Director of Public Prosecutions v Afram [2022] NSWSC 1133

Supreme Court New South Wales

Medium Neutral Citation: Director of Public Prosecutions v Afram [2022] NSWSC 1133 Hearing dates: 22 August 2022 Decision date: 22 August 2022 Jurisdiction: Common Law Before: Adamson J Decision: (1) Grant leave to the plaintiff pursuant to s 13(3) of the Confiscation of Proceeds of Crime Act 1989 (NSW) to file a summons for a Confiscation Order outside the six-month time limit. (2) No order as to costs. Catchwords: CRIME — Confiscations — Forfeiture order — where summons filed after relevant period — whether in interests of justice to extend time for filing — whether delay sufficiently explained — leave granted to file out of time Legislation Cited: Confiscation of Proceeds of Crime Act 1989 (NSW), ss 4, 13, 25 Category: Procedural rulings Parties: Director of Public Prosecutions (Plaintiff) Fayed Afram (Defendant) Representation: Counsel: F Gray (plaintiff) A Stewart (defendant)

Solicitors: Office of the Director of Public Prosecutions (plaintiff) Stewart Law (defendant) File Number(s): 2022/194863

JUDGMENT: EX TEMPORE

Introduction 1. The Crown seeks leave to file a summons dated 29 June 2022 to make a Confiscation Application pursuant to the Confiscation of Proceeds of Crime Act 1989 (NSW) (the Act). Section 13 of the Act provides that a Confiscation Application may be made in respect of property if a person is convicted of a serious offence. Section 13(3) provides that an application must be made before the end of the relevant period in relation to the conviction except with the leave of the Supreme Court. 2. It is common ground that the relevant period is a period of six months dating from the date on which the sentence was imposed on Fayed Afram (the defendant). This flows from the definition of "relevant period" in s 4 of the Act. 3. It is common ground that the summons was not sought to be filed until 29 June 2022, notwithstanding that the defendant was sentenced in the District Court on 24 June 2021. Had the time limit in the Act been complied with, the summons would have been filed by 24 December 2021. The Act provides that the Court must not grant leave under s 13(3) unless the property or benefit to which the application relates is property of a kind referred to in paragraph (d) of the definition of "tainted property" in s 4(1) or a benefit of the kind referred to in s 25(2)(a1) or 30(1)(b). It is common ground that subparagraph (a) of s 13(3A) has been satisfied. However, there is a second requirement in s 13(3A)(b), namely that the Court is satisfied of one of three matters. It is common ground that the only relevant matter is that in s 13(3A)(b)(iii), namely that it is otherwise in the interests of justice to do so. 4. Accordingly, the question for me, in determining the application by the Director of Public Prosecutions (DPP) is whether it is in the interests of justice to allow the DPP to make the application notwithstanding that the summons was filed outside the six month time period.