The Commissioner of the Australian Federal Police v Dickson

Supreme Court of NSW|2019-04-01|Before: Campbell J, Bellew J

Judgment

I pronounced orders at 10:00 am today on the basis that reasons would be published at 2 00 pm. These are those reasons.
By motion filed on 28 March 2019, Mr Dickson seeks an injunction restraining the Official Trustee in Bankruptcy, who has been joined as a second defendant for that purpose, from selling by auction fixed for 6 p.m. today, Wednesday 3 April 2019, his former home at Northbridge which is forfeited to the Commonwealth under the provisions of Part 2 - 3 of Chapter 2 of The Proceeds of Crime Act 2002 (Cth), and in particular s 92. Property so forfeited "vests absolutely in the Commonwealth at the time of the forfeiture".
Although the Notice of Motion seeks an injunction in what appears to be final form, the proceedings before me were pursued as an application for an interim injunction in accordance with the principles discussed in Beecham Group Limited v Bristol Laboratories Pty Ltd (1968) 118 CLR 618; 1968 HCA 1 (at 622-3). The jurisdiction is discretionary. There are two main enquiries. The first is whether the plaintiff has made out a prima facie case, "in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be entitled to relief" (at 622). The second inquiry is directed to the balance of convenience determined by reference to the question "whether the … injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted". Interim relief may be refused unless the moving party provides the usual undertaking as to damages (Rule 25.8 Uniform Civil Procedure Rules 2005).
Mr Dickson runs into an immediate problem with the undertaking he has proffered in that he has candidly indicated, as is in any event obvious from his circumstances, that he is impecunious. The usual undertaking, with respect, as a practical matter, is worthless. All of Mr Dickson's interests in property were subject to the various restraining orders made under s 18 of the Act in 2012 and 2013. All of that property was forfeited to the Commonwealth at midnight on 19 May 2016 as Bellew J declared under s 95 of the Act on 4 August 2016 (Exhibit B).

Background facts

These proceedings have a long and tortuous history, as do the course of the prosecution the criminal appeals referred to below. The proceedings were commenced by summons on 5 April 2012 and on the same day McCallum J made ex parte orders pursuant to s 18 of the Act, restraining the interests of Mr Dickson and his partner in the Northbridge property. The restraining order was made a day or two before Mr Dickson's arrest on the tax evasion charges, as I have styled them. Various restraining orders were made thereafter between 26 April 2012 and 21 November 2013 covering the full portfolio of property or interests in property described in the schedule to the order made by Bellew J on 4 August 2016 (Exhibit B).
It is important to bear in mind that the date upon which sentence was passed by Beech-Jones J is the conviction day within the definition in s 338: see s 333(a) of the Act. This is important because under s 92(1) property is forfeited to the Commonwealth at the end of the period applying under ss 92(3), if and only if, for present purposes, the person is convicted of a serious offence and, at the end of that period, the property is covered by a restraining order, inter alia, under s 18 against the person that relates to the offence. Under s 92(3) the period at the end of which property is forfeited is the six month period starting on the conviction day; or if an extension order is in force at the end of the extended period.
Under s 93 the court that made the restraining order may make an order specifying an extended period for the purpose of s 92(3) if the application for the extension is made within 6 months of the conviction day and, inter alia, the applicant has also applied to the court under s 94 to exclude property covered by the restraining order from forfeiture. The exclusion application under s 94 must be both made without undue delay and diligently followed up. However, the extended period specified must end no later than 15 months from the start of the conviction day for the relevant conviction: s 93(1). Extension orders were made by McCallum J on 25 August 2015 and by Schmidt J on 8 December 2015. The latter order extended the period to the maximum 15 months available, expiring at midnight on 19 May 2016.
Mr Dickson's exclusion application under s 94 was refused by Adamson J (Commissioner of the Australian Federal Police v Dickson (No 3) [2016] NSWSC 564) on 6 May 2016. An appeal to the Court of Appeal (AD v The Commissioner of the Australian Federal Police [2018] NSWCA 89; 332 FLR 285), heard on 1 August 2017, and decided on 30 April 2018, was dismissed essentially because there was no power for the court to make an exclusion order as the property had been forfeited and the maximum extension period had expired.

Outline of criminal appeal proceedings

Following his conviction and sentence, Mr Dickson relevantly sought leave to appeal from his conviction to the Court of Criminal Appeal. The Crown brought an appeal under s 5D Criminal Appeal Act 1912 (NSW) challenging the adequacy of the sentence. The appeals were heard on 11 and 12 February 2016 and decided on 10 June 2016 on which day orders were entered (see Exhibit A) refusing leave to appeal against conviction where leave was necessary and otherwise dismissing the conviction appeal. The Crown appeal was upheld and Mr Dickson was re-sentenced as summarised above. It is important to bear in mind that during the hearing of his appeal Mr Dickson was given leave to add an additional ground referred to as Ground 7 which was not directly addressed in the Court of Criminal Appeal's judgment (See Dickson v R (No 2) [2018] NSWCA 183 at [24] - [26], Wilson J, Schmidt J agreeing).
On 30 June 2016 Mr Dickson filed an application for special leave to appeal to the High Court of Australia. Ground 5 proffered in support of that application was that the Court of Criminal Appeal erred in failing to determine amended Ground 7 for which leave to amend had been granted at the hearing of the appeal. Special Leave was refused on 16 December 2016. Although Ground 5 was advanced in the written application apparently it was not propounded orally at the hearing (Dickson v R (No 2) at [10], Macfarlan JA). By Notice of Motion dated 20 November 2017 invoking Rule 25A of the Criminal Appeal Rules Mr Dickson sought to have the Court of Criminal Appeal revisit its orders of 10 June 2016 addressing amended Ground 7 and various other fresh matters not in any way previously raised in the appeal. The application was dismissed. Macfarlan JA joined in those orders by reference to Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34 at [24]. His Honour held that subject to very limited exceptions, which did not apply, the Court was functus officio after the entry of final orders and lacked power to further consider the appeal (Dickson v R (No 2) at [5]). Wilson J, with whom Schmidt J, agreed delivered a judgment to the same effect but, with respect, expounded in greater detail. Her Honour also pointed out that Rule 25A invoked by Mr Dickson had no application as it related to pending proceedings (Dickson v R (No 2) at [37]); nor did Rule 50C of the Criminal Appeal Rules apply, inter alia, the power it conferred must be invoked within 14 days after the order of the Court is entered, which time may not be extended. Her Honour said that Rule 50C "does not operate to give the Court an open-ended power to reconsider or revisit appeals previously determined by it" (Dickson v R (No) [45]). The Court of Criminal Appeal's decision was made on 27 August 2018.
On 10 September 2018 Mr Dickson sought leave to make an application under Rule 50C. His application was dismissed on 26 October 2018 (Dickson v R (No 3) [2018] NSWCCAA 242). The application was refused because although it had been filed within 14 days of the judgment of 27 August 2018 it remained that it did not provide a foundation for the Court to revisit its judgment of 10 June 2016 which was the substance of his application.
On 5 March 2019, and significantly out of time, Mr Dickson filed two applications for special leave to appeal to the High Court of Australia challenging Dickson v R (No 2) and Dickson v R (No 3) respectively.

Other proceedings

It may be relevant to note that Mr Dickson has commenced proceedings by a Statement of Claim seeking to have the original restraining orders set aside on the ground that they were procured by fraud. The Commissioner of the Australian Federal Police is defending the matter. Mr Dickson's application for summary judgment and the Commissioner's application for summary dismissal, I am informed, are listed for hearing on 17 May 2019.
Mr Dickson mentioned during oral argument that he was considering proceedings in the Court of Appeal's original supervisory jurisdiction for judicial review of the decisions of the Court of Criminal Appeal.

The central issue

Mr Dickson's claim for relief is based wholly upon a legal argument invoking s 99 and ss 107 to 114 of the Act. Section 99 is in the following terms: (1) The Commonwealth, and persons acting on its behalf, can dispose of, or otherwise deal with, property forfeited under section 92 in relation to a person's conviction of a *serious offence if and only if: (a) the period applying under subsection (3) has come to an end; and (b) the conviction has not been *quashed by that time. (2) However, such disposals and dealings may occur earlier with the leave of the court and in accordance with any directions of the court. (3) The period at the end of which the Commonwealth, and persons acting on its behalf, can dispose of or otherwise deal with the property is: (a) if the conviction is one in relation to which neither paragraph 331(1)(b) nor (c) applies, the period ending: (i) if the period provided for lodging an appeal against the conviction has ended without such an appeal having been lodged - at the end of that period; or (ii) if an appeal against the conviction has been lodged - when the appeal lapses or is finally determined; or (b) if the person is taken to have been convicted because of paragraph 331(1)(b), the period ending: (i) if the period provided for lodging an appeal against the finding of the person guilty of the offence has ended without such an appeal having been lodged - at the end of that period; or (ii) if an appeal against the finding of the person guilty of the offence has been lodged - when the appeal lapses or is finally determined; or (c) if the person is taken to have been convicted because of paragraph 331(1)(c), the period ending: (i) if the period provided for lodging an appeal against the person's conviction of the other offence referred to in that paragraph has ended without such an appeal having been lodged - at the end of that period; or (ii) if an appeal against the person's conviction of the other offence referred to in that paragraph has been lodged - when the appeal lapses or is finally determined.
It is common ground neither of paragraph 331(1)(b) nor (c) applies to Mr Dickson's convictions. Rather 331(1)(a) applies because he was actually convicted after his trial on indictment. Accordingly par (a) of sub-s (3) of s 99 is applicable to Mr Dickson's case. By that sub-section, the Commonwealth can dispose of the forfeited property "if an only and on if" the period applying under it has come to an end and his conviction has not been quashed. The period comes to and end either when the time fixed for lodging an appeal expires without and appeal being filed, or if an appeal is lodged when it is "finally determined"
Mr Dickson argued that the appeal which he lodged to the Court of Criminal Appeal following his conviction has not been finally determined essentially because Ground 7, according to the argument, has never been dealt with and he has not exhausted his avenues of appeal, hence the two new special leave applications filed on 5 March 2019.
If this is correct, his convictions may yet be quashed. Mr Dickson points to s 107 of the Act which provides that a forfeiture of property ceases to have effect if a person's conviction "is subsequently quashed" and certain other conditions are not satisfied. These conditions (there are two) include, here, the Commissioner not applying to the Court for confirmation of the forfeiture order on other grounds as set out in ss 108 to 111.
Under s 114 forfeited property which remains vested in the Commonwealth when a forfeiture ceases to have effect must be returned or if the property is no longer vested in the Commonwealth an amount equal to the value of the person's interest in the property is to be paid, at least if application is made by the person in that regard. Mr Dickson argues that notwithstanding a right to be paid for the value of the Northbridge property, if the forfeiture was not confirmed, money alone does not make up for the loss of a home.
The Commonwealth argued that the period applying under s 99(3) came to an end on 10 June 2016 and by then Mr Dickson's conviction had not been quashed. Accordingly, s 99 did not apply and it was entitled to deal with the Northbridge property which was vested in it by force of the Act. This was so because an application for special leave to appeal was not an appeal within the meaning of s 99. Such an application was an application for leave to commence an appeal. Accordingly, neither the 2016 Special Leave Application nor the 2019 Special Leave Applications engaged s 99(3).
In the alternative, if a Special Leave Application was an "appeal" for the purpose of s 99 that "appeal" had been finally determined when special leave was refused on 16 June 2016 and the Commonwealth was entitled to deal with the property.
That Special Leave Applications were lodged on 5 March 2019 could make no difference. The applications to reopen the intermediate appeal, from which they were brought, were not themselves appeals, but merely applications for leave for the Court of Criminal Appeal to revisit its previous decision. An Application for Special Leave to Appeal from the refusal of leave by an intermediate Court of appeal to reopen an appeal could not be regarded as an "appeal" within the meaning of s 99.

Discussion

It is implicit in Mr Dickson's argument that because, as he sees it, amended Ground 7 has never been dealt with by the Court of Criminal Appeal, his appeal to that Court has not been "finally determined". With respect, this is not correct. Section 5 of the Criminal Appeal Act, which creates the statutory right of appeal invoked by Mr Dickson, creates a single right of appeal against conviction on any ground which involves a question of law alone and by leave of the Court against conviction in other circumstances which need not be specified here and with leave against sentence. This is so, notwithstanding that the expression "on any ground" implies multiple grounds of appeal may properly be advanced in a single appeal. It may be that an appeal against conviction is separate from an appeal against sentence. I am not convinced that that is so. But even if it is so, s 99 is concerned only with conviction appeals.
The amended Ground 7 was an additional ground in the conviction appeal raised on the hearing. That appeal, as I have said, was finally determined by the Court of Criminal Appeal on 10 June 2010: Burrell v The Queen. It makes no difference to the finality of that determination that within 14 days of 10 June 2016 Rule 50C Criminal Appeal Rules may have permitted the court, by leave, to revisit the orders earlier pronounced. There was only one appeal which was finally determined by the orders made on 10 June 2016.
I am of the view that especially given the provisions of s 73 of The Constitution that an application for Special Leave to Appeal from a decision of the Court of Criminal Appeal is an appeal for the purpose of sub-paragraphs (i) and (ii) of paragraph (a) of sub-section (3) of s 99 of the Act. The appellate jurisdiction conferred on the Court by s 73 of The Constitution can be regulated by Parliament and exceptions can be established, but the jurisdiction to hear and determine appeals from judgments of the Supreme Court of a State cannot be ousted. For the purpose of s 99 the requirement of a grant of special leave as a condition of bringing an appeal to the High Court from a judgment of the Supreme Court of State is a matter of regulation only. There is no doubt that the Court of Criminal Appeal is the Supreme Court of New South Wales as constituted by s 3(1) Criminal Appeal Act. However, that "appeal" to the High Court was finally determined within the meaning of s 99 when special leave was refused on 16 December 2016, notwithstanding that a refusal of special leave for other legal purposes would be regarded as an interlocutory decision.
It is obvious that s 99 of the Act is not concerned with the merits of any appeal. It is concerned with fixing a period at the end of which the Commonwealth and persons acting on its behalf can dispose or otherwise deal with forfeited property. It is notable that disposals and dealings may occur earlier with leave of the court. The purpose of the section, as with many other provisions of the Act, as Beazley P pointed out in AD v The Commissioner, is to move the process of restraint, forfeiture, dealing and disposal through its various stages with a degree of predictability of progress. The onus is very much placed upon the person having an interest in the restrained property to be proactive in taking such necessary steps as are available to exclude his or her property from the inexorable operation of the Act. Section 99 does not permit the appeal process in relation to a person's conviction to proceed at a pace of the person's own choosing. Only an appeal lodged within the period provided for bringing an appeal by the statute creating the right of appeal or by the rules of court governing it engages s 99. A late appeal does not, even though the appellate court may be empowered to extend time nunc pro tunc. The encouragement of forensic diligence is one statutory purpose of the Act.
However one looks at it, the special leave applications lodged on 5 March 2019 are not capable of being an appeal against conviction which has been lodged within the period provided for lodging an appeal. Even if one considers, contrary to what I have said that Dickson v R (No 2) and Dickson v R (No 3) represent final determinations of an appeal lodged within the period provided for lodging an appeal. I emphasis those applications themselves were made after the time fixed by rule 50C for revisiting an appeal for limited purposes had expired.
To recap, an appeal engages s 99 only if it is lodged within the period provided by statute or rules of court for lodging an appeal against conviction. If an appeal is so lodged, the period fixed by s 99 ends if the appeal lapses under rules of court for want of prosecution or, if it is prosecuted diligently, when it is finally determined by the appellate court. There is no appeal presently on foot which complies with the statutory requirements and accordingly there is no pause, arguable or otherwise, on the Commonwealth's right to dispose or otherwise deal with property forfeited under s 92, including the Northbridge property. I repeat, the special leave applications lodged on 5 March 2019 do not fit the statutory bill.
It follows that I am of the view that Mr Dickson's application for interim injunction falls at the first hurdle. He has no prima facie case which has a measure of probability about it.
I would also be of the view that given the provisions of Chapter 2 Part 2-3 Division 4, the balance of convenience favours the Commonwealth. Even if special leave were to be granted, an appeal allowed and the conviction quashed, it does not follow that the forfeiture of the property would cease to have effect. Other conditions need to be satisfied and it is not clear whether they can be. Moreover, if at the end of the day all conditions are satisfied of the forfeiture ceasing to have effect, otherwise entitling Mr Dickson to a re-transfer of the Northbridge property, he would be entitled to the payment of an amount equal to the value of his interests in the property. I appreciate that there may be intangible value in a home, but to my mind this does not swing the balance of convenience back in his favour. In coming to this conclusion, I would have also borne in mind that his undertaking as to damages is at best symbolic.
For these reasons I ordered: 1. Prayers 3 and 4 in the Notice of Motion filed on 28 March 2019 are dismissed; 2. Mr Dickson is to pay the costs of the Official Trustee in Bankruptcy of and incidental to the motion.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 April 2019

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