Commissioner of the Australian Federal Police; application under the Proceeds of Crime Act (No 2) [2017] NSWSC 1402

Supreme Court New South Wales

Medium Neutral Citation: Commissioner of the Australian Federal Police; application under the Proceeds of Crime Act (No 2) [2017] NSWSC 1402 Hearing dates: 5 October 2017 Decision date: 05 October 2017 Jurisdiction: Common Law Before: McCallum J Decision: Proceedings stood over to 23 November 2017 Catchwords: PROCEEDS OF CRIME – application for restraining order – requirement for due process where interested party a self-represented prisoner awaiting result of application for grant of legal aid Legislation Cited: Proceeds of Crime Act 2002 (Cth), ss 19, 26 Cases Cited: Bass v Permanent Trustee Co Ltd (1999) 198 CLR 334; [1999] HCA 9 Category: Procedural and other rulings Parties: Commissioner of the Australian Federal Police (plaintiff) Simon McCormack (interested party) Representation: M Akbar (solicitor for the plaintiff) S McCormack self-represented (via AVL)

Solicitors: Australian Federal Police (plaintiff) File Number(s): 2016/251158 Publication restriction: None

Judgment 1. HER HONOUR: This minor procedural application raises an important question as to the proper exercise of judicial function. The Commissioner of the Australian Federal Police seeks a restraining order under s 19 of the Proceeds of Crime Act 2002 (Cth). The application relates to a large sum of cash seized almost two years ago from premises occupied by Mr Simon McCormack when he was arrested and charged with drug offences. In the circumstances, it is clear enough that Mr McCormack may be regarded as a person who may have an interest in the property. The Commissioner accordingly gave Mr McCormack notice of the application, as contemplated by s 26 of the Act. 2. The application came before me as Duty Judge on 19 September 2017. On that occasion, through no fault of his own, Mr McCormack was neither present nor legally represented. There was an email before the Court from a solicitor not yet retained by Mr McCormack, Mr Juweinat, who indicated that Mr McCormack sought to have the Commissioner's application adjourned so that he could retain a solicitor to appear for him. Mr Juweinat had not yet accepted instructions from Mr McCormack as he was awaiting the outcome of an application for Legal Aid. Mr McCormack could not appear for himself as he is in custody and no warrant had been issued to secure his attendance at the hearing. 3. In circumstances where a person claiming an interest in the cash was not before the Court, either in person or by a solicitor, I did not consider it fair to proceed to determine the application. Accordingly, I granted an adjournment, as sought on behalf of Mr McCormack. 4. The proceedings have come before me again today. Mr Juweinat is still not retained by Mr McCormack. Mr Juweinat is not present, but Mr McCormack has appeared by audio visual link from the gaol in which he is currently detained on remand. Mr McCormack has informed me that, at an early stage in the criminal proceedings against him, shortly following his arrest and at a time when he was suffering from bipolar disorder and in no state to make decisions, he terminated the services of Legal Aid and that he has, since that time (and since his state of mental health has settled) been attempting again to obtain a grant of Legal Aid, without success. 5. The financial and other burdens on the Legal Aid Commission are notorious. Mr McCormack states that he endeavours to contact Legal Aid on an almost daily basis but has not obtained a formal response to his application. He understands Mr Juweinat has separately filed an application and that also has not yet been determined. In the circumstances, Mr McCormack seeks a further adjournment so that he can obtain legal advice. 6. On behalf of the Commissioner of the Australian Federal Police, it was submitted that the application should proceed today since it is unknown when the position will be settled regarding any legal representation. The solicitor for the Commissioner noted the relatively limited discretion the Court has under s 19 of the Act to refuse to make a restraining order. Indeed, it is not accurate to describe any part of the Court's task under that section as a discretion, since the section provides that, if certain matters are established by the evidence, the Court "must" make a restraining order sought by a crime authority. 7. In my respectful opinion, that is beside the point on the issue of the interested party's entitlement to be represented and, if anything, emphasises the importance of a fair process. It may well be that, properly advised, Mr McCormack will take the view that he has no basis for opposing a restraining order at this stage. It does not follow that he is not entitled to due process. It is a critical feature of a fair system of criminal justice that its processes and incidents (including the forfeiture of assets) be conducted fairly, "in accordance with the judicial process", [1] particularly when dealing with an unrepresented prisoner who has been in custody on remand for some 22 months. 8. I am of the view that the adjournment sought today by Mr McCormack should be granted so that he has an opportunity to appear on the application after having obtained proper legal advice and with a properly informed view as to the position he should take. The solicitor for the Commissioner asked rhetorically what will have changed after a further adjournment. The answer is that an unrepresented prisoner will have been dealt with according to law. 9. For those reasons I stand the proceedings over to 23 November 2017 before me at 9:30am.