Commissioner of the Australian Federal Police v Yang

The case of Commissioner of the Australian Federal Police v Yang involved the Commissioner of the Australian Federal Police appealing against a decision made by the County Court of Victoria. The respondent, Yang, was the subject of examination and ancillary orders under the Proceeds of Crime Act 2002 (Cth). The central issue in the case was whether a disclosure prohibition order could be made in respect of an examinee who had not been charged with criminal offences and whether such an order could be made for reasons unrelated to the risk of prejudice of a criminal trial.

The primary judge had made a disclosure prohibition order under section 266A of the Proceeds of Crime Act 2002 (Cth) over information to be obtained from Yang, conducting a 'balancing exercise' considering her personal concerns about potentially giving evidence against her husband. The court was required to determine whether the primary judge erred in making the order for reasons unrelated to the risk of prejudice of a criminal trial. The court found that the primary judge indeed erred, leading to the granting of leave to appeal and the allowance of the appeal, which set aside the order made by the County Court of Victoria.

The court reasoned that the authority for making a disclosure prohibition order under the Proceeds of Crime Act 2002 (Cth) is limited to cases where the examinee is charged with a criminal offence, or there is a risk of prejudice to the examinee or a third party in a criminal trial. The court held that the primary judge’s decision was based on considerations unrelated to the risk of prejudice of a criminal trial, which was a misapplication of the law. Consequently, the appeal was allowed, and the order was set aside. This outcome underscores the importance of ensuring that the criteria for making such orders are strictly adhered to, particularly in relation to the risk of prejudice in criminal proceedings.