Literary Proceeds: Will Schapelle Corby lose another interview fee to Proceeds of Crime laws?

On 12 March 2018, Woman’s Day will publish an interview with Schapelle Corby: a convicted drug trafficker and social media personality. It is believed Schapelle Corby gave the interview for a fee of “less than $20,000”. ((The New Daily, Kate Halfpenny, 5 March 2018)) Many people have asked whether she can keep that interview fee or whether she is at risk of losing it as literary proceeds under Proceeds of Crime laws. The short answer is she is probably at risk.

An excerpt of Ms Corby’s recent interview is available on Woman’s Day website.

Previous Proceeds of Crime actions

Ms Corby has previously been the subject of action by the Commonwealth DPP under the Proceeds of Crime Act 2002 (Cth). There is some possible misreporting of the nature of that action and its consequences to the present interview and article in Woman’s Day.

I consider the most credible source material to be that contained in the case report found on page 124 and following of the Annual Report 2008-09 published by the Commonwealth DPP.

What emerges from that report is:

• In October 2004 Ms Corby was convicted in Indonesia of an offence of importing 4.1kgs of cannabis.
• Ms Corby subsequently co-authored a book My Story and separately gave an interview for a New Idea magazine article.
• The CDPP made a secret application to the District Court of Queensland for a restraining (freezing order) in connection with benefits Ms Corby was suspected of deriving in connection with those publications.
• The District Court judge refused the application.
• The CDPP re-made its secret application to the Queensland Court of Appeal by way of appeal. The appeal succeeded and a restraining (freezing order) was made. The Court of Appeal’s reasons are also available and verify this: DPP (Cth) v Corby [2007] QCA 58
• Only then did the authorities serve the restraining order, and their application for a literary proceeds order on Ms Corby and others.
• Four people were secretly interviewed (examined) in September 2007. Who was questioned and what was said in those examinations is not public. Since Ms Corby was in an Indonesian jail at the time I consider it unlikely that she was one of the people examined. As to the challenges of examining a foreign witness generally (even one who is not in jail) see Commissioner of the AFP v K [2016] QSC 177 at [74].
• The matter was settled without going to trial. According to the CDPP annual report: On 24 March 2009 an order was made by consent in the Supreme Court of Queensland requiring Corby to pay a literary proceeds amount under the [Proceeds of Crime Act 2002] in the sum of $128,800. This sum was paid out of the amounts which had been held in the custody of the Official Trustee.

Literary Proceeds and the Proceeds of Crime Act 2002 (Cth)

It is apparent from the above history that the orders made in 2007 to 2009 have limited relevance to the present question of Ms Corby’s interview by Woman’s Day. What is important is s 155 of the Proceeds of Crime Act 2002 allows the authorities to make multiple applications for literary proceeds orders in relation to the same offence.

Back in 2009 the Commonwealth DPP was the only authority that had the power to apply to a Court for relevant orders. However, in 2012 the Commissioner of the Australian Federal Police (AFP) was given equal and concurrent powers. He is the most likely applicant for any future litigation.

The most recent evidence of the authorities’ interest in Ms Corby is probably the botched handling by the Australian Federal Police of various search warrants, including on Channel 7, in 2014. The search warrants were challenged by the TV station and members of the Corby family in the Federal Court. The Federal Court upheld the challenges, finding the AFP materially misled the Magistrates who issued the warrants into believing that there were grounds to suspect that certain people had committed an offence relating to literary proceeds. The Proceeds of Crime Act 2002 contains no such offence. ((Seven West Media Limited v Commissioner, Australian Federal Police [2014] FCA 263 at [77]. ))

Schapelle Corby’s notoreity: as a result of her offending?

The New Daily article cited above makes the point that Ms Corby’s latest interview appears to be more focused on her future than her past. In my view that is probably of limited relevance. Section 153(1) of the Proceeds of Crime Act 2002 provides that: Literary proceeds are any benefit that a person derives from the commercial exploitation of the person’s notoriety resulting, directly or indirectly, from the person committing … a foreign indictable offence.

If a Court was to hold that Ms Corby’s notoriety arises solely (or even substantially) from her having been convicted of a foreign indictable offence, then it may be no stretch to conclude that she derived a benefit (any payment for this interview) from that notoriety.

Factors for a Court to consider

If the Commissioner of the Australian Federal Police decides to pursue Ms Corby again the real battleground may be around s 154. It provides:

In deciding whether to make a literary proceeds order, the court:

1. must take into account:
   1. the nature and purpose of the product or activity from which the literary proceeds were derived; and
   2. whether supplying the product or carrying out the activity was in the public interest; and
   3. the social, cultural or educational value of the product or activity; and
   4. the seriousness of the offence to which the product or activity relates; and
   5. how long ago the offence was committed; and

2. may take into account such other matters as it thinks fit.

The weight to be given to each of the above factors is a matter for the judge. The public interest is a particularly wide consideration.

Ms Corby could also be at risk of action under the Queensland state confiscations legislation: the Criminal Proceeds Confiscation Act 2002. However, given that the underlying criminal offence was overseas and the federal authorities have previously pursued Ms Corby, I suspect that is less likely.

Proceeds of Crime Act 2002 (Cth) general information

Further information about the Proceeds of Crime Act 2002 (Cth) is available on my website.