ACT Director of Public Prosecutions v Timothy McLeod, Donald Tawanda Savanhu, Stephen Phillip Evans and Joshua Dean Leighton
[2014] ACTSC 375
•4 November 2014
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | ACT Director of Public Prosecutions v Timothy McLeod, Donald Tawanda Savanhu, Stephen Phillip Evans and Joshua Dean Leighton |
Citation: | [2014] ACTSC 375 |
Hearing Date(s): | 4 November 2014 |
DecisionDate: | 4 November 2014 |
Before: | Refshauge J |
Decision: | 1. Under r 6906 of the Court Procedures Rules 2006 (ACT), the restraining order made on 4 September 2014 be amended by adding the following two paragraphs under the words, “And the Court states that”, namely: 3. A person must not deal with the property mentioned in this order except in accordance with the order or another order made under the Act or the Act. 4. The applicable period under s 33(2)(d) of the Act is the period from 4 September 2014 to 16 October 2014. 2. Under s 49 of the Confiscation of Criminal Assets Act 2003 (ACT), and notwithstanding the expiry of the order under s 48 of that Act, the restraining order made on 4 September 2014 be immediately revived until the conclusion of any criminal prosecution for the offences referred to in the affidavit of Jennifer Hockings deposed on 25 August 2014 or any related offence or offences, including any appeals from those proceedings, or the penalty proceedings commenced by Originating Claim dated 22 October 2014 and filed on 23 October 2014, whichever is the latter. 3. A copy of this order be served on each other party in the proceedings. |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – Confiscation of criminal proceeds – Ex parte application – Restraining orders – Defect in original restraining order – Revival and extension of restraining order |
Legislation Cited: | Confiscation of Criminal Assets Act 2003 (ACT), ss 3, 13, 22, 31, 33, 48, 49 Legislation Act 2001 (ACT) Court Procedures Rules 2006 (ACT), r 6906 |
Parties: | ACT Director of Public Prosecutions (Plaintiff) Timothy McLeod (First Defendant) Donald Tawanda Savanhu (Second Defendant) Stephen Phillip Evans (Third Defendant) Joshua Dean Leighton (Fourth Defendant) |
Representation: | Counsel Mr A Williamson (Plaintiff) No appearance (First Defendant) No appearance (Second Defendant) No appearance (Third Defendant) No appearance (Fourth Defendant) |
| Solicitors ACT Director of Public Prosecutions (Plaintiff) No appearance (First Defendant) No appearance (Second Defendant) No appearance (Third Defendant) No appearance (Fourth Defendant) | |
File Number(s): | SC 387 of 2014 |
Refshauge J:
On 4 September 2014, I made a restraining order under s 31 of the Confiscation of Criminal Assets Act 2003 (ACT) (the Confiscation Act) over certain identified property of the four defendants in these proceedings.
I was satisfied, on the basis of affidavits deposed by Senior Constable Jennifer Hockings of the Australian Federal Police on 25 August 2014 and 4 September 2014, of the matters of which I was required to be satisfied. The application related to offences suspected to have been committed by the defendants, namely:
(a)Between 2008 and 2013, the first defendant, Timothy McLeod, obtained property by deception from numerous clients of the Public Trustee of the ACT, contrary to s 326 of the Criminal Code 2002 (ACT);
(b)Between 2012 and 2013, the second defendant, Donald Savanhu, obtained property by deception from numerous clients of the Public Trustee of the ACT, contrary to s 326 of the Criminal Code;
(c)Between 2010 and 2013, the third named defendant, Stephen Evans, obtained property by deception from numerous clients of the Public Trustee of the ACT, contrary to s 326 of the Criminal Code; and
(d)Between 2010 and 2013, the fourth defendant, Joshua Leighton, obtained property by deception from numerous clients of the Public Trustee of the ACT, contrary to s 326 of the Criminal Code.
An offence against s 326 of the Criminal Code attracts a maximum penalty of 1,000 penalty units, or imprisonment for ten years, or both. Given the term of imprisonment, it is, therefore, a serious offence within the meaning of s 13 of the Confiscation Act.
The affidavits identified various property which was sought to be restrained and the basis on which Senior Constable Hockings suspected it was property of the defendants. She also deposed that the property sought to be restrained may be required to satisfy one of the purposes under s 22 of the Confiscation Act, namely, for forfeiture under a conviction forfeiture order or for automatic forfeiture, a forfeiture under a civil forfeiture order or to satisfy a penalty order. She indicated an intention to apply for a penalty order in relation to the suspected offences.
Senior Constable Hockings also set out the details of the investigation that led to the suspicion that the defendants had committed the suggested offences. These grounds were comprehensively set out in the affidavit. Senior Constable Hockings also set out, in respect of the property, the items which she suspected were property of the respective defendants or, where they were property of someone else, that the relevant defendant had effective control over the property. She set out the grounds for those suspicions.
Her affidavit of 4 September 2014 indicated that police intended to charge and present indictments against the four defendants for the offences against s 326 of the Criminal Code within six weeks of 4 September 2014. She also deposed that she had been advised by the Director of Public Prosecutions that if, for whatever reason, indictments were not presented against the defendants within that time that the Director would commence proceedings for a civil forfeiture order, namely a penalty order.
I was satisfied of the beliefs and suspicions stated in Senior Constable Hockings affidavits and of the grounds on which she had comprehensively and carefully set them out in her affidavits and that it was intended to present an indictment against the defendants within the six week period. Accordingly, I made a restraining order.
Section 33 of the Confiscation Act sets out certain things that the order must state. Unfortunately, the order did not state some of those things. In particular, it did not state that the person must not deal with the property stated under the order except in accordance with certain provisions set out in s 33(1) of the Act. It also did not state the period under which the order was to be operative.
Section 33(4) of the Confiscation Act, however, provides that a failure to comply with those requirements does not invalidate the restraining order or any forfeiture order. It may, however, be desirable to amend the order in the circumstances of this application since the question of the expiry of the restraining order is very much an issue and that is one of the issues that can be determined from the material that was omitted.
Thus, s 48 of the Confiscation Act provides, in the table to that section, the circumstances in which restraining orders end; in particular, Item 1 provides that where an indictment is not presented against an offender or a forfeiture or penalty application not made before the end of the period expressed in the restraining order then the forfeiture order ends at that time.
The difficulty, however, is that the period is not specified in terms of the period set out in the affidavit but is specified that it ends at the “end of the period stated in the restraining order under s 33(2)(d) of the Confiscation Act”. Given that there is no period stated in the restraining order which I made on 4 September 2014, it is arguable that there may be a problem about the ending of the restraining order and its revival.
The restraining order does specify that I accepted the beliefs and suspicions stated by Senior Constable Hockings, although I am not entirely satisfied that that is sufficient to incorporate in the restraining order, by reference, the expression of intention that is stated in the affidavit. The Act is very specific about what must be “stated” in the order.
The restraining order has been sealed and no doubt served. Certainly it has been, as the file discloses, served on a number of parties. Accordingly, it cannot be recalled so as to be amended. Nevertheless, under r 6906 of the Court Procedures Rules 2006 (ACT), the Court may, on application by a party or on its own initiative, correct a mistake or order where there is a clerical mistake or a mistake or error resulting from an accidental slip or omission.
It is clear that the material omitted, insofar as the specified period for the restraining order is concerned, was accidental. This is because the statement that was made about the intention to present an indictment or alternatively, apply for a civil forfeiture order, was not included in the original affidavit of Senior Constable Hockings and, indeed, at the cost of the Director of Public Prosecutions, the proceedings were adjourned because of the omission of that statement from the affidavit material.
The defendants, who were represented, objected that the order could not be made because of that failure and subsequently an affidavit, namely the affidavit of 4 September 2014, was filed that rectified that omission, and the order was later made that day including as to costs. That is to say, the issue was well before the Court at that time and the parties knew about it and knew that the issue had been resolved.
In my view the failure to include the statement required by s 33 of the Confiscation Act was entirely accidental. Accordingly, in my view, the order should be amended under r 6906. On amendment, this means that the order expired on 16 October 2014, namely, six weeks after it was made on 4 September 2014. No indictment had then been presented and, indeed, no application for a civil forfeiture order had then be made.
Since then, however, an application has been made, by Originating Claim dated 22 October 2014 and filed on 23 October 2014, for a civil forfeiture order. As a result, I am now requested to extend the restraining order. I may do so under s 49 of the Confiscation Act, but only if satisfied of certain matters set out in the section. In particular, I must be satisfied that “it is otherwise desirable having regard for the purposes of this Act”. See s 49(4)(d) of the Confiscation Act.
The investigation is clearly of a significant size and, despite the commendable amount of investigation that the affidavit material shows, has already been completed and what might be concluded as the optimism of the police in expecting to be able to file an indictment as defined in the Legislation Act 2001 (ACT) within the period of six weeks, it is unsurprising that this was not achieved. There is, perhaps, an administrative oversight in that the Director of Public Prosecutions was either not told or did not ask whether the indictment had been filed before the expiry of the restraining order. The absence of the statement of the period in the order, which I have referred to above, may have contributed to that oversight.
There is no doubt that the reasons for making the order in the first place remain valid and justify the continuation of the order. Indeed, other than technical challenges, the defendants, who were represented at the initial hearing, did not contend otherwise.
The offences alleged involve a significant misappropriation of money, a subject of the Trust oversight of the Public Trustee in respect of the property of persons who are vulnerable and the misappropriations, in total, would have amounted to a significant enrichment of the defendants. Of course, all this remains allegations at this stage and I will make no findings on them. Nevertheless, the purposes of the Confiscation Act set out in s 3 of the Act would justify the continuation of the restraining order. I cannot, of course, continue it because it has lapsed, but I consider it is appropriate to revive it.
Accordingly, I will order:
1.Under r 6906 of the Court Procedures Rules 2006 (ACT), the restraining order made on 4 September 2014 be amended by adding the following two paragraphs under the words, “And the Court states that”, namely:
3. A person must not deal with the property mentioned in this order except in accordance with the order or another order made under the Act or the Act.
4. The applicable period under s 33(2)(d) of the Act is the period from 4 September 2014 to 16 October 2014.
2.Under s 49 of the Confiscation of Criminal Assets Act 2003 (ACT), and notwithstanding the expiry of the order under s 48 of that Act, the restraining order made on 4 September 2014 be immediately revived until the conclusion of any criminal prosecution for the offences referred to in the affidavit of Jennifer Hockings deposed on 25 August 2014 or any related offence or offences, including any appeals from those proceedings, or the penalty proceedings commenced by originating claim dated 22 October 2014 and filed on 23 October 2014, whichever is the latter.
3.I direct that a copy of this order be served on each other party in the proceedings.
| I certify that the preceding twenty-one [21] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 27 January 2015 |
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