Commissioner of Australian Federal Police v Mai (Ruling No 1)

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

Confiscation List

Case No. CI-17-05887

IN THE MATTER of the Proceeds of Crime Act 2002 (Cth)
and
IN THE MATTER of the suspect, James Hoth MAI
and
IN THE MATTER of property suspected of being the proceeds of an indictable offence and/or the instrument of a serious offence
and
IN THE MATTER of an application by THE COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE
BETWEEN:
THE COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE	Applicant
v
JAMES HOTH MAI and others according to the Schedule of Parties	Respondent

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JUDGE:	HER HONOUR JUDGE MORRISH
WHERE HELD:	Melbourne
DATE OF HEARING:	8 and 9 November 2021 via e-hearing
DATE OF RULING:	17 December 2021
CASE MAY BE CITED AS:	Commissioner of Australian Federal Police v Mai & Ors (Ruling No 1)
MEDIUM NEUTRAL CITATION:	[2021] VCC 2054

RULING No 1
Application for an order under s180 Proceeds of Crime Act 2002 (Cth)
to examine James Hoth MAI
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Subject:PROCEEDS OF CRIME – STATUTORY INTERPRETATION
Catchwords:               Australian Federal Police; application under the Proceeds of Crime Act 2002 (Cth) for examination order – restraining order in force – AFP Commissioner’s application to examine person domiciled in South Sudan – proposed examinee respondent is applicant for exclusion and compensation orders – whether extraterritorial jurisdiction to make examination order if respondent is not in Australia at the time the order is made – whether respondent has submitted to the jurisdiction – whether, as a matter of discretion, examination order should be made – relevance of difficulty in enforcement to exercise of discretion
Legislation Cited:      Proceeds of Crime Act 2002 (Cth); s5, s6, s13, s18, s19, s29, s31, s32, s42, s77, s79A, s180, s183, 2186, s187, s188, s189, s190, s192, s195, s196, s197, s198, s314, s315, s317, s335, s338, Chapter 1, Parts 1-3, 6-11; Div 3, Chapter 3; Chapter 3, Parts 3-1; Div 3; Div 4, Part 3; Chapter 4; Mutual Assistance in Criminal Matters Act 1987 (Cth); s3, s5, s6, s7, s10, s12, s32, s33, s41; County Court Civil Procedure Rules 2018, o.8.08; County Court Miscellaneous Rules 2019, o.10.11; Evidence (Miscellaneous Provisions) Act 1958 (Vic), s42E
Cases Cited:               Mai v Australian Federal Police [2018] VCC 2103; Titchiang Hoth Mai v Commissioner of the Australian Federal Police (2020) 62 VR 118; Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27; Thiess v Collector of Customs (2014) 250 CLR 664; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection (2017) 262 CLR 362; Commissioner of the Australian Federal Police v P (2018) 339 FLR 83; Solomons v District Court of New South Wales (2002) 211 CLR 119; Knight v FP Special Assets Ltd (1992) 174 CLR 178; Mansfield v Director of Public Prosecutions (WA) (2006) 226 CLR 486; Weinstock v Beck (2013) 251 CLR 396; Application by the Australian Federal Police (No 2) (2014) 239 A Crim R 451; Commissioner of the Australian Federal Police v Mah (2014) 242 A Crim R 184; Commissioner of the Australian Federal Police v Dong Hua International Investments Pty Ltd [2015] VSC 748; Commissioner of the Australian Federal Police v Dong Hua International Investments Pty Ltd [2016] VSCA 15; Re Applications by Chief Commissioner of Police (Vic) for Leave to Appeal (2004) 9 VR 275; Warburton v Loveland (1832) 2 Dow & Cl (HL) 480 at 489; Baini v The Queen (2012) 246 CLR 469; Momcilovic v The Queen (2011) 245 CLR 1; Abebe v Commonwealth (1999) 197 CLR 510; Deputy Commissioner of Taxation v Huang [2021] HCA 43; Owners of “Shin Kobe Maru” v Empire Shipping Co Inc (1994) 181 CLR 404; Minister for Home Affairs v DMA18 (2020) 95 ALJR 14; XYZ v Commonwealth (2006) 227 CLR 532; Victoria v The Commonwealth (1996) 187 CLR 416; Lee v Director of Public Prosecutions(Cth) (2009) 75 NSWLR 581; AFS Freight Management Pty Ltd and Anor v Ziegler Nederland BV [2000] QSC 489; National Commercial Bank v Wimborne [1979] 11 NSWLR 156; Michael Wilson and Partners Limited v Emmott [2020] NSWCA 139

Ruling: Application for examination order granted.

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APPEARANCES:	Counsel	Solicitors
For the Applicant	Ms L De Ferrari SC with Mr A Yuile	Commissioner of the Australian Federal Police
For the Respondent	Mr T Gyorffy with Ms A Singh	Nicholas Ryan Lawyers

Schedule of Parties

JAMES HOTH MAI	First Applicant/Respondent
and
NGUOTH OTH MAI	Second Applicant/Second Respondent
and
TITCHIANG HOTH MAI	Third Applicant/Third Respondent
and
NYAWARGA HOTH MAI	Fourth Applicant/Fourth Respondent
and
THE COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE		Respondent/Applicant

Table of Contents

Background

The issues

Summary of findings

The hearing
The evidence

Does the Court have jurisdiction to make an examination order against Mr Mai?

The Respondent’s contentions – jurisdiction
The “golden/cardinal rule” – primacy of the statutory text
Context, legislative purpose, policy considerations, the achievement of consistent or harmonious goals and attention to the mischief that the legislation is seeking to remedy
Is the ability to enforce an examination order relevant to the question of whether the Court has extraterritorial jurisdiction to make an examination order?
Has Mr Mai submitted to the jurisdiction?
Findings – jurisdiction

Should the Court’s discretion be exercised in favour of making the examination order?

The Respondent’s contentions – the exercise of discretion
Findings – the exercise of discretion

Conclusion and Orders

HER HONOUR:

Background
1By application dated 14 December 2017, the Commissioner of the Australian Federal Police (“the Commissioner”) applied ex parte for various orders under the Proceeds of Crime Act 2002 (Cth) (“the POCA”).
2The Commissioner sought restraining orders under s18 of the POCA in respect of property that was suspected to be specified property of Nguoth Hoth[1] Mai, the “Suspect”, and Titchiang Hoth Mai. The Commissioner also sought a restraining order under s19 of the POCA in respect of property that was suspected of being the proceeds of an indictable offence and an instrument of a serious offence. Further, the Commissioner sought orders for examinations to be conducted under s180 of the POCA against the Suspect, Nyawarga Hoth Mai, James Hoth Mai, Titchiang Hoth Mai and Samson Demissie. The applications were supported by an affidavit affirmed by Federal Agent Graham White on 14 December 2017.[2]
[1]Many of the documents show this applicant’s name as Nguoth Oth Mai; however, according to that applicant’s affidavit, the correct name is Nguoth Hoth Mai (emphasis added)
[2]Exhibit JHM3
3On 19 December 2017, his Honour Judge Murphy granted some of the applications. After extracting the usual undertaking as to damages, his Honour made the following Orders:
“1.Pursuant to section 26(4) of the Proceeds of Crime Act2002 (Cth), the Application filed on 14 December 2017 be heard and determined ex parte.
2.Pursuant to section 18 of the Proceeds of Crime Act2002 (Cth), the property specified in the Schedule to this order (Property) not be disposed of or otherwise dealt with by any person without the prior written consent of the Applicant or until further order.
3.Pursuant to section 19 of the Proceeds of Crime Act2002 (Cth), the Property not be disposed or otherwise dealt with by any person without the prior written consent of the Applicant or until further order.
4.The Application for an examination order against Nguoth Oth MAI, Nyawarga Hoth MAI, James Hoth MAI, Titchiang Hoth MAI, Samson DEMISSIE and Sheryl Margaret MATHOT be adjourned for hearing on 6 February 2018.
5.Pursuant to rule 10.18(2) of Order 10 of the County Court Miscellaneous Rules 2009 (Vic), the Court directs that notice of the application for an examination order pursuant to section 180 of the Proceeds of Crime Act 2002 (Cth) may be given to James Hoth MAI by personally serving Nyawarga Hoth MAI with copies [of] the following documents:
i)this order;
ii)Application filed 14 December 2017; and
iii)Affidavit of Graham White affirmed on 14 December 2017.

6.Subject to Part 2-1 Division 6 of the Proceeds of Crime Act2002 (Cth), Orders 2 and 3 operate until further order.
SCHEDULE
i)Real property located at 7-8 Wiringa Close Narre Warren North Victoria 3804 and more particularly described in Certificate of Title Volume 10650 Folio 383; and
ii)Audi A1 1.0L vehicle, chassis number WAUZZZ8X9FB042678 and registration number AEZ 706.”

4Titchiang Hoth Mai made application under s42 of the POCA to revoke the Restraining Order made in respect of the property. On 17 December 2018, his Honour Judge Dyer dismissed Titchiang Hoth Mai’s application.[3] Titchiang Hoth Mai sought leave to appeal against the decision. In a unanimous decision, the Court of Appeal granted leave to appeal, but dismissed her appeal.[4] On 11 September 2020, Titchiang Hoth Mai was refused special leave to appeal to the High Court. All other extant applications, including an application for forfeiture, were held in abeyance pending the determination of the appeal.
[3]See Mai v Australian Federal Police [2018] VCC 2103
[4]Titchiang Hoth Mai v Commissioner of the Australian Federal Police (2020) 62 VR 118
5It is not in dispute that James Hoth Mai was duly served in accordance with the terms of the Order made by his Honour Judge Murphy on 19 December 2017.
6On 9 January 2018, the Commissioner applied for a forfeiture order in respect of the property. The further hearing of that application has been adjourned.
7On 24 November 2020, James Hoth Mai applied for an exclusion order under s31 of the POCA, claiming that he has an interest in the property referred to in the Schedule of the Order made by his Honour Judge Murphy on 19 December 2017. On the same date, Mr Mai also applied for a compensation order under s77 of the POCA. These applications have been adjourned to a date to be fixed.
8James Hoth Mai opposes the making of an examination order under s180 of the POCA against him.
9This ruling is confined to the Commissioner’s application for an order to examine James Hoth Mai (referred to as Mr Mai for the purposes of this ruling) under s180 of the POCA.
10It is not in dispute that Mr Mai lives in South Sudan and is not currently in Australia. He is not an Australian citizen and he does not hold a current visa to enter Australia. Mr Mai has applied for a visa to enter Australia, but no such visa has as yet been issued.

The issues
11The issues raised in this application are:
(i) Does the Court have jurisdiction to make an examination order under s180 of the POCA against Mr Mai, a person who is not currently in Australia?
(ii) Has Mr Mai submitted to the jurisdiction?
(iii) If the answer to questions one and/or two is yes, should the Court exercise its discretion and make the order against Mr Mai?

Summary of findings
12For the reasons set out below, the issues are resolved as follows:
(i) The Court has jurisdiction to make an examination order under s180 of the POCA against Mr Mai even though he is not currently in Australia, because there are well established principles of statutory interpretation and persuasive authority to support the conclusion that s13 of the POCA empowers the Court to make such an order in these circumstances;
(ii) Mr Mai has submitted to the Court’s jurisdiction; and
(iii) The applicant has satisfied the Court to the requisite degree that, in all the circumstances, the discretion should be exercised in favour of making the examination order against Mr Mai.
13In view of these findings, the Commissioner’s application for an examination order under s180 of the POCA against Mr Mai must succeed.
The hearing
14The hearing commenced before me on 8 November 2021 and continued the following day. Ms L De Ferrari SC appeared with Mr A Yuile on behalf of the Commissioner. Mr T Gyorffy QC appeared with Ms A Singh on behalf of the respondent. The parties each filed written submissions,[5] supplemented by oral submissions made before me.
[5]The applicant’s submissions were tendered as exhibit JHM4; the respondent’s submissions were tendered as exhibit JHM-C
The evidence
15The parties each filed affidavits in support of their respective cases. No witness was required to attend for cross-examination.
The Applicant’s evidence
16On behalf of the applicant, three affidavits affirmed by Federal Agent Graham White were tendered.
Federal Agent White’s first affidavit
17Federal Agent White’s first affidavit is dated 14 December 2017.[6] It is a copy of the affidavit made by Mr White in support of the ex parte application for the various orders referred to earlier.
[6]Exhibit JHM3
18The contents of this affidavit are summarised in the judgment of the Court of Appeal in Mai v Commissioner of the Australian Federal Police^.[7] I gratefully adopt that summary:
“13.The application sought orders in respect of real property in Narre Warren and an Audi motor vehicle. The application under s 18 was based on a suspicion that Nguoth Oth Mai (‘Nguoth’), … [Titchiang Hoth Mai]’s brother, had committed offences against s 184(2) of the Corporations Act and s 135.1 of the [Criminal] Code, that the Narre Warren property was his property and that the Audi vehicle was the property of … [Titchiang Hoth Mai], and that each was either the proceeds or an instrument of the offences. The application under s 19 was based on a suspicion that both the Narre Warren property and the Audi vehicle were the proceeds of the same offences or an instrument of those offences.
14.In his affidavit, Mr White stated that the Australian Federal Police were investigating the acquisition of assets in Australia by the family of James Hoth Mai (‘Mai’), the father of … [Titchiang Hoth Mai] and Nguoth, who had been a general and chief of staff in the Sudanese People’s Liberation Army between 2009 and 2014. He stated that it was believed that Mai currently resided in Kenya or Uganda and that his wife (‘Nyawarga’) and their children lived in public housing from their progressive arrival in Australia starting in 2001, until they moved to the Narre Warren property in October 2014.
15.Mr White stated that Nguoth owned the Narre Warren property and that … [Titchiang Hoth Mai] owned the Audi vehicle. Neither of them had declared any income to the Australian Taxation Office since 2009. Each of them had received Centrelink benefits, including after the acquisition of the property and the car respectively. Nyawarga had also received Centrelink benefits since 2006.
16.By way of background to the acquisition of the Narre Warren property and the Audi vehicle, Mr White described events involving a company called Sportcars Dealers Pty Ltd (‘Sportcars’). Mr White said that on 7 June 2014, Nguoth lodged an application to register Sportcars which was ostensibly set up to import luxury cars into Australia. The application listed the directors and shareholders as Nguoth and Samson Demissie (‘Demissie’). Nguoth had a shareholding of 80 per cent and Demissie held the remaining 20 per cent. Sportcars was registered on 12 June 2014 as a proprietary company and deregistered on 15 September 2016.
17.Mr White said that his enquiries revealed that Sportcars did not carry on any business while it was registered and that Australian Taxation Office records showed that it lodged returns in 2015 and 2016 declaring no income. However, on 27 June 2014, Sportcars opened two bank accounts with National Australia Bank. Analysis of those bank accounts showed five substantial payments into one of them between July 2014 and January 2015, in the total amount of $1,547,318.78. The money was said to have originated in Uganda and Kenya.
18.Mr White deposed to the acquisition of the Narre Warren property. He said that on 1 October 2014, Nguoth became the sole registered owner of the property, having purchased it for a price of $1.5 million plus stamp duty of $82,500. Mr White said that at the time of the purchase, Nguoth was 22 years old, was not employed and had been receiving youth allowance payments since 2008 except for a period between 2012 and 2014, during part of which time he had been outside Australia. The contract for the sale of the property was signed by Nyawarga on 2 June 2014. Settlement of the sale took place on 22 August 2014. Mr White said that records showed that the sum of $155,171.77 was paid by way of deposit to the trust account of the real estate agent handling the sale of the property on 5 June 2014. The money originated from a development and construction company based in Uganda. On the day before settlement, Nguoth transferred $1,405,195.66 between Sportcars’ two accounts. On the same day, he withdrew $1,360,661 from one account by making cheque payments towards the settlement of the property, including payment out of the vendor’s mortgage and payments of amounts due to the local council, as well as legal and conveyancing costs, State Revenue Office fees and other minor charges.
19.Mr White deposed that on 19 September 2014, Nguoth transferred $83,000 between Sportcars’ two accounts, and withdrew $82,500 from the recipient account by way of a cheque made out to the State Revenue Office. He believed this was for the payment of stamp duty on the purchase of the Narre Warren property.”[8]
[7]Supra
[8]Ibid at paragraphs 13-19

Federal Agent White’s second affidavit
19Federal Agent White’s second affidavit is dated 9 January 2018.[9] The matters deposed to in this affidavit are in support of the application for the various examination orders and in opposition to the various applications for exclusion orders.
[9]Exhibit JHM2
20Mr White identified the relationship between all proposed examinees. No issue is taken with this aspect of his evidence. Mr White also deposed to the manner in which the property was acquired:
“11Nguoth Oth MAI (Nguoth) is the sole registered proprietor of the Narre Warren property. Titchiang Hoth MAI (Titchiang) is the sole owner of the Audi.
12James Hoth MAI (Mai) and Nyawarga Hoth MAI (Nyawarga) are the parents of Nguoth and Titchiang. Nyawarga resides in Australia and MAI resides overseas.
13The money to purchase the Narre Warren property originated from overseas. It is not clear where the money for the purchase of the Audi vehicle originated from. Nguoth and Titchiang did not have the financial means to purchase the respective properties. They, together with their mother, Nyawarga, were on Centrelink benefits.
14The overseas money was transferred into the bank account of Sportcars Dealers Pty Ltd (Sportcars), a private company that was registered just after the contract for the sale of the said property was signed by Nyawarga. Nguoth and a Samson DEMISSIE (Demissie) were the directors of this company. This money was used by Nguoth to purchase the Narre Warren property for $1,500,000 and a stamp duty of $82,500.00.
15The money to purchase the Audi vehicle was deposited as cash into the Sportcars’ bank account before being used for its purchase.

16My enquiries reveal that Demissie withdrew various sums of monies from the Sportcars’ bank account.
16 (sic) Sportcars was deregistered after the property settled. My enquiries reveal it did not conduct any business for which it was set up.
17Sheryl Margaret MATHOT (Mathot) was the vendor at the time of the sale of the Narre Warren property in 2014.
18The Narre Warren property was on the market for sale for $1,900,000.”[10]
[10]Ibid at paragraphs 11-18, noting that there are two paragraphs numbered 16 in the original

21Mr White identified the grounds upon which the Commissioner relies for making the various examination orders:
“18I believe that the proposed examinees have information pertaining to:
i)the reasons for the registration and deregistration Sportcars;
ii)the channeling of overseas money through Sportcars' bank account instead of through the personal bank accounts of Nguoth, Nyawarga and Mai;
iii)the source of the overseas monies;
iv)the source of the cash deposit into Sportcars’ bank account for the purchase of the Audi vehicle;
v)records of all transactions, if any, kept by Sportcars;
vi)the non-declaration of the overseas monies to the Australian Taxation Office;

[no vii) appears in the original]
viii)Mathot's dealings with Mai, Nyawarga, Nguoth and Titchiang, if any, in relation to the purchase of the Narre Warren property; and
ix)The source of the funds for the upkeep and maintenance of the Narre Warren property and the Audi vehicle.

19On the basis of the facts set out in my affidavit dated 14 December 2017, I believe that the answers likely to be given by the proposed examinees in an examination will be relevant to the determination of the Commissioner’s forfeiture applications which have been filed and are listed for mention on 31 July 2018.
20.The information which the proposed examinees could provide in relation to the purchase of the Narre Warren property and the Audi and the financial affairs of Nguoth, Titchiang, Mai and Nyawarga, including the nature of the overseas money transfers, is of a kind which is within the (sic) their respective knowledge and may not be available from other sources. Mathot could provide information in relation to the sale of the Narre Warren property to Nguoth. Demissie could provide information in relation to the reason for setting up Sportcars, the opening of its bank account, if it conducted any business or kept records and filed tax returns. He could also provide information in relation to his withdrawal of money from Sportcars’ bank accounts.

[11]Ibid second paragraph numbered 18-21
21. I believe that the proposed examinees can therefore provide information relevant to the characterisation of the restrained property as being at least partly derived, directly or indirectly, from the commission of the offences noted at paragraph 7 above.”[11]

Federal Agent White’s third affidavit
22Federal Agent White’s third affidavit is dated 27 October 2021.[12] Mr White deposed:
[12]Exhibit JHM1
“3.On 24 November 2020, James Hoth Mai, Nyawarga Hoth Mai, Nguoth Oth Mai and Titchiang Hoth Mai filed exclusion applications under section 29 of the Act and compensation applications under section 77 of the Act.
4.The exclusion applications seek to exclude the respective interests of the parties in the property restrained by the restraining order made on 19 December 2017 (Restraining Order).
5.On 7 May 2021, James Hoth Mai swore an affidavit in support of his exclusion application.
6.On 10 May 2021, Nyawarga Hoth Mai swore an affidavit in support of her exclusion application.
7.On 20 May 2021, Nguoth Oth Mai swore an affidavit in support of his exclusion application.
8.The affidavits have been served on the Commissioner of the Australian Federal Police (Commissioner).
9.In his affidavit, James Hoth Mai states he funded the purchase of the restrained properties through his salary and other income in South Sudan and from rent received from the properties he allegedly owns in South Sudan. No banking or tax statements or records from any financial institution have been produced or exhibited to his affidavit in support of his claims.
10.The very large sums of money transferred into Australia through a third party is (sic) cannot be identified by any documentary evidence from a bank or other financial institution. There is no document evidencing the rent received. There is no document exhibited that links the large transfers of money from Africa to Australia to legitimate income of James Hoth Mai. The funds transfers originated in Uganda and Kenya and were made to a Sportcars Dealers Pty Ltd, an Australian private company that never operated and was deregistered shortly after the restrained real property was purchased.
11.I believe that the circumstances surrounding the purchase of the restrained assets, including the setting up of Sportcars Dealers Pty Ltd [a]nd provenance of the funds, are solely within the knowledge of James Hoth Mai and the other Respondents.”[13]
[13]Ibid paragraphs 3-11

The Respondent’s evidence
23Two affidavits affirmed by the respondents’ solicitor, Gerard Hugh Maxted, were tendered in opposition to the making of the examination order.
24On 7 May 2021, Mr Mai swore an affidavit in support of his applications for exclusion and compensation orders. This affidavit was sworn approximately six months before Mr Mai applied to object to or set aside the Commissioner’s application for an examination order. Although he has instructed his lawyers to make the application to object to the making of an examination order or to set aside the Commissioner’s application for an examination order on his behalf, Mr Mai has sworn no affidavit in support of that application.[14] He has not testified that he objects to the examination order being made. He does not explain on his oath why he objects to the order. Nor does he give any indication as to whether he would comply with such an order if it were made.
[14]Mr Mai has not sworn an affidavit in opposition to the Commissioner’s application for an examination order
Mr Maxted’s first affidavit
25The first paragraph of Mr Maxted’s first affidavit acknowledges his status as solicitor acting on behalf of the various Mai applicants, including James Mai, and that he has “care and conduct of these proceedings on their behalf”.[15]
[15]Exhibit JHM-A, paragraph 1
26Insofar as it relates to the present application, Mr Maxted’s affidavit, affirmed 18 October 2021,[16] attached an email chain relating to the status of Mr Mai’s application for a visa to enter Australia. The email chain chronology is as follows:
[16]Exhibit JHM-A
· On 30 April 2021, at 11.50am, Mr Maxted enquired about the status of Mr Mai’s application for a visa.
· The same day, at 12.48pm, Mr Wu of Lincolns Lawyers & Consultants responded:
“1Date the application was initially lodged;
26 June 2014

2Any temporary or bridging visa in place;
None. Since lodgement of the initial application, Mr Hoth Mai has successfully been granted Bridging Visa Bs allowing overseas travel up until 30 December 2019.
(a)In or around March 2020, Mr Hoth Mai had by himself applied for, and was refused a Bridging Visa B (BVB Refusal).
(b)Notwithstanding the BVB Refusal, we understand from previous correspondence with Mr Andrew Tsirikis of your firm that Mr Hoth Mai nonetheless departed Australia.
(c)Mr Hoth Mai’s Bridging Visa A thus lapsed.

3.Current status of application.
(a)The current status of Mr Hoth Mai’s application is listed as ‘Further Assessment’, which means that the application is still currently being assessed.
(b)The last update was that following a Request for More Information by the Immigration Department, the documents below were provided by your firm and lodged with the Immigration Department on 14 July 2020:
(i)National Police Certificate of Mr Hoth Mai and Ms Nyawarga;
(ii)South Sedan Certificate of Good Conduct of Mr Hoth Mai; and

(iii) A statement by Mr Hoth Mai.
(a)[sic] We have not received any updates from the Immigration Department since.”[17]
[17]Ibid exhibit GHM-7 to the affidavit

· On 12 October 2021, at 1.31pm, Mr Maxted sought an update about Mr Mai’s visa application.
· The same day, at 1.43pm, Mr Wu responded that he had not received any further updates since the previous request.
Mr Maxted’s second affidavit
27In his second affidavit, affirmed 8 November 2021,[18] the first day of the hearing before me, Mr Maxted again acknowledged his status as solicitor acting on behalf of the various Mai applicants, including James Mai, and that he has “care and conduct of these proceedings on their behalf”.[19]
[18]Exhibit JHM-B
[19]Exhibit JHM-B, paragraph 1
28Mr Maxted referred to and attached an extract of the cross-examination of Mr White at the hearing before his Honour Judge Dyer on 20 November 2018.[20]
[20]Ibid, exhibit GHM-8 to the affidavit, attaching pages 182-184 of the transcript
29The evidence of Mr White is also referred to in the judgment of the Court of Appeal in Titchiang Hoth Mai v Commissioner of the Australian Federal Police^.[21]
[21](2020) 62 VR 118

Does the Court have jurisdiction to make an examination order against Mr Mai?
The Respondent’s contentions – jurisdiction
30The respondent contends that the Court lacks extraterritorial jurisdiction to grant an examination order against Mr Mai, a foreign non-resident presently domiciled in South Sudan.
31Mr Gyorffy concedes that no issue could be taken with the making of the examination order if Mr Mai were in Australia.
32Despite Mr Mai’s asserted position as the Minister for Labour in the Republic of South Sudan,[22] Mr Gyorffy has eschewed any suggestion that a claim for diplomatic immunity will be made on Mr Mai’s behalf.[23]
[22]See affidavit of James Hoth Mai sworn 7 May 2021: “I, JAMES HOTH MAI, … minister of Labour Republic of South Sudan, make oath and say as follows … .”
[23]Transcript (“T”) 97
33The respondent submits that as a matter of statutory construction, the Court does not have jurisdiction to make the examination order against Mr Mai unless he is in Australia. The respondent submits:
“10.The following principles of statutory construction are well established:
a)The task of statutory construction must begin and end with a consideration of the statutory text.[24]
b)The meaning of the text may require consideration of the context, which includes the general purpose and policy of a provision, in particular the mischief it is seeking to remedy.[25]
c)The object of statutory construction is to interpret the provision so that it is consistent with the language and purpose of all the provisions of the statute. A legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals.[26]
d)The history of the provision and extrinsic materials may assist in determining the meaning of the statutory text.[27] However, historical considerations and extrinsic materials cannot be relied on to displace the clear meaning of the text.[28]”[29]
[24]Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27 (Alcan), [47] (Hayne, Heydon, Crennan and Kiefel JJ [47]; Thiess v Collector of Customs (2014) 250 CLR 664 (Thiess), [22].
[25]Project Blue Sky Inc. v Australian Broadcasting Authority (1998) 194 CLR 355 (Project Blue Sky), [70]; Alcan [47].
[26]       Project Blue Sky [69].
[27]       Thiess [22].
[28]       Alcan [47].
[29]Exhibit JHM-C paragraph 10

34The Commissioner agrees that these principles apply, but stresses that “the natural and ordinary meaning of words are central to the construction process”.[30]
[30]Exhibit JHM4, paragraph 7, citing as authority Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [Northern Territory] (supra) at paragraph [47]; SZTAL v Minister for Immigration and Border Protection; SZTGM v Minister for Immigration and Border Protection (2017) 262 CLR 362 at paragraph [14]
35After referring to the principal objects of the POCA, the respondent submits that a fair reading of s13 of the POCA, both on its face and when read in context with the rest of the POCA, and when taken in conjunction with the Mutual Assistance in Criminal Matters Act 1987 (Cth) (“the MAICMA”), shows that the Court has no extraterritorial jurisdiction to make the exclusion order in the present case. The arguments are particularised in the respondent’s written submissions:
“13.Section 13 provides for the extension of the POCA’s jurisdiction as follows, the POCA already having subject matter jurisdiction in respect of acts, matters and things occurring within Australia, and to all persons located in Australia:
Act to apply both within and outside Australia
(a)This Act extends, except so far as the contrary intention appear) to acts, matters and things outside * Australia, whether or not in or over a foreign country; and
(b)to all persons, irrespective of their nationality or citizenship.

14.Where s 13 is relied upon to extend jurisdiction, both sub-section (a) and (b) must be satisfied.
15.‘Acts, matters and things’ is not defined in the POCA. Having regard to the objects of the POCA and its specific provisions, it can be readily apprehended that such words would comprise:
a)Offending overseas (see s 19(1)(d)(i), and s 337A for meaning of ‘foreign indictable offence’); and
b)Property located overseas (see s 68A regarding the forfeiture of property located outside of Australia).
c)Liquidating and/or recovery of property located overseas.

16.Similar words appear in rule 7.02 of the County Court Civil Procedure Rules 2018 (Vic), in that regard, the rule concerns:
a)Acts and omissions;
b)Matter(s) or thing(s) in or connected with Victoria;
c)Act, deed, will, instrument or thing.

17.An ordinary reading of the phrase ‘acts, matters and things’, clearly contemplates issues that engage the operation of the POCA, such as serious offending, tainted property, proceeds of offending, instruments of offending, in that ‘the Act extends’, to these acts, matters and things. This is rather than things arising under and given legal effect to under the POCA, such as examination hearings, production orders, and search and seizure orders.
18.Section 180 of the POCA provides:
Examination orders relating to restraining order
(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.”

36The submissions then set out the framework for examinations under the POCA, referring to s180, s183(1), s183(5), s187, s188, s190 and s192.[31]
[31]Exhibit JHM-C, paragraph 19
37The submissions assert:
“20.Simply, an examination is a specific creature of the POCA. It can be neither an act, matter or thing. Section 13 cannot ‘extend’ to an act, matter or thing of its very creation. Thus, in assessing whether s 13 can extend to an examination, where the subject examinee is a foreign non-resident of Australia, it is submitted that s 13 does not give this Court extra territorial power to make such orders.”[32]
[32]Ibid, paragraph 20

38The respondent submits that the provisions of the MAICMA have a role to play in the interpretation of s13 of the POCA:
“Interaction between the POCA and other laws
21.No mechanism is expressed in the POCA (and or its regulations) for the giving effect to and enforcement of an examination order, and there is no power under the POCA pursuant to s 39 or otherwise, to make such orders.[33] This supports the reading that s 13 is not intended to extend the subject matter jurisdiction of the POCA for an examination order where:
[33] Commissioner of the A[ustralian F[ederal] P[olice] v P (2018) 339 FLR 83, [50]-[51].
a)A person is resident of and located in a foreign state;
b)No offence is alleged against the person outside of Australia; and
c)No property of the person is located outside of Australia.

22.The purpose of the POCA includes to give effect to the Strasbourg Convention (s 5(f)).
The text of that convention is principally ratified by the Mutual Assistance in Criminal Matters Act 1987 (Cth) (Mutual Assistance Act) and its regulations, the Mutual Assistance in Criminal Matters (Money-Laundering Convention) Regulations 1997.

23.Part VI of the Mutual Assistance Act specifically deals with ‘Proceeds of Crime’. It provides a mechanism at Division 1 of Part VI (ss 32, 33) for requests by Australia for the enforcement of orders. Section 32 provides:
Requests for enforcement of orders
Australia may request an appropriate authority of a foreign country to make arrangements for the enforcement of:
(a)an Australian forfeiture order against property that is believed to be located in that country;
(b)an Australian pecuniary penalty order, or an Australian literary proceeds order, where some or all of the property available to satisfy the order is believed to be located in that country; I(c) an Australian restraining order against property that is believed to be located in that country;
if the order was made in respect of a serious offence.

24.Notably, these requests relate to where property is located outside of Australia. This also gives meaning to the words ‘acts, matters and things’ in s 13 of the POCA.
25.As regards the issuing of other orders, which include information gathering powers (under Chapter 3 of the POCA such as production and monitoring orders), s 33 of the Mutual Assistance Act is silent in relation to requests made by Australia for the issue by a foreign country of an examination order. Section 33 provides:
Requests for issue of orders in foreign countries

Where a criminal proceeding or criminal investigation has commenced in Australia in relation to a serious offence, Australia may request an appropriate authority of a foreign country to obtain the issue, in respect of the offence, of a warrant, order or other instrument similar in nature to any of the following warrants and orders under the Proceeds of Crime Act:
(a)[no a) referred to]
(b)a restraining order;
(c)a production order;
(d)a search warrant;
(e)a monitoring order.

26.An example of how the provisions of the Mutual Assistance Act interact with the POCA can be illustrated by way of ‘giving effect to forfeiture orders’ (in s 68A of the POCA), which empowers the responsible authority to do anything necessary or convenient to arrange for the enforcement of, or give effect to, a forfeiture order, where property is located outside of Australia.

27.Critically, there are no like provisions either in the Mutual Assistance Act or the POCA in relation to examination orders where a person is outside of Australia. Furthermore, the evidence gathering powers contained in Part II of the Mutual Assistance Act, do not concern the giving of effect to or enforcement of examination orders, rather they relate to inter alia requests for arrangements for evidence to be taken in a foreign country for a proceedings or investigation relating to a criminal matter.”¹²[[34]]
28. Conceivably, a request could be made under s 12 of the Mutual Assistance Act for the taking of evidence in a foreign country. However, this is entirely misconceived as it relates to the factual circumstances arising in this case and the POCA at large:
a)Firstly, there is no bilateral treaty between Australia and South Sudan for mutual assistance in criminal matters. Neither is South Sudan a party to the Strasbourg Convention. Mutual assistance treaties underpin the Mutual Assistance Act and any requests made pursuant to it. Mutual assistance treaties reflect independent sovereignty, whereby assistance by one contracting state may be provided to another in the investigation and prosecution of crime
b)Secondly, James Hoth Mai is a current member of the executive of the foreign and independent state of the Republic of South Sudan, as Minister for Labour.
c)Third, as detailed below, an examination hearing under s 180 of the POCA is its own species of information gathering, removed from the Court process and distinct to a police investigation. Accordingly, given that only the procedure prescribed in Div 3, Chap 3 for ‘conducting examinations’, may be observed, it is difficult to see how a ‘like’ process could be set-up in an independent foreign state.
d)Fourth, and as detailed further below, the mechanisms under the Foreign Evidence Act 1994 (Cth) (FEA) which prescribe the processes for inter alia the taking of evidence in a foreign state, are not appropriate where a distinct information gathering procedure is set out in Div 3, Chapter 3 of the POCA.
[34] [footnote 12 states: Criminal matter is defined in sub-section 3(c)-(e) to include:
(c) a matter relating to the forfeiture or confiscation of property in respect of an offence;
(d) a matter relating to the imposition or recovery of a pecuniary penalty in respect of an offence; and
(e)a matter relating to the restraining of dealings in property, or the freezing of assets, that may be forfeited or confiscated, or that may be needed to satisfy a pecuniary penalty imposed, in respect of an offence; whether arising under Australian law or a law of a foreign country.]

Examinations not a judicial creature
29.As foreshadowed above, examination hearings are a distinct information gathering process unique to the POCA. Parliament’s intention that examinations occur outside the Court process are express. Rather than being contained in chapter 2 of the POCA, examinations fall within chapter 3 (Information Gathering). It is plain that the approved examiner in examining a person (s 187) is not exercising a judicial power,[35] the examination is not undertaken within the auspices of the Court, and the approved examiner plays the role of interrogator rather than adjudicator.
30.Thus, the scheme for taking of evidence abroad, first by way of mutual assistance request under the Mutual Assistance Act, and then, by way of taking evidence upon application under the FEA, has no role to play in respect of POCA examinations.
31.The culmination of these matters support the plain reading of s 13 of the POCA, having regard to the text, context and purpose of the POCA, that as regards the examination of persons domiciled in a foreign state, there is no extra territorial power to examine such persons.
32.This issue has not been considered directly by any superior court. Rather, the question of extra territorial power has been directed at the exercise of the Court’s discretion as follows:
a)In Mah[36], Dixon J considered arguments concerning extra territorial jurisdiction of the Court however in the context of the exercise of his discretion to make such an order.[37] Nonetheless, these matters were not determinative in his Honour’s ruling against exercising his discretion (at that point in time)[38] to have the respondent, a Buddhist nun domiciled in Malaysia, examined, which, rather, turned on an extant revocation application not having been determined.[39]
b)In Commissioner of the AFP v Dong Hua International Investments Pty Ltd,[40] T Forrest J at first instance, did not specifically find that the POCA specifically had extra territorial reach against five Chinese residents whom examination orders were sought against. Ultimately, his Honour exercised his discretion against making such orders because of the practical effect of delays.
c)On appeal, the Court of Appeal upheld T Forrest J’s orders, but did say in obiter that ‘it is sufficient for us to say that we agreed with Dixon J in Mah, that the Act is intended to have an extra territorial operation and that there was no impediment to the trial judge making an order for examination had he chosen to do so.’[41]”[42]
[35]Cf. s 71 of the Constitution. Presumably examinations were contrived in this way such as not to fall afoul of the Kable principle.
[36] [2014] VSC 262 (‘Mah’).
[37] Mah at [63]-[64].
[38]His Honour rather than refuse the application, adjourned the application until the revocation application had been determined.
[39]Mah at [70]-[71]
[40][2015] VSC 748
[41]Commissioner of the AFP v Dong Hua International Investments Pty Ltd [2016] VSCA 15, at [51]. [Commissioner of Australian Federal Police v Mah & Ors] [2014] VSC 262.
[42]Exhibit JHM-C paragraphs 21 -32

39The respondent’s oral submissions may be summarised as follows:
(i) Section 13 of the POCA provides that it has extraterritorial operation unless the contrary intention appears;
(ii)    There is no specific section within the POCA that states it does not apply to examinations to be conducted overseas;
(iii) It is to be inferred that s13 of the POCA does not apply to overseas examinations because of the limited operation of the MAICMA to proceedings under the POCA. In particular, the MAICMA specifies that only certain POCA matters can be dealt with under the MAICMA and it makes no mention of examinations conducted under s180 of the POCA;
(iv)     The respondent is overseas and has been so for some time. It is unlikely he will return to Australia; and
(v)   There is no objection to the making of the order if it is made clear it only applies if the respondent is in Australia.[43]
The Applicant’s contentions – jurisdiction[44]
[43]T114 -115
[44]The applicant’s submissions are fully set out in exhibit JHM-4, paragraphs 6-55
40In summary, the applicant submits:
“(a)The contention that the POC Act is not extraterritorial in scope is baseless. The plain language of s 13 supports that position and there is no contrary intention apparent in respect of s 180. The position is also supported by multiple Supreme Court decisions that, even if not binding on this Court because relevant comments were obiter, are highly persuasive. None of the issues raised by the [Mai] applicants detract from that clear language or provide a basis to find that there is no power to make an examination order against a person overseas.
(b)Further, James, as an applicant before this Court for orders for his benefit and, additionally, the deponent of an affidavit intended to be read in the proceedings, has submitted to the jurisdiction of this Court.”[45]
[45]Exhibit JHM-4 paragraph 5

41The applicant’s submissions can be condensed to these points:
(a)   A provision that confers jurisdiction on a court is not to be construed narrowly;[46]
(b) The text of s13 of the POCA is explicit, in that it is intended to have broad application throughout the world unless the contrary intention appears;
(c)   No express “contrary intention” appears either in the POCA or the MAICMA. Nor is there any basis to find such contrary intention is to be inferred;
(d) Both subparagraphs of s13 of the POCA are to be read conjunctively, meaning that the applicant does not have to prove that the respondent is involved in an “act, matter or thing” outside Australia;
(e)   There are a number of authorities that support the submission that the Court has jurisdiction to make examination orders against persons outside Australia;[47]
(f)    The potential difficulty of enforcement of an examination order is not relevant to the question of whether the Court has jurisdiction to make the order. Rather, that matter is relevant only to the question of whether the discretion should be exercised in favour of making the order. In any event, there are available methods to enforce such an order;[48]
(g)   The respondent’s reliance on principles of comity is misplaced;
(h)   The provisions of the MAICMA do not assist the respondent. The respondent’s argument comes down to inviting the Court to draw an inference that Parliament intended to limit the extension of jurisdiction conferred by s13 of the POCA, not because of what is expressed in either the POCA or the MAICMA, but because of what does not appear in the MAICMA. There is no authority to support such a proposition; and
(i)    A distinction is to be drawn between the making of an examination order, and the examination itself. The Court is concerned with whether the order should be made as a “gateway” leading to the issuing of an examination notice by the examiner. The respondent might be in one location on the date the examination order is made, yet be in another on the date the examination notice is issued.
[46]Solomons v District Court of New South Wales (2002) 211 CLR 119 at paragraph [104]; Knight v FP Special Assets Ltd (1992) 174 CLR 178 at 205, referred to with approval in Mansfield v Director of Public Prosecutions (WA) (2006) 226 CLR 486 at paragraph [10]; Weinstock v Beck (2013) 251 CLR 396 at paragraph [55]
[47]Application by the Australian Federal Police (No 2) (2014) 239 A Crim R 451; Commissioner of the Australian Federal Police v Mah (2014) 242 A Crim R 184; Commissioner of the Australian Federal Police v Dong Hua International Investments Pty Ltd [2016] VSCA 15 at paragraph [51]
[48]Re Applications by Chief Commissioner of Police (Vic) for Leave to Appeal (2004) 9 VR 275

Legislative framework
42The parties have each referred to various legislative provisions and to the applicable principles of statutory interpretation. The respondent submits that as a matter of statutory construction, there is no jurisdiction to make an examination order against a person who is not in Australia at the time the order is made.
43The respondent accepts that s13 of the POCA confers extraterritorial jurisdiction regarding the matters referred to in that section “unless the contrary intention appears”, however submits that such contrary intention can be inferred from what is not provided for in the MAICMA.
44On the other hand, the applicant submits that the POCA is to be interpreted by reference to the “four corners” of the Act. If another Act is intended to affect the operation of the POCA, it should specifically say so.
45It is therefore necessary to examine some of the provisions of both the POCA and the MAICMA.
The Proceeds of Crime Act 2002 (Cth)
46The principal objects of the POCA as relevant to the current application are set out in s5:
“The principal objects of this Act 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
…
(ba)to deprive persons of *unexplained wealth amounts that the person cannot satisfy a court were not derived or realised, directly or indirectly, 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.”

47The terms marked with an asterisk are defined in the Dictionary contained in s338 of the POCA.
48The POCA provides an outline of the various provisions contained in it. Section 6 provides:
“This Act establishes a scheme to confiscate the proceeds of crime. It does this by:
(a)setting out in Chapter 2 processes by which confiscation can occur; and
(b)setting out in Chapter 3 ways in which Commonwealth law enforcement agencies can obtain information relevant to these processes; and
(c)setting out in Chapter 4 related administrative matters.
It concludes with miscellaneous provisions and with definitions and other interpretive material.
Note:See also Part IAE of the Crimes Act 1914 (video link evidence).”

49The POCA expressly states it extends beyond Australia’s borders “unless the contrary intention appears”. Specifically, s13 provides:
“This Act extends, except so far as the contrary intention appears:
(a)to acts, matters and things outside *Australia, whether or not in or over a foreign country; and
(b)to all persons, irrespective of their nationality or citizenship.”

50Section 314 of the POCA confers jurisdiction on State and Territory courts:
“(1)Jurisdiction is vested in the several courts of the States and Territories with respect to matters arising under this Act.
(2)The jurisdiction vested in a court by virtue of subsection (1) is not limited by any limits to which any other jurisdiction of the court may be subject.
(3)…
(4)The jurisdiction of a court with respect to matters arising under this Act is not excluded or limited merely because the proceedings relate to, or may otherwise concern, property located outside *Australia.”

51Once certain statutory prerequisites are satisfied, the Court may make an order for the examination of any person. Section 180 of the POCA 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, 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).”

52Although the application for the examination order is made under s180 of the POCA, it should be noted that examination orders may also be made when compensation and exclusion orders are sought:
“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.

180BExamination orders relating to applications for compensation
(1)If an application for an order under section 77 or 94A (which deal with compensation) is made in relation to an *interest in property that has been or may be forfeited, 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.”

53It will be remembered that Mr Mai has applied for a compensation order under s77 of the POCA, claiming that he has an interest in the property referred to in the Schedule of the Order made by his Honour Judge Murphy on 19 December 2017.[49]
[49]Application dated 24 November 2020
54By application dated 24 November 2020, Nguoth Hoth Mai, under s29 and s31 of the POCA, sought an order excluding the property from the restraining order. On the same day, Nguoth Hoth Mai also applied for a compensation order under s77 of the POCA. These applications have been adjourned to a date to be fixed.
55By application dated 24 November 2020, Titchiang Hoth Mai, under s29 and s31 of the POCA, sought an order excluding the property from the restraining order. On the same day, Titchiang Hoth Mai also applied for a compensation order under s77 of the POCA. These applications have been adjourned to a date to be fixed.
56By application dated 24 November 2020, Nyawarga Hoth Mai under s29 and s31 of the POCA, sought an order excluding the property from the restraining order. On the same day, Nyawarga Hoth Mai also applied for a compensation order under s77 of the POCA. These applications have been adjourned to a date to be fixed.
57I note that James Hoth Mai is not referred to as a “suspect” in the offences referred to in any of Federal Agent White’s affidavits.[50]
[50]Exhibits JHM1, JHM2 and JHM3
58The terms “restraining order”, “examination order”, “interest in property”, “suspect” and “affairs of a person” as referred to in s180 of the POCA are defined in the Dictionary at s338:
“restraining order means an order under section 17, 18, 19, 20 or 20A that is in force.
…
examination means an examination under Part 3‑1.

examination notice means a notice given under section 183.
examination order means an order made under section 180, 180A, 180B, 180C, 180D, 180E, 181, 181A or 181B that is in force.
…
interest, in relation to property or a thing, means:
(a) a legal or equitable estate or interest in the property or thing; or
(b) a right, power or privilege in connection with the property or thing;
whether present or future and whether vested or contingent.

…
suspect means:
(a)in relation to a *restraining order (other than a restraining order made under section 20A) or a *confiscation order (other than an *unexplained wealth order)—the person who:

(i)has been convicted of; or
(ii)has been *charged with, or is proposed to be charged with; or
(iii)if the order is a restraining order—is suspected of having committed; or
(iv)if the order is a confiscation order—committed;
the offence or offences to which the order relates; or

(b)in relation to a restraining order made under section 20A or an unexplained wealth order—the person whose *total wealth is suspected of exceeding the value of *wealth that was *lawfully acquired.

…
affairs of a person includes, but is not limited to:
(a)the nature and location of property of the person or property in which the person has an interest; and
(b)any activities of the person that are, or may be, relevant to whether or not the person has engaged in unlawful activity of a kind relevant to the making of an order under this Act.”

59Section 183 provides that once an order has been made under s180, an approved examiner may, on application by the responsible authority, give to a person who is the subject of an examination order, a written notice for the examination of that person.
60“Responsible authority” is defined in s338 of the POCA:
“responsible authority, in relation to an application for a *principal order, or a principal order, or to an application, proceedings, function, order, power or duty related to, or arising out of, such an application or order, means:
(a) in the case of an application for a principal order:
(i) the *proceeds of crime authority that made the application; or
(ii)if responsibility for the application has been transferred under section 315B—the proceeds of crime authority to which responsibility has been transferred (or has been latest transferred) under that section; or

(b) in the case of a principal order:
(i)the proceeds of crime authority that made the application for the order; or
(ii)if responsibility for that application, or the order, has been transferred under section 315B—the proceeds of crime authority to which responsibility has been transferred (or has been latest transferred) under that section.

Note 1:The proceeds of crime authority is the Commissioner of the Australian Federal Police, or the DPP (see the definition of proceeds of crime authority in this section). Either authority may start and conduct proceedings under this Act.
Note 2:Section 315B provides that responsibility for an application for a principal order, or for a principal order, may be transferred between the 2 proceeds of crime authorities.”

61“Principal order” is defined in s338 to include a restraining order.[51]
[51]Section 338 definition of “principal order” subparagraph (a)
62An examination must take place in private, and the examinee is entitled to have his or her legal representative present at the examination. Section 188 of the POCA 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).”

63Section 189 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.”

64The examination need not take place in person, or face to face. Section 190 provides that an examination may be conducted by video link or telephone:
“(1)The *approved examiner may, on the request of a person referred to in paragraph 188(3)(b), (c) or (d), direct that a person be examined by video link if:
(a)the facilities required by subsection (2) are available or can reasonably be made available; and
(b)the approved examiner is satisfied that attendance of the person at the place of the *examination would cause unreasonable expense or inconvenience; and
(c)the approved examiner is satisfied that it is consistent with the interests of justice that the person be examined by video link.

(2)The person can be examined under the direction only if the place where the person is to attend for the purposes of the *examination is equipped with video facilities that enable the people referred to in subsection 188(3) to see and hear the person be examined.
(3)An oath or affirmation to be sworn or made by a person who is to be examined under such a direction may be administered either:
(a)by means of video link, in as nearly as practicable the same way as if the person were to be examined at the place of the *examination; or
(b)on behalf of the *approved examiner, by a person authorised by the approved examiner, at the place where the person to be examined attends for the purposes of the examination.

(4)The *approved examiner may, on the request of a person referred to in paragraph 188(3)(b), (c) or (d), direct that a person be examined by telephone if:
(a)the approved examiner is satisfied that attendance of the person at the place of the *examination would cause unreasonable expense or inconvenience; and
(b)the approved examiner is satisfied that it is consistent with the interests of justice that the person be examined by telephone.”

65The Court has no role to play in the examination,[52] although the examiner may refer questions of law to the Court. In this regard, s192 of the POCA provides:
“The *approved examiner may:
(a)on his or her own initiative; or
(b)at the request of the person being examined, or the *responsible authority;
refer a question of law arising at the *examination to the court that made the *examination order.”
[52]Commissioner of Australian Federal Police v P and Another (2018) FLR 83 at paragraph 51

66Division 4 of Part 31 of the POCA sets out various offences:
“Division 4—Offences
Note: In addition to the offences in this Division, there are other offences that may be relevant to examinations, such as sections 137.1 (false or misleading information) and 137.2 (false or misleading documents) of the Criminal Code.
195 Failing to attend an examination
A person commits an offence if the person:
(a)is required by an *examination notice to attend an *examination; and
(b)refuses or fails to attend the examination at the time and place specified in the notice.
Penalty:Imprisonment for 5 years or 300 penalty units, or both.

196 Offences relating to appearance at an examination
(1)A person attending an *examination to answer questions or produce documents must not:
(a)refuse or fail to be sworn or to make an affirmation; or
(b)refuse or fail to answer a question that the *approved examiner requires the person to answer; or
(c)refuse or fail to produce at the examination a document specified in the *examination notice that required the person’s attendance; or
(d)leave the examination before being excused by the approved examiner.

Penalty:Imprisonment for 5 years or 300 penalty units, or both.
(2)Paragraph (1)(c) does not apply if the person complied with the notice in relation to production of the document to the extent that it was practicable to do so.

Note: A defendant bears an evidential burden in relation to the matter in subsection (2): see subsection 13.3(3) of the Criminal Code.
197 Privileged information
(1)Paragraph 196(1)(b) or (c) does not apply if, under:
(a)a law of the Commonwealth; or
(b)a law of the State or Territory in which the *examination takes place;
the person could not, in proceedings before a court, be compelled to answer the question or produce the document.

Note: A defendant bears an evidential burden in relation to the matter in subsection (1): see subsection 13.3(3) of the Criminal Code.
(2)However, paragraph 196(1)(b) or (c) applies if the only reason or reasons why the person could not be so compelled are one or more of the following:
(a)answering the question or producing the document would tend to incriminate the person or to expose the person to a penalty;
(b)the answer would be privileged from being disclosed, or the document would be privileged from being produced, in legal proceedings on the ground of *legal professional privilege;
(ba)the answer would be privileged from being disclosed, or the document would be privileged from being produced, in legal proceedings on the ground of *professional confidential relationship privilege;
(c)the answer or document would, under a law of the Commonwealth, a State or a Territory relating to the law of evidence, be inadmissible in legal proceedings for a reason other than because:
(i)the answer would be privileged from being disclosed; or
(ii)the document would be privileged from being produced.

(3)To avoid doubt, the following are not reasons why a person cannot, in proceedings before a court, be compelled to answer a question or produce a document:
(a)the person is contractually obliged not to disclose information, and answering the question or producing the document would disclose that information;
(b)the person is obliged under a law of a foreign country not to disclose information, and answering the question or producing the document would disclose that information.

197AGiving false or misleading answers or documents
A person commits an offence if:
(a)the person is attending an *examination; and
(b)the person gives an answer or produces a document in the examination; and
(c)the answer or document:
(i) is false or misleading; or
(ii)omits any matter or thing without which it is misleading.

Penalty:Imprisonment for 5 years or 300 penalty units, or both.

198Admissibility of answers and documents
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; or
(f)in proceedings for an offence against this Part.”

67The POCA makes clear that proceedings are civil in nature, not criminal, and that certain statutory rules of construction that apply only in criminal law have no application in the interpretation of the POCA. Specially, s315 of the POCA provides:
“315 Proceedings are civil, not criminal
(1)Proceedings on an application for a *restraining order or a *confiscation order are not criminal proceedings.
(2)Except in relation to an offence under this Act:
(a)the rules of construction applicable only in relation to the criminal law do not apply in the interpretation of this Act; and
(b)the rules of evidence applicable in civil proceedings apply, and those applicable only in criminal proceedings do not apply, to proceedings under this Act.”

68The civil onus and standard of proof apply to applications brought under the POCA. Section 317 provides:
“(1)The applicant in any proceedings under this Act bears the onus of proving the matters necessary to establish the grounds for making the order applied for.
(2)Subject to sections 52 and 118, any question of fact to be decided by a court on an application under this Act is to be decided on the balance of probabilities.”[53]
[53]Note that s52 concerns the making of forfeiture orders if a person has absconded, and s118 concerns the making of pecuniary penalty orders if a person has absconded

69Section 335 provides:
“335 Proceeds jurisdiction
(1)Whether a court has proceeds jurisdiction for an order, other than a *preliminary unexplained wealth order or an *unexplained wealth order, depends on the circumstances of the offence or offences to which the order would relate.

General rules
(2)If all or part of the conduct constituting an offence to which the order would relate:
(a)occurred in a particular State or Territory; or
(b)is reasonably suspected of having occurred in that State or Territory;

the courts that have proceeds jurisdiction for the order are those with jurisdiction to deal with criminal matters on indictment in that State or Territory.
(3)If all of the conduct constituting an offence to which the order would relate:
(a)occurred outside *Australia; or
(b)is reasonably suspected of having occurred outside *Australia;

the courts that have proceeds jurisdiction for the order are those of any State or Territory with jurisdiction to deal with criminal matters on indictment.”

The Mutual Assistance in Criminal Matters Act 1987 (Cth)
70The respondent submits that various provisions of the MAICMA are relevant to the submission that the Court has no extraterritorial jurisdiction to make an examination order against Mr Mai because he is not an Australian citizen, he has no visa to enter Australia, he is domiciled in South Sudan and is not presently in Australia.
71Section 3 of the MAICMA contains a number of relevant definitions for the purposes of the present application:
“(1)    In this Act, unless the contrary intention appears:
…
Australian forfeiture order means:
(a)    a forfeiture order within the meaning of a proceeds of crime law; or
(aa) a declaration made under section 95 of the Proceeds of Crime Act; or
(ab)a declaration made under subsection 30(8A) of the Proceeds of Crime Act 1987; or
(b)an interstate forfeiture order within the meaning of the Proceeds of Crime Act; or
(c)    an order or declaration, made under Australian law, that:
(i)orders the forfeiture of property in respect of an offence against Australian law or declares that property has been forfeited in respect of an offence against Australian law; and
(ii)is, in accordance with the regulations, to be taken to be an Australian forfeiture order for the purposes of this Act.

Australian law means the laws of the Commonwealth, the States and the Territories.
…
Australian restraining order means:
(a)a restraining order within the meaning of a proceeds of crime law (other than a restraining order made by virtue of section 59 of the Proceeds of Crime Act 1987 or section 34K of this Act); or
(b)an interstate restraining order within the meaning of the Proceeds of Crime Act; or
(c) an order, made under Australian law, that:
(i)restrains a particular person, or all persons, from dealing with property; and
(ii)is, in accordance with the regulations, to be taken to be an Australian restraining order for the purposes of this Act.

…

criminal investigation means an investigation into an offence (whether the offence is believed to have been committed, to be being committed or to be likely to be committed).
criminal matter includes:
(a)a criminal matter relating to revenue (including taxation and customs duties);

(b) a criminal matter relating to foreign exchange control;
(c)a matter relating to the forfeiture or confiscation of property in respect of an offence;
(d)a matter relating to the imposition or recovery of a pecuniary penalty in respect of an offence; and
(e)a matter relating to the restraining of dealings in property, or the freezing of assets, that may be forfeited or confiscated, or that may be needed to satisfy a pecuniary penalty imposed, in respect of an offence;
whether arising under Australian law or a law of a foreign country.

criminal proceeding, in relation to an offence, means a trial of a person for the offence or a committal proceeding in respect of the offence.
…

foreign law immunity certificate means a certificate given, or a declaration made, by a foreign country or under a law of a foreign country, certifying or declaring that, under the law of the foreign country, persons generally or a specified person could or could not, either generally or in specified proceedings and either generally or in specified circumstances, be required:
(a) to answer a specified question; or
(b) to produce a specified document.
…
instrument, in relation to an offence, has the same meaning as in the Proceeds of Crime Act.

…
interest, in relation to property, has the same meaning as in the Proceeds of Crime Act.
…
investigative proceeding means a proceeding covered by paragraph (a) or (b) of the definition of proceeding.
…

Money‑Laundering Convention means the Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime, done at Strasbourg on 8 November 1990.
money laundering offence, in relation to the proceeds of a serious offence, means an offence that is committed by a person:
(a)engaging, directly or indirectly, in a transaction that involves money, or other property, that is proceeds of the offence; or
(b)receiving, possessing, concealing, disposing of or bringing into a country money, or other property, that is proceeds of the offence;

when the person knows that, or is reckless of whether or not, the money or other property is proceeds of a serious offence.
mutual assistance treaty means a treaty relating in whole or in part to the provision of assistance in criminal matters.
…
offence includes an offence against a law relating to taxation, customs duties or other revenue matters or relating to foreign exchange control.
…
proceeding, in relation to a criminal matter, includes a proceeding before a judicial officer or a jury for the purpose of:
(a)gathering evidential material that may lead to the laying of a criminal charge; or
(b)assessing evidential material in support of the laying of a criminal charge.

proceeds, in relation to an offence, has the same meaning as in the Proceeds of Crime Act.
proceeds jurisdiction has the same meaning as in the Proceeds of Crime Act.
Proceeds of Crime Act means the Proceeds of Crime Act 2002.
…
proceeds of crime law means:
(a)    the Proceeds of Crime Act 2002; or
(b)    the Proceeds of Crime Act 1987.
property has the same meaning as in the Proceeds of Crime Act.
…
public authority of a foreign country means any authority or body constituted by or under a law of a foreign country.
…
serious offence means an offence the maximum penalty for which is:
(a)    death; or
(b)    imprisonment for a period exceeding 12 months; or
(c)    a fine exceeding 300 penalty units.
Note 1: See section 4AA of the Crimes Act 1914 for the current value of a penalty unit.
Note 2: Paragraph (c)—see also subsection (1A) of this section.
…

video link means a video and sound system that enables persons assembled in a place in a country to see, hear and talk to persons assembled in a place in another country.”
72The objects of the MAICMA are set out in s5:
“The objects of this Act are:
(a)to regulate the provision by Australia of international assistance in criminal matters when a request is made by a foreign country in respect of which powers may be exercised under this Act (whether or not in conjunction with other Australian laws); and

(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.’

No grounds stated by the Commissioner
35.At the outset, in support of the Examination Application, the Commissioner has not expressed the grounds upon which it is made. It is presumed, but uncertain, that the First White Affidavit is relied upon in support of the application. Much has transpired since the date of the filing of his Examination Application in December 2017, to present day.
36.The Court of Appeal in Lam v Commissioner of the AFP stated that:
‘We do not doubt that an applicant for an examination order under ss 180, 180A and 180B needs to show that there are adequate grounds for the order to be granted. Nor do we doubt that, generally, the purpose of an examination should be limited to circumstances where there are real questions as to the true position with respect to the source and ownership of property that is subject to a restraining order or property which might be the proceeds of crime.’

37.Simply, the real questions sought to be ascertained on the examination, have not been enunciated by the Commissioner. This is the subject of the application for further and better particulars, but also, clearly has application to the Examination Application. These matters are of particular importance where a fulsome explanation has been provided in support of the Exclusion Application and the Compensation Application.
38.There are two other grounds which tend against the Court exercising its jurisdiction here.

Futility of enforcement
39.Firstly, for the reasons set out above, the enforcement of any examination order and subsequent examination notice would be futile. Examination notices are a compulsive process akin to a mandatory injunction at common law, necessitating a proposed examinee to be examined in accordance with the provisions of the POCA, and criminally penalising persons under s 195 for refusal or failure to attend and examination.
40.Accordingly, the Court’s long history of having regard to futility of orders in mandatory injunction cases is instructive as to whether or not the Court in this case ought exercise its jurisdiction. The Court of Appeal stated in Re Applications by Chief Commissioner of Police (Vic) for Leave to Appeal:
‘Only a moment’s thought is required to appreciate that the making of orders of the kind sought here would present immense practical difficulties, whether considered in terms of duration, scope of effectiveness. In our view the point was well made by Lord Hatherley, L.C. almost 140 years ago in language perhaps more suited to its time:
‘there are cases where the Court will take care not to pronounce an idle and ineffectual order; for instance, the Court will not issue a mandatory injunction where it is impossible that the mandatory injunction can by any means be complied with. The simplest illustration of this is the case of cutting down timber. It would be idle when the trees have been cut down to make an order not to allow the trees to remain prostrate, … . Take another illustration. There might be a bank to prevent the influx of the sea, and that bank might be most improperly destroyed; the Court would restrain the performance of the act if it were in time to do so, but the act having been done once, and the sea admitted, the Court could only then leave the parties to their remedy for damages, considering it impossible to exclude the sea.’ ’

41.In circumstances where:
a)there is no bilateral treaty for mutual assistance between Australia and South Sudan;
b)Mr Hoth Mai is a member of the executive of the Government of South Sudan;
c)Mr Hoth Mai is domiciled in South Sudan;
d)Mr Hoth Mai has no visa to enter Australia;
e)Non-residents of Australia not being permitted to enter Australia under current Covid-19 restrictions;
f)There being no mechanism in which to take Mr Hoth Mai’s evidence under an examination abroad given its distinctive features as an information gathering process,

any order for examination, and any subsequent examination notice, would be entirely futile.

Principles of international comity
42.Secondly, the principles of international comity, stated in Gloucester as follows, have clear application here:
‘Comity includes that principle of restraint by which courts, recognising the essentially territorial nature of their jurisdiction, are slow to assert their judicial power beyond the limits of their own jurisdiction so as to interfere with the sovereignty of a foreign State. The defendant recognised that this aspect of the principle of comity is a relevant factor when a court is considering exercising its judicial power in a foreign State through the issue of a subpoena to a recipient in that foreign State.’

43.Further, of this principle, in Polites v Commonwealth, Dixon J of the High Court said:
‘It is a rule of construction that, unless a contrary intention appears, general words occurring in a statute are to be read subject to the established rules of international law and not as intended to apply to persons or subjects which, according to those rules, a national law of the kind in question ought not to include.’

44.In Gloucester, White J referred to the decision of Re Deposit and Investment Co Ltd where Lockhart J held that a rule of the Federal Court was not to be read as an extension of the Court’s jurisdiction. His Honour said that ‘to invade the sovereignty of another country’s jurisdiction and interfere with its sole power over persons present within it, stronger and clearer language is needed …’. That case concerned the service of examination orders under the Corporations Law on persons resident in Hong Kong and Japan.
45.Finally, the High Court stated in Agar v Hyde in relation to service of an originating motion outside the jurisdiction, as follows:
‘Considerations of comity, and consequent restraint, have informed many of the reported decisions about service out of the jurisdiction. It is, however, important to notice that rules of court, or local statutes, providing for service outside the jurisdiction are now –commonplace - at least in jurisdictions whose legal systems have been formed or influenced by common law traditions. Further, as the Court of Appeal rightly noted in its reasons in these matters, contemporary developments in communications and transport make the degree of ‘inconvenience and annoyance’ to which a foreign defendant would be put, if brought into the courts of this jurisdiction, ‘of a qualitatively different order to that which existed in 1885.’

46.In this case, the scheme of the POCA is such that, upon an examination order being granted under s 180, an approved examiner would be empowered under s 183(1) to give to the examinee, an examination notice pursuant to s 185. There is no provision either in the POCA or its regulations, empowering an approved examiner to effect or give leave for service of an examination notice to a person outside of Australia. This indeed is consistent with a reading of the provisions of the POCA that Parliament did not intend examination orders to have extra territorial effect.
47.Further, there is no bilateral treaty between Australia and South Sudan to facilitate service of such a process within South Sudan. South Sudan is not a party to the Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil and Commercial Matters 1965, which underpins rule 7.02 of the County Court Civil Procedure Rules 2018 (Vic) for service of judicial and extrajudicial documents outside of Australia.
48.Accordingly, consistent with principles of comity, this Court ought not construe the provisions of the POCA (ss 13 and 180) so widely as to empower not the Court, but an ‘approved examiner’, under an information gathering process (cf. judicial exercise of power), to compel a foreign non-resident to attend at an examination hearing to be conducted at and from Australia. Further, that where this proposed examinee is an incumbent Minister of Labour for the Government of South Sudan, being a member of the executive arm of the Republic of South Sudan, that there is a real and actual issue of interference with the sovereignty of the Republic of South Sudan.

Delay
49.Thirdly, (and as foreshadowed above) delay is a real and practical issue in this case. In Dong Hua, delay was a decisive factor in the Court not exercising its discretion in favour of the examination of persons resident in China. T Forrest J was concerned with the practical effect on the proceeding of any further delay, his Honour stated:
‘If I were to grant these applications it is entirely unclear to me as to whether and when the examinations of the five Chinese residents would occur. Even if the Act has extraterritorial reach, and a foreign non-party resident can be compelled to respond to compulsive Australian court process, there is no temporal certainty at all. As I have indicated I am asked to exercise a broad discretion that involves consideration of many factors, including delay. I have concluded that delay, in the context of the procedural history that I have outlined, is a decisive factor in the exercise of my discretion.’

50.In this case, the delay is incalculable. As deposed to in the affidavit of Gerard Maxted affirmed 18 October 2021, Mr Hoth Mai has no current visa enabling him to enter Australia. Mr Hoth Mai is neither a citizen nor permanent resident of Australia. Further, Mr Hoth Mai’s spousal visa application has been pending since 26 June 2014. No determination has been made.
51.For all these reasons, this Court ought not exercise its discretion to grant an examination order against Mr Hoth Mai.”[97]
[97]Exhibit JHM-C, paragraphs 33-51, citations and footnotes omitted

The Applicant’s contentions – the exercise of discretion[98]
[98]Exhibit JHM-4, paragraphs 62-90
160The applicant submits that the Court should exercise its discretion in favour of granting the order for the following reasons:
(a) The affidavit material filed on behalf of the Mai respondents leaves many questions unanswered about the provenance of the funds used to acquire the property. As the applicant’s counsel put it:
“65.Even a cursory review of the affidavit material reveals areas that might be covered at an examination and which would be relevant to the resolution of the exclusion and compensation applications, and to the Commissioner’s forfeiture application. Without in any way seeking to be exhaustive, these areas include:
a.The total salary and expenses of James, as briefly discussed but without any detail in his affidavit at [46]-[49], including documentation in respect of any savings, income or expenditure.
b.Any salary earned by James after his retirement from the Army, or from other sources, not outlined in the affidavit.
c.How the rental properties discussed at [53] and following were purchased, including whether James obtained any loans or finance to purchase the properties.
d.Whether James has had to incur any expenses in respect of the rental properties, including by way of refurbishment, extension, rebuilding or other maintenance; and the value of that expenditure.
e.How James came to meet Samson Demissie (mentioned at [72]), the nature of their friendship, any other business or dealings that the two have had, and the discussions that took place about the start of the business.
f.How the funding mentioned at [75] was sourced, including how that ‘sourcing’ interacts with the discussion of salary in the affidavit.
g.Detail of any discussions with the Suspect about the business, his role in it, the legal obligations of directors, the division of ownership of the company and so on.
h.Further detail of the matters mentioned at [82], including what were the sources of income flows mentioned in that paragraph; how the unrest impacted on James’ income; how access to funds was affected and where those funds were deposited; what “work” was done to secure further financing and so on.
i.Further detail about the advice received from the Commonwealth Bank mentioned at [102], and any discussions that took place with the National Australia Bank (Sportscars’ bank).”[99]
[99]Exhibit JGM-4, paragraph 65

(b)   Much of the information regarding the source of the funds used to acquire the property is within the exclusive knowledge of Mr Mai. He is the one best placed to provide viva voce and documentary evidence supporting his claims about the financial resources he had available to fund the purchases of the property;
(c)   It has not been established that Mr Mai would fail or refuse to comply with an examination order or an examination notice;
(d)   In any event, there are means to facilitate Mr Mai’s participation in the examination;
(e)   It is reasonable to assume that Mr Mai will comply with an examination order because it is in his best interests to do so;
(f)    Principles of international comity do not stand as an obstacle to exercise the discretion in favour of making an examination order against Mr Mai;
(g)   While delay will be caused if an examination order is made, that inherent delay arises because of the structure of the POCA and therefore must be considered as acceptable. In particular, s32 and s79A of the POCA guarantee that the responsible authority must be given a reasonable opportunity to conduct examinations before applications for exclusion and compensations orders are determined; and
(h)   The respondents are responsible to the extent that there has been delay in the proceeding thus far.
Analysis
161The applicant bears the onus of proof, on the balance of probabilities. The issue is whether the applicant has discharged the burden of proving that the Court’s discretion should be exercised in favour of making the examination order.
162The parties agree that the matters that the Court should take account of when determining whether to exercise the discretion in favour of granting the examination order are set out by Dixon J in Mah:[100]
“[28]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 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.”[101]
[100]Supra
[101]Supra at paragraph 28

163I have referred to the affidavit material concerning Mr Mai and the subject matter of the proposed examination.[102]
[102]      Paragraphs 17-22 of this ruling
164I have earlier set out the evidence as contained in Federal Agent White’s three affidavits. That evidence explains in sufficient detail why the examination is sought and what is sought to be achieved by conducting an examination of Mr Mai. Mr Mai does not appear to be on the periphery of the transactions. To the contrary, he appears to be the main, if not sole contributor of the funds used to acquire the property. The material raises real questions as to the source of those funds. According to Mr White, Mr Mai claims to have funded the purchase of the restrained property through his salary and from other resources in South Sudan, yet apparently no financial records have as yet been produced to enable the source of those funds to be traced or verified. There are many questions raised that the Commissioner seeks to have answered. In my view, an examination would inform all of the applications pending in the current proceedings, including the applications that Mr Mai has made for exclusion and compensation orders.
165With respect, I do not agree that the Commissioner has failed to identify adequately the reasons why an examination order should be made. They are fully set out in Federal Agent White’s three affidavits.
166As to the respondent’s suggestion that it would be futile to make an order if it cannot be enforced, in all the circumstances of this case, and for the following reasons, there are grounds to be confident that formal enforcement will not likely be necessary:
(a)   Mr Mai has not deposed or otherwise indicated through his legal representatives that he will refuse to participate in an examination if it is ordered;
(b)   Mr Mai has applications on foot for exclusion and compensation orders. He will bear the onus of proof in relation to those applications and will probably need to participate in those proceedings. For example he may need to explain how he has any legal, equitable or other beneficial interest in the car when he swore that the car was purchased for his daughter, Titchiang Hoth Mai, as her eighteenth birthday present.[103] Similarly, Mr Mai deposed that the Narre Warren property was purchased for the benefit of his family, although registered in his son’s name for cultural reasons.[104] Mr Mai claims to have an interest in both the real estate and in the car, yet he has not provided any evidence of any trust deeds or any other evidence to support a finding that his children hold those assets as trustees for him. In any event, he may have to face cross-examination about all of the matters to which he deposed in his affidavit of 7 May 2021;
(c)   Mr Mai has engaged solicitors in Victoria to act on his behalf. He has provided his solicitor’s address as his address for service in Victoria. In neither of his two affidavits has Mr Maxted, Mr Mai’s solicitor, stated that he will not likely have instructions to accept service on behalf of his client of any order made in these proceedings, or any examination notice if one is issued;[105]
(d)   Mr Mai has already used video link facilities in connection with these proceedings when he swore his affidavit. The examiner may facilitate Mr Mai’s attendance at an examination via video link or by telephone;
(e)   If Mr Mai fails to cooperate with an examination notice, it is a matter that might well be taken into account by the Court when considering the merits of his applications for exclusion and compensation orders. Accordingly, he has every incentive to explain how he was able to fund the purchase of the property.
[103]See paragraphs 83 and 84 of Mr Mai’s affidavit of 7 May 2021
[104]See paragraph 97 of Mr Mai’s affidavit of 7 May 2021
[105]See also the applicant’s submissions regarding the possible means of effecting service on Mr Mai and the possible methods of conducting an examination when a person is outside Australia – exhibit JHM-4, paragraphs 31-55
167Even if a belief that formal enforcement may not be necessary is misplaced, difficulty in enforcement of an order does not compel the Court to refuse to exercise the discretion in favour of making the order.[106]

[106]See for example Deputy Commissioner of Taxation v Huang (supra) at paragraph [30]
168Regarding the relevance of principles of international comity, no question of infringing the sovereignty of South Sudan may ever arise. That is so, particularly as no claim for diplomatic immunity is made on Mr Mai’s behalf. I also refer to paragraph 63 of Mah[107] cited earlier in this ruling.[108]
[107]Supra
[108] Paragraphs 101-103 of this ruling
169Mr Mai’s participation via electronic communication passing between South Sudan and Australia is unlikely to touch upon any question of South Sudan’s sovereignty.
170While the Evidence (Miscellaneous Provisions) Act 1958 (Vic) provides for an alternative means of appearing and/or giving evidence in court by way of a video link from any location, with such evidence being regarded as an appearance before the Court and evidence given in Court, the provisions of the POCA are not in as clear terms insofar as they relate to examinations conducted via video link or by telephone.
171Section 42E of the Evidence (Miscellaneous Provisions) Act 1958 (Vic) provides:
“42E Appearance, etc. by audio visual link or audio link
(1)Subject to section 42F and to any rules of court, a court may, on its own initiative or on the application of a party to the legal proceeding, direct that a person may appear before, or give evidence or make a submission to, the court by audio visual link or audio link from any place within or outside Victoria, or outside Australia, that is outside the courtroom or other place where the court is sitting.”

(emphasis added)

172Section 42E is relevant to evidence given in a court, not to evidence given in an examination conducted under the POCA.
173If Mr Mai presses his applications for exclusion and compensation orders and if he is required to attend the hearing of the proceeding in this Court to face cross-examination on his affidavit, as Mr Gyorffy pointed out, Mr Mai might well request that he appear and give evidence via video link. If that were the case, that hearing would not be considered to be taking in place in South Sudan just because Mr Mai is at that location. He would be appearing in Melbourne, giving evidence in Melbourne, such appearance facilitated by audio visual link.
174The applicable provisions allowing for evidence to be given in examinations ordered under the POCA from remote locations, including from locations outside Australia, are, as mentioned earlier, to be found in s190:
“(1)The *approved examiner may, on the request of a person referred to in paragraph 188(3)(b), (c) or (d), direct that a person be examined by video link if:
(a)the facilities required by subsection (2) are available or can reasonably be made available; and
(b)the approved examiner is satisfied that attendance of the person at the place of the *examination would cause unreasonable expense or inconvenience; and
(c)the approved examiner is satisfied that it is consistent with the interests of justice that the person be examined by video link.

…
(4)The *approved examiner may, on the request of a person referred to in paragraph 188(3)(b), (c) or (d), direct that a person be examined by telephone if:
(a)the approved examiner is satisfied that attendance of the person at the place of the *examination would cause unreasonable expense or inconvenience; and
(b)the approved examiner is satisfied that it is consistent with the interests of justice that the person be examined by telephone.”

(emphasis added)

175The use of the words “attendance of the person at the place of the examination” imply that the examination occurs at the place where the examiner has selected, and that the examinee who participates from a remote location is nevertheless attending at the place of examination, such participation being facilitated by video link or telephone.
176I note that the Court has not been asked to direct where the examination is to take place. The Court has only been asked to make an examination order. It will be up to the examiner to determine the location and date of such examination.[109] The examiner will then be required to give notice of the examination to the examinee,[110] such notice to comply with s185 of the POCA. If Mr Mai so requests, his participation can be facilitated by video link or by telephone.[111]
[109]Section 186 of the POCA
[110]Section 183 of the POCA
[111]Section 190 of the POCA
177Mr Mai has not given evidence about whether he would make such a request if an examination order were to be made against him. Nor have his counsel indicated whether such a request would be made in the event that an examination order is made. For the reasons identified above, it would appear that Mr Mai has every incentive to request a video link so that he can participate in the examination as the fate of his applications for exclusion and compensation orders might well depend upon it. His failure to attend might also give rise to criminal proceedings in Australia because of that failure, as was acknowledged by Mr Gyorffy.[112]
[112]Section 195 of the POCA; T77
178Finally, on the question of whether delay is a significant factor weighing against the granting of the order, much of the delay to date has been caused by Mr Mai and/or the other Mai respondents. The respondents are entitled to take every legitimate point in prosecution of their respective claims, and they are not to be penalised for that. Importantly, however, there is no evidence that the Commissioner has caused or contributed to any significant delay.
179As to any future delay that may be occasioned to the pending proceedings by reason of an examination being conducted, the respondent has not pointed to any significant prejudice that will be suffered if the order is made. If Mr Mai co-operates, any delay can be kept to a minimum. In any event, the Commissioner has given the usual undertaking as to damages, a fact recorded in the Restraining Order:
“The Applicant by his Counsel, on behalf of the Commonwealth, undertakes to abide by any order of the court as to damages sustained by any relevant person who has an interest in the property the subject of this order and who is not in any way involved in the alleged offending, if the court should determine that the said damages have been sustained by reason of this order and which the Commonwealth ought to pay.”[113]
[113]Restraining Order made by his Honour Judge Murphy on 19 December 2017, page 1
180The adequacy of that undertaking has not been challenged.
181No application has been made to enable the restrained property to be converted to cash or to any other form of property, such as another dwelling.
182As the applicant’s counsel have pointed out, under s32 and s79A of the POCA, the Commissioner must be given a reasonable opportunity to conduct any examinations before the Court hears the remaining pending applications for exclusion and compensation orders.
183In the absence of evidence as to the prejudicial effect of delay, there is no reason to thwart an important information gathering process established by the POCA.
Findings – the exercise of discretion
184I have taken account of the factors identified by the parties as relevant to the exercise of the Court’s discretion.
185Having balanced all competing factors, I am satisfied to the requisite degree that the discretion should be exercised in favour of making the examination order against Mr Mai.

Conclusion and Orders
186The Court has jurisdiction to make an examination order under s180 of the POCA against Mr Mai, even though he is not currently in Australia.
187In any event, Mr Mai has submitted to the jurisdiction.
188The factors relevant to the exercise of the Court’s discretion weigh in favour of granting the examination order.
189The Court is satisfied in all the circumstances that the Commissioner’s application for an order to examine Mr Mai under s180 of the POCA should be granted.
190I shall hear the parties on the question of costs.

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[2021] VCC 2054

17 December 2021