AFP v Safadi
[2013] VCC 2057
•23 December 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CIVIL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CI-12-06210
| THE COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE | Respondent |
| v | |
| SAMI GHAZI SAFADI | Applicant |
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JUDGE: | HER HONOUR JUDGE MILLANE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 19 November 2013 | |
DATE OF JUDGMENT: | 23 December 2013 | |
CASE MAY BE CITED AS: | AFP v Safadi | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 2057 | |
REASONS FOR RULING
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Subject:Proceeds of crime
Catchwords: Applicant charged with two “serious” Commonwealth offences – the Respondent seeks forfeiture of property – application by Applicant to exclude property and to stay the forfeiture application until the conclusion of the criminal trial – whether real risk of interference with the administration of justice if stay not granted.
Legislation Cited: Proceeds of Crime Act 2002 (Cth), Criminal Code Act 1995 (Cth), Criminal Assets Recovery Act 1990 (NSW) and Australian Crime Commission Act 2002 (Cth)
Cases Cited:Lee v New South Crime Commission [2013] HCA 39, X7 v Australian Crime Commission [2013] HCA 29, Director of Public Prosecutions (Cth) v Xu [2005] NSWSC 191, Cth DPP v Jo & Ors [2007] QCA 251, State of Queensland v Shaw [2003] QSC 436, Commissioner of Australian Federal Police v Dickson (2012) NSWSC 1167, Commissioner of the Australian Federal Police v Mulder [2013] NSWSC 621
Judgment: Applicant’s application for stay is granted
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APPEARANCES: | Counsel | Solicitors |
| For the Respondent | Mr S. McGregor | Australian Federal Police |
| For the Applicant | Mr C. Jeubner | Nicole Spicer Lawyers |
HER HONOUR:
Introduction
1 On 5 November 2012, the Applicant, Sami Ghazi Safadi, was charged with two Commonwealth offences, attempting to import a marketable quantity of a border controlled drug, namely heroin, contrary to sections 307.2 and 11.1 of the Criminal CodeAct 1995 (Cth) and attempting to possess a marketable quantity of unlawfully imported border controlled drug, namely heroin, contrary to sections 307.6 and 11.1 of the Criminal Code (the charges).
2 I was told directions hearings dates are scheduled for 10 February 2014 and 12 June 2014. The criminal trial is scheduled to commence on 11 August 2014.
3 The offences charged are “serious offences” as defined by section 338 of the Proceeds of Crime Act 2002 (Cth) (the Act). On 18 December 2012, pursuant to sections 18 and 19 of the Act, the Commissioner of the Australian Federal Police (the Commissioner) sought and obtained an ex parte order restraining the disposition or dealing with by any person of property located at 57-59 Rade Macut Court, Narree Warren North (the property).
4 An affidavit, sworn by, Federal Agent, Amanda Glover on 17 December 2012, and filed in support of the making of the restraining order (the Glover affidavit) relevantly set out and exhibited the charges, in addition to which Ms Glover deposed as follows:
“6. I suspect that SAFADI has also committed indictable offences against the laws of the Commonwealth, namely:
(a) Dealing with property, valued at $100,000 or more, which is reasonably suspected of being the proceeds of crime, contrary to section 400.9 of the Criminal Code (Cth);
(b) By deception, dishonestly obtaining a financial advantage from a Commonwealth entity, namely Centrelink, contrary to section 134.2 of the Criminal Code (Cth); and
(c) Dishonestly causing a loss to a Commonwealth entity, namely the Australian Taxation Office, with the knowledge or belief that the loss will occur or that there is a substantial risk of the loss occurring, contrary to section 135(5) of the Criminal Code (Cth).”
5 Paragraphs 8 to 26 inclusive of the Glover affidavit contained factual matters relating to the charges. Among other things, these allege that on 23 October 2012, Customs Officers intercepted a package described as 'rug and watch samples' (the package) for delivery to an address in Endeavour Hills. The name of the addressee and the telephone number of the consignee were said to be false. Forensic testing of the content of the package found heroin with an estimated weight of 1.1 Kg.
6 The content of the package was swapped. On 29 October 2012, a male enquired by telephone about the delivery of the package. On the same date, the Applicant was observed driving in the area of the delivery address and seen speaking to the occupant of the Endeavour Hills property. The latter did not accept delivery of the package.
7 On 1 November 2012, a male made a further telephone enquiry about the delivery of the package and gave a telephone contact number registered to Randa Safadi, the Applicant’s wife, who the next day accepted delivery of the package at the Endeavour Hills property. Those delivering the package believed they were followed by the Applicant, who was subsequently arrested on 2 November 2012 outside the Endeavour Hills property. A search of this property apparently revealed a quantity of mobile phones and documents relating to the financial affairs of the Applicant and his wife and to building works on the property.
8 The Glover affidavit also referred to intelligence linking the Applicant to the importation of heroin through the delivery of 4 similar postal items suspected of containing heroin to addresses at which he had resided or with which he had been associated. This included an earlier delivery of ‘rug samples’ to the property on 24 September 2012.
9 Paragraphs 27 to 35 inclusive of the Glover affidavit contain allegations relating to the acquisition and ownership of the property and construction of a house on the property by the Applicant and his wife since 30 June 2010, as well as banking and other information relating to the source/s of income and to expenditure.
10 Paragraphs 36 and 37 of the Glover affidavit contain the factual matters founding the suspicion that, contrary to sections 134.2 and 135(5) of the Criminal Code (Cth), the Applicant has defrauded Centrelink (the Centrelink fraud offence) and evaded taxes (the tax evasion offence).
11 Ms Glover further relevantly deposed:
“38. On the basis of the matters set out in the preceding paragraphs, I suspect that the cash used to fund the construction works at the Property was, at least partly, the proceeds of crime, namely, proceeds derived by SAFADI from previous importations of illegal substances. I also suspect that SAFADI has committed the offence of dealing in property, reasonably suspected of being the proceeds of crime, contrary to section 400.9 of the Criminal Code (Cth) (the money laundering offence) and I also believe that the proceeds derived by SAFADI from previous importations were used by him as an instrument in the offence of money laundering, by way of cash payments for building works performed on the Property.
39. I suspect that SAFADI has also dealt with the proceeds of the tax evasion and Centrelink fraud offences, the proceeds being the tax SAFADI has not paid and the Centrelink pension payments he has fraudulently received. This gives further weight to my suspicion that he has committed the money laundering offence.
40. Based on the documents seized at the Property, I also suspect that the Property is under the effective control of SAFADI.”
12 On 21 December 2012, the Commissioner applied under section 59 of the Act for forfeiture of the property pursuant to sections 47 and 49 of the Act (the forfeiture application) on the grounds that:
“4. …
(a) at the time of the making of the order, the property to be specified in the order will be covered by a restraining order under section 18 and 19 of the Act and the restraining order will have been in force for at least 6 months; and
(b) the court may be satisfied that Sami Ghazi SAFADI has engaged in conduct constituting serious offences, the property sought to be forfeited is proceeds of indictable and serious offences and the instrument of one or more serious offences, namely:
(i) Attempt to import a marketable quantity of a border controlled drug, namely heroin, contrary to sections 307.2 and 11.1 of the Criminal Code (Cth);
(ii) Attempt to possess a marketable quantity of an unlawfully imported border controlled drug, namely heroin, contrary to sections 307.6 and 11.1 of the Criminal Code (Cth);
(iii) Dealing with property, valued at $100,000 or more, which is reasonably suspected of being the proceeds of crime, contrary to secion 400.9 of the Criminal Code (Cth);
(iv) By deception, dishonestly obtaining a financial advantage from a Commonwealth entity, namely Centrelink, contrary to secion 134.2 of the Criminal Code (Cth);
(v) Dishonestly causing a loss or a risk of a loss to a Commonwealth entity, namely the Australian Taxation Office, with the knowledge or belief that the loss will occur or that there is a substantial risk of the loss occurring, contrary to section 135(5) of the Criminal Code (Cth).”
13 On 24 June 2013, applications were made by:
· the Applicant and Randa Safadi pursuant to section 74 of the Act for exclusion of the property from a forfeiture order (the exclusion application) on the grounds that –
a. a forfeiture order specifying property in which they each claimed an interest had been applied for but had not yet been made;
b. they each had an interest in the property as joint registered proprietors;
c. the property is neither proceeds nor an instrument of unlawful activity;[1]
[1] Section 29(1) and (2)(a) of the Act
· Randa Safadi, Daniel Al Safadi, Elizabeth Al Safadi and Evit Saraf seeking relief from hardship pursuant to section 72 of the Act (the hardship to dependants application) on the grounds that –
a. Randa Safadi has an interest in the property as a joint registered proprietor;
b. those named are dependants of Sami Safadi;
c. the forfeiture order would cause hardship to the dependants; and
d. the dependents had no knowledge of the conduct the subject of the forfeiture;
· the Applicant and Randa Safadi seeking compensation in relation to the property the subject of an application for forfeiture pursuant to section 78 of the Act (the compensation application) on the grounds that –
a. they have an interest in the property as joint registered proprietors;
b. a proportion of the value of their respective interests was not derived or realised directly or indirectly, from the commission of any offence; and
c. their respective interests were not an instrument in any offence;
· the Applicant and Randa Safadi for exclusion of the property from a restraining order pursuant to section 94 of the Act (the exclusion of property from forfeiture on conviction) on the grounds that –
a. they have an interest in the property as a joint registered proprietor;
b. the property is neither proceeds nor an instrument of unlawful activity;[2]
[2] Section 29(1) and (2)(a) of the Act
c. their respective interests in the property were lawfully acquired;
· the Applicant and Randa Safadi for compensation for proportion of the property not derived or realise from commission of an offence pursuant to section 94A of the Act (the compensation for proportion of property after conviction) on the grounds that –
a. they have an interest in the property as a joint registered proprietor;
b. a proportion of the value of their respective interests were not derived or realised, directly or indirectly, from the commission of any offence; and
c. their respective interests were not an instrument in any offence.
14 For convenience, I have referred to the applications made by the Applicant to resist forfeiture of his interest in the property as ‘the exclusion applications’.
15 Each Applicant indicated their intention to file and serve affidavit evidence in support of their application.
16 Consent orders were made on 2 July 2013 for filing and service of affidavits in support of the hardship to dependents application, filed pursuant to section 72 of the Act on or before 17 September 2013 and the matter was listed for mention on 24 September 2013. The Court file does not contain formal orders for the filing and service of affidavits in support of the other applications. On the same date the forfeiture proceeding, ‘AFP v SAFEDI’ was adjourned for mention on 24 September 2013.
17 Following a request to list the forfeiture application and the applications for mention, on 10 September 2013, by consent, the timetable in respect to all the applications was either vacated or set aside and the applications were listed for further mention on 8 October 2013. On the same date the forfeiture application, ‘AFP V SAFADI’ was adjourned to 19 November 2013 for hearing. I have proceeded on the basis that this order was made to facilitate the hearing of the Applicant’s application in which he seeks to stay the forfeiture application and, it follows, his exclusion applications in respect to his interest in the property until after the criminal trial (the stay application).
Overview of the Act
18 It is convenient to summarise the purposes and relevant provisions of the Act next.
19 The Act has been in force since 1 January 2003. It is applied in the recovery of criminal assets associated with federal crimes. The Act provides for various recovery orders, forfeiture, automatic forfeiture, pecuniary penalty and literary proceeds. It also allows for the recovery of assets derived from the commission of certain foreign indictable offences.
20 The Second Reading Speech makes clear the purpose of the Act is to promote and progress confiscation through the legislative scheme as enacted:[3]
[3]Proceeds of Crime Bill 2002, Senator Helen Coonan (New South Wales – Minister for Revenue and Assistant Treasurer), The Senate, 20 August 2002
“The purpose of the Proceeds of Crime Bill 2002 is to greatly strengthen and improve Commonwealth laws for the confiscation of proceeds of crime. The bill achieves this by introducing a system of ‘civil forfeiture’ and enhancing the existing conviction-based regime…
The need for strong and effective laws for the confiscation of proceeds of crime is self-evident. The purpose of such laws is to discourage and deter crime by reducing profits; to prevent crime by diminishing the capacity of offenders to finance future criminal activities and to remedy the unjust enrichment of criminals who profit at society’s expense…
Although all confiscation proceedings including those under the Proceeds of Crime Act 1987 are civil proceedings, the term “civil forfeiture” has become wisely recognised as a term to describe forfeiture which does not require conviction of a criminal offence as a condition precedent…
Under the bill, civil forfeiture can occur where a court is satisfied that it is more probable than not that a serious offence has been committed. Such a finding by a court does not constitute a conviction and no criminal consequences can flow from it. The provisions are all about accounting for unlawful enrichment in civil proceedings, not the imposition of criminal sanctions. The object or focus of the proceeding is the recovery of assets and profits, not putting people in gaol.”
21 The principal objects of the Act contained in section 5 are expressed as follows:
(a)to deprive persons of the *proceeds of offences, the *instruments of offences, and *benefits derived from offences, against the laws of the Commonwealth or the *non-governing Territories; and
(b)to deprive persons of *literary proceeds derived from the commercial exploitation of their notoriety from having committed offences; and
(ba)to deprive persons of *unexplained wealth amounts that the person cannot satisfy a court were not derived from certain offences; and
(c)to punish and deter persons from breaching laws of the Commonwealth or the non-governing Territories; and
(d)to prevent the reinvestment of proceeds, instruments, benefits, literary proceeds and unexplained wealth amounts in further criminal activities; and
(e)to enable law enforcement authorities effectively to trace proceeds, instruments, benefits, literary proceeds and unexplained wealth amounts; and
(f)to give effect to Australia's obligations under the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime, and other international agreements relating to proceeds of crime; and
(g)to provide for confiscation orders and restraining orders made in respect of offences against the laws of the States or the *self-governing Territories to be enforced in the other Territories.
22 Section 6 tells us that the Act establishes a scheme to confiscate the proceeds of crime by:
(6)…
(a)setting out in Chapter 2 processes by which confiscation can occur; and
(b)setting out in Chapter 3 ways in which Commonwealth law enforcement agencies can obtain information relevant to these processes; and
(c)setting out in Chapter 4 related administrative matters.
It concludes with miscellaneous provisions and with definitions and other interpretive material.
23 Section 7 provides for the confiscation scheme in Chapter 2 of the Act, which includes the forfeiture process with which we are here concerned.
24 As mentioned, the restraining order was obtained under Part 2-1 of the Act, sections 18 and 19. As submitted on behalf of the Applicant sections 18 and 19 provide different bases for restraint and eventual forfeiture. The first provides for the making of an order against the property of the Applicant, a person suspected of committing a serious offence. The second provides for the making of an order against the property as property suspected of being proceeds of, for instance, an indictable offence or an instrument of a serious offence.
25 Sections 29 to 32 make provision for application to exclude property from restraining orders. Where a restraining order is in force, section 32 precludes the hearing of an application to exclude property from restraining orders until the responsible authority has had a reasonable opportunity to conduct examinations in relation to the application. This is a reference to examinations conducted under Part 3-1 of Chapter 3 for the gathering of information relevant to the processes by which confiscation can occur. Section 32 is one of a number of provisions which facilitate this process.
26 Following the making of a restraining order, section 39 of the Act provides for the making of ancillary orders. Among other things, this provision permits the Court to direct a suspect in relation to the restraining order and other persons to provide a sworn statement specifying their interests in property and liabilities and set out particulars of/or dealings with the property.[4]
[4] Section 39 (1)(ca), (d) and (da)
27 Notably, section 39A indicates a clear intention to abrogate an examinee's privilege against self-incrimination (PSI). Under section 39A(1), an examinee is not excused from giving a sworn statement under the paragraphs mentioned on the grounds that to do so would tend to incriminate the person or expose the person to a penalty. However, section 39A(2) gives some protection to an examinee by providing that the evidence gathered under this process is inadmissible in the following circumstances:
(2)However, in the case of a natural person, a sworn statement is not admissible in civil or criminal proceedings against the person who made the statement except:
(a)in criminal proceedings for giving false or misleading information; or
(b)in proceedings on an application under this Act; or
(c)in proceedings ancillary to an application under this Act; or
(d)in proceedings for enforcement of a *confiscation order.
28 Part 2-2 of the Act provides for the making of forfeiture orders. As mentioned, the Commissioner's application for forfeiture of the property was made under section 59 of the Act. Sections 47 and 49 relevantly require the Court to make an order for forfeiture of the property to the Commonwealth where, as in this case, the Commissioner has obtained a restraining order, the restraining order has been in force for at least 6 months and (under section 18) the Court is satisfied that the Applicant, whose conduct or suspected conduct formed the basis of the restraining order, engaged in conduct constituting one or more serious offences or (under section 19) the Court is satisfied of one or more matters including that the property is proceeds of one or more indictable offences or is an instrument of one or more serious offences.
29 'Proceeds' as defined relates to the source of the property and whether it was derived directly or indirectly from the commission of the offence.[5] 'Instrument' as defined relates to the use or intended use of the property in connection with the commission of an offence.[6]
[5] Section 329(1)
[6] Section 329(2)
30 Should the Applicant be acquitted of the charges in due course, this would not affect the Court's power to make a forfeiture order under sections 47 or 49 in relation to the charges.[7]
[7] Section 51
31 Part 2-3 of the Act contains the provisions for forfeiture on conviction of a serious offence.
32 Part 2-2 and 2-3 of the Act make provision for reducing the impact of forfeiture. For instance, section 64 makes provision for a person who claims an interest in property covered by an application for a forfeiture order to appear and adduce evidence at the hearing of the application.
33 However, as the exclusion applications made by the Applicant and the applications made by his wife and others in this case demonstrate, the Act specifies other circumstances under which relief may be obtained. For instance, section 72 permits relief for dependents from hardship, sections 73 and 74 enable the making of an order excluding a specified interest in property from forfeiture before and after a forfeiture order has been made, sections 77 and 78 enable the making of an order for compensation before and after a forfeiture order has been made, section 94 enables the making of an order excluding particular property from forfeiture after conviction of a serious offence to which the restraining order relates and section 94A enables the making of a compensation order after conviction of a serious offence to which the restraining order relates.
34 In respect to the exclusion application made in accordance with sections 73 and 74, the Applicant must show that the property is neither the proceeds of unlawful activity nor an instrument of any serious offence. Whereas, for the compensation application made in accordance with sections 77 and 78, the Applicant must satisfy a court that a proportion of the value of his interest in the property was not derived or realised directly or indirectly from the commission of any offence and that his interest is not an instrument of any offence. An additional requirement under section 94 (the exclusion of property from forfeiture on conviction) is that the Applicant would have to satisfy the Court that his interest in the property is neither the proceeds of nor an instrument of unlawful activity and the interest for the property was lawfully acquired.
35 Save for the hardship to dependents application, each of the other applications mentioned cannot be heard until (in this case) the Commissioner has had a reasonable opportunity to conduct examinations in relation to the particular application.[8] This is a further reference to examinations conducted under Part 3-1 of Chapter 3 for the gathering of information relevant to the processes by which confiscation can occur.
[8] Sections 76, 79A, 94(6) and 94A(9)
36 Relevantly, sections 180, 180A and 180B make provision for the making of examination orders. Section 180 relates to restraining orders. Sections 180A and 180B relate to the applications for exclusion from forfeiture made by the Applicant and his wife pursuant to sections 73 or 94 or the applications for compensation made by the Applicant and his wife pursuant to sections 77 or 94A. In relation to the current forfeiture application, an order can be made for examination of any person (including the Applicant) about the affairs of the Applicant (or the affairs of his wife) who seeks exclusion and compensation orders in respect to the property in which he claims or has an interest.
37 In this proceeding, the fact that criminal proceedings have been instituted or have commenced (whether or not under the Act) does not prevent the giving of an examination notice to the Applicant or to any person the subject of an examination order.[9]
[9] Section 183
38 However, section 193 provides for restriction of publication of certain material either on the initiative of the examiner or at the request of the person being examined or the responsible authority to prevent or restrict disclosure to the public of matters contained in answers given or documents produced in the course of the examination.
39 In effect, with some exceptions, a person subject to an examination order is compelled by the Act to comply with the notice.[10] Importantly, when subject to an examination order, the PSI cannot be invoked to refuse to answer a question or produce a document that would tend to incriminate the person or to expose the person to a penalty.[11]
[10] Section 196
[11] Section 197
40 Section 198 does provide some protection in as much as an answer given or document produced in an examination is not admissible in evidence in civil or criminal proceedings against the person who gave the answer or produced the document except in the following circumstances:
(a)in criminal proceedings for giving false or misleading information; or
(b)in proceedings on an application under this Act; or
(c)in proceedings ancillary to an application under this Act; or
(d)in proceedings for enforcement of a * confiscation order; or
(e)in the case of a document--in civil proceedings for or in respect of a right or liability it confers or imposes.
41 Part 3-2 of Chapter 3 is another aspect of a legislative scheme designed to provide Commonwealth law enforcement agencies with the means of obtaining information relevant to the confiscation process. It makes provision for production orders. Among other things, and subject to the enactment of some similar protections, Part 3-2, specifically abrogates the PSI of a person under a production order. They are not excused from producing a document or making a document available on the ground that to do so would tend to incriminate the person or expose the person to a penalty.[12]
[12] Section 206(1) and (2)
42 Part 3-6, in particular section 266A, provides some protection from the disclosure of information obtained as a direct result of the person giving a sworn statement under an order made under section 39(1)(ca), (d) or (da) or of the exercise of a power or performance of the function under Part 3-1 to 3-5 or as a result of a disclosure or a series of disclosures under section 266A.
43 Proceedings for a restraining order or a confiscation order are civil, not criminal.[13] In the stay application (and in the exclusion applications brought by him under the Act), the Applicant bears the onus of proving the matters necessary to establish the grounds for staying the forfeiture application and, it follows, for staying the exclusion applications. Subject to exceptions with which the Court is not here concerned, the stay application is to be decided on the balance of probabilities.[14]
[13] Section 315(1)
[14] Section 317
44 Finally, section 319 expressly provides that the fact that criminal proceedings have been instituted or commenced (whether or not under the Act) is not a ground on which the Court may stay proceedings under the Act that, as in this case, are not criminal proceedings.
45 As my overview of the provisions of the Act has shown, the Act clearly contemplates that the hearing of the forfeiture application and the Applicant's exclusion applications in respect to his interest in the property may proceed notwithstanding the charges and pending criminal proceedings.
46 It was common ground that the Court retained the power to stay proceedings under the Act in appropriate circumstances. This understanding of section 319 accords with the interpretation of an identical provision (save for the description of the court as the ‘Supreme Court’), section 63, contained in the Criminal Assets Recovery Act 1990 (NSW) (the CAR Act) by the High Court in Lee v New South Crime Commission.[15] This provision was considered and upheld.[16] By a majority of 4:3, the Court dismissed the appeal against orders that the appellants be examined on oath under a provision caste in similar terms to the provisions contained in sections 180, 180A and 180B of the Act, where compulsory examination of persons about the affairs of a person having or claiming an interest in property is permitted.[17]
[15] [2013] HCA 39
[16] Per Crennan J at [143] and Gageler and Keane JJ at [332]
[17] Section 31D(1) of the CAR Act
47 In Lee, observations made by members of the High Court have confirmed that courts will not interpret statutory provisions to permit abrogation of fundamental rights or important common law rights such as an accused's PSI in the absence of key words or necessary implication to that effect.[18]
[18] Per French CJ at [3], [29]-[30], Crennan J at [126] and Keifel J at [172]-[173]
48 From my reading of the Act, the statutory provisions which expressly permit abrogation of a person's PSI are intended to support Commonwealth law enforcement agencies in the gathering of information relevant to the confiscation processes.
49 Here we are not dealing with the gathering of information to further the purposes of the Act but with exclusion applications to which potentially different considerations apply. If the Applicant is to resist the forfeiture application, to satisfy the onus he carries in respect to the exclusion applications, he will need to give evidence, initially, on affidavit. The applicant is not under any statutory compulsion to give evidence and, in respect to the exclusion applications, he does not attract the specific legislative protections afforded compulsory examinees whose PSI is expressly abrogated under the gathering of information provisions of the Act.
50 If, as asserted on the Applicant's behalf, there is a substantial overlap between the evidence required to prove the exclusion applications and the subject matter of the charges, the giving of evidence could interfere with the administration of justice.
The authorities – real risk of interference with the administration of justice
51 My task is to assess and determine whether there is a 'real risk' of interference with the administration of justice should the forfeiture application in respect to the Applicant’s interest in the property proceed before the trial of the charges.
52 It is convenient at this juncture to summarise the various authorities on which the parties focused before disposing of the particular issues raised in the stay application. I have already mentioned Lee in passing. Notably, this and a number of other authorities concerned applications to stay orders for compulsory examination brought under either the Act or the CAR Act or, in one case, under the Australian Crime Commission Act 2002 (Cth) (the ACC Act).
53 While much of the argument in Lee was based on whether the Court had power to stay proceedings, observations made by members of the Court in the judgments delivered were nonetheless important to understanding the meaning of 'real risk' and the way in which the discretion is exercised to stay proceedings.
54 For instance, French CJ, Crennan J and Gaegler and Keane JJ each affirmed the distinction between a ‘real risk’ and ‘a remote possibility’ of interference with the administration of justice in pending criminal proceedings.[19]
[19] Lee [33], [146]-[148] and [320]
55 French CJ and Gaegler and Keane JJ also affirmed the relevance of the role of a court in ameliorating prejudice by observing as follows:
Per French CJ: "[25]…. As a general proposition, the nature and extent of the prejudice to a person required to answer questions concerning matters the subject of pending criminal charges will depend in part upon the statutory context and, in particular, the protections which the statute affords in relation to the use which may be made of answers provided by the examinee. The extent of the prejudice may also depend upon whether, as in the present case, the examination is conducted by a judicial officer and the extent of the judicial officer's discretion to control and supervise the examination so as to limit prejudice to the examinee.
…
[41] As was pointed out by Basten JA in the Court of Appeal, an examination under s31D attracts the powers of the Supreme Court under the Uniform Civil Procedure Rules and its inherent power to supervise and control its own processes and to ensure that they are not abused… Those powers include the power to take appropriate action to prevent injustice… Basten JA correctly observed that if a real risk of prejudice were perceived in the conduct of the examination, the examining judicial officer would have powers available to diminish or prevent that prejudice to the extent that it is beyond the prejudice authorised by the CAR Act..."
Per Gaegler and Keane JJ: “ [ 339] The fact that the subject matter of an examination would overlap with the subject matter of existing criminal proceedings is a factor additional to that to which s63 of the CAR Act is addressed. The existence of that additional factor, however, is not alone a sufficient reason to decline to make an order… where there is reason to consider that the making of the order might enable the Commission to obtain information about the criminal activity the suspicion orl probability of which forms the basis for a confiscation order that is sought.
[340] The additional factor alone gives rise to no more than a possibility that the implementation of the examination order might give rise to an interference with the administration of justice. That is the significance of the ability of the Supreme Court, or officer of the Supreme Court before whom the examination is conducted, to control the course of questioning and to make suppression or non-publication orders limiting the timing and scope of any use or dissemination by the Commission of answers given or documents produced. When it is appreciated that the conduct of the examination remains at all times subject to the supervision and protection of the Supreme Court, the possibility that the implementation of the examination order might give rise to an interference with the administration of justice does not rise to the level of a real risk merely because the subject matter of the examination will overlap with the subject matter of pending criminal proceedings against the person to be examined."
56 The decision of the High Court in X7 v Australian Crime Commission[20] was delivered prior to the decision in Lee. It too concerned issues of statutory interpretation, not the exercise of statutory discretion.
[20] [2013] HCA 29
57 In X7, the plaintiff had been charged with three indictable Commonwealth offences. While in custody, he was served with a summons to appear for examination by an officer of the ACC under a provision of the ACC Act. This Act did not allow an examinee to refuse or fail to answer a question, although the legislation did provide some protection where an examinee claimed that the answer to any question might tend to incriminate him or make him liable to a penalty.
58 By a majority of 3:2, the Court held that the relevant provisions of the ACC Act should not be construed as authorising the compulsory examination of a person charged with, but not yet tried for, an indictable Commonwealth offence about the subject matter of the pending charge. In short, the majority of the Court:
· said that permitting the Executive to ask and require an accused person to answer such questions would alter the process of criminal justice to a marked degree, whether or not the answers given were admissible at trial or kept secret from those investigating or prosecuting the pending charge;[21]
· was not satisfied that, by reference to the terms of the legislation, its purposes and its operation, Parliament had directed its attention to an examination of a person as to offences with which that person is presently charged and whose trial is pending or to the effect of an examination in such circumstances on the fundamental principle which informs the criminal justice system and to whether the examination may pose a real risk of interference with the administration of criminal justice.[22]
[21] Ibid [70]
[22] Ibid [162]
59 Here we are dealing with the practical consequences of a defended forfeiture application before a court, not compulsory examination of the Applicant in a non-judicial forum.
60 In Lee, when considering the implications of X7, French CJ relevantly observed that the executive character of the examination under the ACC Act had been an important, if not critical, consideration.[23] Gaegler and Keane JJ, on the other hand, also observed that the majority in X7 had not embraced a proposition that a real risk to the administration of justice arose by reason only of the exercise of the statutory power to compel the examination on oath of the person against whom criminal proceedings have been commenced but not completed where the subject-matter of examination will overlap with the subject-matter of the proceedings.[24]
[23] Lee at [47]
[24] Ibid [322]
61 As to various cases decided under the Act, in 2005 in Director of Public Prosecutions (Cth) v Xu[25], a single judge sitting in the New South Wales Supreme Court dismissed the defendant’s motion that she provide a sworn statement under section 39 of the Act after completion of criminal proceedings. These related to charges that the defendant conducted a business involving sexual servitude and that she caused a person to enter into and remain in sexual servitude. It was common ground that an issue in the defendant's trial would be her connection, or otherwise, with premises alleged to have been the location of the offences. In dismissing the notice of motion, the Court relevantly observed:[26]
"The power to make an order requiring a statement of assets and liabilities is clearly expressed. To qualify that power by having regard to the privilege against self-incrimination would largely nullify the power. As a matter of practicality, such privilege would be claimed in almost every case.…
By reference to the nature of the Act and the purpose which it is designed to achieve, and by reference to the language and character of s39(1)(d) and the part it plays in the making of a restraining order, I am of the opinion that the subsection does impliedly exclude the privilege against self-incrimination."
[25] [2005] NSWSC 191
[26] Ibid [35]-[36]
62 In 2007, the Queensland Court of Appeal in Cth DPP v Jo & Ors[27] dismissed the Commonwealth's appeal against a decision of a judge of the District Court, among other things, to stay the application for forfeiture made pursuant to section 47 of the Act. In that case, a temporary stay had been sought on the basis of prejudice. Charges had not yet been laid and, in order to pursue applications for exclusion orders and resist the making of forfeiture orders, the respondents to the forfeiture application would have to satisfy the Court that the restrained property was not the proceeds of unlawful activity.
[27] [2007] QCA 251
63 As the Court observed in Jo:[28]
"… It is true that confiscation and forfeiture proceedings are open where charges have not been brought and even where they are not expected to be brought. That said Mr and Mrs Jo and… are in an invidious position. They cannot be precise about how their defending forfeiture proceedings including by bringing exclusion applications – which would expose them to the likelihood of examinations in the course of which they would have to answer questions about their affairs – may prejudice (Mr Jo's) defence of criminal charges (on which the CDPP will most probably bear the onus of proof) when they do not know what those charges will be. By going into evidence in the forfeiture proceedings they may afford the CDPP an advantage in the criminal proceedings of the very type referred to by McKenzie J in Shaw, and they may both waive their privilege against self-incrimination. On present indications, the risk of waving the privilege against self-incrimination is particularly acute in Mr Jo's case."
[28] Ibid [20]
64 As submitted on the Applicant’s behalf, Jo provided a useful discussion of the overlap between issues arising in criminal proceedings and in forfeiture proceedings and the prejudice that may arise.
65 Relevantly, the application in Shaw[29] was for a stay under the Criminal Proceeds Confiscation Act (2002) (Qld) where, if the forfeiture application proceeding was not delayed, the applicant might need to make application for an exclusion order and, in doing so, disclose his defence to criminal proceedings. Section 93 of the Queensland legislation is the equivalent of section 319 of the Act. As the Court of Appeal also observed in Jo:[30]
"Shaw illustrates the point earlier made by McKenzie J in Bush that an applicant for a stay must at least demonstrate why, in the circumstances of the particular case, the interests of justice would not be served by the forfeiture proceedings being heard in advance of the criminal proceedings, and that made by Fryberg J in Henderson that an applicant must demonstrate that he had a matter which he wished to raise in defence of the forfeiture application which, if raised, would prejudice the criminal proceedings."
[29]State of Queensland v Shaw [2003] QSC 436
[30] Jo at [18]
66 In 2012 in Commissioner of Australian Federal Police v Dickson,[31] a decision of a single judge sitting in the New South Wales Supreme Court, a number of defendants had been ordered to give sworn statements as to interests and dealings in property in accordance with section 39(1)(ca) and (d) of the Act. Two of the defendants were charged with tax fraud and money laundering offences under the Criminal Code (Cth). Two other defendants had not been accused of committing any offence.
[31] (2012) NSWSC 1167
67 In refusing to revoke the orders made, Bellew J relevantly said:
"60 …s.39A expresses what is, in my view, a clear and unequivocal abrogation by the Parliament of the privilege against self-incrimination in respect of orders made pursuant to s.39(1)(ca),(d) and (da). It is trite to observe that the privilege against self-incrimination is a well entrenched principle of the criminal law. However what is also clear, is that such privilege can be abrogated by statute……. In my view, the abrogation of the privilege as it applies to a statement order to be provided under s.39(1)(ca), was made clear by the enactment of s39A.
…
“63. It is not enough for the first and second defendants, in support of the revocation of the orders made against them, to rely upon the fact that criminal proceedings are pending against them. To permit such reliance would fail to have regard to the provisions of s. 319. This was acknowledged by counsel for each of the first and second defendants.
64. Further, the fact that derivative use can be made of a statement provided pursuant to the orders does not, of itself, justify the exercise of the discretion in favour of revocation. Such use is expressly authorised by the Act. If an applicant for revocation needed only to point to that fact in order to justify a basis for revocation of an order made under s. 39(1)(ca), one of the purposes of the Act would be frustrated and rendered largely unworkable.
65. In my view, the critical question in the present case is whether, in circumstances where the Parliament has expressly authorised the making of orders which impinge upon common law rights, and has enacted particular provisions governing the disclosure of information which is provided, it has been demonstrated that if the orders are not revoked there is a real risk, as opposed to a theoretical possibility, of interference with the system of criminal justice and the rights of the first and second defendants.”
…
“67. Further, I do not accept the submission that orders against the first and second defendants give rise to a real risk that by providing the statements they would be required to address the central allegations made against either of them. The terms of the orders do not extend beyond requiring each of the first and second defendants to provide a statement setting out their interests in property, and their liabilities. In particular, the orders do not require either defendant to disclose matters such as:
(i) the circumstances in which any particular asset or interest was acquired;
(ii) when it was acquired;
(iii) how it was acquired;
(iv) why it was acquired; or
(v) with what proceeds it was acquired.”
68 Notably, in Dickson Bellew J appears to been reassured that a real risk did not arise by the fact that the compulsory orders to provide statements did not require the defendants to disclose the range of matters to which he referred in paragraph 67 above.
69 In 2013 in Commissioner of the Australian Federal Police v Mulder[32] a single judge sitting in the New South Wales Supreme Court refused an application to stay compulsory examination of the defendant. He had been charged with various offences relating to passports and receiving a designated service using a false customer name. An order restraining dealings with money in two bank accounts and an examination order were obtained pursuant to sections 18 and 180 of the Act respectively.
[32] [2013] NSWSC 621
70 The defendant was convicted and sentenced to imprisonment. He appealed. In the meantime he was served with notice of automatic forfeiture pursuant to section 92A of the Act. The defendant sought and obtained extensions of the period at the end of which the restraining order would be automatically forfeited. Events occurring prior to the extension application led to the defendant being charged with an offence pursuant to section 136 of the Anti-Money Laundering and Counter Terrorism Financing Act 2006 (Cth).
71 The Commissioner sought an order that the defendant be examined about his affairs in response to which the defendant sought an order that the examination be adjourned until the completion of the Anti-Money Laundering charge.
72 As was noted in Mulder, if the order sought by the defendant was made, the practical effect was that the Commissioner would suffer prejudice by being deprived of the benefit of an examination of the defendant before the exclusion hearing which of necessity was required to be conducted promptly before the expiry of the period set by the statute. On the other hand, if the order sought was not made, the practical effect was that the Commissioner would have the benefit of a compulsory examination of the defendant before the exclusion hearing. Furthermore, the defendant was exposed to the possibility that answers given by him at the examination hearing, whilst not directly admissible against him in the pending criminal prosecution could nevertheless be supplied to the prosecuting authority, and used to obtain evidence against him.
73 In refusing the defendant's application Button J relevantly said:
"84 Considering the Act as a whole, including its explicitly expressed purposes, its various provisions, and its overall structure, I consider that Parliament has expressed a clear intention that the privilege against self-incrimination is abrogated with regard to examination hearings. And I consider that that abrogation includes circumstances such as these, in which criminal proceedings are pending, the subject matter of which is closely related if not identical to the subject matter of the examination.
85 The fact is that, as I have shown, the Act deals with the privilege against self-incrimination at examination hearings and abrogates it..
86 In short, it seems to me that Parliament has turned its mind to the very situation that arises here, and expressly provided that it is not to give rise to the relief sought by the defendant."
74 Notably, Button J considered the decisions in Xu and Dickson with regard to an analogous section of the Act were powerfully persuasive.[33] His Honour distinguished the decision in Jo on the basis that it involved an application for a temporary stay of examination, there was uncertainty with regard to the position of the defendant because a charge or charges had not been laid and the primary judge had found that there was an abuse of process against which there needed to be protection. Perhaps more significantly, without further elaboration, His Honour noted that the decision in Jo had been doubted by the New South Wales Court of Appeal.[34]
[33] Ibid [89]
[34] Ibid [87]-[88]
75 The decision of the a District Court Judge in 2006 in Commonwealth Director of Public Prosecutions v Queensland Jewellery and Gift Company & Ors[35] was not a decision to which the parties referred in their submissions. I mention it simply to demonstrate the matters which have been considered where applications for exclusion orders have been made and a stay is sought until conclusion of the criminal proceedings.
[35] [2006] QDC 373
76 Queensland Jewellery involved allegations of large scale evasion of duty payable to the Commonwealth for the sale of tobacco products. Assets of three of the defendants were the subject of restraining orders made pursuant to the Act and applications were made for forfeiture orders and for other pecuniary penalty orders. The defendants applied to exclude from the forfeiture orders property they claimed was not the proceeds of unlawful activity.
77 It was common ground that the Court retained the discretion to stay the proceedings, the onus was on the defendants to justify the stay and the ultimate issue was whether the defendants faced a real danger of injustice in the criminal proceedings were a stay not granted.[36]
[36] Ibid [4]-[5]
78 In deciding to grant the stay, Kingham DCJ considered a number of factors: whether the issues raised in the civil proceedings were the same or substantially similar to those raised in the criminal proceedings (His Honour was satisfied they were[37]), whether the civil proceedings could be conducted before the criminal proceedings in such a way that the defendants would not suffer a real danger of injustice and whether other matters supported the grant of a stay.
[37] Ibid [27]-[28]
79 In Queensland Jewellery, among other things, the CDPP argued that the civil proceeding could be conducted in a way that the defendants would not suffer a real danger of injustice because they had a choice whether they led evidence to defend the civil proceeding. However, His Honour found there was a well-defined and real disadvantage to the defendants who were being asked to make a choice between forgoing their right to resist forfeiture of property they said was not the proceeds of crime and forgoing the right to maintain silence in relation to serious criminal charges. As His Honour relevantly observed, the question was not whether the defendants could choose to defend the forfeiture application but, if they made that choice, would it result in them being prejudiced in the criminal proceedings.[38]
[38] Ibid [26]
80 The other matters considered in exercising the discretion to support the grant of stay were: whether the CDPP was secure and suffered no particular prejudice if the stay was granted, whether the objects of the Act in depriving those suspected of being involved in illegal activities of the proceeds of all benefit derived from these activities would be compromised by the grant of a stay; whether the public interest in the most efficient use of court resources would be furthered by the criminal trial preceding the civil application; whether the defendants may suffer other disadvantages such as having to prepare for two hearings which were likely to be extremely complex given the particular circumstances of that case if the stay was not granted; whether the extent of the delay (the criminal proceedings were expected to conclude in a little over a year) if a stay was granted and whether balancing justice between the parties favoured the grant of a stay. [39] The latter involved weighing the effect on the CDPP who would suffer no particular prejudice and whose interests were fully secured by the restraining orders against the effect on the defendants where there was a real danger of injustice if the stay was not granted.
[39] Ibid [32]-[39]
The stay application – the evidence and submissions
81 The stay application was supported by an affidavit sworn on 9 September 2013 by solicitor, Nicole Spicer (the Spicer affidavit).
82 In addition to setting out each of the applications made by the Applicant and others in response to the forfeiture application, paragraphs 20 to 24 inclusive of the Spicer affidavit set out grounds for vacating the consent order for filing and service of affidavits and for the stay application. The Spicer affidavit appears to have been drafted on the basis that the Applicant and the other Applicants all intended to make stay applications. As my summary of the provisions of the Act demonstrates, different considerations likely apply to applications other than those made by the Applicant under the Act. His was the only stay application I was required to decide.
83 For the purpose of the stay application, I have taken onto account the grounds articulated in the affidavit sworn in support of the stay application only to the extent to which those grounds relate to the Applicant’s applications. The grounds were stated as follows:
“20. For the applicants to continue to prosecute their various applications will require them to file affidavits. That material will need to engage with the grounds stated in each of the applications, and there is likely to be an overlap with the matters to be considered in the criminal proceeding.
21. Should the applicants be required to file the affidavits on which they intend to rely in advance of the criminal trial, the possibility of Sami Ghazi Safadi receiving a fair trial may be prejudiced.
22. In the alternative, if the applicants choose not to file material in these applications in advance of Sami Ghazi Safadi’s criminal trial, their conduct of these proceedings will be prejudiced unless a stay of these proceedings (or, alternatively, a lengthy adjournment of these proceedings) is ordered.
23. In the circumstances, I seek that the orders requiring the filing and serving of affidavits made by his Honour Judge Parsons on 2 July 2013 be vacated and that this proceeding be either stayed or adjourned until after the conclusion of the criminal proceedings against Sami Ghazi Safadi.”
24. I further seek that the Commissioner of the Australian Federal Police’s application for forfeiture under sections 47 and 49 of the Act should be stayed or adjourned until the conclusion of the criminal proceeding against Sami Ghazi Safadi, to allow for the adjournment of the procedural steps in the nine exclusion orders as sought in paragraph 23 above.”
84 In view of the orders made by the Court, as summarised earlier, I have proceeded on the basis that, prior to making the stay application, no formal order had been made that required filing of affidavits by the Applicant. I have also proceeded on the basis that the Commissioner has not sought any order for attendance by the Applicant for compulsory examination or for the production of information relevant to the forfeiture application.
85 At hearing the Applicant argued that the Court's discretion should be exercised in favour of staying the forfeiture application. Both in oral and written submissions, it was submitted that there was a substantial overlap between the subject-matter of the exclusion applications and the pending criminal trial, which gave rise to a real risk of interference with the administration of justice. As to this overlap, Counsel for the Applicant spoke of the ‘almost’ certainty that to prove the charges the prosecution will rely on a circumstantial case and on the drawing of inferences based on the delivery of the other postal items, to which the Glover affidavit referred, to addresses, one of which was the property and based on the Applicant living a lifestyle, not commensurate with an income derived from the payment of Centrelink benefits.[40]
[40] Transcript (TN) 22 to 33
86 The Commissioner did not cavil with counsel's summation of the approach to the prosecution of the charges.
87 As to the exclusion applications, in summary, it was submitted that:
a) to satisfy his burden of proof, the Applicant needed to adduce evidence (on affidavit) and be available for cross-examination about the matters he must prove, including the source of money used to acquire the property, to make mortgage payments and to construct a residence on the property (paragraphs 27 to 32 inclusive of the Glover affidavit). This evidence it was said could be central to trial of the charges as evidence of unexplained wealth. He could also be subject to cross-examination about the extent to which the property may have been used in connection with the commission of an offence (including for the delivery of another postal package to the property as alleged in paragraph 23 of the Glover affidavit);
b) while it was impossible to predict precisely how the Applicant may be questioned in any cross-examination and how that might impact the defence of his criminal prosecution, the Commissioner would be entitled to test his evidence and, in so doing, examine the Applicant about specific facts required to be proved by the prosecution at the criminal trial and attack his credit;
c) Subject to any ruling made by a court, evidence given by the Applicant may be used against him in the criminal trial. Critically, unlike the provisions relating to the gathering of information contained in Chapter 3, which are coercive in their nature, the Act does not provide protection of the Applicant against the use to which evidence adduced in supporting the exclusion applications may be put;
d) the burden of establishing the Applicant’s defence to the forfeiture application would compromise both the trial of the charges or of other possible criminal trials and his PSI;
e) it is likely that the forfeiture application will succeed under either Section 47 or Section 49 of the Act and the Applicant’s interest in the property will be forfeited, should he not adduce evidence in support of the exclusion applications resisting forfeiture or make himself available for cross-examination.
88 Written and oral submission were made on behalf of the Commissioner in opposition to staying the forfeiture proceeding in respect to the Applicant’s interest in the property. In summary, the Commissioner submitted:
I. The Spicer affidavit evidence set out above was objectionable because it was opinion evidence, the basis for which had not been established and/or the opinions expressed trespassed on the ultimate issue to be determined.
II. Asserting prejudice without describing, specifying or particularising how the Applicant’s PSI was compromised (and presumably the conduct of his defence in respect to the charges or possible criminal charges), was insufficient to avoid the consequences of section 319 of the Act.
III. A likely overlap, as alleged in the stay application, was not sufficient basis for a stay.
IV. This was not a coercive procedure. The Applicant has an unfettered forensic choice to adduce evidence or not in support of his exclusion applications.
V. A stay would cause prejudice by delaying forfeiture of property.
89 As to the Commissioner’s first and second submission, I accept that, for the reasons articulated, the evidence contain in the Spicer affidavit was probably objectionable. Absent the detailed submissions made on the Applicant’s behalf, in which his counsel specified how the prejudice arose and the nature of same, the affidavit evidence alone would have been insufficient to support the granting of a stay.
90 In the present case, unlike X7, the forfeiture application and the exclusion applications will be heard by the Court.In his submissions, counsel for the Commissioner appeared to suggest that the proper approach was for the Applicant to adduce evidence or state what the evidence would be and allow the Court, whether during the forfeiture application or at trial, to exercise its judicial powers to manage any potential prejudice to a fair trial.
91 While discussing the powers of courts to control their processes, particularly in the context of compulsory examinations, the case law to which I was referred did not appear to support the proposition that the evidence should be provided and only then would the court seek to contain any prejudice. Clearly, even under the compulsory examination regime circumstances may and do arise where protecting a fair trial will require that the defendant not be required to answer a particular question at all, not merely required to answer and then be afforded other forms of protection.[41]
[41] See for example, French CJ and Crennan J in Lee at [63] and [141] respectively
92 Counsel for the Applicant argued (in my view correctly) that, in the present case, disclosing the details of the evidence by which the Applicant intended to prove the exclusion applications and resist forfeiture of his interest in the property would realise the very prejudice he seeks to avoid even before the question of cross-examination arose. In the present case, I was not satisfied that the powers of the Court to manage any potential prejudice would sufficiently ameliorate the risk of prejudice to which the Applicant referred.
93 As to the third submission, the case law mentioned earlier, which includes Lee and Dickson, has established that a likely overlap (or even as occurred in cases of compulsory examination, actual overlap of the subject-matter of the examination and the pending criminal trial) was not sufficient basis for granting a stay.[42] The Applicant must specify the prejudice and satisfy the Court that the circumstances of this case create a real risk of interference with justice.
[42] Per Crennan J at [144] and Gageler and Keane JJ at [268], [331], [322] – [323], [339] – [340] and in Dickson, per Bellew J at [63]
94 However, I was satisfied from the material before me that where, as in the present case, the prosecution would likely rely on a circumstantial case, as part of which a jury could be asked to draw inferences about the Applicant’s involvement in attempting to import and possess heroin from any evidence of unexplained wealth, there was a substantial overlap between the subject-matter of the exclusion applications and the issues to be dealt with in the pending criminal trial. This overlap, the need to prove the exclusion applications, initially on by adducing evidence on affidavit and the lack of legislative protection in respect to this evidence combine to create a real risk as opposed to a remote possibility of an interference with the administration of justice.
95 While I accept that the overall legislative scheme is designed to progress the confiscation of proceeds of crime, in my view the fourth submission, fails to give effect to Parliament’s clear intention that persons affected by the civil confiscation process, including those facing criminal charges, be afforded an opportunity to reduce the impact of confiscation.
96 Where the Court is satisfied that there is a real risk of interference with the administration of justice, it is hardly to the point to submit that a person can avail themselves of this opportunity by choosing between incurring one prejudice/disadvantage over another: that is to say, maintain the right to silence and effectively loose the opportunity to bring forth all of the evidence required to met the burden of proof under the exclusion applications or give evidence and compromise the criminal trial. As Kingham DCJ said in Queensland Jewellery the question is: would choosing to defend the forfeiture application result in prejudice in the criminal proceeding?
97 As to the fifth submission, due regard must be given to the objects of the Act in promoting and progressing the confiscation process. Other than delay, the Commissioner has not asserted any particular prejudice. In the present case, on the current timetable, I do not regard the delay contemplated as significant.
98 In the present case I was satisfied that a real risk of prejudice had been established by the Applicant. Without repeating my discussion of the various considerations to which I had regard, the matters upon which I placed particular importance included:
· the fact that the issues raised in the civil forfeiture and exclusion applications probably substantially overlap with the subject matter of the charges;
· the significant disadvantage the Applicant may suffer in pursuing the exclusion applications or in the defence of criminal trial if a stay was not granted;
· the absence of particular prejudice to the objectives of the Act and interests of the Commissioner in implementing the confiscation process.
99 I propose to grant the stay sought.
100 I will hear from the parties as to the form of order to be made.
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