Citation: R v David Peter Cain (No.2) [2001] NSWSC 117
Court: Supreme Court of New South Wales (Common Law Division)
Date: 1 March 2001
Judge(s): Sperling J
Background
The applicant was before the Supreme Court on a bail application, heard by video link from the Metropolitan Remand Centre. Earlier on the same day, Sperling J had made a bail order and then suspended it after the Crown drew attention to orders made under the Proceeds of Crime Act 1987 affecting property connected to the applicant.
The suspended order had included, on the court's own initiative, the applicant's interest in a property at Brighton Street, Banksmeadow as one component of the security package to underpin the bail conditions. The applicant's counsel had not proposed that property for security purposes.
Once the relevant orders under the Proceeds of Crime Act 1987 were produced, the court reconsidered the bail application without reference to the Brighton Street property.
Legal Issues
- Whether orders made under the Proceeds of Crime Act 1987 prevented the applicant's interest in the Brighton Street property from being used as security for bail conditions.
- Whether, with that property excluded, sufficient security remained to support a grant of conditional bail.
Decision
Sperling J confirmed that the orders made under the Proceeds of Crime Act 1987 meant the applicant's interest in the Brighton Street, Banksmeadow property was not available to be pledged as security for performance of the bail conditions. The court noted this was the whole relevant effect of the orders produced.
With the Brighton Street property removed from the calculation, the court found that a sum substantially in excess of $1 million remained available, suitably secured, to support the proposed conditions. That amount was sufficient to sustain the court's earlier view that conditional bail should be granted.
Sperling J reinstated the previous bail order with the Brighton Street property item deleted from the relevant paragraph, crossing out that item in the minute of order.
Orders Made
- Bail granted on conditions as previously proposed, with the deletion of the item in paragraph 1(f) referring to the applicant's interest in the Brighton Street, Banksmeadow property and the associated figure of $150,000.
Key Takeaways
- An interest in property subject to orders under the Proceeds of Crime Act 1987 is not available to be pledged as security for the performance of bail conditions.
- The Supreme Court reconsidered the bail conditions of its own motion once the Crown produced the relevant proceeds of crime orders, demonstrating the court's active role in scrutinising the suitability of proposed security.
- Sufficient security can still support a grant of conditional bail even after a component of the proposed security package is excluded, provided the remaining sum is adequate in the court's assessment.
- Where a court introduces a particular asset as security on its own initiative rather than at the applicant's proposal, and that asset is later found to be unavailable, the appropriate course is to excise that element and re-evaluate whether the remaining security justifies bail.
Legislation and Cases Referenced
Legislation:
- Proceeds of Crime Act 1987 (Cth)
Cases cited: None cited in the judgment.