State of Queensland v O'Brien
[2006] QSC 145
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- Appeal Determined (QCA)
- State of Queensland v O'Brien[2006] QSC 145
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State of Queensland v O'Brien[2006] QSC 145
State of Queensland v O'Brien[2006] QSC 145
SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION MUIR J | |
No 3879 of 2004 | |
STATE OF QUEENSLAND | Applicant |
and | |
JAMES THOMAS O'BRIEN | First Respondent |
and | |
MICHAEL PAUL FALZON | Second Respondent |
BRISBANE | |
DATE 22/06/2006 | |
ORDER |
- HIS HONOUR: This is an application for the stay of proceedings commenced by the State of Queensland against the respondent until conclusion of criminal proceedings against him commenced by indictment dated 19 December 2005.
- The subject civil proceedings are brought by the respondent State of Queensland under the Criminal Proceeds Confiscation Act 2002 on grounds that the applicant has trafficked in the drug methylamphetamine and has been engaged in its production and of course, that the property, the subject of the orders sought by the respondent are, to put it broadly, the proceeds of that conduct.
- I am informed by Mr Jennings who appears for the applicant, and there appears to be no dispute about this, that it is predicted that the trial of the criminal proceedings will take place at the end of this year, possibly in November. That is a consideration of some significance when it comes to the exercise of my discretion.
- The application is opposed by the respondent, Ms Brien, who appears on its behalf. She relies on a number of matters, including:
(a)The length of time these proceedings have been on foot,
(b)The provisions of section 93 of the Act
(c)The principle that the mere starting of criminal proceedings is not a sufficient ground to stay a confiscation proceeding.
- The latter ground overlaps somewhat with reliance on section 93 and with the contention that the respondent has the right to have its action tried in the ordinary course of the procedure and business of the Court. She refers to a number of authorities which support that proposition and also the proposition that an accused is not entitled, as a right, to have a Civil proceedings stayed because of a pending criminal proceeding.
- The authorities to which Mr Jennings referred established, to my satisfaction, that section 93 of_ the Act does not operate to exclude the power of this Court to grant a stay under the circumstances I am now considering. I do not think .it necessary to refer to all such authorities, I note that they are conveniently collected in State of Queensland v. Shaw 2003 QSC 436.
- In support of this application for a stay, Mr Jennings relies on matters almost too innumerable to mention but the main thrust of his argument concerns the protection of the right to silence and the maintenance of the privilege against self-incrimination, The principles in that regard and the authorities on which he relies are clearly and precisely stated in his outline of submissions which I will have marked as Exhibit 3 in these proceedings.
- The Crown case against the applicant in the criminal proceedings is largely a circumstantial one. One significant piece of evidence on which the Crown, it would seem, intends to rely is an analysis of the applicant's financial position, no doubt with a view to showing that his financial resources are explicable only by the conclusion that he has engaged in unlawful conduct such as that alleged against him.
- It is plain to me, on the material, that there is a high potential for any evidence adduced on an exclusion application to effectively remove the applicant's privilege against self-incrimination and dispense with the right to silence. An application for exclusion, depending on how it is framed, may amount to an admission which can be used against the applicant.
- When one looks at this matter broadly, if the matter is stayed for some months until the criminal trial has been completed, the respondent will suffer little in the way of prejudice but, on the other hand, if a stay is not granted, the potential prejudice to the applicant is quite grave.
- I have taken into account the length of time that these proceedings have been on foot and also the applicant's conduct in relation thereto. It seems to me that the applicant has engaged in conduct calculated to delay and frustrate the respondent in its progression of the application. There is, however, an innocent explanation for some of that. Upon the undertaking of the applicant by his counsel, until otherwise ordered, to within 21 days of the determination of the trial of the proceedings, the subject of the indictment dated 19 December 2005, file and serve an application under section 65 of the Criminal Proceeds Confiscation Act 2002 in respect of the application for a forfeiture order, the subject of these proceedings, together with the evidence upon which he intends to rely in support of that application, it is ordered in terms of the draft initialled by me. That is the one annexed to Mr Jennings 1 outline Exhibit 3. Paragraph 2 of the draft reads:
"The costs of and. incidental to the application filed 26 may 2006 be reserved."
- I include a paragraph 3:
"The parties have liberty to apply."