Halac v Commissioner of the Australian Federal Police

Judgment

1. THE COURT: On 6 May 2015, the primary judge (Hidden J) dismissed a motion brought by Mr Sven Halac seeking to exclude certain property from a restraining order made under s 18 of the Proceeds of Crime Act 2002 (Cth) (the Act): The Commissioner of the Australian Federal Police v Halac [2015] NSWSC 520. The value of the property is less than $100,000, and it was common ground that an appeal lies only with leave. These are our reasons for refusing the grant of leave, immediately after hearing from both parties on the question of leave.
2. On 21 February 2014, Mr Halac was sentenced by the District Court to a period of imprisonment for 18 years, with a non-parole period of 11 years and 6 months, following a guilty plea. His appeal against that sentence was dismissed by the Court of Criminal Appeal in June 2015: Halac v R [2015] NSWCCA 121.
3. Section 92 of the Act relevantly provides: "Forfeiting restrained property without a forfeiture order if a person has been convicted of a serious offence (1) Property is forfeited to the Commonwealth at the end of the period applying under subsection (3) if: (a) a person is convicted of a *serious offence; and (b) either: (i) at the end of that period, the property is covered by a *restraining order under section 17 or 18 against the person that relates to the offence; or (ii) the property was covered by such a restraining order against the person, but the order was revoked under section 44 or the property was excluded from the order under that section; and (c) the property is not subject to an order under section 94 excluding the property from forfeiture under this Part. ... (3) The period at the end of which the property is forfeited is: (a) the 6 month period starting on the *conviction day; or (b) if an *extension order is in force at the end of that period-the extended period relating to that extension order."
4. The terms preceded by an asterisk are defined by the Act. Section 93 authorises the making of an "extension order", so as to delay the forfeiture effected by s 92, and s 94 authorises the making of an order excluding property from the forfeiture effected by s 92.
5. There was no dispute that Mr Halac was convicted of a "serious offence", that the "conviction day" was 21 February 2014, and that the six month period referred to in s 92(3) concluded on 20 August 2014. Mr Halac was advised by letter dated 7 April 2014 of his right to make an application for an extension order, that any such application was required to be made before 20 August 2014, and that "The extended period specified must end no later than 15 months from the start of the conviction day". Those words were taken verbatim from s 93, which section was also included with the letter.
6. Mr Halac applied for an extension order by notice of motion filed on 20 August 2014. That was the last day of the six month period specified by s 92(3). The question decided by the primary judge was whether, in light of the fact that no extension order had itself been made within that period (as opposed to an application for such an order having been made), there was power for an extension order to be made. His Honour acceded to the respondent's submissions that there was no power, although a different view had been expressed under the legislation which preceded the Act in Director of Public Prosecutions (Cth) v Chan [2001] NSWCA 249; 52 NSWLR 56. His Honour dismissed the notice of motion. It was from that decision that Mr Halac sought leave to appeal.
7. Prominent in the written submissions filed by the Commissioner on 13 April 2016 against the grant of leave was the submission that leave should be refused because the application was futile, in accordance with what had been held in Studman v Director of Public Prosecutions (Cth) [2007] NSWCA 285; 177 A Crim R 34. There as here the appeal came on for hearing more than 15 months after the conviction day.
8. In Studman, Spigelman CJ and Handley AJA agreed with the judgment of McClellan CJ at CL. Under the heading "The futility of the appeal", his Honour said at [15]-[21]: "15 An extension order can be made pursuant to s 93. However, the application for the extension order must be made within six months of the day of conviction. If an extension order is made the extended period specified must end no later than 15 months from the day of conviction (s 93(1)). 16 In the present case, together with his application for an exclusion order under s 31 and his application for an order excluding his property from forfeiture under s 94, the appellant made an application for an extension order pursuant to s 93(1). The primary judge did not deal with the latter application. Because his Honour had determined that the "exclusion order" under s 31 should not be made, he concluded that there would be no point in considering the possibility of an extension order (s 93(2)). 17 No appeal was made to this Court in respect of his Honour's failure to make an extension order. Accordingly, by the operation of s 91 and s 92(3) the relevant property has been forfeited to the Commonwealth and has vested absolutely (s 96). The consequence is that the present proceedings are devoid of utility. There is no order which could now be made which would have any practical effect. 18 The powers of the Court of Appeal in dealing with matters before it include the powers provided by s 75A of the Supreme Court Act 1970 (NSW). Section 75A(10) of the Act provides: 'The Court may make any finding, give any judgment, make any order or give any direction which ought to have been given or made or which the nature of the case requires.' 19 Section 75A(10) does not give the Court of Appeal a 'free hand' (see Woodcroft v Director of Public Prosecutions [2000] NSWCA 128; (2000) 174 ALR 60 at [54]. Because s 93(1) confines the period of an extension order so that it must end no later than 15 months from the day of conviction any order which this Court was minded to make could have no practical effect. Furthermore, an order excluding property from forfeiture cannot be made when property has already been forfeited (s 94(2)). 20 The appropriate course for the appellant to have taken upon receiving the judgment of Hulme J was to appeal to this Court and seek an expedited hearing. If so persuaded, this Court could have made an extension order and provided for the appeal to be heard and determined within an appropriate period. However, as that course was not taken the situation is now irretrievable. 21 The consequence is that in my judgment this Court should revoke the order for leave to appeal."
9. In the present case, the fifteen month period after the conviction day expired more than a year ago, in May 2015. Mr Halac faces the same difficulty as Mr Studman. The Act under which his application is made provides in s 93(1) that the extended period "must end no later than 15 months from the start of the conviction day", and in s 94(2) that an order excluding property from forfeiture "cannot be made in relation to property if the property has already been forfeited under this Part".
10. Mr Siafakas, who appeared for Mr Halac, submitted that Studman was distinguishable, because Mr Halac unlike Mr Studman had made an application for an extension order within the six months specified by s 93. As much may be acknowledged, but it is no answer to the point which was decisive in Studman, which was the inability on the part of the Court to make any orders after the expiration of the 15 month period from the conviction day.
11. It was then submitted that s 23 of the Supreme Court Act 1970 (NSW) authorised the making of an order contrary to the prohibitions in ss 93(1) and 94(2) of the Act. That submission must be rejected, for substantially the same reasons that the cognate submission based on s 75A(10) of the Supreme Court Act was rejected in Studman in the passage reproduced above. This Court is bound by the prohibitions in the Act, which is a law enacted by the Commonwealth Parliament.
12. Finally, Mr Siafakas submitted, briefly, and conscious of the fact that nothing previously had been said to this end, that to the extent that the Act prevented this Court from making the orders he sought, it was contrary to Chapter III of the Constitution. The submission was not elaborated. We would reject it. Forfeiture of assets following a conviction for serious criminality is centuries older than the Constitution, or, for that matter, this Court - the short title of the Forfeiture Act 1870 (Eng) was "An Act to abolish Forfeitures for Treason and Felony ...". There is nothing antithetical to judicial power or the position of this Court within the structure established by Chapter III of the Constitution that a statutory regime providing for excluding assets from forfeiture is subject to strict time limits. The ability of federal law to impose strict time limits for applications, so that, if they are not followed, the situation is "irretrievable" (to use the language of McClellan CJ at CL) is undoubted, although clear language is required: see Gypsy Jokers Motorcycle Club Incorporated v Commissioner of Police [2008] HCA 4; 234 CLR 532 at [38].
13. No notices under s 78B of the Judiciary Act 1903 (Cth) were distributed. However, as French J, as his Honour then was, has said, the assertion of a hopeless point, even if characterised as constitutional, does not attract the operation of s 78B: Australian Competition & Consumer Commission v C G Berbatis Holdings Pty Ltd [1999] FCA 1151; 95 FCR 292 at [23].
14. For those reasons, this application for leave is futile. As was held in Studman, there is no power now, almost two and a half years after the imposition of Mr Halac's sentence, to make an order excluding property from the forfeiture effected by the Act. As in Studman, it was necessary for Mr Halac to seek expedition of his hearing in this Court if he were to avoid that result.
15. In those circumstances, it is inappropriate to express a view on the issue determined by the primary judge, or the other issues raised in the parties' written submissions (one of which was whether Chan was wrongly decided).
16. The futility of this application being clearly raised well in advance of the hearing, there was no reason to depart from the ordinary rule that costs follow the event. For those reasons, we dismissed the application for leave with costs.

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