Citation: Director of Public Prosecutions v O'Driscoll [2004] NSWCCA 119
Court: NSW Court of Criminal Appeal
Date: 22 March 2004
Judge(s): Beazley JA, O'Keefe J, Bell J
Background
The respondent was convicted by a jury of two offences of defrauding the Commonwealth under the Crimes Act 1914 (Cth) and 16 offences under the Financial Transaction Reports Act 1988 (Cth). He was sentenced to imprisonment for an aggregate term of seven and a half years. On 23 August 2002, the District Court made a pecuniary penalty order against him in the sum of $1,148,143.20, representing the benefit he was found to have derived from committing all 18 offences. The order was made in the precise form requested by the Commonwealth Director of Public Prosecutions (DPP).
The respondent appealed his convictions. On 26 June 2003, the Court of Criminal Appeal quashed all 16 convictions under the Financial Transaction Reports Act, but dismissed his appeal in respect of the two fraud convictions. The quashing of those convictions triggered questions about the continued validity of the pecuniary penalty order, which had been expressed as a single amount referable to all 18 offences together.
The DPP then appealed to the Court of Criminal Appeal, lodging the appeal on 4 September 2003, more than a year after the order was originally made. The DPP sought to either uphold the original order or have it treated as two separate orders, one of which remained valid.
Legal Issues
- Whether the pecuniary penalty order was valid following the quashing of some of the convictions on which it was based.
- Whether a single pecuniary penalty order expressed as one amount across multiple offences could be treated as two separate orders, one referable to the surviving convictions.
- Whether the DPP's appeal was brought within the time limits prescribed by the Criminal Appeal Act 1912 (NSW).
- What effect the transition from the Proceeds of Crime Act 1987 (Cth) to the Proceeds of Crime Act 2002 (Cth) had on the pecuniary penalty order, including whether the DPP had taken the steps available under the 2002 Act to preserve the order.
Decision
The Court dismissed the appeal. O'Keefe J, with whom Beazley JA and Bell J agreed, found that the pecuniary penalty order was valid when made under s 26 of the Proceeds of Crime Act 1987 (Cth), but was subsequently discharged by operation of the transitional provisions in the Proceeds of Crime Act 2002 (Cth) once the underlying convictions were partially quashed.
On the question of timing, the Court noted that the pecuniary penalty order had been made on 23 August 2002, and the DPP's appeal was not lodged until 4 September 2003. Any error in the making of the original order would therefore have been well outside the time limit for appeal under s 10 of the Criminal Appeal Act 1912 (NSW). The Court further observed that, because the order was made in exactly the form the DPP had requested, the DPP could not readily be described as aggrieved by it.
The Court also rejected the DPP's submission that the single order should be treated as two separate orders rolled into one. The order was made for a single amount referable to the totality of offences, and to read it otherwise would depart from both the form of the order and from legal reality.
Finally, the Court noted that the 2002 Act had provided a mechanism, under s 146, by which the DPP could have applied to confirm the existing pecuniary penalty order within a specified time. Had that application been made, the order would not have been discharged until the application was resolved. No such application had been made.
Orders Made
- The appeal was dismissed.
Key Takeaways
- A pecuniary penalty order made under the Proceeds of Crime Act 1987 (Cth) as a single amount across multiple offences is not automatically severable into separate orders referable to individual convictions simply because some of those convictions are subsequently quashed.
- Under the transitional provisions of the Proceeds of Crime Act 2002 (Cth), a pecuniary penalty order made under the 1987 Act could be preserved by the DPP making a timely application for confirmation under s 146 of the 2002 Act. Failing to do so left the order vulnerable to discharge.
- In dismissing the appeal, the Court confirmed that a party who obtained an order in precisely the form it requested faces a significant obstacle in later arguing that the order was made in error.
- The time limit for appeal under s 10 of the Criminal Appeal Act 1912 (NSW) applies strictly, and any alleged error in the original order must be challenged within that period.
- Where the Proceeds of Crime Act 2002 (Cth) came into force partway through proceedings, it substantially altered the applicable regime for maintaining, confirming, and discharging earlier orders, and parties relying on 1987 Act orders were required to navigate those transitional provisions carefully.
Legislation and Cases Referenced
Legislation:
- Proceeds of Crime Act 1987 (Cth), ss 14, 22, 26, 27, 30, 32, 57, 100
- Proceeds of Crime Act 2002 (Cth), ss 2, 5, 116, 120, 146, 149, 150, 338; Part 2-2 Division 6; Part 2-4 Division 5
- Proceeds of Crime (Consequential Amendments and Transitional Provisions) Act 2002 (Cth), s 23, Schedule 7 Part 1
- Crimes Act 1914 (Cth), s 29D
- Financial Transaction Reports Act 1988 (Cth), s 31
- Criminal Appeal Act 1912 (NSW), s 10
Cases cited: No cases were identified in the text provided.