Fry v Director of Public Prosecutions (Commonwealth) [2012] NSWCA 2

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Fry v Director of Public Prosecutions (Commonwealth) [2012] NSWCA 2 Hearing dates: 01/11/2011 Decision date: 01 February 2012 Before: Handley AJA, Sackville AJA Decision: Summons for leave to appeal is dismissed with costs. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court146s computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: Proceeds of Crime - No question of principle Legislation Cited: Proceeds of Crime Act 1987 (C'th) Category: Principal judgment Parties: Sir Thomas Graham Fry - Applicant Commonwealth Direct of Public Prosecution - Respondent Representation: Applicant in Person I Temby QC - Respondent N/A - Applicant Solicitor for Director of Public Prosecutions - Respondent File Number(s): 2000/38792 Decision under appeal Jurisdiction: 9111 Date of Decision: 2012-02-01 00:00:00 Before: Hidden J File Number(s): 2000/10407

Judgment 1THE COURT: This is an application by Mr Fry filed on 1 August 2011 for leave to appeal from the decision of Hidden J on 11 December 2002 in proceedings under the Proceeds of Crime Act 1987 (C'th) (the Act). The application came before this Court on 1 November 2011 in unusual circumstances. 2On 22 February 2000 a restraining order was made pursuant to s 43(2)(a) of the Act in respect of all the applicant's property "excluding any undertaking in any business with which [he] is associated" (WB 171). 3The restraining order was extended from time to time, the last extension on 17 August 2000 being until further order (WB 175). 4The applicant was convicted of a serious drug offence on 13 September 2001. In such circumstances s 30(1)(d) provides for the automatic forfeiture of the property bound by the restraining order six months after the conviction. Section 30A(4) allows this period to be extended for a further 9 months but no longer. The last extension expired on 12 December 2002. 5Section 48(4) enables a defendant convicted of a serious offence to apply for an order excluding property from the operation of s 30 if (subs (4)(c)) the defendant has an interest in the property. The Court can make such an order if (subs (4)(e)) the property was not used in, or derived from any unlawful activity and was lawfully acquired. 6On 7 March 2002 the applicant applied by notice of motion (WB 268) for a declaration that the vessel Lone Bird and or all its equipment: "are an undertaking in business ... and has thus always been excluded from the restraint." 7The application was heard by Hidden J between 25 November and 6 December 2002. On 11 December 2002, the day before the last extension expired, his Honour gave short reasons and dismissed the application. On one view of the Act an exclusion order had to be made, if at all, before the waiting period fixed by or under the Act expired on 12 December 2002. On that view any application to this Court which could not be finally disposed of before 12 December 2002 would be futile. The point was not taken by the DPP and the Court will assume that the application is competent. 8On the 11 December 2002 Hidden J indicated to the parties that he would give fuller reasons in due course. As he frankly acknowledged in his later reasons the preparation of those reasons was overlooked until 2008 when the applicant lodged an appeal out of time. His Honour published fuller reasons on 22 April 2009. 9There is no record of the brief reasons published on 11 December 2002 and it has not been possible to obtain one from the Court Reporting branch. 10The applicant, who acquired Lone Bird in 1998 claimed to be its beneficial owner but the DPP argued before Hidden J. that he was a trustee for a Mr Bateman. The latter's interest, if any, had already been forfeited to the Commonwealth. 11There was an air of unreality about the proceedings before this Court. Mr Fry informed the court that Lone Bird, which was afloat in Gisborne Harbour New Zealand in February 2000 when the restraining order was made, sunk at her moorings on 26/27 September that year (T 10, 20). The latest information available to the DPP was that the Harbour authorities were taking steps to remove the wreck (T 8). 12This is not a promising basis for an application for leave to appeal but the appellant apparently believes that a successful appeal would enable him to recover damages from the Commonwealth for its failure to take proper care of the vessel. There is no need to examine this assumption. 13Hidden J rejected the applicant's claim that Lone Bird was within the exclusion for "any undertaking in any business". The Judge found [20] that in February 2000 "there was no business relating to the vessel", which had been unseaworthy for some time. 14The applicant said that in February 2000 the so-called business had no employees apart from himself, and he was then in custody in Australia. He said the vessel was in the hands of a local shipyard which was refitting her and that her engines were ashore to be reconditioned. He also said that the vessel had never been in survey during his ownership (T 19, 21). 15The refitting may have been undertaken to enable the vessel, after favourable survey, to be used in a chartering business, but it is clear that there was no existing business in February 2000. The order therefore bound the Lone Bird. 16An alternative basis for the application was that the vessel should be excluded under s 48(4). This relevantly required proof on the civil standard (subs (4)(e)(i)) that it was not derived directly or indirectly from any unlawful activity. 17The Judge said (at [18]-[19]) that the applicant had conceded that Mr Bateman paid for the vessel. He found that the applicant was a bare trustee with a resulting trust for Mr Bateman [19]. Since Mr Bateman's interest had been forfeited to the Commonwealth, an order excluding the applicant's legal interest would have no practical effect as he would be a trustee for the Commonwealth. 18The Judge said (at [23]) that the applicant "by his own admission to the police" agreed that the vessel had been purchased from the proceeds of the sale of illegal drugs. Before us the applicant denied making any such admission (T 26). His record of interview was in evidence before Hidden J, but had not been supplied to the Court and was not available at short notice. 19The Court therefore reserved its decision and Mr Temby QC for the DPP said that the relevant pages in the record of interview would be provided to the Court and the applicant. 20The relevant pages and the supplementary submissions of the DPP reached this Court on 15 November 2011. The applicant answered questions 123 and 124 by saying that Mr Bateman paid for the vessel, and in answer to question 180 he said the money came from selling illegal drugs. 21The Court received supplementary submissions from the applicant dated 23 November. These covered a number of matters which had not been raised in writing before or at the hearing on 1 November. Many of them involved questions of fact such as the fairness of his interview by the Federal Police, events at Gisborne after his arrest, and his assertion that Mr Bateman paid him out of his, the applicant's, own money. He also relied on findings made by James J. when sentencing Mr Bateman on 18 September 2000. His remarks on sentence may not have been in evidence before Hidden J but in any event they were not admissible as proof of facts in the present proceedings. 22The applicant's assertions about Mr Bateman's movements during 1998 and their relationship to the purchase of Lone Bird do not prove that his admission to the Federal Police was mistaken or misunderstood. His answer to question 158 where he said that Mr Bateman "after about nine months ... came over and visited, discussed about buying the boat etc etc that he wanted to do up and charter" supports the finding of Hidden J. The claim that it related to a different vessel was not mentioned by Hidden J and was not referred to in this Court on 1 November 2011. It is not corroborated and is inconsistent with the answer relied on by the DPP. 23The bulk of the 10 handwritten pages of submissions in reply dealt with matters which had not been referred to during the oral hearing and were not supported by material in the White book. Many of them were irrelevant for other reasons. Much of this material canvassed the applicant's answers to other questions in his record of interview which were not relied on in the further submissions of the DPP. 24The submissions in reply failed to raise an arguable case that Hidden J erred in finding [20] that the applicant acknowledged in evidence that there was no existing business in February 2000. 25They also failed to raise an arguable case that Hidden J. erred in finding [23] that he had admitted to the police that Lone Bird had been purchased from the proceeds of the sale of illegal drugs. 26The applicant's point about the two sets of reasons given by the Judge is without substance. Courts commonly give short reasons in urgent cases and fuller reasons later. 27A number of other matters raised by the applicant in his written and oral submissions, including criticisms of his criminal trial and conviction were disposed of during the hearing for reasons apparent from the argument. 28This was in substance a hopeless case for the grant of leave. If the applicant had been legally represented the Court would have refused leave and given reasons in a few sentences. There is no question of any general importance. It is a case where the applicant, having multiple drug convictions and the onus of proof failed to discharge it. 29The summons for leave to appeal should be dismissed with costs.