Commissioner of the Australian Federal Police v El-Debel
[2021] ACTSC 286
•5 November 2021
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Commissioner of the Australian Federal Police v El-Debel |
Citation: | [2021] ACTSC 286 |
Hearing Date: | 2 November 2021 |
DecisionDate: | 5 November 2021 |
Before: | Elkaim J |
Decision: | See [40] |
Catchwords: | CIVIL LAW – APPLICATION – Application for examination orders – prejudice – relationship between grounds of application and evidence in support |
Legislation Cited: | Proceeds of Crime Act 2002 (Cth) ss 29, 31, 180, 266A, 319 |
Cases Cited: | Onley & Others v Commissioner of the Australian Federal Police [2019] NSWCA 101 |
Parties: | Commissioner of the Australian Federal Police ( Plaintiff) Abdul Aziz El-Debel ( First Defendant) Cigdem El-Debel ( Second Defendant) Gopalakrishnan Suryanarayanan ( Third Defendant) Kavitha Gopalakrishnan ( Fourth Defendant) Raminder Singh Kahlon ( Fifth Defendant) Algoram Business Solutions Pty Ltd ACN 632 450 107 ( Sixth Defendant) New Horizons Business Solutions Pty Ltd ACN 612 005 268 ( Seventh Defendant) |
Representation: | Counsel D Tynan ( Plaintiff) J Maher ( First Defendant) Self-represented ( Third and Sixth Defendant) Self-represented ( Fourth Defendant) M Kalyk ( Fifth Defendant) |
| Solicitors Commissioner of the Australian Federal Police ( Plaintiff) Kamy Saeedi (First Defendant) Self-represented ( Third and Sixth Defendants) Self-represented ( Fourth Defendant) Murphy’s Lawyers Incorporated ( Fifth and Seventh Defendants) | |
File Number: | SC 220 of 2020 |
ELKAIM J:
The matter before the court today is an application in proceeding filed on 30 September 2021 by the Commissioner of the Australian Federal Police. The application seeks orders under s 180 of the Proceeds of Crime Act 2002 (Cth) (the Act). This section states:
180Examination orders relating to restraining orders
(1)If a *restraining order is in force, the court that made the restraining order, or any other court that could have made the restraining order, may make an order (an examination order) for the *examination of any person, including:
(a) a person whose property is, or a person who has or claims an *interest in property that is, the subject of the restraining order; or
(b) a person who is a *suspect in relation to the restraining order; or
(c) the spouse or *de facto partner of a person referred to in paragraph (a) or (b);
about the *affairs of a person referred to in paragraph (a), (b) or (c).
(2) The *examination order ceases to have effect if the *restraining order to which it relates ceases to have effect.
The application was opposed by the defendants.
The following affidavits were relied upon by the various parties:
(i)Mr Michael Courtenay, sworn on 22 June 2020, for the plaintiff.
(ii)Mr Nicholas Chan, sworn on 30 September 2021, for the plaintiff.
(iii)Mr Stephen Fry, sworn on 27 October 2021, for the plaintiff.
(iv)Mr James Maher, sworn on 21 October 2021, for the first defendant.
(v)Ms Rose Evers, sworn on 14 October 2021, for the fifth and seventh defendants.
(vi)Mr Gopalakrishnan Vilayur, sworn on 11 October 2021 for the third, fourth and sixth defendant.
(vii)Ms Christine Plevey, sworn on 29 October 2021 for the third and sixth defendant.
The application seeks orders for the examination of the first defendant, the third defendant, the fourth defendant, the fifth defendant and Mr Mehulkumar Dhanesha.
The restraining order that is “in force” was made by me on 22 June 2020 and relates to the assets of all seven defendants.
The first, third and fifth defendants are the accused in a criminal trial, alleging a conspiracy between them to defraud the Commonwealth. Their trial has been set down for hearing, to commence on 30 May 2022.
The orders include a request to examine a Mr Mehulkumar Dhanesha. He attended the hearing (by AVL) but did not wish to make any submissions.
The parties were generally ad idem on the principles to be applied. There was no suggestion that an examination order could not be made nor was it suggested that, without more, the fact that the criminal trial was still to be heard precluded the making of an order.
The third and fourth defendants are in fact at the core of the application. This is because the application for the examination follows from applications of the third and fourth defendants seeking exclusion orders as to their assets which are the subject of the restraining order. The evidence and associated submissions relied upon by the plaintiff were wide-ranging. This particularly concerned the prejudice that would flow to the plaintiff should the orders not be made.
This prejudice is outlined in the affidavit of Mr Fry from [45]. Mr Fry refers to it as “practical prejudice”. He then goes on to outline a number of matters which were described by counsel for the plaintiff as arising from the disparity between the assets of the defendants and the scope of the offending. Counsel said that there was a risk of the civil proceedings being delayed if the orders were not made now. In Mr Fry’s words the Commissioner:
… will be prevented from utilising the investigative tool of examinations conferred under the Act to (amongst other things) identify any further property that may be available for restraint and may be available to address the likely shortfall…
Mr Fry also observes that “criminal proceedings are often not determined expeditiously and may be subject to ongoing delays”. The criminal proceedings in this matter have certainly been delayed, apparently at the fault of the prosecution. However, whoever may be at fault, as stated above, the criminal trial now has a set date at the end of May next year.
Then in [52], Mr Fry summarises the prejudice that will flow from further delay. This paragraph reads:
I am concerned that if examinations are delayed until such time as the First, Third and Fifth Defendants’ criminal proceedings are concluded, the Commissioner will suffer prejudice, and the entirety of the proceeding will be unreasonably delayed, because:
a.The Commissioner will be prevented from utilising the investigative tool of examinations conferred under the Act to (amongst other things) identify any further property that may be available for restraint and may be available to address the likely shortfall I have referred to in paragraphs 46 to 48 above, before persons may take steps to dissipate that property or otherwise place that property beyond the reach of the Commissioner in this proceeding;
b.The Third and Fourth Defendants’ applications for exclusion orders, or any person’s application for exclusion orders in future would not be able to be heard and determined, as the Commissioner would not have been afforded reasonable opportunity to conduct examinations;
c.As a result of applications for exclusion orders remaining on foot, the Commissioner would be unable to progress his application for forfeiture orders, which would unreasonably delay final determination of this proceeding for all parties, and in circumstances where the Commissioner, on behalf of the Commonwealth, has provided an undertaking as to damages;
d.The period of time for which the Commissioner and AFSA would then be required to retain the property restrained by virtue of the Orders dated 22 June 2020 would be unreasonably extended, thereby significantly increasing the financial and administrative burden of managing the property; and
e.The Commissioner would be limited in his ability to determine the nature and scope of benefits that were derived through the alleged criminal offending of the First, Third and Fifth Defendants.
What can be immediately seen from [52] is that there is only one reference specifically mentioning the exclusion applications that have been made by the third and fourth defendants. These are applications that were made pursuant to ss 29 and 31 of the Act.
It is now necessary to return to the application before the court and to examine the grounds upon which it is said to be based. In summary the grounds arise entirely from the exclusion applications just referred to. The grounds end in this way:
….. The Commissioner of the Australian Federal Police suspects that the persons referred to in paragraph 1 of this Application will be able to provide information about the affairs of the Third and Fourth Defendants.
Clearly this application is not concerned with the examination of the first and fifth defendants other than to the extent they can provide information about the third and fourth defendants.
This is a very relevant factor to be taken into account in the exercise of my discretion as to whether or not to permit the examination of all of the persons sought to be examined by the plaintiff’s application.
Although not expressly adopted by the defendants, I agree with the plaintiff’s summary of the opposition to the orders, expressed in this way:
(i)The right to silence held by the defendants in the criminal proceedings would be placed at risk if they were to be examined.
(ii)There was a chance of disclosure of information gathered in the examinations which might be relevant, and made use of, in the criminal proceedings.
Returning now to general principles, as I have said there was very little dispute. The plaintiff relied heavily on the New South Wales Court of Appeal case of Onley & Others v Commissioner of the Australian Federal Police [2019] NSWCA 101.
The plaintiff submitted that the principles set out in Onley effectively disposed of the two points of objection set out above. Although Onley was concerned with a stay, the applicable principles were said to be the same.
Some of the portions of Onley that were relied upon included the following:
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].
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:
[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.
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.
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.
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.”
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.
The plaintiff pointed out that the “Standard Operating Procedures” that were relevant in Onley have since been strengthened, as described by Mr Fry in his affidavit, from [25]. In addition I was referred to s 266A of the Act and the protections therein provided. This issue was summarised in Onley:
366.As will be explained below, the issue at the heart of the present case was whether a stay was required in the interests of justice because the procedures put in place by the Commissioner could not guarantee that derivative information in particular would not be supplied to investigators and prosecutors, absent a complete ban on communication of information between those involved in identifying property which might be the proceeds of crime and those involved in the criminal prosecutions. The primary judge was satisfied that the protections put in place by the Commissioner were sufficient, without the need for a blanket ban on the passing of any information between the two groups of Commonwealth officers.
The Court of Appeal then went on to state that it could not identify prejudice to the defendants arising from the possibility of disclosure. It found that the measures in place, including the use of s 266A were sufficient to defeat any suggestion of prejudice arising from the possibility of disclosure.
Then from [394] Basten JA discussed prejudice to the Commissioner if a stay was granted of the examinations until the criminal proceedings were completed. Finally Basten JA discussed the balancing exercise between the risks of prejudice to the opposing parties. He said:
408.Section 319 does not suggest that a balancing exercise is required. Rather, it requires that the Court determine whether it is “in the interests of justice” that a stay be granted. To speak of a balancing exercise suggests that there is a criterion of comparison, such as the degree of disadvantage to the respective interests. However, that is only partly true. The interests themselves are not of a kind. It is likely that the Court will be less solicitous of a significant risk to the Commissioner’s ability to recover proceeds of crime if there is some risk of prejudice to the conduct of a criminal trial. What is required is an evaluative judgment which will depend upon the circumstances of the case.
409.The standard to be applied, namely the interests of justice, is informed by both general law principles and the statutory context. The primary consideration to be taken into account is the protection of the forthcoming trial (or trials) with respect to the criminal charges involving the applicants. While the expeditious pursuit of the forfeiture of assets under the Proceeds of Crime Act is an important consideration, careful attention should be given, consistently with the terms of s 319, to the avoidance of orders under the Act which might render a later criminal trial unfair. On the basis that the existence of systemic prejudice would be insufficient to warrant a stay, the applicants contended that a complete barrier to non-disclosure was required. This was because of the significant difficulties in determining what steps may have been taken by the prosecution team, even inadvertently, on the basis of information obtained through compulsory disclosures if there were to be any communication between the two teams.
It is apparent from Onley that the two points of opposition relied upon by the defendants may be defeated. But that does not mean they must be defeated. That is precisely why there is a discretion. Paragraph 409, just quoted, makes this patently clear. To repeat a part of the paragraph:
The primary consideration to be taken into account is the protection of the forthcoming trial (or trials) with respect to the criminal charges involving the applicants. While the expeditious pursuit of the forfeiture of assets under the Proceeds of Crime Act is an important consideration, careful attention should be given, consistently with the terms of s 319, to the avoidance of orders under the Act which might render a later criminal trial unfair.
In respect of the third and fourth defendants, the plaintiff made the point that should the examination orders not be made then, pursuant to s 319, there would be an effective stay of these defendants’ exclusion applications. The third and fourth defendants did not seem to fully understand this consequence. They made it clear that they were anxious for their applications to proceed, but they opposed the orders sought by the plaintiff. I observe that had they withdrawn their exclusion applications the plaintiff’s application would have lost its foundation.
The third and fourth defendants did make these points:
(a)Their interests should not have been restrained in the first place.
(b)Their exclusion applications were for specific amounts, not the whole of the amounts that had been restrained.
(c)The third defendant was involved in the criminal proceedings for an amount of $20,000, yet his assets that had been restrained were in the order of $2 million.
(d)The fourth defendant had been denied some $74,000 which was made up of her earnings working in the education system.
These points may well be relevant to the exclusion applications but they are not relevant to the current application. I sympathise, in particular with the fourth defendant, who seems to be an innocent party being denied access to funds she accumulated through noble endeavours. I cannot however take these considerations into account.
What is relevant in respect of the third and fourth defendants, who are husband and wife and who both opposed the orders sought, is that they are unrepresented in these proceedings. I endeavoured to explain to them the consequences of the orders. The fact that they are unrepresented does not dictate any result, but it is a factor, albeit of limited weight, which I can consider in the overall exercise of my discretion.
There is no reason why the examinations cannot take place after the criminal proceedings. The plaintiff made it very clear that the body dealing with the examinations was entirely separate to that dealing with the criminal case. That was put forward in aid of the application but also might be seen as a factor against the orders sought. If the different arms and purposes within the AFP are separate as between the civil proceedings and the criminal proceedings, then, without more, there is no reason why the civil proceedings could not take place after the criminal case.
Now that the criminal proceedings have a set hearing date, which is not very distant, then any prejudice arising from delay is limited.
The first, third and fifth defendants stressed, in the strongest terms, their right to silence and the risk that this right would be subjected to if the examinations occurred. They submitted that their choices in how to conduct their defence would be impeded. I was taken to these passages from Strickland v DPP (Cth) [2018] HCA 53; 266 CLR 325:
75.The Court of Appeal were not correct, however, in rejecting the primary judge's conclusion that the prosecution derived a forensic advantage from the examinations. If nothing else, the prosecution derived the forensic advantage, which the examinations were expressly calculated to achieve, of compelling the appellants to answer questions that they had lawfully declined to answer and thereby locking the appellants into a version of events from which they could not credibly depart at trial. For the same reason, the primary judge was right to hold that, with the exception perhaps of Galloway, the appellants suffered a forensic disadvantage as the result of the examinations. They suffered the forensic disadvantage of being locked into a version of events from which they could not credibly depart at trial.
76.As Hayne and Bell JJ observed in X7 (No 1) in relation to an unlawful compulsory examination conducted post charge, even if the answers given at a compulsory examination are kept secret, and so cannot be used directly or indirectly by those responsible for investigating and prosecuting the matters charged, the requirement to give answers after being charged fundamentally alters the accusatorial judicial process that begins with the laying of a charge and culminates in the accusatorial and adversarial trial in the courtroom. The examinee can no longer decide the course which he or she should adopt at trial 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 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."
77.Similar considerations apply where, as here, a person is unlawfully subjected to a pre-charge compulsory examination conducted for the extraneous, unlawful purpose of assisting the AFP to compel the person to give answers to questions about offences of which he or she is suspected and in respect of which he or she has declined to be interviewed. Even if the answers given at such a compulsory examination are kept secret, the unlawful requirement to give answers in respect of an offence of which a person is suspected, or in relation to which he or she is a person of interest, fundamentally alters the accusatorial process for the investigation, prosecution and trial of that offence by unlawfully compelling the person to provide the prosecution with information.
78.Such a person can no longer decide the course which he or she should adopt at any subsequent trial according only to the strength of the prosecution case as revealed by the material provided by the prosecution before trial or to the strength of the evidence led by the prosecution at trial. Such a person must decide what plea to enter, what evidence to challenge and what evidence to give or lead at trial according to the answers which he or she has been unlawfully compelled to give at the examination. And as will be explained in greater detail later in these reasons, such a person is thus denied the protection of the common law right to refuse to answer any question except under legal compulsion and the very protection which the Parliament, through the ACC Act, has ordained that he or she should have.
79.Moreover, such concerns are not to be sloughed off as captious or overly punctilious as, in effect, counsel for the CDPP submitted they should be. They go to the heart of the accusatorial nature of the criminal justice system. Nor need the court be informed or persuaded of specific respects in which the person's defence will or may be compromised in order to conclude that the forensic disadvantage resulting from the subjection of a person to an unlawful compulsory examination in relation to a matter in respect of which he or she is subsequently charged is significant. For assuming for the sake of argument that the person has given at least one answer in the course of the examination which can arguably be construed as an admission of guilt or otherwise against interest – and in these cases, the primary judge found that to be so at least in the case of Hodges, Tucker and Strickland – it must follow that the person has thereby been limited in the conduct of his or her defence in a manner to which he or she should not lawfully have been subjected.
(footnotes omitted)
What I think emerges from the authorities is that just because an order under s 180 might affect an accused person’s right to silence and might raise a theoretical possibility of disclosure of information from the examination into the criminal proceedings, these factors are not enough, without more, to defeat the application for an examination.
However they are factors to be taken into account and may play a significant part in the exercise of the discretion. I do take these factors into account. I also take into account that the criminal proceedings now have a set hearing date in the foreseeable future and, most significantly, that the application for the examinations arises only from the exclusion applications by the third and fourth defendants.
The latter point means that the first and fifth defendants will be examined about matters not to do with them, but which could possibly impact upon their ability to defend the criminal proceedings. Had the exclusion proceedings had broader grounds, specifically if they had related to all of the defendants in the criminal case, this factor would have been less persuasive.
It is to be recalled that the criminal proceedings involve a conspiracy in relation to financial dealings. The examination will involve evidence being given by the first and fifth defendants about the third defendant which might be, in fact almost certainly will be, relevant to the dealings between the defendants which are the subject of the criminal proceedings.
The plaintiff, it must be assumed, deliberately drafted the grounds of the application in the manner that is before the court. Notwithstanding the limits of the grounds the plaintiff has pursued the application on a much broader basis. This is highlighted, for example, by the breadth of the prejudice asserted by Mr Fry, where he refers to considerations entirely unrelated to the grounds of the application.
In my view the discretion should not be exercised in favour of the plaintiff. I can see no reason why the examinations should not occur after the criminal proceedings. I can see no reason why, with a hearing date in sight, such a course would prejudice the plaintiff.
In relation to costs, the plaintiff submitted that costs should be reserved. The first and fifth defendants said costs should follow the event.
The plaintiff has pursued the application and has lost. I do not see why the general rule should be disregarded in favour of reserving costs.
I make the following orders:
1.Without prejudice to the plaintiff’s right to bring a fresh application, the plaintiff’s application in proceedings filed on 30 September 2021 is dismissed.
2.The plaintiff is to pay the defendants’ costs of the application.
| I certify that the preceding forty [40] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim Associate: Date: |
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