Director of Prosecutions v Onea [1994] QSC 39

ry-s'o Xf1 State Reporting Bureau- •ia/.:l._L .• fl'.cl: .• ( TRANSCRIPT OF PROCEEDINGS (Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau.) SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION SHEPHERDSON J No 419 of 1992 THE DIRECTOR OF PROSECUTIONS and FRANCISC CONSTANTIN ONEA BRISBANE .. DATE 28/01/94 .. ORDER ·~ 1 I ! 1 REVISED COPIES ISSUED State Reporting Bureau Date I { 1 ~ Applicant Respondent 4th Floor, The Law Courts, Georf!e Street. Brisham>. n_ 4nnn TP7 .... Jtn ...... 111'7\ .,.,., ,,n~;n r---~---!L. ,,..., ........ ---- -- 1 of 6 -- 280194 sdh (Shepherdson J) HIS HONOUR: On 15 December 1993, on an application made by the Director of Prosecutions, Mr Justice Derrington ordered that Constantin Francisc Onea and Nana Oprea be restrained 'until 6 p.m. on 15 November 1994 or until further order from (ittter alia) dealing with certain property including a house and land at 422 Oxley Drive, Runaway Bay. His Honour further ordered that the restrained property might be sold at fair market price and that the proceeds ·of such sale, after payment of all fees, commissions and outlays associated with that sale, be disbursed as follows: 1. An amount not exceeding $61,000 secured-to Robertson O'Gorman, solicitors, for legal fees and outlays said to be owing by Onea and Oprea to them. 2. An amount of $10,000 to be paid to the solicitors for Oprea at her sentence. 3. An amount of $50,000 to the trust account of Messrs Gabriel, Ruddy and Garrett, solicitors, for the purposes of paying legal fees and outlays incurred in J 10 c~ 30 the legal representation of Constantin Francisc Onea c~ at his trial. The trial of Onea commenced on 17 January and is continuing. The order made by Mr Justice Derrington has not been appealed and I have also the benefit of His Honour's reasons (unrevised) dictated at the time he made the order. Today, Mr Griffin, who, with Mr Dealehr, has appeared for Mr Onea throughout his trial, has moved the Court for an order that, pursuant to sections 17 and 19 of the Crimes (Confiscation of Profits) Act 1989 a sum of $75,000 be released to the accused Constantin Francisc Onea for further legal fees incurred in ORDER 2 40 50 60 -- 2 of 6 -- ' ' ' / 280194 sdh (Shepherdson J) his trial. That motion has been supported by an affidavit of John Anile, a solicitor of Victoria, who has been instructing in this trial. Exhibited to the affidavit is a photocopy of a facsimile letter dated 27 January 1994 from Compucost, the Australian Legal Costing Group, together with annexures thereto. According to that material, up until the end of day seven of the trial Mr Onea's professional costs and disbursements totalled $85,878. The letter went on to say that each subsequent day of the trial will cost approximately $4,200 to $4,500 in costs and disbursements made up in the manner set out in the letter. The manner of calculation was based on daily fees paid to Mr Griffin and Mr Dealehr, instructing solicitor's, witness's expenses, telephone etc. Mr Henry has appeared for the Director of Prosecutions and Mr Carroll, the solicitor for Nana Oprea, who is also known as Nana Puscas, has appeared. The property at 422 Oxley Drive is registered in the joint names of Onea and Oprea (Puscas). There is no really satisfactory evidence of the value of this property. Certain recent letters from two real estate agents have been tendered and, for the purpose of the debate, a figure of some $220,000 after sale costs has been mentioned. It may well sell for more. Mr Carroll has been concerned to protect the interest of his client in respect of her half share in the property. When the matter came before Mr Justice Derrington, he was ORDER 3 10 20 30 40 50 60 -- 3 of 6 -- 280194 sdh (Shepherdson J) told, apparently, that the trial of Mr Onea was estimated to last two to three weeks and I shall quote part of his reasons: 11 It is estimated that the trial will last two to three weeks and it is said that Mr Onea wishes to be represented by a Melbourne silk and a junior and a Melbourne solicitor and that the cost would amount to something like $250,000. 11 I do not propose to repeat all that His Honour said, but His Honour, after considering the situation, took the view, properly, that it was desirable that the accused be properly legally represented and that part of the funds expected to be received from the sale of the property at Oxley Drive be made available for that purpose. His Honour foresaw that an application of the type before me might well be made and he suggested (rightly) that any such application should be scrutinised fairly carefully. One matter of note is that Mr Onea had formally had Messrs Robertson 0' Gorman acting for him, as also had Mrs Puscas. New solicitors have acted for Mr Onea and Mr Griffin has informed me from the Bar table that the preparation for the trial was done, to use his words, de novo, because it was found the preparation by the former solicitors did not provide very much assistance and, furthermore, he has had the benefit of having Mr Dealehr to help him in this matter. At the end of the day, it will be seen that His Honour fixed $50,000 as a reasonable amount for Mr Onea's defence. That was, as it seems to me, from a reading of His Honour's reasons, for a two to three week trial. A two week trial lasts ten days, a three week trial lasts 15 days, so obviously, His Honour had a figure in between the 10 and 15 ORDER 4 10 20() c) 30 40 50 60 -- 4 of 6 -- 280194 sdh (Shepherdson J) days in mind. At the present time, the trial has lasted nine days and, taking into account the Australia Day holiday on Wednesday of this week, estimates of counsel are that the trial, including jury deliberation time, could last another eight to ten days. Mr Carroll has been assiduous in his submissions to ask that any amount which may be ordered,not impinge on his client's prima facie entitlement to half of any proceeds of the property. In the figures which he has placed before me, he has properly accepted his client's responsibility for half of any debt found to be owing to Robertson O'Gorman and the $10,000 set aside for her fees at her sentence. On his calculations, the maximum which I should allow, Mr Onea, is $29,500 and, as I have said, this is on the basis that the sale price will net $220,000. There is, of course, to some extent some element of guesswork because of the lack of certainty as to what the property will ultimately sell for. My concern is to see that proper legal representation is afforded to this man for the rest of the trial. As I have already said, the amount already fixed by Mr Justice Derrington, and from whose decision no appeal has been made, was for a period between 10 to 15 days. I propose to fix a figure which, in my view, will, after taking into account the estimates of the Australian Legal Costing Group, for subsequent days of the trial, will, in my view, provide the applicant with the proper legal representation which he needs. I allow $27,000. ORDER 5 10 20 30 40 50 60 -- 5 of 6 -- 280194 sdh (Shepherdson J) So the order which I make then, pursuant to s 19 of the Crimes (Confiscation of Profits) Act, is that, in addition to the amount of $50,000 referred to in paragraph 2.3 of the order of Mr Justice Derrington dated 15 December 1993, an amount of $27,000 be paid to the trust account of Messrs Gabriel, Ruddy and Garrett, solicitors, for the purpose of paying legal fees 10 and outlays incurred in the legal representation of Constantin Francisc Onea (also known as Frank Onea) at his trial on the criminal charges under the Drugs Misuse Act 1986, which trial has not yet been completed. That is the order I make. 30 40 50 60 ORDER 6 ---·--- -- 6 of 6 --