Commonwealth Director of Public Prosecutions v Adorjany [2000] NSWSC 76

New South Wales Supreme Court

CITATION : Commonwealth Director of Public Prosecutions v Adorjany [2000] NSWSC 76 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 10751/97 HEARING DATE(S) : 17 February 2000 JUDGMENT DATE : 23 February 2000

PARTIES : Commonwealth Director of Public Prosecutions v Leslie Victor Manass ADORJANY JUDGMENT OF : Simpson J at 1

COUNSEL : M Buscombe - 1 st Defendant C J Murphy - Plaintiff SOLICITORS : C H Watson - 1st Defendant F M Nicholls - 2nd Defendant LEGISLATION CITED : Proceeds of Crime Act 1987 (Cth) Customs Act 1904 CASES CITED : Bissett v DPP (Cth), unreported, 24 February 1993 DECISION : Application for costs refused.

THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

SIMPSON J

23 February 2000

10751/97 COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS - v - Leslie Victor Manass ADORJANY Judgment

HER HONOUR : 1 This is an application for costs by the defendant following the resolution and finalisation (in his favour) proceedings under the Proceeds of Crime Act 1987 (Cth) ("The Act"). 2 In 1997 the defendant was charged under s 233(B) of the Customs Act 1904 with possession of a prohibited import, cocaine. He later pleaded guilty and was convicted and sentenced. Consequent upon the charge the plaintiff, the Director of Public Prosecutions (Cth) ("DPP") obtained from this Court under s 43(2)(a) of the Act an order restraining any dealing with or disposition of the defendant's property including specified real estate. Orders under the section are referred to as restraining orders. The ultimate consequence of such an order (where the defendant is convicted of a serious offence) unless it is otherwise brought to an end, is that property to which the restraining order relates is forfeited to the Commonwealth. It may here be noted that forfeiture occurs by operation of the Act and does not require a formal or specific order of the court. 3 Subsequently the defendant filed a notice of motion seeking, relevantly, a declaration under s 48(4) of the Act. Under that sub section a court may declare that a restraining order, so far as it relates to property in which the defendant has an interest, is to be disregarded. Such a declaration may only be made where the court is satisfied that the property was not used in or in connection with any unlawful activity, was not derived directly or indirectly by any person from any unlawful activity and the defendant's interest in the property was lawfully acquired. 4 The defendant supported his claim for a declaration by affidavit which he served on the plaintiff on 4 November 1998. A month later the DPP discontinued the proceedings against the defendant. From the timing it may reasonably be inferred that the DPP accepted the defendant's claim that the property was not relevantly involved in or associated with his offence. It is in these circumstances that the defendant now seeks an order for costs. 5 S 101 of the Act is specifically concerned with costs in relation to proceedings under the Act. It provides as follows: "101(1) Where: (a) a person brings, or appears at, proceedings under this Act before a court in order: (i) to prevent a forfeiture order or restraining order from being made against property of the person: or (ii) to have property of the person excluded from a forfeiture order or restraining order; (b) the person is successful in those proceedings; and (c) the court is satisfied that the person was not involved in any way in the commission of the offence in respect of which the forfeiture order or restraining order was sought or made;