NSW Crime Commission v John Visser
[2012] NSWSC 1100
•21 August 2012
Supreme Court
New South Wales
Medium Neutral Citation: NSW Crime Commission v John Visser & Ors [2012] NSWSC 1100 Hearing dates: 3 December 2010 & 10 December 2010 Decision date: 21 August 2012 Jurisdiction: Common Law Before: Hidden J Decision: Motion dismissed
Catchwords: CRIMINAL ASSETS - consent order for proceeds assessment orders and related orders - motion by defendants to set aside order under Contracts Review Act - no question of principle Legislation Cited: Criminal Assets Recovery Act 1990
Civil Procedure Act 2005
Contracts Review Act 1980Category: Principal judgment Parties: NSW Crime Commission (plaintiff/respondent)
John Visser (1st defendant/applicant)
Donna Maree Lewis (2nd defendant/applicant)
Sharnielle Visser-Lewis (3rd defendant/applicant)Representation: I Temby QC (plaintiff/respondent)
In person (defendants/applicants)
Alexandra Bishop - John M Giogiutti (respondent)
File Number(s): 2007/264616
Judgment
His HONOUR: On 7 December 2007 the plaintiff, NSW Crime Commission, commenced proceedings under the Criminal Assets Recovery Act 1990 against the first defendant, John Visser. Also joined as defendants were his partner, Donna Maree Lewis, and their daughter, Sharnielle Visser-Lewis. On the same day the Commission obtained a restraining order under s 10 (as it then was) of the Act with respect to all of Mr Visser's interests in property, comprising two boats and the family home at Heathcote. The home was registered in the names of all three defendants, and the interests of his partner and daughter in that property were also subject to the order. The initiating summons also sought assets forfeiture orders under s 22 of the Act, and a proceeds assessment order under s 27.
Mr Visser had been charged with drug offences, the particulars of which are not relevant for present purposes, on 3 April 2007. Three days later he escaped from custody, and he was at large at the time the restraining order was made. He left Australia but returned on 14 May 2008, when he was arrested. He has remained in custody since, and was sentenced to a substantial term of imprisonment for the drug offences on 19 March 2010.
Prior to Mr Visser's return to Australia Mr Michael Croke, solicitor, was involved in negotiations with the Commission with a view to settling the proceedings. Sharnielle Visser-Lewis was still a minor, and Ms Lewis acted as her tutor. However, whether Mr Croke was retained for that purpose is an issue which I must decide.
On 28 May 2008 Mr Croke entered appearances for the three defendants, and on the same day a consent order was filed. The order bears the signature of Mr Croke, purportedly on behalf of Mr Visser as his legal representative, and the signatures of Ms Lewis on her own behalf and as her daughter's tutor, those signatures being witnessed by Mr Croke. The document discloses that Mr Croke and Ms Lewis signed it on 25 May, and a solicitor for the Crime Commission signed it on 27 May.
Salient features of the order were as follows:
- Provision was made for payment of Mr Croke's costs, agreed at $17,500, out of the restrained property (par 10).
- Mr Visser and Ms Lewis were to pay the Commission's costs, agreed at $50,000 (par 11).
- Proceeds assessment orders in the sum of $265,500 were made against both Mr Visser and Ms Lewis (pars 12 and 13). The intent was a proceeds assessment order totalling $265,500 for which Mr Visser and Ms Lewis were jointly and severally liable, so that payment of one order would satisfy the other.
- Provision was made for a stay of execution of the proceeds assessment orders and the costs orders until a specified date, and for a deferral of the date from which interest on those orders under s 101 of the Civil Procedure Act 2005 would run (pars 16 and 17).
On 15 January 2009 Mr Visser filed a motion that the consent order be set aside, and it is that motion which came before me. A number of procedural steps were taken before and during the hearing of the motion, which it not necessary to recite in any detail. Mr Visser prepared the motion and a supporting affidavit himself, and was unrepresented at the hearing. It is sufficient to say that the motion sought a re-hearing under s 42 of the Civil Procedure Act 2005. Clearly, this was misconceived as that section is concerned with an application for re-hearing of proceedings by a party aggrieved by an arbitral award. At the hearing, with the consent of the Commission, Mr Visser filed an amended motion seeking relief under the Contracts Review Act 1980. Also at the hearing, again with the Commission's consent, Ms Lewis was joined as a co-applicant in the motion.
There were three bases for the application:
A substantial payment had been made to Mr Mark Standen, then a senior officer of the Commission, in satisfaction of the Commission's claim.
Mr Visser had not given Mr Croke authority to sign the consent order on his behalf.
Ms Lewis signed the consent order under pressure from the Commission, without understanding the import of the document.
Mr Visser read an affidavit and gave oral evidence. Ms Lewis was permitted to give oral evidence without having prepared an affidavit, yet again without objection by the Commission. There is no need to examine the relevant provisions of the Contracts Review Act because I am satisfied that the evidence does not establish any basis for relief under that Act.
Mr Standen
After I heard the application, as is well known, Mr Standen was dealt with for serious drug offences in which he was involved with two other men, Bakhos Jalalaty and James Kinch. Mr Visser's evidence, put shortly, was that in April 2007 he had arranged for $120,000 to be paid on his behalf to Mr Standen by Mr Kinch. As he put it in his affidavit, the money "would be regarded as full payment of the Commission's claim", and it was to have the immediate benefit that a caveat over the title to the Heathcote property following the restraining order would be lifted.
At the hearing Mr Visser had secured the attendance of Mr Standen and Mr Jalalaty to give evidence. Both of them were at the court in custody. Mr Visser called Mr Jalalaty, apparently in the expectation that he would give evidence of, or relating to, the payment to Mr Standen. Mr Jalalaty denied any knowledge of any such payment. He said that he had made a number of payments to Mr Standen, including one of $25,000 early in April 2008. However, he denied that that payment had anything to do with settling proceedings relating to Mr Visser. Indeed, he said that he had never heard of Mr Visser before the hearing.
In the light of that evidence, Mr Visser announced that he did not intend to call Mr Standen. Nevertheless, in his oral evidence he maintained that the payment had been made. He said that he arranged for the payment through Mr Kinch at a time when both he and Mr Kinch were in Holland. His evidence was that he then returned to Australia to deal with the charges outstanding against him, in the belief that "the Crime Commission debt was settled." He also maintained that the payment was made in good faith to settle the proceedings, although in cross-examination by Mr Temby QC, for the Commission, he agreed that it was common knowledge among the criminal fraternity that Mr Standen was taking money corruptly and, to his knowledge, the relationship between Mr Standen and Mr Kinch was corrupt.
I cannot accept Mr Visser's evidence that this payment was made. As Mr Temby pointed out, no reference was made to the issue when the application was filed in January 2009. That application was based only upon the assertions that Mr Croke had no authority to sign the consent order on his behalf and that Ms Lewis signed it under duress. Mr Visser first raised the matter of payment to Mr Standen in an interview with Commission officers on 15 April 2009. His evidence about it stands alone, unsupported by any other evidence. He is a man with a substantial criminal history. Of course, that of itself does not necessarily mean that he should not be believed, but it heightens the need for careful scrutiny of his testimony. As will be seen, I also reject his evidence about his dealings with Mr Croke, and my assessment of that evidence casts serious doubt upon his credibility generally.
I should add that even if he had arranged payment for Mr Standen in the circumstances as he described them, that payment would clearly have been corrupt and received without the Commission's authority, and he could not have believed otherwise. In that event, such a payment could not found a claim for relief under the Contracts Review Act.
Mr Croke
In his affidavit Mr Visser asserted that he had not authorised Mr Croke to sign the consent order on his behalf, and that Mr Croke's doing so was the result of a "misunderstanding" on his part. The evidence did not identify with any clarity what that misunderstanding was said to be. It seems that Mr Croke was acting for Mr Visser in the criminal proceedings, but when he was asked to confirm in cross-examination that Mr Croke also represented him in the Commission's proceedings, he replied, "Well, I didn't know about that." He also said that he did not see the consent order until November 2008. The cross-examination continued:
"Q. So you never spoke to Croke about the consent order or the proceedings in which the consent order was filed until months after the consent order had been filed?
A. That's correct.
Q. So you're saying Croke signed you up to a heavy financial commitment just all on his own?
A. Yes."
This evidence is surprising enough on its face but, in any event, it cannot stand with other evidence in the case which is beyond question. Mr Visser's own evidence was that, while he was overseas, he had contact with Mr Croke on two occasions. An internal memo between two officers of the Commission, Mr Robert Davis and Mr Jonathon Spark, of 20 February 2008 (while Mr Visser was overseas) recorded that Mr Croke had been in touch with the Commission on Mr Visser's behalf, saying that his client wished to settle the confiscation proceedings. What was being proposed was payment to the Commission of a sum equal to 50% of the value of the Heathcote home. Mr Spark gave evidence that the amount of the proceeds assessment orders in the consent order, $265,500, represented half the value of the home.
Prison records established, and Mr Visser agreed, that between his return to Australia on 14 May 2008 and the filing of the consent order two weeks later, Mr Croke visited him in custody on three occasions. In cross-examination he denied that they had discussed the Crime Commission proceedings concerning the house, but neither in his affidavit nor in his oral evidence did he volunteer what was the topic of conversation on those occasions. The inference that Mr Croke was visiting him in relation to the proposed consent order is clearly available. That Mr Croke was instructed in relation to the consent order is also apparent from the evidence of the two Commission officers to whom I have referred, Mr Spark and Mr Davis, concerning their dealings with Ms Lewis. I shall turn to that matter later in these reasons.
Mr Croke continued to visit Mr Visser in custody from mid-2008 until October 2009. Mr Visser's application to set aside the consent order, it will be remembered, had been filed in January 2009. On 21 April 2009 Mr Croke wrote to the Commission to convey his instructions that the application was no longer to proceed, but that a variation was sought to pars 16 and 17 of the consent order, providing for deferral of payment of the proceeds assessment order and of the accrual of interest. A week later, Mr Temby's instructing solicitor, Ms Bishop, informed Mr Croke by e-mail of the Commission's consent to the variation. In cross-examination Mr Visser denied that Mr Croke had written the letter of 21 April on his instructions. However, Mr Croke had visited him two days earlier, on 19 April, and on this occasion also it is reasonable to infer that the visit related to the matters raised in the letter.
In the event, an amended consent order was prepared in draft but was not filed. According to Mr Visser, in late October 2009 he had a conference with Mr Gregory Jones of counsel, instructed by Mr Croke. His evidence was that Mr Jones gave him the amended order and told him that he should not pursue his application to set aside the consent order because that would get Mr Croke "in a lot of trouble." At this time Mr Visser was yet to be sentenced for the drug offences. Put shortly, the effect of his evidence was that he told Mr Jones that he would sign the amended order but that it was not to be filed unless his sentence provided for a release date on or before July 2010. He said that he provided written instructions to Mr Croke to that effect. The sentence which was imposed was, as I have said, substantial and the effective non-parole period expired much later than July 2010.
Here again, Mr Visser's evidence on this issue stands alone. Not only is it unsupported by the other evidence, it is inconsistent with it. He did not produce evidence from Mr Croke (or Mr Jones), despite being warned by Mr Temby at a directions hearing before a registrar in February 2009 that it would be difficult to imagine any relief being granted in the absence of an affidavit from Mr Croke. I am satisfied that he was aware of the import of the consent order before it was executed and that he did instruct Mr Croke to sign it on his behalf. This is consistent with the course of events which I have described. In any event, the suggestion that Mr Croke took it upon himself to negotiate the consent order and sign it without instructions is absurd. I also do not accept his evidence about the conference with Mr Jones, although it is not necessary for present purposes to reach a concluded view about that incident.
Ms Lewis
In her evidence Ms Lewis acknowledged having signed the consent order, although she denied that Mr Croke witnessed her signature. She said, however, that she did not understand the document and that Mr Croke did not explain it before she signed it. She said that she could not contact Mr Croke, describing him as "an invisible man." She denied that she had spoken to him about negotiations with the Crime Commission or that she had instructed him in relation to their daughter's interest in the home.
She complained that she was under a great deal of stress at the time, that she had a number of health problems and had had a hysterectomy. Her evidence about her health and, in particular, the hysterectomy was confirmed by medical certificates which were in evidence. She had undergone that procedure after Mr Visser had absconded and while he was overseas, at a time when she was left with the care of their two children.
She did say that before she signed the consent order she spoke by phone to someone at the Crime Commission, who told her that she "was signing for a caveat" so that the house could not be sold. She knew this man as "Robert", and it appears to be a reference to Mr Robert Davis. She described him as a liar, but at no stage in her evidence did she explain what it was he was said to have lied about. I should add that, although the motion was expressed to be based partly upon the assertion that the Commission applied pressure to Ms Lewis to sign the consent order, she gave no evidence to that effect.
Mr Visser called both Mr Davis and Mr Spark to give evidence. Mr Davis did not believe that he had spoken to Ms Lewis in May 2008 before she signed the consent order, as he had no file note of such a conversation. He did have a note of a phone conversation with her in November 2008, directed primarily to the deferred date for payment of the proceeds assessment orders in cl 16 of the consent order. He also had a note of a telephone call in May 2009, in which she was distressed and angry, claiming that he had forced her to sign the order and had lied to her. He said that he could not calm her down, and that he terminated the call and reported details of it to Mr Spark.
There were admitted into evidence copies of two fax transmissions from him to Mr Croke. In the first, on 13 May 2008, he noted that Ms Lewis had called the Commission that day, saying that she wanted to sign the consent order but had been unable to contact Mr Croke over the last few days. He asked Mr Croke to contact her as soon as possible to make arrangements to have the order signed. In the second, on 21 May 2008, he told Mr Croke that Ms Lewis had spoken recently to Mr Spark, saying that she intended to go to Mr Croke's office to sign the consent order but she had made a number of notes on the copy which Mr Croke had provided to her. He enquired whether Mr Croke required a fresh copy of the order.
From the evidence of Mr Spark it emerged that it was he to whom Ms Lewis spoke by phone on 13 May, and Mr Davis sent the fax to Mr Croke that day on his instructions. A file note recorded that he spoke to Ms Lewis, who was upset and agitated. She asked him to explain the consent order and he did so as best he could, while telling her that he could not give her legal advice. He could not recall the conversation in detail and could not comment on whether she fully understood it.
Significantly, Mr Temby introduced into evidence a handwritten letter from Ms Lewis to Mr Spark of the following day, 14 May. In the letter she thanked Mr Spark for his help, saying that his "kindness was appreciated." She asked for an "itemised list" of the Commission's costs of $50,000 referred to in the consent order, adding that she was "sorry to be a pain after your kindness ... ." She also said that she had written a letter to Mr Croke that day, complaining that calls she had made to him had not been returned and saying that she would maintain her efforts to contact him. Confronted with this letter in cross-examination, Ms Lewis acknowledged that she had written it but could say no more than she was "very sorry for writing it because it's a big lie." That assertion remained unexplained.
I accept that at the time Ms Lewis signed the consent order she was under considerable stress because of the circumstances in which she found herself. It does not follow, however, that she was unaware of what she was signing or that she signed the document under any form of duress.
The prison records disclose that she visited Mr Visser on 19 May 2008 and again on 25 May, the day the consent order was signed. She said that on those occasions she vented her anger about the difficult circumstances she and the children had faced in his absence, and I do not doubt that that is so. However, she denied that there was any discussion about the Crime Commission proceedings, which I cannot accept. Nor do I accept that she did not speak to Mr Croke about the negotiations with the Commission or her denial that she instructed him on behalf of her daughter. It may be that she had difficulty contacting Mr Croke, but it is clear from the fax transmissions and her letter of 14 May that she had been in communication with him about the matter. As I have said, she did act as her daughter's tutor. She signed a consent to do so also on 25 May, and that document was filed with the consent order three days later.
I accept the evidence of Mr Davis and Mr Spark, both of whom presented as frank and forthright witnesses, relying in large part upon contemporaneous file notes for their account of events. There is no evidence that either of them applied any pressure to Ms Lewis or in any way treated her improperly. The evidence is clearly to the contrary and, in particular, I accept Mr Spark's evidence that he explained the order to her before she signed it.
On this issue also, of course, I have no evidence from Mr Croke. Ms Lewis's enquiry in her letter of 14 May about the Commission's costs, together with the evidence that she had made notes on the copy of the consent order which Mr Croke had given her, conveys that she had given her attention to the provisions in the document. Her later telephone conversations with Mr Davis, particularly that of 13 May 2009, suggest that she may have come to regret signing the order. Nevertheless, I am satisfied that at the time she signed it she did so voluntarily, aware of its import.
Conclusion
Whether the Contracts Review Act would apply to a consent order such as this is not a matter I need to decide. There is also force in Mr Temby's submission that the motion does not call upon me to dispense justice "at large" and that, whatever might have been the circumstances leading to the consent order, there could be no justification for my setting aside an order which on the face of it had been duly entered, signed by the solicitor on the record for Mr Visser and by Ms Lewis for herself and on behalf of their daughter. However, I have carefully examined the evidence and am satisfied that it establishes no basis for a finding that the consent order was founded upon a contract which was unjust within the meaning of s 7 of the Contracts Review Act, and for setting it aside.
The motion is dismissed. If necessary, I shall hear the parties on costs.
**********
Decision last updated: 13 September 2012
0
3