Commissioner of the Australian Federal Police v Cacu

The Commissioner of the Australian Federal Police (AFP) sought to appeal a decision of the primary judge who had granted a stay of examination orders made against Mr Cacu. These examination orders, along with a sworn statement, were made ex parte under the *Proceeds of Crime Act 2002* (Cth) and required Mr Cacu to provide information concerning his property, liabilities, and dealings with property. The subject matter of these orders was the same as that of a pending criminal charge against Mr Cacu.

The central legal issue before the Full Federal Court was whether the primary judge erred in granting a stay of the examination orders. Specifically, the court had to consider whether Mr Cacu was at risk of prejudice in the conduct of his defence in the criminal trial due to the potential for prior disclosure to the prosecuting authority of information obtained through the compulsory processes of the examination orders, in the absence of such a stay.

The Full Federal Court reasoned that the purpose of the stay was to prevent prejudice to Mr Cacu's defence in the criminal proceedings. The court acknowledged that the compulsory examination process could compel the disclosure of information that might be used against Mr Cacu in his criminal trial, thereby undermining the fairness of those proceedings. The court applied the principle that a party facing criminal charges should not be compelled to assist the prosecution in building its case against them through compulsory disclosure mechanisms, particularly when the subject matter of the criminal charge and the examination orders are identical.

The Full Federal Court granted the Commissioner leave to appeal but ultimately dismissed the appeal, upholding the primary judge's decision to grant the stay of the examination orders.