Commissioner of the Australian Federal Police v Yang

SUPREME COURT OF VICTORIA COURT OF APPEAL
S EAPCI 2022 0082
COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE	Applicant
v
XUAN YANG	Respondent

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JUDGES:	EMERTON P, PRIEST and TAYLOR JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	29 August 2023
DATE OF JUDGMENT:	9 November 2023
MEDIUM NEUTRAL CITATION:	[2023] VSCA 271
JUDGMENT APPEALED FROM:	AFP v Li & Ors (Ruling) [2022] VCC 868 (14 June 2022) and AFP v Li & Ors (Ruling No 2) [2022] VCC 1243 (9 August 2022) (Judge Dyer)

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PROCEEDS OF CRIME – Appeal – Respondent’s husband charged with criminal offences – Respondent the subject of examination and ancillary orders pursuant to Proceeds of Crime Act 2002 (Cth) – Disclosure prohibition order under s 266A of Proceeds of Crime Act 2002 (Cth) made over information to be obtained from respondent – Primary judge conducted ‘balancing exercise’ considering respondent’s personal concerns about potentially giving evidence against her husband – Whether disclosure prohibition order can be made in respect of examinee not charged with criminal offences – Whether disclosure prohibition order can be made for reasons unrelated to risk of prejudice of criminal trial – Primary judge erred in making order for reasons unrelated to risk of prejudice of criminal trial – Leave to appeal granted – Appeal allowed.

Proceeds of Crime Act 2002 (Cth) ss 39, 180, 266A; Evidence Act 1995 (Cth) s 18.

Australian Crime Commission v Stoddart (2011) 244 CLR 554; Commissioner of the Australian Federal Police v McGlone [2016] NSWCA 103; Commissioner of the Australian Federal Policev Zhao (2015) 255 CLR 46; Commonwealth v Helicopter Resources Pty Ltd (2020) 270 CLR 523; Lee v New South Wales Crime Commission (2013) 251 CLR 196; Onley v Commissioner of the Australian Federal Police (2019) 367 ALR 291; R v Independent Broad‑Based Anti‑Corruption Commissioner (2016) 256 CLR 459, discussed.

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Counsel
Applicant:	Mr D McLure SC with Ms C Ernst
Respondent:	Mr CG Juebner KC with Mr N Modrzewski
Solicitors
Applicant:	Criminal Assets Litigation, Australian Federal Police
Respondent:	Juris Nexus Lawyers

EMERTON P
PRIEST JA
TAYLOR JA:

Introduction and overview

This application concerns the ambit of s 266A(2) of the Proceeds of Crime Act 2002 (Cth) (‘Act’).
That provision permits the Commissioner of the Australian Federal Police (‘Commissioner’), in his capacity as the proceeds of crime authority under the Act,[1] to disclose coercively obtained information to specified authorities for specified purposes, relevantly, for the purpose of assisting in the investigation or prosecution of offences carrying a specified minimum term of imprisonment. Section 266A(2)(b) contemplates that a court may make an order prohibiting such disclosure (‘disclosure prohibition order’ or ‘quarantine order’).
[1]Act, s 338.
The respondent is not the subject of any criminal charges. Her husband, Fuhai Li, and his business associate, Fanwei Meng, are.
The Commissioner was granted a restraining order under the Act in respect of certain property suspected of being instruments of crime and of being owned by, or under the effective control of, Mr Li and/or Mr Meng.
The respondent has been ordered to compulsorily provide the Commissioner with information about her interest in, or dealings with, the restrained property and also about the affairs of Mr Li and Mr Meng.
The primary judge made a disclosure prohibition order with respect to that information — preventing its disclosure to authorities involved in the investigation and prosecution of Mr Li — and did so on the basis that to do otherwise would negatively impact the respondent’s relationship with her husband, children and community.
Two questions arise from the proposed grounds of appeal. First, whether a disclosure prohibition order can be made where the source of the coercively obtained information is not the subject of criminal proceedings. Second, whether a disclosure prohibition order can be made for reasons other than to avoid the risk of prejudice to a criminal trial.
For the reasons that follow, the disclosure prohibition order made by the primary judge must be set aside as it was not made on the basis permitted by the statute.

Statutory framework

The principal objects of the Act include to deprive persons of the proceeds and/or benefits of offences against the laws of the Commonwealth, to punish and deter persons from breaching such laws and to undermine the profitability of criminal enterprises.
To this end, the Act establishes a scheme to confiscate the proceeds of crime by:
(a) setting out the processes by which confiscation can occur (Chapter 2); and
(b)setting out ways in which Commonwealth law enforcement agencies can obtain information relevant to these processes (Chapter 3).
Confiscation processes in Chapter 2 include freezing orders (Part 2-1A), restraining orders (Part 2-1), forfeiture orders (Part 2-2), forfeiture on conviction of a serious offence (Part 2-3) and pecuniary penalty orders (Part 2-4).
Information gathering in Chapter 3 includes the following:
(a)examining any person about the affairs of people covered by examination orders (Part 3-1);
(b)requiring people, under production orders, to produce property-tracking documents or make them available for inspection (Part 3-2);
(c)requiring financial institutions to provide information and documents relating to accounts and transactions (Part 3-3);
(d)requiring financial institutions, under monitoring orders, to provide information about transactions over particular periods (Part 3-4); and
(e)searching for and seizing tainted property or evidential material, either under search warrants or in relation to conveyances (Part 3-5).[2]
[2]Act, s 8(1).
Section 8(2) records that ‘Chapter 3 also authorises disclosure, to certain authorities for certain purposes, of the information obtained’ under the Act.
Section 266A of the Act is in the following terms:
266A Disclosure
(1) This section applies if a person obtains information:
(a)    as a direct result of:
(i) the person being given a sworn statement under an order made under paragraph 39(1)(ca), (d) or (da); or
(ii)the exercise of a power (by the person or someone else), or performance (by the person or someone else) of a function, under Part 3-1, 3-2, 3-3, 3-4 or 3-5; or
(iii)the exercise of a power (by the person or someone else), or performance (by the person or someone else) of a function, under Division 2 of Part 4-1; or
(b) as a result of a disclosure, or a series of disclosures, under this section or clause 18 of Schedule 1.
(2) The person may disclose the information to an authority described in an item of the following table for a purpose described in that item if:
(a)   the person believes on reasonable grounds that the disclosure will serve that purpose; and
(b)   a court has not made an order prohibiting the disclosure of the information to the authority for that purpose.

Recipients and purposes of disclosure
Item	Authority to which disclosure may be made	Purpose for which disclosure may be made
…
2	Authority of the Commonwealth, or of a State or Territory, that has a function of investigating or prosecuting offences against a law of the Commonwealth, State or Territory	Assisting in the prevention, investigation or prosecution of an offence against that law that is punishable on conviction by imprisonment for at least 3 years or for life

Section 180(1)(c) of the Act provides, where a restraining order is in place, for an examination order to be made in respect of ‘any person’, including a person who has or claims to have an interest in the restrained property (s 180(1)(a)), a person who is a suspect in relation to the restraining order (s 180(1)(b)) or the spouse or de facto partner of the persons referred to in ss 180(1)(a) and (b).

History of the proceeding

Mr Li was arrested and charged on 15 July 2020 with dealing with proceeds of crime contrary to s 400.9(1) of the Criminal Code Act 1995 (Cth) (‘Criminal Code’). On 11 November 2020, he was charged with a further s 400.9(1) offence and also with aiding, abetting, counselling or procuring the production of a false document to a bank contrary to s 137(1) of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth). Mr Meng is the subject of similar charges.
On 4 December 2020, the Commissioner applied for restraining orders under ss 18 and 19 of the Act in respect of property suspected of being instruments of the money laundering offences and of being owned by, or under the effective control of, Mr Li and Mr Meng. The Commissioner’s application was supported by an affidavit sworn by Detective Leading Senior Constable Joanne Hopkins on 4 December 2020 (the ‘Hopkins affidavit’).
The restraining orders were made on 8 December 2020. The property restrained in respect of Mr Li consisted of $522,350 in cash (seized in various amounts from his person, his silver 2019 Toyota Lexus motor vehicle and the family home in Blackburn North), the Toyota Lexus motor vehicle and an interest in real property in Box Hill, Victoria.
On 19 January 2021, the Commissioner applied for:
(a)an order pursuant to s 39(1)(da) of the Act that the respondent give a sworn statement setting out the particulars of her interest in, or dealings with, the property the subject of the restraining orders (‘ancillary order’); and
(b)an order pursuant to s 180 of the Act that the respondent be examined about the affairs of Mr Li and Mr Meng (‘examination order’).
The respondent submitted to the primary judge that the orders sought by the Commissioner, if made, should be accompanied by an order under s 266A(2)(b) of the Act prohibiting the disclosure of information compulsorily acquired from the respondent to Commonwealth or State prosecutorial authorities for the purpose of ‘assisting in the prevention, investigation or prosecution’[3] of Mr Li and Mr Meng. In an affidavit affirmed 12 April 2021, she deposed to her unwillingness to be perceived to be assisting the criminal prosecution against her husband and her concerns about the impact of this on her relationship with him, her children and her community (the ‘respondent’s affidavit’).
[3]Act, s 266A(2), Item 2 of Table.
The disclosure prohibition order was sought on two bases.
First, the respondent herself was at a ‘real risk of charges’. She argued that this could be inferred from the information detailed in the Hopkins affidavit. A substantial amount of the cash suspected of being proceeds of crime had been seized from a walk-in wardrobe at the family home. Further, there was evidence of the tax affairs of both the respondent and her husband alongside a suggestion that the volume of cash available to them was inconsistent with the amount of tax declared. This included evidence of the tax affairs of a company, Hengda International Trade, of which the respondent was the sole director, secretary and shareholder. The Hopkins affidavit detailed that Li had told police in his record of interview that the cash seized was ‘part of the business money’. However, when questioned about the cash in the wardrobe, the respondent had told police she knew nothing about it. These circumstances indicated, it was argued, that the respondent faced a real — as opposed to fanciful — risk of a criminal prosecution.
Second, the prospect that the compulsorily acquired information from the respondent could be used to further the prosecution of her husband would amount to an abuse of process and be contrary to the rights of a spouse to object to giving evidence in a criminal prosecution under s 18 of the Evidence Act 1995 (Cth) (‘Evidence Act’). The respondent’s affidavit detailed that she would not voluntarily give evidence against her husband and would take every opportunity to object to doing so, to avoid being criticised by her relatives as disloyal and compromising her marriage.
The primary judge’s ruling
On 14 June 2022, the primary judge delivered his ruling[4] in respect of the applications. The judge granted the ancillary and examination orders and made a s 266A(2)(b) disclosure prohibition order as sought by the respondent. He determined that, balancing the parties’ competing interests, the respondent’s legitimate concerns about the impact of the derivative use of her information on her personal relationship with her husband, children and community necessitated the making of such an order.
[4]AFP v Li & Ors (Ruling) [2022] VCC 868 (Judge Dyer) (‘Ruling’).
It is necessary to set out the relevant portion of the judge’s reasoning:
[48] The circumstances of the present application would authorise a disclosure absent the court making a quarantine order[5] in accordance with s 266A(2)(b).
[49] A balancing exercise must weigh the negative impact of a quarantining order on the Commissioner’s ultimate pursuit of a forfeiture application as against the personal concerns of [the respondent], as set out in her affidavit.
[50] In my view there are legitimate concerns raised by [the respondent] in her affidavit impacting on her personal relationship with her husband, her children and within the broader community.
[51] It is not relevant to the exercise of my discretion that there is a possibility or even a probability that she may at some future time face criminal prosecution. That is not a matter raised in her affidavit and is purely speculative.
[52] If no quarantine order is made, then such information as may be provided by [the respondent] can be used derivatively by prosecution authorities in the outstanding criminal proceeding concerning her husband. Notwithstanding that such broad disclosure may be of some assistance in the overall purposes of the [Act], the material contained in Ms Hopkin’s (sic) affidavit provides an extensive basis underpinning the suspicions which were relevant to the initial restraint of assets and must now provide, at the very least, a significant pathway towards any criminal prosecution.
[53] In balancing the two competing arguments, I am satisfied that both the ancillary orders and examination orders in relation to [the respondent] should be quarantined in accordance with s 266A(2)(b) so as to quarantine any information obtained by the Commissioner from either the ancillary orders or the examination orders from being used either directly or derivatively by the prosecuting authority in the criminal trial of Mr Li.[6]
[5]As indicated at paragraph 2 above, the terms ‘quarantine order’ and ‘disclosure prohibition order’ are used interchangeably.
[6]Ruling, [48]–[51] (citations omitted).

Contentions of the parties in this Court

In an application dated 20 September 2022, the Commissioner’s proposed grounds of appeal were formulated as follows:
1.The primary judge erred in making a quarantine order by reference to item 2 of the table s 266A(2)(b) of the [Act] in circumstances where the person from whom evidence was to be obtained under compulsion was not the subject of a criminal charge.
2.The primary judge erred in making a quarantine order by reference to item 2 of the table s 266A(2)(b) of the [Act] for reasons unrelated to the risk of prejudice to any criminal trial.
On 25 October 2022, the respondent filed a notice contending that the Ruling should be affirmed on a ground of fact or law which was erroneously decided or not decided by the primary judge. The notice of contention articulated the following grounds:
1.The judge erred at [51] of the [Ruling] in determining that the ‘possibility or even a probability’ that the Respondent would at some future time be charged was not relevant to the exercise of the judge’s discretion under s.266A(2)(b) of the [Act]. Instead, the judge should have:
1.1 determined that the evidence disclosed a real risk that the Respondent would also be charged;
1.2 determined that this risk was relevant to the exercise of the judge’s discretion under s.266A(2)(b) of the [Act]; and
1.3 made a quarantine order on the basis of that risk.
2. If the judge did not have regard to the prejudice to the accused in determining to make the quarantine order (which is a matter that is not clear from [52]), the judge erred. Instead, the judge should have:
2.1determined that the disclosure of the coercively acquired information from the Respondent to the prosecution would give rise to prejudice to the accused in any criminal trial; and
2.2 made a quarantine order to avoid that prejudice.
A threshold issue
At the hearing of the matter the respondent, for the first time, questioned whether s 266A(2)(b) of the Act was the source of a court’s power to make a disclosure prohibition order, or whether it ‘merely acknowledged’ the existence of an inherent power that could be found elsewhere (‘threshold issue’).[7] The essence of this new argument was that if an inherent power was engaged — described by the respondent in oral submissions as ‘the better view’ — the Commissioner’s argument for a narrow construction of s 266A(2)(b) could not be accepted.
[7]The respondent did not raise this argument before the primary judge, or in her written material put before this Court. The premise of the submission was that ‘some clarification’ from this Court would be helpful.
The Commissioner submitted that the Court should not entertain the threshold issue. The respondent’s application to the primary judge for a disclosure prohibition order was premised on the basis that s 266A(2)(b) was the source of the power to make it. Further, the New South Wales Court of Appeal has recognised on at least two occasions that s 266A(2)(b) was the source of power for a quarantine order.[8] This Court should not depart from that position unless satisfied that it is ‘plainly wrong’.[9]
Discussion
[8]See Onley v Commissioner of the Australian Federal Police (2019) 367 ALR 291, 350 [238]–[240] (Bathurst CJ, Meagher JA agreeing at 392 [420]), 377 [363] (Basten JA); [2019] NSWCA 101 (‘Onley’); Commissioner of the Australian Federal Police v Elzein (2017) 94 NSWLR 700, 719 [76] (Basten JA, Beazley ACJ agreeing at 702 [3]).
[9]Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485, 492 (The Court); Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89, 151–2 [135] (The Court).
The respondent’s position before the primary judge was that the power to make a disclosure prohibition order was found in s 266A(2)(b). The order was expressly sought on that basis. Nothing in the material filed before the hearing of the application raised or addressed the question now posed by the respondent. Indeed, as is apparent from the notice of contention, the respondent submitted that the primary judge should have made the disclosure prohibition order pursuant to that section, but on different grounds.
Given the manner in which the issue arose, absent notice to the Commissioner and without the benefit of full argument, it is unnecessary to determine the issue.
Having said that, in Onley v Commissioner of the Australian Federal Police, Basten JA observed
Disclosure of information by a person who has obtained a sworn assets statement, or information provided as a result of the conduct of an examination, is constrained by reference to the persons to whom he or she may disclose the information, in accordance with s 266A of the Act. Section 266A is both permissive and restrictive; however, its effect may be varied by a court order prohibiting the disclosure of information even to a permitted authority: s 266A(2)(b). Although that provision envisages a court making an order prohibiting disclosure of information, it does not expressly confer jurisdiction on any court to make such an order. Nevertheless, by implication, it should be construed as having that function and should be read together with s 314(1), which confers jurisdiction on, relevantly, the Supreme Court, “with respect to matters arising under this Act.”[10]
[10]Onley (2019) 367 ALR 291, 355 [272] (Basten JA) (emphasis added).

We are not persuaded, without more, that the construction applied by Basten JA is plainly wrong.

Ground 2 — disclosure prohibition order unrelated to risk of prejudice to criminal trial

It is convenient to deal with the Commissioner’s second proposed ground of appeal first.

Commissioner’s submissions

The Commissioner argues that the primary judge erred in making a disclosure prohibition order for reasons wholly unrelated to the risk of prejudice to any criminal trial. The primary judge treated the exercise of his discretion under s 266A(2)(b) as a ‘balancing exercise’ in which the negative impact of a disclosure prohibition order on the Commissioner’s ultimate pursuit of a forfeiture application was weighed against the personal concerns of the respondent. The Commissioner submits that this approach finds no basis in the Act. In circumstances where the Act makes specific provision for the compulsory examination of spouses,[11] it may be inferred that the power to make a disclosure prohibition order should not subvert the common law position that the privilege against self-incrimination does not extend to spousal incrimination.[12] The judge consequently erred in importing a balancing test resembling that in s 18 of the Evidence Act absent a statutory foundation.
Respondent’s submissions
[11]Act, s 180(1)(c).
[12]Australian Crime Commission v Stoddart (2011) 244 CLR 554, 571 [41] (French CJ and Gummow J), 636–7 [231]–[232] (Crennan, Kiefel and Bell JJ); [2011] HCA 47.
The respondent submits that notwithstanding the inapplicability of the privilege of spousal incrimination to answers given in the course of an examination, her concerns are about the evidence that she might be required to give for the prosecution at her husband’s criminal trial. If she were to be called as a prosecution witness, the prosecution, if armed with the transcript of her examination, would enjoy a substantial forensic advantage in any objection hearing under s 18 of the Evidence Act. This would effectively amount to an abuse of process.
Further, the respondent submits that on a proper reading of the Ruling, the primary judge did, in the exercise of his discretion, consider prejudice to the criminal trial of Mr Li. His Honour noted that the respondent’s information could be used in the prosecution against her husband as well as that the Commissioner’s evidence disclosed ‘an extensive basis underpinning suspicions’[13] of unlawful conduct.[14] Thus the Commissioner’s argument that the primary judge made the disclosure prohibition order for reasons wholly unrelated to the risk of prejudice to any criminal trial should not be accepted.
[13]Ruling, [52].
[14]The respondent’s submissions did not specify whether the ‘unlawful conduct’ was in reference to the respondent, or her husband.
Alternatively, the respondent argued that if this Court were to reject such a reading of the Ruling, the Court should find, as set out in ground 2 of the notice of contention, that the judge erred in failing to regard the prejudice to Mr Li’s criminal trial that would arise from disclosure of the information coercively acquired from the respondent.

Analysis

It is axiomatic that the Act establishes a scheme to confiscate the proceeds of crime.[15] The mechanisms under the Act for the compulsory acquisition of information must be used for the purposes of the Act. Two of the principal objects of the Act[16] are:
(a) to deprive persons of the proceeds of offences, the instruments of offences, and benefits derived from offences, against the laws of the Commonwealth or the non-governing Territories; and
(c)to punish and deter persons from breaching laws of the Commonwealth or the non-governing Territories.
[15]Act, s 6.
[16]Act, s 5.
That the compulsory mechanisms used for these purposes produce information that incidentally assists in the prosecution of an offence is unsurprising. As Crennan J said with respect to the Criminal Assets Recovery Act1990 (NSW)
Recognition of the ancillary and purposive nature of an examination order directs attention to the nature and purpose of the principal proceedings in which such an order can be sought and made. The CAR Act is about recovering the fruits of criminal activity; that is why the principal proceedings are brought. The making of the confiscation order ultimately sought in the principal proceedings in which an examination order can be sought and made necessitates (in the case of an assets forfeiture order or a proceeds assessment order) a finding on the balance of probabilities of serious crime related activity or (in the case of an unexplained wealth order) a finding of a reasonable suspicion of serious crime related activity and a finding on the balance of probabilities of illegal activity. Information of use to the Commission in proceedings for a confiscation order will therefore always encompass information about the criminal activity alleged in the proceedings as the basis of the confiscation order sought.[17]
[17]Lee v New South Wales Crime Commission (2013) 251 CLR 196, 317–18 [328]; [2013] HCA 39.
In this context, s 266A allows the disclosure of information, including information relating to criminal activity, to specified persons for specified purposes. That is, it allows the disclosure of information for purposes beyond the confiscation of property.
Section 266A is permissive. It expressly allows for the disclosure of information obtained under the Act to, relevantly, prosecuting authorities for the purpose of investigations and prosecutions. It therefore contemplates the derivative use of that information against criminal accused. So much is plain from the purpose for which disclosure may be made to a prosecuting authority, as described in item 2 of the Table.
It is equally plain that the ability of the Commissioner to disclose compulsorily acquired information to prosecuting authorities is not unfettered. First, the Commissioner must believe on reasonable grounds that the disclosure will serve the purpose described in the Table.[18] Second, relevantly, the information must be reasonably believed to be of assistance in the prosecution of an offence of a certain calibre of seriousness.[19] Third, a court may, in the exercise of its discretion, make an order prohibiting the disclosure of the information.[20]
[18]Act, s 266A(2)(a).
[19]Act, s 266A, Item 2 of Table.
[20]Act, s 266A(2)(b).
Thus the default position is that in the expectation that information coercively acquired for the purposes of the Act will encompass, incidentally, information about the criminal activity alleged as the foundation of any particular order sought as part of the confiscation scheme established by the Act, that information can — without more — be disclosed to an investigating or prosecuting authority as long as it is believed on reasonable grounds that it will assist in the investigation or prosecution of an offence above a certain level of seriousness. In other words, the information has the character of being disclosable and is so precisely because it will assist an investigating or prosecuting authority to investigate or prosecute a criminal offence.
The possibility of a court making a discretionary disclosure prohibition order pursuant to s 266A(2)(b) does not alter the character of the information as disclosable, but rather effects a bar on it being disclosed for the statutory purpose of assisting in the investigation or prosecution of a criminal offence. It follows that in the absence of statutory criteria governing the exercise of that discretion, the matters relevant to its exercise must be concerned with prejudice arising in that criminal investigation or prosecution.
In particular, the discretion to make a disclosure prohibition order in s 266A(2)(b) does not admit of a balancing exercise in which the examinee’s personal concerns are given weight. Nothing in the text or purposes of the Act supports such a notion.
Further, if it were otherwise, the practical effect would be that examinees could, almost universally, defeat the default disclosures authorised in the Table under s 266A(2).
The Commissioner submitted that this narrow reading of s 266A(2)(b) is further reinforced by the legislative history of the provision.
Section 266A(2)(b) was inserted into the Act following Commissioner of the Australian Federal Police v Zhao.[21] In that case criminal charges were laid against an accused and a restraining order was made over his property on the same day. The High Court upheld a stay of the forfeiture proceedings under the Act having regard to the risk of prejudice to the accused’s criminal trial.[22] Section 266A, in the form in which it then was, did not prohibit the disclosure of evidence obtained from the accused under compulsion to the prosecution.[23] In defending the forfeiture proceedings, it was necessarily the case that the accused would disclose information relevant to the criminal charges. That is, the accused was effectively ‘placed in a position where he must decide whether to prejudice his criminal trial or his defence of the forfeiture proceedings and his case in the exclusion proceedings’.[24] The High Court considered that the accused should not be forced to so elect. This followed from the companion principle to the onus of proof borne by the prosecution, namely, that an accused cannot be compelled to assist the prosecution in discharging that onus.[25]
[21](2015) 255 CLR 46; [2015] HCA 5 (‘Zhao’).
[22]Zhao (2015) 255 CLR 46, 61 [48]–[50] (The Court).
[23]Ibid, 60 [46].
[24]Ibid, 55 [19].
[25]Ibid, 54–5 [18].
The Crimes Legislation Amendment (Proceeds of Crime and Other Measures) Bill 2015 (Cth) (‘Bill’) consequently amended s 266A(2)(b) and inserted new s 319, sub-ss (1)–(5). Section 319(1) states that the court may stay civil proceedings under the Act if it considers that it is in the interests of justice to do so. Sub-sections (2)–(5) specify when a court must not grant a stay. The Explanatory Memorandum to the Bill states that the amendments were designed to
clarify the intention that concurrent civil and criminal proceedings are possible, and require specific consideration of the individual circumstances and associated risks of prejudice. The amendments clarify that proceedings under the Act may only be stayed where the granting of a stay is the only means of addressing the circumstances (i.e. the prejudice that may result to a concurrent or subsequent criminal trial). The proposed amendments are primarily designed to ensure that the court will consider the individual circumstances of the proceedings, including the nature of the overlap between the civil and criminal proceedings, and prevent the risk that a person need only claim a risk of prejudice but not provide evidence explaining the nature of that risk.[26]
[26]Explanatory Memorandum, Crimes Legislation Amendment (Proceeds of Crime and Other Measures) Bill 2015 (Cth) 11 [49].
The Explanatory Memorandum illustrates that the mischief to which s 319 is directed is prejudice arising in criminal proceedings.
Turning to the arguments advanced by the respondent that prejudice to Mr Li’s trial would arise from the disclosure of the information, it is submitted that the personal concerns of the respondent are relevant to the exercise of the discretion because there will be a resulting abuse of process in her husband’s criminal trial. That argument must be rejected.
Insofar as it is contended that in Mr Li’s criminal trial the prosecution will be better able to argue against a s 18 Evidence Act objection by the respondent, not only does this submission involve speculation as to the occurrence of a number of future events — that there will be a trial, that the respondent will be called as a witness, that she will object to giving evidence — but there is little reason to assume that in the event of all of those things occurring, the prosecution would have a forensic advantage. In determining the nature of the evidence she could give for the purpose of adjudicating a s 18 objection, it is likely that a trial judge would have the respondent examined on the voir dire rather than merely rely on the transcript of a compulsory examination under the Act. Moreover, even if there was some advantage to the prosecution in having access to the disclosed information, the magnitude of the advantage is no more than slight.
The respondent’s alternative submission, that paragraph 52 of the primary judge’s reasons should be read as indicating that he did in fact have regard to the prejudice that would be caused to Mr Li’s trial by the disclosure of the information, must also be rejected. If the respondent were to be called as a prosecution witness in any future trial of her husband and gave evidence incriminating him, that is not a prejudice against which the law seeks to guard, as it is neither unfair nor impermissible.
It follows that the second ground raised in the respondent’s notice of contention must also be rejected. Any evidence given by the respondent in her husband’s potential future criminal trial inculpating him would not cause prejudice to his trial process.
In advancing the above arguments, the respondent relied on the decision of the New South Wales Court of Appeal in Commissioner of the Australian Federal Police v McGlone,[27] where the wife of one of two criminal accused was to be examined in relation to restrained property pursuant to the Act. Beazley P said:
In circumstances where Mrs McGlone has not adduced any evidence as to why an order for examination should not be made, the Court is left to determine the matter having regard to the matters about which there was no dispute or which may reasonably be inferred from the circumstances. Those factors are, essentially, that Mrs McGlone may have knowledge or information about the monies in respect of which her husband has been charged; that any evidence that she gave would not be protected by direct or derivative use immunity in respect of the use of any information in the criminal trial of Mr McGlone and Mr McKell; that the Commissioner has delayed in bringing the application; and that, for the reasons I give above at [103]–[106], the Commissioner will not be prejudiced if a decision as to whether an examination should be ordered is deferred until after the criminal trial.
It can be readily inferred that Mrs McGlone will be questioned, inter alia, about her knowledge of the money found in the home and presumably about the money in Mr McKell’s possession. As I have already explained, the s 400.9 offence with which Mr McGlone and Mr McKell are charged is an offence of strict liability. Mrs McGlone’s evidence given in an examination would not be protected by any direct or derivative use immunity in respect of the criminal proceedings against Mr McGlone and Mr McKell and could, pursuant to s 266A, be made available to the prosecution. Should that occur, the conduct of their respective defences would, almost inevitably, be prejudiced.[28]
[27][2016] NSWCA 103 (‘McGlone’).
[28]Ibid, [133]–[134].
However, in McGlone, the issue of prejudice in the trial of the two accused arising from the disclosure of the information compulsorily acquired from Mrs McGlone was not in issue before the Court as the Commissioner consented to the making of the disclosure prohibition order. The reasons for the Commissioner’s consent are unknown and immaterial. McGlone is therefore not authority for the proposition that direct or derivative use of information obtained under the Act from a spouse of an accused would cause prejudice in his or her criminal trial.[29]
[29]Coleman v Power (2004) 220 CLR 1, 44 [79] (McHugh J); [2004] HCA 39.
The primary judge erred in conducting a balancing exercise of irrelevant matters. The discretion exercisable under s 266A(2)(b) required an assessment of whether the disclosure of the obtained information pursuant to the ancillary order and the examination order would occasion an unacceptable risk of impermissible prejudice to any criminal trial. The judge made no such assessment.
Proposed ground 2 is made out.

Notice of contention ground 1 — possibility of future charges

It is then necessary to address the respondent’s first ground in the notice of contention. It may be done shortly.
The judge was correct to find that the risk of the respondent being charged was purely speculative. The Hopkins affidavit details the Commissioner’s suspicions against Mr Li in relation to the restraining orders sought against him. There is nothing in that affidavit — or in the respondent’s affidavit — that could found the risk of the respondent being charged as any more than conjecture.
That being so, it is unnecessary to consider the position if the risk was less than speculative. Having said that, in R v Independent Broad-Based Anti-Corruption Commissioner[30] the High Court declined to extend the companion principle to pre-charge investigations because that would ‘extend its operation beyond the rationale identified in the authorities, namely, the protection of the forensic balance between prosecution and accused in the judicial process as it has evolved in the common law.’[31] Moreover, in Commonwealth v Helicopter Resources Pty Ltd[32] the High Court held that the companion principle was not engaged even where s 87(1)(b) of the Evidence Act had the effect that representations by a potential witness (an employee of a company) in a compulsory examination may be taken as admissions by the accused in the criminal proceedings (the company). The Court rejected the notion that
[Where] an otherwise lawful compulsory investigative procedure may result in a witness making representations that can be treated as an admission against an accused in subsequent criminal proceedings, the deployment of that procedure amounts, without more, to a breach of the companion rule or other interference with the accusatorial system of criminal justice. To the contrary, as this Court made clear in R v Independent Broad-Based Anti-Corruption Commissioner, if a compulsory investigative procedure is sufficiently authorised by statute, it may be invoked notwithstanding that, as a matter of practical reality, the result will fundamentally alter the ability of an accused to defend charges that may have been or may be laid against him or her.[33]
[30](2016) 256 CLR 459 (The Court).
[31]Ibid, 473 [48].
[32](2020) 270 CLR 523 (The Court).
[33]Ibid, 535–6 [22].
Ground 1 — no criminal charges laid against examinee
In the circumstances of this case, it is unnecessary to address the Commissioner’s first ground of appeal. Although the argument in support of it was advanced before the primary judge, it was not the subject of any analysis in the Ruling and played no part in the erroneous ‘balancing test’ performed by the judge.
Conclusion
We would grant leave to appeal on ground 2, allow the appeal and set aside order 3 of the County Court of Victoria’s orders of 9 August 2022.

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[2023] VSCA 271

9 November 2023