State of Qld v Brooks

[2005] QSC 204

SUPREME COURT OF QUEENSLAND

CITATION:

State of Qld v Brooks [2005] QSC 204

PARTIES:

STATE OF QUEENSLAND
(applicant)
v
DALE RICHARD BROOKS
(respondent)

FILE NO:

BS1763 of 2005

DIVISION:

Trial Division

PROCEEDING:

Application

DELIVERED ON:

22 July 2005

DELIVERED AT:

Supreme Court at Brisbane

HEARING DATE:

20 July 2005

JUDGE:

Wilson J

ORDER:

1.   Pursuant to ss 37(1) and 38(1)(c) of the Criminal Proceeds Confiscation Act 2002 DALE RICHARD BROOKS attend for examination on oath before a Registrar of the Court commencing on 22 August 2005

2.   Pursuant to ss 37(1) and 38(1)(c) of the Criminal Proceeds Confiscation Act 2002 LEE PATRICIA McCABE attend for examination on oath before a Registrar of the Court commencing on 22 August 2005

3.   The Applicant give to each of the abovenamed DALE RICHARD BROOKS and LEE PATRICIA McCABE a written notice of the date and place at which each examinee is to attend for examination

4.   The Amended Application for exclusion from forfeiture order filed by the Respondent on 5 July 2005 be adjourned from 20 July 2005 to a date to be fixed on 3 business days notice by any party to the other

5.   The four applications to be listed for mention on 3 August 2005, with a view to their being reviewed when the application by the Crime and Misconduct Commission is heard

6.   Costs reserved

CATCHWORDS:

CRIMINAL LAW – FEDERAL AND STATE INVESTIGATIVE AUTHORITIES – QUEENSLAND –where restraining order pursuant to Criminal Proceeds Confiscation Act 2002 – where such order may include an examination order – whether appropriate to make examination order – where delay by the State – where third party interests affected by the restraining order

Criminal Proceeds Confiscation Act 2002 (Qld), s 28, s 31, ss 37-38, s 65

COUNSEL:

J Rolls for the applicant
S Di Carlo for the respondent

SOLICITORS:

The Director of Public Prosecutions for the applicant
Paul Carter & Associates for the respondent

1. Wilson J: On 28 February 2005, on an application by the State of Queensland, Muir J heard an application for an order restraining property of Dale Richard Brooks pursuant to ss 28(3)(a)(iii) and 31(1) of the Criminal Proceeds Confiscation Act 2002. The application was supported by affidavits by David Leslie Goody, principal financial investigator of the CMC, and David Malcolm Graham, a police officer.

1. From December 2003 a joint operation between QPS and the Australian Crime Commission had been conducted into the drug related activities of Brooks. A CPO had been employed in the course of that operation. Brooks was about to be charged with a number of “serious criminal offences” within the meaning of the Criminal Proceeds Confiscation Act.

1. Graham had had access to and listened to tape recorded conversations between Brooks and the CPO. 

1. His Honour made an order restraining all of Brooks’ property. Without derogating from its generality, the order went on to list 6 pieces of property which were restrained. The order was amended by Atkinson J on 23 June 2005 expressly to include a property at Kyogle in northern NSW. It seems that the existence of this further property had come to the attention of the CMC on further perusal of the tape recorded conversations between Brooks and the CPO.

1. As frequently happens in proceedings under this legislation, a number of other applications are now pending –

(a) an application for forfeiture filed by the State on 10 March 2005 (and amended applications filed on 5 May 2005 and 15 July 2005);

(b) an application for an exclusion order filed by Brooks on 1 June 2005;

(c) an application for examination of Brooks and his wife Lee Patricia McCabe filed by the State on 27 June 2005;

(d) an application for a proceeds assessment order filed by the State on 7 July 2005.

1. A multiplicity of applications has resulted in a multiplicity of return dates, with attendant expense and inconvenience, especially to Brooks and McCabe. At my direction, the 4 applications were listed on 20 July 2005. On that date–

(a) the forfeiture application was adjourned to a date to be fixed to be brought on 3 business days’ notice by either party to the other;

(b) the application for a proceeds assessment order was adjourned with directions for the applicant to file and serve material by 8 August 2005 and the respondent to do so by 8 September 2005, with liberty to apply on 2 days’ notice.

1. The application for a proceeds assessment order had been filed without supporting material. Counsel for the State informed the Court that time was still needed to file supporting material because of the absence of one witness overseas and difficulty in contacting another who is a CPO. Counsel for Brooks justifiably complained about the State’s delay in prosecuting this application while his client’s property and that of Ms Brooks were restrained. The directions were given in order to progress the whole matter, and in particular the application for a proceeds assessment order.

1. Under s 37 the Court may make the other orders in relation to a restraining order that it considers appropriate – and such other order may include an examination order under s 38. An examination order may be made against the person whose property is restrained; it may also be made against his spouse. Counsel for the State submitted that it was appropriate to make an examination order against both Brooks and McCabe because –

(a) Brooks had not complied with para 8 of the order of Muir J -

“Under s.38(1)(f) of the Act and on the terms provided for in s.42 of the Act, the respondent give to the Crime and Misconduct Commission –

a)within 10 days of service of this order a sworn statement of particulars of property in excess of $5000 value owned by the respondent or under the effective control of the respondent as at the date of the order;

b)within 21 days of service of this order a sworn statement of particulars of property (including details of any dealing with property ) in excess of $5000 value in which the respondent has had an interest in the last 6 years.”

(b) the late discovery of the Kyogle property provided reason to think there Brooks may have other property.

To be fair, counsel conceded that the disclosure of this property to the CPO was part of criminal investigations conducted in 2003. The Kyogle property was transferred to Brooks in 1992. He transferred it to McCabe in 2001. There is no explanation for the State’s not having discovered it when it conducted searches prior to the application before Muir J. Counsel for the State told the Court that his client’s searches did extend interstate.

1. Again counsel for Brooks was very critical of delays by the State, which he submitted were prejudicing his client and McCabe. He submitted that the material showed that by astute property investment Brooks and McCabe had amassed assets of approximately $1m.  He drew attention to a financial analysis of the affairs of Brooks and McCabe performed by a forensic accountant (Ms Bundesen) in May 2005 as indicative of the diligence with which his client had responded to the restraining order and as illustrative of what he submitted the State should have undertaken, but had apparently not undertaken. That analysis related to the various items of property in the original restraining order. It did not deal with the Kyogle property, although a subsequent affidavit by Ms Bundesen did relate to it. When pressed on the question of prejudice, counsel for Brooks identified the following –

(a) the mere passage of time;

(b) that a third party, McCabe, was affected by the restraining order (I took him to mean because of her interest in the Kyogle property and also in a property at Goodna which was restrained);

(c) the strength of the material provided (I took him to mean that the financial analysis showed that the various items of property had been acquired legitimately);

(d) that delay in obtaining an examination order and in conducting an examination was in turn delaying the determination of his client’s application for an exclusion order.

1. Certain directions were made by consent by Dutney J on 21 April 2005, including that any application by the respondent for an exclusion order be filed and served by 20 May 2005, and that any application for an examination be filed and served by 10 June 2005. In fact the application for an exclusion order was not filed until 1 June 2005 and by agreement the application for examinations was not filed until 27 June 2005. To an extent, then, the respondent has acquiesced in the pace at which these matters have progressed so far.

1. If the State proposes to oppose the exclusion application, it must give the respondent notice of its intention to do so (s 65(6)) and notice of its grounds for doing so (s 65(7)). By s 65 (8) -

“(8)  However –

(a)the State is not required to give the notice; and

(b)the application may not be heard;

until the DPP has had a reasonable opportunity to examine the applicant under an examination order, whether or not an examination order has already been made.”

1. While I am inclined to think that the State could and probably should have filed and prosecuted its applications more speedily, this is not a case where its delay is such that it should be denied an examination order. What is important is that the examinations take place as soon as practicable in all the circumstances. A Senior Deputy Registrar of the Court has supplied the solicitors with various dates on which the examinations could be held. The earliest are 2 and 3 August 2005. The others are 22 - 24 August; 29 August, 12 - 14; September; 19 - 21 September; and 26 - 28 September 2005.

1. These dates have become available since these matters were before me on 11 July 2005. Until a day or so ago the State had been working on the assumption that the earliest dates available were 29 and 30 September. The State's position is that it could not be ready for the examinations before 12 September, because it is still gathering information. An application has been filed by the CMC to obtain documents from interstate: it is returnable on 3 August 2005. I am not persuaded that the State could not be ready by 22 - 24 August.

1. I am going to make orders for the examination of Brooks and McCabe before a Registrar of the Court commencing on 22 August 2005.

1. The application for an exclusion order will be adjourned to a date to be fixed on 3 business days notice by any party to the other.

1. It is important that there be ongoing supervision and review of these matters. To that end I direct that the 4 applications be listed for mention on 3 August 2005, with a view to their being reviewed when the application by the CMC is heard.