Director of Public Prosecutions for Western Australia v Papakostas
[2006] WASC 227
DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- PAPAKOSTAS [2006] WASC 227
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2006] WASC 227 | |
| Case No: | CIV:2399/2003 | 29 AUGUST & 4 SEPTEMBER 2006 | |
| Coram: | McKECHNIE J | 29/09/06 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Discovery refused Summons dismissed | ||
| B | |||
| PDF Version |
| Parties: | DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA CON PAPAKOSTAS |
Catchwords: | Criminal property confiscation Examination hearing Civil practice and procedure Whether discovery is available Whether order should be made |
Legislation: | Criminal Property Confiscation Act 2000 (WA) Rules of Supreme Court 1971 (WA) Supreme Court Act 1935 (WA) |
Case References: | Agriculture.com Pty Ltd (In liq) Application of Sherman [2001] NSWSC 628 B v State of Western Australia [2002] WASC 298 Re Robert Sterling Pty Ltd (In liq) (1979) 4 ACLR 377 Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
and
Director of Public Prosecutions for Western Australia against Con Papakostas
- Applicant
AND
CON PAPAKOSTAS
Respondent
Catchwords:
Criminal property confiscation - Examination hearing - Civil practice and procedure - Whether discovery is available - Whether order should be made
(Page 2)
Legislation:
Criminal Property Confiscation Act 2000 (WA)
Rules of Supreme Court 1971 (WA)
Supreme Court Act 1935 (WA)
Result:
Discovery refused
Summons dismissed
Category: B
Representation:
Counsel:
Applicant : Mr T A Staples
Respondent : Mr D P A Moen
Solicitors:
Applicant : State Director of Public Prosecutions
Respondent : Hammond Worthington
Case(s) referred to in judgment(s):
Agriculture.com Pty Ltd (In liq) Application of Sherman [2001] NSWSC 628
B v State of Western Australia [2002] WASC 298
Re Robert Sterling Pty Ltd (In liq) (1979) 4 ACLR 377
Case(s) also cited:
Nil
(Page 3)
- McKECHNIE J:
Introduction
1 This is an application in criminal property confiscation proceedings for an order that the DPP discover certain classes of documents to Mr Papakostas ("the respondent"). The delivery of this decision has been substantially delayed by the failure of the respondent's solicitors to file a summons for discovery contrary to an implied undertaking to do so.
2 It can be accepted that the proceedings are civil proceedings: Criminal Property Confiscation Act 2000 (WA)("CPCA"), s 102(1).
History of the proceedings
3 On 8 November 2003 the respondent was charged that on 7 November 2003 at Leederville he supplied to another a prohibited drug, namely methylamphetamine; and further on the same date and at the same place with intent to sell or supply to another he had in his possession a prohibited drug, namely methylamphetamine. The circumstances giving rise to the charges were that on 7 November 2003 the police observed a drug transaction in a car park. A female drove away. When her car was stopped there were two vacuum sealed plastic bags containing 659 grams of methylamphetamine.
4 The respondent's vehicle was subsequently stopped. Inside were three vacuum sealed plastic bags containing 1325.9 grams of methylamphetamine. Buried nearby to where the transaction had taken place was a plastic bag containing tape, plastic bags with heat seal markings and documents relating to the respondent's home address. When the respondent accompanied police to his house a search warrant was executed. Plastic bags, electronic scales, approximately $45,000 in cash and a machine used for the heat and vacuum sealing of plastic bags was found.
5 On 19 November 2003 Johnson J made an examination order, a production order and a freezing order. The examination order required the respondent to attend the Supreme Court on a date to be fixed for examination as to his circumstances. On 11 July 2006, on application by the DPP (filed 27 June 2006), the Court issued a notice to the respondent requiring him to attend for examination on 29 August 2006.
6 The DPP asserts that the respondent lodged a notice of objection to the freezing order on 18 November 2003. There is no record on the Supreme Court file CIV 2399 of 2003 that such a document was lodged.
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- However, on 5 December 2003, the parties lodged a memorandum of consent orders remitting an originating summons and notice of objection filed in the District Court in CPC 3 of 2003 to this Court. I will assume that these District Court proceedings cover the objection referred to by the DPP.
7 On 2 January 2004 a notice of objection and a chamber summons for objection to freezing was lodged by Michael Papakostas (the plaintiff's brother). The chamber summons was adjourned sine die on 30 January 2006.
8 On 17 March 2004 Roberts-Smith J varied the orders of Johnson J in a way not material to this application.
9 In the District Court at Perth, on 23 May 2005 the respondent pleaded guilty to an indictment containing the charges I have set out. On 8 August 2005 he was sentenced to a term of 8 years' imprisonment on each count concurrent from 8 August 2005 and declared to be a drug trafficker.
The application for discovery
10 On 28 August 2006 the respondent issued an application for discovery, a table of documents requested to be discovered, and a minute of proposed orders and submissions. These documents were faxed through to the Court on 28 August 2006 at 18.28 (6.28 pm).
11 They were also forwarded to the Court under cover of a letter from Mr D P A Moen, barrister, dated 29 August 2006; the day set for the examination. Despite repeated telephone calls from the Court to the respondent's solicitors the chamber summons was not filed until just before judgment was delivered.
12 At the commencement of the examination hearing at 2.15 pm, Mr Moen, on behalf of the respondent, pursued the application for discovery. After he had argued for an order for discovery and counsel for the DPP had responded, Mr Moen sought an abridgment of time within which to file the application. He was obliged to do this because the application for discovery had been prepared and served without regard to O 59 r 5. I ruled on the application for discovery:
"In my opinion, substantially for the reasons expressed by Barker J in B v R (2002) WASC 298, particularly at [46] and following, this application should not be granted at this stage in
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- the proceedings. I accept that discovery is available but I do not propose to order discovery at this point."
13 After taking brief instructions, counsel for the respondent then sought a stay of the proceedings and leave to appeal my decision. I refused to stay the examination:
"This application for discovery is brought at a very late stage in proceedings. They had previously been given notice. The actual application was not filed until very recently. Nevertheless I was able to consider the respondent's submissions. In my view the law is as set out and I follow the law as set out, particularly by Barker J, and I consider that fairly represents the law. There is a public interest in examinations proceeding and I have not ruled against discovery at any time but I do rule that discovery at this stage is not to take place and in my opinion no grounds are shown for a stay."
14 In response to a further submission from counsel, I amplified that rule by remarking that the "application is brought at the death-knock and in all the circumstances in my discretion I refuse the stay". The respondent was then examined in camera.
15 At the conclusion of the examination, further orders were sought by the DPP and granted, subject to a minute detailing the precise nature of the orders. Those orders, in broad terms, require that the respondent deliver up certain documents and file an affidavit concerning certain property within a specified time.
16 The application for discovery was adjourned sine die for the parties to agree a convenient time for the hearing. The matter was relisted for hearing on 4 September 2006. The respondent was content to rely on the submissions already made. As the DPP had filed submissions which I had been unable to absorb prior to the hearing, I reserved my decision.
17 The compression of time limits by the parties may not result in a quick resolution of matters in issue if the Judge has had no time to prepare for the hearing with the help of each party's outline of submissions. That is why they are required to be filed two clear days before hearing.
(Page 6)
Compliance with the Rules of the Supreme Court 1971 (WA) by the respondent
18 The Law Society of WA has published professional conduct rules. These rules are guidelines but nevertheless valuable. Rule 14.4(2) provides that counsel must at all times use best endeavours to avoid unnecessary expense and waste of the Court's time.
19 The Rules of the Supreme Court O 1 r 4A expressly state the goal of elimination of time beyond that reasonably required for the interlocutory activities essential to the fair and just determination of the issues bona fide in contention between the parties.
20 Notice of the examination was given in July 2006. Whether or not discovery had been requested from the DPP earlier, there is no excuse for waiting until the day before the time set down for an examination to prepare an application for discovery. There were no circumstances shown to justify waiving the time requirement. The issuing of the application for discovery so late falls well short of the proper conduct of litigation expected by this Court. Non-filing of the chambers summons until pressed to do so is unsatisfactory professional conduct.
No justiciable matter in issue between the parties
21 The respondent's objection to the freezing notice was resolved when (following his earlier plea of guilty on 23 May 2005) on 8 August 2005, he was declared to be a drug trafficker: Misuse of Drugs Act 1981 (WA),s 32A(1). All his property was automatically confiscated to the State: CPCA, s 8.
22 As a consequence, the respondent's notice of objection (and his brother's notice of objection) fell away because property was no longer frozen. It was confiscated. The objection proceedings have been resolved. There is no justiciable matter presently in issue between the DPP and the respondent.
The nature of an examination under the Criminal Property Confiscation Act 2000 (WA)
23 The CPCA Pt 5 is entitled "Investigation and search". Part 5 Div 2 is entitled "Examinations". Section 57 gives the DPP power to apply to the District Court for an order for the examination of a person. Under s 101 the Supreme Court has jurisdiction in any proceedings under this Act. Hence, Johnson J had jurisdiction to make an examination order. In summary, examinations are conducted in camera and a person is permitted
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- to be represented by a legal practitioner. The Court may order a person to submit for an examination about various matters and may require them to produce various documents and things and give information. There are penalties for failing to disclose information. Evidence taken in an examination is admissible, among other things, in any civil proceeding and in any proceeding under the Act that could lead to the confiscation of property owned, effectively controlled or given away by the person, but only for the purpose of facilitating the identification of such property: s 61(7).
24 The power to make orders for examination is undoubtedly the exercise of a judicial power. The conduct of examinations is less clear-cut. A Judge presiding over an examination does not resolve any issue between the DPP and the examinee. From the reference to CPCA s 61(7) just referred to, the examination is not itself a proceeding for confiscation, otherwise s 61(7)(c) would be otiose.
25 The power is inquisitorial but not an enquiry by a Judge. It is an investigative aid for the executive arm of government to discover information. Because there are penal sanctions for non-compliance, Parliament has decided that the examinations should take place in front of a judicial officer.
26 An examination is conducted for an investigative purpose and is not adversarial for the purpose of resolution of a dispute.
27 "Cause", "Matter" and "Party" are defined in the Supreme Court Act 1935 (WA) as:
"… includes any action, suit or other original proceeding between a plaintiff and defendant, and any criminal proceeding.
'Matter' includes every proceeding in the Court, not in a cause.
'Party' includes every person served with notice of or attending any proceeding, although not named on the record."
28 A person required to attend the Supreme Court pursuant to an order for examination made by a Judge under the CPCA is a party to a matter. The examination is not a cause. Under the Rules of the Supreme Court O 26, the Court may at any time on the application of any party to a cause or matter make an order for discovery. The jurisdiction of the Court to make an order under O 26 r 7 is enlivened.
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Should an order be made?
29 The fact that there is jurisdiction to make the order does not compel a conclusion that discovery must be ordered in every case. I return to the purpose of the examination order which I have described as investigative. There is no issue between the parties requiring resolution. The proceedings are ex parte. The purpose is to inform the DPP of information. The reasons for declining to order discovery advanced by Barker J in B v State of Western Australia [2002] WASC 298 are relevant: see [48] – [50].
30 In Re Robert Sterling Pty Ltd (In liq) (1979) 4 ACLR 377 Needham J said at 388:
"Everybody who has practised the law knows that in cross-examination truth will out on some occasions when it would not if the questions were, in effect, dribbled to the witness either orally or in writing. I think the whole function of (a compulsory examination under the Companies Legislation) would be utterly frustrated if the witness were entitled except, in the most extraordinary circumstances, either to have conferences with his counsel or solicitor about questions or to have such questions delivered to him in writing."
31 That observation may be directly adapted to the position of the DPP in an examination when asked to provide discovery.
32 In the matter of Agriculture.com Pty Ltd (In liq) Application of Sherman [2001] NSWSC 628 Palmer J said at [19]:
"In some cases it may be conducive to the search for truth that the examinee and his or her advisers are not provided in advance with the documentary material to be examined upon. In other cases, the process may be aided by enabling the examinee to refresh recollection of long past transactions by a prior study of contemporaneous documents. Which course adopted is very much a matter for the discretion of the examiner in each case."
33 There are no matters in issue between the parties on an examination.
34 For all these reasons I exercise my discretion to refuse an order for discovery in these examination proceedings.
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35 If, in due course, the DPP makes an application under CPCA s 30 for a declaration that property has been confiscated and the respondent joins issue, then there is a justiciable controversy between parties and a request for discovery can be considered in those proceedings.
Conclusion
36 While there is power to make an order for discovery, the application is dismissed.
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