Citation: New South Wales Crime Commission v Jason Lee [2011] NSWSC 854
Court: Supreme Court of New South Wales
Date: 10 August 2011
Judge(s): Garling J
Background
The New South Wales Crime Commission obtained a restraining order in May 2010 over property owned or controlled by the first defendant. In December 2010, the Court varied that order to allow $375,000 (plus GST) from the restrained property to be released for the reasonable legal expenses of the first and fourth defendants in connection with their upcoming drug trial.
As part of that December 2010 variation, both defendants gave undertakings to the Court and the Commission not to make any further applications for reasonable legal expenses "with respect of the trial of drug charges presently scheduled to commence on 17 January 2011." The trial proceeded before Solomon DCJ in the District Court, and in March 2011 the jury returned verdicts of guilty against both defendants.
With sentence proceedings listed for August 2011, the defendants applied by Notice of Motion to further vary the restraining order to fund their legal expenses for those proceedings. The Commission opposed the application, arguing the defendants' undertakings already precluded it. The sole issue before Garling J was the proper construction of those undertakings.
Legal Issues
- Whether the phrase "with respect of the trial of drug charges" in the December 2010 undertakings was limited to the jury trial (which concluded with the verdicts in March 2011), or whether it extended to encompass the subsequent sentence proceedings.
- Whether, on a proper construction of the undertakings, the defendants were precluded from making a further application for reasonable legal expenses to fund their sentence hearing.
Decision
Garling J began with the statutory phrase in section 10B(3)(b) of the Criminal Assets Recovery Act 1990, which permits provision from restrained property for legal expenses "incurred in defending a criminal charge." The parties agreed, consistent with the Court of Appeal's reasoning in DPP (Cth) v Saxon (1992) 28 NSWLR 263, that this phrase is broad enough to encompass sentencing proceedings. To read it otherwise, the Court noted, would leave no statutory basis for funding legal expenses incurred at a sentence hearing from restrained property at all.
Against that statutory backdrop, Garling J turned to the undertakings themselves. The phrase "with respect of the trial" was treated as words of wide import that should not be read down without a clear indication of some limiting intention. The reference to the proceedings "presently scheduled to commence on 17 January 2011" served merely to identify which proceedings the undertaking related to, not to cut back on its scope.
The Court also rejected the argument that statutory distinctions between "trial" and "sentence proceedings" drawn in the Criminal Procedure Act 1986, the Jury Act 1977, and the Crimes (Sentencing Procedure) Act 1999 governed the construction of the undertaking. In the context of this undertaking, Garling J held that "trial" encompassed all proceedings whose result would ordinarily be recorded on the indictment, including the imposition of sentence by the presiding judge.
Accordingly, the Court found that the December 2010 order and undertakings had already made provision for the legal expenses now sought, and that the undertakings precluded the defendants from bringing the current application. The Notice of Motion was dismissed.
Orders Made
- The Notice of Motion dated 6 July 2011 was dismissed.
- The applicants were ordered to pay the respondent's costs.
Key Takeaways
- The phrase "incurred in defending a criminal charge" in section 10B(3)(b) of the Criminal Assets Recovery Act 1990 extends to sentencing proceedings, not just the jury trial phase. Both parties accepted this interpretation, consistent with DPP (Cth) v Saxon.
- Where a defendant gives a court undertaking not to seek further legal expenses "with respect of the trial of drug charges," those words carry wide import and will not readily be confined to the jury trial phase alone.
- Statutory definitions of "trial" in the Criminal Procedure Act 1986 and Jury Act 1977 do not automatically govern the construction of undertakings given in civil asset-recovery proceedings; context matters.
- A reference in an undertaking to "proceedings presently scheduled to commence on [date]" functions as identification of the relevant proceedings, not as a restriction on the undertaking's substantive scope.
- In upholding the Commission's position, the Supreme Court confirmed that once defendants have given an undertaking against further legal expenses applications in connection with identified proceedings, that undertaking covers the full lifecycle of those proceedings through to sentence.
Legislation and Cases Referenced
Legislation:
- Criminal Assets Recovery Act 1990 (NSW), ss 10B, 16A
- Civil Procedure Act 2005 (NSW), s 56
- Criminal Procedure Act 1986 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Jury Act 1977 (NSW)
Cases:
- DPP (Cth) v Saxon (1992) 28 NSWLR 263