Director of Public Prosecutions v Brown

[2005] NSWSC 870

CITATION:	DPP v Brown [2005] NSWSC 870 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	19/07/2005, 28/7/2005
JUDGMENT DATE :	28 July 2005
JUDGMENT OF:	Howie J at 1
DECISION:	The Court orders: (1) Payment out of the monies held by the Public Trustee of the following sums: (a) $30,800 (incl. GST) in relation to preparation to date and legal costs of committal proceedings (b) $3,500 for a medical report by a neurosurgeon. The applicant is allowed costs of these proceedings.

CATCHWORDS:	Forfeiture of assets - application for variation of restraining order in respect of funds arising from a murder suspect selling her version of events to the media while under police investigation - variation granted to permit funding of legal representation.
LEGISLATION CITED:	Confiscation of Proceeds of Crime Act 1989 - ss 4, 43(2), 43(6)
CASES CITED:	New South Wales Crime Commission v Younan (1993) 31 NSWLR 44 R v Weightman (NSWSC, unreported, 23 June 2004)
PARTIES:	Director of Public Prosecutions v Karen Alma Brown
FILE NUMBER(S):	SC 12457/2004
COUNSEL:	A. Bellanto with G. Jones - Applicant I. Temby QC - Respondent
SOLICITORS:	Mark Rumore - Applicant S. Kavanagh - Respondent

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HOWIE J

TUESDAY 30 AUGUST 2005

12457/2004 DIRECTOR OF PUBLIC PROSECUTIONS v
KAREN ALMA BROWN

JUDGMENT

1 HIS HONOUR: On 28 July 2005 the Court made orders for the payment of monies held by the Public Trustee to Karen Alma Brown (the applicant) for payment by her on account of legal fees and the preparation of a report of a neurosurgeon in connection with her defence of a charge of murder. The amount of money to be paid to the applicant totalled $34,300. These are the reasons for the making of those orders.

2 By Notice of Motion the applicant sought a variation of a restraining order made by this Court on 3 August 2004 in order to provide her with legal and other expenses pursuant to s 43(6) of the Confiscation of Proceeds of Crime Act (the Act). The section provides:

(6) A restraining order may be made subject to such conditions as the Supreme Court thinks fit and, without limiting the generality of this, may make provision for meeting out of the property, or a specified part of the property, to which the order applies all or any of the following:

(a) the defendant’s reasonable living expenses (including the reasonable living expenses of the defendant’s dependants (if any)) and reasonable business expenses,
(b) the defendant’s reasonable expenses in defending a criminal charge.

3 The background to the restraining order is as follows. On 26 July 2004 the applicant, who was then a security officer, was attacked by a person attempting to rob her of money that she had in her custody in the course of her employment. At the time of the attack she had $45,000 in cash in a backpack that she was carrying through a car park on her way to her motor vehicle. Her attacker was armed with a knuckle-duster. She was punched a number of times to her face and head causing significant wounding. The robber succeeded in taking the backpack from the applicant and carried it to a vehicle that he had driven into the car park. The applicant followed him. There are varying accounts of what then occurred but the confrontation between the two ended with the applicant drawing her pistol and shooting the robber dead as he sat in the driver’s seat of his vehicle.

4 Police attended a short time after the shooting and found the robber with a single bullet hole to the head. The applicant was taken to hospital for the treatment of her injuries. At the hospital she is alleged to have made statements to the police indicating that she had shot the robber while he was dragging her to the car and believing that he would kill her. By reason of her injuries and because the applicant had arranged for her legal representative to attend the hospital, the police delayed interrogating her and arrangements were made for the applicant and her legal representative to attend the police station at a later time.

5 The applicant, however, did not attend the police station to be interviewed as arranged. She did, however, shortly after the incident speak to representatives of the media and was paid $7,000 as a result of a story published in the Daily Telegraph newspaper giving her account of the circumstances leading to the killing. She also arranged to give her version of events to the Channel 7 television station and was to be paid $100,000 for doing so. She gave interviews to reporters from the Daily Telegraph and Channel 7 on 31 July 2004.

6 The applicant was eventually interview by police on 2 August 2004 and on that day she was served with a Court Attendance Notice for the offence of murder.

7 On 3 August 2004 the Director of Public Prosecutions (the Director) obtained in this Court a restraining order in respect of, inter alia, fees paid or payable “by electronic or print media in relation to information provided to electronic or print media by the defendant for the expression of the defendant’s thought, opinion, or emotions regarding the events surrounding the death of William Frank Aquilina”. The restraining order was made ex parte pursuant to s 43(2) of the Act. It was alleged that the money obtained from the Daily Telegraph and promised by Channel 7 was tainted property for the purposes of the Act. Section 4 of the Act contains the following provisions:

tainted property means property that:

(a) was used in, or in connection with, the commission of a serious offence, or

(b) was derived or realised, directly or indirectly, by any person, from property used in, or in connection with, the commission of a serious offence, or

(c) was derived or realised, directly or indirectly, by any person, as a result of the commission of a serious offence, or

(d) was derived or realised, directly or indirectly, by any person for the depiction of a serious offence, or the expression of the offender's thoughts, opinions or emotions regarding the offence, in any public promotion.

public promotion means any of the following:

(a) film, slide, video tape or any other form of recording from which a visual image can be produced,

(b) record, tape, compact disk or any other form of recording from which words or sounds can be produced,

(c) book, newspaper, magazine or other written or pictorial matter,

(d) radio or television production,

(e) publication of matter on the Internet,

(f) live entertainment of any kind.

8 As a result of the public controversy concerning the fact that the applicant was apparently willing to speak to the media for money but not to the police, her solicitor at the time, Mr Rumore, delivered a public statement on her behalf on 4 August 2004. That statement contained the following in explanation of the applicant’s position in relation to the payments paid, or promised to be paid, for her version of the events surrounding the killing.

It has never been her intention to obtain money and she did not solicit payment for comment from any media source. She was approached by the media and a bidding option started – something she could not control.

Any money to be paid was specified to be paid into a solicitor’s trust account for payment of her authorised medical and legal expenses, with the remaining balance to go to charity.

I can confirm that no monies whatsoever have been paid by Channel 7 nor any other media source. Now she wishes to waive the payment of any monies by Channel 7 and any other media source, so that people will understand that she wasn’t doing this for the money.

9 On 2 September 2004 Channel 7 sought to be relieved of the obligation to pay the sum of $100,000 to the Public Trustee under the restraining order. That application was dismissed on 14 October 2004 and the money was henceforth paid.

10 The committal proceedings in respect of the charge of murder are to take place in August 2005. The Director had agreed that there should be cross-examination of two witnesses who give accounts of the confrontation between the applicant and the robber leading up to the firing of the shot that killed him. The applicant has secured the services of senior and junior counsel to appear for her in the committal proceedings.

11 A psychiatrist who has been treating the applicant apparently for the effects upon her of the incident giving rise to the shooting has advised her to obtain a report from a neurosurgeon. Although the applicant sought the release of funds for payment to the neurosurgeon for treatment, the principal reason for the report is to obtain evidence as to the applicant’s state of mind at the time of the shooting.

12 In his affidavit in support of the Notice of Motion Mr Rumore stated that the applicant has no assets of substance but that she owed $25,000 to her legal representatives for the work done on her behalf so far in the criminal proceedings arising from the shooting. The applicant receives $285 a week net as a result of worker’s compensation payments but this sum is totally consumed in rent and other living expenses.

13 The matter first came before the Court on 19 July. Mr Bellanto and Mr Jones of counsel appeared for the applicant. They would be counsel briefed to appear at the committal proceedings if sufficient funds are made available to the applicant from the restrained property. Mr Temby QC appeared for the Director.

14 Mr Temby was prepared to concede that, given the seriousness of the charge faced by the applicant and having regard to the number of witnesses relied upon by the prosecution, it was appropriate for the applicant to be represented by senior and junior counsel. Mr Temby also conceded that the strength of the Crown case was such that it was impossible to anticipate the outcome of any trial should the applicant be committed to stand trial for murder or manslaughter.

15 Mr Rumore gave evidence and confirmed that the applicant had not applied for legal aid but wished to have access to the restrained property in order to fund her legal representation of choice. He stated that without access to the funds restrained the applicant would be unable to afford any legal representation. There has been no issue raised by the Director that the Court cannot make an order providing for the funding of legal representation at committal proceedings.

16 Mr Bellanto stressed the importance of the applicant being represented on such a serious charge and where there was a real issue to be addressed in the cross-examination of the witnesses called to give evidence at the committal proceedings. As the prosecution was to be represented by Senior Counsel, he argued that the applicant was entitled to the same advantage. He submitted that the prosecution case was such that there was a real chance that the applicant might not be committed for trial. He noted that, if the magistrate did not commit the applicant to stand trial, she would be entitled to the funds because they would no longer be tainted property.

17 He referred to a number of authorities that have set out the principles and considerations to be applied when exercising the discretion to release funds for the purposes of legal representation. In particular he drew the Court’s attention to the decision of the Court of Appeal in New South Wales Crime Commission v Younan (1993) 31 NSWLR 44 where at 50 it was held:

Relevant to that exercise will obviously be the apparent strength of the prosecution case against the alleged offender; the size of the fund of property involved; the probable amount of the legal expenses; and the effect of any exemption upon the achievement of the purposes of the Act which is to restrain the disposal of property to abide orders under the Act following the completion of proceedings.

18 He pointed out that in R v Weightman (NSWSC, unreported, 23 June 2004) Studdert J added to the four matters set out above by including a consideration of the source of the funds being held under restraint. In that case the provenance of the funds were the proceeds of the estate of the accused’s parents whom he was accused of murdering. Mr Bellanto submitted that in the present case the funds were not of a kind that were derived directly from the crime committed, so that there was no person who had a claim to them other than the applicant. But, as the Court indicated during the course of argument, this is so with offenders such as drug traffickers, who are frequently the source of funds that are restrained under these provisions and those in similar Federal legislation.

19 It is clear in the present case that the funds that have been restrained were payable to the applicant only by reason of the commission of the alleged offence for which she was charged. They were tainted either because they were directly attributable to the applicant’s actions in killing the robber or because the applicant obtained them “for the depiction of a serious offence, or the expression of the offender's thoughts, opinions or emotions regarding the offence, in any public promotion” within the terms of the Act.

20 The general policy behind the Act is that persons should not be able to profit from their criminal behaviour either directly or indirectly. That policy applies with considerable force to the money obtained by, or promised to, the applicant by selling her story to the media. To engage in that activity while at the same time avoiding assisting the police with their investigations was morally reprehensible.

21 Mr Temby argued that the Court should not make the order because there was no evidence that the applicant needed the funds in order to secure legal representation for herself. Mr Temby argued that it was significant in this case that the only funds that were being restrained were the funds relating to the payments made, or promised to be made, to the applicant by the Daily Telegraph and Channel 7 after the commission of the alleged crime. He pointed out that unlike many other cases that come before the Court under these or similar provisions, the applicant was not prevented from using what other funds she might have available to her. It was submitted that, in the somewhat peculiar facts of this particular case, the applicant was in no worse position now than she was immediately after she fired the shot killing the robber and she should not be entitled to benefit from the funds resulting from her later selling her story to the media. Had the funds not been made available, the applicant would have been in the same position as she is now so far as her ability to obtain legal representation is concerned.

22 The applicant’s position was, so Mr Temby argued, much different from those usually considered by the Court where there may be legitimate funds mixed with illegitimate funds yet all are restrained. In such a circumstance the Court may be more likely to permit some of the funds to be used for legal representation or living expenses because the accused has no other funds to turn to. Mr Temby stressed that the applicant had made no attempt to obtain legal aid and, therefore, it could not be said that this was a case where it had been shown that if she were deprived of the funds she would not be legally represented. It was argued that the applicant had no right to counsel of choice at trial let alone at committal proceedings.

23 When confronted with the argument put on behalf of the Director that there was no evidence that the applicant needed access to the restrained funds in order to obtain legal representation, Mr Bellanto sought an adjournment so that the availability of legal aid could be investigated. There was no objection to that application and it was granted.

24 The matters came before the Court again on 28 July 2005. On this occasion the applicant was represented by Mr Jones. Mr Temby continued to appear for the Director. An affidavit by Mr Rumore was read without objection in which he stated that the applicant would not meet the guidelines for qualification for Legal Aid. Annexed to the affidavit was correspondence between Mr Rumore and the Legal Aid Commission. The situation revealed by this material is that the Commission was unable to indicate whether the applicant would be considered for legal assistance while the current application before this Court was unresolved. However, it appeared that it was unlikely that the applicant would meet the means test imposed by the Commission because of property held in the name of a partner.

25 The difficulty in the present application is that, had the restrained funds not been available, the applicant would be in the position faced by most person who find themselves in the predicament of defending a prosecution for a serious criminal offence without funds to engage counsel let alone experienced senior and junior counsel. She may not have been entitled to legal aid because of the constraints imposed in relation to committal proceedings. Yet the Director accepts that having regard to the seriousness of the allegation, the state of the evidence and the need to cross-examine two vitally important witnesses, it would not be inappropriate for the applicant to be represented by those who seek to act for her.

26 The applicant did not obtain the restrained funds unlawfully; in point of fact she only received a small portion of the funds and had declined the receipt of the amount promised by Channel 7. There is no other claimant to the funds and, if she were discharged at committal proceedings, she would be entitled to the money. The funds are restrained because of the allegation that she committed the offence and yet she seeks access to a portion of the funds in order to defend the allegation. If she is denied the funds, the likelihood is that she would not be granted legal aid, but, if she were, then valuable resources of the Commission would be expended notwithstanding that the restrained funds are available. Because the prosecution is still at the committal stage it is difficult to make any sensible evaluation of the strength of the case against the applicant for either murder or manslaughter.

27 I have expressed my disapproval of the applicant’s conduct in selling her story while avoiding the police. But I am not to punish her by refusing the application if it were otherwise appropriate to release some of the funds. However, I believe that there is merit in the view that the conduct engaged in by the media and the applicant should amount to a criminal offence. The applicant was at the time when she was sought out by the media suspected of having committed a serious criminal offence and a person whom the police were attempting to interview. It was highly likely, if not inevitable, that she would be charged with some offence arising from the incident. The publication of her account had the tendency to frustrate police investigations and interfere with the proper administration of justice. The public’s right to know about the incident giving rise to the killing was, to my mind, subject to the greater interest in the due investigation of a serious criminal offence by the police. Similar conduct should be deterred in the future by the threat of a criminal prosecution against those who put media and financial interests above the proper investigation of serious criminal conduct.

28 I was initially of a mind to refuse the application so strong is the policy inherent in the legislation against persons, such as the appellant, selling their version of events to the media and the deterrence aspect of depriving such persons of the benefit obtained from allegedly criminal activity. I was impressed by the Director’s argument in support of refusing the application that I have summarised above. Had the charge been less serious, had the committal proceedings not involved the cross-examination of witnesses, and had I been in a better position to assess the strength of the prosecution case, I would have found that the balance to be in favour of refusing the application notwithstanding that it might have had the effect of depriving the applicant of legal representation, or at least her preferred legal representation. However, for the reasons above, I ultimately formed the view that the public interest was that some of the funds be released to the applicant for her defence of the charge of murder at committal proceedings.

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30/08/2005	-	Edit error - Paragraph(s) Cover sheet
30/08/2005	-	Edit Error - Paragraph(s) Cover sheet