State of New South Wales v Sinclair

The State of New South Wales appealed to the New South Wales Court of Appeal against a decision of the Supreme Court of New South Wales concerning the interpretation of a statutory indemnity. The dispute arose from a claim brought by Mr Sinclair against the State, seeking to recover costs incurred in defending criminal proceedings. The core of the matter was whether the indemnity provided by section 10(1) of the *Crimes (Confiscation of Profits) Act 1985* (NSW) extended to cover the costs of defending the confiscation proceedings themselves, or only the costs of defending the underlying criminal charges.

The Court of Appeal was required to determine the proper construction of section 10(1) of the *Crimes (Confiscation of Profits) Act 1985* (NSW). Specifically, the court had to decide whether the indemnity granted to a person acquitted of an offence, which covered costs incurred in "proceedings for the offence," encompassed the costs of defending the subsequent confiscation proceedings initiated under the Act. The central legal issue was the scope of the phrase "proceedings for the offence" within the context of the statutory indemnity.

The Court of Appeal, comprising Gleeson CJ, Handley JA, and Powell JA, held that the phrase "proceedings for the offence" in section 10(1) of the *Crimes (Confiscation of Profits) Act 1985* (NSW) did not extend to the costs of defending confiscation proceedings. The court reasoned that confiscation proceedings were distinct from the criminal proceedings for the offence itself, even though they were initiated as a consequence of the offence. The indemnity was intended to cover costs incurred in defending the criminal charges, not the ancillary civil-like proceedings for the forfeiture of profits. Therefore, Mr Sinclair was not entitled to recover the costs of defending the confiscation proceedings under the indemnity. The appeal was allowed, and the order of the Supreme Court was set aside.