Commonwealth Department of Public Prosecutions v Edwards

[2005] QDC 173

[2005] QDC 173

DISTRICT COURT

CIVIL JURISDICTION

JUDGE ROBIN QC

No BD4093 of 2004

COMMONWEALTH DEPARTMENT OF PUBLIC PROSECUTIONS	Applicant
and
GARY JOHN EDWARDS	Respondent

BRISBANE

..DATE 14/06/2005

ORDER

CATCHWORDS:  Proceeds of Crime Act 2002 (Commonwealth) - application by DPP for examination order under s180 - persons who may be examined not limited to those in subsection (1)(a)(b) and (c) - notice of application to proposed examinee or respondent against whom the underlying restraining order was made held not required.

HIS HONOUR:  On the 15th of November, 2004, Judge Trafford-Walker made a restraining order in respect of property of the respondent Mr Edwards under section 18 of the Commonwealth Proceeds of Crime Act 2002.

This appears to have been one of a number of similar orders that had their genesis in an operation entitled "Havanese" which had to do with tobacco products imported to Australia and supposedly sold by duty free outlets to persons about to depart Australia for overseas, specifically crew of ships.

Enquiries made established that reasonable grounds for suspecting that deliveries of quantities of tobacco which might have been anticipated in view of paperwork generated to particular ships did not occur prior to the departure of those ships from Australia. 

The tobacco products which, of course, attract excise duty it is thought (on grounds which plainly struck his Honour as reasonable) have been diverted to the domestic market.  There  are serious criminal offences involved in any such exercise; at least, as seems to be the case here, the Commonwealth authorities being deliberately misled. 

The present application is made under section 180 of the Act which applies "if a restraining order is in force", that being the situation.  The section permits this or another Court to make examination orders as they are called "for the examination of any person".  The person sought to be examined in the present application is Hi Ngo. 

Mr Potts' affidavit sets out the basis on which he is reasonably suspected of carrying out physical acts to achieve the above-mentioned diversion of tobacco products.  Section 180(1) gives examples of the persons who may be ordered to be examined in paragraphs (a), (b) and (c), none of which describes Mr Ngo. 

Miss McCarthy's submission is that those examples do not in any way cut down the categories of person who may be ordered to be examined "about the affairs (including the nature and location of any property) of a person referred to in paragraph (a), (b) or (c)".

I think she is correct, odd as it might seem to have those examples set out in the legislation.  None of them creates any particularly dramatic extension of the scope of the Act.  Common sense says there must be some limitation and that section 180 is not intended to authorise orders for the examination of persons at large.

In this case, Mr Potts' affidavit establishes that Mr Ngo may well be able to provide information - for example, to do with the volumes of tobacco products - which is pertinent to obtaining necessary information.  The background circumstances include that Mr Edwards has applied to have some or all of the subject property released from the restraining order.  Mr Ngo's information may well assist the Court to determine to what extent that might be appropriate.

Another respect in which the Act might be thought less than clear concerns the notice that ought to be given to the respondent, Mr Edwards, or to the person proposed to be examined.  Ms McCarthy has presented a capable written argument to the effect that there is no reason to think that notice to either of them is required.  She submits that where notice of particular application is required, the Act is explicit about that - instancing sections 26, 29, 61 and 136.

I think her submission that in the absence of specific notice requirements there is no basis for implying a requirement for notice is correct.  As she observes, the application is not one for final relief nor will the order affect any person's interests in any property.  She has acknowledged the what might be called 'draconian features' of the examination process enacted in support of the pursuit of what is seen as pursuing the public interest to which the Act is directed.  Given that these proceedings have been ex parte, I would think that if there is scope for the examinee and indeed, Mr Edwards, to raise objections to the procedure, that might be done at the examination or in other proceedings.

The practicalities of the notice issue are obvious.  There is clearly room for concern that if applications such as the present are on notice, the examination procedure may one way or another be deliberately or incidentally subverted.  In the circumstances, the Court should make an order in terms of the draft handed up.  I order as per initialled draft.

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