Commissioner of the Australian Federal Police v McGlone

The Commissioner of the Australian Federal Police appealed to the Court of Appeal of New South Wales against a decision of a single judge who had refused to order compulsory examinations of Richard McGlone, Jason McKell, and Jodie McGlone under the *Proceeds of Crime Act 2002* (Cth). The Commissioner sought these examinations in connection with investigations into alleged offences committed by Richard McGlone and Jason McKell, specifically dealing with money reasonably suspected of being proceeds of crime.

The central legal issues before the Court of Appeal were whether the single judge had erred in exercising their discretion to refuse the compulsory examinations. This involved considering the relevant factors that a court should take into account when deciding whether to order such an examination, particularly in circumstances where criminal proceedings were either pending or might be commenced, and whether the possibility of future criminal proceedings or the multiplicity of examination proceedings were grounds to refuse an order.

The Court of Appeal reasoned that while the pendency of criminal proceedings on the same subject matter could be a relevant factor in exercising discretion, it was not determinative. The court found that the single judge had placed undue weight on this factor and had also erred in considering the potential for future criminal proceedings as a reason to refuse the examinations. The court clarified that the purpose of a section 180 examination is to gather information for the purposes of the *Proceeds of Crime Act*, which can include assisting in the recovery of assets even if criminal proceedings have not yet been finalised or commenced. The court allowed the appeal in relation to Jodie McGlone, ordering that she be examined about the affairs of Richard McGlone and Jason McKell, but imposed conditions to prevent disclosure of information relevant to the criminal investigations to those involved in the prosecution. The appeal was dismissed in relation to Richard McGlone and Jason McKell.