Citation: COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS v. WEBB & ANOR [1999] NSWSC 405
Court: Supreme Court of New South Wales (Common Law Division)
Date: 29 April 1999
Judge(s): Greg James J
Background
The Commonwealth Director of Public Prosecutions brought proceedings under the Proceeds of Crime Act 1987 (Cth) seeking to establish that certain property subject to a restraining order had already been forfeited to the Commonwealth. The property was associated with the first and second defendants, but the relevant trigger for forfeiture was the conviction of a third defendant.
Under section 30 of the Act, property automatically forfeits to the Commonwealth six months after a relevant conviction. The dispute centred on which court proceeding marked the date of that conviction. The third defendant had pleaded guilty before the District Court, but formal sentencing did not occur until 19 November 1998, some months after the initial guilty plea.
The first and second defendants sought an extension of the waiting period to allow them to apply for recovery of the property. That application depended entirely on whether the forfeiture had already occurred, which in turn depended on the precise date the conviction was taken to have happened.
Legal Issues
- What is the meaning of "conviction" for the purposes of section 30 of the Proceeds of Crime Act 1987 (Cth)?
- Did the conviction of the third defendant occur at the time of the guilty plea (May or July 1998) or at the time of formal sentencing (19 November 1998)?
- Was an extension of the waiting period available, given the finding on the date of conviction?
Decision
Greg James J held that the question of when conviction occurred was governed by New South Wales law, as imported by the Judiciary Act and the Proceeds of Crime Act. His Honour applied the Court of Appeal's decision in Della Patrona v Director of Public Prosecutions (Commonwealth) (No 2) (1995) 38 NSWLR 257, which held that conviction occurs when the trial judge publicly indicates acceptance of, and an intention to act upon, a verdict or plea of guilty.
Applying that principle to the facts, his Honour found that the sentencing judge had indicated his acceptance of the guilty plea and his intention to convict on 11 May 1998, and that further convictions were recorded on 17 July 1998 when the third defendant pleaded guilty to the counts on a second indictment. What followed on 19 November 1998 was the sentencing proceedings, not the act of conviction itself.
His Honour rejected the applicants' argument that conviction was not complete until sentencing. He found it inconceivable that a judge could convict unintentionally, and concluded that the District Court judge had at all times intended to convict and had taken the steps that Della Patrona identifies as constituting conviction. Accordingly, the six-month forfeiture period under section 30 had already expired, and the property had forfeited to the Commonwealth before the application was heard.
Despite that conclusion, his Honour acknowledged the time pressure and directed counsel to bring in short minutes the following day. He noted that if an appeal were pursued, steps would need to be taken urgently given the imminent expiry of any remaining time.
Orders Made
• Direct counsel to bring in short minutes tomorrow as to the form of appropriate orders giving effect to the court's views and dealing with any other outstanding issues in relation to the application
Key Takeaways
- Under the Proceeds of Crime Act 1987 (Cth), the meaning of "conviction" for forfeiture purposes is determined by the law of the relevant State or Territory, as imported through section 5 of the Act.
- The New South Wales Court of Appeal confirmed in Della Patrona that conviction occurs at the moment the trial judge publicly accepts a verdict or guilty plea and indicates an intention to act upon it, not at the time of formal sentencing.
- Greg James J found Della Patrona binding and, independently, correct: the act of conviction is primarily constituted by the judge's public recognition and acceptance of guilt.
- A guilty plea accepted by the court and accompanied by remand in custody was sufficient, on these facts, to constitute conviction for the purposes of the six-month forfeiture clock under section 30.
- Forfeiture under the Act operates automatically upon expiry of the six-month period, though statutory avenues may remain available to affected third parties to seek recovery of forfeited property.
Legislation and Cases Referenced
Legislation:
- Proceeds of Crime Act 1987 (Cth), particularly sections 5, 30, 30A, and 48
- Judiciary Act (Cth)
Cases:
- Della Patrona v Director of Public Prosecutions (Commonwealth) (No 2) (1995) 38 NSWLR 257 (NSW Court of Appeal, Kirby P, Priestley and Meagher JJA)
- Maxwell v The Queen (1996) 135 ALR 1