DPP v STUDMAN [2005] NSWSC 824

Reported Decision : 155 A Crim R 515

New South Wales Supreme Court

CITATION : DPP v STUDMAN [2005] NSWSC 824

HEARING DATE(S) : 18-19 July 2005

JUDGMENT DATE : 18 August 2005

JUDGMENT OF : Hulme J at 1

DECISION : The Notice of Motion dated 8 April 2005 is dismissed.

Director of Public Prosecutions PARTIES : Michael Simon Studman

FILE NUMBER(S) : SC 12262/04

Crown: Mr T Muir COUNSEL : Applicant: M Studman (In person)

Crown: Commonwealth DPP SOLICITORS : Applicant: M Studman (in person)

LOWER COURT JURISDICTION :

- 19 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION No: 12262/04

HULME J Thursday, 18 August 2005 DIRECTOR OF PUBLIC PROSECUTIONS v Michael Simon STUDMAN JUDGMENT 1 HULME J: By Summons dated 20 July 2004, the Commonwealth Director of Public Prosecutions (hereinafter referred to as "the DPP") commenced proceedings under the Proceeds of Crime Act 2002 (C'th) against Mr Studman. On 20 July, 2004 Kirby J made an order pursuant to Section 18 of the Act restraining the disposition of property of Mr Studman and other property described as:- 1. Funds standing to the credit of the Australia and New Zealand Banking Group Ltd cash management account number 012-0031088-89972 in the name of Michael Simpson; 2. Commonwealth Bank of Australia shares held in the name of Michael Simpson; 3. Burns Philp shares held in the name of Michael Simpson; and 4. Highland Pacific shares held in the name of Michael Simpson. 2 In February of this year Mr Studman pleaded guilty to a number of offences of stealing from the Commonwealth and otherwise of fraud. The amount involved is in excess of $300,000. In an affidavit of a Paul Fox read in the proceedings before me, the value of the benefit derived by Mr Studman by way of receiving property of the Commonwealth was said to be, as at 31 March 2005, approximately $360,500. Sentencing proceedings against Mr Studman have commenced but not concluded. They presently stand adjourned until 19 August 2005. 3 By Notice of Motion dated 8 April 2005 Mr Studman has applied to the Court for orders, inter alia:- "1. Pursuant to Section 31 of the Proceeds of Crime Act 2002 ("the Act"), the balance of the property detailed and restrained in accordance with Part One of the Schedule of the Orders of this Court dated 20 July 2004 ("the Orders") be transferred to the Defendant. 2. In the alternative, pursuant to Section 94 of the Act the balance of the property detailed and restrained in accordance with Part One of the Schedule of the Orders be transferred to the Defendant. 3. Pursuant to Section 39 of the Act, the Plaintiff and/or the Official Trustee take all necessary steps to facilitate transfer of the balance of the restrained property to the Defendant forthwith." 4 It is that Notice of Motion which is the inspiration for these reasons. Consideration of it requires detailed reference to some of the provisions of the Proceeds of Crime Act but before turning to its terms, it is convenient to provide a brief, and not necessarily comprehensive, summary of some of its major provisions. Sections 17 to 20 require courts to make orders restraining the disposition of property if application is made by the DPP in circumstances where a person has been convicted or charged with an indictable offence or if it is proposed that he be charged or even if the person is suspected on reasonable grounds of committing a serious offence. The property in respect of which such orders must be made is any property of or under the control of the alleged offender or property that is "proceeds of the offence or an instrument of the offence". 5 Sections 29 to 31 empower the court to which application for a restraining order is made to, in certain circumstances, exclude specified property from the restraining order and if the court is satisfied that certain reasons exist. The permissible reasons are listed in s29(2) although there is a further qualification in s29(4). These sub-sections provide:- (2) The reasons for excluding specified property from a restraining order are: (a) for a restraining order under section 17 if the offence, or any of the offences, to which the order relates is a serious offence – the property is neither proceeds nor an instrument of unlawful activity; or (b) … (c) for a restraining order under section 18 – the property is neither (i) in any case – proceeds of unlawful activity; nor (ii) if an offence to which the order relates is a terrorism offence – an instrument of any terrorism offence; or