Commissioner of the Australian Federal Police v Ng [No 3]
[2019] WASC 304
•23 AUGUST 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE -v- NG [No 3] [2019] WASC 304
CORAM: TOTTLE J
HEARD: 25 & 26 JULY 2019 & FURTHER WRITTEN SUBMISSIONS FILED ON 9 & 16 AUGUST 2019
DELIVERED : 23 AUGUST 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:
Proceeds of crime - Stay of examination orders - Application of the Proceeds of Crime Act 2002 (Cth) s 319 - Statutory construction - Whether Act evidences presumption that stay be granted pending determination of revocation application - No presumption evident in text of Act
Proceeds of crime - Ancillary orders - Statutory construction - Interpretation of 'interest'
Practice and procedure - Application for stay of proceedings - Where proceedings subject to appeal and application for revocation of orders - Where risk of prejudice if stay not granted - Proper exercise of court's discretion - Turns on own facts
Legislation:
Proceeds of Crime Act 2002 (Cth) s 5, s 18, s 19, s 42, s 45, s 47, s 49, s 180, s 183, s 186, s 187, s 195, s 196, s 266A, s 319, s 329, s 338
Result:
Application dismissed
Category: A
Representation:
Counsel:
| Applicant | : | Mr P N Bevilacqua |
| First Respondent | : | In person |
| Second Respondent | : | In person |
Solicitors:
| Applicant | : | Australian Federal Police - Proceeds of Crime |
| First Respondent | : | In person |
| Second Respondent | : | In person |
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 Mah [2014] VSC 262; (2014) 242 A Crim R 184
Commissioner of the Australian Federal Police v Ng [2019] WASC 222
Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
Onley v Commissioner of the Australian Federal Police [2019] NSWCA 101; (2019) 367 ALR 291
The Director of Public Prosecutions for Western Australia v Mansfield [2006] WASC 72
X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92
TOTTLE J:
Introduction
The respondents have applied to the court for orders that:
(a)revoke orders made pursuant to s 39(1)(ca) of the Proceeds of Crime Act 2002 (Cth) (the Act) requiring them to provide sworn statements setting out all of their respective liabilities and interests in property within the meaning of the Act with a value of more than $5,000 from 1 January 2010 to the date on which the order was made (the ancillary orders); and
(b)stay orders made pursuant to s 180 of the Act that each of them be examined (the examination orders).
The applicant has consented to the revocation of the ancillary orders in circumstances to which I refer later in these reasons. The only matter for determination is the stay application.
The ancillary orders and the examination orders were made on 7 February 2019 at a hearing at which the court also made:
(a)restraining orders under s 18 of the Act in respect of certain property suspected of either being owned by or subject to the effective control of the respondents. The property comprised cash, real estate and funds available to be drawn from bank accounts; and,
(b)restraining orders under s 19 of the Act in respect of the same property on the grounds that the different forms of property were either the proceeds of serious offences or the instruments of serious offences.
Separate orders were made in respect of each respondent. No notice of the application for restraining orders, ancillary orders and examination orders was given to the respondents and the orders were made ex parte.
The respondents have both appealed against the restraining orders and separately applied to revoke them by way of an application under s 42 of the Act.
The respondents live together with their two young children in a property (the Stirling Property) that forms part of the property the subject of the restraining orders. They have represented themselves in the course of these proceedings. Ms Ng has taken the lead in making oral submissions to the court and she is the author of the written submissions that have been filed. At the hearing of the application on 25 and 26 July 2019 Mr Cha was assisted by an interpreter provided by the court. He was however able to make a number of submissions in English on his own behalf. I am satisfied that with assistance from Ms Ng and the interpreter Mr Cha was able to follow what took place at the hearing and understand the arguments that were advanced.
Outline chronology
On 28 March 2018 officers of the Australian Border Force (ABF) and officers of the Australian Federal Police (AFP) conducted a search of the respondents' home, the Stirling Property, pursuant to the terms of a search warrant. The officers seized $242,950 in cash (the seized cash) found in a safe, and seized mobile phones, computers and documents. The respondents were each questioned under caution.
Between April and November 2018 the AFP made inquiries about the respondents and their business and financial affairs.
On 30 November 2018 the applicant filed a notice of motion seeking the restraining orders, the ancillary orders and the examination orders.[1] The notice of motion included an application for forfeiture orders pursuant to s 47 and s 49 of the Act. Other orders that are not presently relevant were also sought. The notice of motion was supported by an affidavit sworn on 29 November 2018 by Federal Agent Stephen Paynter (Mr Paynter).
[1] Order 81F r 2(3) of the Rules of the Supreme Court 1971 (WA) provides that an application that initiates proceedings in the court must be made by a notice of motion in form 65 if no notice of the application is required to be given or otherwise by originating summons in form 74.
On 7 February 2019 the application for the restraining orders, the ancillary orders and the examination orders was heard. Oral reasons for making the orders were given and were transcribed. An uncorrected copy of the transcript was provided to the parties on 11 April 2019.
None of the materials filed on 30 November 2018 were served on the respondents until after the hearing on 7 February 2019.
On 18 February 2019, the respondents filed a chamber summons seeking orders expressed as follows:
1.The Court revoke the ancillary order made on 7th February 2019
2.The Court to grant a stay of sworn statement order and examination order for both respondents, until the charges was laid and being determined and being convicted, on the ground of bias and risk of prejudice.
3.The Court to set aside the sworn statement.
By a chamber summons filed on 6 March 2019 the respondents sought an order that the restraining orders 'cease to [have] effect as on 08/03/2019 according to S45(2) of [the Act]'. This application was dismissed on 8 March 2019.[2]
[2] Commissioner of the Australian Federal Police v Ng [2019] WASC 222.
On 20 March 2019 the respondents filed an appeal notice appealing against the restraining orders.[3]
[3] CACV 40 of 2019.
On 6 April 2019 the respondents filed a chamber summons seeking revocation of the restraining orders.
On 16 May 2019 I made programming orders for the filing of the lay evidence upon which the respondents relied in support of their revocation application. These orders were made over objection from the respondents who argued that they should not be required to proceed with their revocation application until their appeal against the restraining orders was determined.
On 25 June 2019 the respondents filed an appeal notice appealing against the dismissal on 8 March 2019 of their application for an order that the restraining orders 'cease to [have] effect on 08/03/2019 according to S45(2) of the [Act]'.[4]
[4] CACV 73 of 2019.
The statutory framework
Structure and objects of the Act
In Commissioner of the Australian Federal Police v Elzein[5] Basten JA outlined the objects and operation of the Act as follows:[6]
The principal object of the Proceeds of Crime Act 2002 (Cth) is, as its name suggests, to deprive persons of the proceeds of offences, or benefits derived from offences, against the laws of the Commonwealth. A further object is to deprive a person of unexplained wealth that the person cannot satisfy a court was not derived from certain offences. Those objects are effected by a court making a forfeiture under order Pt 2-2 of the Act.
In furtherance of those objects, courts are given powers, on the application of the respondent Commissioner, to make orders (i) restraining a person from disposing of property, (ii) directing a person to give a sworn statement setting out all his or her interests in property, and (iii) for the examination of any person about their affairs or the affairs of some other person. The final intended outcome is usually a forfeiture order in relation to the person’s property.
A forfeiture order need not depend upon the conviction of the person for an offence, nor is it affected by the acquittal of the person. However, it is common for persons in respect of whom orders are sought under the Act to be charged with one or more offences. (footnotes omitted)
[5] Commissioner of the Australian Federal Police v Elzein [2017] NSWCA 142; (2017) 94 NSWLR 700.
[6] Commissioner of the Australian Federal Police v Elzein [11] ‑ [13].
Section 5 sets out the Act's principal objects. For present purposes it is sufficient to note that the objects include the following:
(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
. . .
(c)to punish and deter persons from breaching laws of the Commonwealth or the non-governing Territories; and
(e)to enable law enforcement authorities effectively to trace proceeds, instruments [of offences] ... ; 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;
'Proceeds jurisdiction' and 'proceeds of crime authority'
'Proceeds jurisdiction' and 'proceeds of crime authority' are expressions used in the Act. This court has proceeds jurisdiction because the conduct constituting the offences to which the orders sought by the applicant relate is reasonably suspected of having occurred in Western Australia.[7] 'Proceeds of crime authority' is an expression defined in the Dictionary within the Act in terms that include the applicant.[8]
Restraining orders
[7] Proceeds of Crime Act 2002 (Cth) s 335(2)(b).
[8] Proceeds of Crime Act 2002 (Cth) s 338.
The Act enables a court with proceeds jurisdiction to make an order restraining the disposition of property in the absence of criminal proceedings or conviction. In this respect two provisions are presently relevant.
Section 18 empowers a court to make an order restraining the disposition of property where the property is suspected on reasonable grounds to be the property of, among others, a suspect, or is property that is suspected to be subject to the effective control of a suspect. It is necessary to set out the full text of the provision.
18Restraining orders - people suspected of committing serious offences
When a restraining order must be made
(1)A court with proceeds jurisdiction must order that:
(a) property must not be disposed of or otherwise dealt with by any person; or
(b) property must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in the order;
if:
(c) a proceeds of crime authority applies for the order; and
(d) there are reasonable grounds to suspect that a person has committed a serious offence; and
(e) any affidavit requirements in subsection (3) for the application have been met; and
(f) the court is satisfied that the authorised officer who made the affidavit holds the suspicion or suspicions stated in the affidavit on reasonable grounds.
Note:A court can refuse to make a restraining order if the Commonwealth refuses to give an undertaking: see section 21.
Property that a restraining order may cover
(2)The order must specify, as property that must not be disposed of or otherwise dealt with, the property specified in the application for the order, to the extent that the court is satisfied that there are reasonable grounds to suspect that that property is any one or more of the following:
(a)all or specified property of the suspect;
(aa)all or specified bankruptcy property of the suspect;
(b)all property of the suspect other than specified property;
(ba)all bankruptcy property of the suspect other than specified bankruptcy property;
(c)specified property of another person (whether or not that other person’s identity is known) that is subject to the effective control of the suspect;
(d)specified property of another person (whether or not that other person’s identity is known) that is:
(i)in any case - proceeds of the offence; or
(ii)if the offence to which the order relates is a serious offence - an instrument of the offence.
Affidavit requirements
(3)The application for the order must be supported by an affidavit of an authorised officer stating:
(a)that the authorised officer suspects that the suspect committed the offence; and
(b)if the application is to restrain property of a person other than the suspect but not to restrain bankruptcy property of the suspect - that the authorised officer suspects that:
(i)the property is subject to the effective control of the suspect; or
(ii)in any case - the property is proceeds of the offence; or
(iii)if the offence to which the order relates is a serious offence - the property is an instrument of the offence.
The affidavit must include the grounds on which the authorised officer holds those suspicions.
Restraining order need not be based on commission of a particular offence
(4)The reasonable grounds referred to in paragraph (1)(d) need not be based on a finding as to the commission of a particular serious offence.
Risk of property being disposed of etc.
(5)The court must make a restraining order even if there is no risk of the property being disposed of or otherwise dealt with.
Later acquisitions of property
(6)The court may specify that a restraining order covers property that is acquired by the suspect after the court makes the order. Otherwise, no property that is acquired after a court makes a restraining order is covered by the order.
'Serious offence' is defined under s 338 of the Act and reg 9 of the Proceeds of Crime Regulations 2002 (Cth). For the purposes of s 338 serious offences include:
(a)indictable offences punishable by imprisonment for 3 or more years, involving:
…
(ii)unlawful conduct constituted by or relating to a breach of section 81 of the Proceeds of Crime Act 1987 or Part 10.2 of the Criminal Code (money-laundering); or
(iii)unlawful conduct by a person that causes, or is intended to cause, a benefit to the value of at least $10,000 for that person or another person; or
(iv)unlawful conduct by a person that causes, or is intended to cause, a loss to the Commonwealth or another person of at least $10,000; or
(aa)unlawful conduct by a person that consists of an indictable offence (the 3 year offence) punishable by imprisonment for 3 or more years and one or more other indictable offences that, taken together with the 3 year offence, constitute a series of offences:
(i)that are founded on the same facts or are of a similar character; and
(ii)that cause, or are intended to cause, a benefit to the value of at least $10,000 for that person or another person, or a loss to the Commonwealth or another person of at least $10,000 …
Section 19 empowers a court to make an order restraining the disposition of property where there are reasonable grounds to suspect that the property is the proceeds of one of a number of specified categories of offence, one of which is an 'indictable offence'[9] or is an instrument of a 'serious offence'.[10] Again it is necessary to set out the full text of the provision:
[9] Proceeds of Crime Act 2002 (Cth) 338. An indictable offence is taken to mean an offence against a law of the Commonwealth, or a non-governing Territory, that may be dealt with as an indictable offence (even if it may also be dealt with as a summary offence in some circumstances).
[10] Proceeds of Crime Act 2002 (Cth) s 338.
19Restraining orders - property suspected of being proceeds of indictable offences etc.
When a restraining order must be made
(1)A court with proceeds jurisdiction must order that:
(a)property must not be disposed of or otherwise dealt with by any person; or
(b)property must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in the order;
if:
(c)a proceeds of crime authority applies for the order; and
(d)there are reasonable grounds to suspect that the property is:
(i)the proceeds of a terrorism offence or any other indictable offence, a foreign indictable offence or an indictable offence of Commonwealth concern (whether or not the identity of the person who committed the offence is known); or
(ii)an instrument of a serious offence; and
(e)the application for the order is supported by an affidavit of an authorised officer stating that the authorised officer suspects that:
(i)in any case - the property is proceeds of the offence; or
(ii)if the offence to which the order relates is a serious offence - the property is an instrument of the offence;
and including the grounds on which the authorised officer holds the suspicion; and
(f)the court is satisfied that the authorised officer who made the affidavit holds the suspicion stated in the affidavit on reasonable grounds.
Property that a restraining order may cover
(2)The order must specify, as property that must not be disposed of or otherwise dealt with, the property specified in the application for the order, to the extent that the court is satisfied that there are reasonable grounds to suspect that that property is:
(a)in any case - proceeds of the offence; or
(b)if the offence to which the order relates is a serious offence - an instrument of the offence.
Refusal to make a restraining order
(3)Despite subsection (1), the court may refuse to make a restraining order in relation to an indictable offence that is not a serious offence if the court is satisfied that it is not in the public interest to make the order.
Note:A court can also refuse to make a restraining order if the Commonwealth refuses to give an undertaking: see section 21.
Restraining order need not be based on commission of a particular offence
(4)The reasonable grounds referred to in paragraph (1)(d) need not be based on a finding as to the commission of a particular offence.
Risk of property being disposed of etc.
(5)The court must make a restraining order even if there is no risk of the property being disposed of or otherwise dealt with.
'Proceeds' and 'instrument' are defined in s 329. Section 329(1) provides that property is proceeds of an offence if it is wholly or partly derived or realised, whether directly or indirectly, from the commission of the offence, and whether the property is situated within or outside Australia. Section 329(2) provides that property is an instrument of an offence if the property is used or intended to be used in, or in connection with, the commission of an offence whether the property is situated within or outside Australia. Section 329(3) provides that property can be proceeds of an offence or an instrument of an offence even if no person has been convicted of the offence.
Section 330 specifies when property becomes, remains and ceases to be proceeds or an instrument. It is unnecessary to refer to the provision in detail.
Sections 25 and 26 govern how applications for restraining orders are to be made. Section 25 provides that a proceeds of crime authority may apply for a restraining order. Notice of an application for a restraining order must be given to the owner of the property to be covered by the order and to any person who is reasonably believed to have an interest in the property.[11] Importantly, however, s 26(4) provides that the court must consider the application without notice having been given if the responsible authority - relevantly in this case the applicant - requests the court to do so. The court is, however, empowered to require notice to be given before finally determining the application.[12]
Duration of restraining orders
[11] Proceeds of Crime Act 2002 (Cth) s 26(1) ‑ (3).
[12] Proceeds of Crime Act 2002 (Cth) s 26(5).
Section 42 provides that an application may be made to revoke a restraining order. It states:
42Application to revoke a restraining order
(1)A person who was not notified of the application for a restraining order may apply to the court to revoke the order.
(1A)The application must be made:
(a)within 28 days after the person is notified of the order; or
(b)if the person applies to the court, within that period of 28 days, for an extension of the time for applying for revocation - within such longer period, not exceeding 3 months, as the court allows.
(2)The applicant must give written notice to the responsible authority and the Official Trustee of both the application and the grounds on which the revocation is sought.
(3)However, the restraining order remains in force until the court revokes the order.
(4)The responsible authority may adduce additional material to the court relating to the application to revoke the restraining order.
(5)The court may revoke the restraining order if satisfied that:
(a)there are no grounds on which to make the order at the time of considering the application to revoke the order; or
(b)it is otherwise in the interests of justice to do so.
Section 45 sets out various circumstances in which a restraining order will cease to be in force. It is a lengthy section but for the purposes of the present case it is only subsection (2) that is relevant. It states:
Restraining orders if there is no conviction etc.
(2)A restraining order ceases to be in force if, within 28 days after the order was made:
(a)the suspect has not been convicted of, or charged with, the offence, or at least one offence, to which the restraining order relates; and
(b)there is no confiscation order or application for a confiscation order that relates to the offence.
'Confiscation order' is a generic term, the definition of which includes a forfeiture order.
Forfeiture orders
Applications for forfeiture orders are governed by Part 2‑2 of the Act. As I explained at [7] of these reasons, the applicants applied for forfeiture orders pursuant to s 47 and 49 of the Act. Section 47 applies when a restraining order under s 18 has been made and s 47(1) states:
47Forfeiture orders - conduct constituting serious offences
(1)A court with proceeds jurisdiction must make an order that property specified in the order is forfeited to the Commonwealth if:
(a)the responsible authority for a restraining order under section 18 that covers the property applies for an order under this subsection; and
(b)the restraining order has been in force for at least 6 months; and
(c)the court is satisfied that a person whose conduct or suspected conduct formed the basis of the restraining order engaged in conduct constituting one or more serious offences.
Note:The order can be made before the end of the period of 6 months referred to in paragraph (1)(b) if it is made as a consent order: see section 316.
Section 49 applies when a restraining order under s 19 has been made and s 49(1) states:
49Forfeiture orders - property suspected of being proceeds of indictable offences etc.
(1)A court with proceeds jurisdiction must make an order that property specified in the order is forfeited to the Commonwealth if:
(a)the responsible authority for a restraining order under section 19 that covers the property applies for an order under this subsection; and
(b)the restraining order has been in force for at least 6 months; and
(c)the court is satisfied that one or more of the following applies:
(i)the property is proceeds of one or more indictable offences;
(ii)the property is proceeds of one or more foreign indictable offences;
(iii)the property is proceeds of one or more indictable offences of Commonwealth concern;
(iv)the property is an instrument of one or more serious offences; and
(e)the court is satisfied that the authority has taken reasonable steps to identify and notify persons with an interest in the property.
Division 3 of Pt 2‑2 of the Act regulates how forfeiture orders are obtained. Section 61(1) provides that notice of an application for forfeiture must be given to, among others, any person who claims an interest in the property and any person who it is reasonably believed may have an interest in the property.
Examination orders
The power to make an examination order is found in s 180 of the Act. It is a discretionary power conditioned only by the pre‑existence of a restraining order. Section 180 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.
Section 182(1) provides that an examination order can only be made on application by the responsible authority[13] for the principal order,[14] or the application for a principal order in relation to which the examination order is sought. Section 182(2) provides that the court must consider an application for an examination order without notice having been given to any person if the responsible authority requests the court to do so.
[13] Proceeds of Crime Act 2002 (Cth) s 338 - relevantly 'responsible authority' is defined to include the proceeds of crime authority that applied for the restraining order.
[14] Proceeds of Crime Act 2002 (Cth) s 338 - 'principal order' means, among other orders, a restraining order or a forfeiture order.
Once an examination order has been made the process of examination is controlled by an approved examiner. On the application by the responsible authority an approved examiner may give a written notice for examination to the subject of the examination order.[15] However, if an application has been made to revoke the restraining order under s 42 and the court orders that examinations are not to proceed then the approved examiner must not give an examination notice.[16] Similarly if, after an examination notice is given, an application has been made under s 42 to revoke the restraining order and the court orders that the examination is not to proceed, an approved examiner must withdraw the examination notice and, if the examination has started, stop the examination.[17]
[15] Proceeds of Crime Act 2002 (Cth) s 183(1).
[16] Proceeds of Crime Act 2002 (Cth) s 183(2).
[17] Proceeds of Crime Act 2002 (Cth) s 186(2).
The fact that criminal proceedings have been instituted or have commenced (whether or not under the Act) does not prevent an approved examiner from giving an examination notice[18] or from proceeding with the examination of a person.[19]
[18] Proceeds of Crime Act 2002 (Cth) s 183(3).
[19] Proceeds of Crime Act 2002 (Cth) s 186(4).
An examinee can be compelled to answer questions.[20] An examinee who fails to attend in response to a notice can be punished,[21] as can an examinee who attends and refuses to answer questions.[22] The rights to decline to answer a question or to produce a document in the examination on the grounds of self‑incrimination or exposure to a penalty have been expressly removed.[23] The use of evidence obtained at an examination is limited.[24] An answer given or a document produced cannot be introduced in civil or criminal proceedings against the examinee except in specified situations, including criminal proceedings for giving false and misleading information, in proceedings on an application under the Act or proceedings ancillary to an application under the Act.
[20] Proceeds of Crime Act 2002 (Cth) s 187(5).
[21] Proceeds of Crime Act 2002 (Cth) s 195.
[22] Proceeds of Crime Act 2002 (Cth) s 196.
[23] Proceeds of Crime Act 2002 (Cth) s 197.
[24] Proceeds of Crime Act 2002 (Cth) s 198.
Section 266A provides, in effect, that information obtained in the course of an examination under the Act may be disclosed to government authorities identified in a table set out under s 266A for purposes specified in the table unless a court has made an order prohibiting the disclosure of the information to an authority. The Act limits the use to which information so disclosed may be put.[25]
Stay of proceedings
[25] Proceeds of Crime Act 2002 (Cth) s 183(3).
Section 319 empowers the court to stay proceedings under the Act that are not criminal proceedings. It states:
319Stay of proceedings
(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.
(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.
(3)Paragraph (2)(a) applies even if the circumstances pertaining to the POCA proceedings are or may be the same as, or substantially similar to, the circumstances pertaining to the criminal proceedings.
(4)Paragraph (2)(b) applies even if the subject matter of the POCA proceedings is the same as, or substantially similar to, the matter at issue in the criminal proceedings.
(5)Paragraph (2)(d) applies even if the staying of the POCA proceedings would avoid a multiplicity of POCA proceedings.
(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 (b), should proceed as expeditiously as possible;
(b)the cost and inconvenience to the Commonwealth of retaining property to which the POCA proceeding relates and being unable to expeditiously realise its proceeds;
(c)the risk of a proceeds of crime authority suffering any prejudice (whether general or specific) in relation to the conduct of the POCA proceedings if the proceedings were stayed;
(d)whether any prejudice that a person (other than a proceeds of crime authority) would suffer if the POCA proceedings were not stayed may be addressed by the court by means other than a stay of the proceedings;
(e)any orders (other than an order for the stay of the POCA proceedings) that the court could make to address any prejudice that a person (other than a proceeds of crime authority) would suffer if the proceedings were not stayed.
Note: Examples of orders the court could make to address any prejudice that a person (other than a proceeds of crime authority) would suffer if the POCA proceedings were not stayed include an order under section 319A (closed court) or an order prohibiting the disclosure of information.
The applicant's evidence
For the purposes of resisting the stay application the applicant relied upon the affidavit sworn by Mr Paynter on 29 November 2018. Mr Paynter is the Team Leader of the Criminal Assets Confiscation Taskforce (CACT) located in the Perth office of the AFP. Mr Paynter's affidavit of 29 November 2018 constituted the evidence relied upon by the applicant at the hearing on 7 February 2019. It was a lengthy affidavit (186 paragraphs) to which Mr Paynter had attached a large volume of documentary material (1617 pages), though, a number of the documents were repetitive in nature, for example bank statements for the various bank accounts.
In addition the applicant relied upon an affidavit sworn by Mr Paynter on 26 July 2019 to which he attached the 'Standard Operating Procedure on the management and disclosure of the Proceeds of Crime Act 2002 (Cth) information' (the Protocol). This affidavit was sworn for the purpose of addressing a query raised by me about the existence of procedures in place within the AFP designed to prevent the disclosure of information obtained as a result of the exercise of the coercive powers conferred by the Act on those involved in prosecuting persons who had provided that information. The respondents objected to the applicant relying upon Mr Paynter's affidavit of 26 July 2019 but I allowed the applicant to rely upon it principally because it was read to answer a query from me on a matter that I considered to be material. I granted the respondents leave to file and serve written submissions directed to the evidence contained in Mr Paynter's affidavit of 26 July 2019 by 9 August 2019 if they wished to do so. The respondents filed and served further written submissions on 9 August 2019. Those submissions addressed a number of issues in addition to the relevance and weight to be attached to the Protocol and to the extent to which the submissions exceeded the ambit of the leave granted I have disregarded them. The applicant filed and served responsive submissions on 16 August 2019.
The respondents are critical of Mr Paynter's evidence and for the purposes of determining their stay application it has been necessary to make an assessment of the cogency of his evidence in the context of the merits of the respondents' application for revocation and their appeal against the making of the restraining orders. For that reason in the paragraphs that follow I have set out a summary of the effect of his evidence. Much of Mr Paynter's evidence was based on information provided to him by other officers of the AFP who were involved in investigating the respondents' affairs or was derived from documents obtained by him or by other officers in the course of the investigation. Other than in a few instances in my summary of Mr Paynter's evidence I have not referred to Mr Paynter's sources of information but have set out the fact that he concludes is established by the source material.
The property sought to be restrained
Mr Paynter identified property that was either owned by Ms Ng or Mr Cha or both of them, or was subject to the effective control of either or both of them. The property comprised:
(a)the seized cash;
(b)two residential properties in Perth - the Stirling property in which the respondents lived and a home unit in the Perth suburb of St James (the St James property);
(c)funds available to be drawn on held in four bank accounts:
(i)an account in Ms Ng's name with the National Australia Bank Ltd (the NAB Loan Account);
(ii)an account in Ms Ng's name with the National Australia Bank Ltd (the NAB Offset Account);
(iii)an account in the name of World College Group Pty Ltd (World College) with the Australia and New Zealand Banking Group Ltd (World College Business Account);
(iv)an account in the name of World College with the Australia and New Zealand Banking Group Ltd (World College Saver Account).
Respondents' personal details
Ms Ng is an Australian citizen. She has two children of whom Mr Cha is the father. Mr Cha was born in South Korea and holds a Resident Return Visa. They have each spent considerable periods outside of Australia since 2010. Ms Ng spent 589 days outside of Australia and Mr Cha spent 1002 days outside of Australia.
The suspected offences
Mr Paynter suspects that each respondent committed offences contrary to s 135.1(1) (doing anything with the intention of dishonestly obtaining a gain from another person where the other person is a Commonwealth entity) and s 400.9(1) (dealing with money or other property where it is reasonable to suspect that the money or property is proceeds of crime with a value of $100,000 or more) of the Criminal Code Act 1995 (Cth).
World College
World College carried on an education and training business and was registered with the Australian Skills Quality Authority (ASQA) as a registered training organisation until 18 April 2018 when its registration was cancelled. Mr Cha is a director of World College. Ms Ng has not been a director but has been involved in the management of World College as the 'RTO manager'. The capital of World College comprises two issued ordinary shares held by World Education Pty Ltd (World Education). 60% of the shares in World Education were held by Ms Siow Kim Lim (Ms Lim) and the balance of the shares are held by two other persons whose identities are not presently relevant. Ms Lim is Ms Ng's mother. In the context of World College's activities Ms Ng used Ms Lim's name on occasions.
The cancellation of World College's registration followed an audit report prepared by officers of the ASQA which recorded that complaints had been received about the operation of World College that gave rise to concerns that the respondents may have engaged in fraudulent activities described in more detail in the audit report.
Winstar - Ms Ng's status a migration agent
Ms Ng had conducted business as a migration agent through a company, Winstar Group Pty Ltd, from 3 April 2013. Ms Ng was a director of Winstar from July 2012 to January 2015 and Mr Cha was a director of Winstar from July 2012 until November 2017. Winstar was deregistered on 26 November 2017. Ms Ng was barred from registration as a migration agent for a period of five years from 6 July 2017.
Explanations of the sources of the seized cash
A search warrant was executed at the Stirling Property on 28 March 2018. In the course of the execution of the search warrant the seized cash was found in a safe within the property. When questioned during the execution of the search warrant Ms Ng had said that: approximately 50% to 60% of the seized cash belonged to World College and was from students' tuition fees, some but not much of the cash belonged to Mr Cha, about $60,000 ‑ $70,000 belonged to her and some belonged to her mother, some of the cash was 'taken from overseas', some was from the sale of a car and some was her earnings from World College.
Ms Ng said that she had recently brought into Australia just less than $40,000 in cash from Malaysia which she had carried in her bag and that she had not declared. She said that she had her two children and her brother with her. Ms Ng told the interviewing officers that she had inherited the money. I understand the import of her reference to the fact that she had her two children and brother with her to be that if the cash was apportioned between them no one of them had cash in an amount that exceeded the reporting threshold of $10,000.
Ms Ng said that personally she did not have much money. She said she worked as a manager at World College and was paid approximately $20,000 per annum. She said that Mr Cha earned about $100,000 a year and she paid his salary into her bank account.
When questioned during the execution of the search warrant Mr Cha had said that Ms Ng got the seized cash from her parents, her work, her savings and Mr Cha's wages from the school and that the money in the safe was owned by them both. Mr Cha said that he earned about $70,000 ‑ $80,000 from World College and had no other sources of income.
On 24 April 2018 Ms Ng sent an email to the Australian Border Force that was forwarded on to the Australian Federal Police. In the email Ms Ng stated that she attached 'evidence of the cash money and we had also declared to cash income is the revenue to the ATO' and 'all the cash that was obtained and stored in premises were lawfully obtained' and 'I have also received $20,000 as bank draft and $10,000 as cashes payment from a guy called Jerry who bought the Mercedes C class, and we also declared the sale value as $30,000 to the department of transport'. The email attached a Business Activity Statement for World College for the period 1 October 2017 and 31 December 2017, ANZ Bank statements covering the period from 23 October to 23 February 2018, and receipt books consisting of handwritten receipts which Mr Paynter described as purporting 'to record payments to World College for such items as 'Tuition Fee', 'Enrolment Fee' and 'Withdrawal Fee' but which do not record details of the courses provided or periods paid for'.[26] The Receipt Books recorded cash receipts of $208,011 between 6 November 2017 and 5 February 2018. The business activity statement recorded GST free sales between 1 October 2017 and 31 December 2017 of $752,415 and total annual sales of $754,273. Ms Ng provided no further information as to how the business activity statement was said to be 'evidence of the cash money and we had also declared the cash income as the revenue to the ATO'.
Movement of funds between bank accounts
[26] Affidavit of Stephen Gerald Paynter sworn 29 November 2018 par 44.
In June 2018 the AFP obtained bank statements for the World College Business Account for the period 23 December 2015 to 15 June 2018 and the World College Saver Account for the period 22 February 2016 to 30 April 2018.
Text messages downloaded from a mobile telephone used by Mr Cha seized in the course of the search suggested that Ms Ng had access to the World College bank accounts.
An analysis of the bank statements for the World College Business Account and the World College Saver Account disclosed the following:
(a)No cash deposits or withdrawals were made into or out of either account in the period between 6 November 2017 and 13 March 2018, the period covered by the receipt books provided by Ms Ng.
(b)Between 20 February 2017 and 30 April 2018 amounts totalling $414,762 were debited from the World College Business Account and paid into accounts held by Ms Ng in her sole name or held by her jointly with another person, M.
(c)Between 7 July 2017 and 28 September 2017 amounts totalling approximately $34,000 were debited from the World College Business Account and paid into an account with the narration 'Cha'.
The AFP obtained bank statements for the NAB Offset Account for the period 11 August 2010 to 27 September 2018 and the NAB Loan Account for the period 1 July 2016 to 2 October 2018. The statements for the NAB Offset Account disclosed credits received into that account described as being from Winstar of approximately $91,000 in the period between 11 February 2016 and 2 January 2018 and credits described as being from World College of approximately $70,000 in the period between 15 August 2016 and 31 January 2018.
Entries in the bank statements for the World College Business Account record payments of approximately $11,300 in favour of a pet shop, approximately $1,500 in favour of a toy shop and approximately $35,000 in favour of a firm of solicitors who acted on behalf of Ms Ng.
Respondents' tax returns
Inquiries of the Australian Taxation Office about the tax returns lodged by the respondents disclosed the following:
(a)Ms Ng had lodged tax returns for each financial year between 2010 and 2016. She had not lodged any return for the financial years ending 30 June 2017 and 30 June 2018. For the financial years 2010 to 2016 inclusive Ms Ng had declared income amounting to $153,784 in addition to income of $51,616 in the form of Australian Government allowances and payments. Her declared income for any one financial year did not exceed $42,797, being the amount of her declared income in 2011.
(b)Mr Cha had not lodged a tax return for any financial year between 2010 and 2017 save for 2012 in which he lodged a return in which he declared income of $6,101.
Government benefits received by Ms Ng
Between 28 October 2011 and 23 September 2015 a total of $144,615 was paid into the NAB Offset Account in respect of Centrelink and other government benefits. Between 11 February 2015 and 13 June 2018 Ms Ng received a single parent allowance from Centrelink. During this period Ms Ng received in excess of $60,000 in single parent payments.
The Stirling Property
The salient features of Mr Paynter's evidence about the Stirling Property are as follows:
(a)The Stirling Property was purchased by a third party, M, on 12 January 2017 for $1,334,000.
(b)There is a mortgage in favour of a commercial lender registered against the title of the Stirling Property to secure a loan to M of $750,000.
(c)The title of the Stirling Property records that a caveat was lodged by Hyeon Ryung Cha (Ms Cha) on 15 February 2017 and that a caveat was lodged by Ms Ng on 21 August 2018.
(d)In correspondence with the solicitors acting for M, Ms Ng's solicitors stated that she and M had entered into an arrangement for M to purchase the Stirling Property on trust for Ms Ng because she had been unable to obtain a loan in her personal name or through World College.
(e)The purchase price of $1,334,000 was provided as follows: $634,100 was provided from funds held in a joint account in the names of M and Ms Ng, and the balance was obtained in the form of a loan to M from a finance company secured by a mortgage over the Stirling Property.
(f)In proceedings against M brought in this court for a declaration that he holds the Stirling Property on trust for Ms Ng, Ms Ng claimed that the funds in the joint account belonged to her. Her solicitors, however, issued a trust account receipt for $634,100 to Ms Cha on 7 December 2016. The payment that generated the trust account receipt was made by a bank cheque and on 6 December 2016 $634,100 was withdrawn from the Westpac Joint Account, inferentially to provide the funds for the bank cheque. Ms Ng referred to Ms Cha as her sister‑in‑law.
(g)When M applied to the finance company for the loan they did not disclose Ms Ng's interest in the Stirling Property or that she was contributing to the purchase price.
(h)According to her solicitors Ms Ng had paid the repayments due under the loan secured over the Stirling Property and a tenancy agreement entered into by M and World College in respect of the property was 'solely for tax purposes and [it was not intended] for the Lease to bind them [M and World College] as Lessor and Lessee' and no rent had been paid.
(i)A loan agreement that recorded that Ms Cha had made a loan of $650,000 to M was prepared. Ms Cha lodged a caveat over the title of the Stirling Property purportedly for the purpose of securing the loan made by her to M.
(j)Ms Ng's lawyers prepared a loan agreement between Ms Ng as lender and Ms Cha as borrower in which the loan amount was recorded as $650,000 and the term of the loan was recorded as 12 years.
(k)In a statutory declaration made in support of the caveat registered by Ms Ng against the title of the Stirling Property, Ms Ng declared: 'I recall providing $643,080.97 to [M] at settlement toward payment of the Purchase Price. I moved in to the Property and have resided there with my family since that time.'
St James Property
The St James Property was purchased in Ms Ng's sole name on 27 October 2010 for $498,000 with the assistance of a mortgage from the NAB of $420,500.
On 3 November 2017 Ms Lim, Ms Ng's mother registered a caveat over the St James Property. In a statutory declaration made on 23 September 2016 made in support of the caveat Ms Lim declared that she had contributed approximately RM560,000 to the St James Property since 2010 to 'renovate and maintain' and for 'the acquisition conservation and mortgage payments to the St James Property' and that she had signed a loan agreement with Ms Ng recording a loan made by her to Ms Ng of $187,000 (approximately RM560,000).
The NAB Loan account is the credit facility linked to the mortgage to the NAB over the St James Property. In addition to regular loan repayments lump sum credits have been made into the loan account. In the period between 22 February 2017 and 26 April 2018 payments amounting to $456,548 were made into the NAB Loan account. These include cash deposits made on 30 March 2017, 4 April 2017 and 6 April 2017 of $50,000, $17,350 and $9,200 respectively.
On 9 April 2018 $351,000 was debited from the NAB Loan account and credited to the NAB Offset Account and then debited from the NAB Offset Account. On 9 April 2018, Ms Ng transferred $358,000 to a bank account in Malaysia. After that transaction the debit balance on the NAB Loan Account was $348,532. Between 9 April 2018 and 2 October 2018 the NAB Loan Account showed a total of $445,630.18 in credits and $330,810.44 in debits. As at 2 October 2018 the NAB Loan Account had a debit balance of $233,712.44.
The St James Property was listed for sale on 20 January 2017 and the price sought was expressed as 'from $600,000' - the property was later withdrawn from the market.
A tenancy agreement was executed in relation to the St James Property on 1 February 2015. The tenancy was recorded as a term of 12 months ending on 1 February 2016 and the rent was $1,400 per fortnight. The tenant was Yong‑Sheng Ng.[27] The St James Property was rented out for $400 per week in November 2018. The only years for which Ms Ng had declared rental income from the St James Property in her tax returns were the 2011 and 2012 financial years.
Money laundering methods involving real estate transactions
[27] In submissions Ms Ng stated that Yong-Sheng Ng was her brother.
Mr Paynter attached to his affidavit a document described by him as a strategic analysis brief from the Australian Transaction Reports and Analysis Centre (AUSTRAC) that provided information about money laundering methods, vulnerabilities and indicators associated with money laundering through real estate in Australia. Mr Paynter summarised the money laundering methods he considered relevant as follows:
(a)to avoid direct involvement in the money laundering process, criminals may seek to buy property using a third party or family member as a legal owner;
(b)criminals may use third parties to transact on their behalf which distances criminals from the illicit funds, disguises ownership and complicates asset confiscation efforts;
(c)criminals use loans or mortgages to layer and integrate illicit funds into high‑value assets such as real estate and lump sum cash repayments are used to repay loans or mortgages; and
(d)criminals may also buy property in a third party's name and pay that third party rent using illicit funds. By 'renting' their own property via third party, criminals can disguise illicit funds and ownership.
Indications of money laundering identified by Mr Paynter
Mr Paynter referred to the lodging by Ms Lim of a caveat over the title to the St James Property to secure a loan made to Ms Ng for contributions to the purchase price, renovations and the payment of the mortgage, and to the lodgement by Ms Cha and Ms Ng of caveats over the Stirling property and the basis for those caveats as disclosed in the supporting statutory declarations and described that conduct as 'recognised money laundering methods'.
Grounds of suspicion summarised
Mr Paynter summarised the grounds for his suspicion that Ms Ng had committed offences contrary to s 135.1 of the Criminal Code. They were that she:
(a)failed to declare her true income by declaring taxable income from 2010 to 2017 which did not exceed $42,797 in any particular year;
(b)failed to declare cash which she used to supplement her income declared to the ATO;
(c)failed to declare income used to pay the mortgage secured against the Stirling Property and the St James Property;
(d)failed to declare rental income derived from the St James Property;
(e)failed to declare the income used to acquire the Stirling Property;
(f)failed to declare her true income received from Winstar and World College, including income used to pay her personal expenses;
(g)failed to declare sufficient income to fund extensive overseas travel; and
(h)received payments from Centrelink because she failed to declare her true income and marital status to Centrelink.
Mr Paynter summarised the grounds for his suspicion that Mr Cha had committed offences contrary to s 135.1 of the Criminal Code. They were that he:
(a)failed to declare his true income by failing to declare any income since the 2012 tax year, when he declared $6,101;
(b)failed to declare his true income from World College;
(c)failed to declare cash which he used to supplement his income declared to the ATO; and
(d)failed to declare sufficient income to fund extensive overseas travel.
Mr Paynter summarised the grounds for his suspicion that Ms Ng had committed offences contrary to s 400.9(1) of the Criminal Code. They were that she:
(a)dealt with money and other property which is of a value that is grossly out of proportion to her declared taxable income by having:
(i)dealt with cash, including the seized cash, which included funds Ms Ng and Mr Cha treated as their own;
(ii)dealt with money and other property used to fund extensive overseas travel;
(iii)dealt with money and other property used to pay the mortgage secured against the Stirling Property and the St James Property;
(iv)dealt with money and other property used to acquire the Stirling Property; and
(v)dealt with money and other property received as income from Winstar and World College including income used to pay her personal expenses;
(b)dealt with money and other property by using the following recognised money laundering methods:
(i)bought the Stirling Property using a third party, M, as the legal owner and subsequently lodged caveats in Ms Cha's and her own name;
(ii)obtained a mortgage over the Stirling Property and disguised loan repayments as rent from World College to M; and
(iii)obtained a mortgage over the St James Property and made repayments to the NAB Loan Account with lump sum payments; and
(c) dealt with the Stirling Property, by virtue of s 11.2A of the Criminal Code (joint commission) by entering into an agreement with M for M to possess title to the Stirling Property, which is proceeds of an offence contrary to s 409(1)(a) of the schedule to the Criminal Code Compilation Act 1913 (WA) namely, with an intent to defraud, by deceit or any fraudulent means, obtaining property from the mortgage provider.
Mr Paynter summarised the grounds for his suspicion that Mr Cha had committed offences contrary to s 400.9(1) of the Criminal Code. They were that he:
(a)dealt with cash which included funds Ms Ng and Mr Cha treated as their own;
(b)dealt with money and other property used to fund extensive overseas travel (a total of 1002 days since 2010);
(c)dealt with money and other property used to acquire the Stirling Property; and
(d)dealt with money and other property received from World College.
Grounds of suspicion that property belonged to Ms Ng and Mr Cha or was under their effective control
Mr Paynter summarised the grounds upon which he suspected that each item of property covered by the restraining orders was either the property of Ms Ng or Mr Cha or both of them or was subject to the effective control of either or both of them.
Grounds of suspicion that property were proceeds or instrument of an offence
Mr Paynter also summarised the basis upon which he suspected that the seized cash was an instrument of an offence contrary to s 135.1(1) of the Criminal Code, and the basis upon which he suspected that the St James Property, the Stirling Property and the funds in the NAB Offset Account and the NAB Loan Account were the proceeds of an offence. Mr Paynter did not, however, state that he suspected that the funds in the World College Business Account and the World College Saver Account were either the proceeds of an indictable offence or the instrument of a serious offence.
Risk of dissipation
Mr Paynter deposed to his belief that if notice of the restraining order application was provided to the respondents ahead of the hearing there was a real risk that steps would be taken by the respondents to dissipate cash from bank accounts and reduce any equity held in the St James Property or the Stirling Property. Mr Paynter pointed to the redraw of approximately $351,000 from the NAB drawdown account on 9 April 2018 and the volume of the transactions on the NAB Loan Account between 9 April 2018 and 2 October 2018.
The Protocol
Mr Paynter deposed that he is familiar with the provisions of the current edition of the 'Commissioner's Orders on Governance'. He stated that the Protocol is a functional governance instrument for the purpose of the Commissioner's Orders and as such compliance with its terms was compulsory, and that breach of Protocol would, in effect, amount to a disciplinary infraction.
The stated purposes of the Protocol were twofold: first, to ensure that the discharge of functions under the Act did not interfere with the integrity of any criminal proceedings and secondly, to set conditions that will promote the achievement of the objects of the Act. In summary the Protocol established a regime for restricting the disclosure of 'coercive material', that is material derived from sworn statements provided by a person pursuant to an order under s 39 of the Act or information obtained during an examination conducted pursuant to an order made under s 180 of the Act, to persons outside of the Criminal Assets Confiscation Taskforce. The Protocol specified procedures to be followed if an application to disclose coercive material to a person outside the Criminal Assets Confiscation Taskforce was made. The Protocol provided for a compliance audit to be undertaken every six months.
The possibility of prosecution
The respondents have not been charged with any offences. In the course of oral submissions counsel for the applicant said 'the Commissioner can say that there's no intention to conduct an investigation. An investigation into criminal offences is not being undertaken and it's not intended that one be undertaken.'[28]
[28] ts 113.
The respondents' evidence
The respondents relied on the following affidavits in support of their application:
(a)affidavit of Voon Mei Ng sworn 1 March 2019;
(b)affidavit of Byoung Ju Cha filed sworn 19 March 2019; and
(c)affidavit of Voon Mei Ng sworn 19 March 2019.
Objection was taken to much of the content of the respondents' affidavits. Because the respondents were representing themselves I did not rule on the objections but allowed the affidavits to be read on the basis that I would take the objections into account when assessing the weight to be attached to the evidence.
Much of Ms Ng's affidavit of 1 March 2019 consisted of submissions that Ms Ng wished to advance. These were directed to the following: her opinion that the ancillary order was unfair and oppressive, the contention that 'her right to silence' was prejudiced by the ancillary order and the examination order; that she intended to apply to revoke the restraining order and she would be prejudiced if she was forced to comply with the ancillary order and the examination order before the revocation application was heard; she was not required to declare her 'true' income and was not obliged to declare receipt of gifts and loans she had received from third parties and that thus Mr Paynter's suspicions that she had committed serious offences were not held on reasonable grounds; and there was no reason for the ancillary order and the examination order to be made ex parte.
Ms Ng attached to her affidavit of 1 March 2019 copies of notices of assessment issued by the Australian Taxation Office to Mr Cha in respect of the years ending 30 June 2014, 30 June 2015 and 30 June 2016 and notices of amended assessment in respect of the years ending 30 June 2014 and 30 June 2018. All of these notices were issued in September 2018.
Ms Ng deposed that Mr Cha had obtained directors' loans from World College described by Ms Ng as 'Profit of World College 2017 - $172,759' and 'Profit of World College 2016 - $152,962'. Ms Ng attached to her affidavit of 1 March 2019 financial statements for World College for the year ending 30 June 2017. These financial statements contained for comparison purposes figures for the financial year ending 30 June 2016. Ms Ng deposed that Mr Cha had not declared the directors' loans 'as his true income' because they had been advised by 'the accountant' that there was no need to do so. I interpolate the World College's profit figure for the 2017 year as recorded in financial statements was $172,759 and the profit figure for the 2016 year was $152,962 but the balance sheet contained no reference to directors' loans in either year.
In her affidavit of 1 March 2019 Ms Ng deposed that prior to the execution of the search warrant she had been admitted to a business school in France (she attached an email exchange with the admissions team of the business school) and prior to the execution of the search warrant had transferred money overseas for education purposes. She deposed that she was planning to move overseas to live with her family and for that purpose had made inquiries to move her belongings from Perth to Malaysia in a sea container and she attached an email from a freight forwarding company containing a quote for the cost of a sea container.
In her affidavit of 19 March 2019 Ms Ng repeated the submission that she would be prejudiced if she was obliged to provide the sworn statement and be examined before her application for revocation of the restraining orders was heard. She also asserted that the applicant had failed to provide any explanation for the delay between the execution of the search warrant and the hearing of the ex parte application on 7 February 2019. She argued that the delay showed that there was no fear on the applicant's part that property would be disposed of. She contended that if the reasons for making the application on an ex parte basis was that she had transferred $300,000 overseas 'into my own account' the applicant has not made full disclosure of relevant information because she had told officers of the ABF that she had planned to leave Australia for the 'long term'. Ms Ng added:
I believe that examination order is intended for the purpose for restraining order (principal order) which is the prevention of dissipated of property and examination order is sufficient alone to obtain necessary information that sought in sworn statement. There is no need for 2 order to achieve the same result.
(Grammatical errors in the original)
In submissions dated 30 May 2019 Ms Ng set out in tabular form the sources of funds she says were used to purchase the Stirling Property and the St James Property. In the same submissions Ms Ng also set out in tabular form the source of funds contained in the NAB Offset Account and the NAB Loan Account and the sources of the $358,000 transferred to Malaysia on 9 April 2018.
Mr Cha's affidavit sworn on 19 March 2019 consisted of a series of denials of any wrongdoing on his part. He contended that the applicant had acted on the basis of false information and unreasonable suspicion. In addition Mr Cha made substantially the same points regarding prejudice as had been made by Ms Ng in her affidavits.
Revocation of the ancillary orders
The ancillary orders directed the respondents to provide 'a sworn statement setting out all of [their] liabilities and interests… from 1 January 2010 to the date of these orders'.
The Act defines 'interest' as follows:[29]
interest, in relation to property or a thing, means:
(a)a legal or equitable estate or interest in the property or thing; or
(b)a right, power or privilege in connection with the property or thing;
whether present or future and whether vested or contingent.
This definition does not expressly encompass past interests. Following the filing of written submissions, I requested that the parties file additional submissions directed to the question of whether the court had power under s 39(1)(ca) (the provision pursuant to which the ancillary orders were made) to make an order directing a suspect to give a sworn statement setting out the interests in property and liabilities that a suspect has had in the past. In response to that request the applicant foreshadowed a consent to the revocation of the ancillary orders. The applicant did not concede, however, that the orders were not properly made nor that it was appropriate to revoke those orders. The applicant's position was that, 'in the interests of progress in this matter to forfeiture pursuant to ss 45 and 49 of the Act, [the applicant] wishes to proceed with the examination of the respondents as an efficient information gathering mechanism.'
[29] Proceeds of Crime Act 2002 (Cth) s 338.
In light of the applicant's consent to the revocation of the ancillary orders it is unnecessary to consider whether the generality of the discretionary power conferred by s 39(1) is constrained by the statutory definition of 'interest' when the power is exercised to direct a suspect to provide a sworn statement.
The respondents' submissions - stay application
First, the respondents submitted that the restraining orders ceased to operate on 9 March 2019 (28 days after the orders were initially made). In aid of this submission the respondents invoke s 45(2) of the Act.
As mentioned at [11] above, on 8 March 2019 I dismissed the respondents' application for an order that the restraining orders had ceased to have effect on 8 March 2019. At that time the basis of the respondents' application was that they had not been charged with an offence to which the restraining orders related and no application for a confiscation order had been made. I dismissed the application on the basis that an application for a confiscation order had been made because a forfeiture order is a confiscation order[30] and the applicant had applied for a forfeiture order on 30 November 2018.
[30] Proceeds of Crime Act 2002 (Cth) s 338.
The respondents have refined their submission. My understanding of the way in which the respondents now develop their argument is as follows:
(a)first, the respondents point to s 61(1) of the Act that provides that the responsible authority must give written notice of an application for a forfeiture order to any person who claims an interest in property covered by the application and to any person whom the authority reasonably believes may have an interest in the property, thus a forfeiture order cannot be made ex parte;
(b)second, because the applicant's motion filed on 30 November 2018 by which applications for the forfeiture orders were made was not served on the respondents before the hearing on 7 February 2019, the application for the forfeiture orders should be taken to have been made on an ex parte basis and it was thus an invalid application because the Act does not allow an application for forfeiture to be made on an ex parte basis; and
(c)third, because the application for a forfeiture order was invalid there was no application for a confiscation order and thus neither of the alternative conditions specified in s 45(2)(b) of the Act was satisfied and the restraining orders ceased to have effect on 9 March 2019.
The respondents developed their submissions as to how the discretion to stay proceedings should be exercised as follows:
(a)Section 319 of the Act confers a discretion on the court to stay proceedings under the Act that are not criminal proceedings if the court considers that it is in the interests of justice to do so.
(b)There is a presumption that examinations ought not be ordered or conducted while a revocation application is on foot. In support of this submission the respondents rely on the observations of John Dixon J in Commissioner of the Australian Federal Police v Mah.[31]
(c)The respondents have not only made a revocation application but they have also appealed against the restraining orders. They will be prejudiced if they are subjected to the examination process before their challenges to the restraining orders are determined.
(d)As observed by Dixon J in Mah there are numerous provisions of the Act that expressly confer a benefit on a responsible authority by precluding the opposing party from taking steps under the Act until the responsible authority has had a reasonable opportunity to examine relevant persons (s 32(b), s 75(3), s 76(3), s 79A, s 94(5) and (6) and s 94A (8) and (9)). It is significant that there is no similar provision conferring upon the responsible authority the right to conduct an examination prior to the determination of an application for revocation of a restraining order.
(e)There was considerable delay on the part of the applicant in filing the notice of motion and thereafter in making the ex parte application. This indicates that there is not an urgent need to undertake the examinations.
(f)Conducting the examinations would infringe the respondents' right to silence.
[31] Commissioner of the Australian Federal Police v Mah [2014] VSC 262; (2014) 242 A Crim R 184 [69] (Dixon J).
The applicant's submissions - stay application
The applicant's submissions may be summarised as follows:
(a)Consistent with the statutory scheme the applicant is entitled to use the information gathering powers conferred on it by the Act, including the examination power, to investigate and test the material upon which the respondents seek to rely in their application to revoke the restraining orders.
(b)The applicant makes the point that any material that may be relied upon by the respondents in support of their revocation application is likely to be solely within their knowledge and the applicant wishes to exercise the examination power so that, if necessary, the applicant may challenge the respondents' evidence on the revocation application.
(c)The applicant should not be precluded from conducting the examinations having regard to the statutory role imposed on the applicant as a proceeds of crime authority and in particular, the role the applicant has in appearing and adducing additional material at the hearing of the revocation application: s 42(4) of the Act.
(d) The importance of the statutory functions of the applicant to examine, investigate and test the material relied upon by the respondents is significant in the context of the case because at present, in important respects, the respondents' evidence comprises no more than their assertions and lacks any particularity.
(e)The examination procedure is designed to facilitate the discharge of the applicant's function as the responsible authority under the Act and conducting examinations is consistent with the express terms and purpose of the Act: s 5(ba), s 80, and s 186(2).
(f)There is nothing in the language, purpose or context of the Act from which this court could infer a presumption that the existence of an application to revoke a restraining order is sufficient for the court to order the examinations not to proceed. The applicant contends that so much is made clear by the terms of s 183(2)(b) of the Act.
(g)Similar considerations to those identified by Dixon J in Mah as conditioning the exercise of the discretion to grant an examination order pertain to any exercise of the court's discretion to stay an examination order. The considerations identified in Mah militate against the grant of a stay.
Proposed non-disclosure order
On the second day of the hearing the applicant's counsel informed the court that the applicant would consent to an order to be made under s 266A(2) of the Act which he outlined as follows:[32]
[T]he Commissioner would be content for orders to be made under [s 266A], that prohibited the release of any … coercive material that would be obtained as a result of the examinations, to anybody or entity that investigates or prosecutes, and it only be used for the purposes of proceedings under the Proceeds of Crimes Act, or … the provision of the material to the Attorney-General for the purposes of any mutual assistance request to an overseas entity.
[32] ts 131.
Analysis and disposition
The restraining orders remain in force
The restraining orders did not cease to have effect on 8 March 2019. The fact that the applicant's motion of 30 November 2018 was served after 7 February 2019, that is, after the application for the restraining orders, the ancillary orders and the examination orders was heard does not mean that the application for the forfeiture orders was made on an ex parte basis. I do not accept the respondents' submission that the application for the forfeiture orders was invalid. Applications for forfeiture orders were made and the provisions of s 45(2) upon which the respondents rely have no application.[33]
The stay application - general principles
[33] The following procedural point was not raised in argument but it appears that the application for forfeiture orders was made using the incorrect form. As notice of the application for forfeiture orders was required to be given the application should have been made by an originating summons in form 74 and not a notice of motion in form 65 - see O 81.F r 2(3)(a) of the RSC. A consequence of using the incorrect form is that the application is irregular but it is not a nullity: O 2 r 1 of the RSC.
Before considering the matters that s 319(6) provides the court must take into account, some general observations may be made.
First, the application for the examination orders, the examination orders themselves and the proposed examinations constitute proceedings for the purposes of s 319 of the Act.[34] Section 319 empowers the court to stay those proceedings. The power must be exercised subject to the conditions imposed by the section.[35] Section 319(2) of the Act specifies grounds on which a decision to stay the proceedings cannot be based.
[34] Commissioner of the Australian Federal Police v Elzein [49] (Basten JA); Onley v Commissioner of the Australian Federal Police [2019] NSWCA 101; (2019) 367 ALR 291.
[35] Onley v Commissioner of the Australian Federal Police [333] - [348] (Basten JA with whom Meagher JA agreed).
Second, the references in s 183(2)(b) and s 186(2)(d) to 'orders made by a court that examinations are not to proceed' are to be taken as references to orders staying an examination order pursuant to s 319. I hold this view for three reasons. First, I have been unable to find in the Act any other source of power to order that examinations are not to proceed and neither side contended there was any other source of power. Second, the inclusion of an express power to grant a stay in s 319(1) constrained by the matters specified in s 319(2) to (6) militates against the existence of an implied power to stay an examination order unconstrained by those matters. Third, although the respondents did not rely on the law of Western Australia, (either the power to grant a stay conferred by s 15 of the Civil Judgements Enforcement Act 2004 (WA) or the court's inherent jurisdiction to grant a stay),[36] in Onley v Commissioner of the Australian Federal Police, Basten JA, with whom Meagher JA agreed, considered that there must be at least serious doubt whether the power of the court to grant a stay under the general law, and in disregard of the conditions set out in s 319, existed.[37]
[36] See The Director of Public Prosecutions for Western Australia v Mansfield [2006] WASC 72 [18] (Blaxell J); Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 [8] ‑ [9] (Murray & Parker JJ).
[37] Onley v Commissioner of the Australian Federal Police [339].
Third, in Mah Dixon J expressed the view that the Act revealed a predisposition against making an examination order while the revocation application was pending. In a passage relied upon by the respondents, his Honour said:[38]
[38] Commissioner of the Australian Federal Police v Mah [69] ‑ [70].
[A] careful reading of the whole Act reveals a predisposition against making an examination order while a revocation application is pending. A presumption that examinations ought not be ordered or conducted while a revocation application is on foot is discernible from the following matters:
(a)A restraining order must be in force before an examination order can be made [s 180].
(b)Any examination order ceases to have effect when the relevant restraining order ceases to have effect [s 180(2)].
(c)Section 183(2) expressly contemplates the court making an order that the examination not proceed if an application for revocation under s 42 of the Act is being made.
(d)Section 186(2) of the Act expressly contemplates the withdrawal of an examination notice or the cessation of an examination that has commenced if an application for revocation under s 42 has been made.
(e)The Act does not contain any other provision that expressly contemplates delaying an examination except for the provisions to which I have just referred.
(f)Numerous other provisions of the Act expressly confer a benefit on the Commissioner by precluding the opposing party from taking steps under the Act until the Commissioner has had a reasonable opportunity to examine relevant persons [s 32(b), s 75(3), s 76, s 79(3), s 79A, s 94(5) and (6), s 94A(8) and (9) and s 104(6) and (7)]. What is significant is that there is no similar provision conferring upon the Commissioner the right to conduct examinations prior to the court determining an application for revocation of a restraining order.
The distinctive treatment of revocation orders in this way is unsurprising, given the statutory procedure by which they may be obtained, particularly the fact that, as in this case, restraining orders are commonly obtained ex parte and on the basis of suspicion. However, the course that I will adopt does not deny to the Commissioner the opportunity to seek any of the forensic advantages properly granted to him by the Act in dealing with the applications for exclusion and forfeiture.
Those observations were made, however, about the relevant provisions of the Act before it was amended by the Crimes Legislation Amendment (Proceeds of Crime and Other Measures) Act 2016 (Cth) (the 2016 Act). The amendments effected by the 2016 Act included the introduction of s 319 in its present form. Prior to the amendments s 319 read as follows:
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.
The non‑exhaustive list of matters (which does not include a reference to a revocation application) to which the court must have regard when considering whether a stay of proceedings is in the interests of justice militates against the view that there is a statutory presumption that examinations ought not be ordered or conducted while a revocation application is on foot. I accept, however, as the applicant contended that the merits of any extant revocation application is a matter that may be relevant to an application to stay an examination order.
Fourth, in Onley Basten JA rejected a submission that the primary judge had erred by failing to conduct a 'balancing exercise' between the risks of prejudice to the respective parties. His Honour made the following observations about the exercise of the discretion conferred by s 319:[39]
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.
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.
[39] Onley v Commissioner of the Australian Federal Police [408] ‑ [409].
Fifth, in Commissioner of the Australian Federal Police v Elzein Beazley ACJ said:[40]
The matters referred to in s 319(6) are matters to which the court must have regard, but they are not determinative of the manner in which the discretion is to be exercised. Nor is there any hierarchy or statutory prescription of the weight which is to be given to those considerations. Further, there is nothing in s 319 which precludes consideration of other matters that the court determines are relevant.
[40] Commissioner of the Australian Federal Police v Elzein [7].
In my view in determining whether it is in the interests of justice to grant a stay the principles that govern the grant of a stay in similar situations, such as whether a stay should be granted pending the determination of an appeal, may provide some guidance.
Sixth, when an application for a stay of an examination order is made in a situation in which there is a possibility of criminal proceedings, consideration of two forms of prejudice commonly arise, that is, systemic prejudice and disclosure prejudice.
In Onley Bathurst CJ described systemic prejudice by reference to the principle identified by Hayne and Bell JJ in X7 v Australian Crime Commission and explained in the following terms:[41]
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. (emphasis in original)
[41] X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92 [124].
Disclosure prejudice will arise where the information provided by suspects in the course of their examinations becomes known to those investigating or prosecuting the criminal charges. Systemic prejudice and disclosure prejudice do not exhaust the prejudice that might be suffered by a suspect who is the subject of an examination order.
Seventh, in my view the express conferral on a proceeds of crime authority of the benefit of the reasonable opportunity to conduct examinations[42] before the opposing party took various steps under the Act does not support the conclusion that a proceeds of crime authority is prohibited from proceeding with an examination once an application to revoke a restraining order is made and from using information obtained in the examination to resist the revocation application.
Section 319(6) - the matters to which the court must have regard
The POCA proceedings should proceed as expeditiously as possible (s 319(6)(a))
[42] Conferred by the provisions referred to by Dixon J in [69(f)] of Mah.
Section 319(6)(a) makes it plain that one objective of the Act is that proceedings under it should proceed as expeditiously as possible. The qualifying words 'as possible' contemplate that there may be legitimate reasons why a proceeding under the Act may not proceed expeditiously but absent such reasons expedition is, in effect, a statutory requirement. The respondents submit that the applicant has not identified a 'particularly urgent need' for the examinations to proceed before the revocation application had been determined. There is no necessity, however, for the applicant to point to an urgent need for the examinations to take place because the Act itself requires proceedings to proceed expeditiously.
The respondents have pressed the court to defer the filing of evidence in relation to their revocation application, and thereby defer the hearing of that application until after the determination of their appeal against the restraining orders. Although the court has not acceded to the respondents' requests it is unlikely that the revocation application will be heard before the end of this calendar year at the earliest. If the examination orders were stayed until the determination of the revocation application and the respondents are unsuccessful in that application, it is unlikely that the examinations will take place until sometime in the first six months of 2020. This delay is inconsistent with the objective of expedition and, further, delay of this kind impedes the search for the truth.
The cost and inconvenience to the Commonwealth of retaining property to which the proceedings relate and being unable to expeditiously realise its proceeds (s 319(6)(b))
There is no evidence regarding the 'cost and inconvenience ... of retaining property' before the court. Whilst staying the examination order will impede the ability of the Commonwealth to realise proceeds of the property that is the subject of the forfeiture application, there is no evidence that any delay will affect the amount of the proceeds that may be recovered. For example, it is not suggested that the property comprises wasting assets or that the relevant market is falling. In the present case whilst these matters reinforce in a general sense the weight to be attached to the statutory objective of proceeding expeditiously, they are otherwise not of themselves significant factors in the exercise of the discretion.
The risk of the applicant suffering any prejudice in relation to the conduct of the proceedings if the proceedings were stayed (s 319(6)(c))
If the examination orders are stayed it is likely, if not inevitable, that the determination of the forfeiture applications will be delayed. Delay constitutes prejudice. In addition, however, there is a risk of two other forms of material prejudice. First, as I have said, delay in conducting the examinations into transactions that form part of the affairs of the respondents and which took place some years ago has the capacity to impede the search for the truth. The greater the delay, the greater the risk that documents will be lost or destroyed and, of course with the elapse of time, memories of relevant events inevitably fade. Second, for the reasons I have outlined above, the applicant is entitled to rely on information obtained in the course of examinations as evidence for the purpose of resisting the respondents' revocation application. Thus, if the examination order is stayed, in resisting the revocation application, the applicant will be deprived of any forensic advantage that might be derived from being able to adduce evidence of information obtained from the examinations.
Whether any prejudice that a person - other than the applicant - would suffer if the proceedings were not stayed may be addressed by means other than a stay of proceedings - any orders other than a stay order that the court could make to address prejudice that a person other than the applicant would suffer if the proceedings were not stayed. (s 319(6)(d) and (e))
In this case consideration of the matters specified in s 319(6)(d) and (e) are so inter-related that it is appropriate to deal with them together.
The respondents' primary submission in relation to prejudice is that if the examinations proceed they will be deprived of the benefit of the privilege against self‑incrimination.
In effect, the respondents' concern is that unless a stay is granted they will suffer 'systemic' prejudice of the nature described earlier. Systemic prejudice is not, of itself however, a sufficient reason to grant a stay.[43]
[43] Onley v Commissioner of the Australian Federal Police [220] ‑ [236] (Bathurst CJ); [369] ‑ [372] (Basten JA); [418] (Meagher JA).
As to potential disclosure prejudice I am satisfied that the operation of the Protocol combined with the proposed non‑disclosure order substantially ameliorate the risk of disclosure of information obtained in the examinations to those who may be involved in any criminal prosecution, should, contrary to the indications given by counsel for the applicant, criminal prosecutions be commenced. So ameliorated, the risk of such disclosure is not a matter to which significant weight is to be attached in the exercise of the discretion in this case.
I accept that there is the potential for the respondents to suffer prejudice by being subjected to the examinations when there is the possibility that restraining orders may be set aside on appeal or revoked. If the restraining orders are set aside or revoked the examination orders would cease to have effect. If the respondents are examined before the determination of the appeal or the determination of the revocation application and they are successful in either the appeal or the revocation application they will have been deprived of part (at least) of the benefit of those successful outcomes.
As stated earlier I also accept that the existence of the revocation application is a factor that is relevant to the exercise of the discretion to order a stay. That said, the mere fact that an application for revocation of restraining orders has been made is not sufficient to warrant the grant of a stay. Some assessment of the merit of the application must be made.
My assessment of the evidence contained in Mr Paynter's affidavit of 29 November 2018 is that the evidence:
(a)fulfilled the affidavit requirements set out in s 18(3) of the Act;
(b)fulfilled the affidavit requirements of s 19(1)(e) of the Act, other than in respect of funds in the World College Business Account and the World College Saver Account;
(c)was cogent evidence upon which the court could be satisfied that Mr Paynter held the suspicions (both as to the commission of offences and as to ownership and control of the property) stated in the affidavit;
(d)was cogent evidence of reasonable grounds to suspect that the respondents had committed the offences identified by Mr Paynter; and
(e)was cogent evidence that the property, other than the funds in the World College Business Account and the World College Saver Account, was either the proceeds of a serious offence or the instrument of a serious offence.
In their affidavits and submissions the respondents have made generalised attacks on Mr Paynter's evidence suggesting that it did not provide an adequate basis for the formation of reasonable suspicions that they had committed the offences identified by him.
One particular criticism of Mr Paynter's evidence upon which Ms Ng focussed in her oral submissions was that Mr Paynter's affidavit did not contain evidence of subjective dishonesty on the part of the respondents. There are two responses to that criticism. First, the affidavit evidence was not required to establish the commission of offences by the respondents, only that Mr Paynter held the suspicion that they committed the offences on reasonable grounds and that there were reasonable grounds to suspect that the respondents had committed the serious offences. Second, Mr Paynter's evidence contains evidence of facts from which adverse inferences about the respondents' mental states may be drawn.
Additionally whilst in their submissions and affidavits the respondents have offered explanations for some of the conduct upon which Mr Paynter relies as grounds for his suspicions, those explanations lack detail and do not amount to more than mere assertions. Moreover the respondents have not addressed matters that are within their knowledge and are seemingly capable of ready explanation.
The respondents were not obliged to present the evidence upon which they will rely in support of the revocation application on the stay application. However, the consequence of the respondents not adducing more comprehensive evidence on this application is that the materials available to me to make an assessment of the merits of the revocation application are limited.
As I have observed earlier, the merits of the revocation application constitute a consideration relevant to the exercise of the discretion to grant a stay. When I weigh the materials the respondents have put before the court against my assessment of Mr Paynter's evidence, I am not persuaded that the merits of the revocation application are such as to warrant a stay when considered in the context of the other matters to which the court must have regard.
The respondents have drawn attention to the fact that in his affidavit of 29 November 2018 Mr Paynter does not depose that he suspects that the funds in the World College Business Account and the World College Saver Account were either the proceeds of one of the offences or the instrument of one of the offences as required by s 19(1)(e). In respect of this property the requirements of s 19 were not met and there is merit in the respondents' application for revocation in respect of the restraining orders made under s 19 in respect of this property. This point does not, however, advance the respondents' position in any material way. Even if the restraining orders made under s 19 were revoked in their entirety the restraining orders made under s 18 will continue in effect and their existence satisfies the precondition in s 180 that there is a restraining order in force.
I understand that by their appeal notice the respondents have appealed against both the making of the restraining order and the making of the examination order. The respondents' amended grounds of appeal are reproduced in the Appendix to these reasons.
If the respondents ultimately succeed in their appeal but are examined before their appeal is heard and determined they will be deprived of part of the benefit that they would otherwise have derived from a successful outcome. The appeal will not, however, be rendered nugatory. There is a substantial overlap between the arguments involved in the respondents' grounds of appeal and the arguments raised in support of the stay application. Save for the point outlined in [127], I am not satisfied that the respondents' appeal has sufficiently strong prospects of success to warrant the grant of a stay, when considered in the context of all the matters to which the court must have regard, for the same reasons that I am not satisfied that the revocation application has a sufficient prospect of success to warrant a stay.
In the preceding paragraphs I have set out my assessment of the significance of each of the matters to which I must have regard. I have reflected upon those matters and have concluded that it is not in the interests of justice to order that the examination orders be stayed.
Orders
I will make orders to the following effect:
(a)the ancillary orders be revoked;
(b)there be a non-disclosure order in the terms proffered by the applicant;
(c)the application to stay the examination orders be dismissed.
APPENDIX[44]
[44] I am aware that the respondent's first language is not English, it is however not preferable that I attempt to reconstruct the respondent's grounds of appeal. On that basis I have reproduced the grounds of appeal in their original form without textual amendment.
CACV 40 of 2019 - grounds of appeal
1.Whether the primary Judge fail to give adequate oral or written judgment for the reason he is satisfies that appellants had committed serious offence and the reason of making the restraining order under s18 and s19 of the proceeds of Crime act.
2.Whether the primary Judge fail to assess the issue as whether is that a reasonable suspicion that aroused by AFP in the factual basis and circumstance known to him that appellant had commit a serious offence, involving doing anything with the intention of dishonestly, the essential element of the offence.
3.Whether the primary Judge had failed to in the exercise of his discretion by failing to properly consider the issue as whether the appellant deal with money and other property which is of a value is gross out of proportion to her 'declared taxable income', is the meaning of the S400.9 of Criminal code. Whether the definition of 'income' of S400.9 of Criminal Code only narrowed down to 'declared taxable income', or it had broader definition including 'taxable income that had not yet declared, and lending and gift money'.
4.Whether the primary Judge had failed to in the exercise of his discretion by failing to properly consider that the grounds of reasonable suspicion is irrational, improper and unlikely to sustain the restraining order.
5.Whether the primary Judge fail to in the exercise of his discretion in ordering restrained order of S19 of ANZ account in the name World College Group Pty Ltd where there is no ground at all that it is suspected to be either proceed or instrument of Crime.
6.Whether the primary Judge fail to consider whether the proceed of crime covered the property that was suspected to intent to be instrument of crime or proceed of crime in term of seizure cash that was the earning in the upcoming 2017/2018, taxable year.
7.Whether the primary judge fail to consider whether Appellant fail to declare their true income is reasonable suspicion of the element of doing anything with the intention dishonesty of S135.1 of the Code.
8.Whether the primary Judge fail to consider whether the appellant deal with or claim their right of the possession of property of its own company (World College) is a reasonable suspicion of the money or property becoming proceed of crime, and whether the property become proceed of crime because the property was bought under a third party name (resulting trust) and its value disproportionate to appellant 'declare income', as to 'income'.
9.Whether the purpose of the source of the money need to provide in order for the property not to change its characterises to become 'proceed of crime.
10.Whether the primary Judge error in making examination order and ancillary order that enable appellants to assist prosecution by providing statement and fail to balance the objects of the act against the court's obligation to maintain the legitimacy of the administration of criminal justice.
11.Whether the primary judge error in making ancillary order to provide sworn statement in failing to take into account that restraining order might ceases to have its effect pursuant to S45(2) of POCA and revocation order.
CACV 73 of 2019 - grounds of appeal
1.The judge erred in its construction and application of the s 45(2) of the Proceeds of Crime Act 2002 (Cth) (the Act);
2.The judge had made an error in law in finding that Ex-Parte confiscation application is a valid application.
3.The judge had made an error in law in finding that "application for a confiscation order of s 45(2), should not broader in its construction, including "invalid application”
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AS
Research Associate/Orderly to the Honourable Justice Tottle23 AUGUST 2019
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