Commissioner of the Australian Federal Police v D C

SUPREME COURT OF SOUTH AUSTRALIA
(Civil)
COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE v D C & ANOR
[2025] SASC 9
Judgment of the Honourable Chief Justice Kourakis
CRIMINAL LAW - PROCEDURE - CONFISCATION OF PROCEEDS OF CRIME AND RELATED MATTERS
CRIMINAL LAW - PROCEDURE - CONFISCATION OF PROCEEDS OF CRIME AND RELATED MATTERS - RESTRAINING OR FREEZING ORDER - INVESTIGATION AND EXAMINATION
This was an interlocutory application brought by the first respondent for a stay of proceedings instituted by the Commissioner of the Australian Federal Police, seeking orders pursuant to the Proceeds of Crimes Act 2002 (Cth) (‘the POC Act proceedings’).
The underlying criminal proceedings relate to prosecutions of the first respondent in both Australia and the United States of America for various drug, financial, and organised crime offences, most of which are said to arise from the first respondent’s engagement in, and facilitation of, criminal offending on the ‘AN0M’ encrypted communications smart phone application.
The first respondent submitted that it is in the interests of justice to stay the POC Act proceedings, on the ground that he would otherwise suffer prejudice in conducting his defence for both sets of criminal charges.
Held, dismissing the application:
1. The first respondent failed to identify any prejudice over and above the general disclosure prejudice which arises whenever POC Act proceedings are brought while related criminal proceedings are pending.
2. As there is a low level of risk of leakage of information to criminal investigators and prosecutors, the risk of disclosure is not such as to warrant a stay of the POC Act proceedings.
Proceeds of Crime Act 2002 (Cth) ss 7, 8, 38, 39A, 183, 186, 196, 197, 266A, 297B, 315, 319, 338, 377A; Evidence Act 1929 (SA) s 21; Evidence Act 1995 (Cth) s 18; Supreme Court Act 1935 (SA) s 131, referred to.
Brannigan v Davison [1997] AC 238 ; Onley v Commissioner of Australian Federal Police (2019) 367 ALR 291, applied.
Commissioner of Australian Federal Police v Elzein (2017) 94 NSWLR 700; Commissioner of Australian Federal Police v Zhao (2015) 255 CLR 46, distinguished.
Hammond v The Commonwealth (1984) 152 CLR 188; X7 v Australian Crime Commission & Anor (2013) 248 CLR 92, discussed.

COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE v D C & ANOR
[2025] SASC 9
Civil: Application

KOURAKIS CJ: This is an interlocutory application brought by the first respondent for a stay of proceedings (the POC Act proceedings) instituted by the applicant, the Commissioner, which seeks a variety of restraining, custody, control, ancillary, and forfeiture orders pursuant to the Proceeds of Crimes Act 2002 (Cth) (the POC Act).
The scheme of the POC Act is explained by s 6 of that Act. Chapter 2 of the POC Act enacts processes by which confiscation of the proceeds of crime can occur and Chapter 3 enacts ways in which Commonwealth law enforcement agencies can obtain information relevant to those processes. Section 7 of the POC Act sets out the confiscation processes, which include:
·freezing orders limiting transactions involving accounts of financial institutions;
·restraining orders prohibiting the disposal of or dealing with property;
·forfeiture orders forfeiting property to the Commonwealth.
Section 8 explains that the information gathering processes include:
·examining a person about their affairs;
·making production orders requiring people to produce property-tracking documents;
·requiring financial institutions to provide information relating to accounts;
·requiring financial institutions to provide information about transactions, ‘monitoring orders’;
·searching for and seizing potential material.
Part 3.1 of the POC Act provides for applications to be made for examination orders of persons who may have an interest in property which is subject to a restraining order. A person who wishes to have property excluded from a restraining or forfeiture order must give notice of the grounds on which the exclusion is sought, and may be compulsorily examined in respect of the application.
The obligation to answer questions in the course of an examination is imposed by s 196 of the POC Act which provides that a person who attends an examination but refuses to be sworn, fails to answer questions, or refuses to produce documents specified in the notice which required the person’s attendance, commits an offence punishable by a maximum of five years imprisonment.
Section 197 of the POC Act provides that the privilege against self‑incrimination and legal professional privilege do not excuse compliance with s 196 of the POC Act.
The property with respect to which orders against the respondents are sought comprises real and personal property beneficially held by, or subject to the effective control of the first respondent. The POC Act proceedings have been brought contemporaneously with prosecutions of the first respondent in Australia and the United States of America (the USA) for a multitude of drug, financial, and, loosely speaking, organised crime offences, most of which are said to arise from the first respondent’s engagement in, and facilitation of, criminal offending on the ‘AN0M’ encrypted communications smart phone application. The Commissioner alleges that the property over which the freezing and forfeiture orders are sought, is wholly, or in large part, the proceeds of the offences with which the first respondent has been charged.
In the course of committal proceedings in respect of the Australian charges, the first respondent has been served with a brief of the evidentiary material on which the prosecution intends to rely. The first respondent has now been committed for trial in South Australia. The charges in the USA are not much advanced. The first respondent’s understanding of the nature of those charges is based on information gleaned from the internet by his solicitor.
The Commissioner has applied for examination notices to be issued to the first respondent and, the second respondent, who is his spouse, and who claims lawful interests in some of the property the subject of the Commissioner’s forfeiture application.
Section 319(1) of the POC Act confers a statutory power on a court to stay a POC Act proceeding if it considers that it is in the interests of justice to do so. Subsections (2)-(5) of s 319 of the POC Act exclude from those grounds which might otherwise prejudice the ‘interests of justice’ the existence of extant, or proposed, related criminal proceedings against the respondent or any other person. The exclusion applies even if the respondent might consider it necessary to give evidence in the POC Act proceeding which is relevant to the extant, or proposed, criminal proceedings, and notwithstanding the similarity between the POC Act proceedings and the criminal proceedings.
On a proper construction of s 319 of the POC Act, the term ‘criminal proceeding’ must extend to any proceeding, the just disposition of which, enlivens the statutory power. Section 319 of the POC Act would lack coherence if it were otherwise. Both the Commissioner and the respondents submit that the interests of justice encompasses the just hearing and determination of the charges in the USA. With some reservation, I proceed on that premise, and therefore also on the basis that criminal proceedings include, for the purposes of s 319 of the POC Act, the USA charges.
The prejudice on which the first respondent relies is no more than the circumstance that there are related extant criminal charges. The first respondent has failed to identify any prejudice over and above the systemic or general disclosure prejudice which arises whenever POC Act proceedings are brought when related criminal proceedings are pending. Additionally the Commissioner has offered to consent to orders pursuant to 266A and cl 18 of Schedule 1 of the POC Act prohibiting disclosure of any information, obtained in the course of the POC Act proceeding or through any of the compulsory processes of the POC Act, to any investigative or prosecuting criminal justice agency, domestic or foreign. An order prohibiting such disclosure has been made in respect of affidavits already filed in these proceedings by the respondents. The Commissioner has also offered not to oppose any applications which the respondents might make for hearings to proceed in closed courts and for suppression orders. Moreover, the Commissioner has established standard operating procedures which effectively guard against the risk of leakage of that material.
The application for a stay must therefore be dismissed. I elaborate on my reasons below.
The stay application
The orders sought by the first respondent and the grounds on which they rely on their stay application, as amended, are:
The First Respondent seeks a temporary stay of these proceedings until the final disposition (including appeals) of the criminal charges that the First Respondent faces in Australia[1] (‘the Australian charges’) and the United States of America[2] (‘the USA charges’).
[1]    Information filed in the Adelaide Magistrates Court on 10 June 2021 (Exhibit HP4 to the affidavit of Harry Iraklis Paul Patsouris sworn 2 May 2022) and the Information filed in the Adelaide Magistrates Court on 17 May 2022 (Exhibit HP8 to the affidavit of Harry Iraklis Paul Patsouris sworn 26 May 2022).
[2]    Indictment filed in the USA District Court, Southern District of California on 28 May 2021 (Exhibit HP1 to the affidavit of Harry Iraklis Paul Patsouris sworn 2 May 2022).
The grounds upon which the First Respondent seeks a temporary stay pursuant to section 319 of the Proceeds of Crime Act 2002 (‘POCA’) is that it is in the ‘interests of justice’[3] to do so. The First Respondent contends that the ‘interests of justice’ includes, inter alia, the following matters:
[3]    Proceeds of Crime Act 2002 (Cth) s 319.
1.The interests of justice allowed for by the POCA requires the Australian Court to consider not only the interests of justice in the Australian context but also by reference to the principles of comity, the interests of justice in the American context.
2.To allow these proceedings to continue will cause the First Respondent to suffer prejudice and forensic disadvantage in the manner in which the First Respondent may conduct his defence of the Australian charges and the USA charges, including:
In respect of the Australian charges
2.1.   prejudice to be suffered in defence of the Australian charges, including a limitation on the defences available to the First Respondent.
In respect of the USA charges
2.2.   prejudice to be suffered in the defence of the USA charges, including a limitation upon the defences available to the First Respondent.
2.3. The risk of prejudice to the First Respondent arises if, contrary to the interpretation that the Respondents will advance, section 197(2)(a) of POCA interpreted as abrogating the privilege against self-incrimination in respect of offences against or arising under a law of a foreign country. The Respondents contend that reliable may be placed on the application of section 197(1) and 197(2)(a).
…
(footnotes in original)
The stay for which the respondents contend would expire on the occasion of earliest conviction in time recorded against the first respondent. It is important to observe at the outset that the temporary nature of the stay may render it ineffective in respect of the charges laid in the USA because their prosecution will necessarily be deferred until after the final disposition of the Australian charges. If a fresh application for a stay pending the finalisation of the charges laid in the USA is made, for example because the first respondent is acquitted of all Australian charges, the stay would be extended for an uncertain but lengthy period.
The narrative of the first respondent’s application explains that he has been charged in Australia with drug trafficking offences and in the USA with administering the ANOM encrypted messaging platform. He intends to plead not guilty and to put the prosecution to proof of the cases against him. The narrative alleges that the examination proceedings brought pursuant to the POC Act seek information concerning the first respondent’s assets, the source of the funds used to purchase those assets, and details of his income and expenditure.
The first respondent claims that the prosecution evidence comprises primarily intercepts of messages sent over the AN0M application and that there is, in that respect a substantial degree of commonality in the evidence relied on in the USA and Australian prosecutions and the Commissioner’s case in the POC Act proceedings. It is alleged, therefore, that examinations under the POC Act will reveal information directly relevant to both the USA and the Australian charges. The application for a stay alleges that the USA criminal justice agencies could not use evidence obtained from the AN0M communications application in the USA prosecutions by reason of protections conferred by the Fifth and Fourteenth Amendments of the USA Constitution. It is alleged that the prosecuting authorities in the USA hope to obtain the information indirectly through the Australian prosecutions.
On the application for a stay, the first respondent contends that if the temporary stay is not granted, there is a risk that material obtained under the compulsion in the POC Act proceedings may be accessed by prosecutors of both the Australian and USA charges. It is alleged that the risk is material because:
3.1.The manner in which the information obtained pursuant to POCA is stored by the AFP does not prevent access by prosecutors in that the manner in which the information obtained pursuant to POCA is stored by the AFP relies upon policies and procedures to prevent access;
3.2.There is a lack of any reliable auditing of access to POCA material by the AFP to detect and disclose unauthorised access to the material;
3.3.The processes for disclosure contemplated by section 266A of POCA;
3.4.The requirements in respect of mutual assistance provided for in the Mutual Assistance in Criminal Matters Act 1987;
3.5.Existing practices of cooperation between investigating and prosecuting agencies in Australia and the USA generally which are recorded in inter-governmental agreements; and
3.6.Evidence of co-operation between investigating and prosecuting agencies in Australia and the USA concerning Operation Ironside and Operation Trojan Shield.
It is alleged that the prejudice to the first respondent comprises:
4.1.Potentially exposing the First Respondent to lines of investigation in Australia concerning the uncharged acts;
4.2.Prejudice the First Respondent in the event that he was charged with further offences in Australia, including by limiting the available defences in such proceedings.
4.3.Potentially expose the First Respondent to lines of investigation in the United States concerning uncharged acts;
4.4.Prejudice the First Respondent in the event that he was charged with further offences in the United States, including by limiting the available defences in such proceedings.
4.5.Such prejudice is contrary to the interests of justice as the First Respondent maintains a privilege against self-incrimination to the extent that it has not been abrogated by POCA.
4.6.The privilege against self-incrimination that the First Respondent holds in the United States is a constitutionally entrenched right which is not abrogated by POCA.
It is contended that to allow the POC proceedings to continue would be contrary to the interests of justice because:
6.1.by reason of the above matters and the general principles of fairness in relation to the conduct of criminal proceedings;
6.2.by reason of the policy reasons concerning the general principle that any civil proceedings are to be stayed until the completion of criminal proceedings when both proceedings deal with the same subject matter;
6.3.by reason of the desirability of avoiding a duplicity of proceedings, particularly in the event that a temporary stay was granted in respect of the Second Respondent.
The injustice arising out of the examination of the second respondent in the POC Act proceedings is said to be that it would compromise the spousal privilege which the second respondent would enjoy if she were to be called in the criminal proceedings brought against her spouse. The first respondent calls in aid s 197(1) of the POC Act, s 18 of the Evidence Act 1995 (Cth), s 21 of the Evidence Act 1929 (SA), and the legal policy on which those provisions are founded.
The respondents’ applications to restrict access to documents
By an interlocutory application filed on 14 March 2024, the respondents sought an order pursuant to r 32.2(2) of the Uniform Civil Rules 2020 (SA) (the ‘UCR’) that a number of affidavits[4] filed in the underlying proceedings be ‘treated as filed on a party access basis’, as well as an order that those affidavits be:
… placed in a sealed envelope and marked not to be available for inspection and not to be distributed or the information contained in the affidavits distributed beyond the Commissioner in his capacity of overseeing Criminal Assets Confiscation and Criminal Assets Litigation, and the legal representatives of the Commissioner in these proceedings, without further order of this Honourable Court.
[4] Namely, FDN 11, FDN 15, FDN 22, FDN 24, FDN 26, FDN 27, FDN 45, FDN 46, FDN 47, FDN 48, FDN 73, and FDN 74.
The zealousness of the orders sought by the respondents, which, at least on their face, hold the potential to conflict with the statutory mandate contained in s 131(1) of the Supreme Court Act 1935 (SA),[5] was said to be justified by:
·the prejudice anticipated to be occasioned to the first respondent’s upcoming criminal trial(s), insofar as the information contained in those affidavits might apprise any jury of the fact that: the first respondent is facing two sets of criminal proceedings, including a prosecution for commercial drug offences; the first respondent has been indicted in the USA; and the first respondent is alleged to have had a significant role in the manufacture and distribution of devices used on the ‘AN0M Network’ across Australia; and
·the prejudice anticipated to be occasioned to the first respondent’s criminal liability, insofar as any disclosure, publication, or dissemination of any information contained in those affidavits might: expose the first respondent to further charges, including financial offences and criminal participation offences in Australia and the USA; and be utilised in the extant criminal proceedings against the first respondent in Australia and the USA.
[5] But see Legal Profession Conduct Commissioner v Belperio (No 2) [2024] SASCA 133, [19] (Kourakis CJ, Bleby JA and Stein AJA agreeing).
While counsel for the applicant, at the hearing of the respondents’ interlocutory application, indicated that the Commissioner would consent to orders restricting access to the affidavits on a party access basis under r 32.2(2) of the UCR, and would consent to orders preventing the disclosure of the contents thereof by members of the Criminal Assets Confiscation Taskforce (CACT) to criminal investigators or prosecutors, there was opposition to the order purporting to limit the applicant’s access thereto to the Commissioner personally and non-delegable, in his capacity as overseer of the CACT and the Criminal Assets Litigation Team (CALT).[6] In response to questions from the Bench, counsel for the respondents conceded that such an order would be impractical, submitting instead that the respondents’ concern was that disclosure of any information contained in those affidavits to a Commander Bell — the head of the Proceeds of Crime Team — would irreparably prejudice the first respondent’s defence of the criminal proceedings instituted against him.[7]
[6] Transcript of Proceedings, on this application, 15 March 2024, 4-6 (Mr Billington SC).
[7] Ibid 7-9 (Dr Gray KC).

Ultimately, a modified set of orders restricting access to the affidavits and restricting the use to which any information therein can be put, as well as the disclosure thereof, were entered administratively.
On 8 April 2024, the following orders were made pursuant to s 266A of the POC Act with the consent of the parties in respect of affidavits of both of the respondents and their solicitor, which have been filed so far in the POC Act proceedings:
3.The Applicant must not disclose the affidavits identified above or any of their contents (‘Protected Information’) to, first Federal Agent Chris Bell, and second, any person involved in any:
a. investigation of the first respondent in respect of any crime for the purpose of prosecuting the first respondent; or
b. prosecution of the first respondent for any crime.
4.The Applicant may only use and disclose the Protected Information for the purposes of any proceeding or investigation (including examination) under the Proceeds of Crime Act 2002 (Cth) (but not contrary to the disclosure prohibition in Order 3 hereof).
Moreover, the Commissioner has consented to the making of similar orders in respect of information which might be produced by the respondents in the course of the POC Act proceedings and pursuant to any compulsory processes authorised by the POC Act.
Privilege against self-incrimination
In Hammond v The Commonwealth,[8] Gibbs CJ articulated the general common law principle that it is an interference in the proper administration of the criminal law to require a person to answer questions designed to establish his or her guilt of an offence with which he or she is charged. Chief Justice Gibbs emphasised that that general proposition held true even if the answers could not be given in evidence because the very fact of the detailed examination was likely to prejudice the accused in the presentation of his defence. The common law remedy for that prejudice was to adjourn or stay the enquiry in which an accused would be required to answer those questions.
[8] (1982) 152 CLR 188.
In the same case, Deane J held that it was a fundamental principle in the administration of criminal justice, that a person who is facing pending criminal proceedings ‘should not be subjected to having his part in the matters involved in those criminal proceedings made the subject of a parallel inquisitorial inquiry’. Justice Deane characterised parallel, extra-curial, inquisitorial investigations on matters the subject of criminal charges as an improper interference in the due administration of the criminal law.
In X7 v Australian Crime Commission & Anor,[9] Hayne and Bell JJ held that permitting the compulsory examination of an accused about the subject matter of the pending charge fundamentally alters the accusatorial processes of the criminal law.[10] Their Honours recognised that the legislature may affect fundamental alterations to the processes of criminal justice, but emphasised that, constitutional limitations aside, any such alterations must be clearly made by express words or necessary intendment.[11] With those caveats, their Honours explained the impact of compulsory examinations on the subject matter of a criminal charge on the accusatorial process in these terms:[12]
[9] (2013) 248 CLR 92 (X7).
[10] (2013) 248 CLR 92 at [118].
[11] (2013) 248 CLR 92 at [119].
[12] (2013) 248 CLR 92 at [104], [124]-[125].
[104]… That is, it is not a privilege which is concerned only with the use to which answers given may be put at, or in connection with, a trial. It is a privilege which permits the refusal to make an answer regardless of whether the answer is admissible as testimonial evidence… The accusatorial process of criminal justice and the privilege against self-incrimination both reflect and assume the proposition that an accused person need never make any answer to any allegation of wrong-doing.
…
Impact on accusatorial process
[124]Even if the answers given at a compulsory examination are kept secret, and therefore cannot be used directly or indirectly by those responsible for investigating and prosecuting the matters charged, the requirement to give answers, after being charged, would fundamentally alter the accusatorial judicial process that begins with the laying of a charge and culminates in the accusatorial (and adversarial) trial in the courtroom. No longer could the accused person decide the course which he or she should adopt at trial, in answer to the charge, according only to the strength of the prosecution's case as revealed by the material provided by the prosecution before trial, or to the strength of the evidence led by the prosecution at the trial. The accused person would have to decide the course to be followed in light of that material and in light of any self-incriminatory answers which he or she had been compelled to give at an examination conducted after the charge was laid. That is, the accused person would have to decide what plea to enter, what evidence to challenge and what evidence to give or lead at trial according to what answers he or she had given at the examination. The accused person is thus prejudiced in his or her defence of the charge that has been laid by being required to answer questions about the subject matter of the pending charge.
[125]As has been explained, if an alteration of that kind is to be made to the criminal justice system by statute, it must be made clearly by express words or by necessary intendment. If the relevant statute does not provide clearly for an alteration of that kind, compelling answers to questions about the subject matter of the pending charge would be a contempt.
(emphasis added)
I make these observations on the sentences I have emphasised in the above passages. First it is not obvious to me how the accusatorial and adversarial processes of the criminal law are compromised if the answers given under compulsion in a collateral enquiry are quarantined from the investigators and prosecutors of pending or future criminal charges. In particular, if an accused were to defend a charge, inconsistently with self-incriminatory answers given in an enquiry, the accused’s exculpatory defence evidence given on the criminal trial is much more likely to be false, than the incriminatory answers in the enquiry. A prosecution for falsely making an admission to criminal offending in the enquiry would not enjoy significant prospects of success. On the other hand, a prosecution for perjury on the criminal trial could never be brought because, on this premise, the answers given in the enquiry have been effectively quarantined. Accordingly, I doubt that there is a significant risk that an accused would be under any pressure to modify his or her defence because of answers given in the enquiry.
As to the second of the emphasised sentences, the legal basis of the contempt, therein referred to, would appear to be that, in accordance with the principle of legality, there is an implied limit on the exercise of the statutory power to undertake a compulsory examination which precludes its exercise, or at least allows the examiner a discretion to defer the examination, whilst related criminal charges are pending. In order to respect that implied limitation, a stay or adjournment must be granted.
As the passage in X7 explains, express words or clear intendment are required to deny that implication. An express statutory denial of, or restriction on, the power to stay or adjourn, has that effect, because it removes or restricts the remedy available to prevent any interference with the administration of the criminal law. It is in effect a statutory direction to proceed with the compulsory examination even though it would otherwise be an improper interference in the criminal process.
Be that as it may, legislative abrogation of the principle aside, it seems to me that there is no need to postulate actual prejudice of the kind described by Hayne and Bell JJ. It is enough, that compelling answers about alleged offending prior to the completion of the criminal proceedings, irrespective of the use to which the answers can be put, is inconsistent with the common law principle that an accused cannot be prevailed upon to defend or explain his or her conduct, in the face of allegations of offending, before his or her criminal trial.
Spousal privilege
Section 18 of the Evidence Act 1995 (Cth) provides:
18 Compellability of spouses and others in criminal proceedings generally
(1)This section applies only in a criminal proceeding.
(2)A person who, when required to give evidence, is the spouse, de facto partner, parent or child of a defendant may object to being required:
(a)     to give evidence; or
(b)     to give evidence of a communication between the person and the defendant;
as a witness for the prosecution.
…
(6)A person who makes an objection under this section to giving evidence or giving evidence of a communication must not be required to give the evidence if the court finds that:
(a)     there is a likelihood that harm would or might be caused (whether directly or indirectly) to the person, or to the relationship between the person and the defendant, if the person gives the evidence; and
(b)     the nature and extent of that harm outweighs the desirability of having the evidence given.
(7)Without limiting the matters that may be taken into account by the court for the purposes of subsection (6), it must take into account the following:
(a)     the nature and gravity of the offence for which the defendant is being prosecuted;
(b)     the substance and importance of any evidence that the person might give and the weight that is likely to be attached to it;
(c)     whether any other evidence concerning the matters to which the evidence of the person would relate is reasonably available to the prosecutor;
(d)     the nature of the relationship between the defendant and the person;
(e)     whether, in giving the evidence, the person would have to disclose matter that was received by the person in confidence from the defendant.
…
Section 21 of the Evidence Act 1929 (SA) provides:
21—Competence and compellability of witnesses
(1)A close relative of a person charged with an offence is competent and compellable to give evidence for the defence and, subject to this section, is competent and compellable to give evidence for the prosecution.
(2)If a person is charged with an offence and a close relative of the accused is required by law (whether by subpoena or other process) to give evidence against the accused in any proceedings related to the charge (including proceedings for the grant, variation or revocation of bail, or an appeal at which fresh evidence is to be taken), the prospective witness may apply to the court for an exemption from the requirement to give evidence against the accused in the proceedings.
(3)If, on an application under subsection (2), the court considers that—
(a) if the prospective witness were to give evidence, or evidence of a particular kind, against the accused, there would be a substantial risk of—
(i)serious harm to the relationship between the prospective witness and the accused; or
(ii)serious harm of a material, emotional or psychological nature to the prospective witness; and
(b) having regard to the nature and gravity of the alleged offence and the importance to the proceedings of the evidence that the prospective witness is in a position to give, there is insufficient justification for exposing the prospective witness to that risk,
the court may exempt the prospective witness (wholly or in part) from the requirement to give evidence against the accused in the proceedings before the court.
…
The common features of both the Commonwealth and State provisions are that they apply only to criminal proceedings.
The express premise of s 21(3) of the Evidence Act 1929 (SA), and the implicit premise of s 18 of the Evidence Act 1995 (Cth), is that a close relative is a compellable witness subject to a judicial power to exempt a close relative from the obligation to testify. The exemption will only be granted if the Court is satisfied that the familial relationship will be harmed and that the nature of the harm is such that it outweighs the public interest in requiring the evidence to be given.
Section 197 of the POC Act excuses witnesses from the obligation to answer questions in an examination imposed by s 196 of the POC Act if they would not be compellable witnesses in proceedings before a court. A close relative is therefore a person who ‘could’ be compelled to answer questions. At the very least, they answer that description if they do not satisfy the conditions prescribed for an exemption to the obligation in criminal proceedings. Spousal privilege therefore does not apply to the questions which the second respondent may be asked in an examination, unless, perhaps, the second respondent can establish the prescribed conditions for an exemption.
It is important to emphasise at the outset that such evidence as the second respondent might be compelled to give in the POC Act proceeding is not admissible in the criminal proceedings against the first respondent because it is hearsay. Plainly enough, nor is the evidence she might give disclosure, in the strict sense, of a defence to a criminal charge because she is not the person charged. However, I acknowledge that her examination may provide some indication of what the first respondent’s defence might be, or open lines of enquiry more generally.
For the following reasons I am not satisfied that it is in the interests of justice to stay the POC Act proceeding on the ground that the second respondent’s examination would interfere in any way with the first respondent’s criminal trials in Australia.
First the statutory conferral of spousal privilege is expressly limited to testifying on the criminal trial of the spouse. It does not extend to a privilege against the production of documentary material in the possession of the spouse or family member of the accused. There is no general common law principle that investigators cannot pursue lines of enquiry revealed by information obtained from friends or relatives of an accused, or that prosecutors cannot adduce evidentiary material discovered by making those enquiries.
Secondly, on the material before me it is not, and could not possibly be, known whether:
a)the second respondent would be called on any criminal trial of the first respondent;
b)if she were to be called, she would object to giving evidence;
c)her relationship to the first respondent such as it may be at the time of trial, would be harmed by testifying as a prosecution witness; or
d)the evidence she might give would be of so little importance as to outweigh the interests of justice in compelling her to testify.
I reject the first respondent’s contentions on this issue.
A statutory power to stay
Section 319(1) of the POC Act provides:
(1)A court may stay proceedings (the POCA proceedings) under this Act that are not criminal proceedings if the court considers that it is in the interests of justice to do so.
The enactment of s 319 of the POC Act necessarily abrogates the general law in its application to the stay of proceedings under the POC Act.
It can be observed that the power conferred by that subsection applies only to civil proceedings brought under the POC Act. The power is enlivened only if the court considers that it is in the interests of justice to do so. As we shall see, s 319(2) of the POC Act closely circumscribes the content of that term.
Section 319(1) of the POC Act is therefore not merely declaratory of the inherent or implied powers of courts to stay proceedings to prevent an abuse of process because it applies only to a subset of the proceedings which may be stayed in an exercise of the inherent or implied powers of a court, and because the power can only be exercised in the limited circumstances prescribed by that section.
It follows that s 319(1) of the POC Act confers a discrete statutory power to stay civil proceedings brought under the POC Act. In conferring that specific statutory power, so conditioned, the POC Act has displaced the inherent or implied powers of a court to do so. The principles and considerations governing the exercise of the inherent power may nonetheless inform the exercise of the power conferred by s 319 of the POC Act, but only insofar as those principles and considerations are not inconsistent with the remaining provisions of s 319 of the POC Act.
In Onley v Commissioner of the Australian Federal Police,[13] Bathurst CJ came to the same conclusion for the additional reason that the inconsistency between s 319(1) of the POC Act and State provisions empowering courts to stay proceedings precluded s 79 of the Judiciary Act 1903 (Cth), from picking up the latter:[14]
The central plank of the submission was that the power to stay the examination order was not to be found in s 319 of the Proceeds of Crime Act, but in ‘the general law’ which was identified as s 23 of the Supreme Court Act and r 36.16 of the UCPR. The effect of the submission, if accepted, would be to engage an unfettered discretionary power, thus avoiding the apparent constraints imposed by s 319.
…
Counsel for Mr Anquetil expressly referred to the reasoning of the primary judge in the passages set out above and did not suggest that there was any error in the statements as to how the matter had proceeded before her. Perhaps because the issue was raised for the first time in this Court, the possible consequences of success were not addressed. There can be no doubt that the power to order a stay of any aspect of proceedings, including the specification of criteria upon which a stay may issue, is a part of the law governing the exercise of the Court’s jurisdiction. Such procedural powers readily fall within that category of laws identified in Rizeq. It follows that whether a State procedural law applies will depend upon the operation of s 79 of the Judiciary Act, applied in the context of the Proceeds of Crime Act. It would then be necessary to consider whether a State law conferring a power to stay proceedings, unfettered by express conditions set out in s 319, would be consistent with the apparent intention and scope of s 319. It would follow that there must at least be serious doubt as to the power of this Court to grant a stay of the examination order, being the relief sought by the applicants in this proceeding, in disregard of the s 319 conditions. This difficulty was not addressed by any party in submissions, the significance of the fact that the court was exercising federal jurisdiction not having been identified.
…
For these reasons, and applying the principles in Rizeq, the power of the Court to grant a stay of orders under the Proceeds of Crime Act is conferred by s 319 of the Act and must be exercised subject to the conditions imposed by that provision.
[13] (2019) 367 ALR 291 (Onley).
[14] (2019) 367 ALR 291 at [333], [339], [348].
The inherent or implied power to grant a stay is calculated to prevent an abuse of the processes of the courts of that law area, including relevantly here, its use to interfere with criminal proceedings in those courts. When a stay of civil proceedings is sought in an Australian Court because the same controversy is being litigated in an appropriate foreign court it is the abuse of the processes of the Australian Court by bringing unnecessary proceedings to vex the other party which warrants a stay. When a stay of civil or administrative proceedings is sought because of the risk that an accused will be prejudiced in his or her defence, it is the administration of the criminal law in courts of the same law area that is of concern. The ground for the stay is that it is an abuse of the process of the court in which the POC Act proceeding is sought to continue that proceeding when it will interfere with extant criminal proceedings in a court within the same jurisdiction. For that reason, it may be doubted that the legislature intended the interests of justice, within the meaning of that term in s 319, to extend to the just administration of the law in foreign jurisdictions and that it intended the term ‘criminal proceeding’ to include criminal proceedings brought in a foreign jurisdiction.

The respondents contend that the power of the Court to order a stay is enlivened if the Court is satisfied that it would serve the interests of justice in the administration of the law of a foreign jurisdiction. The respondents’ forensic purpose in making that submission is to procure a stay of the proceedings under the POC Act on the ground that their compulsory examination will prejudice their defence of the charges brought in the USA. However, at the same time, they contend that the restrictions imposed by ss (2)-(4) of s 319 of the POC Act on granting a stay on the grounds that there are pending charges relating to the same subject matter applies only to domestic criminal proceedings. I explain those provisions in the next part of these reasons. The respondents contend on that premise, that the general law principle, outlined in [28] – [30] above, that concurrent civil proceedings in which an accused may be asked questions on the same or similar matter which he or she is charged, is an interference in the administration of the criminal law in the USA. As such, it is in the interests of justice to stay the POC proceedings.
The respondent submits that comity is the underlying principle of the rules of private international law. That can be accepted. It is the principle which governs the exercise of the discretion as to the choice of the applicable law and the appropriate forum. The principle of comity is founded on the mutual respect of the territorial sovereignty of other countries. The principle is of course subject to legislative amendment of abrogation.
The principle has been explained thus:[15]
The principle of comity is a concept of ‘very elastic content’. It has variously been described as a principle ‘formulated by reference to the principles of sovereignty and territoriality’, a principle of ‘deference and respect due by other states to the actions of a state legitimately taken within its territory’, a principle of ‘respect for …legitimate authority’, a ‘a species of accommodation’ which ‘involves neighbourliness, mutual respect, and the friendly waiver of technicalities’, and a principle that is conditioned upon the reciprocal treatment by states of one another’s judgments.
…
In De Conflictu Legum Diversarium in Diversis Imperiis, Ulrich Huber outlined three basic axioms of private international law. Huber’s first two axioms were concerned with the sovereignty that each state has within its own borders:
1.   ‘The laws of each state have force within the limits of that government and bind all subjects to it, but not beyond.’
2.   ‘All persons within the limits of a government, whether they live there permanently or temporarily, are deemed to be subjects thereof.’
However, Huber’s focus on territorial sovereignty gave rise to a problem: if a state has absolute sovereignty within its own territory (and, it follows, in relation to the laws to be applied in its courts), how can that court apply a law of another sovereign state? This was resolved by a third axiom, or the principle of comity, which permits respect for rights acquired within the territorial sovereignty of another state:
3.   ‘Sovereign will so act by way of comity that rights acquired within the limits of a government retain their force everywhere so far as they do not cause prejudice to the power or rights of such government or of its subjects.’
(citations omitted)
[15] James Edelman and Madeleine Salinger, ‘Comity in Private International Law and Fundamental Principles of Justice’ in A Conflict of Laws Companion (Oxford University Press, 2021) 326-327.
Applying the principle of comity to the construction of the term ‘interests of justice’ does not support the first respondent’s submission that it extends to the just administration of the law by foreign courts. It is inconsistent with the principles of comity to apply the interests of justice standard prescribed by the POC Act in respect of proceedings in the USA. To order a stay of proceedings under the POC Act may deny a party to those proceedings evidence which would be admissible under the laws of the USA.
Indeed, viewed from the other side, it infringes the territorial integrity and sovereignty of Australia to stay proceedings applying Australian law to conduct engaged in and circumstances arising in Australia, because of the existence of proceedings in a foreign jurisdiction concerning conduct and circumstances occurring in the territory of that jurisdiction.
More generally, I observe that for reasons explained by the Privy Council in Brannigan v Davison[16] choice of law rules do not require courts or tribunals in Australia to stay proceedings or refrain from exercising powers of examination in respect of conduct and circumstances arising in Australia because the person examined would have the protection of the privilege against self-incrimination, or spousal privilege, if those questions were asked in a foreign court:[17]
If the privilege [against self-incrimination] were applicable when the risk of prosecution is under the law of another country, the privilege would have the effect of according primacy to foreign law in all cases. Another country’s decision on what conduct does or does not attract criminal or penal sanctions would rebound on the domestic court. The foreign law would override the domestic court’s ability to conduct its proceedings in accordance with its own procedures and law. If an answer would tend to expose the witness to a real risk of prosecution under a foreign law then, whatever the nature of the activity proscribed by the foreign law, the witness would have an absolute right to refuse to answer the question, however important that answer might be for the purposes of the domestic court’s proceedings.
This surely cannot be right. Different countries have their own interests to pursue. At times national interests conflict. In its simple, absolute, unqualified form the privilege, established in a domestic law setting, cannot be extended to include foreign law without encroaching unacceptably upon the domestic country’s legitimate interest in the conduct of its own judicial proceedings.
[16] [1997] AC 238.
[17] [1997] AC 238, at 249-250.
The respondents contended that a construction of s 319 which precluded a court from ordering a stay of proceedings before it in order to prevent prejudice to a party in foreign proceedings would impermissibly interfere with the court’s power to control its own proceedings. In support of that proposition, the respondents relied on Commissioner of Australian Federal Police v Elzein.[18]
[18] (2017) 94 NSWLR 700 (Elzein) at [134].
However, in the passage on which the respondents rely, the potential transgression of the constitutional limits on legislative power alluded to by Basten JA was the imposition of a scheme which may give rise to unfair trials without adequate judicial protection. That constitutional limitation is imposed by Chapter 3 of the Constitution, which is concerned with the exercise of judicial power in Australia. The prescription of matters which are relevant considerations in the exercise of a statutory power is a matter for Parliament. It does not compromise the exercise of the judicial power by Australian courts to exclude as a consideration the consequence of the exercise of the power on a foreign judicial proceeding.
Be that as it may, the Commissioner accepts that the term ‘interests of justice’ includes the interests of justice in proceedings brought in foreign jurisdictions. However, he contends that the term ‘criminal proceedings’ in s 319(2), (4) and (6) of the POC Act must similarly be extended to foreign criminal proceedings in order to preserve the symmetry of the section.
The term ‘criminal proceedings’ is not defined. Whether or not it refers to domestic, foreign or both domestic and foreign criminal proceedings will depend on its context.
There are a number of provisions of the POC Act which refer directly or indirectly to foreign offences.
Section 266A authorises the sharing of information derived from the application of the POC Act with the authorities of foreign countries which have the functions of investigating or prosecuting offences against the laws of another country and/or identifying, locating, and tracing the proceeds or instruments of crime under the law of a foreign country. Section 266A(3) of the POC Act provides that information so shared is inadmissible evidence in civil or criminal proceedings. However, s 266A(4) of the POC Act provides that ss (3) does not apply in criminal proceedings for giving false or misleading information, or in proceedings under the POC Act. Similar provision is made in respect to documents produced under compulsion by s 266A(5) and (7) of the POC Act.
Section 297B of the POC Act deals with cooperation between Australia and foreign countries for the sharing of the proceeds of crime in appropriate cases.
Section 337A of the POC Act defines a foreign indictable offence for the purposes of proceedings in respect of the proceeds of crime of such offences.
The terms of foreign forfeiture orders, foreign indictable offences, foreign pecuniary penalty orders, and foreign restraining orders are defined in the dictionary provision, s 338 of the POC Act. Section 338 of the POC Act provides that ‘criminal proceedings’ in relation to a foreign serious offence has the same meaning as in the Mutual Assistance in Criminal Matters Act 1987 (Cth) (the Mutual Assistance in Criminal Matters Act). ‘Foreign serious offence’ has also the same meaning as in the Mutual Assistance in Criminal Matters Act.
The respondents submit that if the term ‘criminal proceedings’ in s 319 of the POC Act were intended to include foreign criminal proceedings, it would have been a simple matter for the legislature to define the term to have included that extended meaning in Part 6 of the POC Act (which deals with its interpretation) and in s 338 of the POC Act (the dictionary provision of the POC Act) in particular. However, to define a term which is used in diverse contexts, and for different purposes, in that way is problematic. It will tend to raise as a preliminary question whether a contrary intention appears from that context. It may be more convenient to allow the context to govern whether criminal proceedings means domestic or foreign proceedings or both. For example, a definition which expressly included foreign criminal proceedings would be inapt in respect of s 319(1) of the POC Act, which concerns a stay of proceedings under the POC Act which are not criminal proceedings. Plainly that context manifests a contrary intention. There are other provisions of the Act which use the term ‘criminal proceeding’ in a context which refers to domestic criminal proceedings only.
Section 183(3) of the POC Act which empowers a court to make an examination order, provides that the fact that criminal proceedings have been instituted or have commenced, whether or not under the POC Act, does not prevent the approved examiner giving an examination notice. Whether or not criminal proceedings in that context refers to both domestic and foreign criminal proceedings raises a similar constructional choice to that presented by s 319 of the POC Act. Section 186 of the POC Act also raises that issue.
On the other hand, s 39A(2) enacts a rule as to the admissibility of evidence which must be taken to be addressed to Australian courts only and for that reason, criminal proceedings must mean domestic criminal proceedings. Sections 198 and 271 of the POC Act also deal with the admissibility of evidence, and it would therefore follow that the term ‘criminal proceedings’ refers only to domestic proceedings.
Section 315 provides that proceedings on application for a restraining order or confiscation order are not criminal proceedings. Plainly that section refers to proceedings under the POC Act and criminal proceedings must therefore be a reference to domestic criminal proceedings. Indeed, s 315(2) expressly provides that the rules of construction applicable only in relation to the criminal law do not apply in the construction of the POC Act and that the rules of evidence applicable only in criminal proceedings do not apply to proceedings under the POC Act.
Section 319A makes provision for the closing of a court in proceedings under the POC Act (other than criminal proceedings). Again, the context dictates that the reference is to domestic proceedings.
For s 319 of the POC Act, to operate coherently, if the term ‘interests of justice’ in s 319(1) extend to the administration of the law in foreign proceedings, then the ‘criminal proceedings’ mentioned in s 319(2), (4) and (6) of the POC Act, which limit the grounds on which a stay may be granted, must also include foreign criminal proceedings. Were it otherwise the POC Act would afford greater deference to the accused’s interests in foreign criminal proceedings than in domestic proceedings. It would provide for stays to be more readily granted if there are extant, and related, foreign criminal proceedings than domestic criminal proceedings. There is no rational basis for that differentiation.
Accepting the concession of the Commissioner and proceeding on the respondents’ premise, the only proper construction available of s 319 is that the term ‘criminal proceedings’ includes foreign criminal proceedings. It would be absurd to construe s 319 in a way which substantially limits the power to stay proceedings under the POC Act in respect of domestic criminal proceedings, which ordinarily would be matters of greatest concern to the Australian legislature and Australian courts, but to allow a broader discretion in the case of foreign criminal proceedings.
The Commissioner’s submission must be accepted.
Section 319 of the POC Act is inconsistent with many of the principles and considerations referred to in [28] – [30] above, on which the inherent or implied powers to stay a civil proceeding on the ground of pending criminal charges are exercised.
Section 319(2) of the POC Act provides:
(2)The court must not stay the POCA proceedings on any or all of the following grounds:
(a) on the ground that criminal proceedings have been, are proposed to be or may be instituted or commenced (whether or not under this Act) against the person subject to the POCA proceedings;
(b) on the ground that criminal proceedings have been, are proposed to be or may be instituted or commenced (whether or not under this Act) against another person in respect of matters relating to the subject matter of the POCA proceedings;
(c) on the ground that:
(i)a person may consider it necessary to give evidence, or to call evidence from another person, in the POCA proceedings; and
(ii)the evidence is or may be relevant (to whatever extent) to a matter that is, or may be, at issue in criminal proceedings that have been, are proposed to be or may be instituted or commenced (whether or not under this Act) against the person or any other person;
(d) on the ground that POCA proceedings in relation to another person have been, are to be or may be stayed.
Prior to its amendment, s 319 provided:
The fact that criminal proceedings have been instituted or have commenced (whether or not under this Act) is not a ground on which a court may stay proceedings under this Act that are not criminal proceedings.
Most of the first respondent’s contentions are founded on the decision of the High Court in Commissioner of the Australian Federal Police v Zhao.[19] In 2016, s 319 of the POC Act was amended in response to the decision in Zhao. The Court in Zhao (French CJ, Hayne, Kiefel, Bell and Keane JJ) observed that provisions like s 319 of the POC Act, as it then stood, are strictly unnecessary because courts will not stay civil proceedings merely because related criminal charges against a respondent to a POC Act proceeding are pending. Rather, it must be apparent that the respondent may be prejudiced in the conduct of his or her defence to the criminal charges.[20]
[19] (2015) 255 CLR 46 (Zhao).
[20] (2015) 255 CLR 46 at [35].
Nonetheless, the Court concluded that the risk of prejudice to the respondent, if the stay were not granted, ‘was plain’ because the offences and the circumstances relevant to both proceedings were substantially identical. Consistently with that conclusion, the Court in Zhao rejected the proposition that s 319 of the POC Act (as it then stood), enacted a presumption that civil proceedings under the POC Act would not be stayed.
The Court also rejected the Commissioner’s contentions that the respondent was required to identify specific instances of prejudice, in the particular forensic circumstances of his case, which could not be adequately addressed by alternative measures. In the latter respect the Court in Zhao did not accept the Commissioner’s contention that the prejudice could be ameliorated by hearing the POC Act proceedings in closed court. The Court held that it would not be proper to depart from the open court principle in order to allow the Commissioner’s proceeds under the POC Act by taking hearing the respondent’s testimony in closed court. Even though the Court did not explain why that was so, it was, with respect, plainly correct to so hold. The interest of the Commissioner in expedition was not a public interest which outweighed the open court principle because the deferral of the POC Act proceedings would not render those proceedings nugatory.
The Court in Zhao affirmed the principle that:[21]
An important aspect of a criminal trial, which follows from a fundamental principle of the common law, is that the prosecution is to prove the guilt of an accused person and cannot compel a person charged with a crime to assist in the discharge of its onus of proof.
[21] (2015) 255 CLR 46 at [18].
In Zhao that principle was applied to respondents to POC Act applications, who may be examined and who, in so doing, would find themselves assisting in their own prosecution.
The first respondent’s reliance on Zhao is misplaced because the amendments subsequently made to s 319 of the POC Act are calculated to reverse it. Section 319(2) now precludes a court from ordering a stay even though the criminal proceedings and the proceedings under the POC Act arise out of the same matters, and the evidential matrix of both proceedings is related. That is to say the amendments remove, as a ground for a stay, the very circumstances found by the Court in Zhao to plainly create a risk of prejudice.
In Onley Basten JA explained the effect of s 319(2) of the POC Act in this way:[22]
The Proceeds of Crime Act differs in precisely this respect from the legislation considered in X7. As was explained in Elzein, s 319(2)(a) provides that the court ‘must not stay’ proceedings, for example, pursuant to examination orders, ‘on the ground that criminal proceedings have been … instituted … against the person subject to the POCA proceedings’. That prohibition applies ‘even if the circumstances pertaining to the POCA proceedings are … the same as, or substantially similar to, the circumstances pertaining to the criminal proceedings’: s 319(3). That is to say, a characteristic form of prejudice (systemic prejudice) which is a universal characteristic form of prejudice (systemic prejudice) which is a universal characteristic of the circumstances identified in s 319(2), must not constitute the ground of a stay. Thus, in its present form, s 319(2) provides a clear statement in precisely the terms which might have been envisaged in order to comply with the condition explained at [125] in X7.
That is not to say the fact of systemic prejudice may not be a factor to be considered in having regard to the mandatory considerations in subs (6).
[22] (2019) 367 ALR 291 at [369]-[370].
The statutory intention to reverse the effect of the decision in Zhao is also manifest in subsections (3) and (4) which provide:
(3)Paragraph (2)(a) applies even if the circumstances pertaining to the POCA proceedings are or may be the same as, or substantially similar to, the circumstances pertaining to the criminal proceedings.
(4)Paragraph (2)(b) applies even if the subject matter of the POCA proceedings is the same as, or substantially similar to, the matter at issue in the criminal proceedings.

Subsections (2), (3), and (4) together closely confine the denotation of the term interests of justice in subsection (1). They provide that it is not in the interests of justice, within the meaning of that term in s 319(1) of the POC Act, to stay a POC Act proceeding by reason only of the similarity between the circumstances pertaining to those proceedings and any pending or proposed criminal proceedings against the respondent or another person. Nor does the circumstance that the respondent to the POC Act proceedings may consider it necessary to testify, or to call evidence from others, which may be relevant (to whatever extent) to an issue in the criminal proceedings, suffice to enliven the ‘interests of justice’ condition.
Insofar as the interests of justice might be enlivened by grounds, which are not excluded by s 319(2) of the POC Act, s 319(6) mandates that any prejudice to the respondent be considered against the public interest in the efficient and expeditious recovery of proceeds of crime and having regard to measures which may ameliorate that prejudice. It provides that in making its evaluative judgment, the Court must have regard to the following:
(a)that the POCA proceedings, and any criminal proceedings of a kind referred to in paragraph (2)(a) or (b), should proceed as expeditiously as possible;
(b)the cost and inconvenience to the Commonwealth of retaining property to which the POCA proceeding relates and being unable to expeditiously realise its proceeds;
(c)the risk of a *proceeds of crime authority suffering any prejudice (whether general or specific) in relation to the conduct of the POCA proceedings if the proceedings were stayed;
(d)whether any prejudice that a person (other than a proceeds of crime authority) would suffer if the POCA proceedings were not stayed may be addressed by the court by means other than a stay of the proceedings;
(e)any orders (other than an order for the stay of the POCA proceedings) that the court could make to address any prejudice that a person (other than a proceeds of crime authority) would suffer if the proceedings were not stayed.
Note:Examples of orders the court could make to address any prejudice that a person (other than a proceeds of crime authority) would suffer if the POCA proceedings were not stayed include an order under section 319A (closed court) or an order prohibiting the disclosure of information.
With respect to the observation of Basten JA in [370] of his Honour’s judgment in Onley, it is not obvious to me that systemic prejudice is a factor to be considered alongside those mandatory considerations. Section 319(6) of the POC Act need only be considered if something more than mere systemic, or general disclosure, prejudice might be suffered. It is that particular forensic prejudice which must be considered against the considerations prescribed by ss (6) before making its evaluative judgment on where the interests of justice lie.
In Elzein, Basten JA identified the three significant aspects of the amendments to s 319 which were calculated to counter the result in Zhao:[23]
Grant of stay — prohibited and mandatory considerations
(83)While it may be said that in substance the new s 319 reflects the purpose of the predecessor provision considered in Zhao, there are three respects in which it goes significantly further. First, s 319(2) spells out in greater detail the grounds which are unavailable on an application for a stay. They include not only the commencement of criminal proceedings, but also a proposal to commence and the possibility of commencing such proceedings. The prohibited grounds also extend to the need to give evidence (or call evidence) in the proceedings under the Act and the fact that the evidence is or may be relevant in any criminal proceedings.
(84)Secondly, and no doubt by reference to the consideration identified by the High Court in Zhao that the offences and the circumstances relevant to both proceedings are substantially identical, subs (3) and subs (4) make explicit the application of subs (2) where the circumstances pertaining to both sets of proceedings are the same as, or substantially similar to each other.
(85)Thirdly, there are the mandatory considerations in subs (6). In some respects, the purport of the five listed factors is unclear. For example, the statement in para (a) that both sets of proceedings “should proceed as expeditiously as possible” may be a factor to be considered to the extent that it is relevant, or it may constitute a statement of principle which must be applied by the court. With respect to (b), the cost and inconvenience to the Commonwealth of retaining the property and being unable to realise its proceeds expeditiously should better be treated as a variable consideration, depending on the evidence placed before the court. In that sense, it is unexceptionable and covers, in specific terms, a similar ground to the question of prejudice to the proceeds of crime authority, to be considered under par (c).
(86)The effect of paras (d) and par (e) is significant and has already been noted. They specifically pick up the ability of the court to close its proceedings, pursuant to s 319A and the power conferred on the court to prohibit disclosure of information obtained pursuant to a compulsory process.
[23] (2017) 94 NSWLR 700 at [83]-[89].
Conclusions as to the effect of the 2016 amendments
(87)It follows from this discussion that the 2016 amendments have sought to vary the legislative regime in force at the time of Ms Zhao’s proceedings in three specific ways, each of which seeks to address aspects of the reasoning in Zhao.
(88)It is not in doubt that a law permitting the state to undertake a compulsory examination of a person accused of a criminal offence, in circumstances where that person enjoys no privilege against self-incrimination, involves a significant derogation from the immunity otherwise enjoyed. Accordingly, the question is whether such a power is now conferred in clear terms by the Proceeds of Crime Act. If it is, there is a further issue to be addressed, concerning the constitutional validity of such legislation. To answer the latter question, it will be necessary to consider the protections given to avoid such a level of derogation from the fairness of the criminal trial as to interfere with an essential characteristic of such a trial. However, those protections are also relevant to the question of statutory interpretation; express attempts to provide protection will demonstrate that the Parliament has turned its attention to the scope and effect of the derogation from general law principles.
(89)The terms of the provisions discussed above and, in particular, (a) that the commencement of a criminal proceeding does not prevent the giving of an examination notice (s 183(3)) or the conduct of an examination (s 186(4)), (b) the power of the examiner to restrict the publication of material (s 193), and (c) the provisions of s 319(2) in relation to the factors that can and cannot be taken into account in staying proceedings, demonstrate with sufficient clarity that the commencement of criminal proceedings was not, of itself, a sufficient basis to stay the operation of an examination order allowing questioning in relation to the conduct the subject of the criminal charges. Accordingly, absent authority to the contrary, those provisions should be understood to operate despite the fact that criminal charges have been laid.
(footnotes omitted)
The extent to which the power to stay proceedings conferred by the amended s 319 of the POC Act is inconsistent with the considerations affecting the exercise of inherent or implied power to stay is demonstrated by the decision of the Court of Criminal Appeal in New South Wales in Onley.
In that case it was contended that there should be a stay of the POC Act proceedings because the respondent would have to disclose, and would be committed to, his or her defence to the criminal charge before complete disclosure of the prosecution case. The passage from the judgment of Hayne and Bell JJ in X7 reproduced in [30] above was relied on.
The Court of Criminal Appeal in Onley rejected the appellant’s contention that the Judge had erred in holding that reliance on prejudice of that general kind was not in itself a ground on which a stay could be ordered following the amendments to s 319. Chief Justice Bathurst explained why in the paragraphs which follow:[24]
[230]It is in this context that the reliance on what has been described as ‘inchoate prejudice’ falls to be considered. Consistently with what was said in X7 at [124], Lee (No 2) at [31] ‑ [38] and [42] and most recently in Strickland at [75]–[78], [101], the fact of the examination, even if kept secret, fundamentally alters the accusatorial judicial process and is thus prejudicial to the accused person. There is thus prejudice in the present case.
[231]However, s 319 makes it clear that such ‘inchoate prejudice’ is not sufficient of itself to warrant the grant of a stay. As was pointed out in Strickland at [101], the right to silence is not constitutionally entrenched and may be abrogated by the legislature provided that any statutory provision which purports to do so is ‘perspicuously expressed and strictly construed’. Section 319 is a statutory provision which falls within this category. That is further supported by the express provision in s 183(3), which provides that the commencement of criminal proceedings does not prevent the making of an examination order.
[232]That construction of the legislation is consistent with the conclusion reached by Basten JA in Elzein at [101] to which I referred at [44].
[233]Beazley ACJ, whilst agreeing with Basten JA’s conclusion, at [8] seemed to go further in stating that none of the matters in s 319(2) are relevant considerations to the exercise of the discretion. With respect to her Honour, I do not think that the section excludes the matters from consideration, as distinct from making it clear that standing alone, they would not justify a stay.
[234]Simpson JA at [162] reached a conclusion similar to that reached by Basten JA.
[235]It follows that the primary judge was correct in concluding that something more was required to justify a stay than just that the examination was to take place while criminal proceedings were pending. That is why her Honour referred to the need to identify the loss of a legitimate forensic choice. It was in that context that her Honour (at [308]) made reference to the judgment of Gageler and Keane JJ in Lee (No 1) at [323] – [324]. As I pointed out in X7 (No 2) at [108], these remarks were not inconsistent with what was said in X7 but merely explained that the conduct of an examination may have different consequences in any given case: see also Strickland at [142] – [143].
Justice Basten provided the following taxonomy of the prejudice which an accused to disclose might result from the imposition of a legal or practical obligation on information relevant to his or her defence in concurrent collateral criminal proceedings or administrative investigations:
[24] (2019) 367 ALR 291 at [230]-[235].
(b) Characterising prejudice
[349]There were in effect two separate limbs to the applicants’ claims of prejudice, which may broadly be described as ‘systemic prejudice’ and ‘disclosure prejudice’. In each case, the applicants identified a risk rather than an actuality. That must necessarily be so because the court considering a stay of the examination order will have no knowledge of the specific questions which may be asked in the course of the examination, nor the answers which are likely to be given. It may be accepted, however, that the questions may extend to matters in issue in the criminal proceedings and that to compel answers to such questions may result in the applicants giving evidence adverse to their interests. …
[350]The concept of ‘systemic prejudice’ does not depend upon disclosure of compelled answers to questions or provision of documents; rather, it relies upon a principle identified by Hayne and Bell JJ in X7 v Australian Crime Commission:
The paragraph referred to is reproduced in [30] above.
[351]The existence of such prejudice must be assumed in every case in which the preconditions are satisfied, namely that a compulsory examination is authorised with respect to issues which will or may arise in the course of pending criminal proceedings. It is, as the applicants correctly stated, not possible to require from them demonstration that such a risk is real in the particular circumstances of the case, or that the particular prejudice may be weighty rather than slight. That is so because, first, the questions are not known in advance of the examination and, secondly, even if they were known, to reveal the likely answers would be to create the very prejudice which is sought to be avoided.
…
[355]The second category, ‘disclosure prejudice’, will arise where the information provided by the applicants in the course of their examinations becomes known to those investigating or prosecuting the criminal charges. Although the answers given or the documents produced in an examination will not be admissible in the criminal proceedings (s 198) it is not difficult to envisage circumstances in which the prosecution might benefit from knowledge of the answer which had been given. It was to minimise the risk of contamination occurring that the Commissioner adopted a protocol, known as the ‘Standard Operating Procedure on the Management and Disclosure of Proceeds of Crime Act 2002 (Cth) Information’ (‘the protocol’). However, there remained what was described as ‘the risk of leakage’, that is of disclosure despite various protective measures, ‘through misunderstanding, inadvertence or mishap, to those involved in the prosecution.’
Justice Basten emphasised that the critical issue on the appeal in Onley was whether by withdrawing from the judicial power to stay the POC Act proceeding on the grounds of systemic or disclosure prejudice, s 319 of the POC Act had impliedly abrogated the protections inherent in the administration of the criminal law:
[352] Nevertheless, it does not follow that systemic prejudice is a factor to be taken into account. As Hayne and Bell JJ explained in X7, although compulsory examination in such circumstances would involve an alteration to the system of criminal justice, such an alteration can be made by statute so long as that consequence is ‘made clearly by express words or by necessary intendment.’ The critical issue, therefore, is whether the Proceeds of Crime Act, and in particular s 319 (headed ‘Stay of proceedings’) has now made such provision by way of a sufficiently clear statement.
Justice Basten accepted that the risk of disclosure to investigators or prosecutors of the criminal charges may constitute a particular prejudice for which a stay might be granted pursuant to s 319 of the POC Act:
[356]These submissions require consideration of the powers of the Court to restrict disclosure of information acquired pursuant to an examination, in accordance with s 266A, in combination with the protocol put in place by the Commissioner. As will be seen, the risk of disclosure is the critical factor in assessing whether a stay is required, in the interests of justice.
…
[364]It should be noted that s 266A is structured in a permissive form; that is, it provides authority for the disclosure of compelled information to various authorities identified in the omitted table for a purpose specified in the table. It includes an authority of the Commonwealth or a State or Territory that has the function of investigating or prosecuting offences, for the purpose of assisting in the prevention, investigation or prosecution of an offence. The importance of the provision in the present context is that subs (2)(b) impliedly confers power on a court to make an order prohibiting disclosure of the information ‘to the authority for that purpose’, language which may be taken to refer to any authority falling within the items in the table and for the purposes identified in the table. The scope of the Court’s powers was therefore sufficient for the presently relevant purpose of prohibiting disclosure to an authority investigating or prosecuting offences against an Australian law.
…
[377]The risk of leakage of specific information, adverse to the interests of the applicants, depends on different considerations from systemic prejudice. That such prejudice may arise and may ground a stay is implicit within the terms of s 319(6). Thus it is necessary for the Court to consider whether any prejudice that the person the subject of the criminal proceedings would suffer were the examination not stayed ‘may be addressed by the court by means other than a stay of proceedings’ (subs (6)(d)), and the requirement to take into account orders, other than a stay, ‘that the court could make to address any prejudice that a person … would suffer if the proceedings were not stayed’: subs (6)(e).
[378]It was therefore necessary for the Court to have regard to the very real prejudice which might be caused if compelled answers were made known to those involved in the criminal prosecutions. To minimise that risk two steps were required. One was the making of appropriate non-disclosure orders under s 266A; the other was for the Court to be satisfied that the protocol put in place by the Commissioner would be effective in giving protection against disclosure. That practical consideration was important in circumstances where the number of officers within the Australian Federal Police and the Australian Taxation Office involved in both the confiscation of assets and the prosecution of the criminal charges was considerable. In such circumstances, the applicants were entitled to require that the Court consider the practical effectiveness of the protocol and, if not satisfied, either require a complete division of functions, or grant the proposed stay.
I respectfully adopt the observations of Basten JA in [364] about the structure of s 266A. It permits, subject to the power of the Court to make an order to the contrary, information obtained from evidence given by a person in POC Act proceeding, or through the exercise of powers conferred by the POC Act, to Commonwealth and State policing and prosecuting agencies. However, I would add that the default position enacted by s 266A of the POC Act, and in that sense the intention of the legislature, in respect of the generality of cases, is that the information would be disclosed as thought appropriate by those officers pursuing the proceeds of crime, to officers investigating or prosecuting criminal offences subject only to an order to the contrary.
The abrogation of the common law power to stay POC Act proceedings and its replacement with the much more closely confined statutory power conferred by s 319 must be understood in the context of the effect of s 266A of the POC Act. There is some difficulty in a court adopting a general approach, that unless an order to the contrary is made pursuant to s 266A a stay should be ordered if there are pending related criminal proceedings, when it is plainly the legislature’s intention both that a stay should not be granted on that ground alone and that, unless there was some reason to the contrary, the information obtained may be disclosed to policing and prosecuting agencies. To adopt that approach would seem to deny the full combined effect of both provisions. The limitation on the power to stay is not explicitly conditioned on the making of an order pursuant to s 266A of the POC Act. To put it another way, the circumstance that an order to the contrary has not been, or will not be, made pursuant to s 266A is not clearly stated to be a ground justifying the grant of a stay. Reading both provisions together, the proper approach is to make an order prohibiting disclosure pursuant to s 266A of the POC Act only when a respondent demonstrates a risk of a specific prejudice, in the particular circumstance of his or her case, if the information were to be passed on to policing or prosecuting agencies.

For those reasons, it is not obvious to me that the risk of the leaking of information, after the making of a s 266 order, is a relevant consideration unless a prejudice, like the loss of a legitimate forensic choice, warranting the making of the order has been demonstrated. In a case in which the order has been made by consent, and without the demonstration of a specific forensic prejudice, the provision of the information to policing and prosecuting agencies is no more than that which the Act contemplates. However, for reasons set out in [113]-[127] below I am satisfied there is no risk in this particular case.
As will be apparent from the discussion thus far, when a stay of a proceeding is sought before an examination commences, the identification of specific, prejudice is problematic. As Hayne and Bell JJ explained in X7, its identification would require the accused/respondent to speculate as to the questions which might be asked, and to disclose how the answers might compromise his or her defence, thereby prejudicing his or her criminal trial in the very attempt to obtain a stay of the POC Act proceedings. However, the removal of systemic and general prejudice as a ground, does not completely deny an accused/respondent any protection. Rather, it defers the stage at which it becomes practical to seek a stay. When a particular request for information is made the accused/respondent will be in a good, or at least in a better, position to demonstrate a specific prejudice by reference to the range of matters that the answers might disclose and their significance to any possible defence of the prosecution case which has been disclosed. It is at that point in time that the accused/respondent may be in a position to demonstrate a good reason for making an order to the contrary pursuant to s 266A of the POC Act. If reason enough is shown, the order will depart from the default position of disclosure, and prohibit disclosure to investigation and prosecution agencies of his or her response. It is also at that point that an accused/respondent might, albeit with greater difficulty, be in a position to demonstrate that even with a quarantining of the answers, the interest of justice demand a stay of the POC Act proceeding rest his or her defence to criminal charges is prejudiced.
Prejudice relied on by the respondent
The respondent contends that it is in the interests of justice to stay the proceedings because the process of examination of his affairs will compromise his trial according to law by rendering it unfair. The first respondent’s contention is that his answers to questions about his affairs will affect the manner in which he can conduct his defence in that he will not have the benefit of disclosure of the prosecution case before he is obliged to give evidence on matters which are relevant to the prosecution. In particular, he would be denied his solicitor’s advice about how to conduct the defence having regard to the strengths or weaknesses of the prosecution case. The first respondent submits that it is a fundamental aspect of the administration of the criminal law that an accused not be called on to disclose his defence before the prosecution has disclosed its case, that an accused is not required to consider how to conduct his defence case, and in particular not be required to commit to that defence before prosecution disclosure.
It is alleged that if the first respondent is compulsorily examined and required to provide a sworn statement, his options in terms of what evidence to give at trial and what evidence to lead at trial will be much more confined.
The first respondent also complains that lines of enquiry and investigation which might be revealed will assist in his prosecution if he were to give evidence. That is so particularly if he is questioned about his involvement in the business of selling devices with the encrypted AN0M app. It is also contended that he may be charged with further offences in Australia.
So put, the submission does no more than restate the ground for staying proceedings which was accepted by the High Court in Zhao, before s 319 of the POC Act was amended in terms to exclude that ground as a reason for granting a stay of proceedings.
The contentions so put discloses the great degree to which the first respondent’s contention of prejudice to the trial are of a kind which can no longer ground a stay following the amendments to s 319 of the POC Act.
The first respondent accepts that the risk of a breach of a non-disclosure order should not be assumed, but he contends that that is a reason or a matter to be put on the scale. It is a matter to weigh in consideration of the question whether it is in the interests of justice to stay proceedings. However, again so put, that submission is applicable to the generality of cases and does not depend on the particular circumstances of the first respondent’s prosecution.
Interest of justice – the USA charges
In respect of the USA proceedings, the first respondent relies on assistance that might be given to the USA by Australian authorities pursuant to the Mutual Assistance in Criminal Matters Act. However, the orders which have and will been made prohibiting any disclosure in that regard protects the first respondent.
In respect of the prejudice which the continuation of the proceedings might cause the first respondent in the trials of criminal charges in the USA, the first respondent filed written submissions on the scope of the Fifth Amendment privilege entrenched in the Constitution of the USA, and the spousal privilege accorded by the general law of the USA.
The applicant contends the first respondent is not a citizen or resident of the USA and is presently outside of the territory thereof. The Commissioner also contends that the examinations will not be concluded by an ‘agent’ of the USA government. The history of the Constitutional entrenchment of the Fifth Amendment privilege shows that it was intended to ensure that Star Chamber like inquisitions were not adopted by the newly established government of the USA.
Moreover, if the Fifth Amendment privilege does not render self‑incriminatory statements made in the examinations in Australia inadmissible, because the USA prosecutors would obtain them from Australian, and not USA, authorities, the interests of justice, within the meaning of that expression in s 319(1) of the POC Act cannot impose higher standard of justice on the Courts of the USA than that provided by its domestic law.
Spousal privilege under USA law extends, to a privilege not to be compelled to give evidence in either civil or criminal proceedings about, confidential communications between spouses, unless the communications are in furtherance of criminal offending.
In respect of spousal privilege in the USA, I again proceed on the premise that the evidence of the second respondent would not be admissible because it is hearsay.
I accept that the Fifth Amendment and spousal privileges available under the law of the USA are broad in their scope and application. However, there is no feature of them which would warrant a different conclusion as to whether a stay should be ordered in the interests of justice in respect of the criminal charges brought in the USA than the conclusion that must be reached in respect of the Australian charges. I dismiss the application for a stay on the ground that it is in the interests of justice, in respect of the USA charges, to so order.
Risk of leakage
The only remaining matter is the matter of general risk of an unauthorised disclosure to which I now turn.
As I explained in [96]-[98] above, I will proceed on an acceptance of correctness of the proposition that a risk of leakage of the information gained in the POC Act proceeding, notwithstanding consent orders pursuant to s 266A of the POC Act, may warrant a stay but with some reservations.
The first respondent contends that disclosure of information in the POC Act investigation may reach criminal investigators or prosecutors, therefore prejudicing their criminal charges in the District Court of South Australia and the USA.
The first respondent provides no factual evidence as to this ever occurring or a real or material risk of any such occurrence. His submissions are speculative. In any event, the applicant’s Standard Operating Procedure on Proceeds of Crime Act Information and Coercive Material (SOP), which has been in force since August 2017 and as amended up to July 2021,[25] addresses any ‘risks of leakage’.
[25] AFP Revised Written Outline (FDN 71) [95].
The SOP requires compliance by all AFP appointees and ensures the discharge of functions under the POC Act do not interfere with the integrity of any criminal proceeding (cl 8(a)).[26] The secrecy requirements of the SOP remain binding even on those who transfer out of the CACT or leave the AFP (cl 5).[27] Strict information storage requirements apply to POC Act information and ‘Coercive Material’ (cl 13), including secured custody, control, access, printing, and warning label procedures to ensure that there is no disclosure outside of the CACT where a POC Act s 266A(2)(b) order has been made.[28]
[26] AFP Revised Written Outline (FDN 71) [96].
[27] AFP Revised Written Outline (FDN 71) [96.5].
[28] AFP Revised Written Outline (FDN 71) [96.6] – [96.8].
Clause 37 of the applicant’s SOP ensures there is comprehensive protection and ‘compartmentalisation’ of all POC Act information and Coercive Material by providing that any person in receipt of this information must not have any role in any related criminal investigation or prosecution.[29]
[29] AFP Revised Written Outline (FDN 71) [96.10].
The CACT was established by the Commissioner, as a Proceeds of Crime Authority under the POC Act to investigate POC Act matters. The Commissioner’s litigation function is exercised by the CAL and criminal investigation teams. In this way, the work of the CACT and any information gathered therein remains separate and not shared with criminal investigation teams or prosecutors.[30] There are separate reporting lines between the AFP’s CAL and Criminal Asset Investigation (CAI) teams on the one hand and the AFP’s criminal teams which work with the Commonwealth Director of Public Prosecution (CDPP).[31] Such procedures and structures are intended to prevent any inadvertent disclosures of information to AFP criminal teams in respect of information obtained during CACT investigations or POCA proceedings.[32]
[30] Affidavit of Stephen Fry (FDN 29) [23].
[31] Affidavit of Stephen Fry (FDN 29) [24].
[32] Affidavit of Stephen Fry (FDN 29) [25].
All AFP lawyers (including CALT lawyers) must observe the Commissioner’s Charter of Independence and Ethical Responsibilities (the Charter) in the performance of all duties and functions.[33] The Charter acknowledges that AFP lawyers must provide professional independent legal advice and assistance having regard to the law and ethical obligations, and must maintain integrity, objectivity and confidentiality.[34] More so, the Charter provides that AFP lawyers must not be subject to direction or influence from any person outside the AFP’s Legal Services portfolio in relation to the content or substance of legal advice.[35] Those obligations safeguard the protection of confidential information and circumvent any potential or perceived disclosure prejudice to POC Act respondents. For the purposes of avoiding disclosure prejudice, it should be noted that CALT is not conducting any criminal investigation in respect of the respondents.[36] CALT’s investigation is concerned with the first respondent’s ‘property’ within the meaning of the POC Act.[37]
[33] Affidavit of Stephen Fry (FDN 29) [35].
[34] Affidavit of Stephen Fry (FDN 29) [35].
[35] Affidavit of Stephen Fry (FDN 29) [35].
[36] Affidavit of Stephen Fry (FDN 29) [45].
[37] Affidavit of Stephen Fry (FDN 29) [45].
The first respondent accepts that the SOP closely prescribes the circumstances in which disclosure can be made but refers to cls 16-22 of the SOP which provides a mechanism for disclosure. However, cl 17 of the SOP provides that POC Act information and Coercive Material must not be disclosed by the CACT if an order prohibiting such disclosure has been made pursuant to s 266A of the POC Act. Paragraphs 18 to 22 provide a regulated procedure by which disclosure may be made only if there is no such order. In the circumstances, including the order which was made by consent, and the Commissioner’s undertaking, the SOP does not authorise the disclosure of the information.
The affidavits of officers of the AFP filed by the Commissioner depose that if there is a stay of the POC Act proceedings the Commissioner may suffer prejudice of the following kinds:
·any property of the first respondent which is presently unknown to the Commissioner will remain unidentified and maybe dissipated;
·information relevant to the POC proceedings may be destroyed;
·avenues of enquiry may go cold;
·the respondents, and other persons, may lose, forget or deliberately destroy information relevant to tracing the proceeds of crime; and
·the Commissioner may lose the capacity to locate potential examinees or obtain documents.
The respondents contend that there is no evidence tending to show that there are other yet undiscovered proceeds of crime, or information, which might be forgotten or lost. However, there is here the problem of the unknown unknown. The purpose of examinations under the POC Act is to provide the Commissioner with information or a means to obtain that information which is otherwise unknown. The evidential foundation for the Commissioner’s concern is the notorious practice of criminals to hide, ‘fence’ them or launder the proceeds of crime lest they be apprehended by police. That practice is all the more necessary and entrenched in serious drug trafficking offences.
I acknowledge that in this respect the balancing of discretionary considerations is one-sided. Whereas the amendments to s 319 of the POC Act, which are calculated to the reverse effect of the decision in Zhao, precludes the first respondent from relying on systemic and general disclosure prejudice, and requires the identification of specific prejudice, the Commissioner may properly rely on general and inherent risks of that kind.
The CAL and CAI employ a range of additional protective mechanisms for POCA information and Coercive Material which supplement the SOP.[38] This includes the AFP’s National Guideline on Information Management, distinct network document storage facilities, and file management between CAL’s ‘iManage’ database and CAI’s Police Real-time Online Management Information System (PROMIS).[39] There is no overlap or sharing of any information between CAL’s and CAI’s respective network and document management systems in respect of POCA information or Coercive Material.[40]
[38] Affidavit of Stephen Fry (FDN 29) [64].
[39] Affidavit of Stephen Fry (FDN 29) [65] – [70].
[40] Affidavit of Stephen Fry (FDN 29) [69].
My Order dated 26 March 2024 (FDN 84) provides protection to the respondents from disclosure of the affidavits listed in Order 1, as they are to be treated as being filed on a party access basis only (including judicial officers and chambers staff) pursuant to rules 32.2(2) – (3) of the Uniform Civil Rules 2020 (SA). ‘Access’ to these affidavits as defined in rule 32.2(1) is further restricted by Order 2 to the applicant’s General-Counsel, solicitors and support staff where such persons are acting as part of the applicant’s Criminal Assets Litigation (CAL) team. Order 3 precludes such affidavits and any contents therein (protected information) from being disclosed to a Federal Agent and any person involved in any investigation of the first respondent in respect of any crime for the purpose of prosecution as well as any prosecution of the first respondent for any crime. As such, the applicant may only use and disclose Protected Information for the purposes of any proceeding or investigation (including examination) under the POC Act, but not contrary to the disclosure prohibited in Order 3.
I find that there is a very low level of risk of leakage of information to criminal investigators and prosecutors having regard to the SOP. I am not satisfied that the risk of disclosure is such as to warrant a stay of these proceedings.
Conclusion
I do not consider that it is in the interest of justice to stay the POC Act proceedings. I dismiss the respondent’s interlocutory application.

[2025] SASC 9

7 February 2025