Commissioner of the Australian Federal Police v Ng - [2019] WASC 173

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE -v- NG [2019] WASC 173
CORAM:   TOTTLE J
HEARD:   15 MAY 2019
DELIVERED          :   22 MAY 2019
FILE NO/S:   CIV 3071 of 2018
BETWEEN:   COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE
Applicant
AND
VOON MEI NG
First Respondent
BYOUNG JU CHA
Second Respondent

Catchwords:

Practice and procedure - Programming orders - Whether filing and service of evidence should be deferred until determination of appeal

Legislation:

Proceeds of Crime Act 2002 (Cth), s 42(1A), s 319
Rules of the Supreme Court 1971 (WA)

Result:

Directions given

Category: B

Representation:

Counsel:

Applicant	:	Mr P N Bevilacqua
First Respondent	:	In person
Second Respondent	:	No appearance

Solicitors:

Applicant	:	Australian Federal Police
First Respondent	:	In person
Second Respondent	:	No appearance

Case(s) referred to in decision(s):

Commissioner of the Australian Federal Police v Elzein [2017] NSWCA 142; (2017) 94 NSWLR 700
Commissioner of the Australian Federal Police v Zhao [2015] HCA 5; (2015) 255 CLR 46
Onley v Commissioner of the Australian Federal Police [2019] NSWCA 101
Ruzehaji v Commissioner of the Australian Federal Police [2015] SASCFC 182; (2015) 124 SASR 355

TOTTLE J:

Introduction

These reasons deal with a narrow procedural issue concerning the time within which the respondents should file and serve the evidence on which they wish to rely in support of their application for the revocation of restraining orders made under the Proceeds of Crime Act 2002 (Cth) (the Act). The respondents wished to defer the filing and service of their evidence until an appeal commenced by them against the imposition of the restraining orders has been heard and determined. The applicant opposed this course.
The respondents live together as a couple. They represent themselves. English is the second language of both respondents and this has compounded the difficulties faced by them in relation to these proceedings. The first respondent Ms Ng has a better command of English than the second respondent, Mr Cha and it is apparent that Ms Ng prepares the court documents relied upon by her and Mr Cha. Ms Ng has taken the primary role in making oral submissions. I have taken the step of preparing formal written reasons for the procedural order made by me because the respondents are representing themselves and have language difficulties.
I heard submissions on the issue on 15 May 2015.[1] On that date I made an order that the respondents file and serve the affidavits containing the lay evidence upon which they wish to rely in support of the application to revoke the restraining orders by 23 September 2019. These are the reasons for making that order.
[1] Mr Cha did not attend the hearing on 15 May - he had explained at an earlier hearing that he would be overseas on the hearing date.

Procedural history

The substantive proceedings were commenced by an originating motion filed on 30 November 2018. The originating motion was supported by an affidavit sworn by an agent of the Australian Federal Police on 29 November 2018 (the primary affidavit). The orders sought in the originating motion included:
(a)orders under s 18 of the Act that each of the respondents be restrained from disposing of property specified in the originating motion (the restraining orders);
(b)orders under s 39(1)(ca) of the Act directing each of the respondents to provide a sworn statement that set out all of his or her liabilities and interests in property within the meaning of the Act with a value of more than $5,000 from 1 January 2010 to 7 February 2019, to a named agent of the Australian Federal Police within 14 days of the order (the ancillary orders);
(c)orders under s 180 of the Act that each of the respondents and a named third party be examined (the examination order); and
(d)orders under s 47 and s 49 of the Act that the property specified in the originating motion be forfeited to the Commonwealth of Australia (the forfeiture orders).
On 7 February 2019 the applicant applied on an ex parte basis for the restraining orders, the ancillary orders and the examination orders and orders in the terms sought by the applicant were made. Oral reasons for the making of the orders were given. A transcript of those reasons and a transcript of the ex parte hearing have been provided to the respondents.
On 18 February 2019 the respondents filed a chamber summons. The relief sought by that chamber summons are orders under s 39B of the Act revoking the ancillary orders or in the alternative staying those orders and staying the examination order until charges against the respondents were preferred and determined. The grounds relied upon were expressed as 'bias and risk of prejudice'.
The first respondent, Ms Ng, filed an affidavit sworn by her on 1 March 2019 in support of the chamber summons filed on 18 February 2019.
On 6 March 2019 the respondents filed two chamber summonses. In one chamber summons the respondents sought an extension of time within which to bring an application to revoke the restraining orders. This chamber summons was supported by an affidavit sworn by Ms Ng on 6 March 2019 in which she gave evidence to the general effect that records to which she and the second respondent required access for the purposes of applying for a revocation of the restraining orders had been removed from their custody by 'federal police' on 24 March 2018 and had not been returned to them in a form that they could read. A search of the respondents' home was conducted by officers of the Australian Border Force and the Australian Federal Police on 28 March 2018 and property including cash and records were seized.
In the second chamber summons filed on 6 March 2019 the respondents sought an order that the restraining orders 'cease to [have] effect on 08/03/2019 according to S45(2) of the [Act]'.
At the hearing on 8 March 2019:
(a)I gave the respondents leave to amend their application to revoke the ancillary orders and the examination orders and made directions regarding the filing of evidence in relation to that application;
(b)I made orders under s 42(1A) of the Act extending the respondents' time within which to bring an application to revoke the restraining orders made on 7 February 2019;
(c)I dismissed the respondents' application for orders that the restraining orders cease to have effect on 8 March 2019; and
(d)I listed the application to revoke the ancillary orders and the examination order and the application to revoke the restraining orders for final hearing on 25 and 26 July 2019 and fixed a further directions hearing on 1 May 2019.
On 20 March 2019 the respondents filed an appeal notice appealing against the restraining orders. In summary the grounds of appeal are as follows:
(a)The judge failed to give adequate reasons for making the restraining orders.
(b)The judge erred in allowing the application for restraining orders to be made on an ex parte basis.
(c)The judge erred in determining that the offences that the respondents were suspected of committing were serious offences.
By chamber summons filed on 6 April 2019 the respondents applied to revoke the restraining orders. The chamber summons was supported by an affidavit sworn by Ms Ng on 6 April 2019. In that affidavit Ms Ng set out the grounds of the application. Those grounds may be summarised as follows:
(a)There were no grounds for making the order.
(b)The interests of justice would be served by revoking the orders because there was a failure to make full disclosure and there was a lack of procedural fairness.
In her affidavit Ms Ng stated that she wished to file a further affidavit to respond to the primary affidavit which was read on the ex parte application on 7 February 2019.
On 13 April 2019 the appeal was stayed pending the outcome of the respondents' application in respect of the ancillary orders and examination order.
At the directions hearing on 1 May 2019 both the applicant and the respondents contended that the application for the revocation of the restraining order should not be heard on 25 and 26 July 2019 as ordered on 8 March 2019. The applicant proposed a timetable for the service of affidavit evidence leading to a hearing of the application to revoke the restraining orders later in the year. The respondents proposed that their application for revocation be stayed until the determination of their appeal against the revocation orders. In the course of oral argument one of the primary concerns articulated by the respondents was that they did not wish to incur the expense of obtaining forensic accounting evidence in support of the revocation application before the appeal was determined. They argued that if the appeal was determined in their favour then the expense involved in obtaining such evidence would be wasted. I directed that the respondents file and serve any affidavits upon which they wished to rely in support of the application for a stay together with an outline of submissions and listed the application for hearing on 15 May 2019.

The stay application

The respondents seek orders that:
(a)the time for filing and serving evidence in support of the revocation application be extended until after the appeal against the restraining order has been heard and determined;
(b)the application for the revocation of the restraining orders be stayed until after the appeal has been heard and determined.
Although not expressed as such, the orders are sought in the alternative - the practical effect of the orders is the same.
The application is supported by two affidavits sworn by Ms Ng. The first is undated but was filed on 9 May 2019. The second was sworn and filed on 10 May 2019.
Ms Ng attaches to her first affidavit 'the appellant's case' filed in the Court of Appeal. She gives evidence to the effect that she has paid a deposit of $22,000 to a forensic accountant to prepare evidence for the revocation application and that she has been told that it will cost between $20,000 and $25,000 to draft an affidavit in support of the application and that her affidavit can only be prepared once the forensic accounting work has been completed.
In her affidavits Ms Ng makes a number of submissions as to why she and Mr Cha should not be required to prepare and file their evidence until the appeal is determined. Those submissions are to the following effect:
(a)Neither she nor Mr Cha have committed any serious offence.
(b)If the appeal succeeds the expenditure on the preparation of affidavit evidence in support of the revocation application will be wasted.
(c)The requirement to file and serve evidence is an infringement of her and Mr Cha's rights to privacy and their rights to remain silent.
(d)The affidavit evidence relied upon by the applicant is a substantial 186 paragraph affidavit with over 1,500 pages of annexures that took the applicant months to prepare - eight months Ms Ng contends - and she and Mr Cha should be afforded the same time to respond to prepare responsive affidavit evidence.
(e)It will be necessary for Ms Ng and Mr Cha to review their records for the past 10 years in order to prepare their evidence and this will be a difficult exercise.
(f)The applicant's officers have provided confidential information about their investigations into Ms Ng and Mr Cha to third parties.
(g)Ms Ng has suffered ill health.
(h)Staying the application to revoke the restraining orders will not cause prejudice to the applicant.
(i)Section 319 of the Act confers power on the court to stay proceedings if it is in the interests of justice to do so, and it is in the interest of justice to stay the applications for revocation.
(j)An application for revocation of the restraining orders under s 42(1A) of the Act must be made with 28 days of receipt of notification of the orders or, if an application is made within the 28 day period, within such longer period not exceeding three months as the court allows, in other words the respondents were compelled to apply to revoke the restraining orders because if they did not do so they would lose their right to do so.

Section 319 of the Act

Section 319 provides that:
(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.
Section 319 goes on to deal with number of matters relevant to the exercise of the power by the court to stay proceedings under the Act as follows:
(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.
…
(6)In considering whether a stay of the POCA proceedings is in the interests of justice, the court must have regard to the following matters:
(a)that the POCA proceedings, and any criminal proceedings of a kind referred to in paragraph (2)(a) or 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.
Proceedings for the revocation of an order made under the Act are proceedings under the Act.[2] As such it is appropriate to have regard to the provisions of s 319 of the Act when assessing the respondents' application for a stay of their revocation application.
[2] Onley v Commissioner of the Australian Federal Police [2019] NSWCA 101 [210] (Bathurst CJ).
The current provisions of s 319 were amended in 2016 in response to the High Court's decision in Commissioner of the Australian Federal Police v Zhao.[3] The effect of these amendments were discussed at length by Basten JA with whom Beazley ACJ agreed in Commissioner of the Australian Federal Police v Elzein,[4] in particular at [73] - [89] of his Honour's judgment.
[3] Commissioner of the Australian Federal Police v Zhao [2015] HCA 5; (2015) 255 CLR 46.
[4] Commissioner of the Australian Federal Police v Elzein [2017] NSWCA 142; (2017) 94 NSWLR 700.
The provisions of s 319 and the authorities to which I have referred above make it clear that the fact that criminal charges are proposed to be or may be instituted against the respondents is not a sufficient basis for the grant of stay of these proceedings. It is not sufficient in the context of a stay application that the respondents refer only to a general potential prejudice to their right against self‑incrimination.[5] As stated by Gray J, with whom Peek and Nicholson JJ agreed, in Ruzehaji v Commissioner of the Australian Federal Police:[6]
As discussed above, more is required than the mere existence of criminal proceedings. Mr Ruzehaji merely asserts in his affidavit that he 'anticipates' that he will be required to address matters 'directly relevant' to the criminal charges. This does not meet the burden which he must discharge. Mr Ruzehaji has failed to demonstrate any specific prejudice. His evidence is to be contrasted with the evidence relied on in Zhao, which stated the type of evidence the individual would be required to give and how it was directly relevant to the criminal proceedings.
[5] Commissioner of the Australian Federal Police v Elzein [88], [101], [107].
[6] Ruzehaji v Commissioner of the Australian Federal Police [2015] SASCFC 182; (2015) 124 SASR 355 [92].
Before proceeding further it is necessary to say something about the primary affidavit. In the primary affidavit the deponent sets out his belief that the respondents have committed particular indictable offences that are 'serious offences' as defined in the Act and sets out the evidence that the applicant contends supports the conclusion that there are reasonable grounds for the deponent to hold the belief that the respondents have committed those offences. The evidence is too lengthy and complex to summarise. For the purposes of these reasons it is sufficient to say that the affidavit refers to the respondents' business activities and to the financial and taxation records generated by those activities (including business and personal bank accounts) and contains an analysis of the information derived from those records which forms the basis of the reasonable grounds for suspecting that the respondents have committed serious offences. Although the material contained in the primary affidavit is extensive many of the primary documents were generated by the respondents themselves and are records with which the respondents should be familiar.
The applicant proposed that the respondents file and serve the evidence - other than forensic accounting evidence - upon which they wished to rely in support of the application for revocation of the restraining orders by 21 August 2019, following which the applicant file and serve responsive evidence and thereafter any forensic accounting evidence be filed and served in accordance with a timetable to be set in that later stage of the proceedings.

Reasons for ordering the respondents to file and serve their lay evidence

I ordered that the respondents file and serve their lay evidence on or before 23 September 2019 for the following reasons taken in combination:
(a)Cases before the court must be managed with the objects set out in O 1 r 4A and r 4B of the Rules of the Supreme Court 1971 (WA) in mind. Those objects include the elimination of delay and the just and efficient determination of the business of the court. Further, when considering an application for a stay under s 319 of the Act the court must have regard to the requirement that POCA proceedings should proceed as expeditiously as possible.
(b)In this case a balance must be struck between ensuring that there is no undue delay and case managing the application in a way that is not unfair or oppressive towards the respondents. At present neither I nor the parties know when the appeal is likely to be heard but it will not be before the hearing of the application to revoke the ancillary order and the examination order on 25 July 2019. The order made by me sets a date by which the respondents have to file and serve their lay evidence and thus ensures that the application progresses but the respondents are not required to incur the expense of engaging forensic accountants.
(c)If, in the period between now and the determination of the application in respect of the ancillary order and the examination order, a hearing date for the appeal is set then it may be appropriate to reconsider the order that the respondents file and serve their lay evidence by 23 September 2019. Much depends upon when the appeal will be heard.
(d)Accepting that the grounds of the application to revoke the restraining order have been prepared by litigants who represent themselves and, on that basis, they should be read generously, the grounds as set out in Ms Ng's affidavit of 6 April 2019 are confined. Those grounds would appear to involve an attack on the adequacy of the evidence adduced in support of the applicant's application for restraining orders. On the face of the grounds they would not appear to require extensive affidavit evidence from the respondents.
(e)Notwithstanding the confined basis upon which the respondents appear to be seeking to revoke the restraining orders, I understand from Ms Ng's submissions that she wishes to adduce evidence to rebut the evidence contained in the primary affidavit relied upon by the applicant. Whilst the primary affidavit contains a significant amount of evidentiary material, this was due to the need to put before the court a large volume of primary documents to establish that there were reasonable grounds to suspect the respondents had committed serious offences and to identify the grounds upon which that suspicion was based. Whilst the task of collating and preparing their lay evidence is a substantial task, unlike the applicants' agents, the respondents know how they conducted their business and personal affairs. Their task is more straightforward. In my judgment the order allows adequate time for the preparation of the respondents' lay evidence. If additional time is required the respondents can make an application for additional time.
(f)Whilst Ms Ng has expressed concerns about the loss of privacy and the possibility that she and Mr Cha may lose the benefit of the privilege against self-incrimination, neither she nor Mr Cha are compelled to adduce further evidence.[7] One of the reasons for making the order is that Ms Ng has foreshadowed that she wishes to adduce further affidavit evidence.
(g)In a practical sense, Ms Ng's concerns about the loss of privacy have been overtaken by events - the applicant is already in possession of a significant amount of confidential material and much of it is annexed to the primary affidavit relied upon by the applicant.
(h)It is difficult to deal with generalised assertions about the loss of privacy and the loss of the privilege against self-incrimination. If, when they come to prepare their evidence, Ms Ng and Mr Cha are able to identify particular concerns then the court can consider applications that may address those concerns. In accordance with s 319(6)(e) this court can address the appropriate orders to be made under the Act to protect the respondent's interests once the relevant evidence and potential prejudice has been identified.[8]
[7] Cf Commissioner of the Australian Federal Police v Elzein [88], [101], [107], where the court considered the privilege against self-incrimination in the context of examination orders and ancillary orders where the respondent was compelled to provide information.
[8] See generally Commissioner of the Australian Federal Police v Elzein [73] - [86].

In the course of the hearing Ms Ng was unsure about what was meant by the term 'lay evidence' included in the order. Lay evidence is evidence about the facts - for example, events and conversations that took place, things that were done, documents that were produced, sent and received. Lay evidence does not include evidence of opinions held by expert accountants or other professionals called to give 'opinion' or 'expert' evidence.
Directions will be made about the filing and service of expert evidence after all the lay evidence has been filed and served.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JB
Associate to the Honourable Justice Tottle
22 MAY 2019