New South Wales Crime Commission v Jason Lee

Supreme Court of NSW|2011-08-10|Before: Garling J

Judgment 1GARLING J : On 13 May 2010, upon the application of the New South Wales Crime Commission, this Court made a restraining order under the Criminal Assets Recovery Act 1990 with respect to property identified in that Order, which was owned or controlled by Jason Lee. 2On 9 December 2010, this Court made a further order which varied the original restraining order for the purpose of providing reasonable legal expenses for the appellants, Jason Lee and Seong Won Lee. 3At the time the variation was made, the applicants gave an undertaking, the terms of which will be fully set out below. 4The Crime Commission and the applicants are now in dispute as to proper meaning of that undertaking. 5The dispute centres upon whether the reasonable legal expenses of the preparation for and hearing of submissions on sentence which are listed on 12 August 2011 in the District Court at Sydney before Solomon DCJ were or were not, covered by the order of the Court of 9 December 2010, and the undertakings which the defendants gave, at that time. 6For the following reasons I am of the view that the reasonable legal expenses of the applicants which will be incurred for the sentence proceedings were included within the order made by the Court on 9 December 2010. I am also of the view that this application is precluded by the undertakings proffered by the applicants.

The present proceedings in this Court 7The applicants move on a Notice of Motion filed on 6 July 2011 for orders in these terms: "1. That the existing restraining order be varied to permit the payment of the reasonable legal expenses for the following matters: (i)Sentence proceedings of the First Defendant listed in the Sydney District Court before Solomon DCJ on 29 July 2011; (ii)Sentence proceedings of the Fourth Defendant listed in the Sydney District Court before Solomon DCJ on 12 August 2011; 2. Costs; and 3. Any other orders as the Court may see fit." 8The Notice of Motion was not accompanied by any affidavit evidence. 9The parties informed the Court that they had reached agreement on all issues arising from the Notices of Motion, except for the question of whether the terms of the Order of 9 December 2010 precluded the applicants bringing the Notice of Motion, and precluded the relief sought. 10The parties indicated that once the Court had expressed a view about the proper interpretation of the Order, they would bring in short minutes to reflect the appropriate final orders. 11Accordingly, on that basis, I have proceeded to deal with the real issue in dispute namely, the proper interpretation of the Order of 9 December 2010 including the undertakings offered. 12This approach by the parties is a practical demonstration of the application of s 56 of the Civil Procedure Act 2005, and the need for all litigants in proceedings in the Court to concentrate on the real issues in dispute. 13Hence, the parties were content to proceed solely upon the basis of the Court interpreting the Order of 9 December 2010, and the undertaking.

Order of 9 December 2010 14It is necessary, so as to understand the dispute between the parties to set out the relevant parts of the Order of 9 December 2010, which are as follows: "The Court Orders:

...
Pursuant to sections 10B(3)(b) and 12(1) of the Act, the restraining order made in relation to the interests in property of the first defendant on 13 May 2010 make provision for meeting the reasonable legal expenses of the first defendant and fourth defendant, agreed at $375,000 (plus GST) out of the interest in property of the first defendant in the property specified in the Schedule hereto, such sum to be paid to Nyman Gibson Stewart solicitors. The Court notes:
The first defendant undertakes to the Court and the plaintiff not to make any further applications for reasonable legal expenses under either sections 10B(3)(b) or 12(1) of the Act or otherwise, with respect of the trial of drug charges presently scheduled to commence on 17 January 2011.
...
The fourth defendant undertakes to the Court and the plaintiff not to make any further applications for reasonable legal expenses under either sections 10B(3)(b) or 12(1) of the Act, or otherwise, with respect of the trial of drug charges presently scheduled to commence on 17 January 2011. SCHEDULE
The amount of approximately $298,000 held in the Nyman Gibson Stewart trust account on behalf of Jason Lee (also known as Do Young Lee).
The amount of approximately $95,000 cash seized by police during the search of motor vehicle registration number BFT28G driven by Jason Lee (also known as Do Young Lee) on 25 February 2009." 15It can be seen that the terms of the order referred to provisions of the Criminal Assets Recovery Act . It will be of assistance to set out s 10B, which relevantly, is as follows: '" 10B Contents and effect of restraining orders
...
A restraining order may, at the time it is made or a later time, provide for meeting out of the property, or a specified part of the property, to which the order applies all or any of the following: (a)...; (b)subject to section 16A, the reasonable legal expenses of any person whose interests in property are subject to the restraining order, being expenses incurred in connection with the application for the restraining order or an application for a confiscation order, or incurred in defending a criminal charge." 16Section 16A provides for restrictions on any restraining order which makes provision for the payment of legal expenses. Section 16A(1) is in these terms: " 16A Restrictions on payment of legal expenses from restrained property
The following restrictions apply to a restraining order making provision for the payment of any legal expenses of a person: (a)no provision is to be made except to the extent (if any) that the Supreme Court is satisfied that the person cannot meet the expenses concerned out of the person's unrestrained property, (b)no provision is to be made in relation to any particular interest in property if the Supreme Court is satisfied that the interest is illegally acquired property, (c)no provision is to be made unless a Statement of Affairs disclosing all the person's interests in property and liabilities and verified on oath by the person has been filed in the Supreme Court, (d)no provision is to be made unless the Supreme Court is satisfied that the person has taken all reasonable steps to bring all of the person's interests in property within the jurisdiction of the Court, (e)any such provision must specify the particular interest in property out of which the expenses concerned may be met."

Factual context 17The Commission and the applicants agreed on these relevant facts: (a)The trial before Solomon DCJ and a jury of the various drug and other charges against the applicants commenced on 24 January 2011; (b)On 16 March 2011 the jury returned verdicts of guilty for both of the applicants; (c)The applicants are to be sentenced by Solomon DCJ on 12 August 2011, when submissions will also be made.

Applicants' submissions 18The applicants, submit that the phrase " with the respect of the trial of drug charges " which appears in the undertakings in paragraphs 3 and 5 of the Order of 9 December 2010 ought be interpreted as being limited to the trial proceedings before the jury which concluded in March 2011, when the jury returned its verdict and not to include the further hearing before Solomon DCJ dealing with sentence. 19It is then submitted that if the undertaking is so construed, there is no bar to the applicants making an application for further reasonable legal expenses. 20The submissions call in aid a number of statutory uses of the word "trial" or the phrase "sentence proceedings". In particular the applicants rely upon: (a)The Criminal Procedure Act 1986 which differentiates in definitions between proceedings relating to a trial and proceedings relating to sentencing; (b)The Jury Act 1977 which defines a trial as meaning a trial by or with a jury; (c)The scheme for sentencing under the Crimes (Sentencing Procedure) Act 1999, which the defendants submit demonstrate that their sentencing proceedings are not ordinarily part of the trial process. 21As well, the applicants submit that the decision of the Court of Appeal in DPP (Cth) v Saxon (1992) 28 NSWLR 263 at 270 ff is authority for the proposition that the phrase " defending a criminal charge " encompasses sentencing proceedings, and so the applicants are within the statute but outside the undertakings because a different phrase - " trial of drug charges " is used.

Position of the Crime Commission of New South Wales 22The Crime Commission submits that the phrase " the trial of drug charges " includes the whole of the trial process, which it submits, includes any sentencing hearing. 23It submits, in the alternative, that the phrase " with respect of " is a phrase of wide import and would be sufficient, if the phrase " trial of drug charges " does not include the sentencing process, to include it within the undertaking because the sentencing process is a necessary incident of the trial process. 24As well, the Crime Commission calls attention to the whole of the undertaking and its terms and in particular the undertaking that the defendants would not " ...make any further applications for reasonable legal expenses under either s 10B(3)(b) or 12(1) of the Act ". 25The Crime Commission submits that the terms of s 10B(3)(b) namely " incurred in defending a criminal charge " includes that part of the defence of a criminal charge whereby an accused is sentenced by a judge after conviction by a jury (or a judge).

Resolution 26The Order of 9 December 2010 was not made after a contested hearing before the Court. Accordingly, there is no transcript or reasons for judgment that might assist in understanding what was intended by the parties when the words in the undertaking were used. 27Neither of the parties has sought to put before the Court any evidence of antecedent negotiations between the parties which led up to the terms of the order which was made by the Court on 9 December 2010. 28In other words, there is no extraneous material to which regard may be had to understand what the parties intended. 29The Court is simply left with the task of construing the terms of the order in light of the statute that permitted the order to be made. 30I note that it is not part of the present debate before the Court that either of the applicants seek to be released from their undertakings on any basis, including that circumstances had significantly changed since the undertaking was proffered or alternatively, that the interests of justice would be served by a partial release from their undertaking so as to fund the sentencing proceedings. On the contrary, the applicants assert an entitlement to make the application, because it stands outside the terms of their undertaking. 31It is necessary therefore to construe the Order on the undertakings. 32There is no reason to depart from settled principles about contractual and statutory interpretation. In my view, the principled approach requires that the words in the undertaking be given their ordinary meaning, having regard to the context in which they are to be found. 33The commencing point for the context is the legislation. Section 10(3)(b) of the Criminal Assets Recovery Act permits a restraining order to be varied so as to permit the payment of, relevantly: "...reasonable legal expenses of any person ...incurred in defending a criminal charge." 34The phrase " incurred in defending a criminal charge " is apt to include all steps, which may arise in the course of the defence of a criminal charge. Both parties agree with this interpretation. 35It would, in my opinion, be straining the interpretation of that phrase, to exclude from it the sentencing of an offender once convicted. 36If one was to interpret it in this way, then the statute would not provide any exception to a restraint order which permitted the funding of reasonable legal expenses from restrained property where those expenses were to be incurred for a sentence hearing. 37Given the words that the statute uses, and the proper interpretation of "... the phrase incurred in defending a criminal charge ...", then the agreement to be found in the undertakings in Orders 3 and 5 has a context. That is because the applicants agreed not to make any further applications for reasonable legal expenses under the statute. 38The ordinary interpretation of that phrase in the undertakings would without more indicate that no further application would be made for reasonable legal expenses " incurred in defending a criminal charge " which would include sentencing proceedings. 39The next step is to consider whether the additional phrase in the undertaking namely, " ...with respect to the trial of the drug charges presently scheduled to commence on 17 January 2011 ", compels any different meaning. 40I do not think that it does. There are a number of reasons for this: (a)The phrase serves to identify the particular proceedings to which the undertaking relates, namely the proceedings due to commence on 17 January. This does no more than identify the proceedings. It does not qualify the nature of the undertaking; (b)The phrase " with respect of the trial " is ordinarily regarded as using words of wide import and ought not to be read down without a clear indication of some limitation; (c)Lastly, I do not think that in this context, a trial is any different from sentencing proceedings. In my view, it included all of the proceedings, the result of which would ordinarily be recorded on the indictment. This means all stays up to and including, the imposition of sentence by the presiding judge. 41In all of these circumstances, it is my view that this application is precluded by the terms of the undertakings given by the applicants on 9 December 2010. 42I make the following orders: (1)Order that the Notice of Motion dated 6 July 2011 be dismissed. (2)Order that the applicants pay the respondent's costs.

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