Citation: DPP v Brown [2005] NSWSC 870
Court: Supreme Court of New South Wales
Date: 28 July 2005
Judge(s): Howie J
Background
A security officer was attacked and robbed while transporting $45,000 in cash. Her attacker, armed with a knuckle-duster, punched her repeatedly and seized the money. She pursued him and shot him dead as he sat in his vehicle. Police subsequently charged her with murder.
Before attending a scheduled police interview, she sold her account of the incident to a newspaper for $7,000 and agreed to a $100,000 deal with a television network. The Director of Public Prosecutions obtained a restraining order over those media payments, treating them as "tainted property" under the Confiscation of Proceeds of Crime Act 1989 on the basis that they were derived from the public promotion of a serious offence.
The accused then applied to vary the restraining order to release funds from those proceeds to cover her legal representation at committal proceedings and the cost of a neurosurgical report relevant to her state of mind at the time of the shooting.
Legal Issues
- Whether the restrained funds constituted "tainted property" under the Confiscation of Proceeds of Crime Act 1989
- Whether the restraining order should be varied under s 43(6) of the Act to permit payment of reasonable legal expenses and defence-related medical costs
- How to balance the statutory policy of deterring media profiteering from alleged criminal conduct against the accused's right to funded legal representation on a serious criminal charge
Decision
Howie J expressed clear disapproval of the accused's decision to sell her story to the media while deliberately avoiding a police interview. His Honour observed that such conduct had the tendency to frustrate police investigations and interfere with the administration of justice, and that it arguably warranted criminal prosecution. The court was initially inclined to refuse the application, finding the deterrence rationale in the legislation to be compelling.
However, His Honour ultimately concluded that the public interest favoured releasing some of the funds. The charge was murder, one of the most serious offences known to law. The committal proceedings involved cross-examination of witnesses, making legal representation particularly important. The accused had no other assets of substance and owed her lawyers $25,000 already. These factors, taken together, outweighed the deterrence considerations.
The court authorised payment of $30,800 (inclusive of GST) for committal preparation and legal costs, and $3,500 for the neurosurgical report. His Honour was careful to note that, had the charge been less serious or had the committal not involved witness cross-examination, the balance may well have fallen the other way.
Orders Made
- Payment of $30,800 (incl. GST) from funds held by the Public Trustee for committal preparation and legal costs to date
- Payment of $3,500 from those funds for a neurosurgical report
- The applicant (the accused) was awarded costs of the variation proceedings
Key Takeaways
- Under s 43(6) of the Confiscation of Proceeds of Crime Act 1989, a restraining order may be varied to permit payment of reasonable expenses in defending a criminal charge, even where the restrained funds are alleged tainted property
- Funds derived from selling an account of an alleged offence to the media can constitute "tainted property" under s 4 of the Act, which expressly covers proceeds from the public depiction of a serious offence or the expression of an alleged offender's thoughts or emotions regarding it
- The Supreme Court declined to treat the variation as a form of punishment, holding that the deterrence policy embedded in the legislation did not, in the circumstances of a murder charge with contested committal proceedings, outweigh the accused's need for legal representation
- Howie J signalled that in less serious matters, or where cross-examination of witnesses is not involved, the deterrence rationale may be sufficient to refuse a variation even at the risk of leaving a defendant without preferred representation
- The decision confirms that each application under s 43(6) involves a fact-specific balancing exercise, with the gravity of the charge and the nature of the proceedings as significant weighing factors
Legislation and Cases Referenced
Legislation
- Confiscation of Proceeds of Crime Act 1989 (NSW), ss 4, 43(2), 43(6)
Cases
- New South Wales Crime Commission v Younan (1993) 31 NSWLR 44
- R v Weightman (NSWSC, unreported, 23 June 2004)