Commissioner of the Australian Federal Police v Zhao & Anor
[2014] HCATrans 274
[2014] HCATrans 274
IN THE HIGH COURT OF AUSTRALIA
Office of the Registry
Melbourne No M92 of 2014
B e t w e e n -
COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE
Appellant
and
QING ZHAO
First Respondent
XING JIN
Second Respondent
FRENCH CJ
HAYNE J
KIEFEL J
BELL J
KEANE J
TRANSCRIPT OF PROCEEDINGS
AT CANBERRA ON THURSDAY, 4 DECEMBER 2014, AT 10.14 AM
Copyright in the High Court of Australia
MR J.T. GLEESON, SC, Solicitor-General of the Commonwealth of Australia: May it please the Court, I appear with MR D.J. NEAL, SC and MR P. KULEVSKI for the appellant. (instructed by Australian Federal Police – Proceeds of Crime Litigation)
MR T.D. BEST: May it please the Court, your Honours, I appear on behalf of the respondents. (instructed by Chiodo & Madafferi)
FRENCH CJ: Yes, Mr Solicitor.
MR GLEESON: Your Honours, the appeals raise questions concerning the correct test for a stay of civil forfeiture proceedings, particularly under the Proceeds of Crime Act 2002 (Cth). The issues are slightly different in respect to each of the respondents, and I will deal with them in turn, if I might.
In respect to the second respondent, the husband, his essential ground for a stay of the civil proceedings was to assert that there was overlap between the civil forfeiture proceedings and criminal charges against him, and that he should not be required to be placed in a position of choice between giving evidence in the civil proceedings to defend interests in property on the one hand, and that evidence then being potentially available to the prosecution against him in the criminal proceedings.
The Court will see at page 171 of the appeal book at paragraph 50 the central reason why the Court of Appeal accepted that proposition. It is a reason that is fleshed out in the following paragraphs and it is one that we respectfully criticise. The Court of Appeal interpreted this Court’s decision in Lee v The Queen (2014) 88 ALJR 656 - that I might refer to as “Lee No 2” - as implying that when the subject matter of the forfeiture proceedings is substantially the same as the subject matter of the criminal proceedings then unless the forfeiture proceedings are stayed until completion of the criminal proceedings the Crown may be advantaged in a manner which fundamentally alters its position vis-à-vis the accused and, therefore, renders the trial of the criminal proceedings unfair.
KIEFEL J: Even if Lee does not say that, as I understand you to submit, is that not a relevant matter in the exercise of a discretion in relation to a stay?
MR GLEESON: The answer to that, your Honour, will probably be yes in the sense that there will be two stages to the analysis. The Court of Appeal’s understanding of Lee No 2 is that when the court spoke of the accusatorial principle and the right not to be compelled to assist the prosecution, that that should be treated as having a further application to the case where you voluntarily choose to speak for a good reason produced for instance by other proceedings.
Where the court has gone wrong we would submit is that they have rendered a stay almost inevitable in every case of overlap because the voluntary choice – whether to speak or not speak – is treated as an abrogation of the accusatorial principle. That is the way they put it. Therefore, they say, when we read the statute we need to find clear language telling us that that abrogation has been authorised and we do not find that clear language in this statute. Our initial point is that that approach to the construction of the statute is not correct because a voluntary choice to speak is not an abrogation of the accusatorial principle.
We will come then to your Honour’s point – is it relevant in the discretion – and at that point, the judge conducting the civil forfeiture proceedings has all the powers of the court to determine what the interests of justice require. One of the things available to the judge, as was pointed out, is if an appropriate case is made out to make orders which would prevent the material going perhaps to the prosecution.
HAYNE J: That means doing it in camera?
MR GLEESON: It will mean – it could mean dealing with it at several stages, your Honour. It could mean at the stage of service of the evidence between the parties, so the parties can prepare the civil forfeiture case. The directions of the court may simply require service. At a certain point, no doubt, when the matter comes on for hearing, the court will have to consider whether to make an order or not in camera.
The court will at that point engage with the provisions in Victoria. We have provided a bundle – the provisions under the Open Courts Act 2013. The court would consider under Part 3 what are described as proceeding suppression orders and the court would consider under Part 5 closed court orders consistent with those provisions.
HAYNE J: As a matter of overall health of the system, why should we look towards at least the possibility of civil proceedings being conducted in camera if, and it may be a very large if, the position of the Commissioner is in no way prejudiced by waiting? What is the prejudice that the Commissioner suffers by waiting prosecution of the criminal trial?
MR GLEESON: My first answer will be when I come to look at the whole of the Proceeds of Crime Act and take your Honours through it I will seek to show that it establishes a scheme where, in general, the process is to be conducted expeditiously with a view to making restraining orders and then making final orders or not, and that the objects of the scheme enable the civil proceeding to go forward independently of any possible criminal proceedings.
In that sense the question will not simply be what prejudice do you suffer as a Commissioner? It will be that the Act enables the civil proceeding to go forward independently of the criminal proceeding. If one does come to the question of prejudice, and when one looks at the objects of the Act, the objects are to deter, they are to strip people of proceeds of crime and the money is then to be utilised in the manner provided for by the Act.
We would submit that those general objects are undermined if the Court of Appeal’s approach is treated as the general approach, namely, every civil forfeiture proceeding will be stayed pending overlapping criminal cases. But at the first stage of the argument – before I move to the Act, which I need to do in detail, and to the issues of discretion – I am simply seeking to establish that the way in which the Court has interpreted – this Court in Lee No 2 – and found itself bound to interpret it, is wrong because the interpretation the Court of Appeal has come to is that it was not even open to the Court to consider protective orders.
It was bound to grant a stay once it ascertained there was overlap and the error that we submit arises in that is that the accusatorial principle provides a right not to be compelled to assist the prosecution. But the accusatorial principle is consistent with persons being able, if they choose for whatever reason, voluntarily to speak and, as we have indicated in paragraph 5, there is a whole range of circumstances in which persons facing criminal charges may choose voluntarily to speak in a way that may reveal a defence and if a person chooses to speak or not that should not be treated with derogation from or an abrogation of the accusatorial system of justice.
HAYNE J: Can the same proposition be put as whether a person chooses to defend the proceeding or not? You speak of volunteering and voluntarily speaking. Is it not really, are you going to defend or not?
MR GLEESON: If your Honour is speaking of the civil forfeiture proceedings ‑ ‑ ‑
HAYNE J: Yes.
MR GLEESON: Yes – if the person claims an interest in the property, a person under the scheme is required to apply for an exclusion order – I will come to that – and the person has to make out grounds upon which the property should be excluded from the restraining order and if they fail to do so, everything else being met, the order will be made against them.
So there is no doubt that the reason the person might choose to speak, as I put it, could be a very important one. We do not minimise that for one minute. But one only needs to think of the range of circumstances in the law in which people who may face criminal charges choose to speak to appreciate, we would submit, that it is not an abrogation of the accusatorial principle when that occurs.
One of the examples we have given is that a person may choose to speak as a party or as a witness in an action. They may choose to do so in administrative proceedings. They may choose to do so outside the court process altogether. We have provided the Court with one case discussing choice to speak as a party. It is the decision of the New South Wales Court of Appeal in Song v Ying (2010) 79 NSWLR 442, which discussed this Court’s decision in Cornwell v The Queen (2007) 231 CLR 260. The issue which Justice Hodgson was dealing with in the Court of Appeal ‑ ‑ ‑
BELL J: I do not believe it has been supplied, Mr Solicitor. I think Mr Kulevski has it.
MR GLEESON: I am sorry, your Honour. The issue being considered in Song v Ying was section 128 of the Evidence Act 1995, and the question was whether, if a party who chose to give evidence as a witness in the proceedings would thereby reveal a crime, could the party say that they were objecting to giving the evidence and thereby obtain a certificate under the section. That was the issue which this Court had discussed, but not needed to conclude, in Cornwell.
The relevant extract from Cornwell is set out at page 23 of this judgment, and particularly paragraph 111 from Cornwell is relevant. In Cornwell the Court had said there was a question whether:
witnesses who are eager to reveal some criminal conduct in chief, because it is thought the sting will be removed under sympathetic handling from their own counsel or for some other reason, are to be treated in the same way as witnesses who, after objection based on genuine reluctance, give evidence in cross‑examination about some crime connected with the facts about which evidence is given in chief.
The Court expressed a provisional preliminary view in 112 that it would strain section 128 to allow it to be able to be used in these circumstances. In short, Justice Hodgson in paragraph 26 concluded that that provisional view was the correct view and that there are distinctions to be drawn in this area between being compelled to give evidence that might incriminate, as opposed to a party giving evidence in‑chief who is not compellable to give the evidence choosing to speak and revealing the crime.
HAYNE J: There must be something after Song v Ying because I have a memory of a leave application where leave was refused which raised the same point. Can you get a 128 certificate in circumstances where you want to give the evidence? Answer – no; leave refused. So there is something, I think – I do not know whether in New South Wales – but there is another case later, I think. I thought leave was refused maybe this year even.
MR GLEESON: Yes, your Honour. The case is footnote 33 of our submissions, Kaddour v The Queen [2013] NSWCCA 243, special leave refused [2014] HCATrans 114).
HAYNE J: Thank you.
MR GLEESON: I only go to that for this purpose – that the distinction between being compelled to speak and a choice to speak for reasons good or bad is an important one in understanding whether the accusatorial principle has been abrogated because if it has been abrogated, this Court has now stated very, very clearly that one then needs to find the language that produces that result. That provides a prism through which one then looks at the statute, and that has led to the answers that the Court has given in X7 and what I will refer to as Lee No 1.
But if the Victorian Court of Appeal is in error in the way it has read Lee No 2 and has assumed, in effect, that in every situation of – let us call it practical compulsion – the practical compulsion provides an abrogation of the accusatorial principle and therefore you need language expressly permitting practical compulsion, then we would submit Lee No 2 has been over‑read and an error has been brought into the law.
One can see the nature of the error because, returning to the judgment at page 172, the court in paragraph 51 analyses Lee No 2 and correctly observes it is a case about compulsory examination, it is a case about protective orders being made and, most importantly, protective orders being breached. We submit the essence of Lee No 2 is where orders which were made which were intended to protect the integrity of a criminal trial were breached such that the balance between the prosecution and the accused was fundamentally altered in an unlawful manner then, on the appeal, it can be concluded there was a miscarriage of justice.
So, Lee No 2 has those elements – number one, compulsory examination; number two, protective orders made and breached, therefore unlawful conduct; and, number three, an alteration of the balance between the prosecution and the accused through unlawful conduct with the result that there was a miscarriage of justice.
The Court will see at paragraph 52 that counsel for the Commissioner sought to make a submission that Lee should be understood in the way I have just put it and the Court at paragraph 53 said we reject that submission and they say:
logically the High Court’s reasoning in Lee No 2 appears to dictate that –
and they then set out three propositions and those three propositions are unexceptional provided they are understood as a right of an accused not to be compelled to assist the prosecution. But if those three propositions are to be read as meaning the broader position whereby if I am an accused I have a legal right not to be placed in any position before any court or other body whereby I might have to make a choice whether to speak or not and that is part of my right under the accusatorial principle then we would submit that is a very large extension which is not supported by Lee No 2 or the discussion of this Court. When one comes to paragraph 54 we would disagree with the emphasis in the first sentence where:
The failure of the non‑publication order –
is said to reinforce:
the importance of these principles.
Rather, we would submit, it was the breach of the non‑publication order and the unlawful breach - that is what generated the alteration to the criminal system which required a finding of miscarriage. You will see at the end of the paragraph that the Court of Appeal reads what your Honour Justice Keane and Justice Gageler said in Lee No 1 as said to be consistent with this approach. We would respectfully submit that that is not a correct reading of your Honour’s judgment there. Then, one sees that sets the frame on page 175 in which the Court of Appeal says, well, we now have to look at this Proceeds of Crime Act and, in particular, paragraph 57, we are going to look at section 319 - I might observe not look at the whole of the Act, but 319 - and we are going to need to find in that an abrogation of – it is expressed this way:
the privilege against self‑incrimination to the extent of taking away the right of the accused to require the Crown to prove its case without the accused’s assistance.
They say we cannot find that. Our short submission is that is the wrong question being applied and it should never be asked solely in respect to that one section, one should look at the whole Act. Then on pages 176 to 177 the Court frames the penultimate question in paragraph 58:
if the facts are such that the only way in which –
one can protect the accusatorial principle is by stay –
the court is bound to adopt that course.
There is some factual matter at 59 as to whether there was overlap here - I will come back to that near the end. Then when one comes to 61, when the proposition is put, well, the court has powers short of a stay which need at least to be considered, the court’s answer is no, we are not even permitted to consider protective orders because, they say, there is a fundamental difference between Lee No 2 and the present case. Your Honours, we would submit that paragraph 62 which is the lynchpin of the error shows that the analysis has miscarried.
The Court somehow views Lee No 2 as a case where the best the Court could do to protect the privilege was to order the evidence not to be disclosed. Well, that is not the real point of Lee No 2. The point is the order was made and breached, and then here is the key point: in contrast, and by distinction with Lee No 1, according to our construction of 319, there is no abrogation of so much of the privilege against self‑incrimination as consists of the right to insist upon the Crown proving its case without his assistance and therefore no statutory warrant to detract from that part of the privilege by allowing the forfeiture proceedings to proceed to trial.
So, the end result one reaches on this approach is whenever you can point to overlap you are to regard the prospect of the person having to make a choice as an abrogation of the principle. It is an abrogation which the law will not tolerate, absent clear words in the statute and, therefore, you always stay the civil forfeiture proceeding whenever there is overlap. So, your Honours, that brings us down really to the end of paragraph 9 of the outline, which is our first area of submissions, mainly to seek to establish that this approach is wrong in law and it led to a wrong reading of the Proceeds of Crime Act.
FRENCH CJ: You say too, do you not, that the correct approach, putting Lee No 2 to one side, yields only one outcome and that is the refusal of a stay, in the circumstances of this case?
MR GLEESON: Yes, yes.
BELL J: Mr Solicitor, just directing your attention to the terms of the forfeiture application at appeal book 63, what the Commissioner set out to establish was that the property sought to be forfeited is the proceeds of the commission of an offence, namely, dealing with proceeds of crime contrary to section 400.4(1) of the Code, by virtue of living on the earnings of sex workers, contrary to section 10 of the Sex Work Act. Those were the two charges which the second respondent was then committed for trial to answer. When in your submissions you speak of mere overlap that might be putting it a little low. What area other than complete overlap, in the circumstances of this case, is there?
MR GLEESON: Your Honour, that will bring me to the factual part of the case but if I could identify briefly now that the charge itself is on page 24 and the charge is that during six months in 2013 the second respondent aided and abetted Mae Jia Kim to deal with proceeds of crime and then it refers to the sections your Honour has referred to.
BELL J: Yes.
MR GLEESON: The issue in the case, in particular, is going to be whether either the Donvale property or the Southbank property are the proceeds of crime, and in respect to them the evidence which the second respondent gave ‑ and this is essentially at page 26 and 27 ‑ he firstly deposed to his fear that he would have to provide evidence if he wanted to oppose the application.
One of the points we seek to make is nowhere on page 26 or 27 does he identify what his evidence would be. He does not say what the evidence would be. He says, I would have to give evidence, and perhaps that is a logical truism. If he did not give evidence, given the prima facie case, then the forfeiture order would not be too hard to make. So one of the reasons we say that the judge was not even at the stage of considering whether a protective order was necessary was the judge did not even yet have evidence of what it was that he wanted to say in relation to this defence, but that may not quite answer your Honour’s question.
BELL J: For my own part, I have difficulty imagining what a person might say in evidence in seeking an exclusion from the making of a forfeiture order in the circumstances disclosed in the Nicholson affidavit that would not bear directly on the prosecution case in support of the charge for which he had been committed for trial. The one goes with the other. There are many instances, Mr Solicitor, where it may be accepted that proceedings for forfeiture could go ahead before the criminal charge because there is no obvious area of overlap, but this seems to be a very different case.
MR GLEESON: Well, I do not want to overstate the point but I do need to draw your Honours’ attention to a point of detail on page 27 which is the closest he gets to saying what his peril is – his paragraph 21, 22 and 23, and in 21 he refers to the evidence which had been put on from the Commissioner which had referred to certain transactions in 2011 in respect to one of the properties. The charge is 2013 and he refers to this evidence in 2011. He then says over the page, well, I would have to give some evidence as to purchase so I would have to say something about, apparently, the 2011 matters – not the 2013 matters – but to go on to be fair, he says in 24:
the charges . . . [of] 2013 . . . I will be cross‑examined about other matters such as the origin of particular funds and assets outside of this period –
So it may be a smaller point but I do seek to affirm that he is charged with 2013 conduct. The only thing he points to here that he wants to respond to is 2011 evidence. It is 2011 evidence which is key to the proceeds of crime case and he says ‑ ‑ ‑
BELL J: That 2011 evidence – key to the proceeds of crime case – forms the basis of the prosecution, does it not? The reasonable suspicion is this property has been acquired in connection with the ‑ ‑ ‑
MR GLEESON: It forms the basis of the civil forfeiture action, no doubt.
BELL J: Yes, yes.
MR GLEESON: All I am drawing attention to is the criminal charge.
BELL J: Is specified as a later time and a discrete time period of five months in 2013.
MR GLEESON: Yes.
BELL J: Yes.
MR GLEESON: What he says is, “I have got something I would want to say in answer to the civil case. I do not tell you what it is. I do not identify that my story is going to be an inheritance, or gambling, or lawful income that I have not declared to the tax man. I do not tell you what it is, but there is something I might want to say about 2011 events and this case, in cross‑examination, might cause me to be asked about 2013”.
BELL J: Yes.
MR GLEESON: That is why I have sought to say that this is not a case where you say there is evident, smack on identity, between the criminal and the civil. Our whole case does not hinge on that but I do not want to just depart from that factual point.
BELL J: Yes.
FRENCH CJ: I suppose one possible perspective is that in the sense the focus in the Court of Appeal on Lee No 2 is something of a distraction, and let us suppose that is found to be an erroneous approach. The question then reduces to was there only one way of exercising the discretion, that is to say, adversely to the respondents.
MR GLEESON: Was there error in the trial judge saying given my general appreciation of how the civil proceedings are meant to go forward, given this is the material I have before me, namely, an assertion that I have something I might want to say, or I do want to say – I do not tell you what it is yet – and query the temporal link is a little elusive, is the judge required at that point of the civil proceeding to say stop, we stop now and we resume in an indefinite period of time, or – and this is the second part of our argument – is it within the scheme of the Act and a proper exercise of discretion for the judge to say the indications in the Act are that the civil forfeiture proceeding is an independent proceeding of the criminal proceedings and I should see if it is possible for it to go forward and I should see if that requires protective orders. What we would submit a judge would do is certainly not stay the matter at this stage. A judge would have made orders for the parties to at least identify the evidence that they truly wanted to bring to exchange that evidence, and then when one had a conception ‑ ‑ ‑
HAYNE J: Exchange in the hope that a protective order would be made? Exchange on the basis that a protective order was made? Exchange on what footing? The horse bolts, so what is the footing?
MR GLEESON: They would be the questions for the judge, and it is clear from the part of the judgment I have been to that counsel for the Commissioner said we are willing to submit to immediate protective orders. A wise exercise of the discretion may have been, well, in the first instance protected with an order so there is no immediate harm, and then, when one has seen what the material is on both sides one would then review what orders were necessary and one would review how a hearing might be conducted.
The position is particularly stark, of course, with the second respondent, who is not facing a charge and has given no evidence that she intends to go into evidence and is deposed to no prejudice. She has obtained the benefit of a stay on the ground of multiplicity of proceedings, but we would submit that a wise exercise of discretion in this case would have been make the orders to have the case go forward to hearing, make protective orders if they were desired, and then review the matter before the hearing and determine how the hearing was then to proceed. Therefore, when the Court of Appeal was looking for House v The King error in the trial judge’s approach, which was to say you have not yet persuaded me a stay is necessary, there was no error.
Your Honours, I have gone there, as it were, in advance to the matters I wished to come to last, which are the discretion. The intermediate step of our case, which is paragraphs 10 to 13 of the outline, is to offer your Honours a construction of this Act. The construction that we offer, and it will be in some detail because there is quite a bit in this Act, is in many respects similar to the New South Wales Act which the Court considered in Lee No 1, but there are some differences. The point we will seek to establish as per paragraph 11 is that a consideration of the objects, purposes and provisions of the Act:
provides that the civil forfeiture proceedings should go forward, as to both their substantive and ancillary processes –
Lee No 1 was very much about the ancillary process of compulsory examination; this case is very much about the substantive process. That is to occur –
independently of the criminal process and irrespective of whether there are pending criminal charges against a person with a proprietary interest in the property.
KIEFEL J: Well, as a matter of construction, the question is going to be whether it should go forward or could go forward.
MR GLEESON: Yes. I want to put it at the level that your Honour Chief Justice French put it in respect to the New South Wales scheme in Lee No 1 – that the Act enables it to go forward in those circumstances. I am not going to go the next step of saying the Act requires it to go forward and that leaves scope for the discretion. So that is what I had sought to put to your Honour Justice Kiefel earlier this morning – it enables this process to occur, and perhaps ordinarily expects it to occur, but does not require it to occur. Now, if your Honours then have the Proceeds of ‑ ‑ ‑
FRENCH CJ: Well, that is to say, the legislative scheme and purpose is something which informs the general discretion of the trial judge to order a stay of those proceedings before him.
MR GLEESON: Yes.
HAYNE J: Well, can I then understand better where we are going. If the proposition the civil proceedings can go forward, I understand that proposition – I do not think it is a proposition that is controverted, or at least controvertible. The question then becomes, what more are you trying to get out of the Act other than civil proceedings can go forward. You do not want to go so far as to say “must”. What is the intermediate?
MR GLEESON: Ordinarily will, with any questions of risk to the criminal trial being dealt with primarily by protective orders if appropriate, with a stay being reserved for the last resort. A stay would only be considered when all intermediate steps are unavailing. So if I could ask your Honours then to bear with me while I identify some parts ‑ ‑ ‑
FRENCH CJ: I am sorry, does that mean, for example, that consideration of factors such as the burden on the respondent to forfeiture proceedings in dealing with those when criminal proceedings are pending, quite apart from questions of self‑incrimination or the rest of it, is irrelevant?
MR GLEESON: I am not sure I could suggest it is irrelevant because we are dealing with a court process ‑ ‑ ‑
FRENCH CJ: Yes.
MR GLEESON: ‑ ‑ ‑ where the interests of justice are central to the matter.
FRENCH CJ: You say somewhere in your submissions life is made more difficult for the respondent as though that does not really ‑ ‑ ‑
MR GLEESON: Well, no – I think it is the way I have just sought to put it to your Honour, that it is one of the important features of it that this is a civil trial being conducted by a court with all the powers and the duties of a court to both enable the matter to go forward under the statute as well as through a proper and wise exercise of judicial power, and that carries with it – when I come to show your Honours in just a moment if I can, some provisions of the Act, some do provide some restriction on what might be the approach which an ordinary, general civil court unrestrained would apply to questions like burdens, so it is pretty important that I come to show your Honours that there is a default position in the Act – that once a restraining order is made, after six months, that order will become final unless the person with an interest in the property is prepared to mount and establish an exclusion order.
So there is a general indication from that provision that I will come to that this is a proceeding which is intended to produce an expeditious outcome in the interests of all concerned because there may be various persons with ownership interests in the property and all of those persons can be affected until one has certainty as whether the property is forfeit, and the ‑ ‑ ‑
KIEFEL J: Speaking of expedition, at the time the primary judge made his decision on the stay, had a date been given for the criminal trial?
BELL J: I think at that time the committal had not been heard.
KIEFEL J: Had the committal had not been heard.
FRENCH CJ: I think it had been fixed for August 2013 or something, had it not?
MR GLEESON: I will just check that, your Honour, I ‑ ‑ ‑
KIEFEL J: The criminal trial now is to be heard in ‑ ‑ ‑
MR GLEESON: It is now fixed.
KIEFEL J: It is now fixed for next year ‑ ‑ ‑
MR GLEESON: Next year, August 2015, for eight weeks. My apprehension was at the stage - the direct answer to your Honour’s question is no, that was not known then. It came later.
BELL J: It is appeal book 3, paragraph 2 - at the date of the primary judge’s decision a committal brief had been prepared but the committal was yet to be held. At the date the Court of Appeal considered the matter the second respondent had been committed for trial and a trial date fixed.
MR GLEESON: Thank you, your Honour. So in the Act, if I could start with section 5 and the objects, particularly paragraphs (a):
to deprive persons of the proceeds of offences, the instruments of offences . . .
(c)to punish and deter persons from breaching laws . . .
(d)to prevent the reinvestment of proceeds, instruments . . .
(g)to provide for confiscation orders and restraining orders . . . to be enforced –
and so on.
HAYNE J: Now, all of those are public purposes. Ordinarily, one would expect the courts exercising functions would exercise those functions in public pour encourager les autres, amongst other reasons. True? One would not expect it to be done in camera.
MR GLEESON: I am not arguing for a general rule that these proceedings would be closed and I fully accept the importance of the open justice principle. I do say that in Victoria the manner in which the open justice principle intersects with these proceedings as with other proceedings is determined and governed by the Open Courts Act that I have taken the Court to and that in section 28 refers to the presumption which your Honour has mentioned and it then goes on to indicate how and when proceedings might be closed including in section 30(2)(a) if:
the order is necessary to prevent a real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by other reasonably available means –
So the Civil Court, if asked to close the court, would apply that test and we would therefore submit it would be erroneous to reason that because in general open justice is the norm one gets to some particular presumption about stays. What the court would do is direct its mind to this question. In some cases that might lead to the court being closed, in other cases it will not. The short point is a judge could not really make an informed decision on that question until the judge was at the trial and knew what was the shape of, not just the evidence, but the submissions which the parties wanted to lead.
When it comes to the trial, it may be the second respondent will have nothing to say. It may be the second respondent will have nothing to say which could impinge on the criminal trial. It may be by then the shape of the criminal trial is far better known than it is at the moment. What has happened here is that a proper consideration of these sorts of discretions has been foreclosed because of the general view you always get a stay if you assert there is something that you must say in defence of the civil trial.
HAYNE J: Now, the Victorian Act may well have been picked up by the Judiciary Act, but its terms surely cannot affect construction of the federal Act? The federal Act must be construed, must it not, against generally applicable principles rather than the particular exposition of open justice principles found in the Victorian legislation?
MR GLEESON: I would like to think about that, your Honour. I am not sure that is correct in principle because with the open justice principle, for example, we know that there is a framework in Australia whereby it has an important origin and source in the common law, and we know that it has taken on statutory formulations across different parts of the federation. So if one is to treat it as a background matter we would submit one would not close one’s eyes simply to look solely at a common law rule because the common law rule has effectively been modified and given more particular shape in various ways across the federation.
HAYNE J: But on no view can the federal Act have a different meaning State by State, surely?
MR GLEESON: No, that would be correct, your Honour. We would simply urge the Court to be slow to construe this Act by reference to an assumption that the open justice principle is a monolithic principle when the Court knows that it takes particular forms in different parts of the federation.
FRENCH CJ: Would you put it any higher than this, that the availability of procedures under the Victorian legislation in addition to the legislative scheme and purpose of this Act are factors informing the exercise of discretion in that State?
MR GLEESON: No higher than that. One of the points made by the majority judges in Lee No 1 was that if the powers - in that case, compulsory - have been conferred on a court, there would be a general presumption that the court will be taken as it is found with such powers as a court will have available to it under its rules. It is no higher than what your Honour has put to me that we put it. These are powers not conferred on an administrative body. They are conferred on courts to behave as courts, and courts which across the federation have ample powers, ample powers to deal with the protection of the proper interests of criminal justice. Your Honours, that is all I want to say about the objects.
Next, if your Honours go to section 7, particularly paragraphs (a), (b) and (c), we see that the scheme has restraining orders at the front end, and then it has two pathways. It has forfeiture orders under Part 2‑2, and it has forfeiture of property to the Commonwealth on conviction of a serious offence. The scheme quite deliberately has a conviction‑based forfeiture route, and it has forfeiture orders independent of conviction. I will come to those a little further now.
Could I come then to sections 17, 18 and 19 to make some points about the restraining order stage of the process? One of the submissions I will be making is that the restraining order stage of the process, the scheme operates in such a way that a person with an interest in property cannot hold up the process by reason of a claim that that would involve them revealing a defence to a criminal matter.
So the difference between 17, 18 and 19 is that in 17(1)(d) we have restraining orders that have both person and property at their heart. They have “person” at their heart in the sense that they are persons convicted, charged, or proposed to be charged, with indictable offences. Then the “property” that would be restrained can be found in section 17(3)(b) as the property which:
is subject to the effective control of the suspect; or
(ii) the property is proceeds of the offence –
that is, the one that identifies the person. So one sees fairly clearly from 17(1)(d) that the scheme allows for the restraining order to go forward even though the person is under charge or is about to be charged. The restraining order can be made notwithstanding the person is in that position. Then the property that is covered will be the property that I have identified. Section 18(1)(d) covers the next situation. Again, this is person and property based. It is a person where:
there are reasonable grounds to suspect that a person has committed a serious offence -
So it is perhaps the stage just before the person who is charged, or proposed to be charged, and the relevant property under 18(3)(b) is identified in a similar way to section 17. Each of those types of restraining orders clearly contemplate the making of the orders notwithstanding persons may be under charge or about to be charged or suspected of charge.
We then come to section 19 which is the key one in the present case. This is a restraining order which is very much property based. It is the property that is at the heart of this restraining order rather than the person because one sees from 19(1)(d):
there are reasonable grounds to suspect the property is –
the proceeds of certain defined offences or the instrument of a serious offence. That is why we have, hopefully, not unhelpfully used the description that is in rem forfeiture under section 19 because it is the property treated as evidence of a wrong that is what drives the process. We would submit that under section 19(1)(d) the restraining order can be made focusing on the property as evidence of the wrong, irrespective of whether a person is under charge who may have an interest in it.
The Court sees what are the requirements for the restraining order, particularly the affidavit in 19(1)(e), which is to identify how the property is connected to a wrong. The court must hold the satisfaction in (f) and the “property” under subsection (2) will be the property which has triggered the restraining order application. One can see from subsection (4), there need not be a finding of a commission of a particular offence. There could be a range of offences.
So, thus far, the Commissioner would have an entitlement to obtain this form of in rem restraining order, even in a circumstance where a person with an interest in the property might be under charge which then leads to the next question which is what ability does such a person have to be heard in respect to such an order? Just before I come to that, I should observe in section 24(2)(ca) that allowances for expenses cannot include legal costs of proceedings for offences under various laws, again, a recognition that this restraining order may go forward even though a person could be under charge.
So the question I posed is what ability does a person with an interest in the property have to be heard in respect to the restraining order, and how is that to take place? If your Honours go first to section 26, there are three ways a person with an interest in the property may be heard. The first is that under subsection (1), subject to subsection (4), there is a duty to give notice of the application for the restraining order to owners and to persons interested in the property. When that notice is given, if it is, subsection (6) enables:
A person who claims an interest in property may appear and adduce evidence at . . . the application.
That is the first route to be heard on a restraining order, and we would submit under subsection (6) a person could not hold up the making of a restraining order on the ground that it would give the person an invidious choice. So, if the person came to the judge and said, I may have something I want to say against this restraining order but I do not want to say it because I might reveal a defence to a criminal matter, I want you to stay the application for the restraining order until my criminal trial is over – that would clearly destroy the ability of the restraining order to do its work.
So at that point of the process, the scheme simply would not permit a person to get a stay and so what a person would have to do is make a choice. They would choose, if they wish to say something, to say it, and if they wished, ask the court to make what orders the court thought appropriate to protect their other interests, but the thing they could not get would be a stay. That is the first way the person ‑ ‑ ‑
HAYNE J: Well, they could not get an unconditional stay. The only stay they would get would be on terms ‑ ‑ ‑
MR GLEESON: That the property was restrained ‑ ‑ ‑
HAYNE J: ‑ ‑ ‑ not dispose, and that is orthodox application of stay principles. The point I think is perhaps less full than may be being suggested, Mr Solicitor.
MR GLEESON: Well, as long as it is not completely empty, your Honour.
HAYNE J: Just pass me the glass.
MR GLEESON: That is the first ‑ ‑ ‑
FRENCH CJ: This was an ex parte application for the restraining order, was it not?
MR GLEESON: Yes, so the second route is the ex ‑ ‑ ‑
FRENCH CJ: That is 26.
MR GLEESON: Section 26(3), with the ex parte. Section 26(4) “The court must consider” it, but the court has powers under 26(5) such that it is not bound to behave in a manner that would infringe international finance principle, and that ‑ ‑ ‑
FRENCH CJ: The stable door is open, they can – before the horse is fully out ‑ ‑ ‑
MR GLEESON: If I can just give a reference – a Kable challenge based on that provision was rejected by the Western Australian Full Court in DPP v Kamal (2011) 248 FLR 64. So that is the second way and that is the present way. So the order can be made ex parte, then one would travel over to section 42 where a person could apply for revocation. The order remains in force until it is revoked, and the person is required under subsection (2) to give notice of ‑
the application and the grounds on which the revocation is sought.
Now, we would apprehend that if you are required to give notice of both your application and the grounds it would not be enough just to say, I would like the Donvale property excluded. One would need to put forward a ground as to why the Donvale property was not proceeds of crime.
FRENCH CJ: Well, it either attacks the ground upon which the order was made ‑ I am looking at 42(5) ‑ or somehow it is otherwise in the interests of justice to do so which covers a range of circumstances.
MR GLEESON: It covers a lot, but for the court to have a valid application before it under section 42 it needs to identify, here is my reason why that order should not be made, and that would necessarily require the person to, in some way, negative the case that it was proceeds of crime which had been set up in the affidavit.
So at that point of the process, we would submit, the scheme contemplates, you are faced with an ex parte order against you, if you want it revoked, you will have to choose to speak. You have your choice, do I speak? If I speak, I may be able to get it revoked. If I do not speak, the property will remain restrained. So that is the second avenue to a person affected.
Then the third avenue is under section 29, which is an exclusion order, and in particular under section 29(2)(d). A ground for an exclusion order would be that the interest is not the proceeds of a relevant offence or not the instrument of an offence, and when one goes to section 30(2) we see the familiar language. You must set out:
both the application and the grounds ‑
Now, to make a valid application for an exclusion order you have to say what you want to put before the court to show it is not proceeds of crime. If you do not, you have not made a valid application and there is nothing for the court to consider.
Now, at that point I will just observe in section 32 one starts to see one of the connections between the substantive processes and the ancillary processes under the Act which is that the exclusion application is not to be heard unless the authority has had the reasonable opportunity to conduct the compulsory examinations which emerge under section 180 and following of the Act. Now, in the present case the respondents have filed exclusion applications. If I could just go to the content of them in the appeal book ‑ ‑ ‑
FRENCH CJ: Now, there is no interest of justice ground to support an exclusion, it has to be directed to whether the relevant property is proceeds of crime, broadly speaking.
MR GLEESON: Yes, yes. So that the structure we are seeking to identify, at least up to the stage of the restraining order, is there is an onus on the Commissioner to establish some form of prima facie case that it is proceeds of crime. If you have an interest in the property and you want that order either resisted or revoked, you have to put up or shut up, with some material negativing the Commissioner’s case and that will necessarily require you to identify why it is not proceeds of crime.
Now, in that sense a part of the onus has then been shifted to the property owner under this scheme to identify what it is that is your innocent explanation for the property which, on the Commission’s case, is the proceeds of crime.
BELL J: There is no suggestion that the exclusion applications made in this instance were not valid applications, is there, Mr Solicitor?
MR GLEESON: That issue has not been raised in the case yet. It would be an issue to be looked at if the stay were lifted, that is ‑ ‑ ‑
BELL J: If one looks at the application at appeal book 69, the grounds on which the application made by the first respondent are that her interest in the property “is not the proceeds of an indictable offence” and so forth. Surely to make a valid application one is not required to disclose the evidence that will be adduced in support of the ground?
MR GLEESON: I do not want to rest on a technical point. The point I am seeking to make is a substantive one, that for this to be an exclusion application that a judge would be called upon to consider it could not rest at the stage of this application, because this application says “I assert that Donvale and Springfield are not proceeds of crime”. It does not identify any ground upon which they are not proceeds of crime; it refers to the affidavits, and the affidavit to date is the one I have taken the Court to, which does not identify any evidence as to why Donvale or Springfield would not be proceeds of crime. The point this matter has currently got to, even if one assumes technical compliance with the section, even if one takes a view that “grounds” does not mean telling the court why you say it is not proceeds of crime, if this is where the respondents’ case sat when the exclusion application was called on for hearing, it would be dismissed. That is important because ‑ ‑ ‑
KIEFEL J: But it does not assume any particular relevance in relation to the stay, does it?
MR GLEESON: It does for this reason, your Honour, because when one comes to the next stage of the process, which is the forfeiture stage of the process, and I take the Court to section 49 in particular – I will come back to 47 and 48 – under section 49, when the court deals with the Commissioner’s application it must order the forfeiture if certain matters are present. The first is that the Commissioner has applied for the forfeiture; that has been done. The second is:
the restraining order has been in force for at least 6 months –
That is a period, one might infer, designed on the one hand to allow enough time for persons on either side of the record to gather their evidence, including compulsory examinations, and including the interested parties deciding what they want to bring forward, but on the other hand, creating an outer limit that if you have had a restraining order for at least six months, you will have ticked the second of these boxes in order to trigger the court’s duty to make the order.
The third box, paragraph (c) is what would be the Commissioner’s ordinary onus on the forfeiture application – satisfaction that it is proceeds of crime. Then - at least in my version there is no (d) and then there is (e) – notice must have been given. If the Court drops immediately down to subsection (3), the paragraph (1)(c) obligation does not apply if there has been no application for exclusion from a restraining order, or:
any such application that has been made has been withdrawn.
So, as part of this shifting of onus, if I do not make an application for exclusion and by that one would mean not only a technical compliance with an application, but one that has got something in it for the Court to consider – one that the Court is bound to consider – then the forfeiture order will be made once six months have passed. This is where ‑ ‑ ‑
HAYNE J: So, application is more than engaging the process of the Court. Application is what? Application that you said had something in it.
MR GLEESON: Yes.
HAYNE J: What is the content of that proposition?
MR GLEESON: Well, let me put it at two levels. The first level is that when you have to identify grounds in an application, to make it an application the grounds for exclusion need more than simply saying, “I assert property X is not the proceeds of crime”. The grounds need to treat with the issue that has been raised by the Commissioner in the affidavit as to why it is proceeds of crime. So if your explanation is this is an inheritance that ought to be part of your application. That is the first level at which I put it.
The second level at which I put it is that even if one took a view that technical compliance requires only identifying the property that you wish to have a fight about – even if that is all you do – what the court is looking at under paragraph (3) is to say “Do I have an application before me which tenders material for me to properly consider as to exclusion?” In the present case, if the respondent left the record where it currently is, there is nothing for a court to consider by way of an exclusion application.
HAYNE J: Is either of those propositions consistent with what I think is a quite large body of established law in other civil proceedings, the detail of which I cannot bring to mind but which I think stands for the proposition that you make an application by engaging the process, by engaging the jurisdiction of the court, by filing your application. Statement of grounds, and the like is something that then ensues.
I have in mind particularly things like tolling statutes of limitation, whether you have commenced action within time. I have in mind also, I think, a body of learning in company law about can you apply to set aside a statutory notice, that kind of area. I suspect – but do not know – Mr Solicitor, that the proposition you advance is one which may not sit well with other quite well‑developed learning.
MR GLEESON: It will be statute specific, your Honour. The view I am putting on this statute is that the grounds are required as part of the making of the application. They play a very important part in the process. They are to – they are, so that the court knows and the Commissioner knows what is it about the case that I put forward which got the restraining order which is now contested and why is it contested so we can have a controversy for which I can then prepare my evidence because one of the peculiar features of section 49 ‑ ‑ ‑
HAYNE J: The Commissioner must be in that position at the point of filing of application?
MR GLEESON: The application will identify the ground and the ground will enable the Commissioner to take the steps I have mentioned and one of the peculiar features of section 49 is that ordinarily it has cross‑onuses in it. There will be cross‑onuses because the Commissioner has the obligation under (c) to satisfy the court that it is proceeds of crime whereas, if the exclusion application is to be good, there will be an onus on the person with an interest in the property to assert it. Now, the only way that can really work as a court case is if there is some joinder of issue as to – we know the Commissioner’s case, we need to know why you as a person interested say that is not proceeds of crime.
BELL J: But, Mr Solicitor, given that this is a statutory scheme of forfeiture of property, why would one read it in the way for which you contend rather than seeing that 49(3) provides a mechanism in those possibly quite frequent cases where no one has an interest in coming forward to claim property that is the proceeds of crime so that the mechanism then for forfeiture follows upon restraint, virtually automatically. But when a person indicates an interest by the making of the application, that automatic consequence does not flow. Why would that not be the way one would read a statute dealing with compulsory forfeiture of property?
MR GLEESON: It certainly covers the case your Honour has mentioned. If the further submission I put is unacceptable I have nothing more to put in support of it. I put it as best I can. Let me then ‑ ‑ ‑
HAYNE J: The case I had in mind, Mr Solicitor, I think, is Renowden v McMullin 123 CLR 584 about the effect of filing a general endorsement. This is dredging into memories that are long since forgotten, Mr Solicitor, so the purchaser should make his own inquiries.
MR GLEESON: I do not resile from saying it is statute specific because there was a long body of practice learning as to the relationship, for instance, between a summons and a pleading and the like. So it is a question what this statute requires. Let me put it on the lesser level. Let us assume that this is a valid application and that is all that has happened. The position then is the judge says, well, at the moment, unless they withdraw this application they have done what they need to do under (3) so I have a case before me which would otherwise come forward for hearing where the Commission is going to have an onus under paragraph (c) and where the interested party is going to have an onus under their exclusion application.
An ordinary exercise of discretion of the judge would be in a civil case, “I need to make orders which will bring this thing on for a hearing. I know that if the interested party rests where they currently are at a hearing they will fail on their onus. They have nothing so they will have to – if they wish to pursue this application – provide me with evidence to show what is the innocent explanation for the proceeds of crime”. So when we come to a proper exercise of discretion we would submit it would simply be take steps to bring the matter forward in a way in which one can ascertain its readiness for hearing and what the issues are at a hearing.
FRENCH CJ: This might be by way of directions ‑ ‑ ‑
MR GLEESON: Directions ‑ ‑ ‑
FRENCH CJ: ‑ ‑ ‑ or particulars, filing of affidavits and so forth.
MR GLEESON: Particulars – all of those things. All of that can be done, and in the course of that, the Commissioner has shown his hand, the person interested will have to show their hand. If they choose not to show a hand, then when it comes on for a hearing of the two applications together, the Commissioner is ordinarily likely to win.
BELL J: Why are we not now at the point where the judge apprehending the identity of issues between the civil proceeding and the pending trial in respect of which the interested party has been committed, why are we not at the stage where the judge considers that the interests of justice might favour the grant of the application to stay?
MR GLEESON: For a very simple reason, your Honour. This trial judge did not know – because there was no evidence – what it was that this person proposed to say. This person ‑ ‑ ‑
BELL J: This person, you say, should have been required to put on an affidavit disclosing the matters that he wanted to say and which he claims would have prejudiced him in the conduct of his trial.
MR GLEESON: Yes. He should have said ‑ ‑ ‑
FRENCH CJ: It is a catch‑22, is it not?
HAYNE J: Joseph Heller is alive and well, Mr Solicitor.
MR GLEESON: Well, but absent that, the way this scheme then plays out is that simply to observe overlap of issues – let us assume overlap of issues ‑ ‑ ‑
KIEFEL J: It is not overlap. It is identity of issues.
MR GLEESON: Well, it is not identity, your Honour, for the reason I said ‑ ‑ ‑
HAYNE J: It is the dates.
MR GLEESON: But it is to observe that – and then to say – without knowing whether this person in fact is going to lead evidence in a civil case, without knowing what the evidence would be, the procedure must grind to a halt.
KIEFEL J: There are two distinct questions, Mr Solicitor. The question of whether or not they have put forward some evidence is distinct from the question of whether or not the same or very similar question arises in each proceeding, because that is really an administration of justice question. It is a multiplicity of proceedings question. Can you point to where the trial judge actually considered the question about whether or not the proceedings would be dealing with the same issue?
MR GLEESON: I will try and answer that, your Honour, and then if I might come back to the statute. There are a few more provisions to come to. On page 4, in the top paragraph, his Honour said:
The embrace of the forfeiture application includes the property belonging to the applicants that I have referred to above. No material has yet been filed by the respondent in support of that application. The consequence is there is presently no material before the Court upon which the relative strength –
It then refers to the applications by the applicants, then refers to the application by the stay, then goes to the affidavit – so this is the case being put forward by the second respondent – and sets out paragraph 20. Now, paragraph 20 is conclusory of the affidavit. I am concerned ‑ ‑ ‑
KIEFEL J: Yes, the primary judge is dealing with it in relation to whether or not there is a risk to them, but ‑ ‑ ‑
MR GLEESON: What his Honour is saying in paragraph 8 is if I do not have sufficient evidence from you of how it is that this real risk is really going to emerge, then I do not have a sufficient case of prejudice that leads me to a stay ‑ ‑ ‑
KIEFEL J: I understand that, but I think the answer to my question is the primary judge did not deal with the question of whether or not the same subject matter inhered in each proceeding.
MR GLEESON: Can I just pause on that, your Honour?
KIEFEL J: If it had, the primary judge would have then considered whether or not the interests of justice required that the criminal proceeding be heard as a matter of expedition and in terms of the efficiencies and the use of court resources that the criminal proceedings be determined first and the forfeiture proceedings wait over, and what the prejudice, if any, to the Commissioner would be if that course was taken. Those matters were simply not addressed.
KEANE J: His Honour did not really go so far as to say that the challenge to the forfeiture proceedings was so shadowy that it could be ignored. He did not go so far as to say that there is not a problem with multiplicity of proceedings because one can tell that this challenge is illusory. He did not go that far, did he?
MR GLEESON: No, he did not go that far. He was mindful when he discussed Lee No 1 on pages 6 and 7 that there could be a potential for overlap. He concluded in paragraph 16 at the end:
In my opinion that is what the legislation does here. It clearly envisages a situation where forfeiture and exclusion proceedings under the Act can progress whilst criminal proceedings are on foot.
He has not gone to the specifics of the charge, but he there seems to be contemplating that the two may be overlapping. Whether he can be criticised for this or not, your Honour Justice Kiefel, he keeps coming back, at paragraph 17, particularly near the end, is it is the lack of specificity of the evidence ‑ ‑ ‑
KIEFEL J: Yes, I understand that to be his Honour’s approach.
MR GLEESON: He sees that as ‑ ‑ ‑
KIEFEL J: ‑ ‑ ‑as the important factor.
MR GLEESON: As the important factor.
BELL J: So the determinant for his Honour was the omission to disclose the material that the second respondent deposed to in his affidavit would prejudice him in the criminal proceeding?
MR GLEESON: I think that is critical to it, your Honour.
BELL J: His Honour did not go on to consider a weighing of the interests of justice, including by reference to any prejudice identified by the Commissioner in permitting the criminal trial to proceed before the forfeiture.
MR GLEESON: Well, not directly, partly because of the approach in paragraph 15 that, as it were, there is a general intent that it should progress, but his Honour, to be fair to his Honour, did bring into account in paragraph 19 the ability of the court to consider protections at a later stage when the issue became more concrete, as it were. So, he said in paragraph 19:
If the second applicant gives evidence . . . and is cross examined –
and they are incriminatory, then there may be a section 128 certificate. So, we would submit, it is not too surprising for a judge, exercising a discretion such as this, to say, the question is, bearing in mind the stay although temporary is a draconian remedy because of the length of the interference with the process, which as I have submitted is intended to be expeditious, for a court to say, you have not yet persuaded me of a sufficiently real risk of prejudice to your criminal trial, knowing that as this matter progresses I have a lot of tools in the toolbox, would not be a surprising exercise of discretion.
BELL J: When one looks at the overall object of this legislation in terms you say of the expeditious conduct of forfeiture proceedings, one is looking at legislation that is non‑conviction based, that in many instances will not raise this issue of identity between the basis of the application and the subject matter of pending criminal proceedings. When that issue is raised can you assist us with the prejudice that the Commissioner faces? The property was restrained, the jeep was in the hands of the official trustee, what is the prejudice?
MR GLEESON: Well, the prejudice is that a property is tied up for years, as we now know, and in several years’ time the Commissioner then gets to the stage of being at stage one of a matter where he has to start proving his case. He first finds out what their case is ‑ he first finds out what their case is in a couple of years’ time and if the case is, yes, it was an inheritance from a distant aunty, a matter which the Commissioner is entitled to take evidentiary steps to see if it can be rebutted, it grinds to a halt.
One of the reasons this Act has these cross‑onuses in it, we would submit, leaving the technical point aside, is the exclusion application is intended to be the means for the innocent, interested owner to come forward and say, you have got a prima facie case this is proceeds of crime. I say it is not. Here is why I say it is not. You can then go off and try and rebut that and a court can hear it. Now, that is real potential prejudice, for a Commissioner to be told, in a couple of years’ time when you find out what their answer to your civil case is, then you may start doing your responsive inquiries.
HAYNE J: But why, when there is identity of issue? Why is there prejudice in the delay because these issues will be litigated beyond reasonable doubt in the criminal trial, will they not? The Crown will have to make good its case that these are proceeds of crime.
MR GLEESON: I do not want to go back over it, but I am not accepting identity of issue for the reason I said in answer to your Honour Justice Bell. How that will play out we do not know until each of the cases moves forward but the Commissioner as an authority responsible for recovering the proceeds of crime is not simply the prosecution. They are different bodies with different objectives and different purposes. When the criminal case comes to a conclusion no one can know. All I am seeking to put in answer to your Honour Justice Bell is if the proposition is there can be no prejudice from delay there is a general prejudice which can be identified when one has lengthy delays.
BELL J: But it does point it up rather nicely because the prejudice that you identify is the Commissioner not having forewarning of the material that the interested person says will prejudice them in their trial.
MR GLEESON: In their civil trial, yes.
BELL J: No, the interested person makes a claim. If I am forced to give an account of my interest in this property, my conduct of my defence at the criminal trial where I am charged with dealing with proceeds of crime will be prejudiced. The prejudice that you identify in the civil proceedings is that the Commissioner is not told in advance of the criminal trial the account that the accused in that trial will seek to raise.
MR GLEESON: I do not want to be difficult but ‑ ‑ ‑
BELL J: I understand the temporal issue.
KIEFEL J: You are entitled to be occasionally.
MR GLEESON: Only occasionally ‑ ‑ ‑
BELL J: I understand the temporal issue, Mr Solicitor, but there is a possibly slightly sophistical quality when we are talking here of these very charges in cutting it off at February 2013.
MR GLEESON: The Commissioner’s interest that I am identifying is that under this scheme I have made out my prima facie case. Unless this other person makes a rebutting case I will probably get my final order but I am entitled, if they do have a real case, to answer it. Now, if that real case happens to reveal the defence, let us make that assumption against what I am putting. Let us assume that. The effect of this Court of Appeal judgment is that the trial judge, as it were, merely on the assertion, the assertion that there will be evidence that I can give, that it will have that character of complete revelation of defence and that I will give it to which none of those courses of action the person is bound, to which none of them is bound, based on that, I cause the train to stop today. That is exercise of discretion one.
Exercise of discretion two is to say I have heard your issue. I understand your problem and what I wish to do before I exercise the remedy of a stay which will then prevent the Commissioner taking the steps the Commissioner would take and would slow up the process of determining who owns this property and what is to happen to it is, I will make the directions for this matter to go forward, and in the course of that various things could happen, various things could happen.
When the person sits down – I am not talking about these particular persons but when a person sits down and says I have now got to put my affidavit on, I have got to come up with my innocent explanation, one possibility is the person says, in fact, I am not going into evidence. That is one possibility.
Now, one problem with the Court of Appeal’s approach is that you adopt the almost automatic stay. You do it on the say‑so of a person who has no commitment to go into the witness box and give evidence, who has no commitment to ever speak, without knowing what they will say and three years down the track you find out you have simply been delayed and you heard nothing. Or three years down the track he comes up with an explanation and it turns out it is not, in fact, a direct trespass on the criminal trial, it is something different to the criminal trial, and then three years down the track you start doing your exercise to try and rebut that explanation.
FRENCH CJ: Do your submissions go so far as to support the proposition that where there is an identity – where it is shown that there is an identity of issue in the forfeiture/exclusion proceedings and the pending criminal proceedings, the issue being whether or not a certain criminal offence has been committed ‑ that is, the subject of the criminal proceedings – that that is not a sufficient cause for the grant of a stay, having regard to the legislative scheme of the Proceeds of Crime Act?
MR GLEESON: Yes.
FRENCH CJ: A fortiori mere overlap.
MR GLEESON: Yes. So, if I could just then return to the balance of the Act and complete that part of the argument? I had taken the Court to section 49. The other means for the forfeiture orders are under 47 and 48, and we would submit that in 47(1)(c), for instance, the sort of satisfaction that the court is forming in a civil matter could overlap with matters in a criminal trial of that person.
Can I show some other provisions which confirm the independence of the civil and the criminal route? Your Honour Justice Hayne asked about when a criminal trial occurs we know the facts on the “beyond reasonable doubt” standard. Section 51 indicates that an acquittal does not deprive the court of the power to make the civil forfeiture order, so there is an independence in terms of substantive principle.
BELL J: Can I just query this? If the second respondent were to be convicted of the offence that he is charged with, notwithstanding that the property was acquired prior to the period particularised in the indictment, would it still be open to make a forfeiture order on the strength of his conviction for the conduct constituting a serious offence?
MR GLEESON: Under the conviction‑based route – under a separate route.
BELL J: So that under that route, upon his conviction for the offence charged, a forfeiture order would follow – or might follow – based upon the conviction alone. Is that the position?
MR GLEESON: Might follow under section 48 as a conviction‑based order. Section 48 ‑ ‑ ‑
BELL J: Yes, or under – yes, 48.
MR GLEESON: That we embrace as indicating the Act quite deliberately having the multiple channels, and not confining the Commissioner to the conviction‑based route, and recognising that the non‑conviction‑based route may, and ordinarily will we say, be going ahead even if there may be the criminal process. So, I went to section 51, which is the acquittals provision. I did want to refer to the presumption in paragraph 54, which is that in the forfeiture application, if the property is in the person’s possession, then if no evidence is given to the contrary the court presumes it was used in connection with the commission of an offence. So, that is another part of the process where we would submit the scheme directly contemplates the interested party has to make a choice.
If I have evidence to explain why it is in my possession, then I choose to give it or not give it. That is part of the process. Then in terms of the other aspect of why the orders need to be on and over with and made, the effect of the orders is dealt with in section 66 and following. Section 70, in particular, explains what is to happen to the money once the forfeiture order is made. First, it is to be disposed of, and if it is not money, expenses are to be paid and it is to be credited to an account.
Now, this again is in the sphere of general prejudice, not specific prejudice, but in terms of general prejudice the idea is that as soon as practicable you be able to, if you are entitled to forfeiture, get the property in and sell it, and land usually goes up but sometimes goes down, and the same is true for cars, or perhaps more true for cars. So, there is part of the intent that the property be dealt with.
Now, could I then go to section 80 which confirms the independence of the proceedings? If a forfeiture order is being made and a person is charged and acquitted, even on conviction – on appeal – then the forfeiture order per se is not affected, but there is a procedure to deal with whether it should be discharged or not. Again, contemplating the independence of the proceedings, but perhaps I would like to put it a bit more strongly than that – contemplating a process of the forfeiture application going forward and being heard and determined even where there may be complete identity of the issue in the forfeiture proceeding and in the criminal proceeding.
Part 2‑3 is the general procedure for forfeiture on conviction of serious offences; I will pass over that. Can I come to Chapter 3, section 180 and following, which deal with the compulsory examination powers? These are the analogues of the New South Wales provisions dealt with in Lee No 1. I will point out the similarities and the differences. I do make the submission that the decision of the majority in Lee No 1 is to the effect that the compulsory ancillary processes in the New South Wales Act, even viewed as a derogation from the accusatorial principle, are by the statute available to go ahead in respect of a person under charge.
That finding from Lee No 1 by the majority, we would submit, recognising the differences I am going to come to would equally apply to Chapter 3 of the Proceeds of Crime Act. Part of the underlying reasoning of the majority for reaching that conclusion about the compulsory ancillary procedures was that to conclude otherwise would be to destroy or deny their ability to assist in the conduct of the substantive proceedings in the Act. This case is about the substantive proceedings, and so the observations of the majority about the substantive proceedings and their relationship to the ancillary proceedings are also, in general, applicable to this scheme.
Recognising the present case is not about the compulsory examination, what I want to say can then be restricted to this, that the power to make examination orders rests with the court under section 180. It is a discretion and it enables the court to attach any necessary conditions to the order to protect the administration of justice. One difference from the New South Wales scheme is that under section 183 the examination is not conducted by an officer of the court, but is conducted by a person specified by regulation or the Minister. We have provided the Court with the regulation which indicates that they are by regulation senior qualified persons. That is the difference from the New South Wales scheme; this is not an examination conducted by an officer of the court, but it is under the court’s – could I just hand up that regulation? It is under the control of the court.
FRENCH CJ: There have been quite a few hand‑ups in recent times, Mr Solicitor. These materials should be with us.
MR GLEESON: Yes, I will try and resist that, your Honour.
FRENCH CJ: This system needs to improve, I think.
MR GLEESON: If your Honour pleases. So I have indicated who conducts the examinations, and then the proceedings which govern the use and the disclosure of the material are seen in this fashion, section 188, they are in private examinations. Section 193(2)(a)(iii) ‑ ‑ ‑
HAYNE J: Sorry, which section?
MR GLEESON: Section 193(2)(a) is the means for the examiner to make the equivalent orders to protect the criminal process. It is also evidence that the examinations are available to go ahead notwithstanding a person may be under charge. It is an important provision indicating that the reasoning of the majority in Lee No 1 applied to this statute would produce a similar result.
One then sees what happens to the – there is a requirement to answer questions 196, privileges dealt with in 197 and in 198 the answers are admissible “in proceedings on an application under this Act”. So, as with the New South Wales scheme, the relationship between the ancillary proceeding and the substantive proceeding is that it is intended that the Commissioner be able to conduct these examinations, including if people under charge, for the purpose of obtaining evidence for the application under the Act.
That is of some importance because if my construction of that is correct in the compulsory part of the Act, the Act is authorising a derogation from the accusatorial principle for the very purpose of obtaining answers which can then be used in the civil proceedings under the Act. If one then comes back to the substantive proceeding we would say this is also an indication that in the substantive proceeding it is not to be held up because someone says there is this impact potentially for the criminal trial but how that is dealt with is by the questions of appropriate protective audits.
FRENCH CJ: So, the legislative scheme and purpose which you draw from the various provisions informs or constrains the general discretion that a judge has to stay civil proceedings in Victoria pending criminal proceedings with either identical or overlapping issues.
MR GLEESON: It informs and constrains.
FRENCH CJ: Constrains?
MR GLEESON: Yes. So, at the stage of a Lee No 1 analysis where one is dealing with power, we would say by parody of reasoning under this scheme it enables the compulsory examination to go forward even though a person is under charge and it likewise enables the civil action to go forward even though someone is under change. Then when it comes to the discretion, those statutory provisions and purposes bear upon the exercise of the discretion.
Your Honours, there is one other provision I need to refer to, which may strengthen this point and is perhaps a stronger point than in the New South Wales scheme, which is section 266A. This is still in the compulsory disclosure section, and he indicates that the material obtained under compulsion, either under section 39 or under the compulsory powers I have just been to, may be disclosed in certain identified ways. The first way is it can be disclosed to any authority which is a moving party under the Act, and that advances the purpose of the civil proceedings and that is consistent with the provision that I went to and perhaps expands on the provision in section 198(b). It is a further indicator that even compulsory obtained material is to be available, even if a person is under charge to facilitate the functions.
Item 2 is interesting because it provides for an ability in respect to a class of very serious offences – imprisonment for three years or more – for the material to be actually provided to assist authorities engaged in investigating or prosecuting offences. Now, that is a direct abrogation of the accusatorial principle. What that means is that in the case of material – which comes forward in the civil proceeding compulsorily – it can be given to the prosecution. It can be given where the offence is of that serious character.
KIEFEL J: Well, that is a strong factor to be taken into account in relation to a stay then.
MR GLEESON: I would put the opposite, your Honour. It is, first of all, a strong statutory indication that the purposes of the civil scheme are not to be halted.
KIEFEL J: Assuming it to be valid, of course.
MR GLEESON: Pending the criminal, because there is a recognition here that there may be a flow of information into that area. That is the first matter. To answer then the other part of your Honour’s question, whether there would be such a disclosure contemplated in a particular case, and if so how the court might deal with that in its discretion are matters which are reserved to the court. I would not want it to be thought ‑ ‑ ‑
HAYNE J: Sorry, how is it reserved to the court? Is it reserved under 266A? I do not see how the court gets engaged in a 266A process.
MR GLEESON: No, it would be under section 180, the ability to make the order which contains a discretion. The court is the body which decides whether the examination is to occur and it may, and it may on condition. That is the point of the argument. Whether it assists or does not assist the argument, I am duty bound to draw your Honours’ attention to that provision because it is of a particular character of the Parliament saying, for particular purposes, we do provide an authority – not a direction, it is a “person may” – we provide an authority to do something which otherwise may be, or would be, an abrogation of the accusatorial principle.
BELL J: Then there are some protections in sub (3).
MR GLEESON: Then the Parliament says these are the protections and the protection in (3) is a use immunity and what subsection (4) confirms is, of course, that it can be used in the civil proceeding itself.
BELL J: Yes.
MR GLEESON: Now, it may not have to be resolved in this case, but an available reading of item 2 may well be that the parliamentary intention is that if the offence is in the extremely serious category of imprisonment for three years or more, then contrary to what would be the normal principle, there may be ‑ may be, not must be ‑ but may be disclosure to the prosecutor. You will get a use immunity but you will not get a derivative use immunity, and to that extent there is an express abrogation of the accusatorial principle.
I should hasten to add, for fear I have conveyed an opposite impression, the Commissioner is not in this Court or, I am instructed, in the many courts in which these applications are running, contending for a proposition that the Commissioner has a general or even a specific licence to be communicating the product of a civil proceedings to prosecuting authorities. That is not a position the Commissioner is contending for in the courts of Australia.
Mr Neal made some observations to this effect in the Court of Appeal, which is in the transcript in the book, but it is essentially that the Commissioner of the AFP running these civil recovery matters, and mindful of what the court has said in the various cases in the last few years, is not simply an arm of the prosecution and is not in the business of using the court process, even what I call the voluntary part of the court process, as a means to strap up prosecutions.
That is not its aim. The Commissioner’s aim ‑ and it is the reason the appeal is important ‑ the Commissioner is to say, in this present sort of case, we should not face the automatic stay. We should have the ability for the matter to progress and for the court to exercise its discretions as appropriate. That provides, as it were, the context for sections 315 to 319 and the manner in which we would put section 319 is as the majority considered it in Lee No 1, that it reinforces conclusions which are otherwise emerging from the text of the Act and the proposition of the fact of the criminal proceedings:
is not a ground on which a court may stay proceedings –
reinforces the proposition that not only may the proceedings go ahead even if there are criminal charges on identical matters or overlapping matters but ordinarily that would be within the proper exercise of the court’s discretion to permit that to occur.
FRENCH CJ: Is there any kind of prejudice arising out of identity or overlap of issues as between forfeiture/exclusion and criminal proceedings that could ever warrant the grant of a stay, on your argument, having regard to the legislative scheme and purpose and its constraint on the discretion?
MR GLEESON: Would your Honour just pardon me on that question? I am not able to be absolutely definitive in my answer, I am afraid, your Honour. The tenor of my submissions is that the constraining force of the Act on the discretion will be ordinarily the judge should be doing anything and everything to move the civil case forward through to a hearing and should use protective orders, if appropriate, as the first, second, third and fourth resorts. The resort to the stay should be for the extreme case. I would like to give a clearer answer but that is the best I can do.
FRENCH CJ: It is a kind of sotto voce no, subject to unimagined circumstances.
HAYNE J: Never say “never”, but I cannot think of whenever.
MR GLEESON: And never tell a court it cannot exercise a power to protect the administration of justice. But the tenor of the argument will be, ordinarily, the constraining force of the Act on the exercise of the discretion will see the proceeding move forward, and for the reasons I have mentioned. Your Honours, in our outline I have then completed ‑ ‑ ‑
HAYNE J: I do not want to press the point unduly, Mr Solicitor, but that seems to be an answer that says, in effect, regardless of whether there is prejudice to the conduct of the – to the accused in the conduct of the criminal trial. Unless the proposition is advanced that prejudice to the accused in the conduct of a criminal trial is a reason which would permit a stay – not saying require – where do we end up? Is it asking too much to press you to say whether prejudice to the accused in the pending criminal trial is a matter that is relevant to the exercise of a discretion or is that a question that I should not press?
MR GLEESON: No, no. I was going to go on and add this elaboration and maybe I should in answer to that question. Prejudice, as the recent cases have shown, can have different levels and elements. There is one aspect of prejudice which, I would submit, this scheme has effectively said is not prejudice. That aspect of X7 and the minority in Lee No 1 that said that the mere fact of being compelled to speak – even if it does not get to the prosecution – can constrain legitimate forensic choices and is, therefore, a derogation from the accusatorial principle. That, I would submit, is not something which this scheme recognises as prejudice.
At a second level, which is material getting to the prosecution and enabling them better to prosecute me, that is the area at which I am reluctant to say the Act has completely excluded that as a material consideration. That is where I am pausing and that is why I am contemplating protective orders are available, and the only reason they are available is that that form of prejudice is at least relevant for consideration in the discretion. So, they are really the two aspects of prejudice that I think are particularly acute here.
HAYNE J: I understand that. Is it relevant for a court to take account of a general desirability of transacting its business, both civil and criminal, in the open?
MR GLEESON: The answer to that would be yes, and the court would also take into account the fact that the Parliament has, via the Open Courts Act and section 79, indicated the manner in which that general matter is to be taken into account and has provided the test that I mentioned in section 30(2)(a). The court knows that if it really is necessary to prevent a real risk to prejudice in the proper administration of justice, and it cannot be prevented by any other reasonably available means, then I am permitted to close the court. That test in section 30(2)(a) is perhaps the sort of test that marks the outer boundary of these types of matters.
HAYNE J: Does it go further than Scott v Scott? I think the words are even reminiscent, are they not, of Scott v Scott? I may be misremembering.
MR GLEESON: Well, “that cannot be prevented by other reasonably available means”. I cannot assist your Honour further on the question, but in terms of the Chief Justice’s question, can I exclude that a stay could ever be granted. The sort of test that we would be urging for the stay of the proceedings is a test of this type of severity. I do not stay the proceedings unless that:
is necessary to prevent a real and substantial risk of prejudice to the proper administration of justice that cannot be prevented by other reasonably available means –
Therefore, the stay becomes the last resort, not an early resort. Your Honours, where I am is I have sought to cover the first part of paragraph 11 of the outline, and I have covered 12 and 13. I did want to make some observations on Lee No 1, given I have referred to it a little. Could I deal first with some aspects in the majority, and then some aspects in the minority?
Your Honour Chief Justice French’s judgment – the case is now reported in 251 CLR 196 – in paragraphs 1 through to 3, where your Honour established the background for the question, the background is in the context of a compulsory interrogation, or a compulsory requiring of answers; that is repeated a number of times. That, we submit, is an accurate reflection of the core of the accusatorial principle for the reasons I commenced with this morning; it is about that compulsory requiring of a person to assist the prosecution.
Then if I could draw attention to paragraph 6 where your Honour identifies some provisions which mean that as a matter of power the compulsory examinations can go ahead even if a person is under charge. Your Honour relies upon the objects, the definition of “serious crime related activity”, a conclusion which is then reinforced by the ability to make protective orders and section 63. Now, each of those steps in the reasoning, we would submit, are applicable to the present scheme. Then, near the end of paragraph 7, where your Honour discusses the reinforcing effect of section 63, your Honour says:
s 63 rests upon the premise that proceedings under the CAR Act may be instituted or in train at the same time as criminal proceedings touching the same matter. It strengthens the inference that a purpose of the CAR Act is to enable, although not to require, the proceedings for which it provides to be instituted and undertaken notwithstanding the subsistence of a cognate criminal prosecution. That purpose necessarily extends to substantive and ancillary processes.
Now, that is the level of the proposition I am putting in respect to the purpose in this Act, both at its substantive level and in its ancillary compulsory level. If I could pass over to paragraphs 40 and 41, in your Honour’s more detailed exposition of the point, your Honour considered it significant in the Act that the examination process was a judicial process carried on by the Court, and in paragraph 41 that it:
attracts the powers of the Supreme Court under the Uniform Civil Procedure Rules and its inherent power to supervise and control its own processes and to ensure that they are not abused.
Now, in the present case I have indicated that if we were merely at the examination stage then we have the slight difference that the court orders but a Chapter II officer conducts, but when we are at the stage we are in this case of the civil forfeiture trial, your Honour’s observations, we would submit, carry over and the fact that these powers are with the court and with the court’s protections is significant in understanding how the scheme is to go forward. In paragraph 49, near the end, your Honour said:
Judicial sensitivity to the impact of an examination on the accusatorial character of pending criminal proceedings can be expected to inform whether an order should be made . . . and, if an order be made, the way in which any subsequent examination is conducted.
So at this stage, the construction of the Act is leading to an informing and constraining force on what would be an exercise of discretion. Then finally at paragraph 55, when your Honour drew together the matters which led to your Honour’s conclusion, we would submit that each of them are applicable to the present Act, noting the one difference that I have identified earlier.
Feeling the constraint of time, I will simply commend Justice Crennan’s judgment to your Honour and go straight to Justices Gageler and Keane’s judgment and then come to the minority. In paragraph 314 ‑ ‑ ‑
FRENCH CJ: Can you give us the page number, please?
MR GLEESON: Yes – 314 on page 310, there is an important statement as to how the principle of legality feeds into the analysis and on page 313 at paragraph 318 there is an important statement as to how the accusatorial principle sits within the whole of our system in terms of various modifications that have been made to it. Paragraph 323 on pages 315 to 316 is the point I mentioned earlier – that within the New South Wales scheme, the deprivation of choice in the sense of being able to not say something that might never get to the prosecution but which might constrain forensic choices was regarded as not a relevant prejudice within the scheme, and that, we would submit, is applicable in the present ‑ ‑ ‑
BELL J: I am sorry, what paragraph number was that?
MR GLEESON: I am sorry, your Honour – 323.
BELL J: Thank you.
MR GLEESON: So that particular aspect of prejudice, not regarded as relevant within the scheme, and at 326 on page 317, I want to draw attention to the use of this word “independently”. Now, if the forfeiture proceeding is a civil proceeding:
able to be commenced and continued to completion independently of any criminal proceedings that might be brought in respect of the criminal activity ‑
even where it is directly on foot. Now, I do not wish to over‑read your Honour’s paragraph because the issue of discretion is not squarely the matter being addressed in that paragraph, but at a level of principle, the notion of the civil proceeding commencing and continuing to completion independently of what are criminal proceedings directly on the same subject matter is what is seen there as the effect of the New South Wales scheme, and that is repeated in paragraph 331.
That, we would submit, carries over to the present scheme, and when one gets to paragraph 332, your Honour reads section 63 – or, in our case, section 319 – as confirming conclusions which have emerged from the text and structure of the Act and we submit that is correct and applies in the present case.
Now, what I wish to identify from the minority judgments is that the statement of the accusatorial principle is in the context of compulsion – legal compulsion – and the judgments do not expressly at least extend that statement to say that any form of practical compulsion is an abrogation of the accusatorial principle. So, with your Honour Justice Hayne at page 234, in paragraphs 73 and 74 when the principle is stated in generous terms, the notion that it is compulsory speech is repeated a number of times, and that also emerges at paragraph 79 on page 236.
FRENCH CJ: This is not perhaps the territory of compulsion but it is the same sort of conceptual territory as the offer you cannot refuse, is it not? I mean, if you do not say something.
HAYNE J: Hobson’s choice.
MR GLEESON: Yes, but the question is whether when a person is confronted with Hobson’s choice and then either speaks or does not speak which, as I have said, can happen in a variety of contexts in court cases, in disciplinary proceedings, before the police, is that to be regarded as a derogation from the accusatorial principle? We submit it is not. It may be a relevant factor in the discretion but it is not that.
Your Honour Justice Kiefel’s judgment, I thought important to draw attention to paragraph 178 where your Honour has referred to two things. One is the fundamental principle and the second is the related accusatorial system of criminal justice. They owe much to the reaction of the common law and the people to interrogations conducted by the ecclesiastical courts and the Star Chamber. As your Honour explains that matter of history, it is the compulsory aspect of those processes over persons which gave rise to the law’s concern and that is also apparent at paragraph 182 on page 268. When your Honour speaks of “privilege” in 184, your Honour says:
It is the privilege of any witness in any proceedings to refuse to answer an incriminating question. It must be claimed by the witness when the question is first put to him or her whilst in the witness box. The privilege attaches to the answer which is sought.
Your Honour says in paragraph 185:
An accused may elect to give evidence in his or her defence, although this has not always been the case.
Now, there is this clear distinction, we would submit, between legal compulsion and election, whatever may be the reasons that influence election. Then, in your Honour Justice Bell’s reasons commencing at page 290, agreeing with Justice Kiefel, I should observe at paragraph 261 near the bottom of page 291 there was an argument made which may have a flavour of some arguments I have made this morning about delay is a bad thing and the scheme is not there to tolerate delay.
I hope my argument does not reduce just to a plea about delay but it is an element of the argument. Your Honour here was taking this into account in whether the compulsory power was available where the person was under charge and this prospect of delay was not enough reason to defeat the construction that your Honour came to.
In paragraph perhaps 266 on page 293 there is no doubt the strength of your Honour’s statement of the accusatorial principle. So nothing we are putting seeks to undermine what has been said by minority or majority judges about the importance of that principle. We are urging that it is a principle which allows people to exercise rights at various points in the process and the distinction between election and compulsion is one that should be observed.
Your Honours, the final matters I needed to put were these. I apologise for the extra bundle, but the bundle we gave commencing with the County Court Act was intended to put in one place the various powers that the County Court would have to deal with real risks to the administration of justice and so that it commenced with section 49 of the Act, giving the Court the powers of the Supreme Court, to that would be added the implied jurisdiction of the Court.
I have mentioned the Open Courts Act and then we have provided relevant extracts from the Evidence Act, including section 128. As we would see it, at least, if a party – witness chooses to give evidence on the law that I have been to, the party is not entitled to certificate under 128 and so they have to make a choice, do I lead that evidence at the risk that it may incriminate me or otherwise disclose a defence or not.
A general proposition that a civil court, even beyond proceeds of crime, but generally, would stay proceedings whenever a party witness said “I do not want to give my evidence in‑chief because I suffer Hobson’s choice”, we submit that would be a rule that is not the manner in which the law is currently administered by the trial courts of Australia and not a rule that ought to be adopted by the Court. But that is, in effect, the logic of the respondent’s case, that a person could say my case has to be adjourned because the evidence I want to give I will not be able to get a certificate for.
The other aspect of section 128 is that even if a person can get a certificate, the protection that it gives is against incrimination. But section 128 does not prevent the evidence being given ordinarily in open court, as has been observed. Ordinarily, then, any person can hear and comment on that evidence and take steps they want from it.
We would not apprehend it would be a relevant derogation from the accusatorial principle for a person who gave evidence in open court to have the prosecution consider that evidence. They cannot use it as incriminating material, but they could consider it. So section 128 is an example of how the system as a whole accommodates these matters without leading to the draconian remedy of a temporary stay.
Your Honours, I will pass over Justice Story in The Palmyra, much as I would love to go into it in some detail, for his commendable statement about the independence that the civil in rem forfeiture proceedings have long had in Equity and Admiralty from the criminal trial.
Let me just say something then about the first respondent; this is paragraphs 17 to 19. We know that she led no evidence of prejudice and she faces no criminal charges and we have no evidence of what, if anything, she wishes to say in either matter, that is, wishes to say in defence of her own property or wishes to say in assistance to her husband. Equally, we do not know from the husband what it is that he might want to say about her property and how that might incriminate him.
KIEFEL J: However, Mr Solicitor, if it is correct that a stay ought to have been granted with respect to the husband, is there any answer to the multiplicity of proceedings point taken in the Court of Appeal?
MR GLEESON: Yes, the answer is evidence. This Court had no – not knowing anything about what was to occur in the wife’s defence, knowing nothing.
KIEFEL J: How does that play into the multiplicity of proceedings?
MR GLEESON: Because the Court could not determine whether there was true connection or overlap between the husband’s and the wife’s interest, with no evidence of what either was going to say which could overlap.
HAYNE J: I do not follow that, Mr Solicitor. You are going to have to spell it out much more slowly and by steps. I just do not follow the proposition.
MR GLEESON: Well, let me start at a more granular level. The wife has a property in her name which is the Donvale property, paragraph 9 on page 25.
HAYNE J: The hypothesis for our consideration is one you deny, namely that the husband is entitled to a stay. That is the hypothesis for debate.
MR GLEESON: Yes.
HAYNE J: Now, we observe that the wife is registered as property. Why is there not multiplicity of proceedings if the wife goes on and the husband is stayed?
MR GLEESON: Because the court does not know whether – let us take the wife first. The court does not know whether the wife has any evidence to give to explain the proceeds of her property, and the court does not know what it is. So the court has a case in respect to the wife where it simply does not know whether the exclusion application that has been filed has any particular evidence that will ‑ ‑ ‑
KIEFEL J: You mean whether it will be defended or not.
MR GLEESON: Whether or how.
KIEFEL J: Whether or not the Commissioner just walks in, presents evidence and gets an order.
MR GLEESON: The Commissioner has the prima facie case. We do not know whether ‑ ‑ ‑
HAYNE J: Namely, that this is the product of proceeds.
MR GLEESON: Proceeds. We do not know whether ‑ ‑ ‑
HAYNE J: So there is that connection. Now, you say there is no multiplicity. There is a severance note. What I do not follow is the severance.
MR GLEESON: Well, let me put it as best I can. We do not know whether the wife will give any evidence in support of her exclusion application, or what it would be. So the court observes in the first instance, these two matters look like they might overlap.
HAYNE J: No. The court knows they do overlap because it is alleged that all of these properties are acquired with proceeds of crime - the same – no, it cannot be the same proceeds, but acquired with proceeds of crime, the same crime.
MR GLEESON: So if the evidentiary record remains where it currently is, the Commissioner would be likely to get the forfeiture order at the final hearing based on his evidence. For the wife to defeat the forfeiture application, she will need some evidence. She will need to show a plausible, innocent explanation for the purchase. The court does not know (a) whether the wife has any such evidence or (b) what that evidence would be.
So the court does not know when the wife’s case comes on for hearing whether it will in fact be dealt with in 10 minutes on the Commissioner’s case or whether it will involve particular innocent explanations from the wife and therefore it cannot assess the degree of overlap in the evidence and the argument between that and anything the husband might say.
I will try and put it in three steps. It is no better or worse than this. That is the first step. We do not know whether the wife is saying anything or what it is. The second step is, because we do not know what the husband is going to say at all, other than he says “I have got something to say”, we
do not know whether the husband is going to give evidence which will show an innocent explanation for the Donvale property. He may. We just do not know. We just do not know whether he is going to say that.
The third step, which follows from the second - and this is not, I would submit, overly technical – if the husband is coming forward as a witness to say something in defence of his wife’s property, he is there as a witness. He is not there as a party. He is not the owner of that property. He is coming along as a witness. The husband’s entitlements to protection under the ordinary law are section 128 of the Evidence Act, which I have shown. That is his entitlement. He could, if he is a mere witness and he is deemed compellable to give evidence, he could ask for a certificate and give a certificate.
As I have sought to show the Court under section 128, neither he nor any person under 128 gets the full benefit of the accusatorial principle. When they speak their speech is heard and it can be heard and acted upon by anyone in court. So we simply respectfully ask the Court to consider whether, under the banner of multiplicity of proceedings, what is in fact happening is the husband, if he is about to speak about Donvale, is being accorded a privilege which the law would not otherwise give to any other witness in his position.
A normal husband who wishes to give evidence to support a wife’s interest cannot have the proceedings stayed on the ground that they might have to give evidence that reveals a defence and that is what appears to be happening here. Now, in a sense it all comes back to the basic point. If the court had had evidence of what it was that either husband or wife wanted to say, it would have been in a position to decide multiplicity of proceedings. It was not in that position. Unless your Honours have questions, they are our submissions.
FRENCH CJ: Thank you, Mr Solicitor. Yes, Mr Best.
MR BEST: Your Honours, can I take your Honours to the appellant’s annotated chronology? This was a document filed on 27 November of this year.
FRENCH CJ: Yes.
MR BEST: It is a two‑page document. It is concise but it is illustrative. It shows that on 2 July, Mr Jin, the second respondent, was charged with the relevant offences and it shows on that very same day that application was made ex parte to the County Court of Victoria before his Honour Judge Parsons for a restraining order against the relevant property, the property being Mr Jin and the first respondent’s family home, and also a property in Southbank in the name of Mr Jin and a Jeep Cherokee vehicle in the name of a company of which Mr Jin is a director.
The very same day that Mr Jin is charged, arrested, application is made and then, looking at the chronology, about three weeks later, on 24 July the appellant files an application under section 59 and section 49 for forfeiture of that restrained property. Now, it is done at the outset. It is done at the outset of the criminal proceedings, that is, it is accepted that the accusatorial process is not just about the trial itself. It begins at the laying of charges. So on 2 July, that is when that process kicks off. That is the relevant timeframe.
One can only surmise that the early filing of that application for forfeiture is somehow to – coerce might be too strong a word – but certainly encourage the filing of material from the respondents as to what they say about how they acquired the ‑ ‑ ‑
HAYNE J: An alternative point of view might be that it might be simply to secure a restraint of property. You may attribute a malign intention to it, but there is surely a benign intention available, namely, that it was just to restrain the property, which was alleged to be acquired by the proceeds.
MR BEST: Yes, well, the restraining order is made separately on the 2nd. The forfeiture orders on the – applications made for 24 July, and your Honours are aware there is the six month period that has to turn over before as a result of that application any order can be made. So there is six months there where nothing can happen upon that application made on 24 July. But I take your Honour’s point.
If I can take the Court to Mr Jin’s affidavit which is set out in the appeal book – it begins at page 23, and I would like to take your Honours to paragraph 9 which is on page 25. There Mr Jin deposes that the Donvale property, that is the property that is in Ms Zhao’s name, the first respondent, his wife:
is my family home. I reside there with my wife and young daughter.
The point is made by my learned friend that Mr Jin may well be just called as a witness because the property is not in his name. It ignores the fact that this is their family home and that issue is not in dispute, it has never been in dispute and it is accepted on the AFP’s own materials. He goes on, and it is the last sentence I take your Honours to:
If this property is forfeited then my family will lose their home in circumstances where I am facing criminal proceedings and need to prepare to defend the case against me.
Now, that is the very human concern. That is evidence of the effect of filing of a forfeiture proceeding application, the effect of the restraint order upon the individual faced with having to prepare with a criminal trial, defending a criminal trial in circumstances where if he does not go on oath, if he does not give evidence in the civil forfeiture proceedings, if he chooses not to give evidence, as my learned friend puts it, then that is the consequence and that is the concern that is expressed there.
It picks up on the old - your Honours will be familiar with the old McMahon guidelines going way back and those guidelines have been criticised as perhaps not having due regard to the common law principles - to the fundamental principle, to all of the important common law rules that are there to protect the accused. But that guideline – there is a particular guideline that is particularly relevant to that piece of evidence and that is that the Court should look at what is the burden placed upon an accused in these situations.
I take your Honours to that point. That paragraph was not considered at all by the primary judge in the County Court. Going over the pages – I will do it in reverse – to page 28, this is the last part of the affidavit - page 28, paragraph 24. Here, Mr Jin deposes:
I also note that the charges against me relate to the period 8 February 2013 to 2 July 2013.
Now, much has been said by the other side about that period and how that shows a discrepancy, if you like. That informs what is put by the appellants as to there not being a complete identity of subject matter, that there is this difference in timeframe, that the charges are concerned with this period in 2013. The acquisition of the property goes way back some years previously.
I am not sure it takes into account the servicing of mortgages by the respondents right up until the current period. Certainly, in the affidavit filed by Ms Emily Nicholson from the AFP – this is the affidavit sworn 1 July 2013 – there are various bank accounts that are looked at. There is talk of a home loan account – this is at page 50 of the appeal book, paragraph 33; paragraph 32 various deposits made; paragraph 31:
home loan account from his Westpac Choice account –
It seems to be the fact that the financial analysis, if you like, as to the acquisition of the restrained property is not merely limited to when the property was bought at auction on whatever date in 2011 ‑ ‑ ‑
FRENCH CJ: All right, that might be a convenient moment to adjourn, but you need to bear in mind that what we are talking about here is the exercise of the discretion and whether it is constrained. We do not want to get too sidetracked by incidental matters.
MR BEST: Certainly, your Honour.
FRENCH CJ: The Court will adjourn till 2.15.
AT 12.45 PM LUNCHEON ADJOURNMENT
UPON RESUMING AT 2.15 PM:
FRENCH CJ: Yes, Mr Best.
MR BEST: Yes, your Honour, if I can pick up on the discretion point that your Honour raised just before lunch.
FRENCH CJ: This is the centre of things, is it not?
MR BEST: Yes, your Honour. Essentially, what we say in respect of the decision of the Court of Appeal is this is not a template vanilla decision that can be applied across the board to support what the appellant has put as virtual automatic stays around the Commonwealth. This is a particular decision decided on particular facts and circumstances relevant to Mr Jin and his wife, Ms Zhao. It was decided with regard to those facts and it was the court properly exercising its discretion having regard to those facts. So we say the decision reflects the proper exercise of the discretion of the court.
In exercising that discretion, the matters that the court had regard to are the very matters that have been the subject of discussion in this morning’s hearing and those are the burden on the accused as an important feature, which your Honour Chief Justice French raised early on. The relevant paragraph, paragraph 9 of Mr Jin’s affidavit, that is, that it is the family home at stake, he is concerned that there may be a broadening of the allegations made against him if he was to provide any evidence, that is, that the relevant period in question might broaden.
Other matters that the court had regard to were that this was a case, unlike in Lee No 1, the AFP is essentially the same protagonist, that is, there may be separate arms of the AFP. Maybe there is the confiscation branch, if you like, and then there is the prosecution arm but essentially there is no separate entity unlike with the New South Wales Crime Commission and the OPP. It is the same branch.
We say that there is an unacceptable risk there that there may be inadvertent disclosure of information, particularly in a matter of this kind where we say – and this is another one of the facts that the court had regard to – what we would say is there is complete identity of subject matter between the material in the civil forfeiture proceedings and what will be put in the criminal proceedings, that is, without any doubt there will be a circumstantial case put against Mr Jin, that is his assets – the assets that he and his wife hold are not commensurate with their lawful income. The jury will be asked to infer from that evidence that the offences are made out, the offences of illegal cash receipts.
So, with doubt, that will be the line that would be pressed. So we say complete identity of subject matter – the Court of Appeal called it at paragraph 59, page 176 of the Court book in their decision – they called it “prima facie significant overlap” between the subject matter.
FRENCH CJ: Assuming complete identity – at least on the issue of whether he committed the relevant crime, that is, the crime relevant to the forfeiture proceedings and relevant to the criminal proceedings, do your propositions allow for the possibility of refusal of a stay in such a situation?
MR BEST: No, we say that – in answer to your Honour’s question, the Court of Appeal in this case looked further. It looked for other matters. It looked at other relevant factors as part of its exercise of discretion. Whether or not it had to – I guess it comes back to the point that was put to my learned friend. The appellants say, look, a stay is only going to be used in extreme situations, but they are unable and they fail to identify what those extreme situations are, particularly in light of the present facts where there is such a complete overlap of subject matter. It may well be that is in itself enough on the facts of this case when you look at a wife who has the registered interest in the family home ‑ ‑ ‑
FRENCH CJ: Just putting to one side the “multiplicity of interests” argument – that is a separate question.
MR BEST: Yes, yes. I am not able to answer your Honour’s question as to whether it is enough. Certainly, the Court of Appeal in this case looked further and looked for other matters, which leads me to the other point. The Court of Appeal is criticised for not going through the toolbox, as it were, and looking for something that might be useful to somehow assuage any prejudice to Mr Jin and his wife.
The Court of Appeal extensively looked at other options. It looked at – it asked counsel for the AFP what do you suggest, and the answer was “Chinese walls”. At paragraph 61, which goes from pages 176 to 177 of the appeal book, it said that:
in this case a non‑publication order would not suffice.
It makes a distinction as to why and it distinguishes the present matter from the matter of Lee, and it does that at paragraph 62 and halfway down it says:
In contrast here, and by distinction –
right to the end of that paragraph. So that is its basis. So it has gone through the process of saying we are satisfied there is prima facie significant overlap of subject matter. It has looked at whether there are other options as to preventing the prejudice from occurring. The Court of Appeal has clearly had regard to what your Honour Chief Justice French has referred to as judicial sensitivity in Lee No 1. It has clearly had regard to the powers that are available to the court and the powers that are available to the court hearing the forfeiture application and the criminal matter as well. It is notwithstanding all of that – notwithstanding that analysis, it has come to the view that a stay is warranted in these circumstances.
It also had regard to the fact that there was no Crown opening in the criminal brief provided as at the time of the appeal. That is at page 177, paragraph 65 of the decision. That was the subject of some discussion in the actual appeal and it was put counter to the argument that is put by the appellants, that the trial judge, the primary judge in the County Court was essentially working in a cloud.
He did not have any information before him that he could properly decide, well, what was the nature, what was the extent of the prejudice and the response was well, nor did the respondents in the sense that they could not say with absolute certainty and clearly they could say Mr Jin could have a fairly clear picture of what would be put and that is as I put forward earlier, very much a circumstantial case, but it was not with any certainty what would finally be put or whether there would be any broadening of the charges. So, the Crown opening ‑ ‑ ‑
FRENCH CJ: Now, your position is, is it, that you do not go so far as to say that overlap or identity of issues as between forfeiture and criminal proceedings mandates a stay in the forfeiture proceedings?
MR BEST: No, we do not need to, your Honour. The other factor that the Court of Appeal could be said to have had judicial notice of, and regard to, is this point about balancing of prejudice and balancing up whether there was any prejudice to the appellants and it has been discussed this morning. I understand what is put by my learned friend is that the only prejudice to the appellants is what he terms a lengthy delay.
Your Honour Justice Bell pointed out that there are other mechanisms if Mr Jin is convicted in August of next year. The appellants have open to them the other avenue of going down section 48, which allows for automatic forfeiture upon conviction. The particular facts of this case are its restraining order under section 19, which goes hand in hand with the forfeiture section, section 49. Section 48 is another avenue to achieve the same result. That is all that is said as far as prejudice to the AFP, and when balancing that up with what is at stake here for the respondents, we say it is clear why the Court of Appeal came down on the side of the respondents and found, having regard to that balancing test, that the stay was warranted.
The other matters were there was, at page 176 of the court book at paragraph 60, this concern that the giving of evidence, the filing of material in the civil forfeiture proceedings would essentially telegraph the likely defence in advance of the trial. That was a particular concern of the Court of Appeal. It comes back to, really, what Chief Justice Gibbs looked at in Hammond v Commonwealth, that is, one needs to look at the whole risk to the accused. It is not just loss of privilege against self‑incrimination and whether there are any statutory provisions that can deal with that. It is the whole risk.
It is a shift in the onus – the burden of the onus of proof which, as your Honours are aware, that is on the civil standard and it is under, I think, section 317 of the Proceeds of Crime Act, that is, it is the applicant, whoever is making the application that bears the onus of proof – the shift in the onus of proof, the telegraphing of the defence. Fundamentally, in the end, the subversion to the whole fundamental principle, that is, that the burden of proof should rest upon the prosecution and they should not be required to call an accused to assist them in any way in proving cases in the criminal process.
So those were the various matters that were considered by the Court of Appeal in the course of exercising its discretion to grant the stay. Your Honours have read the submissions that are filed in respect of the respondent so I do not propose to go into detail as to what is said there. I do not propose to go into detail as to what is the background to the Proceeds of Crime Act. That has been considered at great length already.
The relevant principles, the key common law guidelines have been summarised in Lee No 1, in X7 and, again, in Lee No 2. The relevant excerpts are set out in the respondent’s amended list of authorities. I refer your Honours to those. Those are the submissions. unless there are any particular points that I can be of assistance to to this Court.
FRENCH CJ: Yes, thank you, Mr Best. Yes, Mr Solicitor.
MR GLEESON: Thank you, your Honours. Could I recap on what appears to be the main point? Let me make the assumption that there is overlap between the criminal charge and the allegation of wrongdoing in the civil proceeding. Let me make that assumption as the issue. Secondly, let us assume we have a criminal accused who says to defend the civil case I would have to provide an innocent explanation for the proceeds which will telegraph my defence to the criminal case but, thirdly, the accused goes no further and does not identify, even in general terms, what that explanation might be.
The issue between the parties seems then to be how is the discretion ordinarily to be exercised, saving any particular factors in a given case. The difference seems to be the respondent says ordinarily those facts will be enough to get a stay and the appellant says ordinarily those facts would lead the court to refuse a stay. The essential difference in those two approaches would be on the respondent’s side.
General prejudice to the Commissioner through delay is not sufficient to prevent the stay. Protective orders can be dismissed at the outset as being an insufficient alternative. One can do as the Court of Appeal did at paragraph 61 and say “I can be confident now protective orders will always be insufficient” and, perhaps, as has come out in discussion this morning, “I can conclude now that a closed court will be inevitable and will also be worse than the delay in justice”. That is one exercise of the discretion and the alternative ‑ ‑ ‑
HAYNE J: Sorry, can I just make sure that I have this sequence right? Overlap, step one, to defend would have to telegraph defence. They are assumptions you make contrary to other submissions you made earlier. The chief difference you then identify as being either stay or refuse stay. Do we not need to just embroider that a little? Is the difference stay, one side, or refuse stay with possibility, probability of protective orders as you described them, being orders preventing publication? Is that an embroidery (a) which is necessary, (b) which is accurate?
MR GLEESON: Your Honour is correct. On our view, it is refuse stay. It is make directions for the matter to go forward which will include the power and perhaps the likelihood of those protective orders including ‑ ‑ ‑
HAYNE J: Let us walk past whether it is probable, possible or degree of occurrence.
MR GLEESON: Yes, so they will be – they are there as part of this course. Then the position being that the court reserves the question of stay as the last resort, not the first resort in this problem - and if I just add one point to that - to the extent the court is grappling with open justice as against expeditious justice, the time at which the court makes that decision and the manner in which it makes it is under section 30 of the Act at a time when the court ‑ ‑ ‑
HAYNE J: Section 30 of which Act?
MR GLEESON: Of the Open Courts Act.
HAYNE J: I never thought I would hear a Commonwealth Solicitor‑General telling me that the State Act governed this, Mr Solicitor, but there we are - time to learn.
MR GLEESON: It is part of our federal spirit, your Honour. We are very proud ‑ ‑ ‑
HAYNE J: I am delighted to hear it, Mr Solicitor. It is a new world.
FRENCH CJ: The new federalism.
MR GLEESON: May I say, your Honours, we are extremely proud of Victoria. May I say that, your Honour?
HAYNE J: It is a new world, Mr Solicitor. I think your junior is just leaving.
MR GLEESON: Could your Honour issue an injunction against Mr Neal to refrain from interrupting me? Whether it was under the Victorian Act or under general principles, what the Court would do on our view is refuse stay, make directions, consider or make protective orders and when it gets to the rub, the really hard question, where do I balance the interests of open justice as against the interests of expeditious justice, I make it - at the time I really have to make that call, namely, when I am at the stage of a hearing and at a stage when I am much better informed of the problem I have.
As a package, those elements I have mentioned, we submit, provide an available and correct exercise of discretion. What happened here, the error was to cut off the inquiry without allowing for the matter to unfold in a way where that package of orders could play out. That is the essential difference.
HAYNE J: I understand that and just to identify this point of collision or friction, which is between open justice and delay in justice, to use those two tags, you say the decision ought to be taken later. Taken later at a point when - the person seeking discharge of the restraint has put on material in confidence, disclosing that person’s proposed defence, that is, you inevitably are going down the closed court path, in effect. There is at least that qualification on open justice at that point. Is that so?
MR GLEESON: Not inevitable – fair likelihood, yes, but not inevitable, and the timing for the decision is the last point at which that decision can be made when the court is best informed of the competing interests. They are the two ways; they are a little crude. That is how we would characterise the competing exercise of discretion.
The only other things I then need to say in reply are two, and they may not provoke as much mirth as my submissions to date. They may provoke anger or ire or at least questioning, but I do need to say this. If the Court were to adopt the first of those approaches, we say respectfully but firmly, it would be inconsistent with Lee No 1. That is the first thing we say, and secondly, we submit it would be inconsistent with the Proceeds of Crime Act properly construed.
So can I just conclude on why we make those two bold submissions? We know from Lee No 1, which was a case in the end about power, not about discretion per se, that the majority held that the power of compulsory examination is available notwithstanding a person may be undercharged and may be examined about the matters of the charge. The court then said issues of discretion do not fall for consideration here, but that the mere fact that you identify I am under charge and the matters may include the charge will not be enough, as it were, to stop the order being made. Beyond that, the process remains under the control of the court.
I think I do need to go back to the very last page of the judgment, 321, where your Honour Justice Keane with Justice Gageler in paragraphs 340 to 341 put what we submit is part of the ratio of the case, that the mere:‑
possibility that the implementation of the examination order might –
cause a risk in the administration of justice because of ‑
overlap with the subject matter of pending criminal proceedings ‑
was not a reason to refuse the making of the order. That being the law, we would submit if one asked in this case if the only facts known were the ones we know, namely overlap, if the Commissioner had sought to use the examination power, section 180, it would have been open as a matter of power and discretion to compulsorily examine the second respondent about matters which related to the charge. It could have been done as a matter of power and discretion by way of compulsory examination.
If that be correct, it produces, we would submit, an inconsistency in the Act if that which can be done compulsorily for the purpose of providing material which could be used in the civil trial either cannot be used pro tem – has to be put to one side while the stay occurs, because he may wish to say something voluntarily – or, if the Commissioner does not use the more powerful route, that is the compulsory route, but simply uses the civil trial process under the court, that the proceeding comes to a halt, whereas the Commissioner would have been better off to examine.
We would submit that consistent with Lee No 1, of the two exercises of discretion I have mentioned, the second is consistent with principle and the first is not. The recognition in Lee No 1 in these paragraphs that suppression or non‑publication orders, as your Honour Justice Keane referred to them in paragraph 340 - I would prefer that expression to “Chinese walls” - the availability of those orders in the court’s armoury at the examination stage is equally matched by the availability of those orders in the substantive proceedings and even though the court will bring to account additional matters, such as open justice, which is an additional matter, the court deals with all those matters in the manner I have indicated.
So the final submission was that to adopt the respondent’s exercise of discretion would, we submit, be inconsistent with the Act and we emphasise apart from 319 and everything else I have been to that those provisions in sections 47 and 49 for the order to be made after six months are really quite a clear guide that this is an independent proceeding which is not to be held up merely because they are overlapping criminal charges.
If I could just conclude – your Honour Justice Bell perhaps asked me this morning about what would be the implications for non‑conviction based forfeiture if a stay is given in the present case. We would respectfully submit that this will not be limited to a small hole in the use of non‑conviction based forfeiture. One only needs to think there will be a breadth of cases where the matter which is alleged as crime in the civil proceeding may be the subject of charge in civil proceeding. That is just the very way it is framed.
The types of facts we see in this case where one ends up with more than one person interested in the property, only one of them under charge
but the other one related in some fashion, leading, if the multiplicity of proceedings point is correct to a position where people who are not under charge will effectively get the benefit of the stay, we would hope it is not an overstatement to say that it will be a very large undermining of non‑conviction based forfeiture if a person can get a stay merely on the facts in this case. That is why it is contrary to the scheme of the Act.
FRENCH CJ: So really the way you are characterising two contending positions is that, for practical purposes, they lead to a binary outcome. Either it is never a stay except as a last resort – this is on the premise of overlapping or identical issues – or every time a stay.
MR GLEESON: Yes. Therefore, the issue, I hope, is at least delicately poised or at least in the ring, but one which really will guide the exercise of discretion across a vast raft of cases, not only in the very point we have got the stay of proceedings, but as we apprehend it, if the respondent’s view of the discretion is correct, the logic that will then be argued is that in the case of compulsory examination, provided you have got overlap, although there is power, as a matter of discretion you should decline to order the compulsory examination because it produces the very situation they speak of here. They do not have Hobson’s choice then; they then have compulsion. But in terms of the proposition of prejudice, the position is exactly the same. That is why we see the parallel between the Court resolving this discretionary question and what the Court did in Lee No 1. May it please the Court.
FRENCH CJ: Thank you, Mr Solicitor. The Court will reserve its decision. The Court adjourns until 10 o’clock tomorrow morning.
AT 2.42 PM THE MATTER WAS ADJOURNED
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