On the evening of Friday 28 October 2016, sitting as duty judge, I made orders under s 93 of the Proceeds of Crimes Act 2002 (Cth), extending the period provided in s 92 for forfeiture of the restrained property, so that the automatic forfeiture provisions of the Act did not take effect.
These are the reasons for that order.
The proceedings were commenced ex parte in November 2011, when Hidden J made restraining orders under s 17 of the Proceeds of Crimes Act in relation to various property there identified. Mr Pratten was later convicted of seven offences of dishonestly obtaining a financial advantage by deception by lodging tax returns which did not disclose all assessable income under s 134.2(1) of the Criminal Code Act 1995 (Cth), for which he was sentenced by Rothman J (see R v Pratten (No 12) [2014] NSWSC 396). Mr Pratten's conviction appeal was later upheld (see Pratten v R [2014] NSWCCA 117).
On 28 June 2012, I made further orders under s 17 of the of the Proceeds of Crimes Act in relation to other property (see Director of Public Prosecutions v Timothy Charles Pratten (Supreme Court (NSW), 28 June 2012, unrep)).
Mr Patten was convicted at a second trial on April 2016 and then sentenced again by Rothman J (see R v Pratten (No 25) [2016] NSWSC 539).
On 27 October 2016 Mr Pratten's solicitor filed a notice of motion seeking orders under the Proceeds of Crimes Act staying these proceedings until hearing of an appeal against his second conviction and hearing of an application that the proceedings be removed to the High Court.
On 28 October 2016 a second motion was filed, which was referred to the duty judge for urgent hearing. There, orders were sought under ss 29 and 31 of the of the Proceeds of Crimes Act, excluding from the restraining orders earlier made in relation to certain property, as well as orders under s 93. The motion as supported by an affidavit sworn by Mr Pratten's solicitor, Mr Bowe.
It emerged from the affidavit and the submissions which Mr Bowe advanced at the hearing of the second motion, that he had commenced acting for Mr Pratten, who had earlier received a grant of legal aid for these and other proceedings, in November 2015, after the solicitor who had been acting for Mr Pratten was appointed a Magistrate. Mr Pratten had also sought, but not been granted, legal aid in respect of his application to the High Court; a decision which is presently being reviewed by the Legal Aid Commission.
In his submissions Mr Bowe explained some of the difficulties he had encountered in clarifying with the Legal Aid Commission that Mr Pratten had, in fact, received a grant of legal aid for these proceedings and the circumstances in which he had come to appreciate only on 27 October that an application under s 93 had to be made and how it came to be that counsel had advised him on 28 October that time for grant of the application would expire at midnight that day.
That advice was consistent with the view reached as to the proper construction of ss 92 and 93 of the Proceeds of Crimes Act arrived at by Hall J on 7 October 2016 in The Commissioner of the Australian Federal Police v Kinch [2016] NSWSC 1424. His Honour there concluded that ss 92 and 93 were "interlocking or interconnected provisions that operate together as part of the scheme established under Division 1 of Part 2‑3" (at [61]). After making reference to a number of authorities in which the proper construction of these provisions had been considered, he concluded that Hidden J had been correct in concluding in The Commissioner of the Australian Federal Police v Halac [2015] NSWSC 520, that an order under s 93 excluding forfeiture cannot be made, after midnight on the last day of the six month period prescribed by s 92(3) (see at [81]).
The correctness of those conclusions was not challenged in these proceedings. It was thus common ground that unless Mr Pratten's application was considered and granted prior to midnight on 28 October, that his property would be automatically forfeited, in accordance with the provisions of s 92, given his second conviction in April 2016, notwithstanding the appeal he has lodged against that conviction and the application which he has made to the High Court.
It was also common ground that if Mr Pratten's second conviction was later quashed, either as the result of orders made by the Court of Criminal Appeal or the High Court, the forfeited property would not be automatically returned to him. In that event the provisions of Division 4 of Part 2-3 of Chapter 2 of the Act take effect, which would permit him to make an application for its return, the merits of which would fall to the Court then to decide.
What was thus in issue was whether Mr Pratten's application had been made "without undue delay" and whether it had been "diligently followed up", as s 93(1)(c) of the Proceeds of Crimes Act required.
I took the view, in light of the unchallenged evidence given by Mr Bowe, that the application for orders under s 93 having been pursued to hearing on the same day as it was filed, there could be no question that once made, it had been "diligently followed up".
Whether it had been made "without undue delay" was more difficult to resolve. The Commissioner also contended that the requirements of s 31 had not been met. That section provides:
"Application to exclude property from a restraining order after restraining order has been made
(1) A person may apply for an order under section 29 or 29A if a * restraining order that covers property in which the person claims an * interest has been made.
(1A) An application under subsection (1):
(a) must be made to the court that made the * restraining order; and
(b) may be made at any time after the restraining order is made.
(2) However, unless the court gives leave, the person cannot apply if he or she:
(a) was notified of the application for the * restraining order, but did not appear at the hearing of that application; or
(b) appeared at the hearing of that application.
(3) The court may give the person leave to apply if the court is satisfied that:
(a) if paragraph (2)(a) applies--the person had a good reason for not appearing; or
(b) if paragraph (2)(b) applies--the person now has evidence relevant to the person's application that was not available to the person at the time of the hearing; or
(c) in either case--there are other special grounds for granting the leave.
(4) The person must give written notice to the * responsible authority of both the application and the grounds on which the exclusion is sought.
(5) The * responsible authority may appear and adduce evidence at the hearing of the application.
(6) The * responsible authority must give the person notice of any grounds on which it proposes to contest the application. However, the authority need not do so until it has had a reasonable opportunity to conduct * examinations in relation to the application."
[2]
Requirements of s 31
There is no question that the motion which Mr Bowe filed could have been better expressed.
Fairly read, however, it clearly sought an order under s 31. When read together with Mr Bowe's supporting affidavit, it had to be accepted, as Mr Bowe contended, that it was apparent that the ground on which the application was made, was Mr Pratten's contentions in the High Court, that the way in which his trial had been conducted involved the jury which had convicted him, in exercising a procedural administrative process which was "exclusive to the Commissioner of Taxation", who had not undertaken that process.
Whether that is a basis upon which orders under s 29 of the Act, would be entertained, or made, is not a question which now arises to be determined. What that evidence did establish was that written notice had been given to the Australian Federal Police ("AFP") of both the application and the grounds on which Mr Pratten sought the exclusion.
[3]
Undue delay
I also came to the conclusion that there had been no undue delay in Mr Pratten's pursuit of his s 93 application.
I reached that view, having taken into account the circumstances where, even though Mr Pratten was legally represented in these proceedings, after he received a grant of legal aid, his legal representative had not appreciated the need for the making of the s 93 application, until the day it was filed.
Proper account also had to be taken of the difficulties Mr Bowe explained he had encountered, after he came to act for Mr Pratten, he said as an "addendum" to the grant of legal aid received for the conduct of the second trial. In his submissions, Mr Bowe also explained certain difficulties which he had encountered in determining the extent of his retainer and the time at which he came to appreciate that he had to act, if Mr Pratten was not to automatically forfeit his property, namely only on 27 October.
On that material, it had to be accepted that there had been a degree of representative error, which had to be taken into account in Mr Pratten's favour, in considering the delay in the making of the s 93 application.
What also told in favour of the conclusion that the application under s 93 had been made without "undue" delay, were the following:
1. Firstly, that Mr Pratten, who was in custody, had been refused legal aid for his application to the High Court and thus had to pursue his application to that Court without legal assistance and with limited access to computers and necessary materials. The application was filed in the High Court on 20 April 2016. He has to file his written submissions in that Court by 11 November 2016.
2. That Mr Patten was found guilty at his second trial on 29 April 2015.
3. That it was on 14 June 2015 that he was refused legal aid for his High Court application
4. That it was also on 14 June that the Commissioner incorrectly advised Mr Pratten by letter, that under s 92A automatic forfeiture of his property would occur on 11 August, although inconsistently, in the attached notice, it was said that the application had to be made and determined before midnight on 28 October.
5. That on 26 August Mr Pratten sought a review of the Legal Aid decision. The decision on that application is expected to be given on 9 November.
6. That it was on 21 October that the AFP sent a further letter to Mr Pratten, notifying him that the advice given in the June letter that automatic forfeiture would occur on 11 August, was incorrect.
7. That Mr Bowe's evidence was that Mr Pratten was still unfunded for counsel in these proceedings, when he finally came to appreciate the need to make this application. He thus obtained pro bono legal advice from counsel only on 28 October, which led to the making of the application only that afternoon, on the last available day for the extension which Mr Pratten seeks, so that he can pursue his s 31 application.
[4]
ORDERS
In the result, I concluded that the extension order sought should be made, for the 15 month term that Mr Pattern sought, the Commissioner accepting that there would be no resulting prejudice in the order not having any shorter term.
In the circumstances the Commissioner also did not press an order for costs being made against Mr Pratten, accepting that such a departure from the usual order under the Rules would require a basis for the conclusion that Mr Pratten had misconducted himself in these proceedings, to be established. There was, on the matters I have discussed, clearly no basis for such a conclusion being reached.
In the circumstances I make the usual order, namely that the Commissioner bear Mr Pratten's costs of the motion.
[5]
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Decision last updated: 03 November 2016