COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS v. WEBB & ANOR [1999] NSWSC 405

WEBB -9- IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS v. FRANK ROBERT WEBB & ANOR

JUDGMENT HIS HONOUR: 1 This is an application pursuant to s.30A(1) of the Proceeds of Crime Act 1987 (Cth) seeking an extension of the waiting period for an application under s.48 of the Act with respect to certain property the subject of a restraining order made under that Act, which order was varied by Barr, J. on 8 December 1997 to include under the effect of that order, the relevant property. 2 Putting aside for the moment the detail of the statutory scheme, in the event that the extension is not granted, on the submissions of the applicants - that is the first and second defendants - property which they claim to be theirs would, in consequence of the operation of the forfeiture provision of the Act, s.30, be forfeited to the Commonwealth on or about 19 May 1999, in consequence of the expiry of six months from the conviction of the third defendant. 3 It is contended on behalf of the applicants that the conviction of the third defendant, which is the relevant conviction for the purposes of s.30, occurred on or about 19 November 1998. 4 It is contended however, by the Director of Public Prosecutions for the Commonwealth, that the conviction had long occurred by that date, and that, by reason of the operation of s.30, the relevant property is already forfeited to the Commonwealth. 5 The Director concedes that there is available in certain circumstances statutory provision to enable the applicants to seek to recover the property, notwithstanding forfeiture. Nonetheless, the question of whether the forfeiture has or has not occurred is a question of considerable importance under the statute. That question turns upon when the conviction occurred. 6 In that regard I have been provided with the material in the affidavit of Graham Marshall sworn 29 April 1999, to which is annexed a copy of the indictment in relation to the third defendant; the transcript of proceedings before Solomon DCJ on that indictment, which is marked Exhibit B; a further indictment presented against that defendant on 17 July 1998, which is marked Exhibit C, and to which indictment - as he had to the former indictment - the third defendant had pleaded guilty; the transcript of the proceedings on that second indictment on 17 July 1998; and subsequently the transcript of the proceedings on 19 November 1998, which included the continuation of the proceedings on sentence; the addresses on penalty and the sentence. 7 There have also been tendered on this application certain extracts from the District Court file, including the notes of proceedings: of 28 November 1997; 23 January 1998; 20 February 1998; the callover dates; the notes of 11 May 1998 and subsequent occasions; but most notably the note of 17 July 1998 signed by the judge reading relevantly, "Plea: Guilty to all three counts. ... Stood over to 7/8/98 for sentence before me. B/R. Signed: Judge." (B/R apparently means "bail refused"); the note of 7 August 1998 in which it is noted that the matter is stood over to 13 August 1998, part heard; the note of 13 August 1998, which is noted and initialled by the associate and contains the following, "Sentence S/0P/HVO 9/11/98 remand in custody. Bail refused, (P/H)"; and relevantly the notes of 19 November 1998, "See indictment for sentence imposed"; and the copy of the back sheets of the two indictments setting out the entries signed by the judge for 19 November. 8 All of this material was tendered without objection or challenge. Both parties provided to me written submissions. Those submissions, with the amendment of those of Mr. Aitken to show the correct date he there refers to, will be attached to the file copy of this judgment. The evidentiary material is conveniently set out in the submissions of the Director. 9 As to the submissions by Mr. Aitken for the applicant, he informs me that he does not raise any constitutional question, as might have been foreshadowed in paragraph 13 of those submissions, nor is there presently before me any application under paragraph 14 of the submissions. 10 Although other orders were sought by the motion in addition to the extension of the waiting period, it has been agreed that any questions raised by the seeking of those other orders, should await the determination of whether or not the extension sought in the present matter be granted. Consequently, there remains before me, as the parties agreed, the sole question of the identification of the date of conviction for the purposes of s.30 of the Act. 11 Counsel's extensive researches, I am informed, disclose no statutory provision or rule of court that might be applicable or of assistance in ascertaining when conviction occurred for the purposes of the section. 12 I am informed that if I concluded in favour of the applicants on the issue of when the conviction occurred and that I was satisfied the applicants had diligently prosecuted without undue delay their application, the Director would not oppose the making of the extension order. In that event, the applicants are to provide to the Director a memorandum showing the diligence of prosecutions and the Director is to raise any asserted inadequacy in that material by this afternoon or before 10.00 am tomorrow morning, so that if adequate material is provided, if there is no opposition from the Director and in the event that I rule otherwise in favour of the application, a formal order might then be pronounced. 13 On the other hand, if I am not in favour of the applicants' submissions and hold that a forfeiture has occurred, it would only be necessary for me to have that material if it is sought to leave the matter in a condition where only one issue remains should there be an appeal since time, on any view of it, is short. 14 The submissions for both parties accept that conviction in the law of New South Wales, which here is the law applicable, it would seem, and caught up by the provisions of the Judiciary Act and the Proceeds of Crime Act, means different things for different purposes. 15 Section 5 of the Proceeds of Crime Act provides that in s.5(1):- "For the purposes of this Act, a person shall be taken to be convicted of an offence if ..." 16 Thereafter are set out certain circumstances, the first of which provides:- "(a) The person is convicted, whether summarily or on indictment, of the offence." 17 This provision appears to relate to the concept as employed in the relevant court. 18 The other circumstances later referred to appear to relate to extensions of the concept. 19 Section 5(3) provides that:- "For the purposes of this Act, a person shall be taken to have been convicted of an offence in a particular State or Territory: - (a) where the person is taken to have been convicted of the offence by reason of paragraph (1)(a) - the person was convicted of the offence in a court in that State or Territory." 20 Thus, the relevant State or Territory meaning of the term is caught up. 21 In New South Wales, that meaning has been considered by the Court of Appeal in Della Patrona v. Director of Public Prosecutions (Commonwealth) No 2 (1995) 38 NSWLR 257 in the context of the very legislative provision here applicable and particularly for the purposes of ascertaining from when the period runs. At p.266 in the judgment of Kirby, P, with whom Priestley and Meagher, JJA. agreed, his Honour dealt with the submissions discussed, initially at p.265B, as to when a conviction occurs. Kirby, P. concluded, in accordance with authority, that conviction occurred when the trial judge indicated that he accepted and proposed to act upon the jury's verdict of guilty. The order of remand was said to have sufficiently indicated acceptance of the verdict of the jury (at p.266G). 22 In passing I note Meagher, JA's comments concerning the raising of constitutional questions which no doubt have contributed to the view taken on behalf of the applicant that no constitutional question should not be raised before me. 23 It is common ground that I am bound by Della Patrona (supra) if it is not to be distinguished here. 24 My attention has been drawn to what is said in Maxwell v. The Queen (1996) 135 ALR 1 by the High Court of Australia. Both parties have contended that various of the observations therein contained are in their favour. Both parties accept that those observations are made in a different context and without reference to the construction of the term "conviction" as it appears in the Proceeds of Crime Act and thus, those observations, although powerful, are obita. Both arguments accept that unless I conclude I am not bound by the decision of the Court of Appeal in Della Patrona (supra), I will not need to consider further those observations. 25 Indeed, Mr. Aitken has gone so far as to accept that unless the decision in Della Patrona (supra) is to be distinguished from the present situation, then I would have to conclude that the convictions occurred, as submitted by the Director, at least by 7 August. 26 The relevant matters of fact in this matter, referred to in the written submissions of the Director commencing at paragraph 3 and concluding at paragraph 10, are conceded by the applicants and established by the written material tendered in evidence I have already referred to. Those facts are very similar to those in Della Patrona (supra). 27 The bases on which it is said that I should distinguish Della Patrona (supra) include firstly, that that case concerned the acceptance by a trial judge of the verdict of a jury rather than the formal confession of guilt by the prisoner, involved in a plea of guilty; secondly, that that decision involved an application for forfeiture of the property of the convicted accused herself; and thirdly, unlike in that case, in the present case the trial judge, on 19 November, as is set out in paragraph 10 of the Director's submissions, said, "No, I haven't sentenced him. So he hasn't been convicted." Subsequently in his remarks on sentence he said that the accused was convicted and the record for that day had inserted in it the words "convicted" and "sentenced". 28 As to the first two matters they do not, in my view, amount to matters which would sufficiently operate to displace what was said by Kirby, P. and accepted by the court in Della Patrona (supra). 29 In my view, the word "conviction" is used in the Proceeds of Crime Act in a consistent way as referable to the one event, whatever it may be. There seems no valid basis to distinguish between the situation where property of an accused or of another is to be forfeited. Nor does there seem to be any validity in the distinction put forward between the acceptance of the verdict of a jury and the acceptance of an offered plea. While for many purposes there is a distinction and while there may be available in Commonwealth matters to which the Judiciary Act applies, the otherwise obsolete opportunities to set aside or prevent the conviction by moving in arrest of judgment or for a verdict, nil obstante veredicto or, in the case of a plea, to seek to withdraw the plea or set aside the acceptance of a plea, nonetheless the test proposed in Della Patrona (supra) and derived from a substantial body of case law propounds that conviction occurs, whether later to be set aside or reversed, upon any acceptance of the fact of guilt, as established by a verdict or a plea and the acting on it as, where the judge acts upon that plea or verdict in some formal manner equivalent to the pronouncement or entry of judgment, such as the remand in custody for sentence, ie., where there is some unequivocal, formal act of recognition of the fact of guilt and the proceeding to penalty. 30 The third matter presents more difficulty. Mr. Game, SC., who appears for the Director, put that it was apparent that the trial judge did not realise the legal effect of what it was he was doing when he remanded in custody, as amounting to his convicting the accused and that his words and actions on the 19th were explicable on the basis that although he had, both in law and in fact, convicted, a mistaken belief that sentence was essential to conviction caused him to pronounce the conviction on the 19th when he sentenced, that is, on that day he only made a formal pronouncement of conviction since he was under the mistaken belief he had not already convicted. 31 Bearing in mind the seriousness of the question and its potential for the forfeiture of the property of a person, not the accused, had I been of view that his Honour had been, at any time subsequent to the plea, other than of an intention to convict, I would have held that the conviction did not occur until the 19th. 32 It is inconceivable to me that a judge could convict an accused person, thus so dramatically changing that person's status, unintentionally, whether that unintentional conviction arose from ignorance of the true state of the law or the facts, but in this case it seems patent that at all times his Honour intended to convict and took the steps that Della Patrona (supra) has held amounts to convicting. 33 In my view the views his Honour expressed on the l9th are not such as to lead me to hold as a question of fact that conviction did not occur until that day. 34 I am unable to distinguish Della Patrona (supra). Indeed, since, on the authorities, I consider the fact of conviction is primarily to be determined by the act publicly performed by the judge in the recognition of guilt and acceptance of it, there is every reason for me to feel confirmed in the view that Della Patrona (supra) is not only binding but right. 35 In those circumstances, and in accordance with the views I have expressed, it is necessary for me to resolve the question of whether there was a conviction or not against the applicants and I do so. 36 Therefore, I find that on 11 May 1998 there was an initial conviction, that on 17 July 1998 there were further convictions and that what thereafter occurred was the proceedings on sentence in respect of those convictions. 37 Nonetheless, in the event that a court, having power to do so, should consider that I am wrong or that Della Patrona (supra) was wrongly decided, it might remain open to the applicants to obtain a favourable determination of the application, provided it were determined in their favour, before 18 May. Consequently, if they are minded to appeal, it will be necessary that all possible steps be taken to put the matter in proper order so that an appeal might be determined well before that. 38 I would, therefore, direct counsel to bring in tomorrow short minutes as to the form of the appropriate orders giving effect to these views and dealing with any other issues outstanding in relation to the application including, if necessary, diligent prosecution without undue delay, so if the matter goes before the Court of Appeal it will be in a position to deal with it as expeditiously as might, for that court, be convenient.

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