Director of Public Prosecutions (ACT) v Le, Hiep Huu & Ors [1998] FCA 764

Director of Public Prosecutions (ACT) v Le, Hiep Huu & Ors [1998] FCA 764

Section 46(1) of the Proceeds of Crime Act 1991 (ACT) mandates the making of a restraining order when its conditions are fulfilled for a serious offence, leaving no residual judicial discretion. Section 28 requires a restraining order to be in place at the expiration of six months after conviction for automatic forfeiture to occur; consequently, orders made after that period cannot achieve statutory forfeiture under s.28.

Parties
Appellant: Director of Public Prosecutions (ACT); First Respondent: Hiep Huu Le; Second Respondent: Mai Thi Nguyen; Third Respondent: Tien Dat Bui; Cross Appellant: Nhan Huu Le; Cross Appellant: Phuc Huu Le
Jurisdiction
Australia
Judgment Date
25 May 1998
Procedural Posture
Appeal / Judgment
Outcome
Appeal allowed; cross-appeals dismissed
Legal Topics
Restraining Orders, Forfeiture, Statutory Construction, Interlocutory Proceedings
Criminal Law Proceeds of Crime Restraining Orders Forfeiture Statutory Construction Interlocutory Proceedings

Case Brief

Summary, issues, holding and outcome

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Parties

Director of Public Prosecutions (ACT)

Appellant

Hiep Huu Le

First Respondent

Mai Thi Nguyen

Second Respondent

Tien Dat Bui

Third Respondent

Nhan Huu Le

Cross Appellant

Phuc Huu Le

Cross Appellant

Procedural Posture

Appeal / Judgment

Legal Issues

  1. 1 Whether the Supreme Court retains discretion to refuse a restraining order under s.45 and s.46 of the Proceeds of Crime Act 1991 (ACT)
  2. 2 Whether automatic forfeiture under s.28 occurs only if a restraining order is in force six months after conviction
  3. 3 Whether making a restraining order after expiry of the six months period serves a statutory purpose

Ratio Decidendi

Section 46(1) of the Proceeds of Crime Act 1991 (ACT) mandates the making of a restraining order when its conditions are fulfilled for a serious offence, leaving no residual judicial discretion. Section 28 requires a restraining order to be in place at the expiration of six months after conviction for automatic forfeiture to occur; consequently, orders made after that period cannot achieve statutory forfeiture under s.28.

Court Disposition

Appeal allowed; cross-appeals dismissed

Orders

  • The appeal against the decision of the Supreme Court in the application for a restraining order in relation to 10 Solus Place, Palmerston be allowed.
  • The order of the Supreme Court be set aside.