Director of Public Prosecutions v Afram

[2022] NSWSC 1133

Supreme Court

New South Wales

Medium Neutral Citation:

Director of Public Prosecutions v Afram [2022] NSWSC 1133

Hearing dates:

22 August 2022

Decision date:

22 August 2022

Jurisdiction:

Common Law

Before:

Adamson J

Decision:

(1) Grant leave to the plaintiff pursuant to s 13(3) of the Confiscation of Proceeds of Crime Act 1989 (NSW) to file a summons for a Confiscation Order outside the six-month time limit.

(2)   No order as to costs.

Catchwords:

CRIME — Confiscations — Forfeiture order — where summons filed after relevant period — whether in interests of justice to extend time for filing — whether delay sufficiently explained — leave granted to file out of time

Legislation Cited:

Confiscation of Proceeds of Crime Act 1989 (NSW), ss 4, 13, 25

Category:

Procedural rulings

Parties:

Director of Public Prosecutions (Plaintiff)
Fayed Afram (Defendant)

Representation:

Counsel:
F Gray (plaintiff)
A Stewart (defendant)

Solicitors:
Office of the Director of Public Prosecutions (plaintiff)
Stewart Law (defendant)

File Number(s):

2022/194863

JUDGMENT: EX TEMPORE

Introduction

1. The Crown seeks leave to file a summons dated 29 June 2022 to make a Confiscation Application pursuant to the Confiscation of Proceeds of Crime Act 1989 (NSW) (the Act). Section 13 of the Act provides that a Confiscation Application may be made in respect of property if a person is convicted of a serious offence. Section 13(3) provides that an application must be made before the end of the relevant period in relation to the conviction except with the leave of the Supreme Court.

2. It is common ground that the relevant period is a period of six months dating from the date on which the sentence was imposed on Fayed Afram (the defendant). This flows from the definition of “relevant period” in s 4 of the Act.

3. It is common ground that the summons was not sought to be filed until 29 June 2022, notwithstanding that the defendant was sentenced in the District Court on 24 June 2021. Had the time limit in the Act been complied with, the summons would have been filed by 24 December 2021. The Act provides that the Court must not grant leave under s 13(3) unless the property or benefit to which the application relates is property of a kind referred to in paragraph (d) of the definition of “tainted property” in s 4(1) or a benefit of the kind referred to in s 25(2)(a1) or 30(1)(b). It is common ground that subparagraph (a) of s 13(3A) has been satisfied. However, there is a second requirement in s 13(3A)(b), namely that the Court is satisfied of one of three matters. It is common ground that the only relevant matter is that in s 13(3A)(b)(iii), namely that it is otherwise in the interests of justice to do so.

4. Accordingly, the question for me, in determining the application by the Director of Public Prosecutions (DPP) is whether it is in the interests of justice to allow the DPP to make the application notwithstanding that the summons was filed outside the six month time period.

Relevant facts

5. In order to put the delay in context, it is necessary to recite some basic facts. As referred to above, the defendant was sentenced by the District Court on 24 June 2021. On 30 June 2021, the DPP informed the defendant’s representatives that an application under s 13 of the Act would be made. On 22 December 2021, the DPP filed a notice of motion in this Court which was, as referred to above, two days before the statutory time limitation expired. This document and other relevant documents were served on the defendant’s solicitors. The notice of motion for some reason was re-filed the following day and re-served on the defendant’s solicitors.

6. The filing of a notice of motion was erroneous because a notice of motion is an application in proceedings which are already extant. However, there were at that time no proceedings on foot in the Court. Therefore, in order to make the application under s 13, it was incumbent on the DPP to initiate proceedings by filing a summons. Because the DPP filed a notice of motion rather than a summons, it cannot be said that the application was validly made by the filing of the notice of motion on either 22 or 23 December 2021.

7. In February 2022, there was a change of solicitor with carriage of the matter for the DPP. Subsequently, there was re-filing and service of another notice of motion on 30 March 2022. As I have explained above, there is a fundamental difference between the filing of the summons on the one hand and the filing of a notice of motion. Whilst each constitutes an application, the effect of the filing of the summons is to initiate proceedings whereas a notice of motion is properly filed by way of an application in proceedings already on foot. That distinction is fundamental and well-known to all legal practitioners, however, it appears to have been missed, or misunderstood, in the present case. It was missed not only by the responsible solicitor at the DPP but also apparently by the Registry, which accepted the notice of motion for filing, notwithstanding that there were no extant proceedings in this Court.

8. In other circumstances, had the document been filed manually at the Registry, it may have given rise to a query or indeed a requisition. I make no criticism of the Registry in this regard since when matters are filed electronically, such irregularities are easy to miss.

9. From the defendant’s point of view, I assume that the defendant’s legal representatives also appreciated the distinction. They did not draw it to the attention of the DPP. I am not suggesting that they had an obligation to do so. However, they can have been under no illusion of the DPP’s intention to re-apply for a Confiscation Order under s 13 of the Act and to make that application in this Court, being the Court which has jurisdiction to make such orders.

10. It was not until 21 June 2022 that the DPP was advised that the correct documentation was a summons and not a notice of motion. This error was ultimately rectified by the filing of a summons in this Court on 29 June 2022, as I have referred to above.

Consideration

11. I consider that the delay, so called, has been adequately explained and the substance of the application has been amply notified to the defendant. The real question is whether it is in the interests of justice to prevent the DPP from applying for a Confiscation Order on the basis of a technical error by one of the staff of the Office of the DPP, being the failure to distinguish between a summons and a notice of motion; or do the interests of justice favour the grant of leave under s 13(3) having regard to the matters in s 13(3A).

12. Mr Stewart, who appears on behalf of the defendant, has submitted in reliance on written submissions prepared by another that there has been no adequate explanation for the delay. Further, he has submitted that the delay has occasioned prejudice to the defendant because far from having the matter dealt with relatively quickly after the imposition of the sentence by the District Court on 24 June 2021, it may be some time before the matter is finally determined. The defendant’s written submissions refer to the difficulty of assessing the benefit derived by a person from criminal conduct and that delay does not help the matter.

13. Whilst the task of assessing the benefit derived from criminal conduct can, in some circumstances, be extremely complex, I do not consider that the present case belongs to that category. The frauds committed by the defendant were committed with the aid of falsified documents. I doubt, on the material before me, that it will be particularly difficult to ascertain the benefit obtained by the defendant from the crime in the present case.

14. The principal matter in favour of a grant of leave and which satisfies me that it is in the interests of justice to grant leave is that the defendant has, within a week after having been sentenced by the District Court, been notified explicitly that the DPP will apply for a Confiscation Order. Although the formal requirements were not correctly complied with, the substance of the application has been within the defendant’s knowledge for a considerable period.

15. In all the circumstances, and having regard to the factual matters referred to above, I am satisfied that it is appropriate to grant leave under s 13(3) of the Act because it is otherwise in the interests of justice to do so. Neither party seeks an order for costs.

Orders

16. For the reasons set out above, I make the following orders:

1. Grant leave to the plaintiff pursuant to s 13(3) of the Confiscation of Proceeds of Crime Act 1989 (NSW) to file a summons for a Confiscation Order outside the six-month time limit.

2. No order as to costs.

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Decision last updated: 25 August 2022