R v McCarthy

[1998] QSC 284

IN THE SUPREME COURT
OF QUEENSLAND

Brisbane  

Before the Hon. Mr Justice Mackenzie

[R v McCarthy]

THE QUEEN

v

NEVILLE THOMAS McCARTHY
  Respondent

ORDER - MACKENZIE J.

Judgment delivered 17 December 1998

CATCHWORDS: CRIMINAL LAW - confiscation of moneys derived from criminal activity - question adjourned until the conclusion of the co-accused’s trial.

Counsel:Mr C Chowdhury for the applicant

Mr C.F. Wilson for the respondent

Solicitors:Crown Solicitor for the applicant

Bell-Miller Solicitors for the respondent

Hearing date:          25 September 1998

IN THE SUPREME COURT
OF QUEENSLAND

Brisbane  

Before the Hon. Mr Justice Mackenzie

[R v McCarthy]

THE QUEEN

v

NEVILLE THOMAS McCARTHY
  Respondent

ORDER - MACKENZIE J.

Judgment delivered 17 December 1998

1. When this matter was before me on 25 September 1998 for sentence the Crown applied for orders pursuant to s.17 and 34 of the Crimes (Confiscation) Act 1989 in the sum of $35,100, said to be the value of the benefit derived by Neville Thomas McCarthy from the commission of certain serious offences. The notice of motion was opposed to the extent that it was disputed that the sum claimed was recoverable by the Crown since the majority of the money was paid by McCarthy to an associate Dennis Hack.

2. The issue of the appropriate principles to be applied was raised and further written submissions were requested and delivered.  The Crown acknowledged that on the material currently before the court there was room for argument as to the appropriate principle to apply since in at least some of the instances the respondent claimed that he retained only a relatively small sum of money and had passed on most of the moneys received to Hack.  The question whether he was a conduit or more independently involved may have different consequences. 

3. I reserved for further consideration whether I could resolve the issue on the material available to me.  I have come to the conclusion that it is preferable to wait until proceedings against Hack have been resolved, as the parties invited me to do if I was of opinion that the material was currently equivocal.  Since resolving the matter at this time may result in an unduly adverse finding against McCarthy, I have come to the conclusion that I should adjourn the matter further until the parties have had the opportunity to consider the position in the light of anything that emerges in the case of Hack.  Enquiries reveal that his trial will occur in the District Court in March, 1999.

4. I order that the further consideration of the notice of motion filed by leave on 25 September 1998 be adjourned to a date to be fixed.