IT IS a case that has been likened to the Australian film The Castle and cost Victorian taxpayers hundreds of thousands of dollars.
But after a four-year legal stoush between self-confessed ”pot head” Robert Moloney and the Office of Public Prosecutions (OPP), a man is homeless and the state government has a property it cannot sell.
The house at the centre of the dispute, a mudbrick home that Mr Moloney built on a bush block at Nirranda near Warrnambool, was seized by the OPP in 2008 after police found Mr Moloney had harvested more than 50 kilograms of cannabis from the banks of a nearby creek, fittingly named Whiskey Creek after the bootleg distillers who flourished in the area in the late 19th century.
Mr Moloney was charged with cultivating a commercial quantity of cannabis and trafficking. The trafficking charge was dropped almost immediately after no evidence of commerciality was found. Mr Moloney admitted he was a heavy user of marijuana and the 26 plants he had harvested were for his personal use.
But Mr Moloney’s attempts to retrieve his house from the authorities went horribly wrong.
A County Court judge initially ruled the house had been mistakenly seized, and awarded him $262,720 in damages, since the court did not have the power to unseize the property and return it to him. However, the OPP successfully appealed against that ruling in the Supreme Court, leaving Mr Moloney with no home and a $400,000 legal bill.
The house has now been taken off the market after it was discovered it had several outdated building permits. The mortgagee bank, ANZ, is understood to be working through the property’s legal issues in the hope it can eventually be sold, and proceeds paid to the Asset Confiscation Office.
Mr Moloney’s case has even caused rumbles in Spring Street. Before the OPP’s Supreme Court appeal, retired upper house MP John Vogels labelled the case a ”miscarriage of justice”. He said although Warrnambool County Court judge Jane Campton found ”no evidence of any commerciality whatsoever”, the Director of Public Prosecutions applied to the the County Court to seize Mr Moloney’s home.
”When I read about these court cases involving Robert Moloney, it reminded me of the movie The Castle,” Mr Vogels said in Parliament.
He referred to a speech made by then attorney-general Jan Wade in 1997 that said the civil forfeiture laws were ”clearly targeted to large-scale drug traffickers” and ”intended to apply only to those people who are involved in the drug trade for profit”.
”Everybody knows [Mr Moloney’s] house was never obtained by selling drugs. It has been found in the County Court twice … that the government should never have seized Mr Moloney’s property,” he said, before warning of the cost to taxpayers if the OPP launched a Supreme Court appeal. ”Someone is going to have to pick it up. It will probably have to be the taxpayer, because Mr Moloney won’t be able to pay it.”
Even Attorney-General Robert Clark, who was then in opposition, called for a change in the confiscation laws. ”It seems appropriate to me that the Attorney-General should not only address Mr Moloney’s specific case but also the question of whether there needs to be an amendment … that will allow for errors such as that to be reversed to avoid the sort of problems that Mr Moloney appears to have experienced,” Mr Clark said in Parliament in 2010.
But after winning office, Mr Clark said he had reassessed his position after he ”carefully examined the facts of the case”.
”It is a matter for Mr Moloney’s family and friends whether they wish to seek to buy the property when it is sold by the mortgagee bank,” he said. ”The Court of Appeal’s judgment also shows that the confiscation consequences of the conviction were known at the time Mr Moloney received a wholly suspended sentence for the offence.”
A conversation Mr Moloney had with Mr Vogels in 2010 indicated he still had a sense of humour despite his legal nightmare.
Mr Vogels said: ”The last time I spoke to Robert Moloney he said, ‘On my title it says that this house is now owned by the Attorney-General’, and Robert being Robert said, ‘When you see him next in Parliament, will you tell him to come and cut his lawn, it needs cutting’.”
By Jared Lynch and Andrew Thomson