Leave to Appeal from Greg James J's decision of 4 April 2003
25 Part 51.4(1) of the Supreme Court Rules provides that an application for leave to appeal to the Court of Appeal should be made by filing and serving on each necessary party within twenty-eight days, relevantly, from the date on which judgment was given. Sub-rule (6) provides that the Court of Appeal may extend time under sub-rule (1) at any time. In Gallow v Dawson (1990) 64 ALJR 458 on a summons in the High Court for an extension of time in which to file a notice of appeal against an order made in the original jurisdiction of the Court, McHugh J at 459 said:
"The grant of an extension of time under this rule is not automatic. The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice. The discretion to extend time is given for the sole purpose of enabling the Court of Justice to do justice between the parties: see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92: Jess v Scott (1986) 12 FCR 187 at 194-195. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes, at 263-264; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has 'a vested right to retain the judgment' unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which it can be satisfied that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy [1965] 1 WLR 8 at 12; [1964] 3 All ER 933 at 935:
'The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.' "
26 We heard argument on the leave application without separately considering whether there should be an extension of time and it is convenient first to consider the merits of the application. The five grounds of the proposed notice of appeal were as follows:
"1. No way were we to receive a fair trial that day. At the time appearing [sic] before Justice Greg James there was an outstanding Reversal of Plea in the District Court that had to be dealt with. It was unfair that the unrepresented respondents would be required to enter evidence in this court before the criminal matter had been resolved. By not allowing us an adjournment, His Honour Justice James forced us into a Kangaroo Court.
2. I'd also be relying on the transcripts of Justice Carruthers of the 11 September 2000 whom [sic] agrees with Mr Temby on two issues as to why our matter could not proceed that day.
3. We realize that there is a time issue on this appeal. At the time we were not informed adequately on the correct appeal procedure. We believe this had been done.
4. Justice James predetermined the outcome of the evidence that he based his decision on. The tapes that his honour heard were not to be admitted or used as evidence against us, the ruling by his Honour Woods during our criminal trial. This is why his Honour should have awaited the outcome of the criminal proceedings first, as he has now made the wrong decision based on evidence that he should have never seen or heard.
5. It was wrong of his Honour to try and force us into the stand to give evidence. We had to make a decision. To give our evidence before the criminal trial against the wishes of our criminal counsel or choose to say nothing to safe guard the criminal proceedings but then have all our assets forfeited. Or we could get in the stand to try and save our belongings but in the process maybe ruin our chances at District Court, or possibly both trials. Everybody is entitled to a fair trial. No one should have to compromise one trial over another."
27 In part the appeal is directed against the judgment given by Greg James J on 4 April 2001 refusing the defendants' application for an adjournment. In that judgment his Honour observed that the proceedings had been adjourned to 4 April 2001 from the day on which the hearing had been listed to proceed. His Honour said:
"2 By way of background, I note the judgment published on Monday adjourning the matter to enable the defendants a last opportunity to put on some evidence contesting the proposition that they have been engaged in serious crime related activity within the past six years. That opportunity has not been availed of. Further, in trenchant discussion of the renewal of the adjournment application by the defendants' counsel this morning, I made it clear that the issue with which I was concerned was whether or not the defendants were intending to seek to contest the issue of whether they had been engaged in serious crime related activity. But no real matter was put forward to suggest a basis of contest other than that they opposed the making of the forfeiture order.
3 They contend their property was lawfully obtained, a matter not going to the making of a forfeiture order, but to the prospects of exclusion of that property from the operation of that order. They contend that their counsel has been late briefed, and only briefed on the adjournment application, rather than on the substance of the application and that the matter is, on their part, unprepared.
4 I should, however, note that I drew the attention of both counsel to the affidavits of the defendants and, in particular, Part 5 of each affidavit, by which each defendant asserted that they were innocent of the criminal charges led against them and upon which the plaintiff's case relies and further asserted that the criminal case against them 'has been prepared corruptly'.
5 They particularise, in that regard, that corrupt police officers had sought to utilise Mr Kelly to sell drugs for them and that he had refused to co-operate, that they had used an informant allegedly to buy drugs from him, but he had not sold drugs but prawns in lieu.
6 Further, that the informant, although he had provided evidence of the drug selling, had been threatened by corrupt police officers to change his statements and had now provided a new statement to an independent police officer that he had never purchased drugs from Mr Kelly, but had only purchased prawns.
7 I have further been informed that it is sought by the defendants to withdraw the pleas that they had entered to the indictments preferred against them in the District Court, albeit that those withdrawals appear to have been first contemplated at a time following the confirmation of the pleas, notwithstanding the retraction of the informant's statements, or so I am informed by Senior Counsel for the New South Wales Crime Commission.
8 Whether the pleas are withdrawn or not, whatever be the fate of the criminal proceedings, those proceedings do not determine what happens in these proceedings although, of course, should there be a conviction it becomes rather difficult for the defendants to assert that a case of their being involved in serious crime related activities could not be established beyond the balance of probabilities, and what evidence they might give in these proceedings might well be available for use in the criminal proceedings, as I pointed out during the argument.
9 But these proceedings simply turn on whether the Commission on the evidence in these proceedings satisfies me on the balance of probabilities that the defendants have been engaged in serious crime related activity. Since the affidavit material filed appeared to be the only material potentially available for the defendants notwithstanding three opportunities provided by the Court for material to be filed, I inquired of counsel for the defendants as to whether it was intended that those affidavits would be read, and the deponents made available for cross-examination. I was told it was not intended that either of those events would occur.
10 That would leave the case for the Commission uncontradicted. In effect, that would leave the position as being that no opposition of an evidentiary nature is presented to the making of the orders as sought. I pointed out to counsel for the defendants that the lack of a basis for opposition to the making of the orders would suggest there was no rational basis for an adjournment. Nothing has been forthcoming to suggest any other rational basis for an adjournment in the light of that observation. In the circumstances, there seems no basis on which the present proceedings should not be heard."
28 Accordingly, Greg James J refused the application for adjournment and the matter proceeded on that day and the orders already referred to were made. In his judgment of that day on the Crime Commission's claim for an assets forfeiture order, after referring to the adjournment applications, his Honour said:
3 It is to be noted that the defendants have sought to withdraw pleas of guilty entered by them in the District Court to charges of supplying an indictable quantity of amphetamines. Those pleas have not been withdrawn, and nor has the Court yet heard an application to withdraw the pleas. At present they stand as admissions of the most solemn kind, of all matters of fact and law, necessary to support convictions on the charges against them: see Regina v Chiron (1980) 1 NSWLR 218.
4 Nonetheless, because there is an application to withdraw the pleas, even though as I will show, proceedings under the Criminal Assets Recovery Act 1990 are not conviction based, and because there is in support of that application, statements which have been tendered to me from a man who one might regard as the instrument or purchaser of drugs in what might be referred to as sting operations, recanting from his initial accounts of the defendants' drug dealing, I will accord to those pleas less significance and weight than I would otherwise, to the extent that, for the purposes of this decision, and having regard to the fact that the defendants became unrepresented when I declined the adjournment, notwithstanding the powerful submissions of Mr Temby, QC for the Crime Commission to the contrary, I will disregard the pleas.
5 Further, I will disregard the recantation statements of the person Parker as affecting the evidence contained in his affidavit, accepting insofar as it goes to show that both in his recantation and in chief, he is personally a person who I consider to be of no credit whatsoever, so that I would reject the evidence that he gave, unless it is confirmed or supported otherwise.
6 In this case, however, having had regard to the other evidence on its own, and considering this as though it were a circumstantial evidence case, as opposed to a case relying on the direct evidence of Parker, the proof not only exceeds all that is necessary in law to prove the assertions of the Crime Commission as to the defendants having engaged in the process of drug supply during the month preceding 3 April 1998, but also having engaged in actual transactions involving indictable quantities on 3 April and 6 April of that year.
7 So it is when one examines the evidence of the police officers, whose evidence was unchallenged and who it was not sought be called for cross-examination, one finds established the purchases by Parker, whether his evidence is given any significance on that question or not.
8 The following evidence establishes the transactions on which the plaintiff relies. The police officers observed Parker in his journeys to and from the premises of the defendant, Kelly. On at least one occasion they watched and observed small envelopes containing white powder being passed by the defendants to Parker. Parker then produced those envelopes to the police officers. A clear chain of possession shows that what was contained in those envelopes by way of white powder was an indictable quantity of the drug.
9 The defendants have not given evidence before me. They have filed affidavits denying any dealing in the drugs. When they were represented on the adjournment application, I was informed that those affidavits would not be read and that the defendants would not give evidence personally. After terminating their lawyer's retainer, they have defended the proceedings brought by the Crime Commission. In address, Ms Rangi, on behalf of herself and her husband, Mr Kelly, has denied dealing in, or ever selling any drug by either of them. None of the defendants was willing to give evidence, however.
10 I can give no weight to that denial because it is not in evidence and so many opportunities have been given to those defendants during the progress of the adjournment applications and on two prior occasions to put on evidence of their denials, and to submit themselves to cross-examination."
29 His Honour went on to refer to evidence given by several police officers about dealings between the defendant Kelly and the informant in April 1998 and to some conversations on tapes and concluded that he was required by s22(2) to make an assets forfeiture order, it not being necessary for a finding that a serious crime related activity involving an indictable quantity had taken place, to be based upon a particular offence, or as to any particular quantity. His Honour also made a proceeds assessment order under s27.
30 On 9 November 2001 his Honour Judge Coorey in the District Court dealt with the first and second defendants' applications to withdraw pleas of guilty in the matters relating to the supply of methylamphetamines. His Honour heard evidence from the two defendants and concluded, on the balance of probabilities in the exercise of his discretion, that both defendants had satisfied the onus of showing that a miscarriage of justice would occur if they were denied leave to withdraw their pleas of guilty. Accordingly, his Honour gave such leave.
31 The trial of the first two defendants on three counts relating to the alleged supply of methylamphetamines in 1998 came before his Honour Judge Woods QC and a jury. On 25 July 2002 during the course of cross-examination by counsel for one of the defendants of an informant known as "Mr Brown", an application was made that the witness's evidence should be withdrawn from the jury on the basis that he was not a competent witness. The witness had been used by police as a controlled agent strapped up with a listening device and asked to enter premises occupied by the two accused for the purpose of stimulating possible evidence of the supply of drugs. His Honour observed that this was a well-known and normally uncontroversial way of proceeding in this area of law enforcement. "However, the difficulty arises because the witness, Mr Brown, has demonstrated himself to be not merely a person with a long criminal history, but to have a significant history of mental illness." Later his Honour observed:
"I am bemused about the meaning of much of this man's evidence, but it seems to me on the balance of probabilities that significant parts of his evidence are motivated by irrational fears produced by a chronic condition or paranoia relating to his tragically long standing poly-drug abuse and paranoid schizophrenia. His evidence, it seems to me, is dangerously irrational."
32 His Honour reached the conclusion that the witness was incompetent within the terms of s13 of the Evidence Act 1995 and decided to instruct the jury that the evidence that he had given was withdrawn from their consideration in the trial and so ordered.
33 On 30 July 2002 Judge Woods said:
"An indictment was before me last week. That indictment, which was tried before me between 17 July and 25 July, contained as counts two and three what are now counts one and two of the present indictment. There was a verdict of not guilty on count one of the previous indictment and on one view that indictment might still be said to be before me since the jury were discharged as to that indictment, but for more abundant caution, at the instance both of the Crown and the defence, a new indictment is presented. The relevance of that is that there has been considerable argument over the last several days at the bar table as to the admissibility in the trial on what is now the present indictment of evidence generated by the use of a person having the pseudonym Brown in a controlled operation organised by police culminating in the arrest of the accused for these charges."
34 Counsel for the defendants before Judge Woods contended that the evidence brought into existence by the controlled operation should be excluded under s138 of the Evidence Act, as improperly or illegally obtained, or under s137, as prejudicial evidence, or both. His Honour found that the police involved in the controlled operation were aware that Mr Brown, who was proposed as a controlled agent, was mentally disturbed. Yet when the application was made for a controlled operation authority to the Deputy Commissioner of Police nothing was put to the Deputy Commissioner about Mr Brown's history of mental stability. In his Honour's view it should have been. This gave rise to an impropriety which affected the coming into existence of the subject evidence and was an impropriety under s138(1)(b) of the Evidence Act. Taking account of a number of matters, his Honour concluded that under s138(1) the evidence flowing from the use of Mr Brown in the controlled operation should not be admitted. His Honour also concluded that s137 required that he exclude the evidence. At the end of his reasons, Judge Woods said:
"I should make it clear that in reaching this conclusion I am not attributing to the police involved any personal moral blame. In my view the choice of Brown as a controlled agent is simply an error of judgment which has the unfortunate outcome of vitiating the use at trial of evidence generated by his involvement. This is no more a matter of moral blame than it is for the police involved in the earlier proceedings where it seems the use of a particular police undercover operative vitiated a proposed trial as a result of something which arose out of the Police Royal Commission. As I say, the evidence will be excluded."
35 As a result of these rulings the prosecution case collapsed and the two defendants were acquitted. Perhaps understandably the defendants rely upon their acquittal and the rejection of a substantial part of the prosecution's evidentiary case to undermine the conclusion that Greg James J reached for making assets forfeiture orders. Furthermore, implicitly they claim that this would not have happened had the civil proceedings been adjourned to await the outcome of the criminal proceedings.
36 It has been authoritatively decided in this Court that the felony-tort rule, which entitled a party in civil proceedings, founded upon a cause of action that involved facts constituting a felony, to obtain a stay of the proceedings until the felony was prosecuted, has been abandoned in this country; see Griffin v Sogelease Australia Ltd [2002] NSWCA 421. To quote from the decision of Wootten J in McMahon v Gould (1982) 6 ACLR 202 at 207:
"The plaintiff in a civil action is not debarred from pursuing action in accordance with the normal rules merely because to do so would, or might, result in the defendant, if he wished to defend the action, having to disclose, in resisting an application for summary judgment, in the pleading of his defence, or by way of discovery or otherwise, what his defence is likely to be in the criminal proceeding."
37 In his reasons for judgment Greg James J said he considered the witness Parker (Mr Brown) to be of no credit whatsoever and rejected the evidence that he gave unless confirmed or supported otherwise. He said that having had regard to other evidence on its own and considering this as though it were a circumstantial evidence case, the proof not only exceeded all that was necessary in law to prove the assertions of the Crime Commission as to the defendants having engaged in the process of drug supply during the month preceding 3 April 1998 but also having engaged in actual transactions involving indictable quantities on 3 April and 6 April 1998. This followed examination of the evidence of the police officers, which, as his Honour observed, was unchallenged. The police officers were not required for cross-examination. Their evidence established the purchases by Parker. His Honour carefully reviewed that evidence. Whatever may have been the constraints the defendants felt under about giving evidence, whether those constraints were actual or perceived, it is significant that they did not attempt to cross-examine the police witnesses. His Honour did say that he could give no weight to the defendants' denial, in the course of address, of dealing in or ever selling any drug, because it was not in evidence and so many opportunities had been given to those defendants during the progress of the adjournment applications and on two prior occasions to put on evidence of their denials and to submit themselves to cross-examination.
38 The second defendant, Glenda Rangi, who put submissions on her own behalf and on behalf of her husband and mother, claimed that the defendants were unaware of s128 of the Evidence Act, which applies if a witness objects to giving particular evidence on the ground that the evidence may tend to prove that the witness has committed an offence against an Australian law (subs (2)). Subject to subs (5) if the Court finds there are reasonable grounds for the objection, the Court is not to require the witness to give that particular evidence and is to inform the witness (subs (2)):
(a) that he or she need not give the evidence, and
(b) that, if he or she gives the evidence, the court will give a certificate under the section, and
(c) of the effect of such a certificate.
39 If the witness gives the evidence, the court is to cause the witness to be given a certificate under the section in respect of the evidence (subs (3)). If the court is satisfied that the evidence concerned may tend to prove that the witness has committed an offence against an Australian law and the interests of justice require that the witness give the evidence, the court may require the witness to give the evidence (subs (5)). If the court so requires, it is to cause the witness to be given a certificate under the section in respect of the evidence (sub (6)). In any proceeding in a New South Wales court, evidence given by a person in respect of which a certificate under the section has been given cannot be used against the person other than in criminal proceedings in respect of the falsity of the evidence (subs (7)).
40 Ms Rangi referred us to s132 of the Evidence Act. That section provides that if it appears to the court that a witness or a party may have grounds for making an application or objection under a provision of Pt 3.10, in which is found s128, "the court must satisfy itself that the witness or party is aware of the effect of that provision." Ms Rangi claimed from the bar table that Greg James J had an obligation under s132 to advert to the procedure available under s128 but had not done so.
41 The defendants did not put on any evidence to support the case that they were unaware of the provisions of s128 or that this section was not brought to their attention. On the application for adjournment on 4 April 2001 the defendants were represented by counsel. They put on affidavits in which each asserted they were innocent of the criminal charges against them upon which the Crime Commission's case relied. Greg James J observed that during the argument he pointed out that evidence given in the proceedings might well be available for use in the criminal proceedings. He inquired of counsel for the defendants as to whether it was intended that the affidavits would be read and that the deponents made available for cross-examination and was told that it was not intended that either of those events would occur.
42 There would be absolutely no reason for Greg James J to suppose that, before making the decision neither to read the affidavits nor to give oral evidence, the defendants had not discussed this course at length with their counsel and been advised of the procedure available under s128. What is particularly telling in this regard is the failure to seek to cross-examine those witnesses who were called by the Crime Commission. Despite the protests of Ms Rangi, the only inference is that on the hearing before Greg James J the defendants accepted or, at least, had decided not to attempt to contradict, the Crime Commission evidence by cross-examination or by giving evidence themselves. In my opinion, although the allegations made about non-compliance with s132 of the Evidence Act cause some concern, I am satisfied they have no substance.
43 What is critical is that Greg James J was bound to make an assets forfeiture order if he found it to be more probable than not that the person whose suspected serious crime related activity formed the basis of the restraining order was, at any time more than six years before the making of the application for the order, engaged in a serious crime related activity involving an indictable quantity; s22(2). His Honour was not precluded from finding the relevant serious crime related activity even if by then the defendants had been tried and acquitted: s6(1). What I have said deals with ground 1.
44 The Crime Commission in its submissions pointed out that in his judgment of 17 March 2003 Shaw J re-visited the evidence relating to serious criminal activity and said:
"22 On the evidence, and having regard to the prior findings of Grey James J, I am compelled to find that the statutory pre-requisites have been met and that I am required to make a proceeds assessment order against the defendants. I am particularly influenced by the provisions of s27(3) to the effect that the Court does not require, in determining whether the prerequisites have been met, the establishment of a particular offence or a finding as to any particular quantity involved. The Court does not require evidence of any conviction of a relevant offence. This is legislation which may have drastic effects, but the Court is obliged to act in accordance with it."
45 The second ground of appeal is directed to part of the transcript before Carruthers AJ on 11 September 2000 in which he agreed with Mr Temby QC, who was appearing for the Crime Commission, on two issues as to why the matter could not proceed on that day. One was that the forfeiture application was based upon proof of serious crime related activities and the Crime Commission placed considerable reliance upon pleas of guilty, which the first and second defendants were then seeking to withdraw. It was said that it seemed convenient to await the outcome of that application to see what significance, if any, the pleas were to have. Secondly Mr Temby said that the Crime Commission did not have the affidavit material needed to enable it to proceed otherwise than on the basis of pleas of guilty.
46 By the time the application for an assets forfeiture order came before Greg James J in April 2001, the applications for leave to withdraw the guilty pleas still had not been heard but the evidence required for a fuller consideration of the application for assets forfeiture orders had been prepared and was put before Greg James J and not challenged by the defendants. There is, with respect, nothing in this ground of appeal.
47 Ground 3 relates, apparently, to the failure of those advising the defendants adequately to inform them about the correct appeal procedure. This is a matter taken up in whether or not an extension of time should be granted. In any event, it was not supported by evidence.
48 Ground 4 relates to the tapes admitted by Greg James J and then subsequently rejected by Judge Woods. The Crime Commission pointed out correctly that Greg James J was not bound to reject the tapes on the grounds which later found favour with Judge Woods. The ground, therefore, has no merit.
49 As I have already pointed out, the fifth ground relates to the civil proceedings taking place before the criminal proceedings. In this case there was no legal impediment to this sequence. In particular, it did not make the civil proceedings unfair. It was a matter for the defendants whether or not they would give evidence. They chose not to give evidence. Furthermore, they chose not to cross-examine any of the witnesses relied upon by the Crime Commission. Those were decisions which, as the ground itself makes plain, were made with the advice of counsel.
50 In my opinion the appeal as formulated in the draft notice of appeal against the decision of Greg James J would be bound to fail. In the circumstances, I would extend time for the making of the application for leave to appeal up to and including the day on which the application was filed in Court but I would refuse leave to appeal.