Commonwealth DPP v Bowerman [2006] NSWSC 1309

Commonwealth DPP v Bowerman [2006] NSWSC 1309

Section 24 of the Proceeds of Crime Act, 2002 is the provision governing allowances for expenses or debts out of restrained property and expressly prevents such an order where the expense or debt relates to legal costs incurred in connection with criminal proceedings or proceedings under the Act. Section 39 deals with ancillary orders and cannot be used as a general power to circumvent the specific limitations in s24. The Act therefore did not permit provision for the defendant's legal expenses out of the restrained funds, and an application under s39 for that purpose could not be entertained.

Jurisdiction
Australia
Judgment Date
05 December 2006
Procedural Posture
Application in Proceedings Under the Proceeds of Crime Act, 2002 for Payment of Legal Expenses Out of Restrained Property / Application Before Hidden J in the Common Law Division
Outcome
Application dismissed
Legal Topics
['restraining Orders' 'legal Expenses From Restrained Assets' 'ancillary Orders' 'pecuniary Penalty Orders' 'acquisition of Property on Just Terms']
['criminal Law' 'proceeds of Crime' 'statutory Interpretation' 'constitutional Law'] ['restraining Orders' 'legal Expenses From Restrained Assets' 'ancillary Orders' 'pecuniary Penalty Orders' 'acquisition of Property on Just Terms']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application in Proceedings Under the Proceeds of Crime Act, 2002 for Payment of Legal Expenses Out of Restrained Property / Application Before Hidden J in the Common Law Division

Legal Issues

  1. 1 ["Whether the Court had jurisdiction under the Proceeds of Crime Act, 2002 to order payment of the defendant's criminal legal expenses out of restrained funds." 'Whether s39 of the Proceeds of Crime Act, 2002 could be used to make an ancillary order for legal expenses notwithstanding s24(2)(ca).' "Whether, on the plaintiff's construction, the restraint of assets amounted to an acquisition of property other than on just terms under s51 (xxxi) of the Constitution."]

Ratio Decidendi

Section 24 of the Proceeds of Crime Act, 2002 is the provision governing allowances for expenses or debts out of restrained property and expressly prevents such an order where the expense or debt relates to legal costs incurred in connection with criminal proceedings or proceedings under the Act. Section 39 deals with ancillary orders and cannot be used as a general power to circumvent the specific limitations in s24. The Act therefore did not permit provision for the defendant's legal expenses out of the restrained funds, and an application under s39 for that purpose could not be entertained.

Court Disposition

Application dismissed

Orders

  • ['The application is dismissed.']