Commonwealth Director of Public Prosecutions v Barker

[2009] QDC 193

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No 1085 of 2009

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

Applicant

and

WILLIAM FREDERICK BARKER

and

BARKER CONSTRUCTIONS QLD PTY LTD
(ACN 134 394 317)

Respondent

BRISBANE

..DATE 25/06/2009

ORDER

CATCHWORDS: (Cth) Proceeds of Crime Act 2002 s180 - order made ex parte for examination of a person claiming ownership of a motor vehicle apparently within a restraining order made under s18 and of family members alleged to have provided her with funds to pay for it.

HIS HONOUR: On the application of the Commonwealth Director of Public Prosecutions the Court has made orders whose terms appear in initialled drafts for the examination of four individuals pursuant to section 180 of the Commonwealth Proceeds of Crime Act 2002 which provides:

"(1) If a restraining order is in force, the Court that made the restraining order, or any other Court that could have made the restraining order, may make an order (an examination order) for the examination of any person, including:
(a) a person whose property is, or a person who has or claims an interest in property that is, the subject of the restraining order, or
(b) a person whom the restraining order states to be a suspect for the offence to which the restraining order relates, or
(c) the spouse or de facto partner of a person referred to in paragraph (a) or (b);

about the affairs (including the nature and location of any property) of a person referred to in paragraph (a), (b) or (c).
(2) The examination order ceases to have effect if the restraining order to which it relates ceases to have effect. "

The application is brought ex parte. I am satisfied that that is in order. Should the four individuals affected wish to challenge the orders for the purpose of avoiding examination, they are entitled to apply, as happened in Commonwealth Director of Public Prosecutions v Ngo [2005] QDC 299.

The restraining order, which is the foundation of the Court's jurisdiction for present purposes, was made by Judge McGill SC under section 18 of the Act on the 14th May 2009. The basis of that was a belief which his Honour was persuaded was sufficiently well founded that the first respondent had become entitled to money pursuant to illegal drug dealings and that the proceeds of his activity could be traced, in part at least, to the company Barker Constructions Qld Pty Ltd.

When officers attempted to take possession of assets affected by Judge McGill's order in respect of a particular motor vehicle, a claim to ownership was made by Ms Kennedy. The vehicle is not registered in her name. She happens to be the partner of the respondent, Mr Barker's son who is one of those the subject of an examination order, the other two being Ms Kennedy's father and brother. The assertion confronting the investigation is that together they provided funding to permit Ms Kennedy to give proper consideration for her acquisition of the vehicle. These circumstances fall fairly and squarely within the section, making it appropriate to have made the orders.

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CaseChat Overview and Summary

The case of Commonwealth Director of Public Prosecutions v Barker concerns an application made by the Commonwealth Director of Public Prosecutions (DPP) seeking examination orders under section 180 of the Commonwealth Proceeds of Crime Act 2002. The application was brought against William Frederick Barker, Barker Constructions QLD Pty Ltd, and three other individuals: Ms Kennedy, Ms Kennedy’s father, and Ms Kennedy’s brother. The primary dispute revolves around the ownership of a motor vehicle and the alleged provision of funds by Ms Kennedy’s family members to facilitate her purchase of the vehicle. The application was heard and determined by Judge Robin QC in the District Court of Queensland.

The legal issues before the Court were whether the application for examination orders was appropriately brought under section 180 of the Proceeds of Crime Act 2002 and whether the Court had jurisdiction to make such orders. Additionally, the Court needed to determine if the ex parte nature of the application was justified and if the orders were necessary to trace the proceeds of alleged illegal drug dealings. The Court considered the validity of the restraining order made by Judge McGill SC, which was the foundation of the current application.

Judge Robin QC held that the orders were appropriately made under section 180 of the Act, as the circumstances presented warranted an investigation into the ownership and funding of the motor vehicle. The Court found that the ex parte application was justified, as the restraining order was in force and the investigation aimed to trace proceeds from illegal activities. The Court noted that the respondents could challenge the orders if they wished to avoid examination. Ultimately, the Court granted the application, thereby authorising the examination of the four individuals to ascertain details about the ownership and funding of the motor vehicle in question.

The Court's final orders permitted the examination of the four individuals under the terms outlined in the initialled drafts provided by the DPP. The orders were made in accordance with the provisions of section 180 of the Proceeds of Crime Act 2002 and were intended to aid in tracing the proceeds of illegal activities.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established