Director of Public Prosecutions (Cth) v Tan

[2004] NSWSC 856

CITATION:	DPP (Cth) v Tan & Anor [2004] NSWSC 856
HEARING DATE(S):	08/09/04
JUDGMENT DATE:	8 September 2004
JUDGMENT OF:	Shaw J
DECISION:	In the absence of any clear prohibition or necessary implication that the applicant cannot adduce relevant evidence in support of its case, I decline to rule in an umbrella or universal way that the evidence should be excluded. Of course, I would entertain applications with respect to particular aspects of the admissibility of the evidence. Accordingly, on an interlocutory basis, I allow the applicant for revocation to read the affidavits that she has filed and served, and to adduce other relevant evidence which she may seek to tender.
CATCHWORDS:	Application to revoke a restraining order pursuant to s42 of the Proceeds of Crime Act 2002 (Cth) - Whether pre-existing order for the restraint may be revoked pursuant to s42(5) of the Proceeds of Crime Act 2002 (Cth)
LEGISLATION CITED:	Proceeds of Crime Act 2002 (Cth) s42
CASES CITED:	Garrard t/as Arthur Anderson & Co v Email Furniture Pty Ltd (1993) 32 NSWLR 662 Houssein v Under Secretary of Industrial Relations and Technology (NSW) (1982) 148 CLR 88 at 94 NSW Crime Commission v Davies [1999] NSWSC 354 Thomas A Edison Ltd v Bullock (1912) 15 CLR 679
PARTIES :	Commonwealth Director of Public Prosecutions Dante Tan & Anor
FILE NUMBER(S):	SC 11461/03
COUNSEL:	G Jones - Applicant P Hastings QC - Respondent Crown
SOLICITORS:	B Clark - Applicant T Muir - Respondent Crown

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IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
COMMON LAW LIST

SHAW J

8 September 2004

11461/03


COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS

v

DANTE TAN & ANOR
JUDGMENT

1 Shaw J: The case before the Court is an application to revoke a restraining order pursuant to s 42 of the Proceeds of Crime Act 2002 (Cth) (the Act). The critical test as to whether a pre-existing order for the restraint of what is alleged to be the proceeds of crime is whether, pursuant to s 42 (5), the court may revoke the restraining order:

if satisfied that there are no grounds on which to make that the order at the time of considering the application to revoke the order.

2 It is obviously a tough test, a high barrier for the applicant seeking revocation to meet but it focuses upon the time of considering the application to revoke. Accordingly, the court needs to take account of the facts and circumstances which are asserted as at the time of considering the revocation application.

3 The respondent to the notice of motion, the Commonwealth Director of Public Prosecutions (DPP), objected broadly to the right of the applicant on the notice of motion, Mrs Tan, to adduce any evidence upon the application. If correct, this submission would lead to an odd result. It is common ground, as I understand it, that the application is competent in the sense that we have a person (namely the wife of Mr Tan) who was not notified of the application for a restraining order and who has a right to apply to the court to revoke the order pursuant to s 42(1) of the Act. Locus standi is not in controversy. To say that Mrs Tan has a right to apply to revoke the order but has no right to adduce any evidence in support of that application seems to me to be anomalous. Of course, if it were required by the text of a legislative enactment or by necessary implication then this Court would be bound to accept it, whatever thoughts that the Court might have about the injustice of the situation. However, absent some express provision or some necessary implication, prima facie a person who has a right to bring a notice of motion before a superior court of record to revoke an earlier order in whole or in part would ordinarily have a right to produce some relevant evidence to support that application.

4 A person who has a right to bring an application before a court is presumptively to be regarded as a person who has a right to a hearing. As Isaacs J said in Thomas A Edison Ltd v Bullock (1912) 15 CLR 679 at 681 said:

There is a primary precept governing the administration of justice, that no man is to be condemned unheard; and therefore as a general rule, no order should be made to the prejudice of a party unless he has the opportunity of being heard in defence.

5 (This observation was cited with approval by Mahoney AP in Garrard t/as Arthur Anderson & Co v Email Furniture Pty Ltd (1993) 32 NSWLR 662 at 677). To deny the right of a competent applicant to adduce relevant evidence would be a drastic step. Any “hearing” would be radically circumscribed.

6 Although in the ultimate disposition of this matter I am prepared to revisit the question as to the admissibility and weight of any evidence adduced by the applicant on the notice of motion, I am nonetheless of the prima facie view that the evidence should be entertained by the Court. It seems to me that it is right to say there is no express exclusion of evidence set out in the relevant Commonwealth legislation concerning confiscation of the proceeds of crime which would prevent an applicant for revocation, pursuant to s 42 of the Act, to adduce relevant and admissible evidence in support of the application. The legislative emphasis is on the set of facts or circumstances as at the time of considering the present application given that criterion it would seem to me to be unfair and almost perverse to preclude an applicant from updating the court as to the state of facts or circumstances which exist at the relevant time. Of course, if Parliament wanted to disallow evidence of this kind then it could have said so, but it has not.

7 Senior counsel for the DPP has ably put an argument based upon the scheme of the legislation as a whole. However, I think that applying the language of Studdert J in NSW Crime Commission v Davies [1999] NSWSC 354 at [14], the approach the court should take to legislation of this kind should be, in the absence of any clear prohibition, that the legislation should be construed favourably or beneficially to a person whose assets have been seized based upon the “reasonable suspicion” of a police officer.

8 I acknowledge that s 42 of the relevant legislation, and in particular sub-section (4) thereof expressly allows the DPP to adduce evidence additional to the evidence previously brought before the Court relating to the application in the event of a revocation application. Conceivably, there could be an expressio unius argument, but such a method of statutory interpretation should be used sparingly and with great caution: Houssein v Under Secretary of Industrial Relations and Technology (NSW) (1982) 148 CLR 88 at 94. The maxim is a valuable servant but a “dangerous master.”

9 In the absence of any clear prohibition or necessary implication that the applicant cannot adduce relevant evidence in support of its case, I decline to rule in an umbrella or universal way that the evidence should be excluded. Of course, I would entertain applications with respect to particular aspects of the admissibility of the evidence. Accordingly, on an interlocutory basis, I allow the applicant for revocation to read the affidavits that she has filed and served, and to adduce other relevant evidence which she may seek to tender.

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Last Modified: 09/16/2004