State of Queensland v Fewings
[2006] QSC 177
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- Unreported Judgment
- State of Queensland v Fewings[2006] QSC 177
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State of Queensland v Fewings[2006] QSC 177
State of Queensland v Fewings[2006] QSC 177
SUPREME COURT OF QUEENSLAND
CITATION: | State of Queensland v Fewings [2006] QSC 177 |
PARTIES: | WAYNE MALCOLM FEWINGS |
FILE NO: | BS11202 of 2003 |
DIVISION: | Trial Division |
PROCEEDING: | Application |
DELIVERED ON: | 3 July 2006 |
DELIVERED AT: | Brisbane |
HEARING DATE: | 29 June 2006 |
JUDGE: | Wilson J |
ORDER: |
|
CATCHWORDS: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – JUDGMENT AND PUNISHMENT – ORDERS FOR COMPENSATION, REPARATION, RESTITUTION, FORFEITURE AND OTHER MATTERS RELATING TO DISPOSAL OF PROPERTY – FORFEITURE OR CONFISCATION – applications for forfeiture, exclusion and assessment of proceeds under the Criminal Proceeds Confiscation Act 2002 (QLD) – where DPP is entitled to a reasonable opportunity to examine the applicant under an examination order – where examination adjourned pending decision of the Court of Appeal in another matter – whether there has been a reasonable opportunity to examine – where transcript of examination of another person is sought – where disclosure is sought prior to applicant’s own examination – whether principles of procedural fairness apply to the examination process, and if they do, whether they require disclosure of the transcript Criminal Proceeds Confiscation Act 2002 (QLD), s 4, s 38, s 39B, s 39D, s 58, s 65(7), s 65(8), s 66, s 68, s 70, s 78, s 258 Meredith v State of Queensland [2006] QSC 009, considered Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, applied Cornall v AB [1995] 1 VR 372, considered |
COUNSEL: | A J Kimmins for the applicant |
SOLICITORS: | Herdlaw Solicitors for the applicant |
- Wilson J: On 4 December 2003, Mullins J made an order restraining the property of Wayne Malcolm Fewings ("Fewings") pursuant to sections 28(3)(a)(iii) and 31(1) of the Criminal Proceeds Confiscation Act 2002 (Qld).
- Her Honour made an order restraining all of Fewings property’ and without derogating from its generality, the order went on to list eight items of property which were restrained. It included property in various companies' names, shares in companies, and property in the joint names of Fewings and his mother.
- Her Honour's order included, in paragraph 11:
"Under section 38(1)(c) of the Act, the respondent attend on a date to be fixed, written notice of which is to be served on him or his legal representative for examination before the Registrar of the Court".
- On 5 December 2003, Fewings was charged with trafficking in cannabis sativa between 1 January 1999 and 6 December 2003 and with eight counts of supplying cannabis sativa.
- On 23 December 2003, the State of Queensland filed an application under section 56 of the Act for forfeiture of property.
- On 16 February 2004, Byrne J gave directions. So far as relevant, his Honour ordered that Fewings and his mother and a named company file and serve any application for an exclusion order under section 65 on or before 16 March 2004, and that the State file and serve affidavit material in reply on or before the expiration of six weeks of the holding of the examination of Fewings.
- On 25 February 2004, Byrne J made an order pursuant to section 38(1)(c) that Murray Scott Leech attend for examination before the Registrar.
- On 16 March 2004, three applications for exclusion orders were filed, one by Fewings and two by companies: see section 65.
- On 30 March 2004, the State filed an application under sections 77(1) and 78(1) for a proceeds assessment order in the sum of $665,760.00.
- On 13 April 2004, Fryberg J made an order under section 38(1)(c) that Timothy Andrew Stilwell attend for examination before the Registrar about the affairs of Fewings.
- As I shall explain, the examination of Fewings pursuant to the order of Justice Mullins has commenced, but it has been adjourned part-heard, and the applications for forfeiture, exclusion and a proceeds assessment order remain pending. It was common ground that these applications should be heard together.
- There are two applications now before the Court; one, for directions in relation to the three applications, including setting a hearing date for the exclusion application; and two, that a transcript of the examination of Stilwell be published and a copy released to Fewings or any barrister or solicitor retained by him.
- So far as the application for an exclusion order is concerned, section 65(7) and (8) provide as follows:
"(7)The Court must give the applicant notice of the grounds for opposing the application;
(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."
- The issue is whether the DPP has had such a reasonable opportunity.
- It is necessary to canvass the facts in a little more detail. As I have said, Mullins J made an order for an examination on 4 December 2003. The examination of Leech took place on 1 March 2004, and at its conclusion the Deputy Registrar made a non publication order with respect to the transcript. (There was subsequently an order for publication of the transcript and the release of a copy of it to Fewings and his legal representative, made by Fryberg J on 15 May 2006.)
- The exclusion application was filed on 16 March 2004. On 24 May 2004, the examination of Stilwell took place and a non-publication order was made by the Deputy Registrar.
- The examination of Fewings commenced on 29 September 2005. It was adjourned to a date to be fixed. The parties subsequently agreed to set it down for 13 and 14 March 2006.
- On 3 February 2006, Justice Byrne handed down his decision in Meredith v The State of Queensland.[1] His Honour considered the scope of an examination permissible under section 38(1)(c)(i), in particular the meaning of "affairs". In paragraph 28 of his judgment, he concluded that it did not extend to matters that have nothing to do with property or financial circumstances and instead relate exclusively to involvement in "serious criminal activity". Within 28 days of that decision the State of Queensland lodged an appeal.
- The significance of this for the present case was summarised by Mr Hinson, SC, for the State in his oral submissions at page 25 of the transcript. Fewings has been charged with particular offences, but in both the forfeiture proceeding and the proceeds assessment order application, the State seeks to examine him about activities beyond those with which he has already been charged. The State is entitled to show engagement in serious crime related activity within a period of six years, before the relevant applications were filed: see sections 78 and 58.
- On 13 March 2006, the examination of Fewings was adjourned by consent to a date to be fixed. The parties agreed that it should be brought on after the Court of Appeal decision in Meredith.
- On 19 May 2006, the criminal matter was mentioned and listed for hearing on 10 August 2006, when it is expected to be dealt with by way of plea of guilty and sentence.
- On 6 June 2006, the Court of Appeal notified the parties in the Meredith matter that it had fixed the hearing date for the appeal as 9 October 2006.
- These two applications were filed on 13 June 2006 and served on 22 June 2006. They were heard on 29 June 2006.
- Under section 65(8) the question is whether the DPP has had a reasonable opportunity to examine Fewings under the examination order made on 4 December 2003. That examination did not commence until 29 September 2005 and there is really no explanation for the delay between those two dates. The examinations of Leech and Stilwell had been completed in March and May 2004 respectively.
- Mr Kimmins of counsel for Fewings submitted that the Court of Appeal decision in Meredith may well not be available until the end of this year and that there is the prospect of a further appeal to the High Court, given the importance of the matter and noting that Byrne J's view was different from that taken by the New South Wales Supreme Court on similar legislation in New South Wales Crime Commission v. Murchie.[2]
- What is a reasonable opportunity needs to be considered in the statutory context and in the factual context. The objects of the Act are set out in section 4. In particular, subsections (1) and 2(a) and (b) provide as follows:
"(1)The main object of this Act is to remove the financial gain and increase the financial loss associated with illegal activity whether or not a particular person is convicted of an offence because of the activity;
(2) It is also an important object of this Act -
(a)to ensure that property rights are affected by orders under this Act, including orders limiting a person's ability to deal with the property, only through procedures ensuring persons who may be affected by the orders are given a reasonable opportunity to establish the lawfulness of the activity through which they acquired the relevant property rights; and
(b)to protect property honestly acquired by persons innocent of illegal activity from forfeiture and other orders affecting property."
- Under section 56 the State may apply for an order forfeiting to it particular property restrained under a restraining order. Section 58 deals with making the forfeiture order and it provides as follows:
"(1) The Supreme Court must make a forfeiture order if the Court finds it is more probable than not that -
(a)for property restrained because of an application relating to property mentioned in section 28(3)(a) or (b) - the prescribed respondent mentioned in that application engaged during the limitation period in a serious crime related activity; or
(b)for property restrained because of an application relating to property mentioned in section 28(3)(c) - the property is serious crime derived property because of a serious crime related activity that happened during the limitation period.
...
(5)A finding of the court under subsection (1) -
(a)need not be based on a finding about the commission of a particular offence; and
(b)may be based on a finding that some offence that is a serious crime related activity was committed.
(6)Also, the raising of a doubt whether a person engaged in a serious crime related activity is not of itself enough to avoid a finding on which a forfeiture order may be made.
...
(9)In this section -
limitation period -
(a)means the period of 6 years before the date the application for the order is made; and
(b)includes periods before and after the commencement of this section.
59Effect of forfeiture order
(1)On the making of a forfeiture order the property the subject of the order -
(a)is forfeited to the State; and
(b)vests absolutely in the State.
(2)Subsection (1)(b) is subject to the provisions of this Act under which the Supreme Court may make orders about the property vested or to be vested in the State."
- The provisions dealing with exclusion orders begin with section 65:
"65Exclusion of property from forfeiture order application
(1)This section applies if an application for a forfeiture order has been made but the application has not be decided.
(2)A person, including a prescribed respondent, who claims an interest in property to which the application relates may apply to the Supreme Court for an exclusion order.
(3)The applicant must give notice of the making of the application and the grounds for the application to the State and anyone else who has an interest in the property.
(4) The State must be a party to the application.
(5)Anyone else who is given notice of the application may appear at the hearing of the application.
(6)If the State proposes to oppose the application, the State must give the applicant notice of intention to oppose the application.
(7)The State must give the applicant notice of the grounds for opposing the application.
(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.
66Exclusion of property from forfeiture order
(1)A person, including a prescribed respondent, who claims an interest in property that is forfeited under a forfeiture order may apply to the Supreme Court for an exclusion order.
(2) Unless the court gives leave under section 67 -
(a)the application must be made within 6 months after the forfeiture order was made; and
(b)the following persons can not apply for an exclusion order -
(i)a person who was given notice of the application for the forfeiture order;
(ii)a person who appeared at the hearing of the application for the forfeiture order.
(3)For each application made under this section, including an application for leave the applicant must give notice of the making of the application and the grounds for the application to the State and anyone else who has an interest in the property.
(4)The State must be a party to the application.
(5)Anyone else who is given notice of the application may appear at the hearing of the application.
(6)If the State proposes to oppose the application, the State must give the applicant notice of intention to oppose the application.
(7)The State must give the applicant notice of the grounds for opposing the application.
(8)However -
(a)the State is not required to give the notice; and
- 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.
...
68Making of exclusion order
(1)The Supreme Court, on an application under section 65 or 66, may make an exclusion order.
(2)The Supreme Court must, and may only, make an exclusion order if it is satisfied -
(a)the applicant has or, apart from the forfeiture, would have, an interest in the property; and
(b)it is more probably than not that the property to which the application relates is not illegally acquired property.
...
70Effect of exclusion order
On the making of an exclusion order excluding an interest in property from an application for a forfeiture order, the restraining order applying to the restrained property stops having effect in relation to the excluded interest."
- This is a carefully crafted legislative scheme which seeks to balance the competing objectives of the Act.
- As to the factual context, Mr Hinson drew attention to the background of cooperative dealings between the parties. The matter was part heard in September 2005, then adjourned to a date to be fixed, then it was agreed that it should come back in March and it was agreed that it should be further adjourned pending the Court of Appeal decision. There has been no delay in the Court of Appeal.
- I have been informed this morning that the next available hearing dates for the examination convenient to counsel are between 11 and 15 September 2006. The resumed hearing is expected to take two days. Although these dates are before the Court of Appeal hearing date, I think that in all the circumstances, particularly the agreement reached by the parties in March, it cannot be said that the DPP has had a reasonable opportunity to examine Fewings.
- I turn now to the release of the transcript of Stilwell. Under section 38 an examination order may be made not only in relation to the person whose property is restrained. I note that orders were also made for the examination of Leech and Stilwell.
- Leech's transcript has been released to Fewings pursuant to Fryberg J's order made on 15 March 2006. In his evidence, Leech spoke of drug dealings with Fewings in a period up to and including 1998. He said that after that he handed over "his business" to Stilwell and made allegations that Stilwell had dealings with Fewings after 1998. Fewings wants the transcript to enable him to deal with Leech's testimony in due course. His solicitor said in a letter dated 7 June 2006 that Stilwell will have to be called (presumably by the State on the application for the proceeds assessment order) to corroborate Leech and that they want to cross-examine him, and that Stilwell's evidence is relevant to Fewings’ defence of the application for a proceeds assessment order.
- The State's position is that the transcript is not material which has been filed in support of either of its applications, and that unless and until it relies on that transcript in such applications there is no occasion for the Court to order that it be published.
- Further, Fewings has not yet been examined about his relationship and dealings with Stilwell, the scope of that examination depending on the outcome of the Court of Appeal decision in Meredith. The State submitted that to supply the transcript now may prejudice further examination of Fewings.
- The question is whether the principles of procedural fairness apply to the examination process, and if they do whether they require disclosure of the transcript. The procedure is essentially investigative in character. Of course what is decisive is the nature of the particular power, not the character of the proceeding which attends it. In other words, it is necessary to look at the consequences of the investigation. See Ainsworth v. CJC,[3] and Cornall v. AB.[4]
- A restraining order is an essential precondition to the making of a forfeiture order. An examination order is ancillary to a restraining order. An examination order facilitates the identification and preservation of property pending the determination of the forfeiture proceeding. See the analysis of Byrne J in Meredith.
- Under section 39B, the examination is conducted in private. The Registrar may give directions about who may be present during the examination. Those entitled to be present are a lawyer of the person being examined, an appropriate officer, a Commission officer, a lawyer representing an appropriate officer or Commission officer, and any person entitled to be present because of a direction by the Registrar.
- Significantly, there is no express mention of a person such as Fewings, whose property is being restrained, being entitled to be present at the examination of other stated persons.
- Under section 39D, the examination is to be recorded and transcribed. Sub-section (4) provides that the Registrar may impose on the person being examined conditions he considers reasonably necessary to prevent improper disclosure of the record, and section 258 provides as follows:
"Publication of proceedings
If a proceeding is started under this Act, the Supreme Court may make the orders it considers appropriate about the publication of any matter arising under this Act."
- By section 40 a person being examined is not excused from answering a question, or producing a document or thing, on the ground that doing so may tend to incriminate him or make him liable to a forfeiture or penalty, or that it would be breach of an obligation not to disclose the existence or contents of the document, or that it would be the subject of legal professional privilege.
- However there are restrictions in section 40(2) upon the use that may be made of statements or disclosures made by a person in an examination under such an order.
- So the exercise of the power of examination will not, in itself, result in a finding or determination adverse to Fewings' interests.
- I agree with Mr Hinson of counsel that to order the release of Stilwell's transcript prior to completion of the Fewings' examination may hinder investigations in that it may put Fewings in a position where he could tailor his evidence to that of Stilwell.
- Mr Hinson acknowledges that if the transcript is used in the forfeiture or proceeds assessment application there will be an obligation to give it to Fewings so that he may answer it.
- In the circumstances I refuse the application for disclosure.
- In the application for directions, I will make an order in terms of paragraph 16 of the submissions of the State of Queensland, with the further order that costs be reserved.
- On the application for the publication of the transcript I dismiss the application with costs.