisdiction or law in his Honour’s decision.

53 The order of his Honour contained a paragraph allowing VLA to take out a charge over the person’s specified property. This was strictly unnecessary because, having made an order under s. 143(1) on condition that the cost of the legal aid provided be secured by a charge of the specified kind, s. 143(2) operated automatically to allow VLA to take out that charge. This did not affect the validity of the order for the provision of legal assistance or the condition.

54 In the second case concerning Mr Jolly, the reasons for decision of the judge show he carefully examined the nature of the factual allegations made against Mr Jolly. These were that Mr Jolly had arranged for a 14 year old boy to leave his family in Melbourne and fly to Perth. But Mr Jolly flew the boy back to Melbourne only two days later and it was not alleged the boy had been assaulted in any way. The affidavit in support of the application for the restraining order revealed that, if Mr Jolly were to be convicted, it was the boy’s father who intended to apply for compensation. The balance in the account restrained was only $12,225.79.

55 In making the order for compulsory legal aid with the condition that the cost of the assistance be secured against the balance in the account, the judge referred to the "very low value" of the property restrained and to the fact that there was "no material or evidence... of any physical injury or assault being perpetrated upon such potential victim..." His Honour observed that it was difficult for him "to contemplate what the potential compensation rights might relate to, as the Court simply has no material in this regard." He concluded there was "no basis whatsoever to allow the charge not to be registered in order to protect the public funds administered by the Legal Aid Authority."

56 This consideration of the circumstances of the case of Mr Jolly reveals no legal error in the exercise of the discretionary power to specify the condition. His Honour evaluated the nature of the interests of the potential victims and found that none had been substantiated. There was simply a complete absence of evidence about potential compensation claims. In these circumstances, it was open to his Honour to conclude that there was no reason not to make the order on the condition for a charge.

57 However, with respect, I must point out that some of the observations in the judge’s reasons for decision appear not to be consistent with the proper exercise of the discretion.

58 In his Honour’s reasons for decision in the case of Mr Jolly, he adopted his reasons for decision in the case of Ms McEachran. In those latter reasons, he stated that a "fundamental right of a citizen of Victoria is to defend oneself against criminal allegations made by the DDP." This is of course true. But VLA will have to provide the legal aid necessary for such a defence whether it is ordered to do so with or without a condition for a charge (see s. 143 (2) of the Confiscation Act). He stated that a "restraining order... provides contingent rights only to prospective claimants..." Again this is true, but the scheme of the legislation attaches considerable importance to the protection of such rights (see above). His Honour stated that legal aid funds were "limited and... come from a limited public purse. In the general order of things such funds should be secured upon the assets of an accused aid recipient if possible" (emphasis added). This may be the position under the administration of the Legal Aid Act by VLA in a normal case. It may not be the position in a case involving restrained property for, in such a case, it is necessary to take into account the preservatory purposes for which the property has been restrained.

59 In the reasons for decision in both the case of Ms McEachran and the case of Mr Jolly, the judge referred to the competing rights of an accused to an order for compulsory legal assistance on the one hand and a victim to an order for compensation on the other. In the case of Ms McEachran, one reason his Honour gave for not correcting the mistake in the restraining order was that this "would deny the applicant the right to have his Legal Aid granted, would put him is a position where there were created competing rights but at the moment there’s no competing right." In the case of Mr Jolly, his Honour stated that there was a "competing interest... between the applicant’s right to representation in an imminent criminal trial, in this case a committal and trial, against the contingent rights of potential victims’ claims for compensation." However, for the following reasons, in cases such as the present, the competing interests that potentially arise in the exercise of the condition-specifying discretion in s. 143(1), at least usually, are those of VLA on the one hand and the potential claimants for victims’ compensation on the other, not those of the potential claimants and the intended recipients of the legal assistance.

60 As I have already observed, if VLA is ordered to provide compulsory legal assistance, it has to do so, whether or not the cost is secured by a charge over the property of the recipient. The Confiscation Act does not make the power of the court to make an order for compulsory legal assistance, and the obligation of VLA to comply with such an order, dependant on the specification of a condition for a charge. It is extremely difficult to see how the court could properly refuse to make an order for compulsory legal assistance upon the basis that it could not specify a condition for a charge because such a condition would jeopardize the interests of victims. If the court did not find the potential claims of victims to be negligible or manifestly unsound, then, knowing that VLA would have to provide the legal assistance ordered, why wouldn’t it simply make the order without specifying a condition for a charge? This would ensure that legal assistance would be provided to the person but not at the potential expense of victims. VLA would not be able to recover the cost of the assistance provided from the restrained property, but this would only be because the court had given effect to the objects of the Confiscation Act, which require restrained property is to be preserved to satisfy potential claims for compensation for victims of crime (see especially s. 1(h)).

61 If I had been of the view that these considerations had formed the basis of the judge’s decision, I would have determined that his exercise of the discretion had miscarried by reason of an error of jurisdiction or law on the face of the record. Having carefully examined his Honour’s reasons for decision in the case of Mr Jolly, I think it would be unfair to read them in this way. The basis upon which his Honour made the order for compulsory legal assistance with the condition for a charge was that, in that case, the claims of potential victims were completely unsubstantiated. Therefore, there was no reason not to include the condition. As I have already said, this conclusion was open to his Honour and reveals no legal error.

CONCLUSION

62 The Confiscation Act allows restraining orders to be made so that persons charged with crime cannot deal with their property. The object of such orders is the preservation of the property for purposes that include the satisfaction of orders for compensation for victims of crime.

63 When restraining orders are made, one consequence may be that accused persons cannot use the restrained property to pay for their legal representation. This is the deliberate policy of the legislature. The Confiscation Act prohibits a court from making an order that would allow a person to do so.

64 Under the Confiscation Act, if an accused person cannot afford to pay for private legal representation from their unrestrained property, they can ask a court to order VLA to provide them with legal assistance. The order can be made "on any conditions specified by the court..."(s143(1)).

65 In normal circumstances, legal aid is provided by VLA under the Legal Aid Act. When doing so, VLA might, if the assisted person has any property, take a charge over it so that the cost of providing the assistance might be recovered.

66 In the two cases before me, a judge of the County Court of Victoria, exercising the power in s. 143(1) of the Confiscation Act, ordered VLA to provide legal assistance to accused persons. His Honour did so upon condition that their property, which was restrained, be charged with the cost of the assistance provided, mirroring the likely position had the assistance been provided by VLA in the normal way.

67 The DPP contended that that the judge could not, or alternatively should not, have made the orders on the condition for the charge. According to the DPP, the charge could end up reducing the value of the property when its value should be preserved to meet any claim for compensation for the victims of the alleged crimes. The DPP sought judicial review of the orders of the judge.

68 I have held that s. 143(1) of the Confiscation Act gave the judge the power to order VLA to provide legal assistance to the accused persons on condition that their restrained property be charged with the cost of that assistance. This power, which is discretionary, was not improperly exercised in the circumstances of the cases before the judge. The application for judicial review will therefore be dismissed. This is because, in neither of the cases, was there any basis for thinking that a victim of the alleged crimes had a potential claim for compensation.

69 In other cases there may be victims with potential claims for compensation that are neither negligible nor manifestly unsound. In such cases, a court, when deciding whether to specify a condition for a charge, will consider the object specified in s. 1(h) of the Confiscation Act, which, I note in conclusion, is in the following terms:

"to preserve assets for the purpose of restitution or compensation to victims of crime..."

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^[1] CIC Insurance Let v Bankstown Football Club Ltd [1997] HCA 2; (1997) 187 CLR 384 at 408 per Brennan CJ, Dawson, Toohey and Gummow JJ; Network Ten Pty Limited v TCN Channel Nine Pty Limited (2004) [2004] HCA 14; 218 CLR 273 at 280-281 per McHugh ACJ, Gummow and Hayne JJ; Winslow Constructors Pty Ltd v Mt Holden Estates Pty Ltd [2004] VSCA 159; (2004) 10 VR 435.

^[2] Water Conservation Commission v Browning (1947) [1947] HCA 21; 74 CLR 492 at 505 per Dixon J; R v Australian Broadcasting Tribunal; ex parte 2HD Pty Ltd [1979] HCA 62; (1979) 144 CLR 45 at 49 per Stephen, Mason, Murphy, Aickin and Murphy JJ.