Jackson v The Commissioner of the Australian Federal Police
[2014] VSCA 136
•27 June 2014
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2013 0192
| WAYNE KEVIN JACKSON |
| Applicant |
| v |
| THE COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE |
| Respondent |
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| JUDGES | NETTLE, TATE and BEACH JJA |
| WHERE HELD | MELBOURNE |
| DATE OF HEARING | 23 June 2014 |
| DATE OF JUDGMENT | 27 June 2014 |
| MEDIUM NEUTRAL CITATION | [2014] VSCA 136 |
| RULING APPEALED FROM | Jackson v Australian Federal Police (Unreported, County Court of Victoria, Judge Lacava, 3 December 2013) |
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PROCEEDS OF CRIME – Practice and procedure – Application for stay of civil forfeiture proceedings under Proceeds of Crime Act 2002 (Cth) (‘POC Act’) pending hearing and determination of related criminal proceedings – Whether stay likely to frustrate intention of POC Act – Whether refusal of stay inimical to applicant’s privilege against self-incrimination – McMahon v Gould (1982) 7 ACLR 202; Reid v Howard (1995) 184 CLR 1; Yuill v Spedley Securities Ltd (1992) 8 ACSR 272; Baker v Commissioner of Australian Federal Police (2000) 104 FCR 359; X7 v Australian Crime Commission (2013) 248 CLR 92, considered; Re AWB Ltd (No 1) (2008) 21 VR 252, referred to; Director of Public Prosecutions (Cth) v Jo (2007) 176 A Crim R 17, followed; Lee v The Queen (2014) 308 ALR 252, applied; Lee v New South Wales Crime Commission (2013) 302 ALR 363, distinguished – Proceeds of Crime Act 2002 (Cth) ss, 25, 26(4), 31, 47, 49, 74 266, 319; Evidence Act 2008 (Vic), s 128; County Court Act 1958 (Vic), s 49.
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| APPEARANCES: | COUNSEL | SOLICITORS |
| For the Applicant | Ms C M Kenny QC with Mr A T Coote | Victorian Bar Duty Barristers’ Pro Bono Scheme |
| For the Crown | Dr D J Neal SC with Mr S K McGregor | Australian Federal Police Proceeds of Crime Litigation |
NETTLE JA
TATE JA
BEACH JA:
This is another application for leave to appeal from the refusal by a judge of the County Court to stay civil forfeiture proceedings under the Proceeds of Crime Act 2002 (Cth) (‘the POC Act’) pending the hearing and determination of related criminal proceedings.
The application for a stay was dealt with at the same time, and before the same judge, as the application for a stay in the matter of Zhao and Jin v The Commissioner of the Australian Federal Police from which an application for leave to appeal has also been heard by this Court.[1]The application in each case before the judge was put on the basis that the applicants would be prejudiced if the forfeiture proceedings were not stayed until after the hearing and determination of the criminal proceedings, by reason of having to make a choice whether to give evidence in the forfeiture proceedings, and thereby exposing themselves to the risk of that evidence later being used against them in the criminal proceedings, or declining to give evidence in the forfeiture proceedings and thereby compromising their ability to defend the forfeiture proceedings. In this case, as in Zhao and Jin, it was contended that to do so would deprive the applicants of ‘some of the protections conferred by the accusatorial system of criminal justice’.
[1][2014] VSCA 137.
Counsel for the applicant for leave to appeal in this case demonstrated by reference to the attached table the substantial degree of overlap between the criminal proceedings and the forfeiture proceedings. Counsel also made submissions similar in many respects to those put by counsel on behalf of Zhao and Jin in their application for leave to appeal but with added emphasis on the principle of legality, and thus the clarity required of a statute before it may be taken to have abrogated the privilege against self-incrimination. Counsel also placed particular emphasis on the decision of the Queensland Court of Appeal in Jo.[2]
[2](2007) 176 A Crim R 17.
In the result, it is sufficient to say that the reasons we have given in Zhao and Jin apply mutatis mutandis in this matter and so lead us to conclude that the forfeiture proceedings in this matter should also be stayed until the hearing and determination of the criminal proceedings or further order.
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OVERLAP BETWEEN EVIDENCE IN THE CRIMINAL PROCEEDINGS
AND IN POCA PROCEEDINGS
CRIMINAL PROCEEDINGS
CRIMINAL CHARGES EVIDENCE IN SUPPORT OF CRIMINAL CHARGES PROPERTY OF APPLICANT/ACCUSED IMPLICATED IN THE CHARGES includes RESPONDENT’S
MATERIAL
REFUTING OVERLAP
BETWEEN CRIMINAL PROCEEDINGS AND POCA APPLICATIONS4 x “Dealing with property reasonably suspected of being the proceeds of crime” contrary to s 400.9 (1) Criminal Code (Cth)
[TAB A1]
Penalty: 3 years or 180 penalty units or both
Proof required by the Crown beyond reasonable doubt:
Has the accused dealt with the proceeds of crime, ie, stolen bank notes from the RBA?
1x attempted theft of $47,550 contrary to ss 11.1(1) of the Criminal Code (Cth)
-AFFIDAVIT OF ANNA MARIA DURAN SWORN 11.2.14[TAB 12]
EX AMD 1 –exhibits Summary of Prosecution Opening. Relies on the acquisition of certain property/bank notes and payments.
- Par 34 refers to the evidence of forensic accountant, Chantelle Emery, who concludes that the accused has received funds from unexplained sources totalling
$690,953.93
- Australian Diamond Company for the purchase of 3 precious
stones [ Ex AMD-1, par 24(e), Tab 12]
-Rolex watch [ Ex AMD-1, par 24(f), Tab 12]
-Australian Bullion Company for the purchase of 5 gold items [Ex AMD-1, par 26(c), Tab 12]
-Purchase of Mercedes Benz for $126,000[Ex AMD-1, par 26(e), Tab 12]
-Hardy Brothers jewellery [Ex AMD-1, par 29(a), Tab 12]
-Respondent’s submissions, pars 4 & 5 [Tab 13] ‘no complete identity’ and ‘…misappropriation of those actual bank notes …is the subject of those allegations rather than the restrained assets.’
-Respondent’s Further submissions pars 8 & 9, [Tab 16] “We disagree there is any direct overlap between the criminal and POCA proceedings….’
POCA APPLICATIONS
(Note: His Hon. Judge Lacava’s reasons refer to two applications but application made by AFP for costs for three applications Tab 9 T 32 at 8 and 13; See also pars 16 and 19 of Agreed Summary of Facts at Tab 17; see also par 5 of the reasons)
Application under POCA When can the POCA order be made
Property of Applicant/Accused the subject of forfeiture application includes Overlap with Criminal Charges as revealed by the Opening Submission Ex AMD-1 Tab 12 AFP’s application under s 47 & 59 of POCA for forfeiture of property listed in Annexure A
[Forfeiture application I not in folder- handed out in Ct – but Annexure A is the same for the freezing order application see, Ex SEJ to the affidavit of Susanne Jones in Tab 2]
S. 317 Proof on the balance of probabilities for all POCA applications.
S315 Civil proceedings rules of evidence apply
S 47 of POCA
“(1) A court…must make an order that property specified in the order is forfeited to the Commonwealth if
(a) the responsible authority for a restraining order under s 18 that covers the property applies for an order…
(b) the restraining order has been in force for at least 6 months
and
(c) the Court is
satisfied that a
person whose
conduct or
suspected conduct
formed the basis
of the restraining
order engaged in
conduct constituting
one or more
serious offence.”
Proof: on the
balance of probabilities :
see S 47(3)
-Mercedes Benz (Schedule (e))
-gold coins, diamonds, 5 gold nuggets, nine gold coins, silver Rolex watch as itemized in Annexure B (Schedule (k))[forfeiture application handed out in court]
-Purchase of Mercedes Benz for $126,000[Ex AMD-1, par 26(e), Tab 12]
- Australian Diamond Company for the purchase of 3 precious
stones [ Ex AMD-1, par 24(e), Tab 12]
-Rolex watch [ Ex AMD-1, par 24(f), Tab 12]
-Australian Bullion Company for the purchase of 5 gold items [Ex AMD-1, par 26(c), Tab 12]
-Hardy Brothers jewellery [Ex AMD-1, par 29(a), Tab 12]
Application under POCA When can the POCA order be made
Property of Applicant/Accused the subject of forfeiture application includes Overlap with Criminal Charges as revealed by the Opening Submission Ex AMD-1 Tab 12 S 51 of POCA
“The fact that a person person has been charged does
not affect the court’s
power to make a
forfeiture order under
s 47 or 49 in relation to the offence” has been
acquitted of an of an
offence with which the
Applicant’s application under s 74 of POCA for property to be excluded from the forfeiture order [Tab 3] S 73 (1) “A court that made a forfeiture order…or is to hear an application…for a forfeiture order must make an order excluding a specified interest in property from forfeiture… if…
(d) …the court is satisfied that the applicant’s interest in the property is neither of the following:
(i) proceeds of unlawful activity;
(ii) if an offence on which the order was (or would be) based is a serious offence – an instrument of any serious offence…”
· All property of the Applicant/Accused that is the subject of the forfeiture application [compare Schedule in forfeiture application – handed out in Ct- and schedule in Tab 3]
-Purchase of Mercedes Benz for $126,000[Ex AMD-1, par 26(e), Tab 12]
- Australian Diamond Company for the purchase of 3 precious
stones [ Ex AMD-1, par 24(e), Tab 12]
-Rolex watch [ Ex AMD-1, par 24(f), Tab 12]
-Australian Bullion Company for the purchase of 5 gold items [Ex AMD-1, par 26(c), Tab 12]
-Hardy Brothers jewllery [Ex AMD-1, par 29(a), Tab 12]
Application under POCA When can the POCA order be made
Property of Applicant/Accused the subject of forfeiture application includes Overlap with Criminal Charges as revealed by the Opening Submission Ex AMD-1 Tab 12 · Proof that property is not the subject of proceeds of crime will relate to some of the property referred to in [Ex AMD-1 Tab 12]
AFP’s application
For a pecuniary penalty order under s 116 of POCA for the applicant to pay $672,382 ‘and any further sums as may be identified’ as benefits derived from the commission of the 4 criminal charges - 1 March 2013 [Tab 6]S 116
“(1) A court….may make an order requiring a person to pay an amount to the Commonwealth if:
(a) a proceeds of crime authority applies for the order; and
(b) the court is satisfied of either or both of the following:
(i) the person has been convicted of an indictable offence and has derived benefits from the commission of the offence;
(ii) the person has committed a ‘serious offence.’
Par 1(a) of the application relies on the benefits derived from the four criminal charges [Tab 6] Direct overlap between the criminal charges and the penalty order. The POCA application can proceed first and the court can make a penalty order if it finds on the balance of probabilities that the applicant/accused committed a ‘serious offence’.
Application under POCA When can the POCA order be made
Property of Applicant/Accused the subject of forfeiture application includes Overlap with Criminal Charges as revealed by the Opening Submission Ex AMD-1 Tab 12 S 120 “The fact that a person has been acquitted of an offence with which the person has been charged does not affect the court’s power to make a pecuniary penalty order in relation to the offence.”
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