Commonwealth Director of Public Prosecutions v Mare

[2007] QDC 100

[2007] QDC 100

DISTRICT COURT
CIVIL JURISDICTION

JUDGE BRABAZON QC

No 2446 of 2005
RE: REFERRAL OF QUESTION OF LAW - S192 PROCEEDS OF CRIME ACT
2002 BY APPROVED EXAMINER

DR E K CHRISTIE IN EXAMINATION OF ETCHELLS

COMMONWEALTH DIRECTOR OF PUBLIC	Applicant
PROSECUTIONS
and
JOHN DALZELL MARE	First Respondent
BRISBANE ..DATE 08/05/2007
JUDGMENT
HIS HONOUR: The Commonwealth Proceeds of Crime Act,	1
section 192, allows an approved examiner to refer a question of law arising at the examination to the Court that made the examination order. That is this Court.

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The examination was held on the 12th of April 2006. It is helpful to set out immediately the question that was asked:

"In accordance with the Proceeds of Crime Act 2002, does
the correct construction of the word, 'Affairs', in
subsection 180(1) require the examinee to answer

questions aimed at obtaining facts relevant to	20
establishing the benefits derived or establishing whether property is effectively controlled by a person as a result of an alleged offence or offences or unlawful activity, notwithstanding the question may also produce facts relevant to, or touching upon, an alleged offence or offences or unlawful activity?"

The significant development in this case was the decision of	30
the Queensland Court of Appeal, after that question was posed, in Meredith v. State of Queensland 2006 QCA 465. Judgment was given on 10th of November 2006. For present purposes it is
accepted that that decision which was about comparable
provisions in the Criminal Proceeds Confiscation Act 2002	40
Queensland applies to this situation. Attention here was directed to paragraph 37 in the Judgment of Keane J:

"The question raised in stark and abstract terms is
whether section 38(1)(c)(i) permits an examination of

validly and entirely unrelated to the finances of	50
property of the examinee. For the reasons I have set out negative."

2 JUDGMENT 60

The other members of the Court agreed with his reasons.	1
Because the parties here accept the impact of Meredith's case, it is therefore agreed that the question has to be answered, "Yes."

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There is a further agreement between the parties which relates to the discretion which an examiner has under section 187(5) of the Commonwealth Act. That provides that the examiner may require the person to answer a question which is put to the person at the examination and is relevant to the affairs of

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the person. It is agreed here that that provision confers a
discretion on the examiner. That is why the parties are
agreed that the appropriate answer is as set out in paragraph
of the written submissions by counsel on behalf of the

examinee:

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"Yes, provided the examiner requires the answer in
accordance with his or her lawful and proper exercise of
discretion pursuant to the terms of section 187(5) of the

Act."

Counsel agree that it is undesirable to attempt to add further	40
limitations or conditions on the answer which may be only
hypothetical in their effect. It is, however, helpful to add
two observations. First, it is agreed here that the reference
to questions being, "aimed", must be taken to be an aim which
is objective rather than subjective to the questioner.	50
Secondly, there may also arise issues about how far questions
can go in asking about the finances of the suspect or the
person being examined.

3 JUDGMENT 60

The answer to that, in the present context, is also found in	1
sections 34 - 36 of Meredith's case. Those paragraphs explore the necessary link between the question, the finances of the person being questioned and potentially, at least, criminal activity.

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While no effort is made here to include those things in the answer to the question, they are matters that those involved in these examinations should have in mind.

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4 JUDGMENT 60