Lam v Commissioner of the Australian Federal Police
[2017] VSCA 9
•8 February 2017
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S APCI 2016 0069
| SAK CHEUNG DUNCAN LAM | Applicant |
| v | |
| THE COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE | Respondent |
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| JUDGES: | TATE, BEACH and FERGUSON JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 1 February 2017 |
| DATE OF JUDGMENT: | 8 February 2017 |
| MEDIUM NEUTRAL CITATION: | [2017] VSCA 9 |
| JUDGMENT APPEALED FROM: | [2016] VCC 532 (Judge Misso) |
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PROCEEDS OF CRIME – Applications for examination orders – Application for an order for the examination of a person about the affairs of specified individuals – Restraining orders – Applications for forfeiture orders – Applications for exclusion from forfeiture orders – Purpose of examination orders – Forensic purpose of examination – Exercise of discretion – Whether judge erred in exercise of his discretion by failing to properly identify forensic purpose to be served by the grant of an examination order – No error made by judge – Appeal dismissed – Proceeds of Crime Act 2002 (Cth), ss 180, 180A and 180B.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr O P Holdenson QC with Ms E H Ruddle | Hardinlaw |
| For the Respondent | Mr A Moses SC with Mr S McGregor | Australian Federal Police |
TATE JA
BEACH JA
FERGUSON JA:
On 31 May 2016, a judge of the County Court made an order pursuant to ss 180, 180A and 180B of the Proceeds of Crime Act 2002 (Cth) (‘the Act’) that the applicant, Sak Cheung Duncan Lam,[1] be examined about the affairs of six named individuals. The order was made on the application of the respondent, the Commissioner of the Australian Federal Police.
[1]Variously referred to in the material as ‘Duncan’ or ‘Lam’.
The applicant seeks leave to appeal from the order made by the judge. The applicant relies upon one proposed ground of appeal:
The learned primary judge erred in the exercise of his discretion by:
(a)failing to properly identify what forensic purpose would be served by the grant of an examination order; and
(b)failing to consider how the information sought from the applicant related to the Exclusion Proceedings or Confiscation Proceedings.
Background circumstances
The six people about whose affairs the applicant was ordered to be examined were Thi Kim Loan Nguyen (‘Nguyen’), Thi Lan Tran (‘Tran’), Michael Nguyen (‘Michael Nguyen’), Tan-Thanh Duong (‘Michael Jnr’), Dat T Duong (‘Brandon’) and Kwok Leung Dunstan Lam (‘Dunstan’).
In May 2012, the respondent obtained a restraining order under ss 18 and 19 of the Act for property belonging to Nguyen. The basis of the restraining order was the suspicion that Nguyen had committed the ‘serious offence’[2] of dealing with property reasonably suspected of being proceeds of crime contrary to s 400.9 of the Criminal Code 1995 (Cth).
[2]As defined in s 338 of the Act.
Tran is the mother of Nguyen. On 23 May 2012, Nguyen and Tran were charged with a number of offences under the Criminal Code, including offences against ss 400.3(1)[3] and 400.4 (1).[4] The offences were said to have been committed in a series of transactions between 13 July 2010 and 23 May 2012.
[3]Dealing with proceeds of crime worth $1,000,000 or more.
[4]Dealing with proceeds of crime worth $100,000 or more.
In June and July 2012, the respondent filed applications for forfeiture orders pursuant to ss 47 and 49 of the Act, and an application seeking a pecuniary penalty order pursuant to s 116 of the Act.
A number of sections of the Act permit a person who claims an interest in relevant property to apply for its exclusion from a restraining order or a forfeiture order made under the Act.[5]
[5]For a more detailed description of the scheme of the Act, see Commissioner of the Australian Federal Police v Zhang [2016] VSCA 171 [34]–[50].
Michael Nguyen is Nguyen’s brother. Michael Jnr and Brandon are Nguyen’s sons, born in 1997 and 1998 respectively. Dunstan, who was born in 1999, is the half-brother of Michael Jnr and Brandon. The applicant is Dunstan’s father.
On 14 February 2014, Tran, Michael Nguyen, Michael Jnr, Brandon and Dunstan filed applications for the exclusion from the restraint order, applications for the exclusion from any forfeiture order and applications for compensation, pursuant to ss 29, 73 and 77 of the Act. In these applications, each of Tran, Michael Nguyen, Michael Jnr, Brandon and Dunstan claimed an interest in the restrained property. On 17 February 2014, Nguyen also filed applications pursuant to ss 29, 73 and 77 of the Act.
On 22 June 2015, the Commonwealth Director of Public Prosecutions discontinued the prosecution of Nguyen and Tran.
The provisions under which the examination order was made
Sections 180, 180A and 180B of the Act permit examination orders to be made in relation to restraining orders, exclusion applications and applications for compensation. Section 180 deals with examination orders relating to restraining orders, s 180A deals with orders relating to applications for exclusion and s 180B deals with examination orders relating to applications for compensation. In each case, the relevant section provides for the examination of any person ‘about the affairs of a person’ who claims an interest in relevant property. In relation to restraining orders, an examination order may be made for the examination of any person about the affairs of a person who is ‘a suspect in relation to the restraining order’. Specifically, ss 180, 180A and 180B of the Act relevantly provide:
180 Examination orders relating to restraining orders
(1) If a restraining order is in force, the court that made the restraining order, or any other court that could have made the restraining order, may make an order (an examination order) for the examination of any person, including:
(a) a person whose property is, or a person who has or claims an interest in property that is, the subject of the restraining order; or
(b) a person who is a suspect in relation to the restraining order; or
(c) the spouse or de facto partner of a person referred to in paragraph (a) or (b);
about the affairs of a person referred to in paragraph (a), (b) or (c).
(2) The examination order ceases to have effect if the restraining order to which it relates ceases to have effect.
180A Examination orders relating to applications for exclusion from forfeiture
(1) If an application for an order under section 73 or 94 for an interest in property to be excluded from forfeiture is made, the court to which the application is made may make an order (an examination order) for the examination of any person including:
(a) a person who has or claims an interest in the property; or
(b)the spouse or de facto partner of a person referred to in paragraph (a);
about the affairs of a person referred to in paragraph (a) or (b).
(2) The examination order ceases to have effect when:
(a) the application is withdrawn; or
(b) the court makes a decision on the application.
180B Examination orders relating to applications for compensation
(1) If an application for an order under section 77 or 94A (which deal with compensation) is made in relation to an interest in property that has been or may be forfeited, the court to which the application is made may make an order (an examination order) for the examination of any person including:
(a) a person who has or claims an interest in the property; or
(b) the spouse or de facto partner of a person referred to in paragraph (a);
about the affairs of a person referred to in paragraph (a) or (b).
(2) The examination order ceases to have effect when:
(a) the application is withdrawn; or
(b) the court makes a decision on the application.
Each of ss 180, 180A and 180B contain the expression ‘about the affairs of a person’. The word ‘affairs’ is defined in s 338 of the Act as follows:
“affairs” of a person includes, but is not limited to:
(a)the nature and location of property of the person or property in which the person has an interest; and
(b)any activities of the person that are, or may be, relevant to whether or not the person has engaged in unlawful activity of a kind relevant to the making of an order under this Act.
The application at first instance
The application filed by the Commissioner for an examination order sought, amongst other orders, an order that the applicant be examined about the affairs of Nguyen, Tran, Michael Nguyen, Michael Jnr, Brandon and Dunstan.
The evidence before the judge was given on affidavit. There was no cross-examination of any deponent and no vive voce evidence was given on the application.
The principal affidavit relied upon in support of the application for an examination order was an affidavit of Wendy Rix, a detective sergeant of the Australian Federal Police and authorised officer of an enforcement agency within the meaning of s 338 of the Act.
In her affidavit, Ms Rix deposed to the bases for a suspicion held by her that Nguyen had committed the offence of dealing with money or property valued at more than $100,000 reasonably suspected of being the proceeds of crime contrary to s 400.9 of the Criminal Code. The bases of Ms Rix’s suspicion were deposed by her to include the fact that property seized from Nguyen at the time of her arrest in 2012 was ‘grossly disproportionate’ to Nguyen’s legitimate income and expenditure when considered over a reasonable period of time’.[6] Moreover, it was asserted in the Rix affidavit that credits in Nguyen’s bank accounts fluctuated significantly and that it had not been possible to identify any legitimate form of employment or income which would explain the source of large deposits in bank accounts held by Nguyen.[7]
[6]In addition to real property and motor vehicles, the property seized at the time of Nguyen’s arrest included cash in the sum of $630,200, $15,000 worth of casino chips and jewellery valued at approximately $1,270,000.
[7]For example, the receipt of money from nine international bank transfers from Cambodia, totalling $1,221,888, into an ANZ bank account held in Nguyen’s name.
The Rix affidavit set out in some detail the relationship between Nguyen’s various family members to which we have already referred. While the respondent relied upon the whole of the Rix affidavit in support of the application for an examination order against the applicant, the paragraphs of principal relevance so far as the applicant was concerned were paras [79]–[81]. Those paragraphs provided:
79.On 8 February 1999, NGUYEN was arrested and was charged with two counts of conspiring with her partner at the time, DUNCAN and others to supply a prohibited drug, namely 1.4 kilograms of heroin to Anthony Hau Khuan Phu contrary to section 26 of the Drugs Poisons and Controlled Substances Act 1981 (Vic.). LAM was found guilty on 7 November 2002 of conspiring to supply a commercial quantity of a prohibited drug, namely 16.5 kilograms of heroin, contrary to section 25 of the Drugs Misuse and Trafficking Act 1985 (NSW), LAM was sentenced to a term of 16 years[’] imprisonment. He was released from prison in February 2011, having served a total of 12 years.
80.On 13 May 1999, NGUYEN gave birth to her and DUNCAN’S child DUNSTAN.
81.On this basis, I believe that LAM will have knowledge of NGUYEN, TRAN and his son DUNSTAN’S affairs including:
(a)NGUYEN’S financial position at the time of their relationship and subsequently;
(b)TRAN’s financial position at the time of his relationship with her daughter and subsequently;
(c)any financial or in kind contributions he has provided NGUEYN (sic) for the care of his son or otherwise;
(d)how and when he made any such payments and the source of these payments; and
(e)any unlawful activity she engaged in, at the time of her arrest in 1999 or subsequently.
The Rix affidavit concluded:
92On the basis of the matters outlined in this affidavit I believe that examination orders should be made in respect of the following persons, because of their knowledge of the affairs of the suspect, NGUYEN, and persons whose property is, or persons who has or claims (sic) an interest in property that is, the subject of the restraining order:
…
(k)DUNCAN LAM;
… .
The applicant did not swear an affidavit in opposition to the application made against him. Instead, the applicant’s solicitor, Paul Bruce Hardin, swore an affidavit containing the following:
6I am informed by LAM and verily believe, that he has never resided with NGUYEN nor has he ever been her partner nor de facto spouse.
7I am informed by LAM and verily believe, that LAM and NGUYEN had a short term relationship between 1998/99. LAM was in custody when NGUYEN gave birth to their child, DUNSTAN LAM (hereafter referred to as DUNSTAN).
8I am informed by LAM and verily believe, that his only ever contact with DUNSTAN was in the early 2000’s when DUNSTAN attended the prison for a visit. Other than this singular visit LAM has never spoken to or had any dealings with DUNSTAN.
In response to the Hardin affidavit, the respondent filed an affidavit of another member of the Australian Federal Police, Gary Robinson. The Robinson affidavit exhibited visitation logs from the New South Wales Department of Corrective Services recording numerous visits received by the applicant from Nguyen, Tran, Michael Jnr, Brandon and Dunstan, during the period while the applicant was in custody from 2000 to 2011. The Robinson affidavit also exhibited the transcript and a recording of a telephone conversation, that occurred in May 2012, between the applicant and Nguyen. In the course of this call, the applicant also spoke to Michael Jnr and Dunstan. The call lasted some 28 minutes. The call was described by the judge in the following terms:
The transcript discloses that the respondent and Nguyen had an extensive conversation. This conversation had characteristics of friendliness. To this point, the conversation was either the type of intimate conversation that would be had between de facto spouses, or at least persons who knew each other very well. In particular, the two spoke about their son, Dunstan. The conversation ranged across his relationship with one of his stepbrothers, his dietary habits and his attitude to his education. The respondent spoke to Dunstan about some of these things, and also with his stepbrother, … .[8]
[8]Commissioner of the Australian Federal Police v Nguyen [2016] VCC 532 [14] (‘Reasons’).
The application at first instance was initially resisted on the grounds that the evidence did not disclose that the applicant was, or had ever been, the de facto partner of Nguyen. Written submissions filed by the applicant below were directed solely to this issue. When it became apparent, however, that the issue of whether the applicant was ever a de facto of Nguyen was not determinative of the respondent’s application for an examination order, the applicant’s counsel at first instance[9] widened the basis of his defence of the application to include a submission that there was no evidentiary basis for the making of any examination order in relation to any of the six individuals named in the application.
[9]Not counsel who appeared in this Court.
While there was passing reference by the applicant’s counsel at first instance to Michael Jnr and Dunstan in his submissions to the judge, the submissions concentrated on what was said to be a lack of evidence of any involvement of the applicant in any transaction that gave rise to the restraining order and, what was said to be, an insufficiency of evidence upon which the Court could conclude that there were real questions as to the true position in respect of the source and ownership of property the subject of the restraining order. In making these submissions, the applicant’s counsel referred to, and placed reliance upon, what was said in the decisions of Director of Public Prosecutions (Cth) v Chan,[10] Lee v Director of Public Prosecutions (Cth)[11] and Commissioner of the Australian Federal Police v Mah.[12]
[10](2004) 150 A Crim R 163 (‘Chan’).
[11](2009) 75 NSWLR 581 (‘Lee’).
[12](2014) 242 A Crim R 184 (‘Mah’).
The respondent’s case before the judge was that each of the six named individuals, in respect of whose affairs an examination order was sought, was a person whose property was, or who had or claimed an interest in property that was, the subject of the restraining order.[13] In the case of Nguyen, it was also contended that she was a ‘suspect in relation to the restraining order’.[14] The judge was told that the purpose of the examination was to ‘gather evidence to discharge the Commissioner’s burden of proof in his application for forfeiture orders and in responding to applications for exclusion and compensation orders’. No issue was taken in relation to this purpose by the applicant, either at first instance or in this Court.
[13]Cf ss 180(1)(b), 180A(1)(a) and 180B(1)(a) of the Act.
[14]Cf s 180(1)(b) of the Act.
Before the judge, the respondent did not dispute the correctness of what was said in the passages relied upon by the applicant in Chan, Lee or Mah. The respondent submitted, however, that the application of those authorities to the facts as disclosed by the whole of the evidence supported the making of the examination orders sought.
At the conclusion of argument, the judge said:
[Counsel for Lam] has very conveniently conceded that the only issue here is the considerations that apply to the exercise of discretion which seems to me to invite me to write rather less than more and I am a bit concerned about reinventing the wheel because this is an area [in] which a lot has been written about … . Do you agree that that’s all I am to write about, what the considerations are and whether the evidence I have before me permits me to arrive at a conclusion favourable to the application you are making?
Counsel before the judge agreed with this approach, and the judge then reserved his decision.
On 5 May 2016, the judge delivered his reasons for judgment. Counsel for the Commissioner then handed up a draft form of order that contained the order ultimately made by the judge on 31 May 2016. No objection was taken by counsel for the applicant to the terms of the order that was handed to the judge. While there was a subsequent argument about costs,[15] no submission was made at any time in the intervening 26 days that the judge’s reasons of 5 May 2016 did not deal separately with each of the individuals named in the proposed order submitted by the Commissioner, or were not a proper basis for the making of the order tendered by the Commissioner.
[15]On which the judge, on 9 May 2016, ruled (see Commissioner of Australian Federal Police v Nguyen(Ruling No 2) [2016] VCC 548).
The judge’s reasons
In his reasons for judgment, the judge set out the issue that he had to decide and the background to the application. The judge then dealt with the authorities to which he had been referred and thereafter discussed the evidence.
Next, the judge concluded that there was a ‘reasonable likelihood that [the applicant] has had a relationship with Nguyen since 1999, and this relationship persists’.[16]
[16]Reasons [31].
Under the heading ‘Disposition’, the judge then said:
I propose to make an examination order. I believe that making such an order is justified. I am satisfied, on the balance of probabilities, of each of the following matters, and that there is a legitimate forensic purpose in making an examination order:
·There is a suspicion that Nguyen has laundered money, and has acquired an interest in the restrained property unlawfully.
·The respondent had a relationship with Nguyen. The clear evidence of that is:
§ their de facto relationship in 1999;
§ the visitation log demonstrating that they had a persisting relationship which was sufficiently close for Nguyen to have reasons for visiting the respondent;
§ the telephone call and its content demonstrate that there was a persisting relationship at the time when the call was made; and furthermore
§ the nature of the content of the telephone call suggests that it was not an isolated telephone call, but more likely one of many.
· The nature and extent of the persisting relationship between the respondent and Nguyen suggests that the respondent is likely to have gained knowledge of the affairs of Nguyen. This knowledge may be material to the investigations which the applicant desires to undertake, and which may inform the applicant of relevant matters to the exclusion applications.
I should deal shortly with some of the submissions made by [counsel for Lam]. He submitted that the only evidence upon which such an order can be made are paragraphs 79–80 of Rix’s affidavit. He submitted that this amounts to no evidence, and if I were persuaded by that submission, then the lack of evidence must mean that I should refuse this application.
This submission is rather too narrow and ignores other evidence which I am obliged to consider. In particular, it ignores the visitation log, the telephone conversation of 14 May 2012 and the whole of the evidence which suggests that there was a persisting relationship through which the respondent may have gained knowledge of the affairs of the respondent relevant to the restrained property.
[Counsel for the Commissioner] relied on the fact that in the visitation log, Nguyen is referred to as the ‘de-facto’ of the respondent. I give this no weight at all. The mere fact that Nguyen chose to describe himself in that way may have been for other reasons. For example to demonstrate a relationship permitting her to gain entry to the prison in order to visit the respondent. I note that another woman also identified herself as the respondent’s de facto. As such, I think there is very little that can be made of Nguyen being described in that way.
Although I have dealt with one of the principal submissions made by [counsel for Lam] regarding the relevant considerations to the exercise of the discretion, I should say something more about his reliance on Chan and Lee. This submission was, in effect, that those authorities require the exercise of the discretion to be applied rather more stringently than what I take from Mah. I do not believe that there is any discordance between any of the authorities for reasons which I have already explained.
I have considered the ramifications of making an examination order. No doubt the examination will be conducted in a manner which will deprive the respondent of the common law entitlement to refuse to answer questions on the basis of self-incrimination. However, this is but one consideration like many others, and not one which overwhelms the other relevant considerations on which I have based my decision.[17]
[17]Ibid [32]–[37].
The judge then concluded his reasons for judgment under the heading ‘Orders’. Under this heading, the judge said that he would ‘now call the parties to inform [him] of the form of the order that should be made’.[18]
[18]Ibid [38].
The applicant’s argument on appeal
In this Court, counsel for the applicant took us to passages in the decisions of Chan, Lee and Mah which he said governed the respondent’s application for an examination order. The applicant submitted that those authorities showed that in order to obtain a successful exercise of the Court’s discretion to order an examination, the respondent (applicant for the order) had to establish that an application was ‘necessary’. The applicant submitted that so much was established by Crispin J’s reference in Chan to the affidavits in that case not addressing the question of why an examination was ‘necessary’.[19] Crispin J went on to say:
It should be noted that the provisions governing an examination of that kind enable the person to be asked questions to which he or she may not be entitled to decline to answer on the ground of self-incrimination, and that such an investigation may therefore place that person in a position of considerable prejudice. It seems to me that it is incumbent upon the Director seeking an order of this kind to establish that there are adequate grounds for the order to be granted, and that those grounds should be established by sworn evidence.[20]
[19]Chan (2004) 150 A Crim R 163, 169 [26].
[20]Ibid 169 [27].
Next, counsel for the applicant took us to a passage in Lee, in which the New South Wales Court of Appeal[21] referred to Crispin J’s judgment in Chan in the following terms:
Crispin J variously described the discretionary power conferred by s 180 as requiring the Court to be satisfied that the examination of the particular person is ‘necessary’ … or that ‘there are adequate grounds’ for the order … . Clearly Crispin J was concerned that, merely by seeking property on a suspicion based on reasonable grounds, the Director could establish a basis for conducting an examination of a suspect without the right to refuse to answer questions that might incriminate the person. His Honour considered, no doubt correctly, that the purpose of an examination under s 180 should be limited to circumstances where there were real questions as to the true position with respect to the source and ownership of property subject to a restraining order and, possibly other property which might be the proceeds of crime … .[22]
[21]Basten JA, Macfarlan JA and Sackville AJA.
[22]Lee (2009) 75 NSWLR 581, 594 [51].
Counsel for the applicant then took us to the judgment of Dixon J in Mah, where his Honour said:
Having regard to the purpose and structure of the statutory scheme, I consider that the discretion whether to grant an examination order is conditioned by:
(a)the proposed examinee and the subject matter of the proposed examination;
(b)whether there are material investigations to be carried out by that process that would inform applications under that Act;
(c)the circumstances of the restraining order that is in force;
(d)whether there is an application to set aside or revoke the restraining order and, if so, the basis for and merits of that application;
(e)the nature and basis for the suspicions that founded the application for the restraining order; and
(f)whether there are other applications, such as for forfeiture or exclusion.[23]
[23]Mah (2014) 242 A Crim R 184, 191 [28]. We were also taken by the applicant to paras [38]–[44] and [48] of Mah.
Counsel for the applicant then observed that the judge’s reasons for determining that there was a legitimate forensic purpose in making an examination order only made reference to Nguyen.[24] In his reasons for finding that there was a legitimate forensic purpose, the judge made no reference at all to any basis upon which the applicant might have any knowledge of the affairs of Tran, Michael, Michael Jnr, Brandon and Dunstan.
[24]Reasons [32], [34].
With respect to the order that the applicant be examined about the affairs of Nguyen, counsel largely relied upon what was submitted in paras 24–27 of the applicant’s written case (which he said was of equal application to any examination about the affairs of Nguyen’s named five relations). Specifically, the applicant submitted:
The learned primary judge neither considered how the financial position of either Ms Nguyen or Ms Tran in 1999 was relevant to the issue of the source of the restrained property, nor how it could affect any question as to whether that property was an instrument of the offending alleged to have occurred between 2010–2012. There is no relevant connection.
Likewise, the learned primary judge did not identify or address how an examination into potential child support payments by the applicant or their source affected or was relevant to the Exclusion Proceedings or Confiscation Proceedings. There is no relevant connection.
Further, Ms Nguyen’s alleged offending in 1999 is not relevant to the question of whether property now restrained was derived from or the instrument of the ‘serious offence’ which forms the basis of the restraining order. It is also not apparent why an examination of the applicant would be necessary on this topic given that the alleged 1999 offending was the subject of a criminal investigation, prosecution and civil forfeiture proceedings.
There was nothing in the material placed before the learned primary judge to indicate that the applicant would have information regarding unlawful activity by Ms Nguyen. The learned primary judge made no finding that the nature of the relationship was such that the applicant would have had knowledge of further alleged offending (including the ‘serious offences’ which found the restraining order). In the absence of any such evidence or finding, this could not form the basis of a ‘legitimate forensic purpose’.
The respondent’s argument on appeal
In this Court, the respondent submitted that the applicant had not shown any error in the exercise of the judge’s discretion to make an examination order. It was submitted that it was not apparent on the facts that the exercise of discretion by the judge was ‘unreasonable or plainly unjust’.[25] Moreover, it was submitted that the exercise of discretion in this case was attended by a careful distillation of the evidence, and that the findings on the evidence were accompanied by a consideration of an application of the relevant statement of principles that are not challenged in this Court.
[25]Cf House v The King (1936) 55 CLR 499, 505.
The respondent submitted that the applicant’s argument in this Court amounted to a complaint about the adequacy of the judge’s reasons, in circumstances where the applicant’s sole ground of appeal was not directed to that issue. Moreover, it was said that it was not open to the applicant to make a complaint about the adequacy of the judge’s reasons having regard to the history of the way the proceeding was conducted before the judge and the parties’ acquiescence in the judge providing short reasons on the central issue that was argued at first instance.[26]
[26]Cf Bedeux v Transport Accident Commission [2016] VSCA 127 [64]–[66] (Kaye JA, with whom Ferguson and McLeish JJA agreed).
Analysis
We do not doubt that an applicant for an examination order under ss 180, 180A and 180B needs to show that there are adequate grounds for the order to be granted.[27] Nor do we doubt that, generally, the purpose of an examination should be limited to circumstances where there are real questions as to the true position with respect to the source and ownership of property that is subject to a restraining order or property which might be the proceeds of crime.[28]
[27]Chan (2004) 150 A Crim R 163, 169 [27]; Lee (2009) 75 NSWLR 581, 594 [51].
[28]Cf Lee (2009) 75 NSWLR 581, 594 [51].
In the present case, like the judge, we think the whole of the material disclosed that there were real questions as to the true position with respect to the source and ownership of the property the subject of the restraining order and in respect of which each of Nguyen, Tran, Michael Nguyen, Michael Jnr, Brandon and Dunstan had made exclusion and compensation applications. While it might be said that this would have been better demonstrated had the Commissioner tendered in evidence before the judge copies of the restraining order and the various exclusion and compensation applications (and indeed we would suggest that such a course should be adopted in future applications for examination orders), we think that the very existence of the multiple applications in this case as described in the Rix affidavit discloses the existence of an issue as to the true position with respect to the source and ownership of the property that is the subject of the various applications.
Moreover, in the circumstances of the relationship between Nguyen and the applicant that was established on the evidence, the relationship between Nguyen, her mother, her brother and her three children, and various claims for interests in property the subject of the restraining order, it was open to the judge to conclude that the legitimate forensic purpose he described in his reasons for judgment[29] were made out, not only in respect of Nguyen but also in respect of the other members of her family.
[29]Reasons [32].
Noting again that the applicant’s ground of appeal is not one of inadequate reasons, we do not see the failure by the judge to refer in [32]–[37] to Tran, Michael Nguyen, Michael Jnr, Brandon and Dunstan as affording a basis for allowing an appeal from the order of the judge. The position might have been different had the applicant at first instance mounted an argument that, on the evidence, while an order might have been made in respect of the affairs of Nguyen, nothing supported an order in respect of the affairs of one or some of her other family members. If such an argument had been put to the judge, it may have been open to counsel who appeared for the applicant at first instance to contend at some time between the delivery of reasons and the making of the order, either that the reasons did not support the making of an order in the terms submitted by the Commissioner, or that the judge had not dealt with all of the issues that were in fact argued — and in particular the individual cases concerning the affairs of Tran, Michael Nguyen, Michael Jnr, Brandon and Dunstan. However, the applicant at first instance chose to resist the application to be examined with respect to the affairs of all six individuals primarily by denying the existence of a de facto relationship with Nguyen. Nguyen was clearly the point of connection between the applicant and the others. Tran, Michael Nguyen, Michael Jnr, Brandon and Dunstan all bore a direct familial connection with Nguyen and the applicant’s relationship with her, if it existed, was, in the circumstances, clearly a foundation for his knowledge of the affairs of the others. As mentioned, the denial of the de facto relationship was rejected and the judge found that a relationship of considerable familiarity persisted between the applicant and Nguyen. In our view, in the light of that adverse finding, and in the circumstance where Nguyen had provided the foundation of the applicant’s connection to Tran, Michael Nguyen, Michael Jnr, Brandon and Dunstan, the judge had before him adequate grounds for the making of an examination order.
The applicant’s ground of appeal asserts that the judge erred by failing to properly identify a forensic purpose which would be served by the granting of an examination order and by failing to consider how the information sought from the applicant related to the various exclusion or confiscation proceedings. Plainly, the judge did consider, and identified, the forensic purpose which he found entitled the respondent to an examination order. Equally, as his Honour’s reasons disclose, the judge was alive to the fact that there were real questions as to the true position with respect to the source and ownership of the property the subject of the restraining order. This provided the basis for the order that was made without objection after the judge’s reasons were delivered. The error asserted by the applicant in the exercise of the judge’s discretion is not made out.
Conclusion
While we would grant the applicant leave to appeal, the appeal must be dismissed.
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