Solicitors:
Bilias & Associates (Applicant)
Australian Federal Police - Criminal Assets Litigation (Respondent)
File Number(s): 2013/280518
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Judgment
Introduction
This application for an extension order, pursuant to s 93 of the Proceeds of Crime Act 2002 (Cth) (the Act), extending the period before property is forfeited, came before me at 10 AM today in the Duty List. The submission of counsel for the Commissioner of the Australian Federal Police (the plaintiff) was that the property in question will be forfeited absolutely at 11.59 PM tomorrow evening. The submission of counsel for Mr Christopher Cranney, the defendant (who is the applicant on the motion) was that that will occur at 11.59 PM tonight. For abundant caution, I have proceeded on the assumption that the latter submission is correct. Due to the obvious exigencies of the situation, I must be brief.
Statute
The section in question in its entirety is as follows:
93 Making an extension order extending the period before property is forfeited
(1) The court that made the *restraining order referred to in paragraph 92(1)(b) may make an order (an extension order) specifying an extended period for the purposes of subsection 92(3) if:
(a) an application for the order is made within 6 months after the start of the *conviction day for the relevant conviction; and
(b) the applicant has also applied to the court under:
(i) section 30 or 31 to exclude property from the restraining order; or
(ii) section 94 to exclude the property that is covered by the restraining order from forfeiture under this Part; and
(c) the court is satisfied that the applicant made the application under section 30, 31 or 94 without undue delay, and has since diligently followed up that application.
(2) The *extension order stops being in force if the application under section 30, 31 or 94 is finally determined before the end of the 6 month period starting on the *conviction day for the relevant conviction.
(3) The extended period ends if the application under section 30, 31 or 94 is finally determined before the end of that period.
(4) If the court makes the *extension order, the *responsible authority must take reasonable steps to give any person who has or claims, or whom the authority reasonably believes may have, an *interest in the property to which the order relates a written notice stating:
(a) the date on which the property will be forfeited under this Part, in accordance with the extension order, unless it is excluded from forfeiture; and
(b) the effect of subsections (2) and (3).
The extended period specified must end no later than 15 months from the start of the conviction day for the relevant conviction.
The submission of the defendant was that the preconditions contained in that section for the making of an extension order had been established, and that I should make such an order for the maximum period, with an expiry date of 19 February 2017. The plaintiff was represented on the motion, and evidence was tendered by it. The position of the plaintiff, however, was to neither consent to, nor oppose, the motion, and accordingly, no written or oral submissions were made by it.
The evidence placed before me on the motion establishes that there is indeed a restraining order in place with regard to two pieces of real property located in the Sydney suburb of Acacia Gardens; that the restraining order was made by this Court; that the "conviction day" arising from the conviction of Mr Christopher Cranney for a number of serious offences is 20 November 2015; and that, by way of a separate notice of motion also filed on 13 May 2016, there has been an application made pursuant to s 94 of the Act for an exclusion of property from forfeiture. Accordingly, as Hidden J remarked in The Commissioner of the Australian Federal Police v Halac [2015] NSWSC 520, unless I grant an extension order very shortly, the property will indeed be automatically forfeited to the Commonwealth.
It can be seen that, those statutory preconditions having been made out, my focus must be upon s 93(1)(c); namely, whether I am satisfied that the application for the extension order has been made without undue delay, and that, since it was made, it has been diligently followed up.
Aspects
As I remarked to counsel for the defendant during oral submissions, there are a number of noteworthy aspects of the matter.
First, although the sub-section under consideration is of reasonably long standing, and this situation must have arisen on many previous occasions throughout Australia, the researches of counsel and of my own staff suggest that there has only been one judicial discussion of the central sub-paragraph: The Commissioner of the Australian Federal Police v Klein and Hubble [2014] NSWSC 1638. Research also suggests that that decision of mine has not been the subject of subsequent judicial consideration, except by Hidden J in The Commissioner of the Australian Federal Police v Halac.
Secondly, in The Commissioner of the Australian Federal Police v Klein and Hubble I expressed the view that, in light of the "draconian" aspects of the statutory regime (to adopt the characterisation of Hidden J), one should interpret the sub-paragraph reasonably liberally. Having said that, in order to give content to the intention of Parliament expressed by the words it has used, there must come a point where, whatever the explanation proffered, one comes to the view that a defendant has not established that he or she has acted without undue delay, and with diligent follow up.
Thirdly, the "onus" is on a defendant to persuade the relevant judicial officer that the preconditions in the sub-paragraph in question have been established. If it be the case that an application is made in circumstances in which the judicial officer simply does not have time to come to that affirmative view before the mandatory forfeiture is to occur, then the application must fail.
Fourthly and finally, despite the inclusion of s 92A in the Act (whereby the plaintiff must explicitly inform an affected person in writing of a looming mandatory "cut-off" date with regard to forfeiture), nevertheless there may be a misapprehension among the legal profession as to the true meaning of the section, and its consequences. If so, that misapprehension is a dangerous one.
Evidence
Turning to discuss in chronological form the evidence placed before me by both parties, on 12 February 2013, Mr Christopher Cranney was arrested and charged with conspiring to import a prohibited drug and receiving a bribe as a Commonwealth official.
On 17 September 2013, the plaintiff obtained a restraining order over two pieces of real property at Acacia Gardens, a suburb of Sydney.
The position of Mr Gregory Cranney, the brother of Mr Christopher Cranney, is that he has a proprietary interest in those two pieces of real property.
On 30 May 2014, Mr Gregory Cranney was charged with recklessly dealing with the proceeds of crime.
Since June 2015, negotiations have taken place orally and in writing between the solicitor for Mr Christopher Cranney and the legal advisors of the plaintiff.
On 20 November 2015, in the District Court of New South Wales, Mr Christopher Cranney was convicted and sentenced for conspiring to import a commercial quantity of a prohibited drug, and for receiving two bribes. The details of the sentences imposed were not placed before me, but I can safely infer that they were lengthy.
On 3 December 2015, the solicitor for Mr Christopher Cranney received the notice pursuant to s 92A of the Act, to which I have referred. On the same date, Mr Christopher Cranney filed a notice of appeal against his conviction and sentence; I was told from the Bar table that the hearing of the appeal may be listed towards the end of 2016.
The trial of Mr Gregory Cranney is currently listed to commence on 24 October 2016. The issues in that trial may overlap with some of the issues that will arise in the resistance to the forfeiture order being made.
Although the solicitor for Mr Christopher Cranney has had experience in confiscation matters, it was not until 10 May 2016 that he came to appreciate that, unless an extension order were made, the restrained property would be irrevocably forfeited on 19 May 2016.
On 11 May 2016, a lawyer for the plaintiff advised the solicitor for the defendant that the plaintiff would neither consent to, nor oppose, the motion placed before me.
On 12 May 2016, an accountant was urgently retained by the solicitor for the defendant to prepare financial analysis in support of the resistance to the forfeiture.
Finally, as I have said, the two separate notices of motion were filed on 13 May 2016.
Determination
Turning to my determination, undoubtedly this application could and should have been made earlier. Indeed, as I remarked to counsel for the defendant, if that had occurred, and it was patently clear that the test in the sub-paragraph had been established, then attendance at court by both parties may not have been necessary, and a judge may, perhaps, have been prepared to grant the extension order in Chambers.
There is no question that there was a delay in the making of the application under s 93 and s 94 of the Act. The more difficult question is whether the defendant has established that it was made without undue delay.
On the evidence placed before me, I accept that Mr Christopher Cranney has been focussed on the criminal proceedings that resulted in the imposition of sentences in November 2015. I also infer that the imposition of lengthy sentences upon him has affected him adversely emotionally.
I also accept that Mr Gregory Cranney has been focussed upon the serious pending criminal allegation against him.
I also accept that the solicitor for Mr Christopher Cranney was focussed upon the trial, and in more recent months has been focussed not only upon the appeal against conviction and sentence, but also upon the ongoing negotiations with the plaintiff.
Finally, I accept the evidence of the solicitor that, regrettably, he did not become aware of the imperative urgency of making these applications until three days before the motions were filed. And I think there is force in the submission of counsel for the defendant that, once that awareness was obtained, the application was made very promptly, featuring as it did the filing of two notices of motion in proper form, the preparation of a comprehensive affidavit of the solicitor with many annexures, and the filing yesterday of cogent written submissions by the two counsel for the defendant, who I infer were also briefed urgently.
Rather grudgingly, and approaching the entirety of the evidence placed before me in accordance with my general analysis in The Commissioner of the Australian Federal Police v Klein and Hubble, and bearing in mind the position adopted by the plaintiff, I am prepared to find that the test contained in the crucial sub-paragraph is made out. Accordingly, I shall make an extension order, and thereby forestall mandatory forfeiture of the two pieces of real property.
As for its length, counsel for the defendant submitted that it would be appropriate for the order to extend for the maximum period. That was said to be because negotiations are continuing, and may be quite involved; because the trial of Mr Gregory Cranney is expected to be in October 2016, and there may be an overlap of issues, adverse to the forensic position of Mr Gregory Cranney in an adversarial system of criminal justice; and, finally, because, if Mr Christopher Cranney is successful in his appeal against conviction, the (current) basis for the restraining order and potential forfeiture will evaporate.
The plaintiff did not wish to be heard to the contrary with regard to the length of the extension order, and, after reflection, I am prepared to accept the submission of the plaintiff in that regard.
Finally, I think it appropriate that the extant motion relating to s 94 of the Act come back before the Common Law Registrar reasonably promptly, so that it may advance towards hearing.
Costs
Counsel for the defendant accepted that, even if I were prepared to make the orders sought, in all of the circumstances that I have outlined, it would be appropriate for his client to pay the costs of the plaintiff. I accept that concession.
Orders
I make the following orders:
1. Pursuant to s 93(1) of the Proceeds of Crime Act 2002 (Cth), the period at the end of which the "property" covered by the restraining order made on 17 September 2013 is forfeited to the Commonwealth be extended to midnight on 19 February 2017.
2. The defendant must pay the costs of the plaintiff of the proceedings before me.
3. The notice of motion of 13 May 2016 with regard to s 94(1) of the Proceeds of Crime Act 2002 (Cth) is stood over before the Common Law Registrar at 9 AM on 8 June 2016.
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Amendments
20 June 2024 - Publication restriction removed.
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Decision last updated: 20 June 2024