Commissioner of the Australian Federal Police v Zayneh

SUPREME COURT OF VICTORIA

COURT OF APPEAL

S EAPCI 2024 0023

THE COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE	Applicant
v
DANNY ZAYNEH & ORS (according to the attached schedule)	Respondents

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JUDGES:	KENNEDY, LYONS and KAYE JJA
WHERE HELD:	Melbourne
DATE OF HEARING:	19 March 2025
DATE OF JUDGMENT:	8 April 2025
MEDIUM NEUTRAL CITATION:	[2025] VSCA 65
JUDGMENT APPEALED FROM:	Zayneh and Ors v Commissioner of the Australian Federal Police (Ruling) [2023] VCC 2358 (Judge Fraatz)

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PROCEEDS OF CRIME – Appeal from County Court ruling granting stay of proceedings brought under Proceeds of Crime Act 2002 (the ‘POC Act’) – First respondent charged with conspiracy to import commercial quantity of border-controlled drugs, trafficking border-controlled drug, and dealing with proceeds of crime (‘criminal proceeding’) – Second respondent wife of, and shares assets with, first respondent – Applicant filed forfeiture applications against respondents under s 47 of POC Act – Respondents filed applications under s 74 of the POC Act for exclusion from forfeiture of restrained property – Respondents filed application that forfeiture applications and exclusion applications (‘POC proceedings’) be stayed until determination of criminal proceeding – Judge granted stay application – Whether judge erred by considering matters excluded by s 319(2) of POC Act – Whether judge correct to find that stay of POC proceedings in the interests of justice – Criminal proceeding based on evidence of communications to and by the first respondent using ‘AN0M’ application – Communications sent using ‘AN0M’ application copied and directed to servers accessible by applicant without users’ knowledge – ‘AN0M’ messages sent by first respondent potentially relevant to POC proceedings – Admissibility issues of ‘AN0M’ messages complex and multi-faceted – Criminal jurisdiction most appropriate forum to consider admissibility issues – Open to judge to consider delay and cost first respondent would incur if admissibility issues litigated in POC proceedings – Application for leave to appeal allowed – Appeal dismissed.

Proceeds of Crime Act 2002 (Cth), ss 17, 18, 47, 73, 74, 92, 180, 196, 197, 266A, 319, 319A, 338; Criminal Code Act 1995 (Cth), ss 11.5, 307.1, 400.9; Telecommunications (Interception and Access) Act 1979 (Cth), s 7; Open Courts Act 2013, s 28, considered – Firearms Act 1996 (Cth), s 7; Crimes Legislation Amendment (Proceeds of Crime and Other Measures) Act 2016 (Cth); Surveillance Legislation (Confirmation of Application) Act 2024 (Cth); Evidence Act 2008, s 138, referred to.

Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46; Zhaov Commissioner of the Australian Federal Police (2014) 43 VR 187; Onley v Commissioner of the Australian Federal Police (2019) 367 ALR 291; Commissioner of the Australian Federal Police v Elzein (2017) 94 NSWLR 700; Questions of Law Reserved (Nos 1 and 2 of 2023) [2024] SASCA 82; R v Robertson [2024] NSWDC 528; Commissioner of the Australian Federal Police v Yang [2023] VSCA 271, considered.

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Counsel
Applicant:		Mr D McLure SC with Mr D Billington SC
Respondents:		Dr E Kelly with Mr E Fryar
Solicitors
Applicant:	Australian Federal Police
Respondents:	Lewenberg & Lewenberg Solicitors

KENNEDY JA
LYONS JA
KAYE JA:

The applicant seeks leave to appeal a decision of a judge of the County Court to stay proceedings, under the Proceeds of Crime Act 2002 (Cth) (‘the POC Act’), involving the respondents (‘the POC proceedings’).

Background circumstances

On 7 June 2021, the first respondent, Danny Zayneh (‘Zayneh’) was charged with two charges of conspiring, between 31 March 2021 and 7 June 2021, to import a commercial quantity of a border-controlled drug, contrary to ss 11.5(1) and 307.1(1) of the Criminal Code Act 1995 (‘Criminal Code’).
On 19 July 2021, Zayneh was further charged with one charge of trafficking a border-controlled drug (contrary to s 302.2(1) of the Criminal Code), one charge of dealing with proceeds of crime (s 400.6(1) of the Criminal Code), and one charge of possessing a handgun without a licence (Firearms Act 1996 s 7(1)).
There are six co-accused, who are charged in respect of the two conspiracy charges brought against Zayneh. The criminal prosecution of Zayneh is part of a police operation named ‘Operation Ironside’. A key aspect of that operation was the deployment and monitoring, by law enforcement authorities, of encrypted communications software, known as AN0M, which was alleged to have been used by organised crime. Encrypted messages on that platform are central to a number of the prosecutions arising from Operation Ironside.
On 11 June 2021, the County Court made orders under s 18 of the POC Act (‘the first restraining orders’), restraining certain assets of Zayneh, and of his wife, the second respondent, Agnes Szwedzik (‘Szwedzik’). The orders restrained a number of items of property, which included bank accounts, real estate, an interest in Queensland real estate, and motor vehicles held in the name of either Zayneh, Szwedzik, or two companies, namely, the third respondent, DTZ Property Investments Pty Ltd (‘DTZ’), and the fourth respondent, D & A Project Consultants Pty Ltd (‘D & A’). At the time of the first restraining order, Zayneh was the sole director, secretary and shareholder of DTZ and D & A and, accordingly, the property of each of those companies was subject to his effective control.
The first restraining orders were made ex parte on the basis of an affidavit dated 11 June 2021 of Susanne Margaret Aitken (‘Ms Aitken’), a member and Federal Agent of the Australian Federal Police stationed within the Criminal Asset Confiscation Task Force of the Australian Federal Police. Ms Aitken deposed that, based on intercepted communications through the encrypted platform AN0M, she suspected: that each of seven suspects, one of whom was Zayneh, had conspired to import a commercial quantity of border-controlled drugs (namely, methamphetamine and cocaine) into Melbourne; and that Zayneh and one other suspect, Omar Dib (‘Dib’), had been engaged in previous importations of commercial quantities of a border-controlled drug into Australia, and had dealt with money or property reasonably suspected of being the proceeds of indictable crime and valued at over $100,000, contrary to s 400.9(1) of the Criminal Code. Ms Aitken also deposed that she suspected that Szwedzik had committed a money laundering offence.
On 6 July 2021, the Commissioner of the Australian Federal Police filed applications seeking forfeiture orders under s 47 of the POC Act in respect of the property that was the subject of the first restraining order.
The forfeiture application against Zayneh was directed to assets in his name, and also assets in the names of DTZ[1] and D & A. The ground, on which the application was made, was that Zayneh had committed serious offences within the meaning of s 338 of the POC Act, comprising two conspiracies to import commercial quantities of border-controlled drugs, and one offence of dealing with money, the value of which was $100,000 or more, that was reasonably suspected to be the proceeds of crime contrary to s 400.9(1) of the Criminal Code.
[1]While DTZ is not named in the forfeiture application, based on DTZ’s application for exclusion order, it would appear that DTZ has an interest in the Essex Street Properties which were the subject of the 6 July 2021 forfeiture application.
The forfeiture application in respect of Szwedzik was made on the basis that Szwedzik had committed a serious offence within the meaning of s 338 of the POC Act, namely, dealing with money, the value of which was $100,000 or more, that was reasonably suspected to be the proceeds of crime.
On 7 December 2021, the County Court made further restraining orders against Zayneh and Szwedzik, pursuant to s 18 of the POC Act (‘second restraining orders’), over three wrist watches (alleged to belong to Zayneh and Szwedzik) and a 2015 Mercedes Benz vehicle, registered in the name of Szwedzik. The orders were made on the basis of a further affidavit of Ms Aitken dated 23 November 2021. In the affidavit, Ms Aitken again deposed that, for the reasons set out in her earlier affidavit, she suspected: that Zayneh (and others) had conspired to import a commercial quantity of border-controlled drugs (namely, methamphetamine and cocaine) into Melbourne; that Zayneh and Dib had engaged in previous importations of commercial quantities of a border-controlled drug into Australia, and had dealt with money or property reasonably suspected of being the proceeds of indictable crime and valued at over $100,000; and that Szwedzik had also committed a money laundering offence.
On 9 December 2021, the respondents filed applications, under s 74 of the POC Act, for exclusion from forfeiture of all the restrained property, save for the sum of $40,000 cash (which had been found hidden inside a coffee machine). Each of the exclusion applications were in common form. They recited that the particular applicant was a person who had an interest in certain of the restrained property, and that that interest was not the proceeds of any unlawful activity, nor an instrument of any serious offence.
On 10 December 2021, the applicant (‘the Commissioner’) filed applications, seeking forfeiture orders, under s 47 of the POC Act, in respect of the property restrained under the second restraining order.
On 30 May 2022, the respondents filed an application, seeking an order, pursuant to s 319 of the POC Act, that the POC proceedings be stayed until the criminal charges against Zayneh are fully determined or withdrawn.
Subsequently, on 29 August 2022, the Commissioner filed an application under s 180 of the POC Act in respect of an examination of Zayneh and Szwedzik.
Before the hearing of the stay application, the respondents conceded that the examination orders could and should be made. Accordingly, the stay application was refined to seek a stay of the various forfeiture and exclusion applications.

Evidence on stay application

In support of the stay application, the respondents relied on an affidavit of Justin Riazaty, a law clerk employed by the respondents’ solicitors, and an affidavit of Alex Lewenberg, the principal lawyer of the respondents’ solicitors.
Mr Riazaty, in his affidavit, noted that a central aspect of the defence of the criminal charges against Mr Zayneh involved a challenge to the admissibility of the AN0M messages. He also noted that if the POC proceedings progressed to trial before the conclusion of the criminal proceeding, the admissibility of the same messages would also be challenged. He deposed that dealing with the admissibility of the AN0M messages in the POC proceedings would create a substantial burden in circumstances in which the same issue is central in the criminal prosecution.
Mr Riazaty further stated that a very significant amount of costs was being incurred in the disclosure stages of the criminal prosecution, and that it was estimated that the costs to be incurred by Zayneh in respect of those issues alone in the criminal proceeding would amount to approximately $575,200. Accordingly, if the same issues were required to be agitated in the POC proceeding, there would be a substantial duplication of Court time and costs. Mr Riazaty also noted that if the POC proceedings were not stayed, Zayneh would need to choose between exercising his right to silence, or, on the other hand, waiving that right, and thus compromising his defence in the criminal proceeding.
Mr Riazaty estimated that the costs of defending the criminal proceeding would amount to $1,425,000. He also estimated that if the POC proceedings were required to progress, the costs associated with them would amount to some $400,000. He deposed that he had been advised, by Zayneh and Szwedzik, that they did not consider it would be possible for them to borrow the moneys required to conduct the POC proceedings and also fund the defence of the criminal charges concurrently. However, they considered it likely that they would be able to fund their defence in the POC proceedings once the criminal proceedings had been concluded.
Mr Lewenberg, in his affidavit, confirmed the cost estimates, provided by Mr Riazaty, and outlined the status of the criminal proceeding.
In response to the stay application, the Commissioner relied on an affidavit by Mr Stephen Fry, the Commander, Criminal Assets Confiscation, of the Australian Federal Police. In the affidavit, Mr Fry, in some detail, described the steps, taken within the section entitled ‘Criminal Assets Litigation’, and within the Australian Federal Police (‘AFP’), to ensure that information obtained by Criminal Assets Litigation is not disclosed, inadvertently or otherwise, to other sections, including Criminal Assets Investigation.
Mr Fry also deposed that if the POC proceedings are stayed for a material period of time, the Commissioner would not be able to progress the proceeds of crime investigation, which would limit his ability to: determine the nature and scope of benefits that may have been derived by Zayneh, Szwedzik or others by illegal or unlawful means; identify and, if appropriate, restrain other property of Zayneh and Szwedzik about which the Commissioner is presently unaware; and prevent Zayneh and other persons taking steps to dissipate any relevant property not yet identified by the Criminal Assets Confiscation Task Force of the AFP.

Submissions on the stay application

In submissions in support of the stay application before the primary judge, counsel for the respondents relied on a number of factors, including the following:
(1)If the POC proceedings were heard before the criminal proceeding, the respondents would be forced to challenge the admissibility of the AN0M messages in both proceedings at considerable cost, duplication of court time and costs, and at the risk of inconsistent findings.
(2)The burden of funding a defence of both proceedings concurrently would be crushing, and the respondents would need to decide which proceeding should be given priority in that respect.
(3)The requirement, that Zayneh give evidence in the POC proceeding, as to the sources and funding of the restrained property, without any direct use immunity, would fundamentally alter the accusatorial criminal process and prejudice him in the criminal proceeding.
(4)Other than the issue of delay, the Commissioner had not pointed to any prejudice, which would be occasioned by a stay of the proceeding. In particular, there was no basis to consider that any of the restrained assets would diminish in value. No management of those assets would be required, and no particular burden would be cast on the Commonwealth by reason of its ongoing management of those assets.
(5)While the POC Act allows for orders closing the Court (s 319A), there was no reason to consider that such an order would be made by another judge in the future. While some protection might be gained from a ‘quarantining order’ under s 266A of the Act, such an order would not alleviate the risk arising from the affidavit material filed in support of the exclusion applications, or oral evidence given on it, being used against Zayneh in furtherance of the criminal prosecution.
(6)None of the factors specified in s 319(6) of the Act pointed to any pressing need to progress the POC proceedings.

Summary of reasons of primary judge

The judge commenced his reasons by noting that, as a result of the amendment of s 319 of the POC Act by the Crimes Legislation Amendment (Proceeds of Crime and Other Measures) Act 2016, the applicants were required to demonstrate more than systemic prejudice of the kind previously accepted as being sufficient to justify the grant of a stay of POC proceedings.[2] His Honour noted that prejudice to the conduct of the defence must be demonstrated, which must be ‘real and acute’, as distinct from merely theoretical.[3] The judge thus recognised that while it was not in dispute that Zayneh would suffer inchoate or systemic prejudice if the stay were not granted, that consideration was not sufficient to justify the grant of the stay.[4]
[2]Zayneh & Ors v Commissioner of the Australian Federal Police (Ruling) [2023] VCC 2358 (‘Reasons’) [47], [60].
[3]Ibid [54(d)].
[4]Ibid [60].
The judge then considered the question of any potential prejudice to the Commissioner if a stay were granted. His Honour noted that it was unlikely that the Commissioner would seek to have his application for forfeiture orders under s 47 of the POC Act determined during, or before, the conclusion of the criminal proceedings, as Zayneh was facing charges, which were such that, upon conviction, automatic forfeiture under s 92 of the POC Act would operate. Accordingly, apart from the question of delay, the Commissioner had not established any other material prejudice if a stay were granted.[5] In that respect, the judge noted the concession, by Zayneh and Szwedzik, that they would submit to s 180 examinations.[6] The judge further noted that no order had been made for the custody or control of the real estate that was the subject of a restraining order, and that no burden was cast on the Commissioner in respect of the ongoing management of any of the assets subject to those orders.[7] Thus, apart from delay, no significant prejudice had been established by the Commissioner if a stay were granted.[8]
[5]Ibid.
[6]Ibid [78].
[7]Ibid [84]–[87].
[8]Ibid [88].
The judge then considered the question of prejudice to the respondents if a stay were not granted. In that respect, his Honour noted that closing the Court, pursuant to s 319A of the POC Act, would be a significant departure from the principles of open justice, and that, ordinarily, such an order is not made, other than in exceptional circumstances. Thus, the judge was not satisfied that the prejudice to Zayneh, being cross-examined in the civil proceedings in relation to the restrained property, and associated matters, could be overcome by means of an order to close the Court under s 319A. In reaching that conclusion, his Honour also took into account the possibility of inadvertent disclosure.[9] The judge also accepted the submission by the respondent that whilst some protection may be gained from an order under s 266A of the Act quarantining compulsorily acquired material, such an order does not obviate the risk that affidavit material, filed in support of exclusion applications, or oral evidence given at the trial of that application, may be used against Zayneh in furtherance of the criminal prosecution.[10]
[9]Ibid [92]–[94].
[10]Ibid [95].
The judge noted that there is a ‘substantial overlap’ between Zayneh’s criminal charges and the POC proceedings.[11] Each exclusion application is made on the ground that the relevant property was not the proceeds of unlawful activity or an instrument of offending. In each proceeding, the AN0M messages would be of central relevance in establishing the underlying circumstances in which the exclusion applications would be determined. The judge rejected the submission, by the Commissioner, that it was speculation that the AN0M messages would be relied on in support of the Commissioner’s forfeiture application. His Honour was satisfied that that evidence was relevant to the assertion, by the Commissioner, that the restrained property was not lawfully obtained or was an instrument of the earlier offending.[12]
[11]Ibid [96].
[12]Ibid [96]–[101].
The judge also referred to the prejudice to the respondents in relation to the costs of contesting the admissibility of the AN0M messages in both proceedings. He noted that that burden would be very significant. Further, to require the respondents to file material for the exclusion applications would create an unacceptable risk of compromise to Zayneh’s criminal proceedings. In particular, Zayneh would need to make a forensic decision to either preserve his right to silence to the prejudice of the exclusion applications, or to file evidence in the exclusion applications to the prejudice of his criminal trial.[13]
[13]Ibid [103]–[106].

The judge thus concluded:
Whilst not sufficient on its own, I find that in the particular circumstances of:
(a)the scale and complicated nature of Operation Ironside;
(b)the difficulty in determining whether Mr Zayneh has engaged in criminal behaviour, reflected in the inordinate delays in the criminal proceeding;
(c)the central importance of the AN0M intercepts in Mr Zayneh’s criminal trial;
(d)the cost and time involved in Mr Zayneh’s objections to the admissibility of that evidence in the criminal proceeding;
(e)the undesirability of a multiplicity of proceedings – civil and criminal – if the stay is not granted and the applicants are forced to challenge the admissibility of evidence in the [POC Act] proceedings; and
(f)the delay, cost and financial strain if the admissibility issues are litigated in the [POC Act] proceedings, which is likely to divert resources from and may therefore prejudice the criminal defence;
resolve into a finding that it is in the interests of justice to grant a stay.[14]
[14]Ibid [107].
The judge also considered that it was not in the interests of justice for the Court to allocate resources to determine the admissibility of the AN0M messages in the POC proceedings when the outcome of the same or similar arguments in the criminal proceedings would be likely to determine that issue for the purposes of the forfeiture proceeding.[15]
[15]Ibid [108].
In considering the position of Szwedzik, DTZ and D & A, the judge noted that Zayneh and Szwedzik have a joint interest in some of the property that was the subject of the restraining order, so that if a stay were not granted, Szwedzik would be exposed to separate proceedings and costs in those proceedings in which the issues would be similar to those in the criminal proceeding.[16] His Honour considered that the criminal charges against Zayneh were ‘inextricably linked’ to each of the other three respondents’ exclusion applications, both in a factual and practical context, so that it would be artificial to quarantine issues relating to them, when the criminal charges and the admissibility of the AN0M messages had not been determined. Thus, his Honour did not consider it in the interests of justice that Zayneh’s exclusion application be heard separately from the applications by each of the other three respondents.[17]
[16]Ibid [116].
[17]Ibid [119], [123].

Grounds of appeal

The Commissioner relies on six proposed grounds of appeal in support of the application for leave to appeal, namely:
1.The primary judge granted the stay on grounds prohibited by POCA s 319(2).
2.The primary judge incorrectly held that the possibility of unarticulated objections to the admissibility of certain evidence referred to as ‘the AN0M messages’ gave rise to prejudice that would justify a stay.
3.The primary judge’s decision to stay the proceedings was premature.
4.The primary judge incorrectly found that Zayneh’s criminal trial could be prejudiced by Szwedzik giving evidence in these proceedings.
5.The primary judge failed to give effect to ss 319(6)(e) and 319A of the [POC Act].
6.The primary judge incorrectly found that the possibility that, in related criminal proceedings, the prosecutor might rely on tendency evidence, and that this possibility justified the stay.

Statutory provisions

Sections 17 and 18 of the POC Act provide for the making of a restraining order in cases where (inter alia) a person has been charged with an indictable offence, or there are reasonable grounds to suspect that the person has committed a serious offence. Sections 17(2)(c) and 18(2)(c) provide that the order must specify, as property that must not be disposed of or otherwise dealt with, property of that person, or property of another person that is subject to his or her effective control.
The forfeiture application by the Commissioner is brought under s 47 of the POC Act, which provides that a court with proceeds of crime jurisdiction must make an order that property specified in a restraining order is forfeited to the Commonwealth if (inter alia) 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 (as defined by s 338 of the Act).
The exclusion applications by the four respondents were each brought under ss 73 and 74 of the Act. Section 73(1) provides that a court must make an order excluding a specified interest in property for forfeiture if (inter alia) the court is satisfied that the applicant’s interest in the property is neither proceeds nor instrument of any of the offences to which the forfeiture order or forfeiture application relates.[18] Section 76 provides that an application for an exclusion order must not be heard until the responsible authority has had a reasonable opportunity to conduct examinations in relation to that application.
[18]Section 73(1)(d).
Section 92(1) provides for automatic forfeiture of restrained property on conviction in the following terms:
(1)Property is forfeited to the Commonwealth at the end of the period applying under subsection (3) if:
(a)a person is convicted of a *serious offence; and
(b)either:
(i)at the end of that period, the property is covered by a *restraining order under section 17 or 18 against the person that relates to the offence; or
(ii)the property was covered by such a restraining order against the person, but the order was revoked under section 44 or the property was excluded from the order under that section; and
(c)the property is not subject to an order under section 94 excluding the property from forfeiture under this Part.[19]
[19]The asterisked terms are defined in s 338 of the POC Act.
Part 3-1 of the POC Act provides for the conduct of examinations relating to restraining orders and applications for exclusion. Section 180(1) provides that the court, that has made a restraining order, may make an order for examination of persons, including a person whose property is, or a person who has or claims an interest in property that is, the subject of a restraining order, and the spouse or de facto partner of any such person. Section 180A provides that, if an application is made for exclusion from forfeiture, the court, to which the application is made, may make an order for examination of any person, including a person who has or claims an interest in the property, or the spouse or de facto partner of that person.
Sections 196(1) and s 197(2), in effect, provide that a person may not refuse to answer a question on such an examination on the ground that the answer would tend to incriminate the person, or expose that person to a penalty. Section 198 provides that an answer given, or document produced, at such an examination is not admissible in evidence in civil or criminal proceedings, except in certain stipulated circumstances which are not relevant to the POC proceedings.
The stay application by the respondents is brought under s 319 of the Act, which provides:
Stay 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.
Section 319A of the Act is relevant to the current application. It provides for a hearing of an application under the Act in a closed court in the following terms:
Closed court
A court may order that proceedings under this Act (other than criminal proceedings) be heard, in whole or in part, in closed court if the court considers that the order is necessary to prevent interference with the administration of criminal justice.
Section 319 was amended to its current form, and s 319A introduced, by the Crimes Legislation Amendment (Proceeds of Crime and Other Measures) Act 2016 (Cth) sch 1 in response to the decision of the High Court in Commissioner of the Australian Federal Police v Zhao.[20] At the time of that decision, s 319 of the POC Act provided:
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.
[20](2015) 255 CLR 46; [2015] HCA 5 (‘Zhao’).
In Zhao, Xing Jin (‘Jin’) was charged with aiding and abetting another to deal with money or property that was the proceeds of crime. Jin’s wife, Qing Zhao (‘Zhao’), was not charged with any offence. Jin and Zhao were respondents to a forfeiture proceeding brought by the Commissioner of the Australian Federal Police in respect of their family home. Zhao and Jin applied for a stay of the forfeiture proceedings until completion of the criminal charges against Jin. At first instance, that application was refused. This Court allowed the appeal of Zhao and Jin and stayed the forfeiture proceedings until completion of the criminal proceedings against Jin.[21] On appeal by the Commissioner, the decision of the Court of Appeal was upheld. The High Court noted that the fact that criminal proceedings have been brought may generally be considered not to be an impediment to the continuation of forfeiture proceedings.[22] However, the court recognised the risk of prejudice to an accused in criminal proceedings if forfeiture proceedings are not stayed, in a case in which the circumstances relevant to both proceedings are substantially identical. The court stated:
The risk of prejudice to the second respondent if a stay is not granted in the forfeiture proceedings and the exclusion proceedings is plain. It is not necessary for the second respondent to say any more than he did on the application for a stay in order to identify that risk, given that the offences and the circumstances relevant to both proceedings are substantially identical.[23]
[21]Zhaov Commissioner of the Australian Federal Police (2014) 43 VR 187; [2014] VSCA 137.
[22]Zhao (2015) 255 CLR 46, 58 [34] (French CJ, Hayne, Kiefel, Bell and Keane JJ); [2015] HCA 5.
[23]Ibid (2015) 255 CLR 46, 59 [42] (French CJ, Hayne, Kiefel, Bell and Keane JJ).
The amendments to s 319 and the introduction of s 319A, as a result of the decision of the High Court in Zhao, have been considered in subsequent cases. In each case it has been recognised that, consistent with s 319(6), although s 319(2), as amended, specifies the grounds on which POC Act proceedings must not be stayed, that provision does not preclude a court taking into account prejudice that may arise to an accused as a consequence of POC proceedings.
In Onley v Commissioner of the Australian Federal Police,[24] Bathurst CJ stated that principle in the following terms:
Section 319(2) sets out the grounds on which POCA proceedings must not be stayed. That does not mean that prejudice to the accused arising from (in this case) an examination cannot be taken into account. However, if all that can be pointed to in the case of an examination of a person to whom s 319(2)(a) applies is that the circumstances pertaining to the POCA proceedings are the same or substantially similar to the circumstances pertaining to the criminal proceedings, then that of itself will not be sufficient for a stay to be granted.[25]
[24](2019) 367 ALR 291; [2019] NSWCA 101 (‘Onley’).
[25]Ibid 348 [225]; see also 379 [369]–[370] (Basten JA).
In similar terms, in Commissioner of the Australian Federal Police v Elzein,[26] Basten JA stated:
Reading the section as a whole, it is clear that the prohibited grounds in subs (2) are not prohibited considerations. In other words, potential prejudice is to be taken into account, in accordance with subs (6), in circumstances where there are criminal proceedings pending against the person the subject of the proceedings under the Act. To say that the court ‘must not stay’ the proceedings under the Act on the ground that criminal proceedings have been commenced against the person, is not to say that the existence of the criminal proceedings is to be disregarded. The existence of the criminal proceedings will be, in many cases, the source of some potential prejudice arising from the pursuit of proceedings under the Act, but it will not be enough in itself.[27]
[26](2017) 94 NSWLR 700; [2017] NSWCA 142 (‘Elzein’).
[27]Ibid (2017) 94 NSWLR 700, 715 [59] (Basten JA).

Appeal — legal principles

On this application, it was common ground that, in accordance with the decision in the High Court in GLJ v The Trustees of the Roman Catholic Church for the Diocese of Lismore,[28] the applicable standard of appellate review is the correctness standard, as explained in Warren v Coombes.[29] Accordingly, the question for this Court is not whether it was open to the primary judge to reach the conclusion he reached, but whether his Honour was correct to reach that conclusion.
[28](2023) 414 ALR 635, 641–2 [15] (Kiefel CJ, Gageler and Jagot JJ), 663 [95] (Steward J), 678 [161] (Gleeson J); [2023] HCA 32.
[29](1979) 142 CLR 531, 552 (Gibbs ACJ, Jacobs and Murphy JJ); [1979] HCA 9.

Grounds 1 and 2 — introduction

In their respective written cases, the parties addressed ground 1 and ground 2 separately. However, in oral submissions, it became apparent that there is a substantial overlap between the issues relating to both grounds. In particular, the central issue, in respect of ground 1, focusses on the question, whether the issues of the admissibility of the AN0M messages constituted a basis that was not precluded by s 319(2) of the POC Act as a ground upon which to grant a stay. Ground 2 focusses on the judge’s consideration of the effect of the issues concerning the admissibility of the AN0M messages, on the question of whether it was in the interests of justice to grant the stay.
Accordingly, it is convenient to summarise the submissions, made by the parties on each of the two grounds, and then to turn to our analysis and conclusions in relation to them.

Ground 1 — submissions

In support of ground 1, counsel for the applicant noted that in the judge’s reasons, his Honour observed that it would prejudice Zayneh’s criminal trial if he and the other respondents were required to file and serve evidence in support of their exclusion applications.[30] In particular, the judge noted that Zayneh was being required to choose between reserving his right to silence and thus prejudicing the exclusion applications, or filing evidence and in doing so prejudicing his criminal trial.[31]
[30]Reasons [61]–[67], [105], [106], [111].
[31]Ibid [106].
Counsel submitted that in that way the judge adopted reasoning on the basis of which the High Court, in Commissioner of the Australian Federal Police v Zhao,[32] stayed the proceedings in that case. However, the subsequent amendments to the POC Act, by the Crimes Legislation Amendment (Proceeds of Crime and Other Measures) Act 2016 (Cth) sch 1, had the effect that that line of reasoning is no longer permissible in determining an application for a stay. In particular, counsel noted that s 319(2)(c) prohibits a court from staying proceeds of crime proceedings on the ground that the person may consider it necessary to give evidence, or to call evidence from another person, in those proceedings, even if the evidence is relevant to a matter that is or may be at issue in criminal proceedings.
[32](2015) 255 CLR 46; [2015] HCA 5.
Counsel acknowledged that the judge correctly stated that the forensic choices faced by Zayneh, as to whether or not to give evidence in the POC proceedings, cannot be a basis on their own to justify a stay. However, his Honour held that to require Zayneh and Szwedzik to make affidavits as to the source of the restrained assets, and to be cross-examined on them, would fundamentally alter the accusatorial judicial process and result in prejudice to Zayneh’s defence of the criminal proceedings. His Honour also held that it would be unacceptably prejudicial to require each of the respondents to put on evidence about the provenance and use of the restrained property.[33] Counsel again reiterated that s 319(2) expressly precludes reliance on such considerations in support of an application for a stay of proceedings under the Act. Accordingly, it was submitted, the Court should not apply the passage in the judgment of Bathurst CJ in Onley, to which we have earlier referred,[34] in which his Honour suggested that such matters may be taken into account in determining whether a stay should be granted.
[33]Ibid [66].
[34]Above [41].
Counsel for the applicant noted that the judge took into account factors associated with the admissibility of the AN0M messages as additional matters standing outside s 319(2). However, it was submitted, there is no aspect concerning the challenge of admissibility of the AN0M messages that converts the ‘systemic prejudice’ relied on by the judge into a matter that could justify the grant of a stay.

In response, counsel for the respondents noted that the judge expressly acknowledged that prejudice, associated with being required to file materials in the POC proceedings and the related criminal proceedings, is not sufficient on its own to grant a stay. However, counsel noted, the judge enumerated specific circumstances that did result in the conclusion that it was in the interests of justice to grant a stay.[35] Adopting the terminology of Bathurst CJ in Onley,[36] it was submitted that, by reason of those considerations, the respondents had established that, if the stay were not granted, they would sustain the loss of a ‘legitimate forensic choice’ in the conduct of the defence of the criminal proceedings.
[35]Ibid [107].
[36](2019) 367 ALR 291, 320 [85], 347 [220], 349 [235]; [2019] NSWCA 101.
Counsel further submitted that that approach by the judge was entirely consistent with the interpretation of s 319 by the Court of Appeal of New South Wales in Onley, in which that Court recognised that ‘systemic’ prejudice, of the kind addressed in s 319(2), may be taken into account in considering whether other circumstances, in combination, justify the grant of a stay. It was submitted that those circumstances, taken into account by the judge, are not precluded from consideration by s 319(2). In that respect, counsel noted that, in the hearing before the primary judge, senior counsel for the applicant expressly accepted that ‘inchoate or systemic prejudice’, while insufficient of itself to support the grant of a stay, is not irrelevant in considering whether or not specific matters relied on by the respondents could ‘tip the balance in favour of the stay’.
In that context, counsel referred to the explanatory memorandum to the Crimes Legislation Amendment (Proceeds of Crime and Other Measures) Bill 2015 (‘explanatory memorandum’). Counsel noted that the explanatory memorandum expressly stated that s 319(1) replicated the current s 319 of the POC Act ‘to ensure that the court’s existing discretion to grant a stay of proceedings in appropriate circumstances is maintained’.[37] Further, the explanatory memorandum explained that the amendments in s 319(2) were designed to prevent a respondent from ‘claiming merely a generalised “risk” of prejudice to support a stay of proceedings’.[38] Counsel further noted that the explanatory memorandum expressly stated that the matter specified in s 319(6) is not a ‘closed risk’, and that that provision does not prevent a court from considering other issues in its determination of the interests of justice under the new sub-s 319(1).[39]
[37]Explanatory memorandum, [154].
[38]Ibid [156].
[39]Ibid [161].
In that respect, for reasons relied on in response to ground 2, counsel submitted that the judge was correct to conclude that the issues pertaining to the admissibility of the AN0M messages constituted a substantial ground that, in effect, was extrinsic to the grounds, specified in s 319(2) of the POC Act.

Ground 2 — submissions

In support of ground 2, counsel for the applicant submitted that there are six errors in the reasons of the judge concluding that it would be prejudicial to require the respondents to challenge the admissibility of the AN0M messages in the POC proceeding, when Zayneh was intending to make the same challenge in his criminal proceedings.
First, it was submitted, there was no adequate evidence to justify the finding that the AN0M messages were, or would be, of central relevance to the exclusion applications, or that the respondents would be required to challenge the admissibility of that evidence in the POC proceedings.
Secondly, it was submitted, the judge’s conclusions about the significance of the AN0M messages to the POC proceedings are premature. In particular, it was submitted, the appropriate time to evaluate that issue is after the conclusion of the examinations of the respondents under s 180 of the Act, as the admissibility of the AN0M messages is not relevant to the conduct of the s 180 examination. It was further submitted that the issue concerning the admissibility of the AN0M messages should not preclude the applicant stating the grounds on which they rely in support of their exclusion applications, and in providing appropriate affidavit evidence in support of those grounds.
Thirdly, and associated with that consideration, counsel submitted that the judge’s reasons make no reference to the effect of s 319(2)(a) and s 319(3) in the context of the AN0M messages.
Fourthly, it was submitted, the judge’s conclusion, that any ruling on the admissibility of the AN0M messages in the criminal proceeding would be likely to determine the admissibility of that evidence in the POC proceedings, is incorrect. In particular, counsel submitted, the discretion to exclude evidence under s 138 of the Evidence Act would involve different considerations in the criminal proceeding and in the POC proceedings respectively.
Fifthly, counsel submitted that even if a ruling on the admissibility of evidence in one proceeding would be likely to be persuasive in the determination of a similar objection in the other proceeding, there is no reason why the judge in the criminal trial should first rule on that matter. In particular, it was submitted that to prioritise the timing of one proceeding over the other would fail to give effect to the requirement in s 319(6)(a) of the Act, that the POC proceedings should proceed as expeditiously as possible.
Sixthly, it was submitted that the fact that the court’s resources might be employed to determine the issues in two separate proceedings could never, without more, be a proper ground for a stay.
Finally, counsel noted that, since the hearing of the stay application before the primary judge, the issue of the admissibility of AN0M messages has been considered by the South Australian Court of Appeal in Questions of Law Reserved (Nos 1 and 2 of 2023).[40] In that case, the court held that the conduct of the Australian Federal Police in obtaining evidence of AN0M communications did not involve the unlawful interception of communications passing over a telecommunications system, contrary to s 7(1) of the Telecommunications (Interception and Access) Act 1979 (Cth) (‘TIA Act’), and accordingly the communications obtained were not inadmissible.[41] Counsel further noted that that decision is currently under appeal to the High Court, special leave to appeal having been granted to the two appellants, and the appeal is listed for hearing in May 2025. In those circumstances, it was submitted, the question of the admissibility of the AN0M messages will have been heard and determined before the hearing of the exclusion and forfeiture applications in the POC proceedings, irrespective of whether those applications are not the subject of a stay.
[40][2024] SASCA 82.
[41]Ibid [240] (Livesey ACJ, Doyle and David JJA).
Counsel further noted the enactment of the Surveillance Legislation (Confirmation of Application) Act 2024 (Cth), which specifically confirms that information obtained under specified warrants issued under it is taken for all purposes not to have been intercepted while passing over a telecommunications system, or to have been obtained by intercepting a communication passing over a telecommunications system.
In response, counsel for the respondents submitted that the nature of the issues relating to the admissibility of the AN0M messages, and the circumstance that that issue has been agitated in the criminal proceeding, constitute a consideration that is additional to the grounds that are excluded by s 319(2) as the basis of a stay.
In particular, counsel noted that there are some forty co-accused in the criminal proceedings. As a result, a number of different, and complex, issues have been raised concerning the admissibility of the AN0M messages. In that context, the representatives of each of the accused have been coordinating, in order to present a comprehensive set of objections to the admissibility of the evidence in that form. In addition, counsel noted that the obligation of the prosecution, in the criminal proceedings, to produce all relevant documents, is more comprehensive than the obligation of the applicant in the POC proceedings, with the consequence that the criminal proceeding is the more appropriate form for the resolution of the admissibility issues.
Counsel for the respondents further submitted that the questions of the admissibility issues, raised in the criminal proceedings, are not confined to those which will be before the High Court in the appeal from the decision of the South Australian Court of Appeal in Questions of Law Reserved (Nos 1 and 2 of 2023). By way of example, counsel referred to the decision of Newlinds DCJ in R v Robertson,[42] in which a different issue was agitated concerning the precise method by which prosecution authorities had managed to effectively ‘crack’ the AN0M system and obtain the information from it.[43]
[42][2024] NSWDC 528.
[43]Ibid [22].
In response to the six specific points relied on by the applicant under ground 2, counsel for the respondents made the following submissions.
In response to the first point, counsel for the respondents noted that the trial judge set out the passages of the affidavit evidence filed by the respondents, which confirm that the admissibility of the AN0M messages is a matter that would be central to both the criminal proceeding and to the POC proceedings.
In response to the second point, counsel submitted that the applicant did not make any application before the judge to adjourn the stay application until the completion of the examination of the respondents under s 180 of the Act. Thus, it was not premature for the judge to form conclusions about the significance of the AN0M messages to the POC proceedings.
In response to the third point relied on by the applicant, counsel for the respondents submitted that the circumstance, that the admissibility of the AN0M messages is common to both the POC proceedings, and the related criminal proceeding, does not mean that consideration of that issue is precluded by s 319(2)(a) and s 319(3). Counsel noted that the judge did not consider the question of the admissibility of the AN0M messages as a form of ‘systemic prejudice’. Rather, the judge clearly considered that matter as a specific issue pertaining to the POC proceedings.
In relation to the fourth point relied on by the applicant, counsel for the respondents submitted that the contention by the applicant, that the determination of an objection under s 138 of the Evidence Act might involve different considerations in the two proceedings, is entirely speculative.
In respect of the fifth point relied on by the applicant, counsel for the respondents noted that s 319(6)(a) of the Act is but one of the mandatory factors which requires consideration, but that it does not hold a position of primacy in determining what is in the interests of justice. In particular, it was submitted, that provision does not override the judge’s findings as to the significant prejudice to the respondents should the exclusion and forfeiture applications advance, and the minimal prejudice that would be occasioned to the applicant if a stay were granted.
In respect of the sixth point raised by the applicant, counsel for the respondents again noted that the applicant’s submission seeks to isolate one of the specific grounds that were relied on by the judge. It was submitted that the submission ignores the judge’s finding that there would be an overlap of ‘the same or similar’ admissibility issues, so that the issues are substantially duplicative.

Grounds 1 and 2 — analysis and conclusion

As we have earlier noted, the amendments in 2016 to the POC Act were directed to the conclusion, by the High Court in Zhao, that, in a case in which a respondent in a proceeds of crime proceeding is also subject to criminal proceedings in relation to the same subject matter, the risk to the respondent, if a stay is not granted in the proceeds of crime proceeding, is manifest, and is sufficient, of itself, to require the grant of such a stay.
It was in response to that decision that s 319(2) to (6) were enacted, the effect of which was to provide that ‘systemic prejudice’, of the kind identified by the High Court in Zhao, is not sufficient to grant a stay of proceeds of crime proceedings.
Importantly, s 319(1) was amended to provide for the grant of a stay of proceeds of crime proceedings in a case in which the court considers that it is ‘in the interests of justice to do so’. As the explanatory memorandum to the 2016 amendments made clear, that provision was designed to ensure that the court’s existing discretion to grant a stay of proceedings in appropriate circumstances is maintained.
Further, as the explanatory memorandum made clear, s 319(2)(a) to (d) were designed to prevent a respondent from relying solely on a generalised risk of prejudice to support a stay of proceedings, and to ensure that the court would consider the individual circumstances of the proceedings and the specific nature of the risk of prejudice that was being asserted in the absence of such a stay.[44]
[44]Explanatory memorandum, [154], [156].
On this application, applying the principles stated in Warren v Coombes, the central issue is whether the judge erred in his application of s 319 of the POC Act in determining that it was in the interests of justice that the POC proceedings — and, specifically, the forfeiture application and the exclusion applications — be stayed, until resolution of the criminal proceedings against Zayneh.
In determining that issue, it is necessary, first, to consider the submissions raised by the applicant under ground 1, which are to the effect that the judge determined the stay application on the basis of considerations that are precluded by s 319(2) of the POC Act.
In considering that question, it is necessary to consider the judge’s reasons as a whole. While, as the applicant submitted, there are some passages in his Honour’s reasons that suggest reliance on considerations that are precluded by s 319(2), those sections of his Honour’s reasons must be considered in context.
In particular, the judge specifically noted that the 2016 amendments, as discussed in the explanatory memorandum, were introduced into the POC Act as a result of the decision of the High Court in Zhao. Having discussed relevant authorities, including Elzein and Onley, the judge noted that ‘systemic or inchoate prejudice is not of itself sufficient to grant a stay’[45] and that ‘specific prejudice to the conduct of the defence must be demonstrated, which must be real and acute, as distinct from merely theoretical’.[46]
[45]Reasons, [54(c)].
[46]Ibid [54(d)]; see also [107].
Having outlined some of the issues in the case, the judge then noted that it was not in dispute that Zayneh would suffer ‘inchoate or systemic’ prejudice if the stay were not granted, and the judge noted that it was also not in issue that ‘by s 319(c) [sic] of the Act, the court must not stay these proceedings on this ground’.[47] The judge did proceed to note that if Zayneh and Szwedzik were required to make affidavits as to the source of the restrained assets, or permitted to be cross-examined on them, that would fundamentally alter the accusatorial judicial process and result in prejudice to Zayneh’s defence.[48] However, his Honour did not, at any point in his reasons, indicate that that consideration, of itself, would be a sufficient basis to grant a stay.
[47]Ibid [60].
[48]Ibid [66].
The judge then gave consideration to the circumstance that the applicant would be likely, in any application for a forfeiture order, to rely on the AN0M messages. His Honour noted that the respondents had demonstrated that ‘enormous costs’ were involved in challenging the admissibility of that evidence in the criminal proceeding. The judge discussed the undesirability that those costs be duplicated by the agitation of the admissibility of the AN0M message evidence in the POC proceedings.[49] His Honour was satisfied that the AN0M telephone intercept evidence would be relevant both to the criminal proceedings and also to the POC proceedings.[50]
[49]Ibid [67]–[71].
[50]Ibid [99]–[101].
It was on the basis of those considerations that the judge then specified the six circumstances, which we have quoted earlier,[51] on which his Honour concluded that it was in the interests of justice to grant a stay.[52]
[51]Above, [29].
[52]Reasons, [107].
The foregoing analysis of the judge’s reasons make it clear, first, that the judge was conscious that ‘systemic’ prejudice is not, of itself, a sufficient basis upon which to stay the POC proceedings. Further, it is quite clear that the factor, which the judge concluded was not a precluded basis under s 319(2), comprised the combination of the six factors stated in that paragraph of his Honour’s decision. In essence, those factors were concerned with the complexity of the evidence concerning the AN0M messages, the centrality of that evidence to the criminal proceedings, and the prejudice to the respondent should the admissibility of that evidence be required to be agitated in the POC proceedings before the conclusion of the criminal proceeding against them.
It follows that, in addressing grounds 1 and 2, the two central issues are:
(1)whether the question of the admissibility of the evidence of the AN0M messages is of such a nature that it did not constitute a ground for the grant of the stay that was precluded by s 319(2) of the POC Act;
(2)if so, whether, taking into account the considerations specified by s 319(6) of the Act, the judge erred in determining that, in such circumstances, it was in the interests of justice to stay the POC proceedings until the resolution of the criminal charges against Zayneh.
In addressing those questions, it is necessary to have some understanding of the nature of the AN0M messages, and of the issues that either have arisen, or may arise, about the admissibility of that evidence, both in the criminal proceedings against Zayneh and in the POC proceedings.
The criminal charges against Zayneh arose in the context of an AFP investigation named ‘Operation Ironside’, which was apparently the largest operation ever conducted by the AFP. The origins of the AN0M application and system was a joint operation between the Organised Crime Section of the AFP and the United States Federal Bureau of Investigation. The AFP facilitated the development of the AN0M application, and organised for phones, enabling that application, to be distributed as part of Operation Ironside.
For the purposes of addressing the issues raised on this application, the manner in which the AN0M platform operated, and its functionality, were conveniently described by the South Australian Court of Appeal in Questions of Law Reserved (Nos 1 and 2 of 2023) in the following terms:
By way of overview, the AN0M platform operated so that, unbeknown to the users of the AN0M application, and without their consent, communications sent from AN0M-enabled devices were copied and sent to the servers able to be accessed by the AFP.
More particularly, the AN0M application installed on the AN0M-enabled devices operated so that when a user (User A) composed a message (or attached a photo or voice memo) in the AN0M application, and pressed the “send” icon, or activated the “trigger”, for the message to be transmitted to the recipient user (User B), a separate second message was created in the AN0M application. The second message included a copy of the message from User A to User B, as well as some additional data retrieved from User A’s device for law enforcement purposes.
Both messages were then encrypted and sent as separate messages over the telecommunications system via a server using the Extensible Messaging and Presence Protocol (XMPP). As User A intended, the first message would be sent, via an XMPP server, to User B. However, without the knowledge of Users A or B, the second message (a copy of the first message with the additional data) would be sent, via an XMPP server, to a server with the username “[email protected]” (the iBot server).
The messages received by the iBot server were then re-transmitted to the servers in Sydney that were able to be accessed by the AFP. The AFP obtained these messages using retrieval software, pursuant to the surveillance device warrants and computer access warrants mentioned earlier.[53]
[53][2024] SASCA 82, [21]–[24] (Livesey ACJ, Doyle and David JJA) (citation omitted).

As stated above at [64], the central question for the South Australian Court of Appeal was whether that process involved the unlawful interception, by the AFP, of communications passing over a telecommunications system, contrary to s 7(1) of the Telecommunications (Interceptions and Access) Act 1979 (Cth). It may be anticipated that that issue, and the constitutional validity of the Surveillance Legislation (Confirmation of Application) Act 2024, will be determined by the High Court on the pending appeal from the decision of the South Australian Court of Appeal.
However, it is apparent that that decision, and the legislation, might not definitively determine all of the admissibility issues, which may ultimately be agitated in the criminal proceedings against Zayneh. As was noted by Newlinds DCJ in Robertson,[54] in New South Wales, an issue has been raised as to how the prosecuting authorities have managed to obtain the information, contained in the AN0M messages, and it is apparent that there are a number of expert evidence issues between competing experts involved in that question.
[54][2024] NSWDC 528, [22].
As we state at [67], in the present case, there are some forty defendants in the criminal proceedings. A number of different issues have been raised by them concerning the admissibility of the AN0M messages. It is apparent that Zayneh, himself, will rely on the evidence of expert witnesses in support of his application that disputes the admissibility of those messages.[55]
[55]Re Zayneh [2023] VSC 470, [16] (Beach JA).
In that context, two points are of particular relevance. First, the issues relating to the admissibility of the AN0M evidence are complex and potentially multi-faceted. They are currently being developed, and coordinated between a number of accused persons, in the criminal proceedings, and the parties are working to produce a comprehensive set of issues for determination in those proceedings. The issues themselves are by no means straightforward. The resolution of them will require the conduct of a voir dire involving, it is expected, competing evidence of a number of expert witnesses.
Secondly, and importantly, in the criminal proceedings, the prosecution has a fundamental duty to make full disclosure of all relevant matters relating to the admissibility of the AN0M evidence. That duty was described by this Court in Roberts v The Queen[56] in the following terms:
Before turning to the fresh evidence upon which the applicant relies for the purpose of the leave application, it is desirable to set out the principles governing the duty of disclosure to an accused.
It is now accepted that it is fundamental that there must be full disclosure in criminal trials. It is a “golden rule”. The duty is to disclose all relevant material of help to an accused. It is owed to the court, not the accused. It is ongoing. It includes, where appropriate, an obligation to make enquiries. It is imposed upon the Crown in its broadest sense. And a failure in its discharge can result in a miscarriage of justice.
The duty is mandated by a combination of statute, prosecutorial guidelines and judicial authority.[57]
[56](2020) 60 VR 431; [2020] VSCA 58.
[57]Ibid 444 [55]–[57] (Osborn and T Forrest JJA, Taylor AJA) (citations omitted).
In the circumstances of the present case, the amplitude of that duty will be of significant importance in ensuring that, in the criminal proceedings, the court has before it all of the relevant documentation and evidence, which will enable the issues concerning the admissibility of the AN0M evidence to be properly determined. While, in the POC proceedings, it would be expected that the applicant would provide appropriate discovery of such relevant material, the duty of the applicant to do so is not, at least in theory, as comprehensive and extensive as the duty of a prosecutor in a criminal trial.
In those circumstances, the most appropriate forum, for the determination of the admissibility of AN0M evidence, is in the current criminal proceedings. While any decision concerning the admissibility of the evidence in that proceeding might not, of itself, necessarily be binding on the admissibility of such evidence in the POC proceedings, nevertheless, any determination of that issue in the criminal proceedings would be of particularly persuasive weight in the question of the admissibility of the same evidence in the POC proceedings. Furthermore, if the admissibility of the AN0M evidence were subsequently to be agitated in the POC proceedings, it might be expected that the parties would be able to rely on the evidence adduced in the voir dire in the criminal proceedings as the basis for their resolution of any issues.
Taking those matters into account, it must be concluded that, contrary to ground 1, the judge did not grant the stay on grounds prohibited by s 319(2) of the POC Act.
We turn, then, to the points raised on behalf of the applicant in support of ground 2.
The first point, relied on by the applicant, is that there was no adequate evidence to justify the finding, by the judge, that the AN0M evidence is, or would be, of central relevance to the exclusion applications, or that the respondents would be required to challenge the admissibility of that evidence in the POC proceedings.
The short response to that point is that it is clear, both from the applications for forfeiture orders against Zayneh, and the affidavit of Ms Aitkin, that, as matters currently stand, the applicant will be seeking forfeiture orders against Zayneh, and against DTZ and D & A, on grounds that include that Zayneh has committed a serious offence within the meaning of s 338 of the POC Act, namely, that he engaged in the two conspiracies to import commercial quantities of border-controlled drugs contrary to ss 11.15(1) and 307.1(1) of the Criminal Code 1995 (Cth).
As we have noted, the forfeiture applications are expressed to include those grounds as a basis for making such an order. In her affidavit in support of the restraining orders, Ms Aitkin relied almost solely on the intercepted communications that took place via mobile devices containing the AN0M program, in support of its case in respect of the two conspiracies alleged. Thus, it is evident that the AN0M messages are of central relevance to both the exclusion applications and the forfeiture applications.
In respect of the second point relied on by the applicant, as we will discuss when considering ground 3, the judge’s conclusions about the significance of the AN0M messages, in the POC proceedings, are not premature. In essence, it is apparent that, contrary to the submission by the applicant, no application was made to adjourn the determining of the stay application until the completion of the examinations of the respondents under s 180 of the Act.
As we have discussed, contrary to the third point relied on by the applicant, it is apparent that the judge did take into consideration the effect of s 319(2)(a) and s 319(3) of the POC Act.
In respect of the fourth and fifth points raised by the applicant, as we have noted, although a ruling on the admissibility of the AN0M messages in the criminal proceedings might not determine the admissibility of the evidence in the POC proceedings, nevertheless, the resolution of that issue in the criminal proceedings would facilitate the determination of any residual issues concerning that matter in the POC proceedings. Further, for the reasons we have discussed, it is quite apparent that the resolution of the issues in the criminal proceedings would be more effective than the agitation and resolution of them in the POC proceedings, particularly bearing in mind the strict duty of disclosure borne by the prosecution in the criminal proceedings.
As an allied consideration, and in response to the sixth point relied on by the applicant, the interests of justice, for the purpose of s 319(1), should not be viewed solely through the prism of the interests of the parties in the proceeding, but also through the prism of the interests of other litigants and of the public more generally in the context of the limited court resources. As senior counsel for the applicant correctly accepted, it was relevant and appropriate for the judge to take into account that it was not in the interests of justice for the County Court to allocate resources to determine the issue of the admissibility of the AN0M messages in circumstances in which the outcome of the same or similar arguments in the criminal proceedings would be likely to determine that issue.[58] That consideration is consistent with the principles discussed by the High Court in Aon Risk Services Australia Ltd v Australian National University.[59]
[58]Reasons, [108].
[59](2009) 239 CLR 175, 211 [93], 213 [99] (Gummow, Hayne, Crennan, Kiefel and Bell JJ); [2009] HCA 27.
In considering whether the judge was correct to conclude that a stay of the POC proceedings was in the interests of justice, the Court is required to take into account the factors specified in s 319(6) of the POC Act.
It must be accepted that if the stay were to hold, there will be a delay in the hearing and determination of the forfeiture application, which is a mandatory consideration, pursuant to s 319(6)(a). However, as we have discussed, if the stay were not granted, the hearing and determination of the forfeiture application would, in any event, involve substantial delay due to the need to determine the admissibility of the evidence of the AN0M messages, which would involve the conduct of a potentially lengthy voir dire, and the determination of complex issues, which will ultimately also need to also be agitated and adjudicated in the criminal proceedings.
Further, it is to be noted that the restrained assets have been preserved to date, and are being preserved, at the expense of the respondents, so that the applicant will not incur any of the cost, inconvenience or prejudice identified in s 319(6)(b) and (c). In particular, the applicant still has the power to conduct its examinations under s 180 of the POC Act and to continue its investigation in light of the exclusion applications being filed.
In that respect, the applicant has submitted that its ability to conduct examinations effectively has been compromised, as the respondents have not filed the grounds upon which they are seeking exclusion of the restrained property, and they have not filed affidavits in support of their exclusion applications. While that may be accepted, it should be noted that Zayneh and Szwedzik have each filed sworn statements under s 39 of the POC Act. In addition, it is relevant that the applicant does have broad powers of ‘information gathering’ under Part 3 of the POC Act.
On the other hand, and taking into account the matters specified in s 319(6)(d), as we have discussed, if the POC proceedings were not stayed, the respondents would suffer prejudice, both in the conduct by Zayneh of his defence of the criminal proceeding, and in the respondents’ conduct of the POC proceedings.
Taking those matters into account, and contrary to submissions of the applicant under ground 2, it must be concluded that the judge did not err in considering the delay, cost and financial strain, which would occur if the admissibility issues were litigated in the POC proceedings, and which would be likely to divert resources from, and thus prejudice, Zayneh’s defence in the criminal proceeding. At the risk of repetition, taking into account (inter alia): the scale and complex nature of Operation Ironside; the critical importance of the AN0M intercepts in both the criminal proceedings and the POC proceedings; the reasons why it is preferable that the admissibility issues concerning that evidence be first agitated and determined in the criminal proceedings; and the cost to Zayneh involved in the agitation of the issue; the judge was correct to determine that it was in the interests of justice in the circumstances to grant a stay of the POC proceedings against Zayneh until the resolution of the criminal proceedings against Zayneh.
Accordingly, the judge was correct to conclude that the POC proceedings against Zayneh should be stayed until the resolution of the criminal proceedings against him.
The restraining orders affecting the property of the two corporate entities, DTZ and D & A, were made, and the forfeiture applications in respect of those properties, are made, on the basis that those properties were, and are, subject to the effective control of Zayneh. Accordingly, it follows that the judge was correct to stay the POC proceedings, in respect of those properties, until the resolution of the criminal proceedings against Zayneh.
The restraining orders affecting the property of Szwedzik, and the application for forfeiture orders, have not been made on the basis of any of the charges against Zayneh in respect of which the admissibility of the evidence of the AN0M messages will arise. Rather, as we have noted, the restraining orders, and the forfeiture applications, have been brought on the basis that Szwedzik has committed a serious offence within the meaning of s 338 of the POC Act, namely, dealing with money that is reasonably suspected to be the proceeds of crime, and, at the time of the dealing, the value of that money was $100,000 or more, contrary to s 400.9(1) of the Criminal Code.
Nevertheless, the forfeiture applications in respect of Szwedzik are directed to some restrained assets, which Szwedzik owns jointly with Zayneh, namely, a 1988 VL Walkinshaw HSV, the amount of approximately $80,000 in cash located in the coffee machine, gold ingots and a property in Mudgeeraba, Queensland. It follows that the challenge, by Zayneh, to the AN0M evidence, may affect the nature and extent of the forfeiture application against Szwedzik.
Further, in her affidavit in support of the restraining order, Ms Aitken deposed that she suspected that the jointly owned property, namely, the Walkinshaw HSV, the $80,000 cash, the gold ingots and the Queensland property, are the proceeds or instrument of suspected previous offences. In circumstances in which a stay is granted to Zayneh, the resolution of the issues, concerning those items of property, in proceedings involving only Szwedzik, and not Zayneh, may necessarily involve a duplication of resources, and the potential for inconsistent outcomes in respect of them.
In those circumstances, the judge was correct to conclude, pursuant to s 319(1) of the POC Act, that it was in the interests of justice that the POC proceedings be stayed against Szwedzik until the resolution of the criminal charges against Zayneh.
For the foregoing reasons, it follows that grounds 1 and 2 do not succeed.

Ground 3 — submissions

In support of ground 3, counsel for the applicant noted that it was submitted to the primary judge that it was premature to decide whether the respondents would be prejudiced by the continuation of the forfeiture proceeding, and that determination of that question should be deferred until Zayneh and Szwedzik were examined. It was submitted that the judge erred in declining to adjourn the hearing of the stay application until the completion of the examinations of Zayneh and Szwedzik. In particular, the appropriate time to evaluate, whether Zayneh’s criminal trial would be prejudiced by the forfeiture and exclusion applications, was after he and Szwedzik had been examined, when an appropriate evaluation could be made as to whether continuation of the proceedings would prejudice Zayneh. It was submitted that one possibility is that, in those examinations, Zayneh and Szwedzik might admit that some or all of the restrained property was acquired using the proceeds of unlawful activity or used as an instrument of a serious offence. Accordingly, it would be of particular relevance to the stay application if it was plain from the examinations that the exclusion applications were bound to fail. It was further submitted that the respondents would not suffer any prejudice if the stay applications were deferred until after the completion of the examination of Zayneh and Szwedzik.
In response, counsel for the respondents reiterated the point that he made in response to ground 2, namely, that the applicant did not make any application to the judge to adjourn the stay application. Rather, the applicant had proposed that the stay application be deferred until after the conclusion of the s 180 examinations, which would take place after the respondents had provided particulars of their exclusion applications, and affidavits in support of those applications. Thus, it was submitted, the applicant did not accept the offer, that was made by the respondents, that they undergo the s 180 examinations and that those examinations not be the subject of the stay. Counsel noted, in determining that the applicant would not suffer prejudice by the grant of a stay of the POC proceedings, that the judge gave significant weight to the concession by Zayneh and Szwedzik to submit to examinations under s 180 of the Act, which, his Honour concluded, would address much of the prejudice relied on by the applicant.

Ground 3 — analysis and conclusion

The fundamental premise in the applicant’s submission, under ground 3, is that it was premature to order a stay before the applicant was given a reasonable opportunity to conduct examinations consistent with s 76 of the POC Act, which, the applicant contended, required the respondents, first, to provide grounds of the exclusion applications and affidavits in support of them.
It might be accepted that the provision of such material, before the s 180 examinations took place, might be desirable and of assistance to the applicant. However, as we have noted, in considering grounds 1 and 2, Zayneh and Szwedzik have each filed sworn statements under s 39 of the POC Act, and, in addition, the applicant does have quite broad powers of ‘information gathering’ under Part 3 of the POC Act.
The submissions, in support of ground 3, were based on the proposition that examinations under s 180, informed by the provision by the respondents of grounds for the exclusion applications and affidavits in support, might have the effect that the applicant ultimately may not be reliant on the proof of the two conspiracy offences, to which the admissibility of the AN0M messages is fundamental. In other words, it was submitted that the conduct of the s 180 examinations, in those circumstances, might adduce admissions from both Zayneh and Szwedzik as to the commission of offences, including offences under s 400.9 of the Criminal Code, which would be a sufficient basis upon which the applicants could proceed with the forfeiture applications.
That submission, necessarily, involves a substantial degree of conjecture. In particular, it is based on the hypothesis that while the applicant may not be able to adduce such relevant admissions on examinations conducted without first the provision of particulars and supporting affidavits in respect of the exclusion applications, nevertheless, examinations conducted with the benefit of those materials might enable the applicant to elicit such admissions by Zayneh and Szwedzik so as to circumvent the requirement for the applicant to prove the conspiracy charges in respect of which the evidence of the AN0M messages is fundamental.
That is, the unstated premise to the applicant’s submission is that the provision of particulars to the exclusion application, and the provision of affidavits in support of it, might enable the applicant to elicit the relevant admissions from Zayneh and Szwedzik, in circumstances in which it otherwise may not be able to do so. Expressed in that way, the fundamental premise to the applicant’s submission is, at its highest, a matter of mere conjecture.
For those reasons, the judge did not err in declining to adjourn or defer the hearing and determination of the stay application until after the conclusion of the s 180 examinations of Zayneh and Szwedzik. It follows that ground 3 of the application for leave to appeal must fail.

Ground 4 — submissions

In support of ground 4, counsel referred to the conclusion by the judge that neither Zayneh nor Szwedzik should be required to make affidavits, or be cross-examined on them, while Zayneh faced serious criminal charges.[60] It was submitted that that conclusion is not correct for the reasons outlined by this Court in Commissioner of the Australian Federal Police v Yang.[61] Szwedzik is not charged with any offence, and any evidence that she might give implicating Zayneh is not a prejudice against which the law protects.[62]
[60]Ibid [66].
[61][2023] VSCA 271 (‘Yang’).
[62]Ibid [54]–[55].
In response, counsel for the respondents submitted that the arguments, relied on by the applicant in support of ground 4, are misconceived, insofar as the applicant contends that the judge found that inculpatory evidence given by Szwedzik could prejudice Zayneh in his criminal trial. It was submitted that the judge did not rely on any such proposition. Rather, in the passage in question, the judge was referring, first, to prejudice to Zayneh’s defence, and, secondly, to other prejudice in requiring affidavits, and permitting cross-examination on them, concerning the source of restrained assets, in circumstances in which no direct use immunity exists.
Further, it was submitted that the circumstances of this case are distinguishable from those in Yang. First, that case concerned a coercive examination, whereas the POC proceedings is concerned with the provision of affidavit materials in respect of which no direct use immunity exists. Secondly, such evidence would, by operation of the POC Act, create potential prejudice to Szwedzik, as part of the restrained property is common to Zayneh and herself. Thirdly, counsel noted that whereas Zayneh faces criminal charges, Szwedzik is suspected of prior offending and money laundering, and the judge found it likely that the applicant in that respect would seek to rely on the AN0M messages in the POC proceedings, in view of the fact that the applicant has raised the fact that he suspects that Szwedzik has been involved in money laundering, and that the disclosed income of Zayneh and Szwedzik is insufficient to explain their wealth.

Ground 4 — analysis and conclusion

In considering grounds 1 and 2, we have addressed the issues raised in respect of ground 4.[63]
[63]Above, [114]–[116].
Specifically, the forfeiture applications in respect of Szwedzik are directed to some restrained assets, which Szwedzik owns jointly with Zayneh. Accordingly, the challenge, by Zayneh to the AN0M evidence, may affect the nature and extent of the forfeiture application against Szwedzik.
Further, as we have noted, in her affidavit in support of the restraining order, Ms Aitken has deposed that those jointly owned assets are the proceeds or the instrument of suspected previous offences. If a stay is granted to Zayneh, the resolution of the issues, concerning those items of property, in proceedings which only involved Szwedzik, and not Zayneh, might necessarily result in a subsequent duplication of resources, and may also have the potential for there to be inconsistent outcomes in respect of those items of property.
For those reasons, ground 4 of the application for leave to appeal must fail.

Ground 5 — submissions

In support of ground 5, counsel submitted that the judge erred in considering that s 319A of the POC Act did not abrogate or qualify the requirement, expressed in Zhao, that, in view of the importance of open justice, a closed court order will only be made in exceptional circumstances. It was submitted that that proposition did not give sufficient effect to s 319(6)(e) and to the introduction of s 319A in response to the decision in Zhao. Further, counsel submitted that if it is correct to describe the power conferred by s 319A as exceptional, that should be understood to mean the proceedings under the POC Act would ordinarily be conducted in open court, unless a hearing in closed court is necessary to prevent interference with the administration of justice.
Counsel further submitted that there are a range of conventional steps that could be taken to conduct the exclusion and forfeiture applications without causing prejudice to Zayneh’s criminal trial which include the following. First, the parties conducting the POC proceedings on behalf of the Commissioner could submit to an order, or undertake, that they would not disclose any evidence served by the respondents to those involved in the investigation and prosecution of the offences with which Zayneh is charged. Secondly, the court could make an order that affidavits be served but not filed until the hearing. Thirdly, the court could make suppression orders under the Open Courts Act 2013, and orders prohibiting access to relevant parts of the court file and transcript until the conclusion of Zayneh’s criminal proceedings.
Counsel further submitted that the appropriate time at which to decide whether or not and on what terms such orders should be made was after the conclusion of the examinations under s 180 of the Act. At that time, it may become apparent that some or all of the steps just outlined may not be necessary.
In response, counsel for the respondents accepted that, as a result of s 28 of the Open Courts Act 2013, the judge was not correct to consider that the introduction to s 319A in the POC Act did not displace the principle that proceedings should only be closed in exceptional circumstances. However, counsel submitted that that error was immaterial, as the judge’s consideration as to the limitations, in s 319A, was not necessary to the decision, by his Honour, that the POC proceedings be stayed until the resolution of the criminal proceedings against Zayneh.

Ground 5 — analysis and conclusion

The respondents were correct to accept that the judge did err in considering that an order to close the court, under s 319A of the POC Act, would only be made in exceptional circumstances, with the result that any evidence, given by Zayneh or Szwedzik in the exclusion order application hearing, might not be protected from disclosure to the prosecuting authorities.[64]
[64]Reasons, [93]–[94].
The proposition, that exceptional circumstances must be demonstrated to justify the closure of a court, derives from s 28 of the Open Courts Act 2013. As the High Court explained in Zhao, the rationale of the open court principle, enshrined in s 28 of the Open Courts Act 2013, is that court proceedings should be subjected to public and professional scrutiny, and that courts should not act contrary to that principle, save in exceptional circumstances.[65]
[65]Zhao (2015) 255 CLR 46, 60 [44] (French CJ, Hayne, Kiefel, Bell and Keane JJ).
However, s 28 of the Open Courts Act 2013 does not limit, or otherwise affect, the operation of the provision of an Act of the Commonwealth that relevantly requires a court to close any proceedings to the public, or prohibits or restricts the publication of disclosure of information in connection with a proceeding. Section 319A of the POC Act is clearly such a provision. By its express terms, s 319A permits a court to order that the proceedings be heard in closed court if it is considered that such an order is necessary ‘to prevent interference with the administration of criminal justice’. Plainly, in order that a court act in accordance with s 319A, it is not necessary that the court be satisfied that there are exceptional circumstances justifying the closure of the court.
For that reason, the judge was not correct to consider that the prejudice, which may be caused by Zayneh giving evidence in the exclusion application, could not be addressed by closing the court under s 319A, and by the undertaking, proffered by the applicant, that it would not disclose any of the evidence, served by the respondents, to those involved in an investigation and prosecution of the offences with which Zayneh was charged.
However, in view of our conclusions in relation to ground 1 and 2, that error by the judge was not material to the basis upon which the judge correctly decided, pursuant to s 319(1) of the POC Act, that it was in the interests of justice that the POC proceedings be stayed until the resolution of the criminal proceedings against Zayneh.
In short, the question whether the court, in hearing the exclusion application, should be closed, would be irrelevant to the central basis upon which the judge correctly decided to grant the stay of the proceedings of crime proceeding, namely, that it was in the interests of justice that the issues pertaining to the admissibility of the evidence of the AN0M messages be agitated and determined in the criminal proceedings, before the hearing of the POC proceedings.
For those reasons, ground 5 does not succeed.

Ground 6 — submissions

In respect of ground 6, counsel for the applicant noted that the judge found that it was likely that in Zayneh’s criminal trial the prosecution would seek to rely on tendency evidence in support of the conspiracy charges. Counsel submitted that that consideration is erroneous, because there is no evidence that the prosecution does intend to rely on tendency evidence. Further, it was submitted, the possibility, that such evidence might arise as a result of the POC proceedings, is not a ground on which a stay could be granted in accordance with ss 319(2)(a) and 319(3) of the POC Act.
In response, counsel for the respondents submitted that it was open to the judge to infer that it was likely that tendency evidence would be adduced in a criminal trial in respect of the suspected previous offending by Zayneh. Further, contrary to the submission made by the applicant, such an issue is not precluded from consideration by ss 319(2)(a) and (3) of the POC Act. In particular, it was submitted, such circumstances may be taken into consideration in determining whether to grant a stay, as long as there are one or more grounds other than those that come within the scope of s 319(2).

Ground 6 — analysis and conclusion

Ground 6 is directed to passages in the reasons of the judge in which his Honour considered that the issues in the exclusion applications were likely to be co-extensive with the issues in the criminal trial concerning tendency evidence. In particular, the judge considered that it was likely that the AN0M telephone intercepts, in relation to importation offending that preceded the conspiracy charges, were likely to be relied on by the prosecution as tendency evidence in support of its case on the conspiracy charges on the basis of tendency evidence, which evidence would also be relevant to the proceedings under the POC Act for exclusion orders and forfeiture.[66]
[66]Reasons, [33], [98], [101] and [110].
Sections 319(2)(a), 319(2)(c)(iii) and 319(3) of the POC Act make it clear that in the circumstance, that the same evidence might be adduced in both the criminal proceeding and in the POC proceedings, was not, of itself, a permissible basis upon which to stay the POC proceedings until the determination of the criminal proceeding.
However, it is quite evident that the judge did not rely on that circumstance, alone and of itself, as a basis for ordering the stay. Rather, as the judge noted, the point relating to the tendency evidence was relevant, because, in each case, that evidence was to be established by evidence of the AN0M telephone intercepts. Specifically, his Honour stated:
I am satisfied that the AN0M telephone intercepts in relation to prior importation offending are likely to be relied upon by the Crown to establish the conspiracy charges on the basis of tendency evidence. This evidence is also relevant to the proceedings under the Act for exclusion orders and forfeiture in the context of the Commissioner’s assertions that the relevant restrained property was not lawfully obtained or was an instrument of the earlier offending.[67]
[67]Reasons, [101].
In that way, the issue relating to the tendency evidence necessarily involved the issues of admissibility concerning the evidence of the AN0M intercepts. For the reasons discussed in determining grounds 1 and 2, the judge was correct to order the stay of the POC proceedings until the resolution of the criminal charges, which would involve, itself, the appropriate forum for consideration and determination of issues relating to the admissibility of that evidence.
For those reasons, ground 6 does not succeed.

Summary of conclusions

For the foregoing reasons, the applicant has not succeeded in respect of the six proposed grounds of appeal. In the circumstances of the case, it is appropriate to grant the applicant leave to appeal, but order that the appeal be dismissed.

SCHEDULE OF PARTIES

THE COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE Applicant

and

DANNY ZAYNEH First respondent

AGNES SZWEDZIK Second respondent

DTZ PROPERTY INVESTMENTS PTY LTD Third respondent

D&A PROJECT CONSULTANTS PTY LTD Fourth respondent

THE COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE	Applicant
and
DANNY ZAYNEH	First respondent
AGNES SZWEDZIK	Second respondent
DTZ PROPERTY INVESTMENTS PTY LTD	Third respondent
D&A PROJECT CONSULTANTS PTY LTD	Fourth respondent

[2025] VSCA 65

8 April 2025