NSW Crime Commission v Field

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

11852/01 New South Wales Crime Commission v Malcolm Gordon FIELD

JUDGMENT 1 BELL J: The applicant, the New South Wales Crime Commission, moved on notice for orders that it be granted liberty to approach the Registrar to set an early date for the examination on oath of the respondent pursuant to s 12(1) of the Criminal Assets Recovery Act 1990 (the Act) in accordance with the order made by the Court on 4 July 2001. In the alternative, it sought an order pursuant to s 12(1) of the Act that the respondent be examined on oath before a registrar of the Court concerning the affairs of named persons and entities.

2 The history of the matter is set out in the affidavit of Mark William Standen, which was sworn on 3 September 2004.

3 On 4 July 2001 Simpson J made a restraining order under s 10(3) of the Act with respect to the interests of the respondent in property outside Australia, including property held in the name of Pegasus Properties Limited (the restraining order). The application for the restraining order was supported by an affidavit of an authorised officer deposing to his suspicion that the respondent had engaged in serious crime related activities. The respondent was at the time charged with an offence arising out of the importation into Australia of a quantity of narcotic goods contrary to s 233B(1) of the Customs Act 1901 (Cth) and with an offence relating to the possession of a false passport.

4 On the date of obtaining the restraining order the applicant applied to the Court for an order under s 22 of the Act forfeiting to, and investing in, the Crown all of the interests in property of the respondent that are the subject of the restraining order. 5 The restraining order remains in force. 6 At the time of making the restraining order the Court also made an ancillary order under s 12(1) of the Act requiring, inter alia, that respondent be examined on oath concerning his affairs and the affairs of named persons and entities (the examination order). The terms of the examination order were, relevantly: "The Court orders: 1. Pursuant to s 12(1) of the Criminal Assets Recovery Act 1990 the examination on oath of the following persons before a Registrar concerning their own affairs and the affairs of each other including the nature and location of any property in which any of them has an interest: (a) Malcolm Gordon Field." 7 On 31 July 2001 the Court made an order requiring the respondent to attend before a registrar of the Court in Sydney at 10:00 am on Monday 13 August 2001 and at any adjourned date in order to be examined pursuant to the examination order. 8 On 13 August 2001 when the respondent appeared before the Registrar he refused to be sworn and examined. His counsel informed the Court: "Registrar, I can indicate for the convenience of the Court my instructions are that this examinee wishes to remain silent until after completing his criminal trial. He is currently confronting (sic) the Court on criminal charges, serious criminal charges, and I understand on instructions that will be the position he'll be taking in respect of these proceedings."

9 On 22 August 2001 the applicant moved on notice that the respondent be found guilty of contempt of court by reason of his failure to comply with the examination order. The hearing of the proceedings for contempt came on before me on 5 April 2002. The respondent's stance was consistent with that which he had adopted before the Registrar. His counsel stated: "I am instructed that the respondent seeks to remain silent until his criminal trial and in all matters his silence is extended to saying anything in court proceedings. One of the issues at his criminal trial is going to be that of voice identification as far as I understand." 10 On 7 May 2002 the respondent was found guilty at his trial in the District Court of the offences relating to his possession of the false passport and knowing concern in the importation into Australia of prohibited narcotic goods.

11 Lengthy delays arising out of the respondent's medical condition, and the need to obtain reports concerning that condition, attended the finalisation of the contempt proceedings. On 29 May 2003 I convicted the respondent of contempt of court and sentenced him to a term of twelve months' imprisonment to commence on 5 June 2007 and to expire on 4 June 2008: New South Wale Crime Commission v Field [2003] NSWSC 5. The sentence is partly accumulated on the non-parole period specified with respect to the second of the sentences imposed in the District Court. 12 On 15 June 2004 the applicant filed a notice of motion claiming orders including (i) a declaration under s 23(4) of the Act that the respondent has effective control of interests in certain property, (ii) judgment for the applicant under Pt 13 r 2 of the Supreme Court Rules 1970 on its claim for an assets forfeiture order in respect of the interests of the respondent's in certain property, and (iii) an order forfeiting to and vesting in the Crown the interests of Pegasus Properties Limited in certain property (the motion for summary judgment).

13 The applicant's motion for summary judgment was adjourned on a number of occasions at the request of the respondent. On 25 August 2004 the applicant wrote to the respondent's solicitors advising that it did not consent to the further adjournment of its motion. On 27 August 2004 the respondent's solicitors wrote to the applicant seeking further and better particulars of its claim that is the subject of the motion for summary judgment.

14 It is against this background that the applicant moves to have the respondent examined on oath pursuant to the examination order.

15 It is the applicant's principal position that the examination order is still on foot and that the respondent's conviction for the contempt arising out of his refusal to be examined on 13 August 2001 is no obstacle to him now being required to comply with it. In the alternative the applicant seeks a further order under s 12(1) of the Act. That subsection provides that this Court may, when it makes a restraining order or at any later time, make any ancillary orders that it considers appropriate, including an order for the examination on oath of the owner of an interest in property that is subject to the restraining order. 16 The respondent submits that the determination of the contempt charge and the imposition of the sentence upon him brought to an end the order made by Simpson J. Mr Ikners, who appeared on the respondent's behalf, submitted that while an ancillary order under s 12(1) may be made at a later time than the time the Court makes a restraining order under s 10, the provision does not admit of successive ancillary orders being made. The latter submission does not seem to me to derive support from the terms of the section however in light of the conclusion to which I have come it is not necessary to consider the matter further.

17 The submission that the respondent's conviction and sentence on the charge of contempt brought the examination order to an end was not further developed. I am not persuaded that the respondent's conviction and sentence arising out of his failure to comply with the examination order on 13 August 2001 operates to discharge it. The examination order was not limited with respect to the time in which it might take effect. Leave was given to the applicant to approach the Registrar for a date to be fixed for the examination. In the event that the examination did not proceed on the date appointed I see no reason to hold that the examination order was spent. 18 In written submissions filed on the applicant's behalf it was noted that no question of double jeopardy arises. I accept that is so. I do not understand the respondent to have contended otherwise. The principal way in which the respondent sought to resist the making of either of the orders that the applicant claims is the submission that against the background that I have outlined any attempt to secure compliance with the examination order (or with a further order in like terms made under s 12(1)) amounts to an abuse of the process of the Court.

19 The respondent has been been sentenced to a determinate term of imprisonment for his contempt. One consequence of this is that it is not open to him to purge his contempt by submitting (should he choose to do so) to examination in accordance with the examination order. As I understand the respondent's case, it is said to be oppressive for the applicant who moved to have him dealt with by way of the imposition of a determinate sentence under the Crimes (Sentencing Prodecure) Act 1999 to come back to the court to seek further enforcement of the examination order or, in the alternative, to seek a further order in the same terms.

20 In the contempt proceedings the applicant did not seek an order that might have the effect of coercing the respondent into submitting to the examination order. It was the applicant's position that since the respondent was in custody as a remand prisoner, "the Court could not be confident that an order for his continuing commitment to prison would result in enforcing his compliance with the Court's order and, accordingly, a term of imprisonment should be imposed."

21 Hunt CJ at CL explained in Wood v Galea (unreported) 24 April 1997 at 4 (in the context of a contempt constituted by a refusal to give evidence before a Royal Commission) the purpose of punishment for contempt constituted by the refusal to be examined may be twofold. One purpose may be to compel obedience by commitment of the contemnor to custody until he or she agrees to be examined and the other purpose may be punishment by way of retribution for the wilful defiance of the order of the court.

22 The scope of the concept of abuse of process in the context of the institution of criminal proceedings for an improper purpose was discussed in Williams v Spautz (1991-1992) 174 CLR 509. In their joint judgment Mason CJ, Dawson, Toohey and McHugh JJ observed at 520: "As Lord Scarman said in Reg v Sang ([1980] AC 402, at p 455), every court is "in duty bound to protect itself" against an abuse of its process. In this respect there are two fundamental policy considerations which must be taken into account in dealing with abuse of process in the context of criminal proceedings. Richardson J referred to them in Moevao v Department of Labour ([1980] 1 NZLR 464, at p 481) in a passage which Mason CJ quoted in Jago ((1989) 168 CLR, at p 30). The first is that the public interest in the administration of justice requires that the court protect its ability to function as a court of law by ensuring that its processes are used fairly by State and citizen alike. The second is that, unless the court protects its ability so to function in that way, its failure will lead to an erosion of public confidence by reason of concern that the court's processes may lend themselves to oppression and injustice." 23 Mr Temby QC, who appeared on behalf of the applicant, acknowledged that persistent attempts to have the respondent submit to the examination order may constitute an abuse of process. In his submission that time has not yet come. 24 The respondent's stance to-date has been that he was unwilling to comply with the examination order until the criminal proceedings that were then pending against him were finalised. That has now taken place. On 5 April 2002 on the hearing of the contempt proceedings his counsel submitted: "The only other thing that I say in respect to sentence is that at the outset of this, the respondent has indicated his position and that was 'I don't wish to say anything until the completion of my criminal trial'. He hasn't said, 'I don't wish to say anything, full stop'. He hasn't maintained full stop silence and, indeed, I have indicated on instructions this morning contrary to that. The only thing that I say is, therefore, on any sentence, I would ask your Honour to consider what prejudice falls upon the New South Wales Crime Commission and I only say that in respect of it is a difficult aspect and I probably should encapsulate it better on the next occasion, but we are dealing with the allegation he has additional assets or other assets in the second set of proceedings. Those assets are subject to restraint, they are restrained. The whole scheme of things doesn't change by contempt. Where it will change in substance is that if, after his criminal trial, he then continues to maintain his silence."

25 The respondent's stated reason for his refusal to comply with the examination order did not operate to excuse or to mitigate his wilful defiance of the order of the Court on 13 August 2001 and for that he has been punished. However, taking into account the reason offered for the earlier refusal to be examined and the submissions put on the respondent's behalf in the contempt proceedings, I am not persuaded that to require him to now be subject to the examination order would be to allow the processes of the Court to be made the instruments of oppression or injustice. I reject the submission that the grant of the liberty that the applicant seeks (or the making of a further order under s 12(1)) constitutes an abuse of the process of the court. ORDER

The plaintiff has liberty to approach the Registrar to obtain a date for the examination on oath of the respondent pursuant to the order made by Simpson J on 4 July 2001.

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