Commissioner of the Australian Federal Police v Kinch

[2013] NSWSC 622

Supreme Court

New South Wales

Medium Neutral Citation:

Commissioner of the Australian Federal Police v Kinch [2013] NSWSC 622

Hearing dates:

21 May 2013

Decision date:

21 May 2013

Jurisdiction:

Common Law

Before:

Davies J

Decision:

(1) Extend the time for compliance with the order made by Adams J on 16 April 2013 to 18 June 2013.

(2) The Statement is to be provided to a member of the Australian Federal Police Shaun Mark.

(3) The Defendant is to pay the Plaintiff's costs of the application

Catchwords:

PROCEDURE - varying orders - need for a change of circumstances - no point of principle

Legislation Cited:

Proceeds of Crime Act 2002 (Cth)

Cases Cited:

Commissioner of Australian Federal Police v Dickson [2012] NSWSC 1167

Category:

Interlocutory applications

Parties:

Commissioner of the Australian Federal Police (Plaintiff)
James Henry Kinch (Defendant)

Representation:

Counsel:
P McCarthy (Plaintiff)
M Elamrousy (Solicitor for Defendant)
Solicitors:
Proceeds of Crime Litigation, Australian Federal Police
Elamrousy Solicitors (Defendant)

File Number(s):

2008/284947

Judgment

1. This is an application by the Defendant to vary an order made by Adams J on 16 April 2013. The order was that within 42 days of service of the orders upon him the Defendant was to provide a statement sworn or affirmed setting out the matters specified in the first schedule to the Short Minutes of Order which were initialled by his Honour, dated 16 April and placed with the papers.

1. When this matter came before Adams J, the Commissioner, who had taken over the proceedings from the Commonwealth Director of Public Prosecutions, had sought an ancillary order under s 39.1(ca) of the Proceeds of Crime Act 2002 (Cth) for the provision of this statement, there having been made restraining orders as long ago as June 2008. The reason the ancillary order had not previously been sought was because the Defendant was being held in a gaol in Thailand until October 2012.

1. At the hearing before Adams J there was some argument about the shortness of notice that had been given to the Defendant and his solicitors about the ancillary orders being sought. In addition, it was put on behalf of the Defendant that it would be prejudicial to him to have to provide the statement in advance of the criminal proceedings being determined. His Honour determined that matter against the Defendant in reliance on s 39A of the Act and Bellew J's decision in the Commissioner of Australian Federal Police v Dickson [2012] NSWSC 1167.

1. Although there was some debate before Adams J about the length of time that it would be reasonable to require the giving of the statement the principal submission was that no time was appropriate before the conclusion of the criminal proceedings. A subsidiary argument was raised about the need for the solicitor to obtain instructions from the Defendant, particularly in the light of the work he needed to do in relation to the preparation for the committal proceedings.

1. Adams J dealt with that argument in his judgment at [8] suggesting that the Defendant was in the best position to know what his assets and liabilities were, and he said that it was not clear what instructions would need to be taken by the solicitors.

1. The Defendant now wishes to vary the order giving him 42 days for the statement so that it is not required until a period of 28 days after any conviction on the substantive criminal matters with which he is charged. The basis for the variation is contained in an affidavit of his solicitor Maggie Elamrousy sworn 13 May 2013.

1. In that affidavit Ms Elamrousy points out the extent of the preparation that the Defendant will need to make in conjunction with his lawyers in relation to the substantive charges against him, the size of the brief, the reading and the listening to material and the provision of proper instructions. This is because the committal hearing in respect of those offences is likely to commence within a matter of a few months following an interlocutory application that is to be heard tomorrow.

1. For me to vary Adams J's order there would need to be some material change in circumstances since the date of the making of the order. What has been put to me principally is that at the time Adams J made these orders it was thought that the committal proceedings were a considerable way off, but as matters have developed those proceedings are likely to be heard in the next few months.

1. The transcript before Adams J discloses, contrary to this, that the solicitor for the Defendant told his Honour that there might then be a couple more months until the committal proceedings were heard. She has told me something similar in the present case.

1. The fact that the brief is exceedingly large, and that there are limitations on what persons held on remand are able to access both in terms of time and facilities for the reading of these briefs, whilst unfortunate, does not really bear on the issue in the present case.

1. There does not seem any good reason why the Defendant is not able to prepare a statement of his assets and liabilities as best he is able to do whilst in prison. It can scarcely be suggested that every waking moment of his time there will be employed in reading the brief and giving instructions for the committal proceedings nor that he does not have any time to make the statement that he was ordered to make.

1. 42 days might be thought to be a generous period of time in the first instance.

1. Mr McCarthy for the Australian Federal Police has indicated that whilst the application is opposed insofar as it seeks that the statement not be provided until after the conclusion of the criminal proceedings, he does not oppose the Defendant being given a further period of 28 days from today in which to provide the statement. In all of the circumstances, that was a very appropriate concession to make on his client's behalf.

1. I will therefore extend the time in the order made by Adams J so that the statement is to be provided within a further 28 days from today. The statement is therefore to be provided by 18 June 2013 and is to be provided to a member of the Australian Federal Police, Shaun Mark.

1. The Plaintiff applies for costs of the Motion. In my opinion the Plaintiff should be entitled to have its costs of the Motion. There was no basis made out for any change of circumstances, certainly not to justify the order that was sought, namely, that the Defendant not be required to provide the statement until after the end of the criminal matters.

1. To some extent that was an argument that was put before Adams J and rejected by him. The fact that the Plaintiff agreed to a further 28-day period does not minimise the fact that there was no basis for the application having been brought in the first place. The Defendant is to pay the Plaintiff's costs of the Motion.

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Decision last updated: 29 May 2013