Director of Public Prosecutions v WG (a pseudonym)
[2022] ACTSC 266
•21 September 2022
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Director of Public Prosecutions v WG (a pseudonym) |
Citation: | [2022] ACTSC 266 |
Hearing Date: | 21 September 2022 |
DecisionDate: | 21 September 2022 |
Before: | McCallum CJ |
Decision: | See [30]-[31] |
Catchwords: | CRIMINAL LAW — CONFISCATION OF CRIMINAL ASSETS — Application for restraining orders — orders to restrain interest in real property — whether evidence establishes reasonable grounds for the beliefs and suspicions stated in affidavit — whether orders should be served on caveator — where orders require the public trustee to take control of the property — whether the public trustee should receive notice of restraining orders |
Legislation Cited: | Confiscation of Criminal Assets Act 2003 (ACT) ss 26, 27, 29, 31, 33, 34 Court Procedures Rules 2006 (ACT) r 504 Magistrates Court Act 1930 (ACT) |
Cases Cited: | ACT Director of Public Prosecutions v King [2017] ACTSC 241. Director of Public Prosecutions ACT v Tomas [2015] ACTSC 233; 252 A Crim R 469 |
Parties: | Director of Public Prosecutions (Plaintiff) WG (a pseudonym) (First Defendant) YM (a pseudonym) (Second Defendant) HM (a pseudonym) (Third Defendant) |
Representation: | Counsel R McCrone (Plaintiff) None (ex parte) (Defendants) |
| Solicitors ACT Director of Public Prosecutions (Plaintiff) | |
File Number: | SC 347 of 2022 |
McCallum CJ:
These are proceedings brought by the ACT Director of Public Prosecutions under the Confiscation of Criminal Assets Act 2003 (ACT). The Director seeks a restraining order under s 26(1)(a) of the Act in respect of stated property of the defendants.
The stated property is described as follows: [description of property situated in the State of NSW redacted]. So far as any threshold jurisdictional question is concerned, four observations may be made.
First, s 4 of the Act plainly indicates that the Act was intended to have extra-jurisdictional operation. That section provides that the Act applies “to property located anywhere, whether in the ACT, in Australia outside the ACT, or outside Australia”.
Secondly, the property is described as “the first and second defendants’ interest in” the nominated lot and thus does not create any difficulty of the kind discussed by Mossop J, when his Honour was the Associate Judge, in Director of Public Prosecutions v Tomas [2015] ACTSC 233; 252 A Crim R 469.
Thirdly, because the lot has been properly described by reference to its Torrens title rather than its cadastral boundaries, it does not face a separate difficulty considered by his Honour in that judgment.
Finally, as to any threshold jurisdictional question, the Director has joined HM to the proceedings as third defendant. She is not a person the subject of any confiscation application but rather is the mortgagee of the subject property and is appropriately joined so as to overcome the difficulty considered by Mossop J in ACT Director of Public Prosecutions v King [2017] ACTSC 241.
The Confiscation of Criminal Assets Act, like similar legislation in other jurisdictions, is prescriptive as to the role of the court. As noted in the careful submissions provided by Mr McCrone on behalf of the Director, the court's power is not discretionary. Section 31(2) of the Act provides that the court must make a restraining order over the property to which the application relates if, having regard to the affidavit of a police officer sworn in support of the application and any other evidence before the court, the court is satisfied of certain matters.
The first is that the court is satisfied that there are reasonable grounds for the officer's beliefs and suspicions stated in the affidavit. The beliefs and suspicions required to be proved are set out in s 29 of the Act. Relevantly, in the present case, the requirement of that section relied upon is that the supporting affidavit must state that the deponent “believes that an indictment has been presented against the offender for a stated relevant offence.” An alternative basis is if “the offender has been convicted of a stated relevant offence,” but that is not the case here.
It is important to note that the term “indictment” is defined in the Legislation Act2001 (ACT) to include an information. In the present case, Leading Senior Constable Phillip Earle of the Australian Federal Police has deposed to his belief that informations were laid against the first and second defendants in the Magistrates Court of the Australian Capital Territory for offences which fall within the definition of serious offences in the Act.
Against a concern as to whether there may be a distinction between the presentment of an indictment and the presentment of an information as opposed to the date on which it was laid, I asked Mr McCrone to obtain further information to establish to my satisfaction that the informations against the first and second defendants had not only been presented to the Deputy Registrar of the Magistrates Court but that the first and second defendants had, in fact, subsequently been charged with those offences.
My reason for raising that concern was that, in proceedings on indictment, the indictment would be taken to be “presented” within the meaning of s 29(1)(a) when presented in court in the presence of the accused, ordinarily upon arraignment. Conversely, although the term “indictment” is taken to include the term “information”, an information according to the provisions of the Magistrates Court Act 1930 (ACT) first comes to the court in the absence of the accused person. Thereafter, a summons is issued calling upon that person to attend court. It is only upon the first return of the summons that a person is charged.
I wanted to satisfy myself that the first and second defendants had, indeed, been charged with the offences in respect of which informations were put before the Magistrates Court because, as I would construe the section, where the term indictment is to be read to mean information, there should nonetheless be proof that the relevant information has come to the attention of the defendant as would occur when an indictment is presented. The reason is that, in the case of serious offences as involved in the present proceedings, the consequences that flow for a defendant upon the making of a restraining order are draconian and there should be a strict construction of the legislation for that reason so as to protect the interests of persons who might not even be aware of the Director's proceedings.
In any event, Mr McCrone has returned to court this afternoon with a full set of the continuation bench sheet obtained from the Court upon the commencement of the proceedings following the issue of the two summonses and it can be seen from that document that each of the first and second defendants was charged with all charges on 1 February 2021. Those bundles should be marked exhibits A and B and kept with the Court's papers. That is a long way of explaining that the requirement of s 29(1)(a) is met by the affidavit of Mr Earle in the present case.
Separately, the Confiscation of Criminal Assets Act, in s 26, specifies requirements of the application to be filed by the DPP. In the present case those requirements are met. Section 26(2)(a) requires that the application state the offences to which the application relates. They are stated in grounds one and two of the application which set out that the first defendant has been charged with seven counts of obtaining property by deception contrary to s 326 of the Criminal Code 2002 (ACT) and that the second defendant has been charged with six counts of aiding and abetting in obtaining property by deception contrary to s 326 of the Code.
The dates when those offences are alleged to have been committed are specified both in the summonses and in the application. They are relevantly between 19 December 2017 and 11 February 2018. That satisfies the requirement of s 26(2)(b).
Section 26(2)(c) requires that the application specify the persons who are alleged to have committed the offences and that is also specified in the way I have indicated.
Section 26(2)(d) requires the application to specify the person whose property the application relates to and, in this case, that is the first and second defendants who are the registered proprietors of the property the subject of the application. That, in turn, satisfies the requirement of section 26(2)(e) which is as I have described at the outset of this judgment.
Finally, the application specifies that it is not a restraining order for artistic profits which is a matter that, if it were established, would have some significance under the legislation.
The Act is proscriptive as to the time within which the application may be brought. That is addressed in s 27(3) of the Act. The section at first reading is difficult, but Mr McCrone provided a helpful explanation, which I think is right, as to the way in which the section is to be construed. The section provides:
(3) An application for a restraining order in relation to a serious offence must be made before the end of the longer of the following periods:
(a) if an indictment has been presented against the offender for the offence, and the offender has not been convicted or cleared of the offence—2 years after the day the indictment was presented;
(b)if the offender has been convicted of the offence—2 years after the day of the conviction;
(c) in any case—6 years after the day the offence was committed (or is alleged to have been committed).
At first reading it might be thought that each of the separate instances in subsections (a), (b) and (c) provides its own specified period in the circumstances stated. However, that would leave no work to be done by the words “before the end of the longer of the following periods,” in the chapeau to the section.
As suggested by Mr McCrone, it would seem that the proper construction of the section is that, for example in a case where the offence was alleged to have been committed more than six years ago but an indictment had been presented within two years before the making of the application, a period longer than six years would apply so that the application could still be brought provided that it was brought within two years after the presentation of the indictment.
In any event, in the present case, the application is brought within the shortest period specified in the section. That is, the period of two years; the charges or informations having been presented against the offenders, as I have said, on 1 February last year so that the application is well within time.
I omitted to address, in dealing with the affidavit of Senior Constable Earle, the additional requirements of his affidavit specified in s 29 of the Act. For the reasons I have already stated, he has stated the matters required by ss 29(3), (5)(a) and (6) and, as required by s 29(8), he has in each case stated the grounds for each belief or suspicion. I am satisfied that there are reasonable grounds for each of those beliefs and suspicions, a conclusion which is not overly complicated in the present case and readily appears on the face of the affidavit and the additional material to which I have referred. It follows in accordance with the terms of s 31(2) that I must make the order sought.
Finally, for completeness, I note that the Act specifies the appropriate contents of a restraining order in s 33. The form of order provided by Mr McCrone satisfies those requirements.
Mr McCrone drew my attention to the fact that the certificate of title for the property in question records not only the mortgage, which explains the addition of HM as third defendant, but also two caveats.
Section 34 of the Confiscation of Criminal Assets Act provides that the court may order the Director of Public Prosecutions to give a copy of the restraining order, the application for the order or the supporting affidavit to anyone and may give directions about how any document is to be given to that person, or simply to give notice of the order to anyone and to give directions about how the notice is to be given.
In my view, it is appropriate for the caveators to be given copies of the orders and application and the supporting affidavit. My reason for reaching that conclusion is that the caveators (although this is a matter of speculation) may be relying on the sale of the property currently scheduled for auction in early October to resolve any differences they have with the registered proprietors, the first and second defendants, about any money owed. It may be relevant to them to know that the sale of the property is restrained.
Finally, I note that Mr McCrone raised a question as to whether the public trustee, who has an interest in the orders because the relief sought includes an order that the public trustee take control of the property, should also be included in the orders for receiving notice. I take the view that the trustee, having a statutory function under the Act, is not required to be informed of the notice in the same way as, for example, caveators. I note that the final form of orders provided by Mr McCrone provides for those documents to be provided to the trustee and I will make that order, but I do not think it is necessary for that material to be served as a matter of procedural fairness or pursuant to any requirement under the statute.
For those reasons, upon the giving of the undertaking noted at the conclusion of the orders, I make orders 1 to 5 and state the matters recorded in 1 to 3 of the general form of order provided by Mr McCrone, as follows:
The Court orders that:
(1) Pursuant to r 504 of the Court Procedures Rules 2006 (ACT), the Plaintiff is granted leave to amend his originating application to remove the fourth defendant;
(2) The Plaintiff is granted leave to file his amended originating application in Court, and the application is returnable immediately.
(3) Pursuant to s 31(2) of the Confiscation of Criminal Assets Act 2003 (the Act), the following property be restrained:
(a) [Description of property situated in the State of NSW redacted].
(4) Pursuant to s 31(3)(a) of the Act, the Public Trustee and Guardian for the Australian Capital Territory is directed to take control of the property referred to in order 3 (the restrained property).
(5) Pursuant to s 34(2)(a) of the Act, the Plaintiff is to give a copy of these orders, the amended originating application dated 22 September 2022 and the supporting affidavit of Leading Senior Constable Philip Earle affirmed 19 September 2022 to the following persons:
(a) The Public Trustee and Guardian for the Australian Capital Territory;
(b) Duluxgroup (Australia) Pty Ltd CAN 000 049 427;
(c) Paul John Mares.
The Court states that:
(1) This is a restraining order made under s 31 of the Act.
(2) The First and Second Defendants are the people whose property order 3 applies to.
(3) A person must not deal with the restrained property except in accordance with this order, another order made by the relevant court under the Act or the Act.
| I certify that the preceding thirty-one [31] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: Date: |
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