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Supreme Court 13 September 2000

NSW Crime Commission v MacDonnell

[2000] NSWSC 913

Drugs
CRIMINAL LAW DRUG OFFENCES RESTRAINING AND FORFEITURE ORDERS

Citation: NSW Crime Commission v MacDonnell [2000] NSWSC 913
Court: Supreme Court of New South Wales (Common Law Division)
Date: 13 September 2000
Judge(s): Carruthers AJ

Background

The respondent faced trial in the District Court on charges of conspiring to supply large commercial quantities of heroin and methylamphetamine. A restraining order made in March 1998 under the Criminal Assets Recovery Act 1990 covered his assets, including his interest in the former matrimonial home at Concord West. His interest in that property was estimated to be worth between $350,000 and $400,000.

The restraining order had previously been varied by consent to cover the respondent's legal costs during committal proceedings. With the trial approaching, the respondent's solicitor sought a further variation of $215,000 to cover the costs of a solicitor and junior counsel for an estimated six-week trial. The NSW Crime Commission refused that request.

The unusual procedural feature of this case is that it was the NSW Crime Commission itself that brought the application before the Court, seeking a more limited variation: that no more than $75,000 from the sale of the respondent's interest in the property be paid to the Legal Aid Commission to fund his trial representation. Complicating matters further, the respondent's two young daughters (by their tutor) had filed a separate application seeking to set aside forfeiture orders over their mother's interest in the same property and to obtain $550,000 from the proceeds for the children's benefit.

  • Whether the restraining order should be varied under s 10(5)(b) of the Criminal Assets Recovery Act 1990 to provide for the respondent's reasonable legal expenses in connection with his criminal trial.
  • Whether the restriction in s 16A(1)(b) of the Act, which prohibits provision for legal expenses from "illegally acquired property," was an impediment to granting the variation.
  • Whether the proposed mechanism of directing funds to the Legal Aid Commission, rather than the respondent's private solicitor, was lawful and appropriate.

Decision

Carruthers AJ granted the application, finding no legal impediment to making the order sought. On the s 16A(1)(b) restriction, the court found there was no evidence before it upon which it could be satisfied that the relevant property was "illegally acquired property," so that provision of the Act did not apply.

The court noted several contextual factors. The Legal Aid Commission had initially refused the respondent's own application for legal aid on means-test grounds, but subsequently indicated it would grant aid on the basis of a 100 per cent contribution secured against the property. Counsel for the interveners (the children) did not oppose the order, and the court gave weight to that position given that counsel was duty-bound to protect the children's interests. The trial date was imminent, giving the matter urgency.

The court exercised its discretion to grant the variation in the more limited amount of $75,000, with payment directed to the Legal Aid Commission rather than to the respondent's private solicitor. Although the respondent's solicitor opposed the legal aid mechanism as commercially disadvantageous to private practitioners, the court did not regard this as a basis to refuse the application. The respondent was ordered to pay the applicant's costs.

Orders Made

  • The restraining order made on 3 March 1998 be further varied under s 10(5)(b) of the Criminal Assets Recovery Act 1990 to provide for payment of no more than $75,000 out of the sale of the respondent's interest in 73 McKenzie Street, Concord West, for his reasonable legal expenses in connection with the criminal trial, with such payment to be made to the Legal Aid Commission.
  • The respondent to pay the applicant's costs.

Key Takeaways

  • Under s 10(5)(b) of the Criminal Assets Recovery Act 1990, a restraining order can be varied to allow for payment of an alleged offender's reasonable legal expenses from restrained property, including by directing funds to the Legal Aid Commission.
  • The restriction in s 16A(1)(b) of the Act, which prevents provision for legal expenses from "illegally acquired property," is only engaged where the court is actually satisfied that the property in question is illegally acquired. Absence of evidence on that point means the restriction does not apply.
  • It was the NSW Crime Commission, not the respondent, that brought this particular application, reflecting an unusual set of circumstances where the Commission preferred a capped, legally-aided arrangement over an open-ended private costs variation.
  • The absence of opposition from the interveners (the children), whose representative was bound to protect their interests in the same property, was treated as a relevant consideration in the exercise of the court's discretion.
  • The court declined to accept, implicitly, that directing funds to the Legal Aid Commission rather than to private solicitors at commercial rates was a reason to refuse or reshape the order.

Legislation and Cases Referenced

Legislation:
- Criminal Assets Recovery Act 1990 (NSW), ss 10(5)(b), 16A(1)(b), 22, 24, 25, 26
- Legal Aid Commission Act 1979 (NSW), s 34(1)

Cases cited: None cited.