Commissioner of the Australian Federal Police v Mulder
[2013] NSWSC 621
•29 May 2013
Supreme Court
New South Wales
Medium Neutral Citation: Commissioner of the Australian Federal Police v Mulder [2013] NSWSC 621 Hearing dates: 25 February 2013 Decision date: 29 May 2013 Jurisdiction: Common Law Before: Button J Decision: (1) Order 2 of the notice of motion filed 22 February 2013 is dismissed.
(2) The defendant is to pay the costs of the plaintiff.
Catchwords: CIVIL LAW - examination orders pursuant to Proceeds of Crime Act (Cth) - whether examination order should be stayed because of pending criminal charges - whether principle in Hammond v Commonwealth applicable - whether there is any basis upon which to order stay - stay refused Legislation Cited: Anti-Money Laundering and Counter Terrorism Financing Act 2006 (Cth)
Australian Crime Commission Act 2002 (Cth)
Companies (New South Wales) Code
Controlled Substances Act 1984 (SA)
Crime Commission Act 2012
Crimes Act 1900
Criminal Assets Recovery Act 1990
Criminal Code Act 1995 (Cth)
Evidence Act 1995
Proceeds of Crime Act 2002 (Cth)Cases Cited: Australian Crime Commission v OK [2010] FCAFC 61; (2010) 185 FCR 258
Commonwealth DPP v Xu [2005] NSWSC 191 (2005); 154 A Crim R 173
Commissioner of Australian Federal Police v Dickson and Ors [2012] NSWSC 1167
Director of Public Prosecutions (Cth) v Jo [2007] QCA 251; (2007) 176 A Crim 17
Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486
Hammond v Commonwealth [1982] HCA 42; (1982) 152 CLR 188
Lee & Anor v New South Wales Crime Commission [2013] HCATrans 27
Lee v Director of Public Prosecutions (Cth) [2009] NSWCA 347; (2009) 75 NSWLR 581
New South Wales Crime Commission v Jason Lee [2012] NSWCA 276
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28 (1998) 194 CLR 355
R v Seller; R v McCarthy [2013] NSWCCA 42
SD v New South Wales Crime Commission [2013] NSWCA 48Category: Interlocutory applications Parties: Commissioner of the Australian Federal Police (plaintiff)
Jack Denis Mulder (defendant)Representation: Counsel:
P R McGuire (plaintiff)
G Jones (defendant)
Solicitors:
Australian Federal Police (plaintiff)
Nyman Gibson Stewart (defendant)
File Number(s): 2011/37131
Judgment
Before the Court is a notice of motion of the defendant. He originally sought four orders, but three of them have been resolved and do not require further examination in this judgment. The extant order sought is:
"2. That the examination of Jack Denis Mulder be adjourned until completion of the criminal charge which were [sic] laid on 4 January 2013."
The nub of the submission of counsel for the defendant is that the defendant should not be the subject of a compulsory examination by the plaintiff, in light of the fact that he is facing an outstanding charge with regard to the same subject matter as the examination.
The defendant is the applicant on the motion and the defendant in the criminal proceedings. For ease of comprehension I shall refer to him as the defendant. The plaintiff is the respondent on the motion, and for ease of comprehension I shall refer to him as the Commissioner.
Chronological background
The following was not the subject of dispute between the parties.
The applicant and his identical twin brother were born in 1949. They arrived in Australia in 1970. In 1977, the applicant was granted Australian citizenship, as was his brother in 1983.
In 2003, the brother of the defendant left Australia and has not since returned.
Between 2003 and 2011, it is alleged that the defendant assumed the identity of his twin brother, obtained various documents supportive of that identity, and carried out financial transactions in the name of his brother.
On 2 February 2011, the defendant was arrested and charged with, in short, a number of offences related to obtaining and using a passport that had not been issued to him, and nine counts of receiving a designated service using a false customer name.
On 4 February 2011, orders were obtained by the Commissioner restraining any dealings with money in two bank accounts, one with NAB and one with ANZ. An examination order was also obtained against the defendant on the same date. Those orders were obtained pursuant to ss 18 and 180 of the Proceeds of Crime Act 2002 (Cth) ("the Act").
On 28 March 2012, the defendant was convicted in the Local Court of five offences of receiving a designated service using a false customer name, along with a number of offences relating to passports.
On 10 May 2012, the defendant was sentenced to imprisonment for 6 months. He lodged an appeal to the District Court of New South Wales.
On 19 July 2012, the defendant was served with a notice by the Commissioner that the money in the restrained accounts would be automatically forfeited on 9 November 2012. That notice was served pursuant to s 92A of the Act.
On 22 August 2012, the defendant was released from prison.
On 10 September 2012, the defendant left Australia and travelled to China.
On the same date, it is alleged that a person telephoned the ANZ bank, and represented himself to be the twin brother of the defendant. In fact, it is alleged, that person was the defendant. That allegation is founded, in short, on voice identification evidence from a police officer, combined with circumstantial evidence said to derive from a number of things said by the caller.
On 19 October 2012, the defendant filed a motion seeking an extension of the period at the end of which the restraining order would automatically become a forfeiture order, and also exclusion from that forfeiture order.
On 26 October 2012, Johnson J extended the period for which the restrained property would be forfeited to 9 April 2013. Subsequently, the period was further extended to 9 August 2013.
On 4 January 2013, the applicant returned to Australia from China. He was arrested and charged with one count of giving false information to the ANZ Bank, founded on the phone call said to have occurred on 10 September 2012. That offence was brought pursuant to s 136 of the Anti-Money Laundering and Counter Terrorism Financing Act 2006 (Cth). The offence carries a maximum penalty, when dealt with on indictment, of imprisonment for 10 years.
On 10 January 2013, the Commissioner filed a motion in this Court seeking orders that the defendant be examined about his affairs.
On 22 February 2013, the defendant filed the motion under consideration.
On 27 March 2013, the conviction and sentence appeals of the defendant arising from his conviction on 28 March 2012 were listed for hearing in the District Court.
Overview of the Act
The Act provides a comprehensive and rigorous regime with regard to the confiscation of proceeds of crime. It is convenient to refer to a number of features of the Act that are salient to the orders sought in the motion.
The section setting out the principal objects of the Act is as follows:
"5 Principal objects
The principal objects of this Act are:
(a) to deprive persons of the proceeds of offences, the
instruments of offences, and benefits derived from
offences, against the laws of the Commonwealth or the
non-governing Territories; and
(b) to deprive persons of literary proceeds derived from the
commercial exploitation of their notoriety from having
committed offences; and
(ba) to deprive persons of unexplained wealth amounts that the person cannot satisfy a court were not derived from certain offences; and
(c) to punish and deter persons from breaching laws of the
Commonwealth or the non-governing Territories; and
(d) to prevent the reinvestment of proceeds, instruments,
benefits, literary proceeds and unexplained wealth amounts in further criminal activities; and
(e) to enable law enforcement authorities effectively to trace proceeds, instruments, benefits, literary proceeds and
unexplained wealth amounts; and
(f) to give effect to Australia's obligations under the Council of Europe Convention on Laundering, Search, Seizure and
Confiscation of the Proceeds from Crime, and other
international agreements relating to proceeds of crime; and
(g) to provide for confiscation orders and restraining orders
made in respect of offences against the laws of the States or the self-governing Territories to be enforced in the other
Territories."
Section 17 of the Act is to the effect that a court must make a restraining order over property if a relevant authority applies for that order; a person has been charged with an indictable offence; and the court is satisfied that a suspicion expressed in an affidavit of an authorised officer is held on reasonable grounds.
Section 39 of the Act permits a court making a restraining order (or another court that could have made such an order) to make ancillary orders. They include calling upon a suspect in relation to the restraining order to give a sworn statement of assets and liabilities.
Section 39A of the Act abolishes the privilege against self-incrimination with regard to such statements, but provides that the contents of such a statement are not admissible in civil or criminal proceedings against the person except in proceedings founded on their alleged falsity, or in proceedings under the Act.
Section 47 of the Act requires the court to make a forfeiture order if the relevant authority so applies; the restraining order has been in force for six months or more; and the court is satisfied that a person whose conduct or suspected conduct formed the basis of the restraining order engaged in conduct that constituted at least one serious offence. In certain circumstances, the court retains a discretion not to make the forfeiture order: see s 47(4).
Section 48(1) requires the court to make an order for forfeiture if the relevant authority so applies; a person has been convicted of one or more indictable offences; and the court is satisfied that the property to be forfeited is proceeds of one or more of the offences. Section 48(2) provides a court with a discretion to make a forfeiture order if there is an application by the relevant authority; a person has been convicted of one or more indictable offences; s 48(1) does not apply; and the court is satisfied that the property is an instrument of crime.
Section 49(1) provides that the court must make a forfeiture order if a responsible authority so applies with regard to a restraining order under s 19; the restraining order has been in force for at least six months; and the court is satisfied that the property is either proceeds of at least one relevant indictable offence, or an instrument of at least one serious offence.
Pursuant to s 73, a forfeiture order may be forestalled by an exclusion order sought by a suspect. With regard to a forfeiture order sought by way of ss 47 and 49, for the property to be excluded the court must be satisfied that the property is neither proceeds of unlawful activity, nor, if the order is based upon a serious offence, an instrument of any serious offence. If the forfeiture order is to be made under s 48, the court must be satisfied that the property is neither proceeds nor an instrument of any of the offences upon which the forfeiture order is to be based.
Section 75 of the Act is as follows:
"75 Giving notice of matters relevant to an application
(1) An applicant for an exclusion order must give written notice to the responsible authority of both the application and the grounds on which the order is sought.
Note: The responsible authority in relation to an application for an exclusion order is the authority responsible for the forfeiture order or forfeiture application referred to in section 73 (making exclusion orders).
(2) The responsible authority may appear and adduce evidence at the hearing of the application.
(3) The responsible authority must give the applicant notice of any grounds on which it proposes to contest the application. However, the authority need not do so until it has had a reasonable opportunity to conduct examinations in relation to the application."
Section 76 of the Act is as follows:
"76 When an application can be heard
An application for an exclusion order must not be heard until the responsible authority has had a reasonable opportunity to conduct examinations in relation to the application."
The effect of s 92 of the Act is that, if a person is convicted of a serious offence, and a maximum period of 15 months has expired from the date of the imposition of sentence, and the property that is the subject of a restraining order is not the subject of an exclusion order, then the property is forfeited.
Here, there is no dispute that the defendant was convicted of a serious offence as defined in the Act. Nor is there dispute that the extension period must expire on 9 August 2013. As I have indicated, that is consistent with an order of this Court currently in effect.
The general effect of s 94 of the Act is that property will be excluded from forfeiture if an application is made for such an order; there has been a conviction for a serious offence; and the court is satisfied that the property is neither proceeds of unlawful activity nor an instrument of unlawful activity; and the court is satisfied that the property was lawfully acquired.
The section makes it clear that, if property has already been forfeited, an exclusion order cannot be made under this section.
Section 94(6) is as follows:
"94 Excluding property from forfeiture under this Part
...
(6) The application must not be heard until the responsible authority has had a reasonable opportunity to conduct examinations in relation to the application."
Part 3-1 of Chapter 3 of the Act sets out the circumstances in which examinations may be conducted. Pursuant to s 180A, if there has been an application for an exclusion order under s 73 or s 94, the court may make an order for the examination of a person who claims an interest in the property.
Pursuant to s 183, an examiner must give notice of an examination to a person who is to be examined. Section 183(3) is as follows:
"183 Examination notices
...
(3) The fact that criminal proceedings have been instituted or have commenced (whether or not under this Act) does not prevent the approved examiner giving the examination notice."
Section 186 sets out the time and place at which an examination may be conducted. Section 186(4) is as follows:
"186 Time and place of examination
...
(4) The fact that criminal proceedings have been instituted or have commenced (whether or not under this Act) does not prevent the examination of a person."
Section 188 mandates that the examination must be conducted in private; that the examiner may give directions about who may be present; and that certain persons are permitted to be present.
Section 192 demonstrates that the role of a lawyer of a person being examined at such an examination is quite limited. That section also permits questions of law to be referred to the court that made the examination order.
Section 193 of the Act is as follows:
"193 Approved examiner may restrict publication of certain material
(1) The approved examiner may:
(a) on his or her own initiative; or
(b) at the request of the person being examined, or the
responsible authority;
give directions preventing or restricting disclosure to the public of matters contained in answers given or documents produced in the course of the examination.
(2) In deciding whether or not to give a direction, the approved examiner is to have regard to:
(a) whether:
(i) an answer that has been or may be given; or
(ii) a document that has been or may be produced; or
(iii) a matter that has arisen or may arise;
during the examination is of a confidential nature or relates to the commission, or to the alleged or suspected commission, of an offence against a law of the Commonwealth or a State or Territory; and
(b) any unfair prejudice to a person's reputation that would be likely to be caused unless the approved examiner gives the direction; and
(c) whether giving the direction is in the public interest; and
(d) any other relevant matter."
Sections 195 to 199 set out a number of offences regarding examinations, some of which have maximum penalties of imprisonment.
Section 198 is as follows:
"198 Admissibility of answers and documents
An answer given or document produced in an examination is not admissible in evidence in civil or criminal proceedings against the person who gave the answer or produced the document except:
(a) in criminal proceedings for giving false or misleading information; or
(b) in proceedings on an application under this Act; or
(c) in proceedings ancillary to an application under this Act; or
(d) in proceedings for enforcement of a *confiscation order; or
(e) in the case of a document-in civil proceedings for or in respect of a right or liability it confers or imposes."
Section 266A is contained in "Part 3-6 - Disclosure of information". Sections 266A(1) and (2) are to the effect that, if a person obtains information pursuant to an examination, that person may disclose information to a prosecuting authority in order to assist in the prosecution of an offence that is punishable on conviction by imprisonment for at least 3 years. The relevant portions of the remainder of the section are as follows:
"266A Disclosure
...
(3) In civil or criminal proceedings against a person who gave an answer or produced a document in an examination, none of the following that is disclosed under this section is admissible in evidence against the person:
(a) the answer or document;
(b) information contained in the answer or document.
(4) Subsection (3) does not apply in:
(a) criminal proceedings for giving false or misleading information; or
(b) proceedings on an application under this Act; or
(c) proceedings ancillary to an application under this Act; or
(d) proceedings for enforcement of a *confiscation order; or
(e) civil proceedings for or in respect of a right or liability the document confers or imposes.
Note: Subsections (3) and (4) reflect section 198.
...
(7) To avoid doubt, this section does not affect the admissibility in evidence of any information, document or thing obtained as an indirect consequence of a disclosure under this section.
..."
Section 319 of the Act is also relevant and is as follows:
"319 Stay of proceedings
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."
"Proceedings" are not defined in the Act.
Effect of legislation
In short, the defendant having been convicted of a serious offence, the restraining order will become a forfeiture order by way of the effluxion of time unless an exclusion hearing is conducted, and the defendant satisfies the court that an exclusion order should be made. Before such a hearing can occur, the Commissioner must have had a "reasonable opportunity" to conduct examinations.
If the order sought in the motion by the defendant is made, the practical effect is that the Commissioner would be deprived of the benefit of an examination of the defendant before the exclusion hearing, which must, of necessity, be conducted promptly, and before the expiry of the relevant period pursuant to the statute.
If the order sought in the motion by the defendant is not made, the practical effect is that the Commissioner would have the benefit of an examination of the defendant before the exclusion hearing. Not only that, it is quite possible that the answers given by the defendant at the examination hearing, whilst not directly admissible against him in the upcoming criminal prosecution, could nevertheless be supplied to a prosecuting authority, and used to obtain evidence against him.
Separately, it can be seen that the general structure of the Act is to impose a number of mandatory requirements upon courts to make certain orders once various matters are established. Discretion is generally curtailed. Onuses are cast upon a defendant. Taken as a whole, the Act could be said to take an inflexible approach to the fulfilment of its purposes.
Submissions of the defendant
In brief written submissions, it was said "[t]he ability of a prosecutor to compulsorily examine a person prior to their criminal trial appears currently to be very much a vexed topic". Thereafter, seven judgments were referred to without elaboration. I shall discuss each of those decisions shortly.
In oral submissions, counsel for the defendant placed emphasis on New South Wales Crime Commission v Jason Lee [2012] NSWCA 276 ("NSWCC v Jason Lee"). (Due to the fact that there is another authority with similar party names, I shall use first names in order to aid comprehension.) That was the fact even though that decision was founded on the Criminal Assets Recovery Act 1990.
Counsel for the defendant accepted that the judgment of Basten JA (with whom Beazley JA (as her Honour then was), McColl JA, Macfarlan JA and Meagher JA agreed; Beazley and Meagher JJA each delivering separate judgments) was quite firmly against him. However, he relied upon the judgment of Beazley JA, in particular at [10]:
"However, the court might in the exercise of its discretion refuse to make an order under s 31D where criminal proceedings were on foot. This might occur where the person in respect of whom the order was the accused in a long trial that was then proceeding. The court may well consider it inappropriate to make an order at that time. In that circumstance, the court may make one of a number of orders. The two orders which most logically come to mind are to dismiss the application or to stand the application over to a future date."
He also submitted that the situation here could perhaps be distinguishable from the situation in NSWCC v Jason Lee because the authority seeking the examination and the prosecuting authority in the criminal prosecution will be identical, that is, the Australian Federal Police ("AFP").
Counsel for the defendant referred to the decision of Director of Public Prosecutions (Cth) v Jo [2007] QCA 251; (2007) 176 A Crim 17, and noted that, in contrast to the decision of NSWCC v Jason Lee, it dealt with the legislation under consideration. He submitted that that decision supported the approach he urged upon me in this matter.
In short, he submitted that the criminal prosecution directly relates to the subject matter of the examination hearing; that there are is a real risk of interference with the administration of justice, as the AFP is "prosecuting" both the civil and criminal proceedings; and that the reality of that risk is founded in the fact that the defendant may be required to answer questions designed to establish his guilt of the criminal charge. Accordingly, he submitted that any examination hearing must be adjourned until after the criminal proceedings are resolved. If, logistically, that means that, due to the inflexible time limit contained in the Act, the exclusion hearing must take place without it having been preceded by an examination, so be it.
Submissions of the Commissioner
Counsel for the Commissioner submitted that the decision in NSWCC v Jason Lee is very much on point. He submitted that the provisions in the Criminal Assets Recovery Act are identical, or virtually identical, to the provisions in the Act. He submitted that, as a result, NSWCC v Jason Lee is, at the least, strongly persuasive of the proposition that the relief sought should not be granted.
He disputed the proposition that the AFP would be the prosecuting body with regard to the criminal prosecution. He submitted that, in truth, the prosecuting body would be the Commonwealth DPP. However, he accepted that the AFP was the body that investigated the pending alleged offence.
I was made aware by the parties of the fact that special leave has been granted by the High Court of Australia to appeal against the decision of the Court of Appeal in NSWCC v Jason Lee. Neither party submitted that my decision could or should be adjourned until resolution of the appeal in the High Court. In light of the inflexible time limit contained in the Act, I agree that such an adjournment would be no solution to the issue.
Determination
Many of the authorities to which reference was made are founded upon other regimes of confiscation and compulsory examination. For example, there is a regime whereby, pursuant to the Criminal Assets Recovery Act, there can be confiscation with regard to state offences. There is a regime pursuant to the New South Wales Crime Commission Act 2012 for compulsory hearings. The New South Wales Crime Commission may also be an applicant with regard to confiscation pursuant to the Criminal Assets Recovery Act. There is also a regime of compulsory examination pursuant to the Australian Crime Commission Act 2002 (Cth), although it does not appear that the Australian Crime Commission may be an applicant for a confiscation order under the Act. Some of the cases to which I was referred deal with compulsory examination at a Royal Commission, or pursuant to the Companies (New South Wales) Code as it stood in 1989.
Of course, none of those regimes are identical to the regime contained in the Act. Some of the variations are significant. For example, s 25A(9) of the Australian Crime Commission Act is as follows:
"(9) An examiner may direct that:
(a) any evidence given before the examiner; or
(b) the contents of any document, or a description of any thing, produced to the examiner; or
(c) any information that might enable a person who has given evidence before the examiner to be identified; or
(d) the fact that any person has given or may be about to give evidence at an examination;
must not be published, or must not be published except in such manner, and to such persons, as the examiner specifies. The examiner must give such a direction if the failure to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person who has been, or may be, charged with an offence."
That provision empowers examiners to prohibit dissemination of material derived from an examination to a prosecution service. And yet, in sharp contrast, s 193 of the Act merely restricts publication to "the public".
I consider that my task is to determine, first, whether the Act, either expressly or by necessary implication, permits an examination hearing in the circumstances under consideration. If it does not, the order sought by the defendant should be made. If it does, I need to consider the second question of whether there is anything in the circumstances of this particular case that would cause me to characterise such a process as an interference with the due administration of justice. If there is, the order sought should be made.
In determining those questions, my focus will be on the Act and authorities with regard to that particular piece of legislation. However, it is appropriate that I first briefly review in chronological order the decisions to which I was taken with regard to other statutes and other regimes.
For ease of comprehension, I shall consistently refer to a litigant who is resisting compulsory examination or confiscation as the defendant, without regard to his or her role in any appeal.
In Hammond v Commonwealth [1982] HCA 42; (1982) 152 CLR 188, it was unanimously held by the High Court that to permit the defendant to be compulsorily examined at a Royal Commission about the subject matter of a pending charge would constitute an "interference with the due administration of justice". That decision, delivered over 30 years ago, represents the high-water mark of judicial support for the propositions of the defendant. Since then, the tide has steadily receded, perhaps as a result of legislation that is more and more specifically drafted.
In Hamilton v Oades [1989] HCA 21; (1989) 166 CLR 486, it was held by the majority of the High Court that it would not be an abuse of process for a director of a company to be compulsorily examined pursuant to the Companies (New South Wales) Code even though he was facing trial with regard to a number of charges to do with his role within the company. Hammond v Commonwealth was distinguished on the basis that it was decided in a markedly different legislative context, and also on the basis that it was decided in circumstances of urgency that did not permit considered regard to other relevant decisions of the High Court.
In Australian Crime Commission v OK [2010] FCAFC 61; (2010) 185 FCR 258, a majority of the Full Court of the Federal Court of Australia held that it would not be a contempt of court for the defendant to be compulsorily examined pursuant to the Australian Crime Commission Act when he was facing a charge of manufacturing and intending to sell a controlled drug contrary to s 33(3) of the Controlled Substances Act 1984 (SA). Spender J dissented, based upon the principles in Hammond v Commonwealth. Substantial reliance was placed by the majority upon section 25A(9) of the Australian Crime Commission Act, to which I have earlier referred, as providing effective protection from derivative use of any material obtained at the compulsory hearing in the subsequent prosecution.
In NSWCC v Jason Lee, the Judge at first instance declined to order an examination pursuant to s 31D of the Criminal Assets Recovery Act against defendants facing serious criminal charges. A bench of five sat in the New South Wales Court of Appeal. Basten JA said at [49]:
"The appropriate conclusion is that the statutory purposes revealed by the Criminal Assets Recovery Act were intended to be available and proceedings to give effect to them were intended to be maintained despite the possibility of adverse consequences for criminal proceedings otherwise on foot."
It was held that the Judge at first instance had erred in exercising his discretion pursuant to the section not to order that the examinations take place.
Special leave to appeal was granted by the High Court of Australia on 15 February 2013: Lee & Anor v New South Wales Crime Commission [2013] HCATrans 27, and the appeal was heard on 1 May 2013. As I have said, in light of the inflexible temporal aspect of this matter to which I have referred, neither party submitted that my decision could or should be adjourned until resolution of the appeal to the High Court of Australia.
Three decisions have been handed down since I reserved my judgment on 25 February 2013. Of course, the parties were in no position to make submissions about them at that time. Neither party has sought leave to make further submissions in the meantime. Nevertheless, I consider that I should indicate briefly that I have considered them in coming to my decision.
In SD v New South Wales Crime Commission [2013] NSWCA 48, a defendant at a New South Wales Crime Commission compulsory hearing claimed that, in the absence of an irrevocable order prohibiting dissemination of any answer he may give to New South Wales Police or the DPP, he had a reasonable excuse for refusing to answer a question, pursuant to s 18 of the New South Wales Crime Commission Act. The Court of Appeal did not disturb the rejection by the Judge at first instance of that submission.
In R v Seller; R v McCarthy [2013] NSWCCA 42, the judge at first instance had permanently stayed a criminal trial after the results of a compulsory hearing had been disseminated to the DPP, contrary to an order pursuant to s 25A(9) of the Australian Crime Commission Act. The Court of Criminal Appeal (comprised of Bathurst CJ, McClellan CJ at CL (as his Honour then was) and Rothman J) quashed the stay, on the basis that there was no prejudice to the defendants in the particular circumstances of the case.
In Lee, Do Young v R; Lee, Seong Won v R [2013] NSWCCA 68, compulsory hearings had been conducted in the New South Wales Crime Commission while criminal charges were pending against the defendants. At the trial, the prosecutor possessed the fruits of the compulsory hearings. On appeal, the Crown conceded that the material had been provided unlawfully. Basten JA (with whom Hall and Beech-Jones JJ agreed, Hall J delivering a separate judgment) held that, in the circumstances of the case, there had been no miscarriage of justice.
I turn to authorities regarding the Act itself. Again, I will discuss them chronologically.
In Commonwealth DPP v Xu [2005] NSWSC 191; (2005) 154 A Crim R 173, Hoeben J (as his Honour then was) dismissed a motion seeking a stay of an order pursuant to s 39 of the Act that a defendant provide a statement of assets and liabilities. The defendant was charged with three offences related to sexual slavery contrary to the Criminal Code Act 1995 (Cth) and one count of detain for advantage contrary to s 86(2)(a) of the Crimes Act 1900. It is noteworthy that, at that stage, section 39A had not been inserted into the Act. Even in the absence of that provision, Hoeben J held at [36]:
"By reference to the nature of the Act and the purpose which it is designed to achieve, and by reference to the language and character of sub-s 39(1)(d) and the part it plays in the making of a restraining order, I am of the opinion that the sub-section does impliedly exclude the privilege against self-incrimination."
In Director of Public Prosecutions (Cth) v Jo, the Queensland Court of Appeal did not interfere with the decision of the trial Judge to stay temporarily a forfeiture order and concomitant examination, in circumstances where criminal charges had not been laid but were certainly possible. The Judge at first instance had determined that to permit the examination to take place, in circumstances in which answers could be given that could be derivatively used in possible criminal proceedings, would constitute an abuse of process. The Queensland Court of Appeal emphasised the inherent power of a court to prevent an abuse of process, including by way of upholding the privilege against self-incrimination where it is in the interests of justice to do so.
In Lee v Director of Public Prosecutions (Cth) [2009] NSWCA 347; (2009) 75 NSWLR 581, the defendant had not been charged, but there was a significant possibility that that would occur. The Judge at first instance refused to strike out an application for an examination order pursuant to s 180 of the Act. The New South Wales Court of Appeal did not interfere with that determination. It was said that the application was premature, in that a court had not ordered an examination, and an examiner had not issued an examination notice. The Court, which was comprised of Basten and Macfarlan JJA and Sackville AJA, said:
"[18] There is, however, a more general principle of construction that denies a statutory intention to modify or abolish fundamental rights or freedoms absent clear and unambiguous language. That principle does not require express reference to the right or freedom which is diminished, but the intention to modify or abolish must arise by necessary implication from the terms of the statute: see generally Kelaita at [13]-[15]. The high store set by the preservation of such basic rights and freedoms is sometimes declared as requiring an intention to the contrary to be expressed with "irresistible clearness": see, eg, Studman v Director of Public Prosecutions (Cth) [2007] NSWCA 285; 177 A Crim R 34 at [35] (McClellan CJ at CL, Spigelman CJ and Handley AJA agreeing).
...
[23] The potential for such a consequence [that is, a person being required to answer a question or produce a document that may have an incriminating effect] is expressly recognised by the Proceeds of Crime Act. Thus, Pt 3-1 of the Act dealing with examinations, makes it an offence to fail or refuse to answer a question that the approved examiner requires the person to answer: s 196(1)(b). Similarly, the section makes it an offence to refuse to produce a document specified in the examination notice: s 196(1)(c). That obligation is, however, subject to an exception in circumstances where, under another law, the person "could not, in proceedings before a court, be compelled to answer the question or produce the document": s 197(1). That qualification to the obligation is then removed where "the only reason or reasons why the person could not be so compelled" is, inter alia, that "answering the question or producing the document would tend to incriminate the person or to expose the person to a penalty": s 197(2)(a).
...
[25] This legislative scheme recognises in express terms the availability of the right not to incriminate oneself and removes it in respect of answers and documents sought in an examination under the Act. While it provides protection against use of such answers and documents, that protection does not extend to proceedings or an application under the Act itself, whether or not there could have been objection on the grounds of self-incrimination in those proceedings. Finally, the terms of s 198 are carefully formulated so as to render the answers or documents inadmissible in evidence, but not to exclude their use in other ways. This reflects the underlying purposes of the examination, the details of which are not presently relevant. Certain other protections are provided, at the discretion of the examiner, permitting directions preventing or restricting the disclosure of answers or documents to the public (s 193), but otherwise, the scope of the use to which an answer or a document may be put will depend upon the purpose of the examination.
...
[77] It is sufficient for present purposes to accept that the reasoning in DPP v Jo is not directly applicable to the present proceedings for the reasons noted above. It is not necessary, therefore, to consider whether the reasoning underlying the decision is "plainly wrong". However, in part it appears to embrace a view of the statutory scheme which is inconsistent with that outlined above and may therefore be doubted."
In Commissioner of Australian Federal Police v Dickson and Ors [2012] NSWSC 1167, the defendants were facing serious criminal charges. An order had been made pursuant to s 39 that a statement of assets and liabilities be provided. The defendant moved on a notice of motion to have that order revoked or stayed until after any trial was completed. After considering the structure of the Act and reviewing the authorities in detail, Bellew J said at [66]:
"In circumstances where the Parliament, in conferring power to make the present orders, has specifically legislated to abrogate the privilege against self incrimination in a particular and relevant respect, I do not accept the submission advanced on behalf of the first and second defendants that any attempt to interfere with the rights of an accused person by seeking to compel that person to give up his or her right of silence will amount to an improper interference in the administration of justice in the criminal proceedings. That submission adopts, in a general sense, the language used in Hammond. Quite apart from the fact that there has been, as I have outlined, subsequent consideration of the decision in Hammond, the present case must be considered in the context of statutory provisions which were not applicable in Hammond, and which:
(a) specifically abrogate the privilege against self incrimination in respect of the provision of the statements under s. 39(1)(ca);
(b) (b)permit, in certain circumstances, the disclosure of such statements;
(c) make it clear that the admissibility in evidence of information obtained as an indirect consequence of such disclosure is not affected; and
(d) are part of a statutory scheme which is specifically directed to an important matter of public interest, namely the confiscation of assets acquired from criminal activity."
In short, there is one decision supportive of the proposition that, in the circumstances under consideration, an examination sought pursuant to the particular Act in question should be stayed. That is a decision of the Queensland Court of Appeal. The New South Wales Court of Appeal has doubted the correctness of that decision.
I have approached the task of statutory construction in accordance with the principles in Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, encapsulated by Emmett J (as his Honour then was) and Jacobsen J in Australian Crime Commission v OK at [102] as follows:
"The primary object of the construction of a legislative instrument is to ensure that each relevant provision will be given a meaning and effect that is consistent with the language and purpose of all of the provisions of the instrument. That is to say, each provision must be construed by reference to the language of the instrument viewed as a whole, on the assumption that its provisions are intended to give effect to harmonious goals. A statutory instrument should be construed in such a way as will ensure, as far as possible, that all of its provisions are useful and pertinent, none of its provisions is superfluous, void or insignificant. If there is conflict between the language of different provisions, the conflict is to be alleviated, so far as possible, by adjusting the meaning of the competing provisions to achieve a result that will give effect to the purpose and language of the provisions, but at the same time maintain the unity or harmony of the instrument as a whole. That will sometimes require a determination of what are the leading provisions and what are subordinate provisions, such that one must give way to another. By determining the hierarchy of the provisions, it will often be possible to give each provision a meaning that best gives effect to its purpose and language, while maintaining the unity and harmony of the scheme of the instrument (see Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355 at [69]-[71])."
Considering the Act as a whole, including its explicitly expressed purposes, its various provisions, and its overall structure, I consider that Parliament has expressed a clear intention that the privilege against self-incrimination is abrogated with regard to examination hearings. And I consider that that abrogation includes circumstances such as these, in which criminal proceedings are pending, the subject matter of which is closely related if not identical to the subject matter of the examination.
The fact is that, as I have shown, the Act deals with the privilege against self-incrimination at examination hearings and abrogates it: see ss 196(1) and 197(2)(a); provides direct use immunity with regard to things said and produced at such examinations: see s 198; explicitly adverts to derivative use immunity and declines to provide it: see s 266A(7); adverts to the pendency of criminal proceedings and indicates that that cannot prevent an examination notice or hearing: see ss 183(3) and 186(4); permits dissemination of the results of such an examination to a prosecuting authority: see s 266A(2); and, finally, states that criminal proceedings cannot found a stay of proceedings under the Act: see s 319.
In short, it seems to me that Parliament has turned its mind to the very situation that arises here, and expressly provided that it is not to give rise to the relief sought by the defendant
I do not consider that the decision of the Queensland Court of Appeal in Director of Public Prosecutions (Cth) v Jo is determinative with regard to my decision. A number of points of distinction can be seen. First, in Director of Public Prosecutions (Cth) v Jo what was sought was a temporary stay of the examination. Here, what is sought is effectively a permanent stay of the examination. Secondly, in Director of Public Prosecutions (Cth) v Jo, a charge or charges had not been laid, and therefore there was marked uncertainty with regard to the position of the defendant. That is not the case here. Thirdly, the primary Judge found that there are was an abuse of process against which there needed to be protection. I do not make that finding here.
Furthermore, it is noteworthy that, as I have said, the decision in Director of Public Prosecutions (Cth) v Jo has been doubted by the New South Wales Court of Appeal.
The decisions of Hoeben J in Commonwealth DPP v Xu and Bellew J in Commissioner of Australian Federal Police v Dickson are not strictly binding upon me. However, I consider that those considered decisions with regard to an analogous section of the Act are powerfully persuasive.
As I have said, NSWCC v Jason Lee pertains to different legislation. Having said that, each party before me submitted that the decision is highly significant. Indeed, in the case of counsel for the Commissioner, he submitted that it was virtually determinative. Accepting the submissions that the decision is significant, I consider that nothing in the judgments assists the submission of the defendant. Nor does anything said by Beazley JA have that effect, in the circumstances of this case. After all, I would have thought that the criminal prosecution will almost certainly be conducted in the Local Court, and would take, at most, two days.
It follows that I consider that the legislation explicitly permits an examination hearing in the circumstances under consideration.
Turning to the secondary question, there is no evidence that the examination has been sought for the improper purpose of proving the offence, as opposed to resisting the exclusion order sought by the defendant. Nor is there evidence that the examination will include questions designed to prove that the defendant is guilty of the offence with which he is charged, as opposed to resisting the exclusion order. Nor is there evidence that the answers to any such questions will automatically be provided to the DPP. Nor is there any question of unlawful or even inappropriate dissemination of answers given at the examination. Nor can it be shown that any material provided to the DPP will be the subject of direct use, or some kind of inappropriate derivative use, in the criminal prosecution. Of course, if any impropriety is able to be established by the defendant in the future, then this judgment should not be taken as a fetter on any appropriate relief, including but not limited to exclusion of evidence pursuant to s 138 of the EvidenceAct 1995.
To the extent that there remains a basis on which it could be said that complying with the clearly expressed will of Parliament can nevertheless constitute an interference with the administration of justice sufficient to invoke the inherent jurisdiction of this Court, there is nothing on the facts of this case that would lead me to consider that such an interference will occur if the examination hearing were to precede the criminal prosecution.
Nor do I consider that the fact that the AFP is the applicant for the examination order as well as the investigating body regarding the pending criminal charges is determinative.
In short, I consider that order 2 should be dismissed with costs.
Orders
I make the following orders:
(1) Order 2 of the notice of motion filed 22 February 2013 is dismissed.
(2) The defendant is to pay the costs of the plaintiff.
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Decision last updated: 29 May 2013
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