COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS v. DIEZ [2003] NSWSC 949

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS v. MAXIMILIANO DIEZ

1 HIS HONOUR: On 31 March 2003, after an extensive hearing, I made orders varying a restraining order granted under the Proceeds of Crime Act 1987 (Cth) to exclude certain property from the order and to declare that s.30 of that Act not apply to that property. I published a detailed judgment giving reasons for the making of those orders. 2 The effect of that judgment and those orders was to exclude from the operation of automatic forfeiture provisions under the Act the applicant's joint tenancy together with his wife in the family home, for the reason, in particular, that I had concluded that the applicant's interest in that property was not derived from unlawful activity and was lawfully acquired. I also held that it was in the public interest that the property should be excluded from the restraining order and hence from the forfeiture, having regard to the consequence that the forfeiture of the joint interest would occasion and, in particular, the hardship to the applicant's wife and family. I reserved the question of costs. 3 Subsequently, the parties have provided me with extensive written submissions on that question. The plaintiff, the Commonwealth Director of Public Prosecutions has, in its written submissions, submitted that the parties' entitlements to costs in these proceedings were entirely governed by s.101 of the Proceeds of Crime Act. That section reads as follows:- "(1) Where:- (a) a person brings, or appears at, proceedings under this Act before a court in order:- (i) to prevent a forfeiture order or restraining order from being made against property of the person; or (ii) to have property of the person excluded from a forfeiture order or restraining order; (b) the person is successful in those proceedings; and (c) the court is satisfied that the person was not involved in any way in the commission of the offence in respect of which the forfeiture order or restraining order was sought or made; the court may order the Commonwealth to pay all costs incurred by the person in connection with the proceedings or such part of those costs as is determined by the court. (2) The costs referred to in subsection (1) are not limited to costs of a kind that are normally recoverable by the successful party to civil proceedings." 4 The plaintiff submits that s.101 contains the only power to make an order for costs in the circumstances to which it speaks. It points out that the restraining order was sought in respect of a serious narcotics offence under the Customs Act 1901 (Cth), s.233B, in respect of which Mr. Diez was convicted and sentenced to imprisonment for life with a non-parole period of 25 years. The plaintiff submits that subsection (1)(a) and (b) plainly relate to the circumstances of this applicant and that plainly the court would not be satisfied that the applicant was not involved in any way in the commission of the offence in respect of which the restraining order was made. In those circumstances, it is submitted that there is no power for the court to order the Commonwealth to pay the costs of proceedings to which s.101 applies. The submission draws my attention to the decision of Simpson, J. in Commonwealth DPP v. Adjornay [2000] NSWSC 76. At paragraph 14, her Honour held:- "I am satisfied that, by reason of s.101, the defendant is not entitled to an award of costs. I might add that that conclusion is also consistent with the general tenor of the Act. A restraining order may be made even before a person has been charged with an offence. Property of that person is restrained pending the procedures relevant to the charge and to the proceeds of crime legislation. Guilt of the offence precludes a costs order, even where an exclusion order is made; it cannot be thought that the legislature intended to, or did, leave open an avenue for an award of costs in the specific circumstances that here appertain." 5 Similarly, in Bissett v. Commonwealth DPP (Supreme Court of Victoria, unreported 24 February 1993) Hayne, J. referred to the three conditions which needed to be met to allow a costs order to be made under s.101. His Honour concluded:- "The evident legislative intention disclosed by s.101 is that the Commonwealth should pay costs in cases where property is excluded from a restraining order and where the court is satisfied that the applicant was not involved in any way in the commission of the offence in respect of which that order was made. As I have said above, that is not this case. If there is a more general power to award costs, I do not consider that it should be exercised in favour of the applicant if all that is demonstrated is that the property in question was lawfully acquired. If Parliament had intended that costs should go to such an applicant there would seem no point in providing for an award of costs in the circumstances described in s.101; it would have been enough for Parliament to say that an order for costs may go if an applicant succeeds in having property excluded from a restraining order because such an exclusion will be made only if the applicant's interest in the property was lawfully acquired. By going further, and in particular by providing that costs may be awarded if the applicant was not involved in the offence, Parliament has clearly indicated that the bare fact of lawful acquisition is not sufficient to warrant an order being made for costs." 6 In particular, his Honour found such an order was not available because Mr. Bissett was involved in the commission of the offence in respect of which the restraining order was made. 7 It was submitted that various other cases in which orders for costs had been made were all explicable on the basis that they involved situations to which s.101 did not speak. 8 It was submitted that in the event that consideration might need to be given to whether the issue of costs might be dealt with otherwise than as provided for by s.101, eg., by way of the application of s.76 of the Supreme Court Act 1970 and s.64 of the Judiciary Act 1903, then the court should not exercise any discretion in favour of the defendant in having regard to the reasons for the making of the order, the defendant's involvement in the commission of the relevant offence and the conduct of the proceedings. It was pointed out that the undertaking given under s.44(10) was in relation to damages not costs and hence the undertaking gave no basis for an order. 9 On behalf of the applicant, it was accepted the applicant was convicted, but it was submitted this very fact meant his circumstances fell entirely outside s.101 and that the Act was thus silent concerning the entitlement to costs in his case. Such a submission disregards s.101(1)(c) in its natural effect. His conviction does not take his circumstances outside s.101. It establishes he was not a "person not involved in any way in the commission of the offence in respect of which the … restraining order was … made". 10 The purpose of the section is plainly to deal with the issue of costs where persons are innocent of the relevant crime. It is clear from the silence on costs otherwise under the Act that the costs entitlement is intended to be available only in the circumstances set out in s.101(1)(a). That silence was not intended to attract the general provisions of the Supreme Court Act 1970 and Rules but to exclude their application. 11 Section 101 requires for a person to have the prospect of an order for costs two conditions to be satisfied. Firstly, that the person be successful in the proceedings to have the property excluded from a forfeiture order, and, secondly, for the court to determine that that person was not involved in the commission of the relevant offence. Whatever be the position in other circumstances, whatever be the position where other applications under other provisions of the Act have been dealt with, it is plain enough that s.101 focuses upon the very circumstances dealt with by me when deciding this applicant's application and his involvement in the very offence which caused the restraining order to be made. 12 Even accepting the liberal approach referred to by the Victorian Court of Appeal in Fowkes v. Director of Public Prosecutions (1996) 88 A. Crim. R. 166, the express words of the provision, it seems to me, are intractable given that the very situation to which it adverts has occurred. I do not see that because it is possible to argue the effect might have been achieved if the provision had been drafted differently, I should consider that the provision as it stands is not clear and unambiguous. I consider the meaning patent. 13 Where a clear and specific provision has been made by the Act to limit such orders as might be made, I do not see that there are any presumptions or canons of interpretation that would lead me to conclude that that provision should be construed as meaning other than, as on its face and on a plain reading it appears to mean or as leaving room to imply into its operation other general provisions to the contrary. 14 I do not accept the submission that s.101 provides only for a right wider than that which might have been enjoyed under the general law such that it can be taken only to amplify the costs that might have been awarded. Further, accepting that the purpose of the provision was to allow the awarding of costs to innocent persons as is explained in Hansard and the explanatory memorandum, it does not follow that it left open the prospect of guilty persons receiving their costs in the circumstances to which the section speaks otherwise. Indeed, there would be little point to a specific express provision in favour of innocent persons if all persons including the guilty might receive costs. 15 The view, therefore, I take of this provision accords with the views taken by Simpson. and Hayne, JJ. Even had my view not accorded with theirs, I should follow their prior decisions, in the absence of an appeal decision, at least unless I was satisfied they were plainly wrong. Thus, both my own construction of the provision and the weight of authority lead me to conclude against the defendant's submission. 16 I do not consider that the general position adverted to by McHugh, J. in the Latoudis v. Casey (1990) 170 CLR 534 at 556 to 557 and as applies in the absence of specific other provision under the Supreme Court Act 1970 and Rules assists me where, as here, there is a specific other provision. 17 Notwithstanding the submission of the defendant, I do no find assistance in the history under which courts became empowered to award costs, a history which has included reference in Wright & Ors v. Judge Keon-Cohen & Anor (Supreme Court of Victoria, Appeal Division, 18 September 1992) to costs as being entirely the creature of statute at least in the case of criminal proceedings or quasi criminal proceedings: (see also Police v. S (1997) 94 A. Crim. R. 445 and DPP v. Deeks (1994) 34 NSWLR 523 citing Dawson, J. in Latoudis (supra) at 557) since I do not consider there is any ambiguity or doubt or light to be so cast on the purpose and intended ambit of the provision. 18 For these reasons, I decline to order costs in favour of the defendant. **********

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