Supreme Court New South Wales Medium Neutral Citation: NSW Crime Commission v Fotiou [2016] NSWSC 124 Hearing dates: 23 February 2016 Date of orders: 23 February 2016 Decision date: 23 February 2016 Jurisdiction: Common Law Before: Campbell J Decision: Refer C Fotiou to the registrar for referral to a lawyer or barrister on the pro bono panel for legal assistance. Catchwords: PROCEDURE – referral to pro bono panel for legal assistance – financial hardship – English as second language Legislation Cited: Criminal Assets Recovery Act 1990 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Category: Consequential orders (other than Costs) Parties: Attorney General (New South Wales) (Plaintiff); Christos Fotiou (Defendant) Representation: Counsel: A Miranda (NSW Crime commission) C Fotiou (Defendant in person) Solicitors: Crown Solicitors Office (NSW) File Number(s): 2012/74684 EX TeMPORE Judgment (REVISED) 1. The defendant in these proceedings seeks an order referring him to the registrar for referral to a barrister or solicitor on the court's pro bono panel for legal assistance under r 7.36 Uniform Civil Procedure Rules 2005 (NSW). He wishes to defend proceedings brought against him by the NSW Crime Commission under the Criminal Assets Recovery Act 1990 (NSW) seeking, amongst other things, a proceeds assessment order under s 27 of that Act. 2. Restraining orders have previously been made in accordance with s 10A of the Act. The Court was then satisfied that there were reasonable grounds for the suspicion that the defendant had engaged in serious crime-related activities, namely, cultivating cannabis. The restraining orders cover an amount of $21,000 in cash seized at the time of the execution of a search warrant, which funds are currently in the hands of The NSW Trustee and Guardian. There is also a bank account in the defendant's name containing about $8,000 which has been frozen pursuant to the restraining order. 3. It is important to record that I have been informed by the defendant's wife who has spoken for him, his English being somewhat limited, that he was acquitted of the charges of cultivating the prohibited drug by a jury of his peers in the District Court. He had the benefit of legal aid for his defence but in the affidavit sworn in support of his application he states that Legal Aid will not provide legal aid for this matter as it is a civil proceeding. I must say, that evidence accords with my experience as a judge. 4. Although the defendant and his wife own their own home it is subject to a mortgage which his wife tells me frankly they have trouble with from time to time and have fallen behind. Currently they are on a pension and a support pension and one need only state that fact to appreciate that from their own resources they would be entirely unable to obtain private legal representation. Indeed, the defendant's wife tells me that she has approached a number of private solicitors who have been unwilling to act other than on a paid retainer and the estimate of the total costs they have received is in the order of $30,000. 5. Apparently the scheme conducted by the Law Society of NSW which they have approached does not assist in matters of this type. 6. I am satisfied that the means of the defendant and his capacity to obtain legal assistance otherwise point to the desirability of making the order he seeks. I am also persuaded that the nature and complexity of proceedings under the Criminal Assets Recovery Act is such that a lay person, especially a person for whom English is not his first language, is likely to have difficulty navigating the provisions of the legislation. 7. In the circumstances it appears to me from what has been said today that the defendant and his wife are just entirely unaware that it is possible to make an application for an advance from the funds held pursuant to the restraining order in order to fund one's defence of the civil proceedings: s 10B (3A) of the Act. 8. The fact that the defendant has been acquitted of the criminal charges is, of course, not decisive of the question of whether he has engaged in serious crime-related activities but it seems to me to be a fair marker that his defence may well have merit and it would be most unfortunate if he was denied the opportunity of vindicating himself in these proceedings for want of funds. I am conscious of the fact that the time of lawyers who are prepared to give of it freely by their participation in a pro bono scheme is not unlimited and the demands upon that time are very great. Even so I think that the defendant's application has merit and I propose to make the order sought. 9. For the reasons I have given I refer this matter to the registrar for referral to a barrister or solicitor on the pro bono panel for legal assistance. I direct that a copy of my reasons be provided to the referee lawyer and I will simply add to my reasons that in the first instance it may be that the lawyer to whom the matter is referred may wish to give advice about the desirability of making an application for an advance of the monies restrained to fund the defence of the proceedings. ********** 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. Decision last updated: 25 February 2016