Court of Appeal Supreme Court New South Wales

• Medium Neutral Citation: Lee v New South Wales Crime Commission [2012] NSWCA 262
• Hearing dates: 10 August 2012
• Decision date: 23 August 2012
• Before: Bathurst CJ at [1]; Macfarlan JA at [22]; Barrett JA at [23]

Decision

1    Grant the application for leave to appeal.

2    Appeal allowed.

3    Order the respondent pay the appellants' costs of the application for leave to appeal and the appeal.

4    Remit the proceedings to the primary judge or another judge of the Common Law Division for determination in accordance with these reasons.

5    Costs of the motion in the court below to be at the discretion of that judge who ultimately determines the motion.

[Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

• Catchwords: APPEAL - leave to appeal - applicable principles - whether applicants suffered injustice - whether primary judge in error.; CRIMINAL LAW - order under Criminal Assets Recovery Act 1990 restraining property - application to vary order to meet reasonable legal expenses of sentencing proceedings - whether precluded by undertaking to make no further application for legal expenses "with respect of the trial of drug charges" - whether sentencing proceedings "with respect of the trial of drug charges".; CRIMINAL LAW - order under Criminal Assets Recovery Act 1990 restraining property - undertaking given - consent order - construction of undertaking - applicable principles.
• Legislation Cited: Criminal Assets Recovery Act 1990 s 10B(3)(b), s 12(1); Criminal Procedure Act 1986 s 121, s 130, s 132, s 136; Crimes (Sentencing Procedure) Act 1999
• Cases Cited: Athens v Randwick City Council [2005] NSWCA 317; (2005) 64 NSWLR 58; Be Financial Pty Ltd v Das [2012] NSWCA 164; Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69; GKD v Director of Department of Family & Community Service [2012] NSWCA 219; International Hair Cosmetics Group Pty Limited v International Hair Cosmetics Limited [2011] FCA 339; Jaycar Pty Ltd v Lombardo [2011] NSWCA 284; Kirkpatrick v Kotis [2004] NSWSC 1265; (2004) 62 NSWLR 567; Nokia Corporation v Liu [2009] FCAFC 138; (2009) 179 FCR 422; Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451; Workers Compensation Board (Q) v Technical Products Pty Limited [1988] HCA 49; (1988) 165 CLR 642; Zelden v Sewell [2011] NSWCA 56
• Texts Cited: Shorter Oxford English Dictionary of Historical Principles, 3rd ed (1973)
• Category: Principal judgment
• Parties: Do Young Lee (aka Jason Lee) (First Applicant); Seong Won Lee (Second Applicant); New South Wales Crime Commission (Respondent)
• Representation: Counsel: Mr G J Jones (Applicants); Mr I Temby QC (Respondent); Solicitors: Nyman Gibson Stewart Solicitors (Applicants); J M Giorgiutti (Respondent)
• File Number(s): 2010/118966

Decision under appeal

• Citation: New South Wales Crime Commission v Jason Lee [2011] NSWSC 854
• Date of Decision: 2011-08-10 00:00:00
• Before: Garling J
• File Number(s): 2010/118966

Judgment

1 BATHURST CJ: This is a summons for leave to appeal from a decision of Garling J (the primary judge) in which his Honour dismissed a motion brought by the applicants seeking an order varying restraining orders made against them under the Criminal Assets Recovery Act 1990 ("the Act"), to permit the payment of their legal expenses in respect of sentencing proceedings. At the time of the motion the applicants' sentencing proceedings were listed for hearing before Solomon DCJ on 29 July 2011, in respect of the first applicant and 12 August 2011, in respect of the second applicant.

2 The Court ordered a concurrent hearing of the application for leave to appeal and the appeal, should leave be granted.

Background to the proceedings

3 The applicants were charged in 2010 with serious drug related offences. The trial of these charges was scheduled to commence on 17 January 2011. A restraining order had been made in respect of the assets of the applicants under the provisions of the Act.

4 On 9 December 2010, Adams J made an order pursuant to s 10B(3)(b) and s 12(1) of the Act making provision for meeting the reasonable expenses of the applicants, agreed at $375,000 (plus GST), out of the interest in specified property of the first applicant, such sum to be paid to Nyman Gibson Stewart Solicitors.

5 During the course of the application for the variation of the restraining order, the applicants gave undertakings in the following terms:

"The first defendant [the first applicant] undertakes to the Court and the plaintiff not to make any further applications for legal expenses under either sections 10B(3)(b) or 12(1) of the Act or otherwise, with respect of the trial of drug charges presently scheduled to commence on 17 January 2011."

"The fourth defendant [the second applicant] undertakes to the Court and the plaintiff not to make any further applications for reasonable legal expenses under either sections 10B(3)(b) or 12(1) of the Act or otherwise, with respect of the trial of drug charges presently scheduled to commence on 17 January 2011."

6 The trial of the applicants for the drug offences commenced on 24 January 2011 and continued over a number of weeks. The applicants were found guilty on various charges. Following those verdicts they made an application to the primary judge for release of further funds to cover their legal expenses in respect of the sentencing proceedings.

7 The proceedings before the primary judge proceeded on the assumption that if the undertakings given covered legal expenses which would be incurred in the sentencing proceedings, an order should not be made. The same approach was taken on the application for leave to appeal.

8 The primary judge held that the undertaking covered legal expenses in respect of the sentencing proceedings and as a consequence dismissed the motion.

The reasoning of the primary judge

9 The primary judge contended that the words in the undertaking "with respect of the trial of drug charges presently scheduled to commence on 17 January 2011" should be given their ordinary meaning, having regard to the context in which they appeared. He concluded that the relevant context included s 10B(3)(b) of the Act, which permitted variation of restraining orders to permit payment of "reasonable legal expenses ... incurred in defending a criminal charge". He concluded that that expression was apt to include sentencing proceedings. He then considered whether the words of the undertaking compelled a different meaning. He concluded that they did not, stating that the words identified the particular proceedings in question and that, having regard to the context to which he had referred, the trial involved all proceedings the result of which would be recorded on the indictment, including the imposition of sentence.

The respondent's submissions

10 The respondent submitted that leave should not be granted as the issues involved were insubstantial and peculiar to the instant case.

11 The respondent further submitted that the primary judge was correct. It submitted that sentencing proceedings were an integral part of a trial, which included arraignment on an indictment, evidence being led before a jury, verdict of conviction or acquittal and sentencing following conviction, or discharge following acquittal. It submitted that the words "with respect of" were words of wide import and supported the conclusion reached by the primary judge. It submitted the distinction between trial and sentencing contained in s 121 of the Criminal Procedure Act 1986 was irrelevant to the construction of the undertaking.

Consideration

12 The principles upon which leave to appeal is granted are well established. Ordinarily it is only appropriate to grant leave concerning matters that involve issues of principle, questions of general public importance or where it is reasonably clear there has been an injustice in the sense of going beyond it being reasonably arguable that the primary judge was in error: Carolan v AMF Bowling Pty Ltd [1995] NSWCA 69; Zelden v Sewell [2011] NSWCA 56 at [22]; Jaycar Pty Ltd v Lombardo [2011] NSWCA 284 at [46]; GKD v Director of Department of Family & Community Service [2012] NSWCA 219 at [10]; Be Financial Pty Ltd v Das [2012] NSWCA 164 at [32]-[34].

13 As I have reached the clear view that the conclusion of the primary judge, with respect, was incorrect, in my opinion the applicants suffered an injustice such that it is appropriate to grant leave.

14 As the primary judge pointed out, the principles in interpreting an undertaking of this nature, namely one given as part of a consent order and given both to the parties and to the Court, are those generally applied in the interpretation of a contract: Nokia Corporation v Liu [2009] FCAFC 138; (2009) 179 FCR 422 at [29]-[30]; Athens v Randwick City Council [2005] NSWCA 317; (2005) 64 NSWLR 58 at [128]-[140].

15 Thus, construction of the undertaking involves consideration of the text and the context in which it appears: Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 at [22]. As with a contract, at least in the case of ambiguity, the circumstances surrounding the giving of the undertaking can be considered in determining its meaning: Nokia supra at [30]; International Hair Cosmetics Group Pty Limited v International Hair Cosmetics Limited [2011] FCA 339 at [49]; Athens v Randwick City Council supra at [28]; Kirkpatrick v Kotis [2004] NSWSC 1265; (2004) 62 NSWLR 567 at [39]-[45].

16 In the present case, the undertaking was "with respect of the trial of drug charges". A trial has been defined as the examination and determination of a cause by a judicial tribunal or the determination of a person's guilt or innocence or the righteousness of his cause by a combat between the accuser and the accused. (Shorter Oxford English Dictionary of Historical Principles, 3rd ed (1973).) This definition accords, in my view, with the general accepted meaning of the expression "trial". It does not as a matter of ordinary meaning mean a sentence consequent upon the determination of guilt.

17 The statutory context in which the undertaking was given, in my view, supports this distinction. The Criminal Procedure Act 1986 draws a distinction between proceedings relating to the trial of a person and proceedings relating to sentencing. Trial procedure is dealt with by Ch 3, Pt 3 of the Criminal Procedure Act, whilst issues relating to sentencing are separately dealt with in the Crimes (Sentencing Procedure) Act 1999. This distinction supports the view that the word "trial" in the undertaking related to the adjudication of guilt as distinct from sentencing following the verdicts.

18 I do not think that s 10B(3)(b) of the Act compels a contrary conclusion. It merely recognises that a variation of a restraining order can be made to cover legal expenses in criminal proceedings including a trial or a sentence. It says nothing as to the distinction between the two.

19 Nor do I think that the expression "with respect of" alters the position. Although the words are of wide import, they must be considered in context: Workers Compensation Board (Q) v Technical Products Pty Limited [1988] HCA 49; (1988) 165 CLR 642 at 646-647, 653-654. The words in the present case would extend the expression "trial of drug charges" to proceedings ancillary to that trial, for example, pre trial directions and conferences. (See, for example, s 130, s 132 and s 136 of the Criminal Procedure Act 1986). It would not, however, extend the expression "the trial of drug charges" to encompass sentencing proceedings consequent upon a finding of guilt.

Conclusion

20 In these circumstances, leave to appeal should be granted and the appeal allowed. The respondent should pay the appellants' costs of the application for leave to appeal and the appeal. Costs of the motion in the court below should abide its ultimate determination.

21 In these circumstances, the orders I would make are these:

1Grant the application for leave to appeal.

2Appeal allowed.

3Order the respondent pay the appellants' costs of the application for leave to appeal and the appeal.

4Remit the proceedings to the primary judge or another judge of the Common Law Division for determination in accordance with these reasons.

5Costs of the motion in the court below to be at the discretion of that judge who ultimately determines the motion.

22 MACFARLAN JA: I agree with Bathurst CJ.

23 BARRETT JA: I agree with the Chief Justice. It is of particular significance that the undertakings were given upon the making of an order concerning the funding of legal expenses for District Court proceedings governed by the Criminal Procedure Act 1986. The context was one in which the distinction between "trial" and "sentencing" drawn by that Act cannot but have been in contemplation. The distinction is shown clearly by, among other provisions, paragraphs (a) and (b) of s 121 (which appears in Part 3 headed "Trial procedures"):

"criminal proceedings" means:

(a) proceedings relating to the trial of a person before the Supreme Court or the District Court,

(b) proceedings relating to the sentencing of a person by the Supreme Court or the District Court, or

(c) proceedings relating to an appeal under the Crimes (Local Courts Appeal and Review) Act 2001 to the District Court in its criminal jurisdiction."

**********

Decision last updated: 23 August 2012