Commissioner of Australian Federal Police v Li [No 2] - [2018] WASC 359

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   COMMISSIONER OF AUSTRALIAN FEDERAL POLICE -v- LI [No 2] [2018] WASC 359
CORAM:   ARCHER J
HEARD:   18 JULY 2018, with further submissions filed on 2 AUGUST & 22 AUGUST 2018
DELIVERED          :   21 NOVEMBER 2018
FILE NO/S:   CIV 2856 of 2015
BETWEEN:   COMMISSIONER OF AUSTRALIAN FEDERAL POLICE
Applicant
AND
FEI LI
First Respondent
GLOBAL FOREX (PERTH) PTY LTD
Second Respondent
JUN TANG
Third Respondent
YI LI
Fourth Respondent

Catchwords:

Application to reject statements sought to be tendered under s 79C of the Evidence Act 1906 (WA) - Application to set aside an examination order made under s 180 of the Proceeds of Crime Act 2002 (Cth)

Legislation:

Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth)
Criminal Code 1995 (Cth)
Evidence Act 1906 (WA)
Proceeds of Crime Act 2002 (Cth)
Rules of the Supreme Court 1971 (WA)

Result:

Applications (by respondents) dismissed

Category: B

Representation:

Counsel:

Applicant	:	Mr G D Cobby
First Respondent	:	Mr E W L Greaves
Second Respondent	:	Mr E W L Greaves
Third Respondent	:	Mr E W L Greaves
Fourth Respondent	:	Mr E W L Greaves

Solicitors:

Applicant	:	Australian Federal Police
First Respondent	:	Kingdom Legal
Second Respondent	:	Kingdom Legal
Third Respondent	:	Kingdom Legal
Fourth Respondent	:	Kingdom Legal

Case(s) referred to in decision(s):

Beamish v The Queen [2005] WASCA 62
Coffman v The Queen [2010] WASCA 54; (2010) 202 A Crim R 375
Commissioner of Australian Federal Police v Mah [2014] VSC 262; (2014) 242 A Crim R 184
Commissioner of the Australian Federal Police v McGlone [2016] NSWCA 103
Commissioner of the Australian Federal Police v Treptower [2018] NSWSC 677
Commissioner of the Australian Federal Police v Wen [2017] VSC 391; (2017) 322 FLR 32
McKay v Commissioner of Main Roads (No 2) [2010] WASC 153
Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24
Mohammadi v Bethune [2018] WASCA 98
Mouritz v Hegedus (Unreported, WASCA, Library No 990188A, 19 April 1999)
Nguyen v Commissioner of the Australian Federal Police [2014] QCA 293; (2014) 292 FLR 10
Rayney v The State of Western Australia [No 9] [2017] WASC 367

ARCHER J:

Introduction

The Commissioner of the Australian Federal Police brought an originating motion for a restraining order (restraint proceedings) pursuant to s 18 of the Proceeds of Crime Act 2002 (Cth). The property sought to be restrained was cash (more than $300,000), funds in a bank account and 12 Robinson Avenue, Perth (the Premises). The motion also sought that the property be forfeited to the Commonwealth at a future date pursuant to s 47 of the Proceeds of Crime Act (forfeiture application).
Restraining orders were made in relation to the property. The Commissioner now seeks to pursue the forfeiture application. The respondents have raised two issues in relation to evidence the Commissioner proposes to adduce in the substantive hearing of the forfeiture application (forfeiture hearing).
Before outlining the issues, it is necessary to explain the background to the forfeiture application.

Background

The second respondent (Global Forex) carried on a money remittance and currency exchange business from the Premises. The first respondent, Mr Fei Li, is a director of Global Forex and at the relevant times[1] was responsible for the day to day conduct of its business.
[1] At least since about March 2013.
The third respondent is the first respondent's mother. She left Australia on 11 March 2013 and has not since returned.
The fourth respondent is the first respondent's father. He was, at all material times, a director of the second respondent and the holder of all of the issued shares in the second respondent. He left Australia on 28 May 2012 and has not since returned.
At all material times, the third and fourth respondents were the registered proprietors of the Premises.
The Commissioner's allegations are based on a number of occasions in 2015 on which the first respondent caused Global Forex to remit funds to various accounts and to report the remittals to the Australian Transaction Reports and Analysis Centre (AUSTRAC).
The respondents summarised the underlying facts in this way.[2] A Mr Shi had a significant amount of cash that he wanted to transfer to the People's Republic of China. Mr Shi wanted to use Global Forex to do this. He engaged a Mr Wei‑Cheng Tseng to act as a chauffeur. At some point, a system developed whereby other people (named remitters) became involved in remitting Mr Shi's money. Those remittals were conducted in the names of the named remitters, rather than in Mr Shi's name. There were seven named remitters involved in the relevant transactions.
[2] ts 145 ‑ 146.
The Commissioner alleges the following. In relation to each remittal, Mr Shi attended the Premises in the company of Mr Tseng and one or more of the named remitters. None of the named remitters handed money to the first respondent. On some occasions, Mr Shi handed money to the first respondent. None of the named remitters were asked questions. On each occasion, the first respondent did not ask anyone present to state the purpose of the remittance. The first respondent caused Global Forex to record the purpose of each remittal as 'personal reasons'.
The respondents admit that the remittals were made, but puts 'the Commissioner to strict proof' of the circumstances of the remittals.[3]
[3] Respondent's Amended Statement of Facts in Opposition to the Applicant's Application for Forfeiture filed 20 July 2018 [11] ‑ [15].
Each of the named remitters gave statements to the police about the remittals in which each was involved, evidencing the Commissioner's allegations as to the circumstances of the remittals.
A criminal trial was held in late 2016, in which it was alleged that the first respondent had dealt with money when it was reasonable to suspect that the money was the proceeds of crime, contrary to s 400.9(1) of the Criminal Code Act 1995 (Cth) sch 1 (Criminal Code). In the trial, the Commonwealth ran its case on the basis that the deeming provision in s 400.9(2)(ba) applied. That provision deems that it is reasonable to suspect that the money is the proceeds of crime where the conduct involves an offence against s 139 of the Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006 (Cth) (Anti‑Money Laundering Act).[4] At the end of the Commonwealth's case, a 'no‑case' submission was made. The learned trial judge upheld the submission on the basis that the deeming provision did not apply.[5]
[4] Section 139 of the Anti‑Money Laundering Act makes it an offence for a reporting entity to provide a designated service using a false customer name or on the basis of customer anonymity, if certain conditions are met.
[5] ts 142 ‑ 143. The learned trial judge concluded that the 'customer' in s 139 was not the source of the money or the person on whose behalf the money was being remitted, but was the person from whom the instruction to remit is accepted ‑ see trial transcript 453.
The Commissioner's allegations are not so confined. The Commissioner alleges that the first respondent and Global Forex breached s 400.9(1) of the Criminal Code by making the remittals in the alleged circumstances, not as a result of the deeming provision.
The Commissioner also alleges that the first respondent and Global Forex contravened s 136(1) of the Anti‑Money Laundering Act. That section makes it an offence to give reports to AUSTRAC knowing that the reports were false or misleading, or knowing that the reports omitted matters without which the reports were misleading.

The objection to the foreshadowed application to tender statements

The first issue raised by the respondents relates to the evidence of the seven named remitters. All of these witnesses are apparently out of the State or indeed out of the country. The Commissioner intends to have those witnesses give evidence at the forfeiture hearing if that is reasonably practicable and if undue delay, inconvenience or expense would not be caused by calling them as witnesses. If it is not reasonably practicable to call them as witnesses, the Commissioner intends to tender the witnesses' statements under s 79C of the Evidence Act 1906 (WA).
The respondents object to the Commissioner adducing the evidence under s 79C on the basis that it would cause undue prejudice to them. Section 79C of the Evidence Act gives the court the discretion to refuse to permit a statement to be tendered, even if all the pre‑conditions to admissibility are met, if the court is satisfied that the probative value of the statement is outweighed by, relevantly, the undue prejudice its admission would cause. The respondents have asked that I rule on this issue now, before they decide, for example, whether or not to make exclusion applications.
At this stage, it is not known which of the witnesses the Commissioner will be able to call to give evidence in person. Nor is it known whether, in relation to any witnesses the Commissioner does not call, the Commissioner will be able to establish that it was not reasonably practicable to secure their attendance. Despite this, both sides wanted me to determine whether, if none of the witnesses attended the forfeiture hearing, but the Commissioner was able to establish that it was not reasonably practicable to secure their attendance, there would be undue prejudice to the respondents if their statements were admitted into evidence.
If the answer to that question is no, there is value in the answer. If the answer is yes, it will be necessary to revisit this issue when it is known which witnesses the Commissioner is able to call. However, the various considerations and findings made at this stage will still be of some assistance in making that determination. Accordingly, I will answer the question.

The application to set aside the examination order

The second issue raised by the respondents relates to an examination of Mr Tseng. Mr Tseng was examined under s 180 of the Proceeds of Crime Act pursuant to an order made by Fiannaca J on 18 July 2016 (Examination Order). The respondents seek to set aside the Examination Order on the ground that 'it was obtained ex parte without notice to the respondents in circumstances that did not justify that course'.[6]
[6] Respondents' Submissions before the Court 18 July 2018 filed 18 June 2018 (Respondents' Submissions) [2.1].
The critical question that arises in relation to this application is whether the Examination Order was, in fact, made ex parte.
I will deal first with the objection to the tender of statements under s 79C of the Evidence Act.

Admissibility under s 79C of the Evidence Act

Section 79C of the Evidence Act relevantly provides:
(1)Subject to subsection (2), in any proceedings where direct oral evidence of a fact or opinion would be admissible, any statement in a document and tending to establish the fact or opinion shall, on production of the document, be admissible as evidence of that fact or opinion if the statement ‑
(a)was made by a qualified person; or
(b)directly or indirectly reproduces or is derived from one or other or both of the following ‑
(i)information in one or more statements, each made by a qualified person;
(ii)information from one or more devices designed for, and used for the purpose of, recording, measuring, counting or identifying information, not being information based on a statement made by any person.
(2)Where a statement referred to in subsection (1) is made by a qualified person or reproduces or is derived from information in a statement made by a qualified person, that person must be called as a witness unless ‑
(a)he is dead; or
(b)he is unfit by reason of his bodily or mental condition to attend or give evidence as a witness; or
(c)he is out of the State and it is not reasonably practicable to secure his attendance; or
(d)all reasonable efforts to identify or find him have been made without success; or
(e)no party to the proceedings who would have the right to cross‑examine him requires him to be called as a witness; or
(f)having regard to the time which has elapsed since he made the statement and to all the circumstances, he cannot reasonably be expected to have any recollection of the matters dealt with in the statement; or
(g)having regard to all the circumstances of the case, undue delay, inconvenience or expense would be caused by calling him as a witness; or
(h)he refuses to give evidence.
(2a)Notwithstanding subsections (1) and (2), in any proceedings where direct oral evidence of a fact or opinion would be admissible, any statement in a document and tending to establish the fact or opinion shall, on production of the document, be admissible as evidence of that fact or opinion if ‑
(a)the statement is, or directly or indirectly reproduces, or is derived from, a business record; and
(b)the court is satisfied that the business record is a genuine business record.
(2b)Where a statement referred to in subsection (2a) is made by a qualified person that person shall not be called as a witness unless the court orders otherwise.
(3)This section makes a statement admissible notwithstanding ‑
(a)the rules against hearsay; or
(b)the rules against secondary evidence of the contents of a document; or
(c)that the person who made the statement or the person who made a statement from which the information in the statement is reproduced or derived is a witness in the proceedings, whether or not he gives evidence consistent or inconsistent with the statement; or
(d)that the statement is in such a form that it would not be admissible if given as oral evidence,
but does not make admissible a statement which is otherwise inadmissible.
(4)Notwithstanding subsections (1), (2) and (2a), in any criminal proceedings a statement in a document which was made in the course of or for the purpose of ‑
(a)the investigation of facts constituting or being constituents of the alleged offence being dealt with in the proceedings; or
(b)an investigation which led to the discovery of facts constituting or being constituents of the alleged offence; or
(c)the preparation of a defence to a charge for any offence; or
(d)the preparation of the case of the prosecution in respect of any offence,
shall not be rendered admissible as evidence by this section.
(5)For the purposes of this section a court may ‑
(a)for the purpose of deciding whether or not a statement is admissible as evidence, draw any reasonable inference from the form of contents of the document in which the statement is contained, or from any other circumstances;
(b)in deciding whether or not a person is fit to attend or give evidence as a witness, act on a certificate purporting to be the certificate of a registered medical practitioner.
(6)For the purposes of this section a court may, in its discretion, reject a statement notwithstanding that the requirements of this section are satisfied with respect thereto, if the court is of the opinion that the probative value of the statement is outweighed by the consideration that its admission or the determination of its admissibility ‑
(a)may necessitate undue consumption of time; or
(b)may create undue prejudice, confuse the issues, or in proceedings with a jury mislead the jury.
It can be seen that, under s 79C, documents that contain statements tending to establish a fact or opinion which would have been admissible if given in oral evidence can be admitted as evidence of that fact or opinion if certain criteria are met.
It was not in dispute that each witness is a 'qualified person'.[7] The witness statements are 'business records'.[8] Therefore, under s 79C(2b), the witness should not be called unless the court otherwise orders. The party seeking to tender such a business record does not have to prove, for example, that it is impractical to secure the witness' attendance at the hearing. However, the court has a discretion to refuse to allow the statement to be admitted into evidence under s 79C(6).
[7] Defined in s 79B.
[8] Beamish v The Queen [2005] WASCA 62 [159] (and see also [237]) and Rayney v The State of Western Australia [No 9] [2017] WASC 367 [204], [209] ‑ [210].
Even though the witness statements are 'business records', the Commissioner does not rely on this pathway to admission. The Commissioner has said he will only seek to adduce a statement from a witness not called to give oral evidence if either of the following two criteria are met. First, that the witness is out of the State and it is not reasonably practicable to secure their attendance (s 79C(2)(c)). Second, that, having regard to all of the circumstances of the case, undue delay, inconvenience or expense would be caused by calling them as a witness (s 79C(2)(g)).
If the Commissioner establishes that one or both of those criteria have been met in relation to a particular witness, the statement of that person will be admissible unless the court exercises the discretion under s 79C(6) to exclude it. The court may exercise that discretion if it is of the opinion that the probative value of the statement is outweighed by, relevantly, the consideration that the admission of the statement 'may create undue prejudice'.
The respondents submit that they would suffer undue prejudice if the evidence of the witnesses could be adduced without the witnesses being called.

Undue prejudice

The proper approach to the exercise of the discretion under s 79C(6) was helpfully summarised by Beech J (as his Honour then was) in McKay v Commissioner of Main Roads (No 2).[9] I gratefully adopt his Honour's summary.
[9] McKay v Commissioner of Main Roads (No 2) [2010] WASC 153 [73] ‑ [78].
At [73] ‑ [74], his Honour said (citations omitted):
The starting point is that it is a discretion to reject. Thus once the requirements of the section are otherwise satisfied, the prima facie position is that the statement is to be admitted. The discretion to reject only arises if the court forms the opinion that the probative value of the statement is outweighed by, relevantly, the consideration that its admission may necessitate undue consumption of time or may create undue prejudice.
In considering whether any undue prejudice exists, regard must be had to the interests of both parties to the proceedings.

Inability to cross‑examine

An inability to cross‑examine the maker of a statement may, but not necessarily will, give rise to undue prejudice.[10] The inability to cross‑examine was the sole ground identified by the respondents as to why the statements should not be admitted in evidence. The respondents accepted that this did not inevitably mean there would be undue prejudice.[11]
[10] Coffman v The Queen [2010] WASCA 54; (2010) 202 A Crim R 375 [30]; Mouritz v Hegedus (Unreported, WASCA, Library No 990188A, 19 April 1999) 17; McKay [75].
[11] ts 148.
Two of the named remitters gave evidence in the criminal trial and were cross‑examined by Mr Greaves, counsel in these proceedings, on behalf of the first respondent. Mr Greaves initially sought to persuade me that his cross‑examination had not dealt with the scope of the matters that would be relevant in the forfeiture proceedings. However, he later said 'I wouldn't agree that I covered the field completely, but I covered it well. I would accept that'.[12]
[12] ts 144.
Later still, however, Mr Greaves submitted that he did not attack the credibility of those witnesses for forensic reasons, but might wish to do so in the forfeiture proceedings. He said he might want to put to them that they themselves had committed money laundering offences. Mr Greaves also said he might want to ask them, in effect, if the police had given them any incentives to make false statements.[13] Mr Greaves said:[14]
What I'm suggesting is that a possible hypothesis - and I put it no more highly than that - is that police may have said to one or more of these remitters, 'We need a statement from you and you would want to help us because you, yourself, are in the poo a bit. You help us, we will help you,' and then that's what has happened, because the Commonwealth DPP can't indict people who haven't been charged. The Commonwealth DPP can't indict people if a breach is not bought up to them by the police.
I want to be very clear, your Honour. These could sound like I'm making very serious allegations against the police officers involved, the WA Police officers involved in this case and I'm expressly not. I'm not making any allegation at all.
[13] ts 155 ‑ 160.
[14] ts 160.

Not surprisingly, Mr Greaves said it was not his strongest point.[15]
[15] ts 160.
The other five named remitters have not been cross‑examined.
The prejudice to the Commissioner if the statements are not permitted to be tendered is that the Commissioner will be deprived of the benefit of whatever probative value the statements have.

Other factors

Beech J identified some other factors that may be relevant to the exercise of the discretion:[16]
(a)The extent to which the statement in the document is ambiguous and requires clarification or explanation: Cavill [41] (albeit said in a somewhat different context);
(b)whether the statement was prepared by the tendering party's lawyers as a witness statement and was intended for use by them in an adversarial context: Shmee Pty Ltd v Bresham Investments Pty Ltd [2008] VSC 291 [21];
(c)whether the statement seeks to provide evidence of a central issue in the case: Shmee [21]; and
(d)whether the other party is or is not in a realistic position to controvert the proposed evidence by firsthand evidence of their own: Shmee [19].
[16] McKay [78].
I will refer to those factors by these alphabetical designations.
Mr Greaves submitted that factor (a) was significant. He asserted that the statements were ambiguous, and therefore required clarification or explanation.[17] After some exploration of this assertion, he accepted the statements were not ambiguous, but said that they did not address matters of significance. In particular, he said that the statements did not say who physically handed the remittal form to the first respondent. He also said that some of the statements were silent as to whether or not the named remitter saw any cash.[18]
[17] ts 149.
[18] ts 150 ‑ 152.
This does not give rise to any undue prejudice to the respondents. The absence of these details does not make the statements ambiguous or misleading in any way. Further, the first respondent is able to give evidence about the details. The submission appears to amount to a proposition that, if the respondents are denied the chance to elicit evidence that may or may not be helpful, and about matters on which the first respondent could give evidence, the Commissioner should not be allowed to adduce otherwise admissible evidence, even though the Commissioner has proved that it was not reasonably practicable to secure the witness' attendance at the forfeiture hearing or that undue delay, inconvenience or expense would be caused by calling them as a witness. I do not accept this proposition.
Mr Greaves also relied on factor (b). However, in relation to that factor, the concern expressed by Vickery J in Shmee arose due to the nature of the litigation. The proceedings were adversarial civil proceedings. Vickery J was concerned that, given the 'reality of the forensic context in which the statement was produced', matters of relevance may have been omitted. Further, the defendants in that case were not in a position to contradict the proposed evidence.[19]
[19] Shmee Pty Ltd v Bresham Investments Pty Ltd [19] ‑ [22].
By contrast, in this case there is no reason to suppose, even if the State police who took these witness statements were improperly motivated, that they would have even known what matters would be useful to omit. Indeed, Mr Greaves said that it was most likely that the police did not think that the identity of the person who physically handed the remittal form to the first respondent was of any moment.[20]
[20] ts 169.
Mr Greaves later accepted that the evil at which factor (b) was aimed did not apply in this case. He said that he sought to expand it, by reference to the policy that underlies factor (b), to statements that may have been prepared by police officers who were ignorant of the matters that would be relevant to possible defences.[21] I do not accept that the underlying policy supports this extension. Factor (b) is clearly aimed at the risk that witness statements will be manipulated so as to be misleading or so as to omit material damaging to the party preparing the statements or helpful to their opponent.
[21] ts 176.
In relation to factor (c), Mr Greaves said the statements do go to a central issue, but did not discuss this factor further.[22] In my view, whether or not this factor gives rise to a risk of prejudice, and to which party, will depend upon the facts in each case. In this case, the fact that the statements go to an important part of the Commissioner's case demonstrates the significant prejudice the Commissioner would suffer if he was not permitted to tender the statements. The prejudice to the respondents is that they will not be able to cross‑examine two of the named remitters about their credibility and will not be able to cross‑examine the other remitters at all. However, the first respondent is able to give evidence in relation to the circumstances of the remittals, and the transactions themselves will be proved by the reports submitted by the first respondent to AUSTRAC. Overall, I consider that factor (c) does not support an exercise of the discretion to exclude the evidence.
[22] ts 153.
Mr Greaves accepted that factor (d) did not assist him in any substantial way. He submitted that it may be surmised that the first respondent would not remember the remittals as well as the witnesses because the activity was not unusual from his perspective.[23]
[23] ts 149.
I accept that the first respondent may not have as clear a recollection of the remittals as the witnesses. However, the remittals occurred in April and May of 2015. The criminal trial commenced on 28 November 2016. Although the criminal trial only related to the remittals on 29 April 2015, it may be expected that, at least in relation to those remittals, he would have been asked to recollect the events some time before the trial commenced.
Further, the first respondent did not seek to adduce any evidence of a lack of memory. Nor did he seek to adduce evidence that it was routine for multiple persons to attend for the purpose of a single remittal. In any event, it is to be expected that, if there were any unusual features of the remittals, he would remember them.
I consider that factor (d) does not support an exercise of the discretion to exclude the evidence.
I have set out above my analysis of the prejudice the respondents would suffer if the witnesses were not available for cross‑examination. I accept that the respondents will suffer some prejudice if none of the remitters are called. However, I do not consider that the prejudice will be 'undue'. This is particularly because the transactions themselves will be proved by objective evidence and the first respondent is able to give evidence about the surrounding circumstances.
I have set out above the prejudice the Commissioner would suffer if he was not permitted to adduce the evidence.
I have considered the factors listed in McKay and the overall context of this case. I have considered the combined weight of the various factors. In my view, even if none of the named remitters were called, the probative value of the statements would not be outweighed by the consideration that their admission may create undue prejudice to the respondents.
For these reasons, I reject the respondents' objection to the tendering of witness statements under s 79C. If the Commissioner proves at the forfeiture hearing that a witness is out of the State and it is not reasonably practicable to secure their attendance or that undue delay, inconvenience or expense would be caused by calling them as a witness, the Commissioner may tender the statement of that witness.

Setting aside the Examination Order

The second application made by the respondents was for an order setting aside the Examination Order made by Fiannaca J on the ground that it was 'obtained ex parte without notice to the respondents in circumstances that did not justify that course'.
The Commissioner accepted that the respondents were not given notice of the application for the Examination Order. However, the Commissioner contended that the Examination Order was not obtained 'ex parte', as the parties to the application for the Examination Order were the Commissioner and the proposed examinee Mr Tseng.
During the hearing of this application, the respondents asserted various matters that did not seem to relate to this issue. The respondents drew my attention to the fact that Fiannaca J appeared to be expecting the first respondent to be in attendance. The respondents criticised what Fiannaca J was told and the material to which his Honour was taken.[24] Ultimately, the respondents submitted that the Examination Order had been improperly obtained.[25] While these assertions were not relevant to whether the order was obtained ex parte, I should note that I do not accept there was any impropriety.
[24] ts 178 ‑ 185.
[25] ts 178 ‑ 191.
In the respondents' written submissions,[26] the respondents submitted that the Examination Order should be set aside pursuant to O 58 r 23 of the Rules of the Supreme Court 1971 (WA) (RSC). That rule permits me to set aside the Examination Order if it was made ex parte.[27] In oral argument, Mr Greaves said, if the Examination Order was made ex parte, I had the power under O 58 r 23 to set it aside and, if it was not ex parte, I had a residual inherent jurisdiction to set it aside.[28] After some exploration of the latter proposition, Mr Greaves conceded that I only had power to set aside the Examination Order if it was made ex parte.[29]
[26] Respondents' Submissions [30].
[27] It applies to orders in chambers by O 59 r 7.
[28] ts 192.
[29] ts 192 ‑ 194.
As I will explain, it was not made ex parte.

The legislative framework

As was recently said by the Court of Appeal in Mohammadi v Bethune,[30] '[s]tatutory construction requires attention to the text, context and purpose of the Act. While the task of construction begins and ends with the statutory text, throughout the process the text is construed in its context'.

Applications for examination orders

Proceeds of Crime Act

[30] Mohammadi v Bethune [2018] WASCA 98 [31]. See also all of [31] ‑ [36].

Section 180(1) of the Proceeds of Crime Act provides:
(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 …
Section 182 of the Proceeds of Crime Act provides:
(1)An examination order can only be made on application by the responsible authority for the principal order, or the application for a principal order, in relation to which the examination order is sought.
(2)The court must consider an application for an examination order without notice having been given to any person if the responsible authority requests the court to do so.
If an applicant satisfies the court that a restraining order is in force and that the purpose of the proposed examination is to ascertain relevant matters in furtherance of the objects of the Proceeds of Crime Act, prima facie the court should exercise its discretion and make an order for the examination.[31]

Rules of the Supreme Court

[31] Commissioner of the Australian Federal Police v Wen [2017] VSC 391; (2017) 322 FLR 32 [35].

Order 81F of the RSC relevantly provides:
1.Terms used
(1)In this Order, unless the contrary intention appears ‑
Act means the Proceeds of Crime Act 2002 of the Commonwealth;
section means a section of the Act.
(2)If a term used in this Order is defined in the Act, it has the same meaning in this Order as it has in the Act, unless the contrary intention appears.
2.Applications under Act, how to be made
(1)Any application that may be made under the Act must be made in accordance with this rule.
(2)This rule is subject to and does not affect the operation of section 17, 18, 19, 20, 26, 61, 136 or 163.
(3)An application that initiates proceedings in the Court in relation to a suspect or particular property -
(a)must be made -
(i)by notice of motion (Form No. 65) if no notice of the application is required to be given; or
(ii)otherwise by originating summons (Form No. 74);
and
(b)must be titled: In the matter of the Proceeds of Crime Act 2002 (Cwlth) and [name of the suspect concerned, or name of the owner of or a description of the property concerned]; and
(c)must call the person making the application the 'applicant'; and
(d)must call the person against whom the proceedings are initiated the 'respondent'.
(3A)An application that initiates proceedings in the Court cannot be filed electronically.
(4)An application in proceedings under the Act that have been initiated under subrule (3) -
(a)must be made by summons (Form No. 77); and
(b)must call the person making the application the 'applicant'; and
(c)must call the person entitled to respond to the application the 'respondent'.
(5)Unless the Court orders otherwise -
(a)an application for an order under the Act must be accompanied by an affidavit that states the facts and circumstances on which the application is based; and
(b)the application and the affidavit must be filed and served on the person against whom the order is sought.
(6)Subrule (5) does not apply to -
(a)an application under section 17, 18, 19 or 20 for a restraining order; or
(b)an application under section 48 for a forfeiture order; or
(c)an application under section 116 for a pecuniary penalty order; or
(d)an application under section 152 for a literary proceeds order,
against a person if the application is made at the time the person is convicted.
(7)Subrule (5) does not apply to an application for an order under the Act that is filed together with the written consent to the making of the order of every person whose consent the Court needs in order to make the order by consent.
(8)If under the Act a person applying for an order or exclusion is required to give written notice to the DPP of the grounds on which the order or exclusion is sought, the person must file a copy of the grounds with the application for the order or exclusion.
3.Service on DPP (Cwlth) in Perth
Service of an application under the Act and any document required to accompany the application on the DPP is effected if the application and document are served on the DPP's office in Perth.
4.DPP to file grounds for contesting application
If under the Act the DPP is required to give a person applying for an order or exclusion notice of any grounds on which the DPP intends to contest the application, the DPP must file a copy of the grounds at least 5 clear days before the date set for the hearing of the application.
5.Summons for directions
(1)If an application under the Act is made by originating summons, the applicant must apply by summons to the Court for directions within 7 days after the time limited for appearance.
(2)If the applicant does not comply with subrule (1), a respondent may apply to the Court for directions.
6.Court may give directions at any time
On the hearing of a summons for directions, or on any other application, or on its own initiative at any time, the Court may -
(a)inquire as to the persons who may be affected by the relief claimed and for the purpose of that inquiry direct any party to supply any information which the Court may require;
(b)give directions as to the persons to be added as parties as being interested in the relief claimed or to represent classes of persons so interested;
(c)direct that notice of the application be served on any person;
(d)give any other directions or make any other orders as may be necessary for the just and expeditious disposal of the proceedings.
Order 81F r 2(4), compared to r 2(3), indicates that, where restraint proceedings are on foot, it is intended that an application for an examination order be filed in the restraint proceedings.

Conduct of examination orders

Section 188 of the Proceeds of Crime Act provides:
(1)The examination is to take place in private.
(2)The approved examiner may give directions about who may be present during the examination, or during a part of it.

(3)These people are entitled to be present at the examination:
(a)the approved examiner;
(b)the person being examined, and the person's lawyer;
(c)the responsible authority;

(d)any person who is entitled to be present because of a direction under subsection (2).

Accordingly, those entitled to be present are limited to the examiner, the applicant, the examinee and the examinee's lawyer. Section 188 also allows the examiner to permit another person to be present. This would permit, for example, a translator or support person to be present if required.
Section 189 of the Proceeds of Crime Act provides:
(1)The lawyer of the person being examined may, at such times during the examination as the approved examiner determines:
(a)address the approved examiner; and
(b)examine the person;
about matters about which the approved examiner, or the responsible authority, has examined the person.
(2)The approved examiner may require a lawyer who, in the approved examiner's opinion, is trying to obstruct the examination by exercising rights under subsection (1), to stop addressing the approved examiner, or stop his or her examination, as the case requires.
It can be seen that the rights of the examinee's lawyer are strictly controlled. The lawyer may make submissions or question the examinee at such times as the examiner determines, subject to the examiner's power to stop the lawyer from exercising those rights. However, a person given leave to be present under s 188 has no rights at all. This is consistent with the person given leave being a person who is there to facilitate the process in some way, such as a translator or support person.
Unless a respondent in the restraint proceedings is also the examinee, they have no right to receive a copy of the record of the examination.[32]

Use of evidence obtained in an examination

[32] Proceeds of Crime Act, s 191(3), s 193(1).

By s 318A(2) of the Proceeds of Crime Act, the transcript of an examination is admissible at trial provided one of various conditions are proved. The condition which the Commissioner intends to prove in this case is that Mr Tseng is outside Western Australia and that it is not reasonably practicable to secure his attendance.
There is no discretion to exclude evidence admissible under s 318A(2), although the weight to be given to that evidence is to be assessed by the court.[33] In addition, objection can be taken to statements made at the examination.[34]

Analysis

Authorities

[33] Proceeds of Crime Act, s 318(4).

[34] Proceeds of Crime Act, s 318B(3).

Mr Greaves said that 'by far the strongest bow' in his argument was the decision in Nguyen v Commissioner of the Australian Federal Police.[35] He said that 'the case of Nguyen stands as authority for the proposition that a respondent to the substantive proceedings is a proper party to an examination application of someone else'.[36] He relied upon [29] of that decision in which the court set out an argument made by the Commissioner in the context of a court considering an application for an examination order that had been made without notice under s 188(2). The Commissioner had argued that 'if the court concluded that fairness required notice to be given to the respondent or to a prospective examinee, the court could adjourn the application and require notice to be given'.[37]
[35] Nguyen v Commissioner of the Australian Federal Police [2014] QCA 293; (2014) 292 FLR 10; ts 208.
[36] ts 205.
[37] Respondents' Submissions at [33] and ts 206.

However, the court in Nguyen expressly stated it was not necessary to adjudicate on the Commissioner's arguments.[38] Nguyen is not an authority for the proposition that the respondent in the restraint proceedings is a proper party to an application for an examination order in relation to another person.
[38] Nguyen [31].
Finally, while it is difficult to see why what the Commissioner argued in another case could be relevant, the quoted argument was made in the context of defending the constitutional validity of s 182(2). The summary of the entirety of the Commissioner's argument indicates that the Commissioner was not advancing a position that the respondent in the restraint proceedings was a party to an application for an examination order.[39]
[39] See Nguyen [28]-[31], in particular the reference to notice being given subsequently to the examinee in [28].
The respondents cited a number of cases which reiterated the importance of procedural fairness. There is no doubting its importance. However, this begs the question of who is entitled to procedural fairness. It also begs the question of who are the parties to an examination order. I only have the power to set aside the Examination Order if it was made ex parte.
The respondents also cited cases that discussed the circumstances in which an examination order should be made ex parte and which noted that ex parte orders should not be made if fairness required notice to be given. However, the respondents were unable to identify any case in which a court discussed the propriety of making an examination order where notice had been given to the proposed examinee but no notice was given to the respondent in the restraint proceedings.[40] None of the cases to which I was taken addressed the issue of whether there was a requirement to notify the respondent in the restraint proceedings of an application for an examination order of a person other than themselves.[41] None of the cases addressed whether an application for an examination order on notice to the proposed examinee, but without notice to the respondent in the restraint proceedings, would be properly characterised as an ex parte application. I was told, in effect, that the issue has not previously been raised.
[40] ts 210, 245.
[41] ts 245.
One of the cases cited by the respondents, Commissioner of the Australian Federal Police v Treptower,[42] dealt with an application for an examination order in respect of which the proposed examinee had not been given notice of the application. The proposed examinee was alleged to have facilitated the provision of false information to a financial institution by another person (the principal). It was alleged that the principal obtained significant funds as a result of the false information. Button J refused to make the examination order ex parte. However, his Honour's reasons were exclusively addressed to the interests of the examinee. At no point did his Honour refer to any interest of the principal in being notified of the application.[43]

The Rules of the Supreme Court

[42] Commissioner of the Australian Federal Police v Treptower [2018] NSWSC 677.

[43] See, in particular, [2], [7], [10] ‑ [16]

Counsel for the Commissioner, Mr Cobby, submitted that O 81F r 2(5)(b) recognises that the only person who has a legitimate interest in an order that a person be examined under s 180 of the Proceeds of Crime Act is the person sought to be examined. Order 81F r 2(5)(b) requires the application for an examination order and the supporting affidavit to be served on the proposed examinee.
Mr Greaves accepted, after some discussion, that O 81F r 2(5)(b) refers to the proposed examinee. However, he said that, independently of that rule, it was necessary for the application to be served on the respondent in the restraint proceedings.[44] Mr Greaves submitted that O 81F was not a code.[45]
[44] ts 199 ‑ 200.
[45] ts 201.
In my view, O 81F is a code. Order 81F r 2 expressly prescribes the way in which applications must be made. However, I accept Mr Greaves' point to some extent. The fact that O 81F is a code does not mean that some other requirement may not exist independently of it. This, however, does not relate to the question of who are the parties to an application for an examination order.
The respondents sought to rely on the opening words of the form on which applications for examination orders are to be made. The required form is Form 77, entitled 'Summons (general form)'.[46] Form 77 commences with the words 'Let all parties concerned' attend the hearing. As noted earlier, it appears from O 81F that it was intended that an application for an examination order would be filed in the restraint proceedings. Therefore, the respondents said that the phrase 'Let all parties' can only be a reference to the parties named in the court header and it could not mean anything else.[47]
[46] At the time of the application for the Examination Order, Form 77 was slightly different to the current form, but the difference is not material.
[47] ts 207.
Form 77 cannot support the weight of this submission.
Form 77 is a standard form, expressed to be the general form for a summons. It is intended to provide a basic framework for applications by summons. It must be modified to fit each particular case.
Form 77, in its terms, refers to the parties in the header as 'Plaintiff' and 'Defendant'. In the restraint proceedings, the Commissioner is the applicant and the respondents are, self‑evidently, the respondents. Order 81F(4) requires an application for an examination order to call the applicant for the order 'the applicant' and the person entitled to respond 'the respondent'. No one, in an application for an examination order, is 'the plaintiff'.
In addition, Order 81F r 2(4) contemplates that the person 'entitled to respond' to an application made in restraint proceedings may be different to the person against whom the restraint proceedings are initiated. This is apparent from the requirement in r 2(3) to call the person against whom the restraint proceedings are initiated the 'respondent' in an application for restraining orders and the requirement in r 2(4) that, where an application is made in proceedings that have been initiated, the person entitled to respond to that application be called the 'respondent'.
Finally, by O 81F r 2(5)(b), the only person required to be served with the application for an examination order and the supporting affidavit is the proposed examinee.

The Proceeds of Crime Act

The proposed examinee has the right to be heard in relation to the application for the order. If an examination order is made, the proposed examinee has the right to have a lawyer with them during the examination and their lawyer is entitled to ask questions, subject to the examiner's powers of control.
By the express provision of s 188, unless the respondent in the restraint proceedings is the examinee, they have no right to attend the examination. The approved examiner might give a direction authorising a third party to be present under s 188(2), but there is no right to be present. Further, the respondent in the restraint proceedings has no right to receive a copy of the record of the examination.
Mr Greaves accepted all of this, but submitted this supported his argument that the respondent in the restraint proceedings needed to be given notice of an application for an examination order. This, he submitted, would allow the respondent in the restraint proceedings to attend the hearing of the application for an examination order and argue that they would not have a right to appear or ask questions if an examination order was made. Mr Greaves submitted that it would allow the respondent in the restraint proceedings to argue that the order should not be made because, for example, the evidence could be obtained in some other way, such as the proposed examinee attending the hearing and giving evidence in the usual way, or by an examination under O 38 of the RSC. Mr Greaves also submitted that the court might order that the examiner allow the respondent in the restraint proceedings to be present during the examination and ask questions. When asked if that had ever been done, he said he did not believe it had.[48]
[48] ts 203 ‑ 204, 238 - 240.
In essence, Mr Greaves' submission was that, because s 188 gives the respondent in the restraint proceedings no right to be present in an examination, they should be given notice of an application for an examination order so that they can argue that, because they are not entitled to be present in an examination, there should not be an examination. Mr Greaves submitted that the court should take into account the fact that the respondent in the restraint proceedings would not have a right to appear or ask questions if an examination order was made and that there were other methods by which evidence could be obtained in which they would have those rights.[49] In these reasons, I will refer to this as 'the proposed factor'.
[49] ts 238 ‑ 240.
I asked Mr Greaves whether a judge considering whether to grant an examination order would be permitted to have regard to the proposed factor, or whether it would be irrelevant. He said a judge could have regard to it.[50] I gave the parties leave to file written submissions on that issue, which I have now received.
[50] ts 238 ‑ 240.
As explained later, I have concluded that the Examination Order was not made ex parte. I therefore have no power to set it aside, even if I accepted the respondents' argument that the proposed factor is a relevant consideration. However, in deference to the submissions I have received, I will explain why I doubt that such a consideration could be relevant.

Is the proposed factor a relevant consideration to granting an examination order?

Section 180 of the Proceeds of Crime Act does not expressly state the factors to be taken into account. In Minister for Aboriginal Affairs v Peko-Wallsend Ltd,[51] Mason J[52] said (citations omitted):
[W]here a statute confers a discretion which in its terms is unconfined, the factors that may be taken into account in the exercise of the discretion are similarly unconfined, except in so far as there may be found in the subject‑matter, scope and purpose of the statute some implied limitation on the factors to which the decision-maker may legitimately have regard.
[51] Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24, 39 ‑ 40.
[52] Gibbs CJ, Deane J and Dawson J were in general agreement (30, 70, and 71).
Therefore, it is necessary to determine whether the subject‑matter, scope and purpose of the Proceeds of Crime Act implicitly precludes regard to the proposed factor.
Textual and contextual considerations include:
(1)an examinee has no right to refuse to answer questions or to produce a document on the grounds of self‑incrimination or legal professional privilege;[53]
(2)an examination conducted pursuant to an order made pursuant to s 180 must be conducted in private;[54]
(3)persons other than the examinee have no right to attend an examination; nor to receive a copy of the transcript of the examination;[55]
(4)the Commissioner has the right to adduce some or all of the transcript of an examination in evidence,[56] despite the above; and
(5)the information disclosed in such an examination is not ordinarily to be disclosed to the respondent in the restraint proceedings, and such a person is not ordinarily to participate in the examination.[57]
[53] Proceeds of Crime Act, s 197(2)(a) and (b).
[54] Proceeds of Crime Act, s 188(1).
[55] Proceeds of Crime Act, s 188(3), s 191(3), s 193(1).
[56] Proceeds of Crime Act, s 318A.
[57] Proceeds of Crime Act, s 180, s 188, s 191 and s 193.
The purpose of examinations under the Proceeds of Crime Act is to facilitate the confiscation of proceeds of crime, by enabling information to be gathered to assist the responsible authority to obtain forfeiture orders and to resist exclusion and compensation orders.[58]
[58] Wen [32] ‑ [33].
To achieve that purpose, the Proceeds of Crime Act expressly confers a number of forensic advantages upon the applicant.[59] In Commissioner of the Australian Federal Police v Mah,[60] the court said (citations omitted):
Once the object and scheme of the Act is properly appreciated, it is clear that parliament intended that investigators be afforded a forensic advantage in their work tracing proceeds of crime and money laundering, and that this advantage has been expressly conferred. The opportunity to build their knowledge base by examinations and production of documents is part of the information gathering process specified by the Act. In no sense can this process be regarded as affording an illegitimate forensic advantage.
[59] Commissioner of Australian Federal Police v Mah [2014] VSC 262; (2014) 242 A Crim R 184[52], [60], [70].
[60] Mah [60].
It has been said that, having regard to the purpose and structure of the statutory scheme, the court's discretion to grant an examination order under s 180 of the Proceeds of Crime Act is conditioned by:[61]
(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 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.
[61] Mah [28].
A further consideration is whether the making of an examination order would give rise to a real (as opposed to a speculative) risk to the administration of justice in the conduct of any pending criminal trial.[62]
[62] Commissioner of the Australian Federal Police v McGlone [2016] NSWCA 103 [51] ‑ [57].
In determining whether to make an order for examination under s 180, a court is entitled to have regard to factors extraneous to the Proceeds of Crime Act itself. The court is not, however, entitled to have regard to factors that are implicitly precluded by the subject‑matter, scope and purpose of the Act.
As I have indicated, and will shortly explain, I have concluded that the Examination Order was not made ex parte. I therefore have no power to set it aside, even if I accepted the respondents' arguments as to the proposed factor. However, I consider that the proposed factor is implicitly precluded. Such a consideration is entirely irrelevant and inconsistent with the statutory scheme. In particular, examination orders are intended to facilitate the confiscation of proceeds of crime and confer forensic advantages on the Commissioner to that end.
Parliament has elected to provide a mechanism by which evidence can be obtained to facilitate the confiscation of proceeds of crime. It would be inconsistent with the statutory scheme to take into account in determining whether to make an examination order that, for example, the evidence could be obtained by the proposed examinee attending the trial and giving evidence in the usual way or under O 38.

Who are the parties to an application for an examination order?

I accept that the application for an examination order was brought in the restraint proceedings. However, that does not mean that an examination order made without notice to the respondent in the restraint proceedings would thereby be ex parte.
The Proceeds of Crime Act permits the Commissioner to seek an examination order of a person. The Act regulates how an application is to be made, the conduct of such examinations, and how the evidence obtained is to be treated. In the context of the Act as a whole, it is clear that the proper parties to applications for examination orders and the hearings of such examinations are the applicant and the proposed examinee.
Further, it would not make sense to classify the respondent in the restraint proceedings as a party to an application for an examination order in recognition of an interest, yet give that person no right to even appear at the examination itself.
Where the Commissioner has given notice of the application for an examination order to the proposed examinee, s 182(2) does not apply.
Where the proposed examinee has been given notice of an application for an examination order, the application is not ex parte.
Accordingly, I have no power to set aside the Examination Order.

The further submissions

It is appropriate that I make some brief observations about the further submissions filed by the respondents after the hearing. At the conclusion of the hearing, I gave leave to the parties to file further submissions as follows:
(1)in relation to whether a judge considering whether or not to grant an examination order is permitted to have regard to the fact that, under an examination, the subject of the restraining order (unless the subject is the examinee) is not entitled to be present or ask questions, whereas there are other procedures which could potentially be available to an applicant for an examination order, such as a depositions hearing; and
(2)whether the position set out by Riordan J in Wen [35] is correct.
In the 'Background' section of the respondents' further submissions,[63] the respondents wrote 'At the hearing on 18 July 2018, it was common ground that the question of whether the hearing was "ex parte" may be a distraction. The real question is who was entitled to notice of the examination application'. This went beyond the submissions permitted to be made by my orders. It was also entirely inconsistent with the Commissioner's unwavering position that the hearing before Fiannaca J was not ex parte and that I therefore had no power to set it aside. It was also inconsistent with the basis of the respondents' application to set aside the Examination Order, being O 58 r 23, which permits me to set aside the Examination Order only if it was made ex parte.
[63] Respondents' Supplementary Submissions [3].
The balance of the 'Background' section of the respondents' further submissions also went beyond what was permitted by my orders.
Accordingly, I have disregarded the submissions under the heading 'Background'.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CG
ASSOCIATE TO THE HONOURABLE JUSTICE ARCHER
20 NOVEMBER 2018