NSW Crime Commission v Greer

i. In that it reverses the onus of proof in serious matters. ii. That the act is based on suspicion alone. iii. Denies a right to trial by jury as contained in Section 80 Australian Constitution Act. 4. I believe that Mr George Greer has a good and valid defence to any order for the forfeiture of property against him under the Criminal Assets and Recovery Act [sic]. 5. I believe that Myra Francis Greer has a good and valid defence to any order for the forfeiture of property against him [sic] under the Criminal Assets and Recovery Act [sic]. 6. On Wednesday 20 October 1999 I was telephoned by a Registrar of the Court of Appeal of the Supreme Court of Australia [sic]. I cannot recall this Registrar's name. However he said words to the effect, 'I have a faxed copy of a Notice of Appeal in the matter of Greer. What is this about?" I said 'These documents have been filed by fax so that we can comply with time limits.' He said 'I appreciate that however they should have been filed in the Common Law Division. I will take them to that Division.' 7. Later that day I was contacted by Mr George Greer who advised me that 'The Court of Criminal Appeal Registry will not accept the documents.'" 11 It is not easy to know what to make of all this. Certainly the documentation bespeaks a confusion about the processes available under the Act. Two relevant possibilities appear to emerge in relation to the notice of motion. The first is that it was filed, and intended to be filed, in the Court of Appeal, as an appeal against the making of the assets forfeiture order. If that is the case then this Division has no jurisdiction to deal with it in any way. The second, and more likely, possibility is that, notwithstanding the way it is framed, and notwithstanding the letter to the Registrar of the Court of Appeal of 19 October, it ought to be treated as filed in this Division. The proceeding number inserted into the heading would lend support to this approach. Further, Mr Greer was represented by counsel in the proceedings, and made no suggestion that the notice of motion could not be dealt with in this Division. I am therefore prepared, for the moment, to assume that it was filed, or was intended to be filed, in this Division and in the proceedings commenced by the Crime Commission. It is to be remembered that those proceedings related to the property of Myra Frances Freer and John Duffy. 12 The next question concerns the proper characterisation of the application contained in the notice of motion. So far as I am able to determine the only statutory provision that could remotely found the application is s 25. Reference was made to this section by counsel for Mr Greer during the course of argument, and, although it is not entirely clear, it seems that the notice of motion was intended to contain an exclusion application under that section. That is how I propose to treat it. 13 Three difficulties then confront Mr Greer. The first is derived from s 25(1). That subsection permits an application for an exclusion order to be made (where, as here, an assets forfeiture has been made) by "a person whose interest in property was forfeited by the order". But there is no assets forfeiture order relating to any property of Mr Greer. The only order in relation to the property identified in the notice of motion is the order forfeiting the interest of John Duffy. Mr Greer, in his evidence, did not claim any identity with John Duffy, and indeed claimed that he had lent money in 1982 to Mr Duffy to purchase the real estate. Mr Greer is not, therefore, a person whose interest in property was forfeited by the assets forfeiture order and he is not a person entitled, by s 25(1), to make an exclusion application. 14 The second difficulty concerns the nature of the interest in the property Mr Greer asserts he has. In relation to the Mercedes Benz, he was asked in his evidence in chief if he had any "monetary interest as such" in the vehicle, and he disclaimed any such interest. Later, he asserted that, while he did not have "a financial interest" in the vehicle, he was owed some money in respect of repairs and maintenance carried out on it while it was in his possession. That is clearly insufficient to give him any legal or equitable interest in the vehicle. The position in relation to his asserted interest in the real estate is more complex. In an affidavit filed in the Federal Court in Bankruptcy proceedings (Ex 3) Mr Greer deposed to having acquired "an interest in [the real estate] (approximately $110,000) acquired in 1982."

In oral evidence in the present application he said that that interest derived from "funds advanced to Mr Duffy to purchase the property back in 1982".

No evidence was called to establish that he had any interest such as might be created by a trust or a mortgage. The evidence is quite insufficient to establish that Mr Greer has any interest in the real estate such as would entitle him to be heard in any way in relation to the property the subject of the assets forfeiture order.

It may be that the foregoing, which no doubt appears very confusing, can be explained by the mention of one simple fact. There was evidence that certain federal authorities believe that John Duffy and George Greer are one and the same person. However Mr Greer denies this and that denial, for present purposes, must be accepted. There is no evidence to establish the contrary proposition. 15 The third difficulty confronting Mr Greer, if his notice of motion is to be taken to be a s 25 exclusion application, is one of time. S 25(4) imposes a time limit of six months from the date of making the assets forfeiture order. That was 19 April 1999. The notice of motion was filed on 8 November 1999 - clearly outside the relevant time limit. If Mr Greer is a person who was not given notice of the original application it lies within the power of the court to extend the time for making such an application. There is no evidence that Mr Green is such a person, although there is equally no reason to suppose that he was given such notice. There is no explicit application for an extension of time, although, on one (generous) reading of the notice of motion, the opening words might be construed as such. Were I favourably disposed to the notion that Mr Greer might otherwise have a valid claim I would incline to the view that the notice of motion should be so interpreted. However, having regard to the conclusions I have reached in relation to his standing to make the application, to grant an extension of time would be a futility. 16 Mr Greer has no standing to make an application under s 25 in relation to the property mentioned in the notice of motion. Accordingly the notice of motion filed on his behalf so far as it is properly within the jurisdiction of this Division, on 8 November 1999 will be summarily dismissed. **********

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