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High Court of Australia Transcripts |
Sydney No S71 of 1999
B e t w e e n -
FRANK ROBERT WEBB and PALANI INVESTMENTS PTY LTD
Plaintiffs
and
THE COMMONWEALTH OF AUSTRALIA and OFFICIAL TRUSTEE IN BANKRUPTCY
Defendants
Application for interlocutory injunction
KIRBY J
(In Chambers)
TRANSCRIPT OF PROCEEDINGS
AT SYDNEY ON THURSDAY, 20 MAY 1999, AT 9.29 AM
Copyright in the High Court of Australia
MR L.J.W. AITKEN: I appear for the applicants on the motion or the chamber summons, and for the plaintiffs. (instructed by Colbron & Associates)
MR M.J. LEEMING: May it please, your Honour, I appear for the Commonwealth. (instructed by the Australian Government Solicitor)
MR M.F. BEZZI: I appear for the Official Trustee in Bankruptcy. (instructed by the Australian Government Solicitor)
HIS HONOUR: Yes, Mr Aitken.
MR AITKEN: Thank you, your Honour. Your Honour, might I hand up a short outline of submissions which I made available to my friend, and also seek your Honour's leave to file in Court a further short affidavit.
HIS HONOUR: Yes. Perhaps you might identify the affidavits upon which you move.
MR AITKEN: Thank you, your Honour. Should I identify that I am moving on a motion which was filed - the chamber summons filed on 17 May 1999 and an affidavit of Warwick Archibald John Colbron which was sworn 17 May 1999, and a further affidavit - - -
HIS HONOUR: Have you any objection to that affidavit?
MR LEEMING: No objection, your Honour.
MR AITKEN: And a further affidavit, your Honour, which I now seek your Honour's leave to file in Court, once again sworn by Mr Warwick Archibald John Colbron.
HIS HONOUR: Is that the affidavit of 20 May 1999, sworn by the same deponent?
MR AITKEN: That is correct, your Honour.
HIS HONOUR: Is there any objection to that affidavit?
MR LEEMING: No objection.
MR AITKEN: I have also, your Honour, handed up an exhibit which contains the judgment of Justice James.
HIS HONOUR: How does Justice James come into it?
MR AITKEN: Justice James comes into it, your Honour, in this sense that it was before Justice James that we made an application pursuant to the Proceeds of Crime Act 1987 at the end of last month, in April. We were applying to obtain payment out or an interim payment. His Honour held that we came too late to do that because of the controlling effect of the Court of Appeal's decision in Della Patrona, and as a result of that we then had to decide what course we should chart with respect to obtaining funds to fight a trial which is now imminent in the District Court before his Honour Judge Shillington.
HIS HONOUR: When is that trial due to commence?
MR AITKEN: The trial is due to commence today and that is the subject of Mr Colbron's first - subsequent affidavit, your Honour.
HIS HONOUR: I see. Well, I will just read the affidavit of 20 May 1999, sworn by Mr Colbron.
MR AITKEN: Thank you, your Honour.
HIS HONOUR: Now, I am not entirely clear. The second plaintiff, Palani Investments, is it the repository of some of the property which is the subject of the order under the Proceeds of Crimes Act?
MR AITKEN: It was, your Honour, that is correct.
HIS HONOUR: Is it charged still with a conspiracy count, or not?
MR AITKEN: It is not, no, your Honour. I apologise, there is a typographical error in Mr Colbron's first affidavit.
HIS HONOUR: Well, there are a number of them, I am afraid.
MR AITKEN: Well, I apologise for that.
HIS HONOUR: They refer to "December 1999" which is not yet upon us and there are other little things. But I just could not quite follow the sequence of events from the affidavit.
MR AITKEN: No, your Honour, what has happened is this: a forfeiture order was made by his Honour Justice James declaring that certain property was forfeited pursuant to the Act.
HIS HONOUR: And that was the order which was made following the reasons which were published on 29 April, is that correct?
MR AITKEN: That is correct, your Honour. A declaration was made. There has been, in effect, for a considerable period of time a restraining order made initially by his Honour Justice Barr in the Supreme Court restraining the use of certain property which belonged to both plaintiffs, Palani Investments and Mr Frank Robert Webb. Mr Webb is at present the person facing trial before his Honour Judge Shillington in the District Court.
HIS HONOUR: And Palani is not facing trial now?
MR AITKEN: No, that is correct, your Honour.
HIS HONOUR: There was originally a conspiracy count, I think, in respect of Palani and Mr Webb but that is not proceeding, is that correct?
MR AITKEN: That has been dropped off as I understand it, your Honour. The Crown has unrolled, as they say, the initial allegations and there are now nine separate counts which I think deal only with money laundering by Mr Webb himself. So, it is, as I understand it, nine separate fresh indictments have been preferred against him dealing with each particular item of alleged handling.
HIS HONOUR: As I understand it, the objection to the counts of the indictment which you want to argue on the proceedings in this Court in its original jurisdiction relate to a contention that the provisions of the Act which provide for the acquisition of a person's property by way of forfeiture are unconstitutional as contrary to section 51(xxxi) of the Constitution, is that correct?
MR AITKEN: That is a point, your Honour, contrary to section 51(xxxi), because they involve a taking without just compensation. Secondly, we would say that, by implication, there is an infringement, because of the taking, of an implied right which arises from Dietrich's Case concerning the entitlement to obtain a reasonable representation for a trial. And, thirdly, we would say, simply, that there is no placitum which we can see in the Constitution in section 51 which either directly or in an incidental way supports the taking of the property of a third party who has not yet been convicted of any relevant offence.
HIS HONOUR: So, this is really a revisiting of the issues that were determined in the Court of Appeal in Toro-Martinez and in Della Patrona [No 2]?
MR AITKEN: Indeed, it is, your Honour. It is a much more a Toro-Martinez Case than a Della Patrona Case.
HIS HONOUR: Yes, although in Della Patrona, I think, was the case that dealt with the 51(xxxi) point, whereas Toro-Martinez dealt with, as I remember it, two points: the issue of judicial power, which you do not seem to be running, and the issue of the support for the constitutionality of the legislation which you are running.
MR AITKEN: Yes, your Honour, but there is a, with respect, significant difference between Della Patrona and Toro-Martinez, as your Honour will recall, with your Honour presiding in both matters, and that is that in Della Patrona the person whose property was subject to the forfeiture order, having been restrained, was in fact the person convicted and ultimately charged; charged and ultimately convicted of the relevant offence. So, that is, if one might put it this way, a primary offender under the Act.
HIS HONOUR: Yes. Do you say that the second plaintiff is now not charged with any offence?
MR AITKEN: Well, he is not charged with any relevant offence which - - -
HIS HONOUR: I am talking of the company, Palani.
MR AITKEN: Mr Webb? No, I do not think - - -
HIS HONOUR: Has Palani's property being taken.
MR AITKEN: Property has been taken. I do not think Palani is the subject of any charge at present.
HIS HONOUR: And is that the foundation for your assertion that, there being no charge against it, its property has been taken? Whatever may be the rights against Mr Webb, that its property has been taken without compensation and that there is no foundation for that?
MR AITKEN: Yes, but I would seek to go further than that, your Honour, in this sense: the relevant taking of Mr Webb's property, at the time at which it occurred, by virtue of the order of Justice Barr and subsequently confirmed by Justice James, was not the subject of any charge as against him but was the subject of a collateral charge, if I can put it that way, brought against the primary offender, Mr McLean. When your Honour comes to look at the order that Justice Barr made which is annexed to Mr Colbron's first affidavit, your Honour will see from Justice James - - -
HIS HONOUR: Justice James, do you tell me, declined to make an order by reason of the delay in your application, is that so?
MR AITKEN: No, it was not the delay so much, your Honour, it was simply that his Honour held that pursuant to the legislation, we were subject to the guillotine provisions which operate because we had not applied for relief within six months of the relevant conviction.
HIS HONOUR: What is the conviction?
MR AITKEN: The conviction is the conviction of Mr McLean who, as I have said, is the primary offender, if I can put it that way. The initial seizure order was based not on any offence - - -
HIS HONOUR: It is very obscure from the affidavits. I have really no conception of how this matter came about.
MR AITKEN: No. Perhaps, your Honour, it might be easier if I - - -
HIS HONOUR: The affidavit was very obscure.
MR AITKEN: If I can step back. I apologise for it, your Honour.
HIS HONOUR: And a lot of facts were wrong. It is clearly wrong.
MR AITKEN: It has been done in some haste, as your Honour will appreciate. The position is this: initially, Mr McLean was charged with various offences. I am obliged to my friend. My friend has prepared a detailed chronology, your Honour.
HIS HONOUR: Yes. Hand that up if you would.
MR LEEMING: I hand up a copy of a chronology. The statements of fact are drawn from statements of fact contained in the reasons for judgment of Justices Barr and James. I do not apprehend there would be any dispute about the content, your Honour.
MR AITKEN: I am very grateful to my friend for that.
HIS HONOUR: I will just take a moment to look at this. All these events happened in May 1997. Why am I being asked now, in the midst of a trial, to intervene at this late stage?
MR AITKEN: You are being asked to intervene, your Honour, because of the effect of Justice James' order which - - -
HIS HONOUR: Yes, but that, in turn, is brought - - -
MR AITKEN: It was certainly brought late.
HIS HONOUR: This process all began a year ago.
MR AITKEN: Yes, it did.
HIS HONOUR: I mean, it is not necessarily fatal but given that you have to get over barriers to get the High Court or even the Supreme Court to intervene in a matter that is for trial in a criminal court - - -
MR AITKEN: We fully appreciate we are coming late, your Honour, but, in fact, the lateness - - -
HIS HONOUR: You certainly are. You are not only late, you are in the midst of the trial. It is beginning in 20 minutes.
MR AITKEN: Your Honour, the position arose because of the view which Justice James took, in our submission, with respect to the way in which the conviction of Mr McLean operated. Your Honour will see that Mr McLean was first dealt with on 11 May, if I can take Your Honour to point 8 in my learned friend's helpful chronology. That is when he was first remanded in custody. On 9 November we moved seeking - - -
HIS HONOUR: You see, this is also all out of order. I see, this is 11 May 1999.
MR AITKEN: Yes, your Honour.
HIS HONOUR: No, but that is the trial of your client. Where is Mr McLean?
MR AITKEN: If your Honour would go to page 1 - - -
HIS HONOUR: Mr McLean does not seem to be mentioned in this chronology. There he is, he is in paragraph 7.
MR AITKEN: Yes.
HIS HONOUR: I do not think counsel nowadays turn their attention to the need, in an urgent application of this kind, to have a very clear chronological statement of the facts leading up to the case. Otherwise, the judge has to be rummaging around amongst the papers. It is really quite unreasonable.
MR AITKEN: Yes, I apologise.
HIS HONOUR: As I get older, I get more impatient with it. I am not blaming anybody but, you know, you really have to think of the pressures you put on the judges. I am just going to take my time to read this now. You might sit down.
MR AITKEN: Thank you, your Honour.
HIS HONOUR: May I ask you, whilst I am reading, are you familiar with the recent decision of the Court in Pan Laboratories? It is only in the last but one part of the Australian Law Journal Reports. Perhaps I can hand that down to you both so you can have a look at it.
MR AITKEN: Thank you, your Honour.
HIS HONOUR: That was a case where a very late application of a similar kind to this was made and it was assigned to me, and the question was whether or not I should make orders because the original jurisdiction of this Court had been invoked on a constitutional question. The decision which I made was that I would not make the orders but that I would remit the matter raised by the summons to the District Court under the Judiciary Act so that that matter would be alive in that court and leave it open to the party, if discontented with the outcome of that matter in the court, to come back to the High Court at an appropriate stage, and that way preserves, first, the right of the trial judge in a criminal case not to have appellate courts intervening, second, your client's right to invoke the Constitution in every court of this land, and thirdly, the facility to have the matter specifically dealt with in the District Court and your opportunity to come back here later if you are discontented. I will just hand you down Pan. Both of you can have a look at it.
MR AITKEN: Thank you.
HIS HONOUR: Yes, I have read that now. I have not yet read Justice James' judgment. Is it necessary for me to read that?
MR AITKEN: No, it is not, your Honour.
HIS HONOUR: It seems to me you are striking at a foundation of the judgment.
MR AITKEN: We are.
HIS HONOUR: And his Honour's consideration of the application of the Act is not really the point you wish to agitate in this Court.
MR AITKEN: It is not, your Honour.
HIS HONOUR: You say the Act, in the relevant sections, is unconstitutional.
MR AITKEN: We say it is unconstitutional.
HIS HONOUR: And his Honour, of course, was bound in that regard by Della Patrona.
MR AITKEN: Well, he was. I could take your Honour to his Honour's judgment. I attempt to distinguish it, that decision, as not being binding because of the facts. His Honour held that in fact it was. May I just add one thing, your Honour, with respect to my learned friend's chronology for which I am very grateful. On 19 November 1998, which would be point 6(a), Judge - - -
HIS HONOUR: Well, 6(a) is fitting in between December 1997.
MR AITKEN: I am sorry, your Honour. Well, 6(a) should come before - yes, it is. I am sorry, your Honour.
HIS HONOUR: Is it 1997 or 1998?
MR AITKEN: No, it is 1998, I apologise, your Honour.
HIS HONOUR: So, it comes after 9.
MR AITKEN: It comes after 9, thank you, your Honour.
HIS HONOUR: So, what date is it?
MR AITKEN: It is 19 November 1998. On that day Judge Solomon formally pronounced in the District Court that Mr McLean was convicted and sentenced. That is 19 November.
HIS HONOUR: What was his sentence?
MR AITKEN: The actual sentence imposed?
HIS HONOUR: Yes.
MR AITKEN: A custodial sentence, your Honour, of some considerable time. I cannot tell your Honour but I think a period of years.
HIS HONOUR: I see. Now, there are three matters I want to know. First of all, I take it that there is no difficulty in my sitting in the matter by reason of the earlier decisions in Della Patrona and Toro-Martinez ?
MR AITKEN: None at all, your Honour, no.
HIS HONOUR: I do not feel any embarrassment and I will approach the matters completely afresh as far as I am concerned. I am now in a different place. Secondly, were there applications for special leave in either of those cases to this Court?
MR AITKEN: Not to my knowledge, your Honour. No, I do not think special leave was sought in either case, but I cannot tell your Honour that categorically.
HIS HONOUR: It is not like Mr Wendler.
MR AITKEN: It is not like Mr Wendler, yes, that is what gives me pause. My friend might be able to assist me on instruction. I do not think there was, your Honour.
MR LEEMING: In the New South Wales Law Reports, in both cases, there is no indication that an application for special leave has been filed. As an alternative course, I have myself searched the Net, that should reveal the Della Patrona special leave application were there one, and there is not one. It cannot be determined in Toro-Martinez because of the - - -
HIS HONOUR: I follow, all right. Well, we will just assume there were no such applications. Thirdly, what is the relevance of the fact that your client has pleaded guilty to certain offences, apparently, this week, for the matters that you wish to assert? Would it not be inherent in his case that he is contending that the counts of the indictment upon which he is being charged are unconstitutional and therefore, to those counts, he should not plead guilty. He should contest the indictment.
MR AITKEN: Your Honour will have seen the handwritten letter annexed to my learned instructing solicitor's last affidavit, the one I sought leave to file in Court today.
HIS HONOUR: But if we are talking about discretionary considerations, if your client pleads guilty to a count of an indictment, which his theory of his case is that he challenges as unconstitutional, then what am I to do? It seems to me that in those circumstances the matter should just take its course in the Court of Criminal Trial.
MR AITKEN: Indeed, your Honour. That raises a difficult issue because in terms of the way in which the present instructions are running, that he only has funds to run a defended trial in relation to two matters which are in much smaller compass, as he sees it, it may be an open question whether the learned District Court judge will accept the plea.
HIS HONOUR: Is this the very matter that will start the trial in a few minutes time?
MR AITKEN: Yes, it is, your Honour. It is, because it is a question - in other words, if there are no funds available to Mr Webb to run his defence - - -
HIS HONOUR: Are the funds that have been the subject of confiscation and, by the finding of Justice James, forfeiture, are they Mr Webb's funds or Mr McLean's funds, or both?
MR AITKEN: They were funds which were under the control, as Justice Barr's order found, of Mr McLean although owned by Mr Webb and by Palani Investments. So, it is a control case, your Honour. It is a situation where Mr Webb is said to be holding moneys which Mr McLean - one assumes, are transferred to him, even though I do not think my friend would say that the legal ownership is in Mr McLean.
HIS HONOUR: And what are the two counts to which Mr Webb is going to plead guilty at 10 o'clock?
MR AITKEN: I will have to take instructions on that, your Honour. As I understand it, Mr Webb intends to plead guilty to the two original charges which were proffered by the Crown, or one original charge, I am sorry.
HIS HONOUR: Is one of those the charge under the Crimes Act.
MR AITKEN: Yes.
HIS HONOUR: Originally, there was a charge under the Crimes Act and then there was a charge - - -
MR AITKEN: As I apprehend it. I should explain our position, your Honour. I am not in fact appearing, of course, below in the District Court for Mr Webb. I am only appearing here. The matter has been unfolding at great pace, of course, in terms of what exactly is happening with the trial.
HIS HONOUR: It sounds as though people have only concentrated their mind - I am not blaming you or your solicitor. Often it is the way with litigants, that they really only do not face up to the issue until the day of trial.
MR AITKEN: The fact is, your Honour, that we have been acting under some time pressure. I am not able to tell your Honour precisely what charge. I think it is the first - it is the charge which was originally preferred.
HIS HONOUR: Yes. But why is not - you may not have had time to really absorb the case of Pan, but why is that not the appropriate course? It preserves the principle that this Court does not intervene unnecessarily to fragment criminal trials, and you would know better than I that there is 100 years of jurisprudence that says that. It preserves and asserts your right to make constitutional challenge in every court, including the District Court, and it does not prevent your coming back to this Court at a later stage, in the original jurisdiction of this Court, because experience teaches that many problems go away and that is a way of economically conserving the use of judicial time, including the time of this Court which is a very busy place.
MR AITKEN: We well appreciate that, your Honour but, in my submission, that would not be an appropriate course to take in this case.
HIS HONOUR: It would or would not?
MR AITKEN: It would not be.
HIS HONOUR: Tell me why?
MR AITKEN: Because what will happen is that the matter will be remitted to the District Court by your Honour pursuant to section 44, following the approach in Pan, but an unholy pressure will then fall upon the defendant in that court, being Mr Webb, to decide whether or not to attempt, in front of the judge who has at present shown a severe disinclination to grant any adjournment for, no doubt, quite proper reasons after argument - whether or not a constitutional argument should be run to permit Mr Webb then to have access to money to prosecute his defence on the larger matter, that is to say, the offences which would take perhaps five or six weeks to try, and your Honour has seen they are very large matters.
HIS HONOUR: Yes, but what I am asking, I suppose, is why are you here expending Mr Webb's money in the High Court instead of taking an objection to the legality, the constitutional legality of the indictment before Judge Shillington? Who is the judge at trial?
MR AITKEN: His Honour Judge Shillington. I am not sure, your Honour, that the same constitutional objection would lie in relation to that charge. The charge which is preferred against Mr Webb is a conspiracy charge which has not been unrolled into nine separate counts, as I understand it.
HIS HONOUR: That is one of the two charges to which he will plead guilty, is it?
MR AITKEN: As I understand it, yes. But those charges all involve his own individual handling of improperly obtained moneys; a money laundering offence. What we are concerned with here is antecedent offences for which Mr McLean has been convicted.
HIS HONOUR: But, see, there are many permutations and combinations.
MR AITKEN: There are.
HIS HONOUR: Judge Shillington might refuse to accept the plea of guilty to the two counts.
MR AITKEN: Yes.
HIS HONOUR: Say they are indistinguishable, inseverable and therefore the matter must proceed on the basis that it was originally the subject of the indictment, in which event a hard question then has to be considered by his Honour as to whether the criteria set out by the Court in Dietrich applies. He might decide that with 30 days of trial and 34 witnesses and 20,000 pages of document that, notwithstanding the long delay, it would be a travesty to require the matter to proceed to trial and, in which event, it is redundant for this Court to be making orders. You do not make orders from the High Court, at least of all in criminal trials, unless it is absolutely imperative.
MR AITKEN: I well appreciate that, your Honour, but, with respect, even if that order were made by his Honour, that is to say, he took into account the various criteria in Dietrich, Mr Webb, without an order for payment out of sufficient moneys to retain counsel, will be in no better position, one assumes. I suppose his position will be improved in that he may be in the position, if he is refused relief, to seek an emergency grant of legal aid. That is one possibility.
HIS HONOUR: He has appealed against the decision of the legal aid authority and my recollection is that there is a provision in the New South Wales Legal Aid Commission Act which provides a statutory stay. Has that been changed or is that still the same?
MR AITKEN: My friend might be able to help on that, your Honour.
MR LEEMING: There is still the same provision in section 57 but the stay is conditional upon the judge being satisfied that the appeal is bona fide. I have not filed or read it, but - - -
HIS HONOUR: If I can put it quite bluntly to you, Mr Leeming, there is a slightly Kafka-like quality about the Commonwealth prosecuting a person and then grabbing their property, in which event they cannot properly defend themselves, and then asserting that they really have, notionally, some liquid assets with which to defend themselves although they have no access to it.
MR LEEMING: I should say that was not the basis on which the section 57 application was refused. What his Honour Judge Shillington found on Monday, Tuesday, Wednesday of this week was that the appeal that Mr Webb has lodged to the Legal Aid Commission was not made bona fide and that is why the statutory - - -
HIS HONOUR: Is the suggestion that Mr Webb, having no merit defence, is simply trying to raise a constitutional defence and that he really does not want to go ahead with the trial because he just wants to run this constitutional argument in a proper time?
MR LEEMING: Your Honour, I do not think my friend has put that submission because I think the constitutional argument was not raised before his Honour at that stage.
HIS HONOUR: It was or was not?
MR LEEMING: Well, it was not at that stage.
HIS HONOUR: I see.
MR LEEMING: Might I say two other things. The first thing is that my friend has not taken you to Justice James' judgment.
HIS HONOUR: No. Well, maybe he has not finished yet, so perhaps I should go back to him and let him finish and then you will get your turn.
MR AITKEN: Your Honour, our simple position is - perhaps it is overly simple, but the - - -
HIS HONOUR: You were telling me why the approach I had taken in Pan was not appropriate to this case.
MR AITKEN: Yes, it is not appropriate in this case, your Honour, with respect, because the matter will go back - I am talking about it now from a practical point of view and the risks one can see occurring - before his Honour Judge Shillington in the District Court. Mr Webb will then find himself, one would think, in an intolerable position in terms of pressure because he will be running the risk of taking the same point before his Honour. One assumes, if he has already taken the view that certain applications have not been made bona fide, he will refuse it. He will then be in a position where he really needs to consider immediately whether he should attempt to get the discount for pleading guilty to some lesser offence, rather than put the Crown to the cost and expense and all the witnesses of a five or six week trial, in a case when, if he were permitted to have access to his funds, one assumes he would retain competent counsel who would put every point which he was entitled to put in relation to - - -
KIRBY J: Putting it quite bluntly, if you could leave me and go over there and argue the constitutional point before Judge Shillington, spending Mr Webb's money in that pursuit rather than before me, would that not be a better way? His Honour would then have to rule on the attack on the indictment. You could then make any application you thought was appropriate to seek an interlocutory appeal and a delay for that purpose. The Court of Criminal Appeal would probably follow the Court of Appeal and then you have a ready-made appellate point. But even if the judge presses on with the case, at least the position will have been preserved.
MR AITKEN: Made clear, yes. I am not sure though, your Honour, that the fundamental premise involved in that construct is correct and that is to say that the constitutional point is also open in relation to the counts at present preferred against Mr Webb.
HIS HONOUR: Well, I just do not know because the facts are not properly laid before. If you do not know it, how do I know it? I mean, fair is fair.
MR AITKEN: I agree, your Honour. I am not appearing, as I said, in the trial.
HIS HONOUR: I realise that and I know that you are doing your best for your client and everything is happening all at once and that is the way it always is in litigation and always will be long after you and I have gone. But it is unreasonable, against a background of 100 years of jurisprudence that the High Court does not intervene in criminal trials and fragment them, to come here with imperfect factual material when, if there is a point to reserved it is better done in the court at trial than before me.
MR AITKEN: No, but, with respect, my point is this, and I apologise for my inability to tell your Honour precisely and I will take some instructions if I am granted that leave. I am not sure that the point in relation to the invalidity, as we would contend, to the forfeiture provisions is in fact available below, with respect, to the present indictments preferred against Mr Webb.
HIS HONOUR: Are you saying that because of the decision of the Court of Appeal which would bind the judge below or - - -?
MR AITKEN: No, I am saying because I think the unwinding of the indictment raised fresh - - -
HIS HONOUR: That could be a ground for objecting to this so-called unwinding.
MR AITKEN: Indeed, it could. It came, with respect, fairly late in the day although, as I said, I was not looking at that aspect for Mr Webb at that time. We sought particulars and particulars were given. I think the present indictment involves five or six, from my recollection, separate allegations of handling large amounts of money. Now, I do not think, your Honour, that the present constitutional point with respect to the forfeiture will operate as a defence to that as a plea in bar at all to quash the indictment. I think the two things pass entirely in the night.
HIS HONOUR: But is one, at least, of the counts of the indictment based upon the Proceeds of Crimes Act?
MR AITKEN: Yes.
HIS HONOUR: My understanding is one is under the Crime Act and one is under the Proceeds of Crimes Act.
MR AITKEN: That is correct.
HIS HONOUR: And if it is under the Proceeds of Crimes Act then the suggested constitutional flaw, which may or may not have some substance, is available to your client because, if it is unconstitutional, nothing flows from it. He cannot be charged on it. It is a nullity. It has no effect whatever in law.
MR AITKEN: Would your Honour just pardon me for one moment. I will just take some instructions. Your Honour, imperfect as my instructions are, and I apologise for that, our complaint before your Honour is simply that the forfeiture provisions themselves are invalid and as a result of that, moneys which were seized long ago - - -
HIS HONOUR: I realise that is what you want to confine it to, but I am not going to breach 100 years of jurisprudence to fragment a criminal trial unless there is a very, very, good reason to do so. The point that you are now raising is a point that has been around at least since Della Patrona [No 2] and could have been raised at a much earlier point than you are now seeking to raise it before this Court and, therefore, as a discretionary matter, the view that I would take, subject to hearing anything further you have to say, is that you should be protected in respect to the point but its proper time for argument will come later. It will not be today and it will not be to the disturbance of the ordinary process of the criminal trial. It ought, in principle, to be taken in the criminal trial. It ought, perhaps, to be taken at this very moment before Judge Shillington, if that is your client's instruction.
MR AITKEN: Your Honour, with respect, there is not an element of fragmentation involved in an order being made that sufficient moneys be available to Mr Webb now for other counsel to be retained to mount a criminal defence for him in the District Court. There is no element of fragmentation, with respect, involved.
HIS HONOUR: Well, there is because you would then go back to Judge Shillington armed with that order and seek to make from that order some basis for his interference with the decisions he would otherwise make for the running of the trial.
MR AITKEN: The only order that could properly be sought, your Honour, would be that funds are now available to retain counsel and an adjournment is granted - - -
HIS HONOUR: I would not be inclined at this late stage and this late application on these imperfect facts to make that application at this stage. The choices before me are two, as it seems to me: either to refer the proceedings and your constitutional challenge into the Full Court and leave it there to take its course in the list, making no interlocutory orders at this stage; or to remit the application to the District Court, as I did in Pan.
MR AITKEN: No, but I think, your Honour, that is where, unfortunately, I have put the matter imperfectly to your Honour for which I apologise. There is no necessary overlap at all between the present indictments preferred against Mr Webb - - -
HIS HONOUR: But that depends, does it not, upon the order that Judge Shillington makes on the application to sever two of the counts of the indictment and to deal with them now? If his Honour will not do that and insists that the whole of the indictment goes ahead, then, as I understand it, there are nine counts based upon the Act which you may wish to challenge.
MR AITKEN: But in relation to the Act, I do not think that the relevant act, that is to say, the actus reus, involved - - -
HIS HONOUR: I thought he was charged under the Act.
MR AITKEN: He was charged under the Act but with respect to other matters, as I understand it. In other words, he is charged under the Act with respect to his own separate handling. It has nothing whatsoever to do with - - -
HIS HONOUR: Forfeiture and confiscation?
MR AITKEN: Indeed, nothing at all.
HIS HONOUR: Well, that may well be so but even if that is the case, then the ordinary criminal course would be to allow Judge Shillington to make these determinations, applying Dietrich and to preserve your position and to allow you to come to the High Court at the end of the trial if the issues are still relevant. Your client may consider that, as he is going to plead guilty on two counts, that the punishment imposed is appropriate and acceptable and may not trouble the courts further, in which event the matter goes away.
MR AITKEN: I realise it is, with respect, not an easy matter. It is not clear to me at present, on the basis of what appears from Mr Webb's handwritten document annexed to the affidavit of the instructions, that Judge Shillington will accept a plea which appears to be based purely on the fact that there are insufficient funds proper to mount a defence to all the matters.
HIS HONOUR: Is that on the basis that he thinks your client has other money hidden away?
MR AITKEN: No, it is simply that his Honour may decide that in that particular situation, there is not a full, frank and proper plea of guilty but simply one which is derived from the impecuniosity which obliges the defendant to accept or make a plea of guilty, to enter a plea of guilty.
HIS HONOUR: Where is the handwritten note that you refer to?
MR AITKEN: It is at the very back of Mr Colbon's last affidavit, your Honour.
HIS HONOUR: The very last document that I have in that is the application or the letter from Legal Aid New South Wales - - -
MR AITKEN: No. Sorry, your Honour, it is the last affidavit I handed up, the affidavit of 20 May. I think your Honour did look at it because your Honour referred to it. Your Honour will see the handwritten letter from Mr Webb. Does your Honour have that? I can hand up another.
HIS HONOUR: This is the affidavit of 20 May 1999?
MR AITKEN: Indeed, your Honour. If your Honour would go to the last page of that - - -
HIS HONOUR: Yes, I see. Just a moment.
MR AITKEN: If your Honour reads that letter, on one view of it, the statement that:
Due to the position that I am in regarding funding of my trial I am left with no alternative but to plead guilty on some charges -
may well mean that his Honour Judge Shillington may say, "Well, I'm sorry, I cannot accept a plea on that basis. A plea has to be entered on the basis that you acknowledge, freely and frankly, you are guilty and then we will sentence you according to the law for those charges."
HIS HONOUR: Yes.
MR AITKEN: But the point that is made is - I do not know whether his Honour will take this view - but if he says, "I cannot get access to my funds for at least four to six weeks, the charges I can defend can be funded." Now, with respect - and I realise it involves all sorts of subtle balancings, that is a difficult matter, now, or a difficult position for Mr Webb to be placed in the District Court because his Honour may take the view - he is a very experienced, with respect, criminal judge, that on this occasion what is being offered to him is simply a plea on some charges because that is the only - - -
HIS HONOUR: Is your client offering to plead guilty on the two counts to satisfy the entire indictment?
MR AITKEN: That, I do not know, your Honour. I will take some instructions. Your Honour, I have been asked - and pardon me if I am reminding you of something your Honour already knows - to remind your Honour that the reason that 19 November is relevant, the date I referred your Honour to in the chronology at point 9 , is because of this: that was the time when Judge Solomon pronounced the words "You are convicted and I sentence you", and it was on that basis in terms of delay that we assumed that we had six months from that relevant date, although there was correspondence passing between the Crown and us about it, with a view of enlivening Della Patrona. I am reminded his Honour actually said that was the date of conviction. Well, that is correct.
Now, Justice James, applying Della Patrona has said, although I pressed him with Maxwell and some other decisions, that, in fact, the date of conviction is the first date upon which the person is remanded in custody. Now, your Honour, the only charge to which, as I understand, we are pleading guilty is a charge of being guilty of an offence contrary to section 86 of the Commonwealth Crimes Act which is a conspiracy charge.
HIS HONOUR: But is that a conspiracy with Palani or with Mr McLean?
MR AITKEN: It is with some other persons. The indictment I have or the information I have does not tell me precisely. I am reminded, it says, "inter alia, Mr McLean", yes.
HIS HONOUR: Would it not be the case that if your client were forced on to trial without proper legal counsel of his choice because he could not get access to his funds and was denied legal aid, that you would have reserved to you the entitlement to seek, from the Court of Criminal Appeal, an order setting aside the order of the trial on the basis that your client had been denied the facilities which Dietrich says are his right?
MR AITKEN: Indeed, your Honour, but in terms of convenience, it is surely far more convenient, with respect, for the Crown to be required to make available some - our order does not seek the king's ransom, it seeks merely enough - presumably as much as the Legal Aid Commission would provide - out of assets seized and now forfeited which can be capped, and we would be pleased to submit to any order in terms of the amount. We can simply agree the amount for counsel to be retained immediately. With respect, your Honour - - -
HIS HONOUR: But how could counsel, coming in at this stage, be in a position to present the trial? He would stand on his feet and say, "I've just been briefed. I have had no opportunity to read 20,000 pages of transcript and I want an adjournment."
MR AITKEN: Indeed, yes, and Judge Shillington - - -
HIS HONOUR: That is effectively the capper you are involved in, is it not?
MR AITKEN: Well, "capper", your Honour?
HIS HONOUR: Well, it is a capper because here we are on the very day of the trial.
MR AITKEN: With respect, it is not a capper, your Honour.
HIS HONOUR: Well, it is, because this is the very day of the trial. The trial has begun a quarter of an hour ago, and you are here before the highest Court in the country asking for interlocutory orders that will have the effect of disturbing the running of the trial. Why was this not done months or even, perhaps, years ago?
MR AITKEN: Your Honour, with respect, it would not be at all unusual in the District Court for a judge to be told that counsel had been retained two or three days before in a trial. Your Honour would be well aware of that in the Court of Criminal Appeal in this State, the highest court in this State in criminal matters, and for senior counsel or experienced counsel to say, "It will take me two or three days to be in a position to mount a defence" or to run a matter, no matter how much material is involved, and the trial will start on Monday of next week or Tuesday of next week. That happens time out of mind in the District Court, with respect, as your Honour is well aware. In the context of a six week trial, that sort of delay would be neither - - -
HIS HONOUR: If you are talking about convenience, then it seems to me that to come here on the very day of the trial and ask for these orders which you know, and I know, will have the effect of disturbing the running of the criminal trial is quite inconvenient.
MR AITKEN: Well, with respect, your Honour, no. The balance of convenience is all, with respect, in favour of your Honour making some small order so that certain moneys are paid out, because what your Honour is positing is that a trial go forward either on one or two bases: either that Mr Webb pleads guilty to certain charges on the basis that that plea may not be accepted - that is one possibility - or that the Crown has put the expense of proving, over a six or seven-week period, without Mr Webb have the benefit of legal representation, of competent counsel, of what looks like a rather complex matter if 35 witnesses are being called and there is 40,000 pages of documents, and then have the point taken, the Dietrich point, which will involve all the ramifications of the matter going to the Court of Criminal Appeal and argument being put there, when the only delay posited here - and I can take instructions about because other counsel have been retained or are appearing now for Mr Webb, as I understand it - is a delay of perhaps two or three days which would be nothing at all unusual in the District Court in a trial of this scale, with respect.
HIS HONOUR: Has counsel been retained? Is counsel in the wings waiting for word that the High Court has provided this order so that you can leap into the fray?
MR AITKEN: I will just take some instructions, your Honour. We are not acting in the trial, your Honour. There is a separate solicitor appearing for Mr Webb at the trial and I think counsel is appearing for Mr Webb at the trial this morning. Yes, we believe that counsel is there.
HIS HONOUR: Well, would they not have had the documentation?
MR AITKEN: This documentation?
HIS HONOUR: The 40,000 pages. Not the 40,000 horsemen, the 40,000 pages.
MR AITKEN: I am not sure when they were instructed, your Honour. I just do not know when those counsel were instructed. With respect, the convenience is all contrary to what your Honour puts. It is all in favour of a slight delay being granted and some moneys being made available to retain counsel immediately, if our argument be correct in relation to forfeiture. On that point, your Honour - your Honour, of course, with the other members of the Court of Appeal dealt with the matter in Toro-Martinez, but your Honour said, "We are very close to the margins in terms of an order which forfeits property simply on the basis of a view formed by a police officer." That is the only nexus in relation to this property. There is no other nexus at all, and there is no conviction, no relevant conviction or charge against Mr Webb.
Now, I do not know whether it is appropriate for me to take your Honour to our substantive argument on that point, your Honour, because in terms of convenience, with respect, it is far more convenient for your Honour to make some interim award now or some interim order now.
HIS HONOUR: Well, if you had come to the Court even four weeks or so before the trial, you may have been able to persuade me but to come on the very day of the trial - - -
MR AITKEN: But, you see, your Honour, that is where I need to remove the prejudice in your Honour's mind, with respect.
HIS HONOUR: It is not prejudice, but it is relevance, because you are asking me to fragment a trial which began a quarter of an hour ago, because that is, effectively, what would happen if an order were made.
MR AITKEN: When your Honour says "fragment", fragment, with respect, suggests that there is going to be some long period of delay. There would not be, your Honour. There could not be.
HIS HONOUR: Yes. Well, you said that. Is there anything else that you need to say now?
MR AITKEN: Yes, your Honour, because I need to remove - if I might put it this way - the prejudice. Your Honour used the term "capper". We applied to Justice James with a view to getting a payment out under the Act which we were entitled - - -
HIS HONOUR: But his Honour's order was in April.
MR AITKEN: His Honour's order was in April.
HIS HONOUR: Why has it taken all this time to come to the High Court, if you say that you had a point in the original jurisdiction of the Court?
MR AITKEN: Because we needed to consider, your Honour, which line of country to take. We took a little while to get his judgment. We were very grateful, his Honour gave his judgment immediately. But we then needed to consider whether to appeal to the Court of Criminal Appeal or whether to take the point immediately before the High Court and time passed, it is simple as that.
HIS HONOUR: Time passed and the trial began.
MR AITKEN: Well, yes, your Honour, that is correct. That is the position.
HIS HONOUR: You see, 29 April, even that - that is two weeks away, and even then if you had applied, the situation would be different from what it is today. However, I do understand and I have some sympathy for the view that the Commonwealth and its prosecutor should not be in a position that by their actions they effectively force a person to plead guilty. That would be a wrong use of the Act.
MR AITKEN: But, your Honour, that is the very problem and the prejudice, with respect, in terms of judicial economy. The view which your Honour has propounded about the matter running and then, on a Dietrich basis, being taken to the Court of Criminal Appeal, with respect, would be a misuse of resources, on everyone's view of it. It would have to be because if sufficient is vouchsafed safe then - I do not know how much would be required but presumably not a huge amount out of the amount seized. The amount seized - - -
HIS HONOUR: You keep saying - you are making this seem like a widow's mite that you are seeking. What is the sort of round sum that - - -?
MR AITKEN: Your Honour, I am advised, in order to cover - we do not know because we are not instructed, but something in the region of $50,000 to run the six-week trial. We are looking here at assets seized in the region of $8 million, I think, your Honour. I am sorry, $11/2 million, I apologise.
HIS HONOUR: Yes, I thought it was - - -
MR AITKEN: Yes, I am sorry, your Honour. It is another figure that leapt into my head - $11/2 million.
HIS HONOUR: Yes.
MR AITKEN: Now, if one considers the convenience there, with respect, that is not - now, of course, I know it is ill behoves me to say it but if it had been perceived that the Della Patrona conviction would operate, as it were, as a bar earlier, then one assumes that an order of some sort might have been made by one of Her Majesty's judges in the Supreme Court in any event pursuant to the broad power to make an order.
HIS HONOUR: But if Justice James is right, then there is no power to make an order, even assuming that the Act is constitutionally valid.
MR AITKEN: But that fault, that delay, should not be laid at the feet of Mr Webb, with respect, in terms of his entitlement to trial. That was an error which was made. I do not know whether I made it or somebody made but it was an error which was made on the basis of when the actual conviction occurred. You see, we were applying on the basis that the conviction had occurred in November of last year which gave a further six months for an application for a payment under section 30A of the Act.
HIS HONOUR: Remind me, why does Mr McLean's conviction affect Mr Webb's rights?
MR AITKEN: Because it is that conviction which provides, under the way in which the legislation is drafted, for an automatic cut-off, as it were, within six months from the date of that conviction. So, the position, as we apprehend - - -
HIS HONOUR: But if that point is good then, then you are out of time for an application under the Act, is that correct?
MR AITKEN: Indeed, and we were out of time, according to Justice James, as at some stage in November. Mr Webb was first convicted. Your Honour will recall under the Act "conviction" is not defined under section 5. There is nothing which tells you who was convicted or when a conviction occurs. Mr McLean was convicted in May. He was then remanded - - -
HIS HONOUR: Yes. It is some time since I have had the pleasure of looking at this Act, so I do not really recall it very clearly.
MR AITKEN: Your Honour, the Act, with respect, is labrynthine, but may I put it this way to your Honour. Mr McLean is convicted in May but remanded by Judge Solomon for a successive number of remands. This is all set out in the submissions which my learned friend below, Mr Game, SC, put to his Honour Justice James. It might be easier for your Honour if I can actually take you to that document. I apologise for doing so. Your Honour will see - - -
HIS HONOUR: Where is that?
MR AITKEN: That is in the judgment of Justice James which was handed up to your Honour.
HIS HONOUR: Yes, I have that.
MR AITKEN: Would your Honour go to page 2.
HIS HONOUR: Yes.
MR AITKEN: Your Honour will see at the bottom, paragraph 5, at the bottom of his Honour's judgment - - -
HIS HONOUR: Page 2, paragraph 5?
MR AITKEN: I am sorry, your Honour, if your Honour would go right to the back. It is in fact an annexure. It has a chronology annexed, I apologise, your Honour. It is page 2 of the very last annexure. That is Mr Game's submission. Does your Honour have that?
HIS HONOUR: Yes.
MR AITKEN: Does your Honour see paragraph 5?
HIS HONOUR: Yes.
MR AITKEN: Your Honour will see there:
In respect of the offence of money laundering involving $5,126,300 that the matter was set for trial to commence on 11 May, 1998. On that date Mr McLean entered a plea of guilty. The transcript for that day records his Honour as saying, "You will be remanded into custody to a date to be fixed".
Mr McLean then pleads guilty to further counts. Your Honour sees that from paragraph 6. And the matter then goes over, if I can take your Honour through paragraphs 7, 8 and 9, down to paragraph 10. Now, your Honour will see that on 19 November:
both the crown and the judge took the view that Mr McLean had not yet been "formally" convicted. His Honour said, "No I haven't sentenced him so he hasn't been convicted".
And he then formally pronounces an order of conviction and sentence.
HIS HONOUR: Yes.
MR AITKEN: Now, we made an application for an extension of time to have moneys paid out under the Proceeds of Crimes Act by varying the forfeiture order based on the fact that a conviction had only occurred on 19 November 1998. His Honour Justice James held, applying Della Patrona, that unfortunately for us the relevant conviction had, in fact, occurred, first of all, back on - - -
HIS HONOUR: When he pleaded guilty?
MR AITKEN: On 11 May, yes. I put to his Honour, "Well, Maxwell's Case changed the position because a plea of guilty could always be withdrawn." That was one point. Secondly, in Della Patrona, Mrs Della Patrona was convicted before a jury. His was simply an entry of a plea which one could, following Maxwell, presumably withdraw at any time. There is no formal pronouncement by a general verdict of the jury. His Honour heard all those points but decided we were unable to distinguish Della Patrona.
Now, the consequence of that, of course, was that we were time barred and we could not get an extension to apply for our grant of moneys under the Act. Now, that is not Mr Webb's fault.
HIS HONOUR: But may not all of these problems be solved if the appeal for legal aid is successful?
MR AITKEN: Yes.
HIS HONOUR: Surely, that is a matter that ought to be expedited and determined quickly.
MR AITKEN: When your Honour says, "all of these problems", there would still be a question of some delay, certainly, in the District Court proceeding. I would assume his Honour would grant some adjournment if legal aid were granted.
HIS HONOUR: If you were able to tell his Honour that it was going to be determined within a matter of a day or so, I would have thought his Honour might consider providing a short adjournment but that would be a matter for him.
MR AITKEN: Yes, but the point I wish to simply make by taking your Honour to that chronology is that the matter was in view from a period back in November. The view was taken that there was still sufficient time to apply. An application was made and it turned out to be incorrect. That, of course, then put us on the horns of a dilemma in front of Justice James because we either had to then seek leave to appeal against Della Patrona from the Court of Appeal with a view then to going to this Court. One assumes that the Court of Appeal would hold it was bound by Della Patrona. We had to contemplate getting an urgent application on, and I spoke to Registrar Jupp about that. But then it seemed that the more appropriate method, if the legislation was unconstitutional in terms of the balance of convenience, was to come and simply ask for sufficient moneys which, if the legislation is unconstitutional, belong to Mr Webb and Palani in any event.
HIS HONOUR: Yes, but as against doing that, there is a decision of the Court of Appeal which says it is not unconstitutional.
MR AITKEN: There is.
HIS HONOUR: And you are making an extremely late application.
MR AITKEN: Indeed, but, with respect, in terms of the Court of Appeal decision - - -
HIS HONOUR: You are referring now to Toro-Martinez or to - - -?
MR AITKEN: Toro-Martinez (1993) 33 NSWLR, your Honour. That is the key decision. With respect, your Honour will recall that this particular decision, of course, antedated the more recent jurisprudence in terms of proportionality as well in the High Court. I think it was a glimmer - your Honour, I think, touched on it in your Honour's leading judgment. Your Honour touched on it at pages 91 and following on the incidental power.
HIS HONOUR: All I am saying is I am not saying that there may not be a point to be argued at one stage, but I am saying that you have to approach the case on the basis that there is a decision of a Full Court of an intermediately appellate court which has decided that the statute is in the relevant respect constitutional.
MR AITKEN: Indeed.
HIS HONOUR: And no special leave as sought or none was granted to bring that matter up to this Court and, therefore, the starting point for a consideration of whether this Court would provide interlocutory relief at this stage would be that it has been held that the point you are now seeking to argue before this Court does not have legs.
MR AITKEN: With respect, if I can take your Honour to your Honour's own comment at page 94, paragraph F. Your Honour here is dealing with the incidental aspect which is a difficult one. We would say the law has developed since then but your Honour observes, with respect, that:
The present legislative provisions push Federal power as close as is possible to its boundary.
Now, with respect to the judgment of Justice - - -
HIS HONOUR: Yes. Again, I repeat, you may have something that would find favour in this Court but you start from a basis where it has been rejected and therefore it is not as if you are coming to the Court where this is a new point; no one has seen it before; it is entirely fresh; it appears to be strongly arguable.
MR AITKEN: I fully concede that, your Honour.
HIS HONOUR: You come to the Court from a matter which has been argued in the Court of Appeal and has been determined against that point.
MR AITKEN: Yes. May I just note though that Justice - - -
HIS HONOUR: With quite good counsel. Mr Katz was there and Mr Wendler was putting every possible argument that could possibly conceivably or inconceivably be put.
MR AITKEN: That is why it is rather surprising that there is no special leave application, in a sense, with respect to that learned counsel. Your Honour, can I just draw your attention to the fact that Justice Mahoney, at page 97, paragraph B, said that he did not think it necessary in the present case to consider whether there was a:
power to make a restraining order in respect of the property of a third party where that property had no relationship whatsoever to the events or the person in question -
Well, with respect, that really conceals the problem in these sort of cases. The only connection, in order to bring it back to a placitum within section 51 is the opinion of a policeman. That is it. In a sense, none of us - I should not say none of us - are safe, but under the Act - - -
HIS HONOUR: Did not the court say in Toro-Martinez that it cannot just be some irrational opinion or some absurd opinion or some opinion that no reasonable person could take?
MR AITKEN: It does, and the facts must be stated.
HIS HONOUR: It has to be an opinion which is reviewable in the ordinary public law manner.
MR AITKEN: The facts must be stated in the affidavit upon which it is based. But, nevertheless, your Honour, we are all familiar with examples where a reasonable opinion is held which bears no appearance or no connection with reality when the full facts are available, the objective facts.
HIS HONOUR: You do not have to persuade me that there may be an occasion where your client could have their day in the High Court on this point. You have invoked the original jurisdiction of a court. It has to be dealt with in some way.
MR AITKEN: Yes.
HIS HONOUR: But what I have to consider today is not that point but whether or not, in the face of a decision of the Court of Appeal in New South Wales which conceded the difficulty of the point but rejected it - which is your starting point - and having regard to the balance of convenience which includes the fact that a criminal trial began half an hour ago, this Court should now intervene and make orders that it would know would have the effect of interrupting a criminal trial. That is something which I feel very disinclined to do.
MR AITKEN: But, your Honour, that interruption, with respect, is going to occur whether or not the legal aid appel is successful or your Honour makes an order. An interruption is going to - - -
HIS HONOUR: But that will happen in the milieu of the District Court. It will not happen by reason of an order of this Court.
MR AITKEN: I appreciate that, your Honour. I appreciate the distinction - - -
HIS HONOUR: Anyway, I think you have - I do want to hear what Mr Leeming has to say because I am just a little concerned at the Kafka-like quality of the Commonwealth taking a person's money and then preventing them from, effectively, defending themselves. That would not be something I would very readily lend my judicial order to.
MR LEEMING: Your Honour, may I deal with the Kafka-like point first? Your Honour has been taken to the judgment of Justice James; some paragraphs of it.
HIS HONOUR: Yes. I have not read it really. I have not had the time. I only received it this morning. May I just say for your benefit, if ever you are in a case like this before, please send these things in the day before because then they can be read. I mean, it is really very unreasonable, and we are working under pressure in this case, to expect all these things to be done on the run. Anyway, press on.
MR LEEMING: In paragraph 12, which is on the bottom of page 3 of that judgment, the stance taken by the Director is set out and the stance was if there is a statutory bar then, well, there is nothing that could be done but, if not, the Director was not going to impose the provision of funds for legal counsel to be retained by Mr Webb.
HIS HONOUR: Was or was not?
MR LEEMING: Was not going to oppose that so long as Mr Webb could show that reasonable diligence had been used in the conducting of his trial.
HIS HONOUR: Is that the practice? Can you tell me that that is the practice, that where a person cannot get legal aid, that sufficient funds are released to ensure that the person can get counsel of his or her choice in the trial.
MR LEEMING: I am here for the Commonwealth and there is no one from the Director here but, certainly, from my own experience, I can say that happens.
HIS HONOUR: I should hope so.
MR LEEMING: Quite. The legislation makes - - -
HIS HONOUR: Because otherwise the Commonwealth, through its agency, takes the funds and then effectively wounds the accused.
MR LEEMING: Quite so.
HIS HONOUR: And that would be manifestly unjust and could not be the purpose of the legislation.
MR LEEMING: The legislation certainly makes express provision for funds to be allocated for the purpose that Mr Aitken suggests. But he was out of time for his application under 30A. Your Honour has heard precisely how that happened.
HIS HONOUR: This is because the view was taken that November and not May was the date of the conviction?
MR LEEMING: Yes, and critically to Mr Aitken's application, under the section that he invoked, there was an express prohibition upon the court extending time. Now, I told my friend this morning, it is in the written submissions, there is another avenue that is still open to him under the Act and that is to make an application under section 31. True it is, he needs leave, because six months has elapsed, but your Honour has heard from Mr Aitken. There is a reason for that, and there is no reason to suppose that the Director's attitude would be any different in respect to the 31 application than it was before Mr Justice James last month.
HIS HONOUR: Was that raised before - it was not raised before Justice James?
MR LEEMING: No, it was not raised before.
HIS HONOUR: What does section 31 say?
MR LEEMING: Section 31 applies when there has been a forfeiture of property, which is the present case. It says that a person who claims to have an interest in the forfeiture of property, other than the person who has been convicted, can put their hand up and say, "This is my interest" and get an order from the Official Trustee to transfer that property to him.
HIS HONOUR: Is Mr Bezzi appearing for the Official Trustee?
MR LEEMING: Yes. So, there is no reason why such an application cannot be made. True it is, leave is required because of the effluxion of time but reasons can be adduced for that to happen.
HIS HONOUR: So, that is one possibility. Another possibility is that the legal aid appeal may succeed.
MR LEEMING: Precisely.
HIS HONOUR: And another possibility is that the judge at trial will say, "Well, it is just too difficult to force this matter on with so many documents and so many witnesses and even though it is very late, I should not do that."
MR LEEMING: And with respect, if this matter were remitted to the District Court then one could imagine the argument that would be put. It would be in the alternative. On the one hand, if the Act is constitutional, all this money which I say was mine has been forfeited, therefore Dietrich. On the other hand, if your Honour is minded to find that my constitutional argument is successful, then your Honour should stay the trial pending provision of the funds back from the Official Trustee to me.
HIS HONOUR: I feel that there is an air of unreality coming over this case as every minute ticks by because it may well be that by this stage the accused has pleaded guilty to certain offences and that the debate is going off on some other basis. All of this, because this application is being brought at such a late stage.
MR LEEMING: We do know that the accused has funds to retain counsel for at least a week. That is what comes from Mr Colbron's affidavit of this morning. We assume that he is represented by counsel down there before the District Court this morning who is informing his Honour Judge Shillington that this present application in this Court is being made.
There is one other discretionary factor and that is Justice James in his judgment records that the constitutional point presently flagged by my friend was adverted to by Mr Aitken, but not pressed, before his Honour. He does that in paragraph 9 of his judgment on page 3. So, that is a discretionary point leading to delay.
HIS HONOUR: Yes. Well, of course, that is not a very big discretionary point because Justice James would have been bound to follow the Court of Appeal.
MR LEEMING: Yes.
HIS HONOUR: But your point is that Mr Aitken did not seek to reserve the point there and say that he was formally applying to rely on the constitutional arguments.
MR LEEMING: Yes. Your Honour, I just have a note - I was trying to make inquiries about what your Honour put to me before about the attitude of the Director. There is a representative from the Director here but she just does not have instructions as to what the stance would be.
HIS HONOUR: Yes. Very well. They are not a party and I do not think we should be receiving statements that may not have authority.
MR LEEMING: Your Honour has my written submissions on discretionary factors. I do not seek to enlarge upon them in the light of what has flowed between your Honour and Mr Aitken. It seems, with respect, that interlocutory leave should not be granted today in terms of dealing with the matter which has been placed before the High Court. There are two possibilities of remitter and sending it to a Full Court. If the point is proposed to be agitated now, the course which would be least destructive to the continuity of the District Court trial would be remitter.
HIS HONOUR: Mr Aitken says that that does not have any utility, given the charge that his client faces, which is under the Crimes Act or other provisions of the Proceeds of Crimes Act which are not concerned with forfeiture.
MR LEEMING: I must say I do not quite perceive the difficulty that Mr Aitken does.
HIS HONOUR: I suppose that would be a matter that could be sorted out by the trial judge which is where these things ought to be sorted out. In the event that there is no relevancy to the trial, the matter can come back here under the original jurisdiction anyway and orders can be made at that stage for the purpose of returning the matter before a Full Court.
MR LEEMING: Precisely.
HIS HONOUR: What is the course that you submit then that I should take?
MR LEEMING: Your Honour should refuse the interlocutory relief. Your Honour, the preferred course then is to remit this matter to the District Court. On the other hand, if there is an indication from the plaintiff that, in the absence of any interlocutory relief being granted, then nothing will be done to agitate this point in the District Court, then there would be no utility in the remitter and so the matter should either be adjourned or referred to a Full Court.
HIS HONOUR: Yes, very well. Thank you. Yes, what do you wish to say, Mr Bezzi.
MR BEZZI: Your Honour, I wish to advise you that my client submits to any order that you might make save as to costs. There is one point that I might be of assistance on. There was comment made about the value of the assets seized. I am instructed that they are currently worth approximately $650,000. They comprise a property in Queensland which is valued at approximately $300,000; 60 horses including race horses that are worth approximately $200,000. There is a bank account which has approximately $100,000 in it, and some other assets including a land rover car and an amount of cash in a betting account in the Northern Territory, which add up to approximately $50,000.
HIS HONOUR: I see. Well, how did the estimate fall from $11/2 million to $650,000, do you know? Because there was a figure in the affidavit by Mr Colbron that suggests - - -
MR BEZZI: I do not know. I do know that at the time of the forfeiture - - -
HIS HONOUR: Perhaps the horses were valued at more than you are inclined to value them at.
MR BEZZI: I think that there was more cash in the account and that running the property has not been a profitable exercise, so that the cash has dissipated.
HIS HONOUR: Yes, very well, thank you very much. Yes, Mr Aitken.
MR AITKEN: Your Honour, can I just say one thing in reply to the helpful suggestion made by my learned friend, Mr Leeming, with respect to the possibility of a section 31 application. With respect, there is no possibility of our being able to make that application because of the provisions of section 31(6) which would require an order for it to be paid out of any property, notwithstanding the forfeiture, the court to be satisfied of a large number of things: not being involved in the commission of a serious offence; not being the subject of effective control, et cetera, and on an interlocutory basis the court simply could not do that with the charges preferred in the District Court now. In fact, the very things which are charged are the very things which the court would, in its discretion, invoke as a basis for refusing an order under section 31.
So, we are really on the horns of a dilemma. I have been reminded, in terms of lateness, that Mr Webb, in the criminal proceedings, had applied himself for a postponement and Judge Shillington heard that with submissions being made by the Crown, and only decided against it yesterday. Quite candidly, my friend is right. We did not raise the constitutional point before his Honour Justice James for the very reason your Honour adverted to, but even had we done that we would then have been faced with the terrible time construct. It simply would not have fitted into any time construct apart from applying directly to this Court because --well, your Honour has already said it - - -
HIS HONOUR: Which you had left to the very day of trial.
MR AITKEN: We did.
HIS HONOUR: What do you say about that, Mr Leeming? It does not appear as if section 31 has any relevance or applies?
MR LEEMING: Look, my friend may well be right. My principal point was that there is no express provision - - -
HIS HONOUR: This would be a serious criminal offence, would it not?
MR LEEMING: I think in the world of practicality my friend is quite right, so that is not a practical alternative to my friend.
HIS HONOUR: So, we have to cross that one off the list which leaves two other matters. I will adjourn for a short time to consider what I am going to do in this matter.
AT 10.47 AM SHORT ADJOURNMENT
UPON RESUMING AT 11.15 AM:
MR AITKEN: Your Honour, can I inform your Honour I have just had some instruction from the District Court. The applicant has pleaded guilty to a number of counts and the matter has been stood over until Monday, presumably for sentence. I should clarify that he is pleading guilty to a number of charges in the first counts and a number of charges have been stood over for hearing until Monday.
HIS HONOUR: I am still in a state of, shall we say, a little confusion.
MR AITKEN: I apologise, but it is a confusion that I share and I should, speaking with as much candour as I can, say that it is very difficult to know what is happening.
HIS HONOUR: You have been very proper to bring that. If there is a choice before your client of my dismissing the application on the summons but referring the substantive application for constitutional challenge into a Full Court or remitting to the District Court the matters that are raised in the summons, what is it that you would ask the Court to do?
MR AITKEN: I would ask your Honour to take the first course.
HIS HONOUR: Very well.
This summons seeks orders inter alia that the Commonwealth forthwith make available to the plaintiff, Mr Frank Webb, out of specified property, moneys sufficient to permit Mr Webb to defend criminal proceedings brought against him. The respondents to the summons are the Commonwealth and the Official Trustee in Bankruptcy. The latter has submitted to any order of this Court save as to costs.
The criminal proceedings in question were listed before the District Court of New South Wales this very morning. The present summons was filed in association with a statement of claim invoking the original jurisdiction of this Court. That process seeks declarations, including one that provisions of the Proceeds of Crime Act (Cth) ("the Act"), under which the property of Mr Webb was taken, is invalid as beyond the power of the Parliament in accordance with the Constitution.
The facts
The facts are somewhat confused. They are not entirely clear to me; nor were all relevant facts known to Mr Webb's counsel. Even as the proceedings were unfolding new facts were emerging in the District Court. The principal relevant facts appear to be these:
Mr Webb has been arraigned on counts of an indictment charging him with conspiracy to launder money by disposing of money the proceeds of crime contrary to the Act. He was also charged with other offences, including one against the Crimes Act 1914 (Cth), section 86(1), and others against the Act in respect of the receipt, possession and disposal of money said originally to have been of the value of $3.5 million and $900,000, allegedly the proceeds of crime. It appears that these estimates may need revision and that the amount alleged could now be something considerably less than the amounts stated, being of the order of $650,000. In any event, it is a significant sum.
In December 1998 the Director of Public Prosecutions for the Commonwealth informed the solicitor for Mr Webb that he proposed to proceed to trial on an amended indictment charging Mr Webb with substantive counts of offences against the Act and otherwise. On 23 April 1999 Mr Webb was committed for trial in the District Court of New South Wales. The trial was set down to commence on 17 May 1999. However, allegedly because of the order for the confiscation of the property of Mr Webb and an associated company, made under the Act, Mr Webb claimed that he was not able to draw on his property to pay for legal representation at his trial. A decision on an application by Mr Webb for legal aid to permit him to be represented at the trial with the assistance of public funds had not been made before April 1999.
On 29 April 1999 an application was heard in the Supreme Court of New South Wales before Justice Greg James. That application sought an extension of time under section 48 of the Act so that an application could be made under section 30A(1) of the Act, in effect, for release of property to Mr Webb to permit him to retain counsel in the criminal proceedings. Justice James refused that application, holding in substance that it was out of time, the property of Mr Webb having already been forfeited to the Commonwealth. His Honour noted that counsel for Mr Webb had not advanced orally constitutional arguments foreshadowed in writing in support of his application to the Supreme Court.
The following day the matter was called over in the District Court before a list judge. The proceeding was adjourned to permit that court to be given information on the outcome of Mr Webb's application for legal aid. On 11 May 1999 Legal Aid New South Wales informed Mr Webb that he was not eligible to receive legal aid because his "net liquid assets exceed the limits allowable". Mr Webb has appealed against that decision. His appeal has not yet been heard. According to an affidavit of Mr Webb's solicitor, the "net liquid assets" referred to in the letter from the legal aid authority comprised the assets which were the subject of the confiscation order under the Act and, as it has been held by Justice James, forfeiture. He therefore had no actual access to the funds. He had no other assets of any substance to pay for his representation in an extended criminal trial.
On 14 May 1999 the list judge of the District Court declined to vacate the trial date. He left it to the trial judge to decide what relief, if any, should be given to Mr Webb. The latter's solicitor states that the prosecution brief in relation to the trial "comprises in excess of twenty thousand pages of documents and many hours of audio tapes. The committal brief in respect of the two further charges comprises in excess of two thousand pages of documents." The solicitor deposes that the prosecution had indicated that it may call 34 witness at the trial. It is in these circumstances that the orders sought in the summons were requested from this Court.
I have been informed from the Bar table that the trial was assigned in the District Court to Judge Shillington. Earlier this week, his Honour refused an application for the adjournment of the trial. As reported to me, his Honour expressed the opinion that Mr Webb's application was not made bona fide. Accordingly, the trial was listed to begin before his Honour and a jury this day. Half an hour before it was listed to commence, and for the first time, the present summons was returned in this Court.
There was no time for the usual niceties in this case, or for formal proof of relevant facts. Events were unfolding even as the hearing before me was continuing. I have now been informed that Mr Webb this morning pleaded guilty to certain offences before Judge Shillington. I am not fully aware (nor is his counsel before me) of what those offences were. His Honour, it seems, accepted the plea. He adjourned the trial. He stood the matter over presumably for sentence on Monday next. But other charges may be prosecuted. The summons was not withdrawn. I must therefore assume that it is still relevant for me to decide the issues that have been argued.
Constitutional questions
The validity of the Act which is the subject of the challenge in the statement of claim has been the subject of earlier decisions. In the New South Wales Court of Appeal in Director of Public Prosecutions v Toro-Martinez (1993) 33 NSWLR 82 that court unanimously rejected challenges to its validity. Those challenges were brought on three grounds. Those grounds were (1), that the Act involved the invalid conferral of part of the judicial power of the Commonwealth on a police officer who initiates the forfeiture proceedings; (2), that it imposes functions on a court asked to order forfeiture which are not justiciable and which involve the exercise of an Executive function incompatible with the functions of a court; and (3), that the Act is unsupported by a relevant head of federal constitutional power, including the incidental power in its various manifestations.
In Della Patrona v Director of Public Prosecutions [No 2} (1995) 38 NSWLR 257 the New South Wales Court of Appeal rejected a further constitutional challenge. The basis of that challenge was a contention that the Act, or the relevant provision of the Act, was constitutionally invalid because it provided for an acquisition of property by the Commonwealth under section 51(xxxi) of the Constitution otherwise than on the just terms required by that paragraph. I was a party to both of the foregoing decisions. The New South Wales Court of Appeal was unanimous in each of them. It rejected all of the constitutional challenges. No objection was raised by any party to my sitting in these proceedings by reason of my participation in the earlier decisions.
It does not appear that applications were made to this Court for special leave to appeal in either Toro-Martinez or Della Patrona. Certainly no special leave was granted. Those decisions therefore stand. Mr Webb thus begins his application for urgent interlocutory relief from this Court today from a starting point that the Act has been in force for some time and its constitutional validity, in respects relevant to his proposed challenge, has been upheld by unanimous opinions of an intermediate appellate court. That notwithstanding, Mr Webb sought urgent relief from this Court in support of his summons in the original jurisdiction of the Court claiming declarations as to the validity of the Act. In my opinion, the application as framed should be refused.
Three applicable principles
The case has some similarity to recent proceedings in the Court in Pan Laboratories Pty Ltd v The Commonwealth (1999) 73 ALJR 464. In those proceedings I made three points which appear relevant to the present proceedings:
First, this Court is extremely reluctant to make orders which would have the effect of interfering in any way in the course of a criminal trial. Doing so necessarily causes fragmentation of the trial process. Great restraint must be exercised before disturbing such trials, either by way of appellate orders or orders for review or interlocutory orders in support of such orders. See Yates v Wilson (1989) 168 CLR 388 at 389; Reg v Elliott (1996) 185 CLR 250 at 257. In part, this approach derives from the respect which appellate courts such as this show for the role and function of trial courts and judges. In part, it derives from the proper deployment of court time and public resources. In part, it follows from common experience that many interlocutory points go away in the course of the regular conduct of litigation in the proper place. Although it was contested that an order for the release of funds to Mr Webb would fragment Mr Webb's trial in the District Court in the relevant sense, the reality is that any such orders, assuming them still to be relevant, would immediately lead to an interruption of the trial and a request for an adjournment. This is precisely the disruptive consequence which the longstanding principle of restraint is established to prevent.
Secondly, it is open to any party in any court in Australia to raise a constitutional objection to legal process. The Constitution is part of the law. It must be obeyed by every court. It would be open to Mr Webb to challenge his indictment, or any count of the indictment or any future count upon which the prosecution seeks to present him, on constitutional grounds. Although this would probably result in the first instance in a ruling in conformity with the decisions of the Court of Appeal of New South Wales to which I have referred, at least in a court in the State of New South Wales, the constitutional points would then be preserved. They could be raised by way of appeal if Mr Webb were convicted. If Mr Webb were acquitted, there would be no need to trouble an appellate court.
Thirdly, although it is open to a party to seek constitutional relief in the original jurisdiction of this Court, the foregoing two considerations make it appropriate, in most cases at least, for the Court in its discretion to delay the hearing of such proceedings, in circumstances such as the present, until the conclusion of the trial and any related appeals in the courts below. It is open to this Court to remit matters going to constitutional validity of process to the courts of trial. In Pan I held that this Court could remit to the District Court under s.44 of the Judiciary Act 1903 (Cth) a matter pending in this Court which concerned the constitutional validity of a federal statute under which the accused was charged. I so held although the District Court has no jurisdiction to make orders in the nature of the declaration sought in the process in this Court. It was enough that the District Court had jurisdiction "with respect to the subject matter". See Judiciary Act 1903 (Cth) s.44 and Pan at 468.
Conclusions
The foregoing principles apply to this case. It remains open to Mr Webb to challenge the validity of any future counts upon which he is indicted and tried in the District Court on constitutional grounds. If he is discontented with the rulings on the point, and if they still be relevant, he could re-open his arguments at a later stage, either by way of appeal or by seeking to re-agitate his invocation of the original jurisdiction of this Court.
I part with this case in the light of all that has happened with the following observation. Obviously it is the right of a person in the position of Mr Webb, the subject of confiscation and forfeiture of property, to make application for a delay of a trial before the District Court on the ground that he cannot be properly represented in that court. The authority of this Court upholds the entitlement of trial judges to stay criminal proceedings if a fair trial could not be had unless the accused were legally represented. If the accused is indigent, is charged with a serious offence and is unable to proceed in that trial through no fault of his or her own, the trial judge may stay the hearing of the prosecution. See Dietrich v The Queen [1992] HCA 57; (1992) 177 CLR 292. Obviously it should not be possible for the Commonwealth or its agencies to deprive an accused person of property by confiscation or forfeiture under the Act and then to insist that the person represent himself or herself in a complex trial at a severe disadvantage. In Australia the entitlement to a fair trial is fundamental. Courts of trial will defend that entitlement. The Act was never intended to be an instrument to permit the wounding of the accused so as to disadvantage him or her unfairly to the advantage of the prosecutor. It was never meant to be an instrument to force accused persons to plead guilty because they cannot be properly represented by competent legal practitioners at their trial where the prosecution will be so represented That would be a use of the Act worthy of the imagination of Franz Kafka. It is not one consistent with the purpose of the Australian Parliament.
Whether Mr Webb was actually indigent, whether his application for adjournment of the trial is, or was, too late, whether he is, or was, truly unable to proceed, whether there is, or was, no fault of his own in the circumstances, are all questions which, by law, are committed to the District Court. That is where they should remain. Neither the issue of law sought to be argued under the Constitution, nor the balance of convenience in this case brought before this Court so belatedly, warrant the making of the orders which were sought by Mr Webb.
Although I have given consideration as to the remitter of the matter raised by the interlocutory summons to the District Court, I agree with Mr Webb's counsel that there is no utility in making an order such as was made in Pan. I will therefore not make such an order in this case.
The interlocutory order sought is rejected. However, the statement of claim invoking the original jurisdiction of this Court remains for disposition. It is appropriate that that matter be referred into the Full Court of the Court. I take that course because of the earlier decisions on constitutional validity of the Act of the New South Wales Court of Appeal. It will be necessary, in due course, for that matter to be listed before a Registrar in the light of the outcome of proceedings in the District Court in order to ascertain whether the proceedings will continue before this Court. If that course is still intended, the matter can be relisted before a single Justice to make further orders governing the future hearing of the matter, either in this Court or in another court if, notwithstanding the ca decisions, it is to be remitted.
Orders
The orders which I make are therefore:
1. Dismiss the summons for interlocutory relief.
2. Reserve the constitutional question raised by the statement of claim to a Full Court of this Court with leave to relist that summons before a single Justice for further orders disposing of the further hearing of that matter.
3. Certify to the appearance of counsel in chambers.
Is there any application?
MR LEEMING: I seek costs of the summons.
HIS HONOUR: Is there anything you can say in relation to costs?
MR AITKEN: No, your Honour.
HIS HONOUR:
4. Order that the first plaintiff, Mr Webb, pay the costs of the respondents of the summons.
MR LEEMING: Your Honour, 78B notices should be distributed. I do not think there is a need for a formal direction to that effect.
HIS HONOUR: I am sorry?
MR LEEMING: Notices pursuant to section 78B of the Judiciary Act should be distributed, a constitutional issue having been raised. But I do not anticipate there would be any problem with Mr Aitken doing that in the near future.
HIS HONOUR: I think the first thing that should be done is to leave the matter dormant for the time being to see whether it still remains relevant after the outcome of all of the criminal process that Mr Webb faces. If, for example, as a result of all that process it is decided not to press on with the matter, then this Court should be informed and the matter will simply be removed from the list. If it is desired to press on with the matter, a question will arise as to whether it should be remitted to another court. But in light of the decision in Della Patrona and in Toro-Martinez it may be that the decision would be made that the matter should come straight to this Court for argument. If it is to be pressed in this Court, that is a question that can be considered by a single Justice at some future time and an application can be made to the Registrar to relist it for that purpose.
Is there any further correction of what has been said?
MR AITKEN: No, thank your Honour.
HIS HONOUR: Thank you both for your assistance to me under shall we say somewhat pressing and difficult circumstances.
AT 11.42 AM THE MATTER WAS CONCLUDED
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