New South Wales Supreme Court CITATION : New South Wales Crime Commission v Paul Dimitrios Delgiannis [2002] NSWSC 106 CURRENT JURISDICTION: Supreme Court of New South Wales FILE NUMBER(S) : SC 12861/00 HEARING DATE(S) : 11 and 12 February 2002 JUDGMENT DATE : 12 February 2002 PARTIES : New South Wales Crime Commission Paul Dimitrios Delgiannis aka Paul Apostolis D Delgiannis JUDGMENT OF : Sully J at 1 COUNSEL : I Temby QC - Plaintiff M. Crowley - Defendant SOLICITORS : S. E. O'Connor - Plaintiff Freeman Solicitors - Defendant LEGISLATION CITED : Criminal Assets Recovery Act 1990 (NSW) DECISION : Adjournment refused. Assets forfeiture order made. Relevant sections of the Criminal Assets Recovery Act 1990 discussed. IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION/ SULLY J Tuesday 12 February 2002 12861/00 – NEW SOUTH WALES CRIME COMMISSION v PAUL DIMITRIOS DELGIANNIS AKA PAUL APOSTOLIS D DELGIANNIS JUDGMENT 1 HIS HONOUR: By notice of motion for summary judgment filed 4 December 2001 the New South Wales Crime Commission, as plaintiff, seeks against Mr Paul Dimitrios Delgiannis, as defendant, the making of an assets forfeiture order of the kind contemplated by relevantly s 22 of the Criminal Assets Recovery Act 1990 (New South Wales) (the "Act"). 2 S 22 provides as follows: "22 making of assets forfeiture order (1) If a restraining order is in force under Part 2, the Commission may apply to the Supreme Court for an order forfeiting to, and vesting in, the Crown all or any of the interests in property that are subject to the restraining order when the assets forfeiture order takes effect. (2) The Supreme Court must make an assets forfeiture order if the Court finds it to be more probable than not that the person whose suspected serious crime-related activity, or serious crime-related activities, formed the basis of the restraining order was, at any time not more than six years before the making of the application for the assets forfeiture order, engaged in: (a) serious crime-related activity involving an indictable quantity, or (b) a serious crime-related activity involving an offence punishable by imprisonment for five years or more. (3) A finding of the Court for the purposes of subs (2) need not be based on a finding as to the commission of a particular offence or a finding as to any particular quantity involved, and can be based: (a) on a finding that some offence or other constituting a serious crime related activity and punishable by imprisonment for five years or more was committed, or (b) on a finding that some offence or other constituting a serious crime-related activity was committed involving some quantity or other that was an indictable quantity. (4) When an assets forfeiture order is made, it must be made so as to apply to specified interests in property. (5) The reference in subs (2) to a period of six years includes a reference to a period that began before the commencement of this section. (6) The raising of a doubt as to whether a person engaged in a serious crime-related activity or whether a quantity is an indictable quantity is not of itself sufficient to avoid a finding by the Supreme Court under subs (2). (7) The quashing or setting aside of a conviction for a serious crime-related activity does not affect the validity of an assets forfeiture order that was made before or after the conviction was quashed or set aside and was based on the serious crime-related activity. (8) The making of an assets forfeiture order does not prevent the making of a proceeds assessment order under Division 2, which assesses the value of the proceeds of, or is based on, the serious crime-related activity on which the assets forfeiture order was based. (9) Notice of an application under this section is to be given to a person to whom the application relates and the person may appear and adduce evidence at the hearing of the application. (10) The absence of a person entitled to be given notice of an application for an asserts forfeiture order does not prevent the Court from making the order." 3 This morning Mr Delgiannis moved by counsel for an adjournment of the plaintiff's motion for summary judgment. The defendant, by counsel, filed in Court as well a substantive notice of motion and some supporting affidavits and other material. Put simply, two propositions were advanced in support of the application for an adjournment: one was, essentially, a proposition of law; the other was, essentially, a proposition of fact. 4 The proposition of law, put simply, was that the evidence available in support of the plaintiff's motion was insufficient in that it did not demonstrate a clear link or, indeed, any particular link, between the acquisition of the particular assets sought to be subjected to the proposed forfeiture order, and the foundational criminal conduct alleged against the defendant. 5 The proposition of fact, put simply, was that the defendant wished, and was entitled, to make an application for a variation of the restraining orders originally made in the proceedings, the object of such variation being to obtain the release of either particular assets, or of the proceeds of the sale of particular assets, so as to provide funds which might be made available properly to the defendant in aid of payment of his proper legal professional costs and expenses in connection with the proceedings. 6 As to the proposition of law, I am of the opinion that it is unsound. That is so because it seems to me that the provisions of s 22(2) of the Act are clear and complete as to what is required before an assets forfeiture order may lawfully be made. 7 Had the Legislature intended that in addition to the matters to which reference is particularly made in subs (2) as it stands, there should be an additional antecedent required of the kind suggested in the submission, then nothing would have been simpler than for the Legislature to have said so in simple terms. I do not see any proper basis upon which the Court would be justified in approaching subs (2) in a way that entailed in reality the reading into the subsection by the Court of a significant additional requirement over and above those that Parliament has seen fit to lay down in terms. 8 As to the second submission put forward in support of the adjournment application, it seems to me that there could be no practical utility in granting an adjournment to that end. Were the adjournment to be granted; and were an application to be made and pressed for a variation of the restraining orders; and were that application to be contested; then the defendant would be in the position of having to fund in some way or other his representation upon the making of that contested application for a variation of the restraining orders. 9 He would be confronted, as well, with the proscription contained in s 16A(1)(b) of the Act; that is to say, he would be confronted with the proscription against the making of such a provision as he would be seeking, if the provision had to be made out of illegally acquired property. 10 It seems to me that if, an adjournment having been refused, the Court were to proceed to a hearing of the plaintiff's motion for an assets forfeiture order, no greater prejudice than that to which I have earlier referred would be occasioned to the defendant. He would, in that case, be entitled, albeit with the leave of the Court, which I think could not reasonably be refused in the circumstances of this case, to make an application pursuant to s 25 of the Act for an exclusion order; that is to say, for an order which, if granted, would have the same practical effect as an order varying the original restraining orders for the purposes of making available additional funds for payment of proper legal professional costs and expenses. 11 All of that is to say that I am not persuaded that the fair striking of the balance of convenience, and a fair understanding of the relevant utility otherwise of an adjournment, would justify the granting of the adjournment in fact sought. I formally refuse it. 12 In that situation the plaintiff has moved on its motion for an assets forfeiture order, and has relied in support of the motion upon an affidavit sworn on 4 December 2001 by Richard Laurence Oades, the Senior Financial Investigator, employed by the plaintiff. That affidavit sets out in all appropriate detail the relevant history leading up to the present motion for an assets forfeiture order. 13 It is not, I think, necessary in the events that have happened to canvass in fine detail what is said in the affidavit. It suffices to say that I am satisfied that the affidavit establishes, as by law required, the preconditions as established by s 22(2) of the Act for the making of an assets forfeiture order. I will in due course give appropriate formal expression to orders to that effect. 14 During the course of the morning it has proved possible for the parties to reach an accommodation in connection with the making available to the defendant of certain funds so that he may have the benefit of the funds in connection with his proper legal professional representation hereafter. The parties proposed that they should bring in short minutes of orders to give effect to the substance of this judgment. That seems to be in every way a sensible method to be followed and the proceedings will stand accordingly until 2 pm this afternoon so that those formalities can be dealt with. LUNCHEON ADJOURNMENT 15 HIS HONOUR: In this matter the formal orders I make are as indicated in the minutes of order which I have variously initialled, dated and signed. The orders may be entered forthwith. ********** Last Modified: 02/28/2002 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.