NSW Crime Commission v Field - [2008] NSWSC 102

No judgment structure available for this case.

CITATION: NSW Crime Commission v Field [2008] NSWSC 102

HEARING DATE(S): 4.12.06, 6.12.06,7.12.06, 4.1.07, 4.5.07, 22.6.07, 23.7.07, 8.10.07, 12.11.07, 13.2.08

JUDGMENT DATE :
13 February 2008

JURISDICTION: Common Law

JUDGMENT OF: Adams J at 1

DECISION: 1. The interest, if any, of Malcolm Gordon Field –
(i) in the whole of the property described in CL Lot No 538 Lotissement du domaine de Super Cannes in Cannes, France also known as 16 Boulevarde de l’Observatoire, Cannes, France and registered in the name of Pegasus Properties Limited; and
(ii) in Pegasus Properties Limited to the extent of its interest, if any, in the whole of the property described in CL Lot No 538 Lotissement du domaine de Super Cannes in Cannes, France also known as 16 Boulevarde de l’Observatoire, Cannes, France
be forfeited to and vest in the Crown.
2. No order as to costs.
3. Liberty to apply on 28 days' notice.

CATCHWORDS: Confiscation of property - declaration - whether the Court can declare that defendant used specific aliases - this is a finding of fact but not an order - application refused.

LEGISLATION CITED: Criminal Assets Recovery Act 1990 s 22
Drug Misuse and Trafficking Act 1985 s 4
Supreme Court Act 1970 s 75

TEXTS CITED: Young, Declaratory Orders “Basic Concepts”, 2nd ed, Butterworths 1984

PARTIES: NSW Crime Commission (Plaintiff)
Malcolm Gordon FIELD (Defendant)

FILE NUMBER(S): SC 11852/01

COUNSEL: Mr I D Temby QC (Plaintiff)
Defendant in person

SOLICITORS: NSW Crime Commission (Plaintiff)
Defendant unrepresented

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

ADAMS J

12 February 2008

11852/01 NEW SOUTH WALES CRIME COMMISSION v FIELD

JUDGMENT

HIS HONOUR:
Preliminary

1 The New South Wales Crime Commission seeks summary judgment in its favour against Malcolm Gordon Field for an assets forfeiture order pursuant to s22 of the Criminal Assets Recovery Act 1990 (the Act) in respect of his interest in certain property in Cannes, France. (It also sought a declaration that Field has effective control, within the meaning of s8 of the Act, of that property. Though, in the result, the Commission did not press its application for a declaration for reasons that are now unimportant, I deal briefly with this matter later in this judgment.) Mr Field told me that he has no interest in the property but nevertheless wished to oppose the making of the order and declaration on behalf of the persons who, he claims, own the property and who are not, Mr Field asserted, Australian citizens. He later told me that the purpose of his opposing the orders is that he wished “to expose the Crime Commission for what they operate”. It is worth noting at this point that Mr Field did not give evidence in the proceedings to support any assertion that he made along these lines. That does not mean, however, that I am not entitled to draw conclusions from the way in which Mr Field conducted in this litigation. In particular, it seems to me that I am entitled to infer that he did not give evidence because such evidence would not have assisted him. I am quite satisfied that Mr Field well knows that he could refuse to answer questions that might tend to incriminate him and dismiss the fear that he might incriminate himself as an explanation for his declining to give evidence. I have, however, allowed Mr Field to make submissions which, as it happened, contain many assertions of fact of which there is no evidence. In the course of this judgment I will refer to a number of such assertions. I do not think it is necessary to advert to every matter of fact for which Mr Field contends in respect of which there is no evidentiary basis. In substance, Mr Field alleges that he is the victim of a massive criminal and oppressive conspiracy by the Crime Commission and a number of its employees. The absence of evidence is sufficient to dispose of these claims. He has also made some (limited) submissions about some of the issues in the case. I refer below to them to the extent that it is necessary to do so.

2 In the interests of transparency, I should say that I observed Mr Field both in the course of giving submissions and conducting cross-examination over several days. I formed the opinion that he is a cunning, adroit and dishonest person whose word, untested by cross-examination or unsupported by independent evidence, could not be accepted. I noticed also at times some apparent confusion but I am unable to be sure of its cause. No doubt the facts of the case are somewhat complex for a layperson to clearly analyse and the legislation is also not easy to understand. It maybe also that Mr Field suffers from some constitutional or pathological problem affecting the clarity of his thinking. It is not necessary for me to decide this last issue: it is an additional reason why no reliance can be placed upon statements of fact made by him which are not based upon the evidence. In the end, it is enough to say that I was left in the position of not being able to rely on anything Mr Field said as to any important matter.

3 Before moving to the substance of the matter I should mention an additional background but significant forensic consideration. In earlier proceedings the Commission sought orders, inter alia, that a notice to produce issued by Mr Field should be set aside. Mr Field had served on the Commission two notices to produce, the first returnable on 25 August 2006 and the second on 29 September 2006. The Commission moved to set aside the notices upon the ground, primarily, that Mr Field was, and continued to be, in contempt of court. On 5 October 2006 Barr J set aside the notices to produce having found that they were inextricably bound up with the principal issue in the proceedings in which Mr Field was found to be in contempt by Bell J on 29 May 2005 then, again, by Hulme J on 16 December 2005. During the proceedings before me Mr Field was still in contempt of the Court. For the reasons given by Barr J, I would not have exercised my discretion in Mr Field’s favour had he wished to issue any subpoena or notice to produce. However, as I informed him, he would be permitted to give evidence and call witnesses. I pointed out to him, however, that he could not rely on the affidavit that he filed or, indeed, any other affidavit made by him, unless he subjected himself to cross-examination. As I have mentioned, Mr Field did not rely on any affidavit and chose not to give evidence. He cross-examined, mostly by way of making allegations, a number of the witnesses upon whose affidavits the Commission relied. It is unnecessary to deal with that cross-examination. In substance, the credibility and reliability of the witnesses was not adversely affected and no significant additional evidence was elicited. During the proceedings Mr Field tendered certain documents, which were received into evidence. Amongst these documents is a Report by a handwriting expert, Mr Stephen Dubedat. This document is not admissible because Mr Dubedat was not called. However, in fairness to Mr Field I explain below why, at all events, it does not really assist him.

4 A substantial quantity of affidavit and documentary evidence was tendered by the Commission and witnesses called to give evidence as requested by Mr Field so that he could cross-examine them.

5 Some time after the initial hearing, the Court was reconvened to seek further submissions from the parties on the sufficiency of the evidence relied on by the Commission to support its application for the declaration as to the effective ownership of the Cannes property. The Commission then withdrew this application. A substantial body of evidence had been elicited that went to this matter. Part of that evidence concerned Mr Field’s alleged use of a number of aliases in the period from 1990 to 2001. The Commission, in effect, amended its application to seek a declaration that Mr Field had, during that period, used the following aliases: Ronald William Bender, Paul Leonard Close, Colin John Gambrill, John Joseph Harte, Patrick Joseph Murphy and Kevin Frederick Parsons.

The statutory and procedural context

6 Section 10 of the Act provides for the making by this Court of restraining orders in respect of specified property. On 4 July 2001, the Court made restraining orders as to any “interest in property” as defined in s 7 of the Act of Malcolm Gordon Field in the following property –

(a) Funds and/or safe custody facilities in the name of Malcolm Gordon Field with financial institutions outside Australia including account number 3326703 0 133 at the Caisse Regionale De Credit Agricole Alpes Provence, 25, Chenmin des trios cypres, 13097 Aix-En Provence Cedex 2, France.

(b) Property outside Australia in the names of Robert Stanley Johnson, Robert William Bender, John Joseph Harte, Paul Leonard Close, Colin John Gambrill, Pegasus Properties Limited, Maritime Investments Inc and Topaz Properties Limited.

The whole of the property described in CL Lot No 538 Lotissement du domaine de Super Cannes in Cannes France also known as 16 Boulevarde de l’Observatoire, Cannes, France and registered in the name of Pegasus Properties Limited.

7 Section 22 of the Act is (so far as is relevant) as follows –

“Making of assets forfeiture order

8 The basis for the restraining order against Mr Field is that he was suspected of having engaged in serious crime-related activity. At the time of making the restraining order, an order was also made under s12(1) of the Act for Mr Field’s examination. It was in respect of his refusal to be sworn or give evidence that Mr Field was found guilty of contempt of court for failing to comply with the order of the Court that he be examined on oath.

9 It is submitted by Mr Temby QC for the Commission that the Court has power to make the declaration as to Mr Field’s use of names under s12 of the Act, which is as follows –

12 Supreme Court may make further orders

10 It does not seem to me that a finding as to a matter of fact is an “order”, within the meaning of s 12. There is no suggestion in the section that “order” is used in any special sense. It seems to me that it is intended to refer to orders conventionally made by the Court. Such orders are either executory or declaratory. An executory order is an order enforceable by execution; a declaratory order (with a possible immaterial exception) declares what the rights are between the parties at the relevant time (see Young, Declaratory Orders “Basic Concepts”, 2nd ed, Butterworths 1984). It may be doubted that s 12 gives a power to make declaratory orders: first, there is power to make such orders under the general jurisdiction of the Court and no cause therefore to provide a parallel jurisdiction; and, secondly, the examples of orders given in the section are all executory. It is easy to see how it might be necessary to identify the individual to whom, or in respect of whose interests, an order is directed and thus require an order to be made in a particular form that took up any aliases used by the individual. But that is not itself an order that the individual uses a particular name (and, at all events, is not what is being sought). It may be that the declaration sought could be ancillary to identifying Mr Field’s connexion with Pegasus and hence with the Cannes property, at least at some time or other, though this is, in respect of most of the names, a tenuous link. This purpose of the application was not, however, articulated before me, for what are I think, obvious reasons. Nor is the declaration sought a declaration as to the rights between the parties. The position as I see it is that, though a statement as to names that have been used by Mr Field from time to time might well be ancillary to the execution of the assets forfeiture order, it is not an order within s 12.

11 Section 23(4) of the Act empowers the Court “when it makes an assets forfeiture order, or at any later time, make any ancillary orders that the Court considers appropriate…[For] example, the court may make ancillary orders for and with respect to facilitating the transfer to the Crown of interests in property forfeited to the Crown under such an order”. It seems to that orders which enabled identification or quantification of a forfeited interest might well fall within this provision. However, I cannot see how statements that at one time or other certain names were used by the party whose interest in property is being forfeited is an “order” within the meaning of the sub-section. It maybe that such names can be used in the forfeiture order where that is appropriate, but as I have already mentioned that is not what is being sought here.

12 The Court, in its general jurisdiction, has power to make declarations of right under s 75 of the Supreme Court Act 1970. I do not see how a statement as to the use by Mr Field of aliases can be a declaration of right in this sense. Nor did the Commission so contend.

13 Accordingly I decline to make the declaration sought.

14 In the event that I may be mistaken about my interpretation of s 12 of the Act, I should set out my findings as to the various aliases used by Mr Field, which formed a significant part of the evidence adduced by the Commission in support of its application for the declaration in its initial form and relied in support of its application for the declaration.

15 It appears to be undisputed that the Cannes property was purchased by Pegasus Properties Limited, a company registered in Ireland on 5 April 1994. It is also undisputed by Mr Field – indeed, it was positively asserted by him during submissions – that he has used the name John Harte from time to time and had a passport in that name. I note also that a passport was issued by the Republic of Ireland to one Patrick Joseph Murphy in which is attached in the usual way a photograph identifying the passport holder. That is a photograph of Mr Field. Evidence was given by Mr Paul Westwood, a very experienced forensic handwriting and questioned document examiner concerning the integrity of the passport, in particular as to whether it was a counterfeit or, being genuine, had been altered by way of photo substitution. Mr Westwood, who has had considerable experience with the examination of passports, concluded after a very thorough examination of standard passport security features, that there was no reason to doubt that the passport was genuine. Mr Westwood was unable to find any evidence supporting the contention that the photograph of Mr Field was not the original photograph in the passport. He did not observe any disturbance or cutting of the laminate over the surface of the page, rippling or tearing of the paper, destruction of the fine green line security printing on the laminate, disruptions to the ultraviolet security printing on the surface of the page, evidence that the passport had been restitched to accommodate a new laminate and evidence of the laminate being joined to the stub of the original laminate nor external inconsistencies in the alignment of the wet and dry seals overlapping the bottom left-hand corner of the bearer’s photograph. He concluded that the possibility that the passport had been the subject of photo substitution to be highly unlikely. I accept Mr Westwood’s evidence and, accordingly, reject the assertions made by Mr Field, albeit in submissions, that this passport is not his. To the contrary, I have no doubt that it is Mr Field’s passport and, therefore, that he used the name Patrick Joseph Murphy.

16 Of greater significance perhaps is the identity of the person using the passport in the name of Kevin Frederick Parsons. There is no doubt that such a passport was issued by the Department of Foreign Affairs and Trade. A photocopy of the application has been tendered in evidence. The passport number is given as K2552029 on the passport application form. It displays a photocopy of the photograph which, as is usual, must be attached to such applications. That copy, not surprisingly, is not very clear. Nevertheless, the picture bears an extraordinary likeness to the photograph contained in the Murphy passport. The outline and details of the face are markedly similar. But the most convincing evidence that the photographs are taken at the same time is the identical pattern on the striped t-shirt that is being worn by the figure in each photograph. There is a distortion of the lines caused by a slight folding of the material which, although the line is plainly straight, appears as a slight ripple. That slight ripple, which is seen clearly in the Murphy passport, is duplicated in the photocopy of the photograph in the Parsons’ application. It is inescapable to my mind that the applicant for the Parsons’ passport used Mr Field’s photograph, which was a duplicate of the photograph of him that is in the Murphy passport. The proof of identity declaration in the application was, it appears, made on 3 June 1993 and it may well be that the backs of the photographs were also signed on that day, as the form requires. Mr Field submits that on 3 June 1993 he had arrived in Sydney from an overseas destination and therefore could not have been involved with the Parsons’ application. However, immigration records establish that Mr Field arrived in Sydney (travelling in his own name) at 5.20am on 3 June 1993. I accept the submission made on behalf of the Commission that he could easily have got to Queensland on that day, if that is the place at which the passport photographs and declaration were signed, although the place of signature, as it happens, does not appear on the application. During submissions to me, Mr Field denied that he obtained the passport or that it was his or had used it or the name Kevin Frederick Parsons. He conceded that the passport application showed his photograph but submitted that I should consider that passports can be falsified. Mr Field was not prepared to give evidence that the application was not his. The overwhelming probabilities favour the conclusion that it was made by him.

17 The report of Mr Dubedat tendered by Mr Field compared the handwriting of an outgoing passenger card in the name of Malcolm Field, a two page Australian passport application in the name of Ronald Bender and a two page Australian passport application in the name of Kevin Parsons. Mr Dubedat’s conclusion was, in brief that, although similarities were found in some of the letter forms, “many of the differences appeared consistent and fundamental in nature, which is indicative of different authors”. He also noted that, because of the poor quality of the limited samples he was given, he “could not definitely exclude the possibility that the writer of one document also wrote the another”. He said, however, he found “no significant evidence to support the hypothesis. If Mr Field actually wrote on the applications, this would tend to establish that he used the particular name. If he did not write on the applications, this would not – for obvious reasons – prove that he did not use the application or the name in which it was made. At all events, in light of the fact that Mr Dubedat must have been working from photocopies of photocopies, I am very dubious indeed of the reliability of his opinion. In short, had this report been admitted, it would have afforded no real assistance to Mr Field.

18 I have mentioned that Mr Field admitted that he used the name John Harte. The following evidence demonstrates such a close relationship – as asserted by Mr Field (masquerading as Harte) – between them as to make it extremely unlikely that, if the Parsons’ passport contained his photograph, he would not have known it and known why.

19 It is undisputed that Pegasus was a shelf company owned by Overseas Companies Registration Agents (Pte) Limited (known as OCRA). An unsigned statement by Diana Elizabeth Bean who was at relevant times the office manager in Singapore of OCRA was tendered by Mr Field. His purpose in so doing, as I understand it, was that he accepted that he had been involved in the purchase of Pegasus from OCRA – together with a number of other companies mentioned by Ms Bean and in the course of Mr Field’s cross-examination of Ms Holtz (a forensic accountant employed by the Commission) of a number of other companies. Mr Field relied on the statements of Ms Bean to establish that the person mentioned by Ms Bean as Kevin Parsons was not Mr Field (masquerading as John Harte) but another individual. Ms Bean said that Harte – who, on Mr Field’s admission, was him – had told her that Kevin Parsons was his business partner but said that she could not recall ever meeting Kevin Parsons. Ms Bean said that Harte had told her that he needed a company incorporated in Ireland for the purposes of purchasing a property in France.

20 The precise status of Ms Bean’s statement as evidence of the truth of the assertions in it is uncertain. It may be that, Ms Bean being unavailable, her statement was at all events admissible under s63 of the Evidence Act 1995, this being a civil proceeding. Mr Field tendered and cross-examined on the document, in particular on the relationship or, as he contended, the distinction, between the person identified by Ms Bean as Harte and the person Kevin Parsons. In the ordinary course, I do not doubt that the tender of such a statement by a party to proceedings would lead to the admissibility of the assertions of fact contained within it, at least those of matters directly witnessed by the maker of the statement, in particular, any statements made by the party tendering the document. Mr Field was unrepresented and may not have been aware of the discretion reposed in the Court to receive a statement such as that of Ms Bean only for restricted or limited purposes. At the same time, I do not doubt that Mr Field wished me to deal with the statement as evidence of its contents, in particular as to those facts surrounding the purchase of Pegasus. In my view, it would not be appropriate to allow Mr Field to rely on those parts of the statement but not permit the Commission to do so. Accordingly, I admit the following paragraphs of the statement, which I set out below, as evidence of the assertions of fact contained within them. I add that the propriety and fairness of this course is confirmed by the circumstance that Mr Field could have given evidence contrary to Ms Bean’s statement had he wished to do so, the material facts being within his personal knowledge. This fact does not, of course, make the statements admissible but I think that it does support the conclusion that there is no unfairness to Mr Field in admitting those parts of the statement for all purposes. (I should mention that Mr Standen, an Assistant Director (Investigations) with the Commission gave evidence that Ms Bean did indeed sign this statement, although only an unsigned copy is available.) The statement says –

9. I met a male person by the name of John HARTE during the course of my duties with OCRA. HARTE attended the offices of OCRA a number of times to purchase companies in a number of overseas jurisdictions. I would describe him as having an abrupt manner, well dressed and Australian. HARTE often wore ‘boat’ type shoes. HARTE used an Irish passport as his photo identification. I recall that HARTE paid cash for the initial fees to OCRA for the purchase and management of the companies in the first year. A bank account was opened for one of the companies purchased by HARTE. HARTE told me that Kevin PARSONS was his business partner. I do not recall ever meeting Kevin PARSONS.

10. Pegasus Properties Ltd (“Pegasus”) was incorporated in Ireland on 1 July 1993. Pegasus was sold as a shelf company to HARTE. HARTE told me that he needed a company incorporated in Ireland for the purposes of purchasing a property in France.

11. Fenton International Ltd (“Fenton”) was incorporated in the Bahamas on 1 October 1993. Fenton was sold as a shelf company to HARTE. HARTE told me that Fenton would be used to buy and sell yachts.

12. Elite Shipping Ltd (“Elite”) was incorporated in the Bahamas on 27 October 1993. Elite was sold as a shelf company to HARTE. HARTE told me that he had a friend in Australia who had had a boat impounded by the authorities. HARTE expressed considerable anger at the Australian authorities. HARTE told me a long story about the boat but I cannot recall the detail other than HARTE said the boat had been confiscated for tax reasons and that ‘they’ were trying hard to get it back’. I recalled he seemed very bitter about the boat incident.

13. Topaz Properties Ltd (“Topaz”) was incorporated in the Bahamas on 3 September 1993. Topaz was sold as a shelf company to HARTE. I cannot recall what reason HARTE gave me for buying Topaz.

14. Maritime Investments Inc (“Maritime”) was incorporated in the Cook Islands on 21 March 1994. Maritime was sold to HARTE. This was the only Cook Island company that I recall selling in the nine years I was employed at OCRA. I cannot recall what reason HARTE gave me for buying Maritime.

15. Green Island Trade and Investment Ltd (“Green Island”) was incorporated in the British Virgin Islands on 28 April 1994. Green Island was sold as a shelf company to HARTE. OCRA

16. I also recall that HARTE provided the ORCA office with contact details in Cannes, France for some of the above companies, but I do not recall specifically which companies. One of the other contact addresses provided for the above companies was a lawyer in the Philippines named Celso ESCOBIDO.

19. On 8 August 2001 I was shown video KE276 by Federal Agent Robert Clucas an New South Wales police officer John Reisp. I immediately recognised the image of person number 7 on video KE276 as the person I know as John Harte. I always addressed HARTE by name. In my early meetings with HARTE I addressed him as Mr HARTE and in later meetings, I addressed him as ‘John’.”

21 Mr Field also cross-examined Ms Holtz on a letter from Sng & Co, solicitors in Malaysia, to OCRA in Singapore, forming part of the business records of OCRA and being a copy, it seems to me, of the business records of Sng & Co, dated 14 August 2000. That letter was tendered by the Commission without objection from Mr Field. It states the “property details” as those of the Cannes property and then adds –

“We have been instructed by Mr Harte that OCRA has all the details of the property. Please therefore check your records to the same. Kindly therefore prepare the necessary resolutions for the transfer of the property from Pegasus Properties Limited to Mr Kevin Frederick Parsons (Australian passport number K2552029) and forward the same to us for our onwards transmission to our client.”

22 This letter is relied on by Mr Field to show that he and Mr Parsons are two distinct individuals. Implicit in it, of course, is the assertion that Mr Harte had sufficient interest in the property to instruct that it be transferred from him to his alter ego, Parsons. But, once it is accepted that Mr Field is Mr Parsons, circumlocution is no longer necessary and the true owner of Pegasus is revealed. Of course, as Mr Field himself conceded he had done, persons can relatively easily assume false identities; certainly they can call themselves a variety of names. However that might be, I think the only rational conclusion on the whole of the evidence is that Mr Field was in fact Kevin Frederick Parsons. It follows that his reference to Kevin Parsons as a partner or someone for whom he was buying Pegasus to Ms Bean can only be understood as a charade, designed to disguise, if he could, the fact that he was the true purchaser of Pegasus.

23 There is significant evidence showing a connection between Mr Field and France. On 19 October 1993 a person using the name Kevin Parsons departed Australia. He returned on 27 October 1993 and reported in the usual immigration card that he had spent most of his time in France. On 30 December 1993 the person using the name Kevin Parsons departed Australia. He returned on 14 January 1994 and reported in the incoming passenger card that he had spent most of his time in France. On 4 March 1994 a person using the name Ronald Bender departed Australia returning on 23 March 1994 reporting that he had spent most of his time in France. The settlement of the Cannes property took place on 5 April 1994 at which time Pegasus was represented by Michelle Martine Marie Guillot authorised by a power of attorney given by Kevin Parsons. On 5 April 1994 a person using the name Ronald Bender departed Australia returning on 21 June 1994.

24 Mr Field asserted in the course of submissions and cross-examination that the application for a passport in the name of Ronald William Bender contained his photograph and was made by him and the passport was his. There is no reason not to accept these assertions as truthful. It follows that Mr Fields also used the name Ronald William Bender.

25 So far as the name Colin John Gambrill is concerned, this was the name in the false United Kingdom passport found in Mr Field’s possession on 5 January 2001. As I mention below, he was charged with an offence in relation to this passport involving having it in his possession. It fallows that, in all probability, he had it for the purpose of verifying his use of this name as an alias. This conclusion is strengthened by his statement to me that he had United Kingdom passports because he could not enter the United Kingdom lawfully, I take it, under his true name. Accordingly, I would conclude that Mr Fields used the name Colin John Gambrill.

26 So far as the name Paul Leonard Close is concerned, the Commissioner relies on an affidavit made by Mark William Standen, the Assistant Director, Investigations, of the Commission. In that affidavit Mr Standen gives extensive hearsay evidence concerning a number of material facts. It appears to have been assumed that he could do so since an application for summary judgment is interlocutory and the hearsay rule does not apply to evidence providing the party adducing it also adduces evidence of its source, under s75 of the Evidence Act 1995. However, this matter did not proceed as an application for summary judgment, at least so far as the application for a declaration was concerned but as a substantive hearing. The hearsay statements concerning Close do not state any source and are impossible to evaluate. Even if they are admissible, they do not provide a sufficient evidentiary basis for concluding that Mr Field indeed used the name Paul Leonard Close and I decline to make a finding that he did so.

The prerequisites for an assets forfeiture order

27 Following his arrest on 5 January 2001 Mr Field was indicted on 16 April 2002 upon two counts, namely –

1. On 5 January 2001 he did, without reasonable excuse, have in his possession a passport issued by or on behalf of a foreign country, namely the United Kingdom, being a passport that had been falsified; and

2. Between about 1 December 2000 and about 5 January 2001 he was knowingly concerned in the importation to Australia of prohibited imports consisting of a quantity of 3, 4 methylenedioxymethamphetamine (MDMA) being not less than the commercial quantity.

28 On 16 April 2002 Mr Field pleaded guilty to the first count. On 11 April 2003 he was sentenced on the first count to one year’s imprisonment from 5 January 2001. On 7 May 2002 Mr Field was found guilty by a jury on the second count and was sentenced on that count to thirteen years’ imprisonment from 5 January 2001, with a non-parole period of seven years.

29 It will be seen that the Court must make an assets forfeiture order if it is more probable than not that the person whose suspected serious crime-related activity formed the basis of the restraining order was, at any time not more than six years before the making of the application for the order, engaged in a serious crime-related activity involving an indictable quantity of a prohibited plant or drug under the Drug Misuse and Trafficking Act 1985 (the definition of “indictable quantity” in s4 of the Act) or a serious crime-related activity involving an offence punishable by imprisonment for five years or more. The reference to an indictable quantity is, clearly enough, not a reference to an offence under the Commonwealth legislation pursuant to which Mr Field was convicted. Section 6 of the Act defines what is meant by serious crime-related activity and, in short, comprehends supplying a prohibited drug within the meaning of s25 of the Drug Misuse and Trafficking Act 1980 or a conspiracy to supply such a drug within ss26 and 28 (whether within or outside New South Wales) or in aiding or abetting a supply contrary to s27. By Schedule 1 to the Drug Misuse and Trafficking Act MDMA is a prohibited drug, the indictable quantity of which is 1.25 grams. The quantity of MDMA involved in Mr Field’s conviction was approximately 34 kilograms. Being knowingly concerned in the importation of a drug must, as it seems to me, almost certainly involve a conspiracy to supply the drug in question either to someone else for on supply or to a user. For the purposes of the Act, however, it is only necessary that the Court finds it to be more probable than not that the person to be subjected to the restraining order was engaged in serious crime-related activity of the relevant kind: s 22(2). At all events, s 22(3) permits a finding for the purposes of sub s (2) where the offender committed of “some offence or other” having the required characteristics.

30 Mr Field in his written submissions contends that there is no jurisdiction to make the order sought. The first submission relies on the requirement in s 22A(1) of the Act that, where the relevant interest in property is derived from “external serious crime-related activity” an application for an assets forfeiture order can be made only where the person having the interest is domiciled in New South Wales or the property is situated here. Mr Field, as I understand it, submits that the offence providing the basis for the present application is “external serious crime-related activity”. It is obvious from my description of the offence that this is not so. Being knowingly concerned in the importation of drugs into Australia is not an external activity for any relevant purpose, still less is a conspiracy or agreement to supply an indictable quantity of a prohibited drug in New South Wales an external activity. There is no merit in this submission.

31 Mr Field also contends that an asset forfeiture order can only be made in relation to property that was owned six years or less before the making of the assets forfeiture order. A reading of s 22(2) of the Act is sufficient to dispose of this submission.

Conclusion

32 The Court is bound to make the assets forfeiture order where the prerequisites of s 22 are satisfied as, in this case, they plainly have been.

33 Accordingly, the Court orders that the interest, if any, of Malcolm Gordon Field –

(i) in the whole of the property described in CL Lot No 538 Lotissement du domaine de Super Cannes in Cannes, France also known as 16 Boulevarde de l’Observatoire, Cannes, France and registered in the name of Pegasus Properties Limited; and

(ii) in Pegasus Properties Limited to the extent of its interest, if any, in the whole of the property described in CL Lot No 538 Lotissement du domaine de Super Cannes in Cannes, France also known as 16 Boulevarde de l’Observatoire, Cannes, France

34 Since the bulk of the hearing was devoted to the Commissioner’s application for the declaration that was withdrawn, I decline to make an order as to costs.

35 These orders depart somewhat from the orders sought in the Notice of Motion and express the substance of the Commissioner’s application as it unfolded, though without formal amendment being sought. I have no doubt that Mr Field understands the nature of the orders and why they take the present form. However, I give the parties liberty to apply on twenty-eight days’ notice in respect of the form of the orders in case either wishes to make further submissions about it. It follows that the orders cannot be entered until the expiration of twenty-eight days from today’s date.

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NSW Crime Commission v Field [2008] NSWSC 102

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CITATION:	NSW Crime Commission v Field [2008] NSWSC 102
HEARING DATE(S):	4.12.06, 6.12.06,7.12.06, 4.1.07, 4.5.07, 22.6.07, 23.7.07, 8.10.07, 12.11.07, 13.2.08
JUDGMENT DATE :	13 February 2008
JURISDICTION:	Common Law
JUDGMENT OF:	Adams J at 1
DECISION:	1. The interest, if any, of Malcolm Gordon Field – (i) in the whole of the property described in CL Lot No 538 Lotissement du domaine de Super Cannes in Cannes, France also known as 16 Boulevarde de l’Observatoire, Cannes, France and registered in the name of Pegasus Properties Limited; and (ii) in Pegasus Properties Limited to the extent of its interest, if any, in the whole of the property described in CL Lot No 538 Lotissement du domaine de Super Cannes in Cannes, France also known as 16 Boulevarde de l’Observatoire, Cannes, France be forfeited to and vest in the Crown. 2. No order as to costs. 3. Liberty to apply on 28 days' notice.
CATCHWORDS:	Confiscation of property - declaration - whether the Court can declare that defendant used specific aliases - this is a finding of fact but not an order - application refused.
LEGISLATION CITED:	Criminal Assets Recovery Act 1990 s 22 Drug Misuse and Trafficking Act 1985 s 4 Supreme Court Act 1970 s 75
TEXTS CITED:	Young, Declaratory Orders “Basic Concepts”, 2nd ed, Butterworths 1984
PARTIES:	NSW Crime Commission (Plaintiff) Malcolm Gordon FIELD (Defendant)
FILE NUMBER(S):	SC 11852/01
COUNSEL:	Mr I D Temby QC (Plaintiff) Defendant in person
SOLICITORS:	NSW Crime Commission (Plaintiff) Defendant unrepresented