AFP v Surinder Kaur
[2016] VSC 423
•1 August 2016
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
COMMON LAW DIVISION
CONFISCATION AND PROCEEDS OF CRIME LIST
S CI 2015 4003
| IN THE MATTER of the Proceeds of Crime Act 2002 of the Commonwealth | |
| - and - | |
| IN THE MATTER of the suspect, Baljit Singh | |
| - and - | |
| IN THE MATTER of an application by the COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE | Applicant |
| - and - | |
| IN THE MATTER of Surinder Kaur | Respondent |
---
JUDGE: | J FORREST J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 31 May 2016, (further written submissions on 27 July 2016) |
DATE OF RULING: | 1 August 2016 |
CASE MAY BE CITED AS: | AFP v Surinder Kaur |
MEDIUM NEUTRAL CITATION: | [2016] VSC 423 First revision (8 November 2016) |
---
PROCEEDS OF CRIME – Application for examination of relative of accused– s 180 and 180A of Proceeds of Crime Act 2002 (Cth) – Abuse of process – Estoppel – Effect of consent orders - Timing of examination – Conditions of dissemination of examination material - s 266A(2)(b) of Proceeds of Crime Act 2002 (Cth) – Discretionary considerations – Application granted subject to order concerning dissemination of evidence on examination.
---
APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr N O’Bryan SC with Ms R Burton | Australian Federal Police |
| For the Respondent Surinder Kaur | Mr T D Best | Tony Hargreaves & Partners Lawyers |
| For Baljit Singh and Rekha Arora | Mr C Juebner | Madison Branson Lawyers |
HIS HONOUR:
Introduction
In August 2015, Baljit Singh (Singh) and his wife Rekha Arora (Arora) were charged with serious fraud offences under various provisions of the Commonwealth Criminal Code Act 1995 and a number of state laws. Those offences relate to the conduct of two education institutes – the St Stephen Institute of Education (St Stephen) and the Symbiosis Institute of Technical Education (Symbiosis).
In 2015, the Commissioner of the Australian Federal Police (the Commissioner) obtained restraining orders under s 19 of the Proceeds of Crime Act 2002 (the Act) in relation to properties and money of Singh, Arora, Mr Singh’s mother, Surinder Kaur (Kaur) and associated companies. The Commissioner has also sought forfeiture of those assets (the forfeiture application) under s 59 of the Act.
The forfeiture and associated exclusion and compensation applications (the associated applications) brought by Kaur and the company of which she is the sole director have been stayed pending the disposition of the criminal trial of the charges against Singh and Arora.
This ruling relates to an application by the Commissioner to conduct an examination of Kaur pursuant to ss 180 and 180A of the Act. The application is opposed by Kaur, Singh and Arora. Kaur says the application is an abuse of process, and all three argue that there is no good reason to have the application heard now, rather than after the trial of Singh and Arora.
I do not accept these propositions and agree with the Commissioner’s submission that the examination should take place prior to the trial, preferably in the near future.
For the reasons that follow, an order should be made for the examination of Kaur, but subject to the safeguards provided by the recently enacted s 266A(2)(b) of the Act. This should ensure that the use of any information obtained as a result of the examination is confined to proceedings brought under the Act – and not to the prosecution of the criminal charges against Singh and Arora.
Charges against Singh and Arora
According to the affidavit of Simon Tsapepas, the solicitor for Singh and Arora, sworn 1 March 2016, Singh has been charged with the following offences:
(a) conspiring to defraud by obtaining a gain contrary to s 135.4(1) of the Criminal Code Act 1995 (Cth);
(b) conspiring to defraud by dishonestly influencing a Commonwealth public official contrary to s 135.4 (7) of the Criminal Code Act 1995 (Cth);
(c) possessing a forged document contrary to s 145.2 of the Criminal Code Act 1995 (Cth);
(d) falsifying documents contrary to s 145.4 of the Criminal Code Act 1995 (Cth);
(e) dealing with money or other property reasonably suspected of being the proceeds of crime and at the time of dealing, the value of the money or property was $100,000 or more, contrary to s 400.9(1) of the Criminal Code Act 1995 (Cth);
(f) attempting to pervert the course of justice contrary to s 43 (1) of the Crimes Act 1914 (Cth);
(g) committing an indictable offence whilst on bail contrary to s 30B of the Bail Act 1977 (Vic);
(h) obtaining property by deception contrary to s 81(1) of the Crimes Act 1958 (Vic), two counts; and
(i) possess false documents contrary to s 83A(5) of the Crimes Act 1958 (Vic).
Arora has been charged with:
(a) conspiring to defraud by dishonestly influencing a Commonwealth public official contrary to s 135.4 (7) of the Criminal Code Act 1995 (Cth);
(b) possessing a forged document contrary to s 145.2 of the Criminal Code Act 1995 (Cth);
(c) dealing with money or other property reasonably suspected of being the proceeds of crime and at the time of dealing, the value of the money or property was $100,000 or more, contrary to s 400.9(1) of the Criminal Code Act 1995 (Cth);
(d) obtaining property by deception contrary to s 81(1) of the Crimes Act 1958 (Vic), two counts; and
(e) possessing false documents contrary to s 83A(5) of the Crimes Act 1958 (Vic).
No charges have been laid against Kaur.
Relevant factual matters
Kaur is 56 years of age and resides in Melbourne. She is of Indian descent and does not speak English. Kaur is the sole director, secretary and shareholder of Pabla Investments Pty Ltd (Pabla). That company is the trustee of the Pabla Investments Family Trust (the trust) and the designated beneficiaries are Singh and Arora.
Pabla owns a commercial property at 143 High Street, Preston (the Preston property) and had funds in a Bankwest bank account in its name. This is trust property.
Kaur holds a bank account with Westpac in her own name (the signatories of which are Singh and Kaur) and Bankwest (of which she is the only signatory).
Both Bankwest accounts of Pabla and Kaur have been the subject of significant fund transfers from entities controlled by Singh.
On 4 August 2015, Bell J, pursuant to ss 18 and 19 of the Act, made restraining orders (which remain in force) in relation to properties, motor vehicles and bank accounts of a number of persons and companies associated with Singh and Arora. Of relevance to this application is the ‘freezing’ of Kaur’s two bank accounts, the Preston property and the Pabla bank account.
On 31 August 2015, the Commissioner filed an application pursuant to s 59 of the Act seeking forfeiture of all property restrained by orders of the Court. It was asserted that Kaur’s interest (personally and through Pabla) was the proceeds of unlawful activity.
On 2 February 2016, Kaur and Pabla filed applications under ss 31 and 74 to exclude their property from the restraining and putative forfeiture orders. Application was also made under s 78 for compensation orders.
On 2 March 2016, Kaur and Pabla made a joint application to stay exclusion and forfeiture proceedings pending the determination of the criminal proceedings against Singh and Arora.
On 18 March 2016, the Commissioner brought an application (supported by an affidavit of Joanne Hopkins) pursuant to ss 180 and 180A of the Act that Kaur be examined about her affairs, including her interest in and control of the bank accounts and the Preston property. The documents were served on Kaur’s lawyers on 21 March 2016.
Between 2 March and 30 March 2016, there was extensive correspondence between Kaur and Pabla’s lawyers and the AFP as to the hearing of the stay application.
Ultimately, an agreement was reached as to the forfeiture and associated applications and, on 30 March 2016, I made consent orders as between Kaur and the Commissioner (the consent orders) in the following terms:
1. The applications:
(a)made by the Commissioner of the Australian Federal Police for forfeiture orders under s 59 of the Proceeds of Crime Act (Cth) (the Act) dated 31 August 2015; and
(b)made by each of Surinder Kaur and Pabla Investments Pty Ltd under ss 31, 74 and 78 of the Act, dated 2 February 2016;
are stayed until the criminal charges against Baljit Singh and Rekha Arora are finally determined or withdrawn, or until further order of the Court.
The committal of Singh and Arora is set down for 12 September 2016. The earliest at which a trial in the County Court could conclude is at the end of 2017.
On 21 April 2016, the Preston property, having been repossessed by the mortgagee, was sold for $2,820,000. It is thought that there will be a surplus of funds, after payment out of the mortgage which will be held by the Official Trustee.
The affidavits of Hopkins and Freeman
The Commissioner relied upon affidavits sworn by Joanne Hopkins (Hopkins), an AFP Detective Leading Constable, on 3 and 11 August 2015 and 18 March 2016. Kaur’s solicitor, Timothy Freeman, filed two affidavits (2 March 2016 and 27 May 2016). These affidavits provide the factual foundation for the Commissioner’s application.
The substantive affidavit relied upon by the Commissioner is that of Hopkins of 3 August 2015 in which she deposes that Singh and Arora (and two others, Kumar and Sharma) have used St Stephen and Symbiosis to engage in what she suspects to be unlawful activity. Hopkins says:[1]
[1]Affidavit of Joanne Hopkins sworn 3 August 2015, 38 [126].
(a) the Institute and Symbiosis are not legitimate training organisations;
(b) Singh has conspired with Kumar and Sharma to defraud the Commonwealth, namely ASQA, to maintain the RTO and CRICOS status of the Institute and Symbiosis, by providing false NPC certificates and representing the Institute and Symbiosis as legitimate training organisations, contrary to section 135.4 of the Criminal Code Act 1995;
(c) Singh has fraudulently received funds from the Victorian Government under the Skills Victoria program for non-existent students at the Institute;
(d) Singh has falsified and been in possession of a forged document, namely a falsified NPC certificate, contrary to sections 145.2 and 145.4 of the Criminal Code Act 1995;
(e) Singh has obtained financial advantage contrary to section 134.2(1) of the Criminal Code Act 1995 in that he has received GST reimbursement in relation to companies controlled by him for services which have in fact not been provided;
(f) Singh dealt with the proceeds derived from the abovementioned offences, the value of which is reasonably suspected to be greater than $100,000, contrary to section 400.9 of the Criminal Code Act 1995; and
(g) the property sought to be restrained is derived from the proceeds of crime, or has been used as an instrument in dealing with the proceeds of crime.
In relation to Kaur’s involvement with Singh, Hopkins says:
42.I also believe that Singh is in effective control of the company PABLA Investments Pty Ltd (ACN 605 085 756), which company was incorporated on 1 April 2015. The sole director, secretary and shareholder of this company is Surinder Kaur, born on 15 June 1960. The reasons for my suspicion that Singh is in effective control of this company are:
(a)Singh is a signatory to the Westpac bank account in the name of Surinder Kaur with account number 033137 448755, which account only requires one signature;
(b)the application to Bankwest for the bank account in the name of Pabla Investments Pty Ltd lists Singh’s mobile telephone number and email address;
(c)significant fund transfers have been made into the Bankwest accounts operated by Pabla Investments Pty Ltd and Surinder Kaur from entities controlled by Singh, Kumar and Sharma, including the Institute and Symbiosis;
(d)the Ferrari Spider motor vehicle purchased in 2014 in the name of Singh’s wife has the registration plate “PABLA9”;
(e)in a loan application to the Commonwealth Bank of Australia in November 2008, Singh states his email address is – [email protected]; and
(f)the property located at 143 High Street, Preston was recently acquired and the registered sole proprietor on title is Pabla Investments Pty Ltd.
…
98.The property located at 143 High Street Preston, being the property more particularly described in Certificate of Title Volume 11161 Folio 708, was registered in the name of Pabla Investments Pty Ltd on 6 July 2015. The mortgagee registered on title is the CBA.
99.The Transfer of Land records the purchase price as being the sum of $2,475,000.
…
100.On 6 June 2014, Zagame issued a contract for the sale of a Ferrari F458 Spider (Ferrari). The customer was stated to be Rekha Arora of 30 Elliott Avenue, Balwyn. The total purchase sum for the motor vehicle is listed as being $560,000.00, with a total of $55,000.00 having been in cash, as set out under “Details of Settlement”.
101.A search obtained from VicRoads confirms the Ferrari was registered with the number plate – PABLA9, on 5 June 2014.
…
103(h)Also of significance are the deposits in the Westpac account in the name of Surinder Kaur, being account 033-137 3137 448755. On 4 June 2014 the sum of $9,000 was deposited into this account. On 5 June 2014, the sum of $80,000 in cash was withdrawn from the account at the Balwyn branch of Westpac.
…
106.Of particular note are two bank accounts of which they are not the account holders but which I suspect are controlled by Singh, namely:
(a)Bank account held with BankWest in the name of Pabla Investments Pty Ltd ATF Pabla Investments Family Trust, with account number 432-049388-4;
(b)Bank account held with BankWest in the name of Surinder Kaur, with account number 674-005964-0.
107.The account opening documents pertaining to the bank account in the name of Pabla Investments Pty Ltd evidence that the contact details provided, in terms of mobile number and email address, are those of Singh. The authorised signatory purports to be Surinder Kaur. Bank statements obtained for the month from June to July 2015 reveal significant transfers from the Institute ($250,000), Symbiosis ($100,000) and a $15,000 loan from MRSS Trade and Services Pty Ltd.
108.The bank statements for the BankWest account in the name of Surinder Kaur also reveal large deposits, including a deposit of $4,957.00 from the Institute on 2 June 2015 and a $200,000 transfer to the BankWest Pabla Investment Pty Ltd account on 5 June 2015.
125. In the case of Singh, bank accounts are held with Westpac and BankWest in the name of Surinder Kaur, a person not easily identifiable as being connected to him. However, Singh is a signatory on the Westpac account, which is also suspected to have been used for the purchase of the Ferrari motor vehicle. Singh has also attempted to distance himself from ownership of a property at 143 High Street, Preston through the use of a corporate entity which does not appear to have any connection to him.
The first affidavit of Freeman relates to the stay of the forfeiture and associated applications. It is not necessary to repeat its contents. The second affidavit of 27 May details the correspondence between himself and Ms Anna Duran, on behalf of the Commissioner. The substance of the affidavit is as follows:
(a) on 21 March, his office was served with the Commissioner’s application for examination accompanied by the affidavit of Joanne Hopkins, sworn 18 March;
(b) between 10 March and 18 March, there was email correspondence between the solicitor for the Commissioner and Mr Freeman as to the content of the consent orders which were filed on 30 March 2016 and subsequently made by me; and
(c) the gravamen of his complaint seems to be contained in paragraph [15]:
At no stage during the time from the filing of the application for stay on behalf of my clients, the subsequent exchange of correspondence with the solicitor for the Commissioner, or at the time of signing and filing the consent orders did the Commissioner’s solicitors disclose they intended to make application for an examination order against Ms Kaur while the stay of the relevant applications in the proceeding was in place. This is despite the fact there was ample opportunity to do so given the correspondence that was exchanged between the parties’ solicitors prior to and on 18 March 2016.
The Act
It is not necessary to set out the restraining orders or forfeiture provisions of the Act. Germane to this application are the objects of the Act and the provisions of Chapter 3, which relate to information gathering.
The objects of the Act (contained in s 5) are:
(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)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
(da) to undermine the profitability of criminal enterprises; 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.
Chapter 3 ‘information gathering’, set outs five ways to obtain information to further the objects of the Act, as follows:
(a)examining any person about the affairs of people covered by examination orders (see Part 3-1); and
(b)requiring people, under production orders, to produce property-tracking documents or make them available for inspection (see Part 3-2); and
(c)requiring financial institutions to provide information and documents relating to accounts and transactions (see Part 3-3); and
(d)requiring financial institutions, under monitoring orders, to provide information about transactions over particular periods (see Part 3-4); and
(e)searching for and seizing tainted property or evidential material, either under search warrants or in relation to conveyances (see Part 3-5).
Chapter 3 also authorises the disclosure, to certain authorities for certain purposes, of information obtained under that Chapter or certain other provisions (see Part 3-6).
Section 180 (part of Chapter 3.1) reads as follows:
180 Examination orders relating to restraining orders
(1)If a restraining order is in force, the court that made the restraining order, or any other court that could have made the restraining order, may make an order (an examination order) for the examination of any person, including:
(a)a person whose property is, or a person who has or claims an interest in property that is, the subject of the restraining order; or
(b)a person who is a suspect in relation to the restraining order; or
(c)the spouse or de facto partner of a person referred to in paragraph (a) or (b);
about the affairs of a person referred to in paragraph (a), (b) or (c).
(2)The examination order ceases to have effect if the restraining order to which it relates ceases to have effect.
180A Examination orders relating to applications for exclusion from forfeiture
(1)If an application for an order under section 73 or 94 for an interest in property to be excluded from forfeiture is made, the court to which the application is made may make an order (an examination order) for the examination of any person including:
(a)a person who has or claims an interest in the property; or
(b)the spouse or de facto partner of a person referred to in paragraph (a);
about the affairs of a person referred to in paragraph (a) or (b).
(2)The examination order ceases to have effect when:
(a)the application is withdrawn; or
(b)the court makes a decision on the application.
The Act then sets out the process for carrying out an examination by an approved examiner, who is usually a presidential or non-presidential member of the Commonwealth Administrative Appeals Tribunal.[2] The examination, which is recorded, takes place in private,[3] at a time and place specified in an examination notice.[4] In a case involving an AFP prosecution, the AFP as the responsible authority is entitled to be present, as is the examinee’s lawyer, whose role is set out in s 189 of the Act.
[2]See Proceeds of Crime Regulations 2002, reg 12.
[3]Section 188 of the Act.
[4]Section 186 of the Act.
An examinee must attend the examination[5] and must answer questions and produce documents as required by the examiner.[6] Relevant to this application is s 198, which reads as follows:
[5]Section 195 of the Act.
[6]Section 196 of the Act.
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:
(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.
On 10 March 2016, a number of amendments to the Act came into force (the 2016 Amendments) as part of Schedule 1 of the Crimes Legislation Amendment (Proceeds of Crime and Other Measures) Act 2016. S 266A, as amended, applies to this application[7] and reads as follows::
[7]Section 5(1) of the 2016 Amendments.
(1) This section applies if a person obtains information:
(a)as a direct result of:
(i)the person being given a sworn statement under an order made under paragraph 39(1)(ca), (d) or (da); or
(ii)the exercise of a power (by the person or someone else), or performance (by the person) of a function, under Part 3-1, 3-2, 3-3, 3-4 or 3-5; or
(b)as a result of a disclosure, or a series of disclosures, under this section.
(2) The person may disclose the information to an authority described in an item of the following table for a purpose described in that item if:
(a) the person believes on reasonable grounds that the disclosure will serve that purpose; and
(b)a court has not made an order prohibiting the disclosure of the information to the authority for that purpose.
Recipients and purposes of disclosure Item Authority to which disclosure may be made Purpose for which disclosure may be made 1 Authority with one or more functions under this Act Facilitating the authority's performance of its functions under this Act 2 Authority of the Commonwealth, or of a State or Territory, that has a function of investigating or prosecuting offences against a law of the Commonwealth, State or Territory Assisting in the prevention, investigation or prosecution of an offence against that law that is punishable on conviction by imprisonment for at least 3 years or for life 2A Authority of a foreign country that has a function of investigating or prosecuting offences against a law of the country Assisting in the prevention, investigation or prosecution of an offence against that law constituted by conduct that, if it occurred in Australia, would constitute an offence against a law of the Commonwealth, or of a State or Territory, punishable on conviction by imprisonment for at least 3 years or for life 2B Authority of a State, or a self-governing Territory, that has a function under a corresponding law of the State or Territory Any one or more of the following purposes:
(a) engaging in proceedings under that corresponding law;
(b) engaging in proceedings for the forfeiture of things under a law of that State or Territory;
(c) deciding whether to institute proceedings of a kind referred to in paragraph (a) or (b)
2C Authority of a foreign country that has one or more of the following functions:
(a) investigating or prosecuting offences against a law of the country;
(b) identifying, locating, tracing, investigating or confiscating proceeds or instruments of crime under a law of the country
Assisting in identification, location, tracing, investigation or confiscation of proceeds or instruments of crime, if the identification, location, tracing, investigation or confiscation could take place under this Act, or under a corresponding law of a State or a self-governing Territory, if the proceeds or instruments related to an offence against a law of the Commonwealth, State or Territory 3 Australian Taxation Office Protecting public revenue Limits on use of information disclosed
(3)In civil or criminal proceedings against a person who gave an answer or produced a document in an examination, none of the following that is disclosed under this section is admissible in evidence against the person:
(a) the answer or document;
(b) information contained in the answer or document.
(4) Subsection (3) does not apply in:
(a)criminal proceedings for giving false or misleading information; or
(b) proceedings on an application under this Act; or
(c) proceedings ancillary to an application under this Act; or
(d)proceedings for enforcement of a confiscation order; or
(e)civil proceedings for or in respect of a right or liability the document confers or imposes.
(5)In a criminal proceeding against a person who produced or made available a document under a production order, none of the following that is disclosed under this section is admissible in evidence against the person:
(a)the document;
(b)information contained in the document.
(6)Subsection (5) does not apply in a proceeding under, or arising out of, section 137.1 or 137.2 of the Criminal Code (false or misleading information or documents) in relation to producing the document or making it available.
(7)To avoid doubt, this section does not affect the admissibility in evidence of any information, document or thing obtained as an indirect consequence of a disclosure under this section.
(8)To avoid doubt:
(a)this section does not limit subsection 228(2) (about a search warrant authorising the executing officer to make things seized under the warrant available to officers of other enforcement agencies); and
(b)subsection 228(2) does not limit this section.
Although not strictly relevant to an examination application, I should also set out the 2016 Amendments to s 319 which relate to the stay of proceedings under the Act:
Stay of proceedings
(1)A court may stay proceedings (the POCA proceedings) under this Act that are not criminal proceedings if the court considers that it is in the interests of justice to do so.
(2)The court must not stay the POCA proceedings on any or all of the following grounds:
(a)on the ground that criminal proceedings have been, are proposed to be or may be instituted or commenced (whether or not under this Act) against the person subject to the POCA proceedings;
(b)on the ground that criminal proceedings have been, are proposed to be or may be instituted or commenced (whether or not under this Act) against another person in respect of matters relating to the subject matter of the POCA proceedings;
(c) on the ground that:
(i)a person may consider it necessary to give evidence, or to call evidence from another person, in the POCA proceedings; and
(ii)the evidence is or may be relevant (to whatever extent) to a matter that is, or may be, at issue in criminal proceedings that have been, are proposed to be or may be instituted or commenced (whether or not under this Act) against the person or any other person;
(d)on the ground that POCA proceedings in relation to another person have been, are to be or may be stayed.
(3)Paragraph (2)(a) applies even if the circumstances pertaining to the POCA proceedings are or may be the same as, or substantially similar to, the circumstances pertaining to the criminal proceedings.
(4)Paragraph (2)(b) applies even if the subject matter of the POCA proceedings is the same as, or substantially similar to, the matter at issue in the criminal proceedings.
(5)Paragraph (2)(d) applies even if the staying of the POCA proceedings would avoid a multiplicity of POCA proceedings.
(6)In considering whether a stay of the POCA proceedings is in the interests of justice, the court must have regard to the following matters:
(a)that the POCA proceedings, and any criminal proceedings of a kind referred to in paragraph (2)(a) or (b), should proceed as expeditiously as possible;
(b)the cost and inconvenience to the Commonwealth of retaining property to which the POCA proceeding relates and being unable to expeditiously realise its proceeds;
(c)the risk of a proceeds of crime authority suffering any prejudice (whether general or specific) in relation to the conduct of the POCA proceedings if the proceedings were stayed;
(d)whether any prejudice that a person (other than a proceeds of crime authority) would suffer if the POCA proceedings were not stayed may be addressed by the court by means other than a stay of the proceedings;
(e)any orders (other than an order for the stay of the POCA proceedings) that the court could make to address any prejudice that a person (other than a proceeds of crime authority) would suffer if the proceedings were not stayed.
Precis of the parties’ submissions
The Commissioner asserts that there is no valid reason to delay an examination of Kaur, who is not a suspect and has not been charged with any offence. It makes sense, the Commissioner submitted, to conduct an examination sooner rather than later, given that the conclusion of the trial of Singh and Arora is at least a year and a half away – if not longer. As Kaur has not been charged, a number of the inhibitions upon making examination orders are removed, and the provisions of Chapter 3 and the stated purposes of the Act demonstrate that such an order ought to be made.
Kaur contends that, in light of the consent orders staying the forfeiture and exclusion applications, the application for an examination order constitutes an abuse of process while those orders are in force. Kaur argues that those orders, in effect, preclude any application for an examination until the stay has run its course. Alternatively, or subordinately, it was said that the application was the subject of an Anshun estoppel.
Kaur (supported by Singh and Arora) also said that, based on a paragraph in the Commissioner’s submissions, the examination application is made for an improper purpose – namely, evidence gathering for the case against Singh and Arora.
Counsel for Singh and Arora argued that to grant the examination would place his clients’ defence of the criminal trial at risk; that without limitation, the information disclosed compulsorily from Kaur may be used either derivatively or directly at the trial.
Both counsel for Kaur, Singh and Arora argued that if these contentions were not accepted, then there was no demonstrable urgency in making the orders, and that there was no reason why an examination order could not be made after the trial of Singh and Arora. The thrust of the submissions essentially went to the lack of urgency on the part of the Commissioner in making the application in a situation where there was already a stay of the substantive applications and no risk of dissipation of assets.
Counsel accepted that once the trial of Singh and Arora was completed it would be appropriate to make an order for an examination of Kaur.
Applicable principles
The following propositions emerge from the text of the statute (including the 2016 Amendments) and its application by State Courts and the High Court:
(a) The power of a court to make an examination order under s 180 or s 180A is dependent upon the existence of a restraining order relating to the subject matter of the proposed examination.[8]
[8]Section 180(1) of the Act.
(b) Any person may be the subject of an examination order. [9]
[9]Section 180(1)(a)-(c) and s 180A(1)(a) and (b). These provisions also identify specific classes of person who may be the subject of an order.
(c) The Commissioner bears the onus of proof in establishing an entitlement to an examination order – and the burden is on the balance of probabilities.[10]
[10]Section 317 of the Act.
(d) The Commissioner is entitled (by statute) to conduct an examination prior to the hearing of exclusion or compensation applications.[11]
[11]Sections 32, 76 and 79A of the Act; Commissioner of the Australian Federal Police v Dong Hua International Investments Pty Ltd [2016] VSCA 15 [25].
(e) The making of an order for an examination under ss 180 or 180A of the Act is discretionary and should only be made where there are adequate grounds for such an order.[12]
[12]Lee v DPP (Cth) (2009) 75 NSWLR 581, 593 [46], 593 [50] - 594 [52]; DPP v Chan (2004) 185 FLR 399, 404 [24], 405 [26]–[27]; see also Commissioner of Australian Federal Police v Mah (2014) 242 A Crim R 184, 187 [12]; Hammond v Commonwealth (1982) 152 CLR 188; X7 v Australian Crime Commission (2013) 248 CLR 92.
(f) The power of the court to make an examination order is not precluded by the existence of a pending criminal charge against the examinee.[13] This proposition is fortified by the 2016 Amendments to s 319(2) of the Act.[14]
[13]Lee v NSW Crimes Commission (2013) 251 CLR 196, 230 [55], 250 [129]–251 [132], 294 [268], 317 [326]–319 [335] in relation to the Criminal Assets Recovery Act 1990 (NSW) (‘Lee (No.1)’).
[14]Section 319(2)(a) & (b) of the Act. See Explanatory Memorandum, Crimes Legislation Amendment (Proceeds of Crime and Other Measures) Bill 2015, [47]-[50].
(g) The fact that an examinee may be charged in relation to the subject matter of an examination is not a reason to deny the Commissioner an examination order.[15]
[15]R v Independent Broad-Based Anti-Corruption Commissioner (2016) 329 ALR 195, 205 [48]; Commissioner of the Australian Federal Police v McGlone [2016] NSWCA 103 (‘McGlone’), [122]-[124]; S 319(2)(a) & (b) of the Act
(h) There must be a real (not speculative or theoretical) risk to the administration of justice in the conduct of a criminal trial to justify the refusal of an application for an examination under s 180.[16]
(i) An examination can only be conducted consistent with the objects of the Act – to obtain information for proceedings instituted under the Act.[17]
(j) In the event that one of the accused are convicted, all of the property restrained under s 18 of the Act will be liable to automatic forfeiture under s 92, unless excluded under s 94: this is the ‘conviction based confiscation regime’.[18]
[16]Lee (No.1) (2013) 251 CLR 196, 319 [336] - 320 [337]; Zhao (2015) 255 CLR 46 [30] in relation to a forfeiture orders; McGlone [2016] NSWCA 103, [49]-[57], [70], [89]-[91] in relation to examination orders.
[17]Lee (No.1) (2013) 251 CLR 196, 317 [327] – 318 [328].
[18]See the description in the Explanatory Memorandum, Crimes Legislation Amendment (Proceeds of Crime and Other Measures) Bill 2015.
Analysis
Before I go to the competing arguments, I think it helpful to refer to a couple of matters which distinguish this case from several others concerning compulsory examinations under Chapter 3 of the Act.
First, and perhaps most importantly, this application does not involve requiring a person charged with an offence, or suspected of committing an offence, to participate in an examination.[19]
[19]As in Lee (No. 1) (2013) 251 CLR 196.
Second, although the decisions relating to forfeiture under the Act (or its analogues) concern a different subject matter, aspects of the principles enunciated in such cases may be relevant to an application for an examination order. Usually these statements of principle are relied upon where the potential examinee is either a suspect or has been charged with an offence. Of course, any propositions emerging from such authorities need to be considered in the light of the statutory framework of Chapter 3 examination orders, particularly so in light of the 2016 Amendments.
Third, the 2016 Amendments to s 266A are significant. Whilst, like its predecessor, it permits disclosure of evidence obtained on examination in criminal proceedings,[20] the amended section, s 226A(2)(b),[21] acknowledges the court’s ability to prevent direct or derivative use of material obtained by a prosecuting authority (and other public officials and organisations identified in the table) in the course of an examination.
[20]McGlone [2016] NSWCA 103 [92]-[95].
[21]See [34] above.
Is the application an abuse of process or the subject of an issue estoppel?
Abuse of process
Kaur’s counsel contended that the application for an examination order was an abuse of process as:
(a) the existence of the consent orders precluded an examination under s 180; and
(b) it was made for an improper purpose namely evidence gathering for the purpose of the Kaur and Arora trial.
Abuse of process: principles
In Rogers v The Queen,[22] McHugh J observed that, whilst the abuse of process categories are not closed, many cases involving an abuse fall into one of three categories: invoking court procedures for an illegitimate purpose, using court procedures in a manner unjustifiably oppressive to one of the parties, or using court procedures to bring the administration of justice into disrepute.
[22](1994) 181 CLR 251, 286 cited with approval in Moti v The Queen (2011) 245 CLR 456, 463-464 [10].
In Kermani v Westpac Banking Corporation,[23] Robson AJA set out the indicia in determining an abuse of process application:
[23](2012) 36 VR 130, 153–5 [97] (Robson AJA, Neave and Harper JJA agreeing) (‘Kermani’).
The guiding considerations are oppression and unfairness to the other party to the litigation and concern for the integrity of the system of administration of justice. Regard may be had to:
(a)the importance of the issue in and to the earlier proceeding, including whether it is an evidentiary or ultimate issue;
(b) the opportunity available and taken to fully litigate the issue;
(c) the terms and finality of the finding as to the issue;
(d) the identity between the relevant issues in the two proceedings;
(e)any plea of fresh evidence, including the nature and significance of the evidence and the reason why it was not part of the earlier proceeding;
(f)the extent of the oppression and unfairness to the other party if the issue was re-litigated and the impact of the re-litigation upon the principle of finality of judicial determination and public confidence in the administration of justice; and
(g)an overall balancing of justice to the alleged abuser against the matters supportive of abuse of process ...[24]
[24]Ibid.
His Honour (sitting in the trial division of this Court) in Timbercorp Finance Pty Ltd (in liq) v Collins[25] returned to the subject and said:
To them must be added two further propositions. The first was mentioned by me elsewhere in Kermani: ‘[i]n considering abuse of process where second proceedings are taken raising the same or similar issues, it is not necessary that the plaintiffs or claimants be the same, if they are otherwise connected’. The second directs attention to any applicable statutory context, and was articulated by Brennan J in Walton v Gardiner as follows: ‘[t]he administration of justice ... is the administration of justice according to law including, of course, statutory law’.[26]
[25][2015] VSC 461.
[26]Ibid [219].
In Tomlinson v Ramsey Food Processing Pty Ltd,[27] French CJ, Bell, Gageler and Keane JJ said of an abuse of process:
Accordingly, it has been recognised that making a claim or raising an issue which was made or raised and determined in an earlier proceeding, or which ought reasonably to have been made or raised for determination in that earlier proceeding, can constitute an abuse of process even where the earlier proceeding might not have given rise to an estoppel. Similarly, it has been recognised that making such a claim or raising such an issue can constitute an abuse of process where the party seeking to make the claim or to raise the issue in the later proceeding was neither a party to that earlier proceeding, nor the privy of a party to that earlier proceeding, and therefore could not be precluded by an estoppel.[28]
Abuse of process: the effect of the consent orders
[27](2015) 323 ALR 1 (‘Tomlinson’).
[28]Ibid 8-9 [26].
Kaur’s counsel said that the discussions between the lawyers and the terms of the consent orders precluded any application for an examination of Kaur and that, in effect, the application was ‘an attempt to subvert the effects of the order made on 30 March 2016.’[29] Kaur’s written submissions on this point are as follows:
The fact that the parties signed a minute of proposed orders reflecting their agreement in relation to the stay application is important. Notwithstanding the Commissioner’s initial position that the stay was unopposed rather than consented to it is submitted that the signed minute could only operate effectively as a consent order. Consent orders give judicial sanction and coercive authority to what the parties have agreed between themselves. These orders convert a ‘settlement agreement’ into a judicial decision giving rise to considerations of res judicata, estoppel and abuse of process.[30]
[29]Submissions filed on behalf of Kaur, dated 27 May 2016, paragraph [29].
[30]Submissions filed on behalf of Kaur, dated 27 May 2016, paragraph [31].
This argument is misconceived. The consent orders do not, either by their words or by implication, prevent the granting of an examination order or provide the grounds for an assertion of abuse of process. All that the consent orders prevent is further action on those forfeiture and associated applications until the trial is concluded.
There is nothing in the terms of the consent orders, or the correspondence that preceded them, that should prevent the making of orders under Chapter 3. In particular, there was no agreement not to prosecute the examination application, as is suggested in Kaur’s submissions. Patently, the examination application remained on foot and Kaur’s lawyers were well aware of that fact, having been served with the application nine days before the orders were made. Contrary to Kaur’s submission, there was nothing in the correspondence prior to the making of the consent orders which indicated that the Commissioner was not going to proceed with its application: it had been issued and Kaur’s solicitors were on notice of its existence. It was open to the lawyers to enquire of the Commissioner whether he intended to proceed with the application. Nothing was done. It is not open to Kaur’s solicitors to now endeavour to prevent the Commissioner from conducting what is an appropriate and lawful step in identifying where these assets emanate from unlawful activities of Singh and Aurora, in circumstances where they took no action to raise this part prior to and at the time the consent orders were made.
As I have mentioned, it is clear that the Commissioner is entitled, as the Act provides, to endeavour to determine the nature of the relationship between Kaur and Singh – particularly in relation to the monies utilised to purchase the Preston property, as well as the transfers in and out of the various bank accounts controlled by Kaur, as deposed to by Hopkins.[31] It cannot be said that the use of the power to examine Kaur is unjustifiably oppressive – in fact, the very purpose of the examination is to establish the factual scenario in relation to the restrained property. Moreover, in no way does an order for examination bring the administration of justice into disrepute.[32]
[31]See [25] above.
[32]See [49] above.
Further to this, the statutory regime is inconsistent with the suggestion that an examination prior to the expiry of the stay order constitutes an abuse of process. The examinations, and proceedings generally under Chapter 3, enhance the Commissioner’s armour in relation to evidence gathering for the hearing of the forfeiture and associated applications.[33] Sections 52, 76 and 79A make it clear that such examinations should occur a reasonable time before an exclusion or compensation application.
[33]Lee (No.1) (2013) 251 CLR 196, 317 [327] - 318 [328].
In relation to forfeiture orders, T Forrest J said in Commissioner of Australian Federal Police v Dong Hua International Investments Pty Ltd:[34]
[34][2015] VSC 748. See also the appeal, [2016] VSCA 15 [25].
I am not persuaded that the structure of the Act requires forfeiture applications to be determined before any examinations take place. In substance, the respondents argued that the expression unius est exclusio alterius principle of statutory construction ought apply. Because certain types of applications may not proceed until the Commissioner has had a reasonable opportunity to conduct examinations, in the absence of this type of qualification applying to a forfeiture application, Parliament must have intended a different procedural scheme to apply. The argument then proceeds that I ought infer that Parliament intended to prohibit examinations being undertaken before forfeiture applications. To be fair to Mr Mitchell, in oral argument he did not put it quite so highly – ‘it is an indication from Parliament that (examinations) are certainly not seen as necessary (before forfeiture applications) and it is an indication from Parliament that your Honour would tend to exercise the discretion (against making an examination order)’.
In my view, this contention is incorrect. Applications for:
(a)exclusion from a restraining order;
(b) exclusion from a forfeiture order;
(c) a compensation order;
(d) exclusion from forfeiture or conviction; and
(e) recovery of forfeited property;
are all applications brought by an interested party against the responsible authority (in this case the Commissioner). The relevant provisions that ensure the responsible authority has a reasonable opportunity to ‘conduct examinations in relation to the application’ do no more than allow the responsible authority sufficient time to apply for, and conduct, the relevant examination.
…
The respondents cited a passage from my judgment in Zhang:
fundamental notions of fairness dictate that where the state seeks to seize property the state or its agent ought provide some evidentiary basis for that extraordinary interference with proprietary rights before the proprietor ought be called upon to answer anything at all
as having an application to the timing of examination orders, which they argued should be deferred until after the Commissioner’s forfeiture application has been determined. The passage cited above was composed about a very specific set of circumstances. The Commissioner had not availed himself of the examination process but wished the respondents’ applications for exclusion to be heard as part of a single hearing along with the forfeiture application itself. In those circumstances, and where the respondents had not been charged with or convicted of any criminal offence, I considered it procedurally fair to require the Commissioner to proceed first with the forfeiture application relying on whatever evidence he had at his disposal. At no stage did I say, or intend to say, that the Commissioner’s pre-hearing evidence gathering processes, including through examination orders, ought be circumscribed in any way. It follows that the ‘evidentiary basis’ that I referred to in the passage above may be supplemented by the product of Part 3.1 examinations that have been conducted before the forfeiture hearings.[35]
[35]Ibid [25] – [29] (emphasis added).
There is nothing in the Act or its application by the courts that suggests that an examination should not be carried out where a forfeiture application is stayed. To the contrary, the Act envisages this kind of process – namely examinations being carried out expeditiously and prior to the hearing of the applications to determine the fate of the restrained property
In summary, the stay order is not inconsistent with the Commissioner exercising his right to examine Kaur. No abuse of process arises.
Abuse of process: potential improper use of the examination process
In paragraph [10] of the submissions of the Commissioner, the following is said of the purpose of the proposed examination:
Obtain information as to the possible connection between the activities of Ms Kaur and/or Pabla Investments Pty Ltd as purported owners of the [restrained] property and suspected activities of Mr Singh and Ms Arora.[36]
[36]See also [13] of the affidavit of Joanne Hopkins of 18 March 2016.
Both counsel for Kaur and Singh and Arora contend that this submission should be read as meaning that any information obtained in the course of the examination of Kaur will be used by the Commissioner to further the prosecution of Singh and Arora and thus amounts to an improper use of the material obtained.[37]
[37]See [38] above.
I do not read this submission in this light. It is perfectly proper for the Commissioner, in the context of proceedings under the Act which involve these three parties, to investigate their relationship and, more particularly, identify, if possible, the owners of the property and determine whether there is any relationship between the property and the asserted criminal activities of Singh and Aurora. This is necessary to further the Commissioner’s case under the non-conviction forfeiture regime.
The real thrust of the argument made against the Commissioner is that, whatever the meaning of [10] of the submission, in the absence of an undertaking as to the use of the examination material, any information obtained at the examination may be used improperly to further evidence gathering for the criminal trial of Singh and Arora. Whilst I do not necessarily share counsel’s scepticism or suspicion, one need look no further than Lee (No.2)[38] to see that this concern is not entirely fanciful.
[38]Lee v The Queen [2014] HCA 20 (‘Lee (No.2)’).
As things stand absent an order by the Court or an undertaking on the part of the Commissioner, the Act does not prevent dissemination of evidence given by Kaur at the examination hearing to the prosecuting authority under s 266. This is to be compared with the position of Singh and Arora who, if examined, would be entitled to direct use immunity by reason of s 198 of the Act.
Lee (No. 1)[39] involved compulsory examination orders of an accused under an analogue to the Act. In that case, Keane and Gageler JJ said:
[39](2013) 251 CLR 196.
We agree with the observation of French CJ and Crennan J in X7 v Australian Crime Commission that:
"It is critical to appreciate that the injunctive relief in Hammond was granted in circumstances where criminal proceedings were pending and the prosecution was to have access to evidence and information compulsorily obtained which could establish guilt of the offences, and which was subject only to a direct use immunity."
Hammond is illustrative of the proposition that a real risk to the administration of justice can arise where there is a real risk that the practical consequence of an exercise of a coercive statutory power would be to give to the prosecution in criminal proceedings "advantages which the rules of procedure would otherwise deny”. Hammond is not authority for the proposition that a real risk to the administration of justice necessarily, or presumptively, arises by reason only of the exercise of a statutory power to compel the examination on oath of a person against whom criminal proceedings have been commenced but not completed where the subject-matter of the examination will overlap with the subject-matter of the proceedings. The majority in X7 does not appear to us to have embraced such a proposition.[40]
Their Honours then went on to say:
The power of the Supreme Court to make such an examination order can be invoked only for the purpose of enabling the Commission to obtain information for use in the proceedings in which the order is sought. The administrative power of the Commission to apply for such an order would be used for an improper purpose, foreign to the CAR Act, were the Commission to seek to use that power for a purpose of determining whether criminal proceedings should be commenced or for a purpose of assisting in the conduct of contemplated or pending criminal proceedings. The same is true of the administrative power of the Commission to conduct an examination pursuant to an examination order: for the Commission to ask a question or seek the production of a document for such a purpose would be an abuse. [41]
[40]Ibid 315 [322].
[41]Ibid 317 [327] - 318 [328].
Crennan J said:
Recognition of the ancillary and purposive nature of an examination order directs attention to the nature and purpose of the principal proceedings in which such an order can be sought and made. The CAR Act is about recovering the fruits of criminal activity; that is why the principal proceedings are brought. The making of the confiscation order ultimately sought in the principal proceedings in which an examination order can be sought and made necessitates (in the case of an assets forfeiture order or a proceeds assessment order) a finding on the balance of probabilities of serious crime related activity or (in the case of an unexplained wealth order) a finding of a reasonable suspicion of serious crime related activity and a finding on the balance of probabilities of illegal activity. Information of use to the Commission in proceedings for a confiscation order will therefore always encompass information about the criminal activity alleged in the proceedings as the basis of the confiscation order sought.[42]
[42]Lee (No. 1) (2013) 251 CLR 196, 317-318 [328] (emphasis added).
Regardless of the characterisation of the submission of the Commissioner, I accept that material provided by Kaur on the examination may be relevant to the prosecution of Singh and Arora and capable of being used, at least derivatively, and possibly directly by the prosecuting authority absent restriction. This is clear from the contents of Hopkins’ 3 August 2015 affidavit which I set out at [25]. If such use occurred then it would be a clear abuse of process.
The 2016 Amendments now provide a solution to this identified risk. Section 266A(2)(b), set out at [34] acknowledges the power of the Court to make orders which will, in effect, quarantine any information obtained by the Commissioner from use (either direct or derivative) by the prosecuting authority in the criminal trial.
I propose to make an order pursuant to s 266A which will specifically limit the use of the examination material. This course is consistent with that taken recently by the NSW Court of Appeal in McGlone where the potential examinee was the wife of an accused and the Commissioner proffered an undertaking relating to non-disclosure of examination material to the prosecuting authority.[43]
[43]McGlone [135].
Subject to hearing from counsel the order will be in the following terms:
That the Commissioner of the AFP is prohibited from disclosing any information to the Commonwealth Director of Public Prosecutions, his employees or agents arising out of the examination of Kaur pursuant to s 180 and/or s 180A of the Act.
Estoppel by reason of the consent orders
Counsel for Kaur argued that the principle established inPort of Melbourne Authority v Anshun[44] should be applied to this case as it ‘concerns an attempt to examine a person in relation to material which the parties have agreed by a prior agreement to only raise during subsequent proceedings’.[45]
[44](1981) 147 CLR 59 (‘Anshun’).
[45]Submissions filed on behalf of Kaur, dated 27 May 2016, paragraph [33].
The source of what is now known in this country as Anshun estoppel is the old English decision of Henderson v Henderson.[46]
[46](1843) 67 ER 313.
In Anshun,[47] the High Court said:
... there will be no estoppel unless it appears that the matter relied upon as a defence in the second action was so relevant to the subject matter of the first action that it would have been unreasonable not to rely on it. Generally speaking, it would be unreasonable not to plead a defence if, having regard to the nature of the plaintiff’s claim, and its subject matter it would be expected that the defendant would raise the defence and thereby enable the relevant issues to be determined in the one proceeding.
... we need to recall that there are a variety of circumstances, some referred to in the earlier cases, why a party may justifiably refrain from litigating an issue in one proceeding yet wish to litigate the issue in other proceedings, eg expense, importance of the particular issue, motives extraneous to the actual litigation, to mention but a few…[48]
[47](1981) 147 CLR 589.
[48]Ibid 602 – 603.
Then recently in Tomlinson[49] the High Court said:
The third form of estoppel is now most often referred to as "Anshun estoppel", although it is still sometimes referred to as the "extended principle" in Henderson v Henderson. That third form of estoppel is an extension of the first and of the second. Estoppel in that extended form operates to preclude the assertion of a claim, or the raising of an issue of fact or law, if that claim or issue was so connected with the subject matter of the first proceeding as to have made it unreasonable in the context of that first proceeding for the claim not to have been made or the issue not to have been raised in that proceeding. The extended form has been treated in Australia as a "true estoppel" and not as a form of res judicata in the strict sense. Considerations similar to those which underpin this form of estoppel may support a preclusive abuse of process argument..[50]
[49]Tomlinson (2015) 323 ALR 1.
[50]Ibid [22].
Finally, in June this year, the Court of Appeal in Timbercorp Finance Pty Ltd (in liq) v Collins said of the Anshun test:
The test for the application of Anshun estoppel involves an assessment of the conduct of the party sought to be estopped in a later proceeding in not advancing a claim or defence in the earlier proceeding and whether it should be said that it was unreasonable of the party not to have advanced that claim or defence. In Gibbs v Kinna, Ormiston JA drew attention to the significance of the double negative embodied in the Anshun test. The issue was not whether it would have been reasonable to make some claim or advance some defence in the earlier proceedings. Rather, ‘the issue is whether it was unreasonable to defer reliance upon the defence or cause of action’ in the earlier proceeding. In the same case, Kenny JA said:
to decide whether or not it was unreasonable for a plaintiff not to litigate closely related issues in the one proceeding requires consideration of all the relevant facts, including the character of the previous proceeding, the scope of any pleadings, the length and complexity of any trial, any real or reasonably perceived difficulties in raising the relevant claim earlier, and any other explanation for the failure to raise the claim previously.
A similar emphasis on ‘unreasonableness’ appears in the extract from the joint judgment in Tomlinson. In Meriton Apartments Pty Ltd v Industrial Court (NSW), Handley AJA (with whom Tobias JA agreed) said: ‘[t]he Anshun test is based on the reasonableness or otherwise of the conduct of a litigant in earlier proceedings’. This observation, preceding the relevant passage from Anshun, was plainly not intended to express any different test.[51]
[51]Timbercorp Finance Pty Ltd (in liq) v Collins [2016] VSCA 128, [140].
This is not a case of Anshun estoppel, which operates when a party unreasonably fails to raise an issue during the course of a proceeding and usually at the trial of the proceeding.. It was not necessary or reasonable for the Commissioner to raise the issue of the examination application at the time of the making of the consent orders. There was no agreement by the Commissioner not to prosecute the examination application. To the contrary, as I have mentioned, both parties were aware at the time of making the consent orders that the examination application remained on foot. There was always the prospect, consistent with the terms of the Act, of the Commissioner seeking to examine Kaur under ss 180 or 180A.
Moreover, the suggested Anshun estoppel is inconsistent with the statutory scheme which envisages a number of steps in the process laid down by the Act. As I described earlier, the structure of the Act and decisions applying the provisions of Chapter 3 demonstrate that the examination process (as an evidence gathering tool available to the Commissioner) invariably precedes forfeiture and associated applications. The Act contemplates a tiered process as part of the non-conviction based confiscation regime of which examinations are a precursor to the forfeiture and associated applications.
Discretionary considerations
In Commissioner of Australian Federal Police v Mah,[52] as to the matters that might influence the exercise of the discretion to grant an examination order, Dixon J:
[52](2014) 242 A Crim R 184.
Having regard to the purpose and structure of the statutory scheme, I consider that the discretion whether to grant an examination order is conditioned by:
(a)the proposed examinee and the subject matter of the proposed examination;
(b)whether there are material investigations to be carried out by that process that would inform applications under that Act;
(c) the circumstances of the restraining order that is in force;
(d)whether there is an application to set aside or revoke the restraining order and, if so, the basis for and and merits of that application;
(e)the nature and basis for the suspicions that founded the application for the restraining order; and
(f)whether there are other applications, such as for forfeiture or exclusion.[53]
[53]Ibid 191 [28].
In my view, for the following reasons, there is no good reason not to permit Kaur to be examined pursuant to ss 180 or 180A of the Act.
First, Kaur is not the subject of any criminal charges and there is no suggestion that there charges will be laid against her. No question of oppression or self-incrimination arises.
Second, the orders which I propose to make set out at [70] in relation to dissemination of the examination material will preclude any misuse of the information by the prosecuting authority.
Third, there is a potential forensic prejudice to Kaur in relation to answers compulsorily given during the examination being used in her claim for exclusion and compensation orders. However, the Act, by ss 266A(3) and (4) specifically permits such use.
Fourth, several of the recent amendments to s 319 set out at [35] highlight the considerations of expedition, cost and inconvenience to the Commonwealth when determining whether to grant a stay of a forfeiture or associated application.
In the explanatory memorandum, the following was said of s 319(2):
A successful stay application will enable a person to delay the determination of the forfeiture proceedings until their criminal trial is complete. Such a delay would have flow on effects on the availability of evidence, would impede the operation of the non-conviction based scheme and frustrate the objects of the POC Act. The ground on which a stay is not to be granted are designed to prevent a respondent from claiming merely a generalised risk of prejudice to support a stay of proceedings.
The considerations underpinning this provision, while admittedly tangential to an examination application or orders under s 180/180, nevertheless, when combined with the stated purposes of the Act, demonstrate that expediency is a relevant consideration in the application of the Act, including the evidence gathering provisions of Chapter 3.
Fifth, the evidence of Hopkins, which I have set out at [25], discloses that there is a close relationship between Kaur and her son, Singh, in relation to some of the restrained property and its use. The trust property is nominally controlled by Kaur, with Singh and Arora as the nominated beneficiaries. There have been significant transfers of money between accounts controlled by both, and Singh is a signatory to one of the Bankwest accounts. It could readily be assumed that Kaur can provide insight as to the transfer of funds, the use of the bank accounts and the operations of the commercial property and the trust.
Sixth, the fact that there is no demonstrable pressing need (and that the property has been ‘frozen’) for an examination does not mean that it should not be held promptly. I accept the Commissioner’s submission that the sooner an examination of Kaur can be held, the better. This will minimise the risk of diminishing memory and give the Commissioner time in which to conduct other enquiries relevant to the forfeiture and associated applications – including the procurement of documents. It means that the hearing of these applications can take place soon after the conclusion of the criminal proceedings, as opposed to a further delay whilst arrangements are made for an examination after the trial and then, quite possibly, further delay whilst the Commissioner makes additional inquiries.
Seventh, I do not accept that it is necessary for the Commissioner to demonstrate specific prejudice (for example, by reason of deteriorating health, potential departure from Australia, etc.) in order to obtain an order for examination. To the contrary, the objects of the Act and the complex non-conviction based confiscation regime set up under the Act, point squarely to examinations being carried out well before the forfeiture and associated applications. Absent a compelling reason, the examination should not be delayed. It should be made sooner rather than later. Decisions of other trial judges and Courts of Appeal in this state and New South Wales demonstrate that this is so in cases involving examinations of associates of the accused.[54]
[54]For example, see McGlone [2016] NSWCA 103 [133 – 135]; Commissioner of AFP v Cacu [2015] NSWSC 1232 [43].
Eighth, this application does not raise the spectre of a ‘multiplicity of proceedings’. There is no current application to examine Singh and Arora. The forfeiture and associated applications have been stayed.[55] It is, as I have just said, consistent with the structure set up under the Act.
[55]McGlone [2016] NSWCA 103 [127]-[131].
Ninth, I reject the argument of Kaur that the examination should be stayed because there is an overlap in the evidence likely to be given in the examination with that of the trial. As I have said, any potential risk of dissemination of material from the examination is obviated by the orders under s 266A(2)(b), which I have set out at [70].
Tenth, I reject the proposition that a conviction of Singh and Arora and the triggering of the conviction based process under the Act is a legitimate reason to deprive the Commissioner of the right to carry out an examination of Kaur prior to the trial of Sign and Arora. The Commissioner is entitled to carry out its information gathering in relation to Kaur’s exclusion and compensation applications as the Act envisages.
To my mind, there is no injustice to Kaur by ordering the examination to take place in the next couple of months. Nor is there any injustice to Singh and Arora, as long as the information obtained is quarantined and direct and derivative use of the material obtained precluded from disclosure to the prosecuting authority.
Conclusion
The Commissioner’s application should be granted subject to appropriate orders as to non-disclosure, which I have set out at [70].
1
9
0