Ng v Commissioner of the Australian Federal Police
[2022] WASCA 48
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: NG -v- COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE [2022] WASCA 48
CORAM: BUSS P
MURPHY JA
MAZZA JA
HEARD: 9 AUGUST 2021
DATE OF
FURTHER FINAL
SUBMISSIONS : 23 AUGUST 2021, 28 MARCH 2022, 7 APRIL 2022 & 10 APRIL 2022
DELIVERED : 3 MAY 2022
FILE NO/S: CACV 40 of 2019
BETWEEN: VOON MEI NG
First Appellant
BYOUNG JU CHA
Second Appellant
AND
COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE
Respondent
ON APPEAL FROM:
Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA
Coram: KENNETH MARTIN J
File Number : CIV 3071 of 2018
Catchwords:
Proceeds of crime - Restraining orders - Examinations - Whether primary judge failed to give adequate reasons for making restraining orders - Whether primary judge failed to give adequate reasons for making examination orders on an ex parte basis - Whether a proper basis for making restraining orders - Whether a proper basis for making examinations orders - Proceeds of Crime Act 2002 (Cth)
Constitutional law - Legislative power of the Commonwealth - Whether s 135.1(1) and s 400.9(1) of the Criminal Code (Cth) are valid enactments of the Commonwealth Parliament
Constitutional law - Legislative power of the Commonwealth - Whether relevant provisions of the Proceeds of Crime Act 2002 (Cth) are reasonably incidental to the subject matter of the heads of power which underpin the validity of s 135.1(1) and s 400.9(1) of the Criminal Code (Cth) - Whether relevant provisions of the Proceeds of Crime Act are reasonably capable of being seen as appropriate and adapted to achieving or are reasonably proportionate to the apparent purpose of s 135.1(1) and to the apparent purpose of s 400.9(1) of the Criminal Code
Constitutional law - Judicial power of the Commonwealth - Whether s 19 of the Proceeds of Crime Act 2002 (Cth) is inconsistent with ch III of the Commonwealth Constitution - Whether the power to make an examination order conferred on a court by s 180 of the Proceeds of Crime Act is an executive, and not a judicial, power - Whether s 180 and s 182 of the Proceeds of Crime Act are inconsistent with ch III of the Constitution
Legislation:
Commonwealth Constitution, s 51(ii), s 51(xiii), s 51(xxix), s 51(xxxix), s 61
Convention on Laundering, Search and Seizure and Confiscation of Proceeds from Crime (1997) ATS 21 art 1, art 6(1)(a), art 6(3)
Criminal Code (Cth), s 135.1(1), s 400.1, s 400.2, s 400.9(1)
Judiciary Act 1903 (Cth), s 78B, s 79
Proceeds of Crime Act 2002 (Cth), s 5, s 18, s 19, s 39, s 42, s 45, s 47, s 49, s 51, s 80, s 180, s 182, s 183, s 187, s 195, s 314, s 315, s 317, s 319, s 322, s 329, s 335, s 338
Result:
Appellants' application in an appeal filed 7 July 2021 granted on a limited basis
Extension of time to appeal granted
Leave to appeal granted
Appeal in relation to ground 2 allowed
Primary judge's order made on an ex parte basis for the examination of the appellants set aside
Order made by this court under s 180(1) of the Proceeds of Crime Act 2002 (Cth) for the examination of each of the appellants
Appeal in relation to all other grounds dismissed
Category: A
Representation:
Counsel:
| First Appellant | : | In person |
| Second Appellant | : | In person |
| Respondent | : | Mr M D Howard SC & Mr G Hill |
Solicitors:
| First Appellant | : | In person (before 17 March 2022) Kingdom Legal (on and after 17 March 2022) |
| Second Appellant | : | In person (before 17 March 2022) Kingdom Legal (on and after 17 March 2022) |
| Respondent | : | Australian Government Solicitor - Perth |
Case(s) referred to in decision(s):
Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485
Beale v Government Insurance Office (NSW) (1997) 46 NSWLR 430
Bennett v Carruthers [2010] WASCA 131
Burton v Honan [1952] HCA 30; (1952) 86 CLR 169
Commissioner of Australian Federal Police v Fitzroy All Pty Ltd [2015] WASC 320; (2015) 299 FLR 439
Commissioner of Australian Federal Police v Wen [2017] VSC 391; (2017) 322 FLR 32
Commissioner of the Australian Federal Police v Mah [2014] VSC 262; (2014) 242 A Crim R 184
Commissioner of the Australian Federal Police v Ng [2019] WASC 222
Commissioner of the Australian Federal Police v Ng [No 3] [2019] WASC 304; (2019) 348 FLR 159
Commissioner of the Australian Federal Police v Zhao [2015] HCA 5; (2015) 255 CLR 46
Davis v The Commonwealth [1988] HCA 63; (1988) 166 CLR 79
Della Patrona v Director of Public Prosecutions (Cth) [No 2] (1995) 38 NSWLR 257
Director of Public Prosecutions v Cleveland [2010] NSWSC 67
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89
Fardon v Attorney-General (Queensland) [2004] HCA 46; (2004) 223 CLR 575
George v Rockett [1990] HCA 26; (1990) 170 CLR 104
Grannall v Marrickville Margarine Pty Ltd [1955] HCA 6; (1955) 93 CLR 55
Halliday v The Commonwealth [2000] FCA 950; (2000) 45 ATR 458
Hilton v Wells [1985] HCA 16; (1985) 157 CLR 57
Hussien v Chong Fook Kam [1970] AC 942
In Vitro Technologies Pty Ltd v Taylor [2011] QCA 44
International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319
Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51
Knight v FP Special Assets Ltd [1992] HCA 28; (1992) 174 CLR 178
Lam v Commissioner of the Australian Federal Police [2017] VSCA 9
Lee v Director of Public Prosecutions (Cth) [2009] NSWCA 347; (2009) 75 NSWLR 581
Ma v Commissioner of Australian Federal Police [2016] VSC 553
Mansfield v Director of Public Prosecutions (WA) [2006] HCA 38; (2006) 226 CLR 486
Milicevic v Campbell [1975] HCA 20; (1975) 132 CLR 307
Mount Lawley Pty Ltd v Planning Commission (WA) [2004] WASCA 149; (2004) 29 WAR 273
Nationwide News Pty Ltd v Wills [1992] HCA 46; (1992) 177 CLR 1
Ng v Commissioner of the Australian Federal Police [2019] WASCA 195
Nguyen v Commissioner of Australian Federal Police [2014] QCA 293; (2014) 292 FLR 10
Nicholas v The Queen [1998] HCA 9; (1998) 193 CLR 173
Onley v Commissioner of the Australian Federal Police [2019] NSWCA 101; (2019) 345 FLR 241
Orient Steam Navigation Co Ltd v Gleeson [1931] HCA 2; (1931) 44 CLR 254
Polyukhovich v The Commonwealth [1991] HCA 32; (1991) 172 CLR 501
Queensland Bacon Pty Ltd v Rees [1966] HCA 21; (1966) 115 CLR 266
R v Falzon [2018] HCA 29; (2018) 264 CLR 361
R v Hughes [2000] HCA 22; (2000) 202 CLR 535
R v Kidman [1915] HCA 58; (1915) 20 CLR 425
Re Application by the Commissioner of the Australian Federal Police [2015] VSC 774
Re Application Pursuant to Section 19 of Proceeds of Crime Act 2002 (Cth); Ex parte Commissioner of Australian Federal Police [2014] WASC 390
Re Director of Public Prosecutions; Ex parte Lawler [1994] HCA 10; (1994) 179 CLR 270
Rogers v The Queen (1995) 64 SASR 280
Ruzehaji v Commissioner of Australian Federal Police [2015] SASCFC 182; (2015) 124 SASR 355
The State of South of Australia v Totani [2010] HCA 39; (2010) 242 CLR 1
Thomas v Mobray [2007] HCA 33 (2007) 233 CLR 307
Victoria v The Commonwealth [1996] HCA 56; (1996) 187 CLR 416
Wainohu v The State of New South Wales [2011] HCA 24; (2011) 243 CLR 181
Williams v The Commonwealth [2012] HCA 23; (2012) 248 CLR 156
Zheng v Commissioner of Australian Federal Police [2019] SASCFC 157; (2019) 136 SASR 303
Table of contents
Overview of the procedural history relevant to the appeal
The application before the Primary Judge
The restraining orders and the examination orders made by the Primary Judge
The relevant statutory framework
The reasons of the Primary Judge for hearing the respondent's application on an ex parte basis and for making the restraining orders and the examination orders
The grounds of appeal
The breadth of the appellants' submissions
Appellants' application in an appeal filed 7 July 2021
Notices under s 78B of the Judiciary Act
Ground 1: the appellants' submissions
Ground 1: the respondent's submissions
Ground 1: its merits
Ground 2: the appellants' submissions
Ground 2: the respondent's submissions
Ground 2: its merits
Ground 3: the appellants' submissions
Ground 3: the respondent's submissions
Ground 3: its merits
Ground 4: the appellants' submissions
Ground 4: the respondent's submissions
Ground 4: its merits
Ground 5: the appellants' submissions
Ground 5: the respondent's submissions
Ground 5: its merits
Ground 6: the appellants' submissions
Ground 6: the respondent's submissions
Ground 6: its merits
Ground 7: the appellants' submissions
Ground 7: the respondent's submissions
Ground 7: its merits
Ground 8: the appellants' submissions
Ground 8: the respondent's submissions
Ground 8: its merits
Conclusion
JUDGMENT OF THE COURT:
On 20 March 2019, the first appellant (Ms Ng) and the second appellant (Mr Cha) filed an appeal notice in this court in respect of orders made on 7 February 2019 by Kenneth Martin J (the Primary Judge) under the Proceeds of Crime Act 2002 (Cth) (the POC Act).
The orders included:
(a)restraining orders made pursuant to s 18 and s 19 of the POC Act; and
(b)examination orders made pursuant to s 180 of the POC Act.
The orders wanted by the appellants in this appeal are as follows:
(a)a declaration that the Primary Judge denied the appellants procedural fairness in the course of deciding to make the restraining orders and the examination orders;
(b)a declaration that the restraining orders are 'invalid' and 'void ab initio';
(c)a declaration that the examination orders are 'invalid' and 'void ab initio'; and
(d)a declaration that an application by the respondent in the primary proceedings, made pursuant to s 47 and s 49 of the POC Act, for the forfeiture to the Commonwealth of the property the subject of the restraining orders is 'invalid'.
The appeal notice stated that leave to appeal was necessary. On 21 May 2020, Murphy JA ordered that the application for leave to appeal be referred to the hearing of the appeal.
The appellants require an extension of time to appeal. The last date for appealing was 21 February 2019. As we have mentioned, the appeal notice was not filed until 20 March 2019. The application for an extension of time is supported by Ms Ng's affidavit sworn 8 March 2019.
The delay in filing the appeal notice is reasonably short and has been explained adequately. An extension of time to appeal should be granted.
We would grant leave to appeal in view of our conclusion, in the context of ground 2 of the appeal, that the Primary Judge failed to give adequate reasons for making the examination orders on an ex parte basis. However, we would, in the re-exercise of the discretion on the respondent's application before his Honour for examination orders in relation to the appellants, make orders under s 180(1) of the POC Act for the examination of each of the appellants.
None of the other grounds of appeal has been made out. The appeal, to the extent it concerns those grounds, should be dismissed.
Overview of the procedural history relevant to the appeal
An overview of the procedural history relevant to this appeal is as follows.
On 7 February 2019, the Primary Judge made the orders which are the subject of this appeal. His Honour made restraining orders in respect of specified property in the name of, or under the effective control of, the appellants. His Honour also made examination orders in respect of the appellants and Khalid Mehmood. All of the orders were made in closed court in the absence of, and without notice to, the appellants and Mr Mehmood.
On 18 February 2019, the appellants applied in the primary proceedings for, relevantly, a stay of the examination orders, pursuant to s 319 of the POC Act.
On 6 March 2019, the appellants applied in the primary proceedings for a declaratory order that the restraining orders had ceased to be in force by virtue of s 45(2) of the POC Act. On 8 March 2019, Tottle J dismissed the application. See Commissioner of the Australian Federal Police v Ng.[1] The appellants began an appeal against Tottle J's decision, but the appeal was dismissed by consent.
[1] Commissioner of the Australian Federal Police v Ng [2019] WASC 222.
On 20 March 2019, the appellants began this appeal against the restraining orders and the examination orders made by the Primary Judge on 7 February 2019.
On 6 April 2019, the appellants made an application in the primary proceedings, pursuant to s 42 of the POC Act, for the revocation of the restraining orders. The application was discontinued.
On 25 and 26 July 2019, Tottle J heard the application in the primary proceedings for the stay which the appellants had made on 18 February 2019. On 23 August 2019, Tottle J dismissed the application. See Commissioner of the Australian Federal Police v Ng [No 3].[2]
[2] Commissioner of the Australian Federal Police v Ng [No 3] [2019] WASC 304; (2019) 348 FLR 159.
On 24 September 2019, an examiner issued an examination notice pursuant to s 183 of the POC Act which required Mr Cha to attend for examination and to produce certain documents on 26 and 27 November 2019. It appears that a similar examination notice was issued to Ms Ng.
On 20 November 2019, the appellants made an application in this appeal for a stay of the examination orders until the determination of this appeal. On 25 November 2019, Murphy and Mitchell JJA heard and dismissed the application. See Ng v Commissioner of the Australian Federal Police.[3]
[3] Ng v Commissioner of the Australian Federal Police [2019] WASCA 195.
The examination of Ms Ng and Mr Cha pursuant to the examination orders has not been completed (appeal ts 58).
The application before the Primary Judge
The application before the Primary Judge was made by a notice of motion filed on 30 November 2018.
In the notice of motion the respondent sought restraining orders in relation to the property specified in sch 1 and sch 2 to the notice of motion.
The property specified in sch 1 comprised:
(a)cash seized by the Australian Border Force on 28 March 2018;
(b)two parcels of real property in Western Australia;
(c)funds available for drawdown from a bank; and
(d)funds standing to the credit of several bank accounts.
The property specified in sch 2 comprised rental receipts derived from two parcels of real property in Western Australia.
In the notice of motion the respondent also sought examination orders in relation to the appellants and Mr Mehmood.
The notice of motion was supported by an affidavit of Stephen Gerald Paynter sworn 29 November 2018. The deponent is a Federal Agent and a member of the Australian Federal Police stationed at Perth. He is an authorised officer for the purposes of the POC Act.
In his affidavit, Federal Agent Paynter deposed that he suspected that Ms Ng has committed the following offences:
(a)dealing with money or other property where it is reasonable to suspect that the money or property is proceeds of crime, and the value of the money or other property is $100,000 or more, contrary to s 400.9(1) of the Criminal Code Act 1995 (Cth) (the Criminal Code); and
(b)doing anything with the intention of dishonestly obtaining a gain from another person and the other person is a Commonwealth entity, contrary to s 135.1(1) of the Criminal Code.
In his affidavit, Federal Agent Paynter also deposed that he suspected that Mr Cha had also committed those offences against s 400.9(1) and s 135.1(1) of the Criminal Code.
The offences which Federal Agent Paynter suspected that Ms Ng and Mr Cha had committed are 'indictable offences' and 'serious offences' as defined in s 338 of the POC Act.
Federal Agent Paynter set out in detail in his affidavit his grounds for suspecting that:
(a)Ms Ng and Mr Cha had committed the offences against s 135.1(1) and s 400.9(1) of the Criminal Code;
(b)the money and other property specified in sch 1 and sch 2 to the notice of motion was the property of Ms Ng or Mr Cha or both of them or specified property of another person that was subject to the effective control of Ms Ng or Mr Cha or both of them; and
(c)the money and other property specified in sch 1 and sch 2 to the notice of motion is proceeds of indictable offences or instruments of serious offences.
Federal Agent Paynter deposed that enquiries conducted by him and other members of the Australian Federal Police had revealed, amongst other things, that:
(a)Ms Ng and Mr Cha are partners. They have two children together and they have been in an 'on off relationship for four or five years'.
(b)Ms Ng and Mr Cha have received income from a number of sources including from World College Group Pty Ltd (World College).
(c)Ms Ng failed to declare her true income to the Australian Taxation Office when she declared her taxable income between 2010 and 2017.
(d)Ms Ng has received payments from Centrelink because she has failed to declare her true income and marital status.
(e)Ms Ng has dealt with money or other property where it is reasonable to suspect that the money or property is proceeds of crime and the value of the money or other property is $100,000 or more. In particular, Ms Ng has dealt with money or other property which is of a value that is grossly out of proportion to her declared taxable income; Ms Ng has dealt with money and other property by using a number of recognised money laundering methods; and Ms Ng has dealt with a parcel of real property in Stirling by entering into an agreement with Mr Mehmood for Mr Mehmood to possess title to the Stirling property which is proceeds of crime.
(f)Mr Cha has failed to declare his true income to the Australian Taxation Office by failing to declare any income since the 2012 taxation year.
(g)Mr Cha has dealt with money or other property where it is reasonable to suspect that the money or property is proceeds of crime and the value of the money or other property is $100,000 or more. In particular, Mr Cha has dealt with money and other property which is of a value that is grossly out of proportion to his declared taxable income.
(h)The value of the parcel of real property in Stirling is grossly out of proportion to Ms Ng and Mr Cha's declared taxable income.
(i)A parcel of real property in St James, of which Ms Ng is the registered proprietor, is grossly out of proportion to Ms Ng and Mr Cha's declared income.
Federal Agent Paynter also deposed that he believed that if notice of the respondent's application before the Primary Judge was provided to Ms Ng, Mr Cha or any other interested person before the application was heard and determined, there was a real risk that steps would be taken to dissipate the cash and other property specified in sch 1 and sch 2 to the notice of motion. Federal Agent Paynter explained in his affidavit the basis on which he held that belief.
The restraining orders and the examination orders made by the Primary Judge
At the conclusion of the ex parte hearing of the respondent's application on 7 February 2019, the Primary Judge made orders, relevantly, as follows:
(a)Pursuant to s 18 of the POC Act, it is ordered that the property specified in sch 1 and sch 2 of the notice of motion, in the name of or subject to the effective control of the appellants, must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in his Honour's orders, or with the written consent of the respondent.
(b)Pursuant to s 19 of the POC Act, it is ordered that the property specified in sch 1 of the notice of motion must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in his Honour's orders, or with the written consent of the respondent.
(c)Pursuant to s 39(1)(ca) of the POC Act, each of the appellants is directed to give to Federal Agent Paynter, within 14 days of the date of service of the orders, a sworn statement setting out all of his or her liabilities and interests in property within the meaning of the POC Act with a value of more than $5,000 from 1 January 2010 to the date of his Honour's orders.
(d)Pursuant to s 180 of the POC Act, the appellants and Mr Mehmood are to be examined.
(e)There be liberty to all parties to apply.
(f)The respondent is to bring the appellants' attention to s 42 of the POC Act and note the 28 day time period which the appellants have to bring an application under s 42.
The relevant statutory framework
At the material time, the relevant provisions of the POC Act were as follows.
The long title of the POC Act states that it is an Act to provide for confiscation of the proceeds of crime, and for other purposes.
Section 5 specifies the principal objects of the Act. Those objects include:
(a)to deprive persons of the proceeds of offences, the instruments of offences, and benefits derived from offences, against the laws of the Commonwealth or the non‑governing Territories; and
…
(c)to punish and deter persons from breaching laws of the Commonwealth or the non‑governing Territories; and
(d)to prevent the reinvestment of proceeds, instruments, benefits, literary proceeds and unexplained wealth amounts in further criminal activities; and
(da)to undermine the profitability of criminal enterprises; and
(e)to enable law enforcement authorities effectively to trace proceeds, instruments, benefits, literary proceeds and unexplained wealth amounts; and
…
(g)to provide for confiscation orders and restraining orders made in respect of offences against the laws of the States or the self‑governing Territories to be enforced in the other Territories.
Section 6 provides:
This Act establishes a scheme to confiscate the proceeds of crime. It does this by:
(a)setting out in Chapter 2 processes by which confiscation can occur; and
(b)setting out in Chapter 3 ways in which Commonwealth law enforcement agencies can obtain information relevant to these processes; and
(c)setting out in Chapter 4 related administrative matters.
It concludes with miscellaneous provisions and with definitions and other interpretive material.
Part 2-1 is headed 'Restraining orders' and comprises s 16 to s 45A. The general effect of pt 2-1, as explained in s 16, is that restraining orders can be made against property, in relation to certain offences, on grounds that relate to possible forfeiture or confiscation orders relating to those offences. There is not always a requirement that a person has been convicted of such an offence.
Section 18 is concerned with the making of restraining orders in relation to people suspected of committing serious offences. Section 18 provides, relevantly:
When a restraining order must be made
(1)A court with proceeds jurisdiction must order that:
(a)property must not be disposed of or otherwise dealt with by any person; or
(b)property must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in the order;
if:
(c)a proceeds of crime authority applies for the order; and
(d)there are reasonable grounds to suspect that a person has committed a serious offence; and
(e)any affidavit requirements in subsection (3) for the application have been met; and
(f)the court is satisfied that the authorised officer who made the affidavit holds the suspicion or suspicions stated in the affidavit on reasonable grounds.
Note:A court can refuse to make a restraining order if the Commonwealth refuses to give an undertaking: see section 21.
Property that a restraining order may cover
(2)The order must specify, as property that must not be disposed of or otherwise dealt with, the property specified in the application for the order, to the extent that the court is satisfied that there are reasonable grounds to suspect that that property is any one or more of the following:
(a)all or specified property of the suspect;
…
(b)all property of the suspect other than specified property;
…
(c)specified property of another person (whether or not that other person’s identity is known) that is subject to the effective control of the suspect;
(d)specified property of another person (whether or not that other person’s identity is known) that is:
(i) in any case ‑ proceeds of the offence; or
(ii)if the offence to which the order relates is a serious offence ‑ an instrument of the offence.
Affidavit requirements
(3)The application for the order must be supported by an affidavit of an authorised officer stating:
(a)that the authorised officer suspects that the suspect committed the offence; and
(b)if the application is to restrain property of a person other than the suspect … ‑ that the authorised officer suspects that:
(i)the property is subject to the effective control of the suspect; or
(ii)in any case ‑ the property is proceeds of the offence; or
(iii)if the offence to which the order relates is a serious offence ‑ the property is an instrument of the offence.
The affidavit must include the grounds on which the authorised officer holds those suspicions.
Restraining order need not be based on commission of a particular offence
(4)The reasonable grounds referred to in paragraph (1)(d) need not be based on a finding as to the commission of a particular serious offence.
Risk of property being disposed of etc.
(5)The court must make a restraining order even if there is no risk of the property being disposed of or otherwise dealt with.
Later acquisitions of property
(6)The court may specify that a restraining order covers property that is acquired by the suspect after the court makes the order. Otherwise, no property that is acquired after a court makes a restraining order is covered by the order.
Section 19 is concerned with the making of restraining orders in relation to property that is suspected of being, relevantly, the proceeds of an indictable offence or an instrument of a serious offence. Section 19 provides, relevantly:
When a restraining order must be made
(1)A court with proceeds jurisdiction must order that:
(a)property must not be disposed of or otherwise dealt with by any person; or
(b)property must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in the order;
if:
(c)a proceeds of crime authority applies for the order; and
(d)there are reasonable grounds to suspect that the property is:
(i)the proceeds of a terrorism offence or any other indictable offence, a foreign indictable offence or an indictable offence of Commonwealth concern (whether or not the identity of the person who committed the offence is known); or
(ii)an instrument of a serious offence; and
(e)the application for the order is supported by an affidavit of an authorised officer stating that the authorised officer suspects that:
(i)in any case ‑ the property is proceeds of the offence; or
(ii)if the offence to which the order relates is a serious offence ‑ the property is an instrument of the offence;
and including the grounds on which the authorised officer holds the suspicion; and
(f)the court is satisfied that the authorised officer who made the affidavit holds the suspicion stated in the affidavit on reasonable grounds.
Property that a restraining order may cover
(2)The order must specify, as property that must not be disposed of or otherwise dealt with, the property specified in the application for the order, to the extent that the court is satisfied that there are reasonable grounds to suspect that that property is:
(a)in any case ‑ proceeds of the offence; or
(b)if the offence to which the order relates is a serious offence ‑ an instrument of the offence.
…
Restraining order need not be based on commission of a particular offence
(4)The reasonable grounds referred to in paragraph (1)(d) need not be based on a finding as to the commission of a particular offence.
Risk of property being disposed of etc.
(5)The court must make a restraining order even if there is no risk of the property being disposed of or otherwise dealt with.
Section 26 is concerned with notice of an application for a restraining order. Section 26 provides:
(1)Subject to subsection (4), the responsible authority must:
(a)give written notice of an application for a restraining order covering property to the owner of the property (if the owner is known); and
(b)include with the notice a copy of the application and any affidavit supporting the application.
(2)Subject to subsection (4), the responsible authority must also:
(a)give written notice of an application for a restraining order covering property to any other person the authority reasonably believes may have an interest in the property; and
(b)include with the notice:
(i)a copy of the application; and
(ii)a further notice that the person may request that the authority give the person a copy of any affidavit supporting the application.
The authority must comply with any such request as soon as practicable.
(3)The court must not (unless subsection (4) applies) hear the application unless it is satisfied that the owner of the property to which the application relates has received reasonable notice of the application.
(4)The court must consider the application without notice having been given if the responsible authority requests the court to do so.
(5)The court may, at any time before finally determining the application, direct the responsible authority to give or publish notice of the application to a specified person or class of persons. The court may also specify the time and manner in which the notice is to be given or published.
(6)A person who claims an interest in property may appear and adduce evidence at the hearing of the application.
Section 39 is concerned with the making of ancillary orders. By s 39(1), the court that made a restraining order, or any other court that could have made the restraining order, may make ancillary orders that the court considers appropriate including, without limiting the generality of that power, any one or more of the orders specified in s 39(1).
Section 42 is concerned with the making of an application to revoke a restraining order. Section 42 provides:
(1)A person who was not notified of the application for a restraining order may apply to the court to revoke the order.
(1A)The application must be made:
(a)within 28 days after the person is notified of the order; or
(b)if the person applies to the court, within that period of 28 days, for an extension of the time for applying for revocation ‑ within such longer period, not exceeding 3 months, as the court allows.
(2)The applicant must give written notice to the responsible authority and the Official Trustee of both the application and the grounds on which the revocation is sought.
(3)However, the restraining order remains in force until the court revokes the order.
(4)The responsible authority may adduce additional material to the court relating to the application to revoke the restraining order.
(5)The court may revoke the restraining order if satisfied that:
(a)there are no grounds on which to make the order at the time of considering the application to revoke the order; or
(b)it is otherwise in the interests of justice to do so.
Section 45 makes provision for the cessation of certain restraining orders. By s 45(2), a restraining order ceases to be in force if, within 28 days after the order was made:
(a)the suspect has not been convicted of, or charged with, the offence, or at least one offence, to which the restraining order relates; and
(b)there is no confiscation order or application for a confiscation order that relates to the offence.
Part 2‑2 is headed 'Forfeiture orders' and comprises s 46 to s 90.
Section 47 is concerned with the making of forfeiture orders in relation to property the subject of a restraining order. Section 47 provides:
(1)A court with proceeds jurisdiction 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 section 18 that covers the property applies for an order under this subsection; and
(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 offences.
Note:The order can be made before the end of the period of 6 months referred to in paragraph (1)(b) if it is made as a consent order: see section 316.
(2)A finding of the court for the purposes of paragraph (1)(c) need not be based on a finding as to the commission of a particular offence, and can be based on a finding that some serious offence or other was committed.
(3)The raising of a doubt as to whether a person engaged in conduct constituting a serious offence is not of itself sufficient to avoid a finding by the court under paragraph (1)(c).
Refusal to make a forfeiture order
(4)Despite subsection (1), the court may refuse to make an order under that subsection relating to property that the court is satisfied:
(a)is an instrument of a serious offence other than a terrorism offence; and
(b)is not proceeds of an offence;
if the court is satisfied that it is not in the public interest to make the order.
Section 49 is concerned with the making of forfeiture orders in relation to property that is suspected of being, amongst other things, the proceeds of an indictable offence or an instrument of a serious offence. Section 49 provides:
(1)A court with proceeds jurisdiction 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 section 19 that covers the property applies for an order under this subsection; and
(b)the restraining order has been in force for at least 6 months; and
(c)the court is satisfied that one or more of the following applies:
(i)the property is proceeds of one or more indictable offences;
(ii)the property is proceeds of one or more foreign indictable offences;
(iii)the property is proceeds of one or more indictable offences of Commonwealth concern;
(iv)the property is an instrument of one or more serious offences; and
(e)the court is satisfied that the authority has taken reasonable steps to identify and notify persons with an interest in the property.
(2)A finding of the court for the purposes of paragraph (1)(c):
(a)need not be based on a finding that a particular person committed any offence; and
(b)need not be based on a finding as to the commission of a particular offence, and can be based on a finding that some offence or other of a kind referred to in paragraph (1)(c) was committed.
(3)Paragraph (1)(c) does not apply if the court is satisfied that:
(a)no application has been made under Division 3 of Part 2-1 for the property to be excluded from the restraining order; or
(b)any such application that has been made has been withdrawn.
Refusal to make a forfeiture order
(4)Despite subsection (1), the court may refuse to make an order under that subsection relating to property that the court is satisfied:
(a)is an instrument of a serious offence other than a terrorism offence; and
(b)is not proceeds of an offence;
if the court is satisfied that it is not in the public interest to make the order.
Section 51 provides, relevantly, that 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 forfeiture order under s 47 or s 49 in relation to the offence.
By s 66, property specified in a forfeiture order vests absolutely in the Commonwealth at the time the order is made.
Section 73 provides that a court that has made a forfeiture order or that is hearing or is to hear an application for a forfeiture order must make an order excluding a specified interest in property from forfeiture in the circumstances specified in s 73.
Section 80 provides, relevantly, that a forfeiture order made under s 47 or s 49 against a person in relation to an offence is not affected if:
(a)having been charged with the offence, the person is acquitted; or
(b)the person is convicted of the offence and the conviction is subsequently quashed.
Part 2‑3 is headed 'Forfeiture on conviction of a serious offence' and comprises s 91 to s 114. Part 2‑3 provides, amongst other things, that if a person is convicted of a serious offence, property that is subject to a restraining order relating to the offence is forfeited to the Commonwealth unless the property is excluded from forfeiture.
Part 3‑1 is headed 'Examinations' and comprises s 180 to s 201.
Section 180 is concerned with the making of examination orders relating to restraining orders. Section 180 provides:
(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.
Section 180A, s 180B, s 180C, s 180D and s 180E provide for applications to be made for examination orders in relation to applications for exclusion from forfeiture, applications for compensation, applications under s 102, enforcement of confiscation orders and restraining orders revoked under s 44 respectively.
Section 181 provides for examination orders relating to applications concerning the quashing of convictions.
Section 182(1) provides that an examination order can only be made on application by the responsible authority for the principal order, or the application for a principal order, in relation to which the examination order is sought. By s 182(2), the court must consider an application for an examination order without notice having been given to any person if the responsible authority requests the court to do so.
Section 183 is concerned with examination notices. Section 183 provides, relevantly:
(1)An approved examiner may, on application by the responsible authority, give to a person who is the subject of an examination order a written notice (an examination notice) for the examination of the person.
(2)However, the approved examiner must not give the examination notice if:
(a)an application has been made under section 42 for the restraining order to which the notice relates to be revoked; and
(b)the court to which the application is made orders that examinations are not to proceed.
(3)The fact that criminal proceedings have been instituted or have commenced (whether or not under this Act) does not prevent the approved examiner giving the examination notice.
Section 187 is concerned with requirements that may be made of a person who is to be examined. By s 187(1), the person may be examined on oath or affirmation by the approved examiner and the responsible authority. By s 187(2), the approved examiner may, for that purpose, require the person either to take an oath or to make an affirmation and administer an oath or affirmation to the person. By s 187(3), the oath or affirmation to be taken or made by the person for the purposes of the examination is an oath or affirmation that the statements that the person will make will be true. Section 187(4) states that the examination must not relate to a person's affairs if any of the circumstances specified in s 187(4) apply. By s 187(5), the approved examiner may require the person to answer a question that is put to the person at the examination and is relevant to the affairs of a person whose affairs can, under, amongst other provisions, s 180, be subject to the examination.
Section 195 creates an offence concerning failing to attend an examination and s 196 creates offences relating to appearance at an examination.
Chapter 5 is headed 'Miscellaneous' and comprises s 314 to s 328.
Section 314(1) provides that jurisdiction is vested in the several courts of the States and Territories with respect to matters arising under the Act.
Section 315(1) states that proceedings on an application for a restraining order or a confiscation order are not criminal proceedings. Section 315(2) states:
Except in relation to an offence under this Act:
(a)the rules of construction applicable only in relation to the criminal law do not apply in the interpretation of this Act; and
(b)the rules of evidence applicable in civil proceedings apply, and those applicable only in criminal proceedings do not apply, to proceedings under this Act.
By s 317(1), the applicant in any proceedings under the Act bears the onus of proving the matters necessary to establish the grounds for making the order applied for. By s 317(2), subject to s 52 and s 118 (which are not relevant in this appeal), any question of fact to be decided by a court on an application under the Act is to be decided on the balance of probabilities.
Section 319 confers on a court the power to stay proceedings under the Act. By s 319(1), a court may stay proceedings (the POCA proceedings) under the Act that are not criminal proceedings if the court considers that it is in the interests of justice to do so. By s 319(2), the court must not stay the POCA proceedings on any or all of the grounds specified in s 319(2). By s 319(6), in considering whether a stay of the POCA proceedings is in the interests of justice, the court must have regard to the matters specified in s 319(6).
Section 319A is concerned with proceedings under the Act being heard, in whole or in part, in closed court. By s 319A, a court may order that proceedings under the Act (other than criminal proceedings) be heard, in whole or in part, in closed court if the court considers that the order is necessary to prevent interference with the administration of criminal justice.
Section 322 confers rights of appeals in relation to specified orders which a judge at first instance makes or refuses to make under the Act. Section 322(7) states that s 322 does not affect any other right of appeal.
Chapter 6 is headed 'Interpreting this Act' and comprises s 329 to s 338. Part 6‑1 is headed 'Meaning of some important concepts' and comprises s 329 to s 337B. Part 6‑2 is headed 'Dictionary' and comprises s 338.
Section 329 is concerned with the meaning of 'proceeds' and 'instrument'. Section 329 provides:
(1)Property is proceeds of an offence if:
(a)it is wholly derived or realised, whether directly or indirectly, from the commission of the offence; or
(b)it is partly derived or realised, whether directly or indirectly, from the commission of the offence;
whether the property is situated within or outside Australia.
(2)Property is an instrument of an offence if:
(a)the property is used in, or in connection with, the commission of an offence; or
(b)the property is intended to be used in, or in connection with, the commission of an offence;
whether the property is situated within or outside Australia.
(3)Property can be proceeds of an offence or an instrument of an offence even if no person has been convicted of the offence.
(4)Proceeds or an instrument of an unlawful activity means proceeds or an instrument of the offence constituted by the act or omission that constitutes the unlawful activity.
Section 330 is concerned with when property becomes, remains and ceases to be proceeds or an instrument. Section 330 provides, relevantly:
(1)Property becomes proceeds of an offence if:
(a)the property is wholly or partly derived or realised from a disposal or other dealing with proceeds of the offence; or
(b)the property is wholly or partly acquired using proceeds of the offence;
…
including because of one or more previous applications of this section.
(2)Property becomes an instrument of an offence if:
(a)the property is wholly or partly derived or realised from the disposal or other dealing with an instrument of the offence; or
(b)the property is wholly or partly acquired using an instrument of the offence;
…
including because of one or more previous applications of this section.
(3)Property remains proceeds of an offence or an instrument of an offence even if:
(a)it is credited to an account; or
(b)it is disposed of or otherwise dealt with.
(4)Property only ceases to be proceeds of an offence or an instrument of an offence:
(a)if it is acquired by a third party for sufficient consideration without the third party knowing, and in circumstances that would not arouse a reasonable suspicion, that the property was proceeds of an offence or an instrument of an offence (as the case requires); or
…
(6)Property becomes, remains or ceases to be proceeds of an unlawful activity, or an instrument of an unlawful activity, if the property becomes, remains or ceases to be proceeds of the offence, or an instrument of the offence, constituted by the act or omission that constitutes the unlawful activity.
The term 'proceeds jurisdiction' is defined in s 335. It is sufficient to note that, for present purposes, the Supreme Court of Western Australia is a court with proceeds jurisdiction.
Section 336 elaborates upon the meaning of 'derived'. Section 336 provides:
A reference to a person having derived proceeds, a benefit, literary proceeds or wealth includes a reference to:
(a)the person; or
(b)another person at the request or direction of the first person;
having derived the proceeds, benefit, literary proceeds or wealth directly or indirectly.
Section 338 contains numerous definitions. It provides, relevantly, that in the Act, unless the contrary intention appears:
account means any facility or arrangement through which a financial institution accepts deposits or allows withdrawals and includes:
(a)a facility or arrangement for:
(i)a fixed term deposit; or
(ii)a safety deposit box; and
(b)a credit card account; and
(c)a loan account (other than a credit card account); and
(d)an account held in the form of units in:
(i)a cash management trust; or
(ii)a trust of a kind prescribed by the regulations; and
(e)a closed account.
To avoid doubt, it is immaterial whether:
(f)an account has a nil balance; or
(g)any transactions have been allowed in relation to an account.
…
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.
…
confiscation order means a forfeiture order …
…
instrument has the meaning given by sections 329 and 330.
interest, in relation to property or a thing, means:
(a)a legal or equitable estate or interest in the property or thing; or
(b)a right, power or privilege in connection with the property or thing;
whether present or future and whether vested or contingent.
…
proceeds has the meaning given by sections 329 and 330.
…
property means real or personal property of every description, whether situated in Australia or elsewhere and whether tangible or intangible, and includes an interest in any such real or personal property.
…
sufficient consideration: an acquisition or disposal of property is for sufficient consideration if it is for a consideration that is sufficient and that reflects the value of the property, having regard solely to commercial considerations.
The terms 'principal order' and 'responsible authority' are defined in s 338. It is sufficient, for present purposes, to note that the term 'principal order' includes a restraining order and that the respondent is a 'responsible authority'.
The reasons of the Primary Judge for hearing the respondent's application on an ex parte basis and for making the restraining orders and the examination orders
The Primary Judge gave ex tempore reasons for making the restraining orders and the examination orders.
His Honour explained why it was necessary to hear the respondent's application on an ex parte basis:
I'm also satisfied that it was appropriate for the matter to be brought on ex parte given the execution of the search warrants and the activity on the bank accounts, which was discernible in the period after the search warrants were executed. On that basis, it seems to me there was a serious risk, particularly as regards the property other than the seized cash being dissipated, justifying the matter to be dealt with ex parte and in closed court.
The search warrants referred to by his Honour in that passage were mentioned by Federal Agent Paynter in his affidavit. Federal Agent Paynter said that on 28 March 2018 the Australian Border Force, with the assistance of the Australian Federal Police, executed a search warrant at one of the properties specified in sch 1 of the respondent's notice of motion. On that occasion Ms Ng and Mr Cha 'participated in cautioned questioning'.
The Primary Judge said in relation to the application for the restraining orders:
I am satisfied, on the material provided, that the reasonable suspicion of Federal Agent Paynter, as regards the existence of serious taxation offences by the [appellants], is established on the evidence to the point that the court is satisfied he holds a reasonable basis for those suspicions that he deposes to in his affidavit and, on that basis, there is established, as per the requirements of s 18 and s 19 of the Proceeds of Crime Act, a basis for the court to issue restraining orders in the terms that are sought as regards either serious taxation defrauding of the revenue of the Commonwealth offences, alternatively, money laundering offences.
That's sufficient to support those orders.
His Honour said in relation to the application for the examination orders:
I am satisfied that, pursuant to section 180 of the Act, it's appropriate for [the appellants] and Mr Kahlid Mehmood … to be examined …
The grounds of appeal
At the hearing of the appeal the appellants relied upon eight grounds of appeal.
Ground 1 alleges, in essence, that the Primary Judge failed to give adequate reasons for making the restraining orders.
Ground 2 alleges, in essence, that his Honour failed to give adequate reasons for making the examination orders on an ex parte basis.
Ground 3, read with the matters raised by the respondent in the notices under s 78B of the Judiciary Act 1903 (Cth) referred to at [102] below, raise, in essence, the following issues:
(a)whether s 19 of the POC Act is inconsistent with ch III of the Constitution on the basis that, once property is restrained under s 19, the burden shifts to the affected person to establish the ground on which the restraining order should be set aside;
(b)whether the power to make an examination order conferred on a court by s 180 of the POC Act is an executive, and not a judicial, power;
(c)whether s 180 and s 182 of the POC Act are inconsistent with ch III of the Constitution, insofar as they provide for an examination order to be made on an ex parte basis and without any provision in the POC Act to set aside the order after the person to be examined has been informed of the order; and
(d)whether the time limits specified in s 39B and s 42 of the POC Act are an invalid interference with the exercise of judicial power.
Ground 4 alleges, in essence, that whether the commission of an indictable offence needs to be proved in order for property to be suspected to be the proceeds of an indictable offence, or whether mere suspicion that a serious crime might have been committed is enough to suspect that property is the proceeds of a serious crime, there was an insufficient basis in the present case for making restraining orders under s 19 of the POC Act.
Ground 5 alleges, in essence, that a person must be charged or convicted of an offence connected with forfeiture proceedings as a condition for the making of a forfeiture order and, consequently, a forfeiture order application will be or become an abuse of process if no charge is laid within a reasonable time and no investigation is ongoing.
Ground 6 alleges, in essence, that his Honour erred in the exercise of his discretion in deciding to make the restraining orders because there was no risk of any property being dissipated.
Ground 7 alleges, in essence, that his Honour erred in the exercise of his discretion in making the examination orders in that there was no evidence as to why any examination of a particular person was necessary.
Ground 8 alleges, in essence, that his Honour erred in making the restraining orders in that his Honour failed to take into account a relevant consideration, namely whether the suspicions articulated in Federal Agent Paynter's affidavit were held and were held reasonably.
The breadth of the appellants' submissions
This appeal must, of course, be determined by reference to the grounds of appeal. Some of the appellants' submissions concerned issues that are not raised by any of the grounds. We will not deal with submissions that are extraneous to the grounds read with the matters raised by the respondent in the notices under s 78B of the Judiciary Act.
Appellants' application in an appeal filed 7 July 2021
By an application in an appeal filed 7 July 2021, the appellants applied for leave to file and serve additional evidence in the appeal and a 'reply submission' in response to the respondent's answer.
The proposed additional evidence is contained in or annexed to an affidavit of Ms Ng sworn 28 June 2021 and an affidavit of Mr Cha sworn 25 June 2021. The proposed reply submission is annexed to Ms Ng's affidavit.
On 7 July 2021, Vaughan JA ordered that the appellants' application in an appeal be referred to the hearing of the appeal.
In their affidavits Ms Ng and Mr Cha respond in substance to various facts and circumstances raised by Federal Agent Paynter in his affidavit.
Paragraph 16 of the reply submission asserts that there are 'insufficient factual grounds reasonably to induce [Federal Agent Paynter's] suspicion in a reasonable person'. Four particulars of that assertion are then set out. The particulars allege facts and circumstances that are deposed to in Ms Ng's affidavit and Mr Cha's affidavit.
Paragraph 24 of the reply submission asserts:
The key question before addressing the constitution[al] problem of examination order.
a.Under which head of power that is capable of resulting in the valid enactment of [the POC Act] with respect to the acquisition of property of an innocent party where there have not been any charges … laid[?]
b.Whether the constitutional boundary had been cross[ed] if the [POC Act] purported to apply to person who were not charged in any offence against the law of the Commonwealth.
c.What was the purpose of examination order under [the POC Act] and which department of government is authorised to set a boundary or objective test of the applicability of executive examination?
d.Whether the exercise of power to make examination order involved the exercise of judicial power or administrative power or legislative power[.]
Paragraph 119 of the reply submission asserts that the Primary Judge failed to evaluate the reasonableness of each ground on which Federal Agent Paynter held the relevant suspicion. Numerous particulars of that assertion are then set out. The particulars allege facts and circumstances that are deposed to in Ms Ng's affidavit and Mr Cha's affidavit.
At the hearing of the appeal, this court ruled that:
(a)Ms Ng's affidavit and Mr Cha's affidavit and the reply submission be received provisionally on the basis that this court would decide at a later date whether they should be received in the appeal;
(b)the parties should make oral submissions at the hearing by reference to the affidavits and the reply submission as necessary or appropriate; and
(c)the court would not make an order permitting the respondent to file and serve responsive affidavits unless and until the court was satisfied that the appellants' affidavits in support of pars 16 and 119 of the reply submission were legally relevant (appeal ts 53 ‑ 54).
At the hearing of the appeal, this court ordered that by 4.00 pm on 23 August 2021 the respondent file and serve supplementary written submissions in relation to each of the issues raised in par 24 of the reply submission.
Pursuant to that order, on 23 August 2021 the respondent filed and served supplementary written submissions.
We would grant the appellants' application for leave to rely on the reply submission. That is appropriate, in the circumstances, having regard to the appellants' status as self-represented litigants, the respondent having had the opportunity to make oral submissions at the hearing in response to the reply submission, and the respondent having filed and served supplementary written submissions in response to the issues raised in par 24 of the reply submission.
It was unnecessary to make an order permitting the respondent to file and serve responsive affidavits in relation to pars 16 and 119 of the reply submission because the appellants' affidavits in support of pars 16 and 119 do not materially advance the appellants' case on appeal and the appellants' arguments based on pars 16 and 119 are without merit.
Paragraph 16 of the reply submission and the proposed additional evidence in support of that submission assert, in effect, that the relevant suspicions of Federal Agent Paynter, as stated in Federal Agent Paynter's affidavit, were not held on reasonable grounds. The grounds of appeal do not allege that the Primary Judge was in error because it was not open to his Honour to be satisfied that the relevant suspicions were held on reasonable grounds. Ground of appeal 8 merely alleges, in essence, that his Honour erred in making the restraining orders by failing to take into account whether the relevant suspicions were held reasonably. We conclude, in dealing with ground 8, that his Honour did take that relevant consideration into account. In any event, the appellants' affidavits do not establish that his Honour made a material error or that a miscarriage of justice occurred in the proceedings before his Honour because the only reasonable conclusion is that Federal Agent Paynter's suspicions were not held on reasonable grounds.
Paragraph 119 of the reply submission and the proposed additional evidence in support of that submission assert, in effect, that the Primary Judge failed to evaluate the reasonableness of each ground on which Federal Agent Paynter held the relevant suspicions. We conclude, in dealing with ground of appeal 8, that his Honour was satisfied that the relevant suspicions were held on reasonable grounds and that the only conclusion open on the material before his Honour was that the preconditions in s 18(1) of the POC Act and the preconditions in s 19(1) of the POC Act were satisfied. The appellants' affidavits do not establish that his Honour made a material error in deciding that the relevant suspicions were held on reasonable grounds or that his Honour's satisfaction in relation to that issue involved or occasioned a miscarriage of justice.
We would allow the appellants' application to rely upon the proposed additional evidence, but only in relation to the re‑exercise by this court of the discretion on the respondent's application for examination orders in relation to the appellants. See [146] ‑ [153] below. Otherwise, the appellants' application to rely upon the proposed additional evidence should be dismissed because the evidence is not relevant to the grounds of appeal and, further or alternatively, does not materially advance the appellants' case on appeal.
Notices under s 78B of the Judiciary Act
By a notice of a constitutional matter dated 22 January 2020, the respondent's solicitors gave notice to the Attorneys-General of the Commonwealth, the States and the Territories that this appeal involved a matter arising under the Constitution or involving its interpretation within the meaning of s 78B of the Judiciary Act. On or about 18 August 2020, the respondent's solicitors gave an amended notice to the Attorneys-General under s 78B. On or about 27 July 2021, the respondent's solicitors gave the Attorneys-General a supplementary notice under s 78B.
The issues specified at [80] above were identified in the notices.
At the hearing of the appeal, the court was satisfied that there had been compliance with s 78B.
None of the Attorneys-General intervened in the appeal or sought removal of the cause to the High Court.
Ground 1: the appellants' submissions
The appellants submitted that the Primary Judge was bound to give reasons for making the restraining orders and that the reasons his Honour gave were inadequate.
The appellants noted that under s 18(1)(f) and s 19(1)(f) of the POC Act it was necessary for the court to be satisfied that Federal Agent Paynter held the suspicion stated in his affidavit on reasonable grounds.
The appellants emphasised, in particular, that his Honour was bound to give adequate reasons having regard to:
(a)the 'significant interference with rights to enjoy property' which followed from the making of the restraining orders;
(b)the respondent's application having been heard on an ex parte basis;
(c)the onus of proof borne by the appellants in any application pursuant to s 42 to revoke the restraining orders; and
(d)the 'draconian' nature of the legislation.
The appellants contended that it was not possible to understand from the reasons how the Primary Judge had concluded that there were reasonable grounds for Federal Agent Paynter's suspicion that serious taxation offences (either serious tax defrauding of the revenue of the Commonwealth or money laundering offences) had occurred.
It was submitted that, as a consequence of the absence of adequate reasons for making the restraining orders, the appellants were denied 'meaningful participation in avenues of challenge to the orders' and their right of appeal was 'rendered nugatory in the absence of knowledge of what was found by the Primary Judge to be the reasonable grounds for suspecting that the property specified in the restraining order[s] was proceed[s] of crime, or instrument of crime'. It was also submitted that the appellants were unable to ascertain whether his Honour had made all necessary findings of fact and whether his Honour had correctly identified and applied 'the relevant rules of law'. The appellants had been 'left to speculate as to all possible route[s] by which [the] result was achieved'.
Ground 1: the respondent's submissions
The respondent noted that:
(a)The Primary Judge gave ex tempore reasons for decision on 7 February 2019 and reduced those reasons to writing by releasing the transcript of the ex tempore reasons on 11 April 2019.
(b)The appellants had the reasons for decision by 11 April 2019 and the transcript of the hearing as a whole before 22 May 2019. See Ng [No 3] [5], [8].
The respondent submitted that the Primary Judge's reasons for decision, having regard to the hearing being of an interlocutory application, the transcript of the hearing and the matters to be decided under the POC Act, were adequate. His Honour addressed whether he was satisfied that the requirements of s 18 and s 19 had been satisfied.
It was submitted that although the Primary Judge did not address in his reasons whether the necessary evidence existed to make a restraining order under s 19 in respect of two bank accounts, the appellants did not suffer any relevant prejudice. First, the restraining orders in respect of those accounts were set aside by consent on 23 August 2019. Secondly, the restraining order made under s 18 continued to operate at all times in respect of those accounts. See Ng [No 3] [127].
The respondent contended that the reasons given by the Primary Judge did not interfere with the appellants' rights of appeal. In particular, the appellants have challenged on numerous occasions the orders made by his Honour on 7 February 2019.
Although the material relied upon before the Primary Judge was extensive, the allegations made by the respondent in support of the application are apparent from Federal Agent Paynter's affidavit, which is clearly marked with relevant headings.
Ground 1: its merits
The reasons of a judge at first instance need not be lengthy or elaborate. See Beale v Government Insurance Office (NSW);[4] Mount Lawley Pty Ltd v Planning Commission (WA).[5]
[4] Beale v Government Insurance Office (NSW) (1997) 46 NSWLR 430, 443 (Meagher JA).
[5] Mount Lawley Pty Ltd v Planning Commission (WA) [2004] WASCA 149; (2004) 29 WAR 273 [28] (Steytler, Templeman & Simmonds JJ).
It is necessary, in assessing the adequacy of the reasons, to consider them as a whole. An appellate court may take into account what can legitimately be inferred from the reasons. See Beale (443 ‑ 444); Bennett v Carruthers.[6]
[6] Bennett v Carruthers [2010] WASCA 131 [27] ‑ [28] (Mazza J; McLure P and Newnes JA agreeing)
The circumstances of the particular case, including the nature and significance of the issues in dispute, are fundamental in determining whether the reasons are adequate. See In Vitro Technologies Pty Ltd v Taylor.[7] The reasons must be sufficiently detailed to enable an appellate court effectively to discharge its functions and for the parties to understand why they have won or lost. See Beale (442).
[7] In Vitro Technologies Pty Ltd v Taylor [2011] QCA 44 [19] (Fraser JA; Muir and Chesterman JJA agreeing).
In the present case, the Primary Judge stated, in essence, that he was satisfied, based on the evidence in Federal Agent Paynter's affidavit, that there was a reasonable basis for the suspicions deposed to by Federal Agent Paynter in his affidavit, including Federal Agent Paynter's suspicions that the appellants had committed serious tax defrauding and money laundering offences. His Honour also stated, in essence, that the requirements of s 18 and s 19 of the POC Act had been established and there was a proper basis for his Honour to make the restraining orders sought by the respondent.
Section 18(1) of the POC Act provides, relevantly and in effect, that a court with proceeds jurisdiction (which includes the Supreme Court of Western Australia) must make a restraining order if:
(a)a proceeds of crime authority (which includes the respondent) applies for the order (s 18(1)(c));
(b)there are reasonable grounds to suspect that a person has committed a serious offence (s 18(1)(d));
(c)any affidavit requirements in s 18(3) for the application have been met (s 18(1)(e)); and
(d)the court is satisfied that the authorised officer (in the present case, Federal Agent Paynter) who made the affidavit holds the suspicion or suspicions stated in the affidavit on reasonable grounds (s 18(1)(f)).
In the present case, Federal Agent Paynter's affidavit satisfied the requirements of s 18(3). Further, in his reasons, the Primary Judge said, in effect, that there were reasonable grounds to suspect that the appellants had committed serious offences and that his Honour was satisfied that Federal Agent Paynter held the suspicions stated in his affidavit on reasonable grounds.
Section 19(1) of the POC Act provides, relevantly and in effect, that a court with proceeds jurisdiction must make a restraining order if:
(a)a proceeds of crime authority applies for the order (s 19(1)(c));
(b)there are reasonable grounds to suspect that the property is, relevantly, the proceeds of an indictable offence or an instrument of a serious office (s 19(1)(d));
(c)the application for the order is supported by an affidavit of an authorised officer stating that the authorised officer suspects that the property is proceeds of the offence or, if the offence to which the order relates is a serious offence, the property is an instrument of the offence, and includes the grounds on which the authorised officer holds the suspicion (s 19(1)(e)); and
(d)the court is satisfied that the authorised officer who made the affidavit holds the suspicion stated in the affidavit on reasonable grounds (s 19(1)(f)).
In the present case, Federal Agent Paynter's affidavit satisfied the requirements of s 19(1)(e). Further, in his reasons, the Primary Judge said, in effect, that there were reasonable grounds, having regard to the material in Federal Agent Paynter's affidavit, to suspect that the property the subject of the proposed restraining orders was the proceeds of an indictable offence or an instrument of a serious offence and that his Honour was satisfied that Federal Agent Paynter held the suspicion stated in his affidavit on reasonable grounds.
The Primary Judge found, in effect, that Federal Agent Paynter had stated in his affidavit that he suspected that each of Ms Ng and Mr Cha had committed serious offences and that the money or other property in question was the proceeds of the offences or an instrument of the offences. His Honour found, in effect, that there were reasonable grounds for the suspicions stated by Federal Agent Paynter in his affidavit. His Honour's reasons were sufficient to enable this court effectively to discharge its functions in the appeal. Further, the reasons were sufficient to enable the parties (in particular, the appellants) to understand why his Honour made the restraining orders. In the circumstances of the present case, having regard to the provisions of s 18 and s 19 and the nature of, and the legal consequences of making, restraining orders under the POC Act, the Primary Judge's reasons were adequate.
Ground 1 fails.
Ground 2: the appellants' submissions
The appellants submitted that the Primary Judge did not provide adequate reasons for making the examination orders on an ex parte basis. It was submitted that an unfair burden had been placed on the appellants in circumstances where:
(a)the respondent's application had been heard without notice to the appellants; and
(b)the appellants then had the onus of establishing that the ex parte order should be set aside or stayed.
The appellants contended that the Primary Judge 'fail[ed] to exercise his judicial power'. A reasonable person would conclude that his Honour 'did not put his mind to the issues to be decided'.
Ground 2: the respondent's submissions
The respondent submitted that:
(a)the Primary Judge found that it was appropriate to deal with the application on an ex parte basis; and
(b)although his Honour did not state any express, separate reasons about making the examination orders on an ex parte basis, his Honour was not obliged to do so.
It was submitted that, in any event, the appellants did not suffer any relevant prejudice in that ground 2 merely challenges his Honour's failure to give reasons for decision in relation to making the examination orders on an ex parte basis, and does not challenge the making of the examination orders themselves. His Honour was satisfied that it was appropriate to make the examination orders. Accordingly, unless the challenge in ground 3 to the making of the examination orders succeeds, the examination orders should not be set aside under ground 2.
Ground 2: its merits
It is fundamental to a court's exercise of its judicial power that a party whose rights or interests will be affected by an order of the court is entitled to be heard. A court may, however, in exceptional circumstances, make an order which affects the rights or interests of a party without notice to the party. Ordinarily, a court should only exercise the power to proceed without notice in exceptional or special cases; for example, where there is some extraordinary hazard or compelling urgency. A risk that property may be dissipated so as to frustrate the objects of the law will usually be an exceptional or special case. See International Finance Trust Co Ltd v New South Wales Crime Commission.[8]
[8] International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319 [156] (Heydon J).
By s 180(1) of the POC Act, 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 for the examination of any person. By s 182(1), an examination order can only be made on application by the responsible authority for the principal order, or the application for a principal order, in relation to which the examination order is sought. By s 183(1), an approved examiner may, on application by the responsible authority, give to a person who is the subject of an examination order a written notice for the examination of the person. By s 195, a person commits an offence if the person is required by an examination notice to attend an examination and refuses or fails to attend the examination at the time and place specified in the notice. By s 196(1), a person attending an examination to answer questions or produce documents must not refuse or fail to be sworn or to make an affirmation; or refuse or fail to answer a question that the approved examiner requires the person to answer; or, subject to s 196(2), refuse or fail to produce at the examination a document specified in the examination notice that requires the person's attendance; or leave the examination before being excused by the approved examiner. The penalty for an offence under s 195 or s 196(1) is 2 years' imprisonment or 120 penalty units, or both.
Section 182(2) of the POC Act provides that a court must consider an application for an examination order without notice having been given to any person if the responsible authority requests the court to do so. It is apparent from the text of s 182(2) that although the court 'must consider' the application on an ex parte basis if requested by the responsible authority, the court is not bound to proceed on that basis.
In the present case, the Primary Judge made the examination orders (and the restraining orders) without notice to the appellants.
In Onley v Commissioner of the Australian Federal Police,[9] Basten JA (Meagher JA relevantly agreeing) said:
There may be a question as to the need for an examination order to be made ex parte, rather than on notice. Section 182(2) requires the court to consider an application for an examination order made without notice, if the authority seeking the order requests the court to do so. However, circumstances which justify the making of an order will not necessarily justify the making of an order ex parte.
[9] Onley v Commissioner of the Australian Federal Police [2019] NSWCA 101; (2019) 345 FLR 241 [310].
A court's power under s 180(1) to make an examination order is discretionary in character. The making of an examination order, pursuant to an application made under s 182(1), does not follow as of course if a restraining order has been made and is in force. See Lee v Director of Public Prosecutions (Cth).[10]
[10] Lee v Director of Public Prosecutions (Cth) [2009] NSWCA 347; (2009) 75 NSWLR 581 [51] (Basten JA, Macfarlan JA & Sackville AJA).
The apparent purpose or object of an examination, pursuant to an order made under s 180(1), includes, at least, to enable information to be gathered to facilitate an application by the responsible authority for a forfeiture order and to assist the responsible authority in resisting exclusion orders and compensation orders. See Commissioner of Australian Federal Police v Wen.[11]
[11] Commissioner of Australian Federal Police v Wen [2017] VSC 391; (2017) 322 FLR 32 [33] (Riordan J).
If the responsible authority satisfies the court, on the balance of probabilities, that the preconditions to the making of an examination order under s 180(1) exist and that the proposed examination is sought to enable the responsible authority to gather information in accordance with the statutory purpose or object of an examination, the court should ordinarily exercise its discretion and make the examination order. See Wen [35].
In the present case, his Honour gave reasons for making the restraining orders without notice to the appellants. However, his Honour did not give any reason why it was necessary for the examination orders to be made without notice to the appellants.
It is readily apparent why it was necessary for the restraining orders to be made on an ex parte basis, namely to guard against the risk that the property in question may be dissipated, before the making of the restraining orders sought by the respondent, so as to frustrate the objects of the POC Act. However, it is not apparent why it was necessary for the examination orders to be made on an ex parte basis.
The Primary Judge merely stated in his reasons that he was 'satisfied' that it was 'appropriate' for the appellants and Mr Mehmood to be examined. On a fair reading of his Honour's reasons as a whole, and taking into account that the reasons were delivered extemporaneously, his Honour's process of reasoning in arriving at the decision to make the examination orders, on an ex parte basis or at all, is not disclosed.
After taking into account that:
(a)the appellants' rights or interests were affected by the making of the examination orders;
(b)ordinarily, a court should only exercise its power to proceed without notice to a party in exceptional or special cases; and
(c)it is not apparent why, in the present case, it was necessary for the examination orders to be made without notice to the appellants,
we are satisfied that his Honour made a material error of law in failing to give adequate reasons for making the examination orders on an ex parte basis.
In any event, on the evidence before the Primary Judge, there was no justification for making the examination orders on an ex parte basis and, consequently, satisfactory (as distinct from adequate) reasons for making those orders on that basis could not be given.
The examination orders should not have been made until the appellants and Mr Mehmood had been served with the restraining orders and had been given an opportunity to be heard on the respondent's application for those orders, further or alternatively, an opportunity to make an application under s 42 to revoke the restraining orders.
The examination orders made by his Honour in relation to the appellants should be set aside. Mr Mehmood is not a party to the appeal and consequently this court should not disturb the examination order made by his Honour in relation to him.
As we have mentioned, the examination of Ms Ng and Mr Cha pursuant to the examination orders has not been completed.
This court has all the materials necessary to re-exercise the discretion on the respondent's application for examination orders in relation to the appellants. As we have mentioned, by an application in an appeal filed 7 July 2021, the appellants applied for leave to file and serve, relevantly, additional evidence in the appeal. Ms Ng's affidavit sworn 28 June 2021 and Mr Cha's affidavit sworn 25 June 2021 respond in substance to various facts and circumstances raised by Federal Agent Paynter in his affidavit. Also, after judgment was reserved at the conclusion of the hearing of the appeal, this court gave the appellants and the respondent an opportunity to make supplementary written submissions in relation to the re‑exercise of the discretion. Both parties filed and served supplementary written submissions.
As McDougall J pointed out in Director of Public Prosecutions v Cleveland,[12] an examination pursuant to an order made under s 180(1) is in effect in aid of or ancillary to the restraining order. An examination order cannot be made unless a restraining order is in force. By s 180(2), if the restraining order to which the examination order relates ceases to have effect then the examination order also ceases to have effect.
[12] Director of Public Prosecutions v Cleveland [2010] NSWSC 67 [15].
Ground 4: its merits
Section 19(1) of the POC Act provides that a court with proceeds jurisdiction must make a restraining order under s 19(1) if, relevantly, there are reasonable grounds to suspect that the property is the proceeds of an indictable offence or an instrument of a serious offence (s 19(1)(d)); the application for the restraining order is supported by an affidavit of an authorised officer stating that the authorised officer suspects that, in any case, the property is proceeds of the offence or, if the offence to which the order relates is a serious offence, the property is an instrument of the offence, and includes the grounds on which the authorised officer holds the suspicion (s 19(1)(e)); and the court is satisfied that the authorised officer who made the affidavit holds the suspicion stated in the affidavit on reasonable grounds (s 19(1)(f)).
It is apparent from the text of s 19(1) that it is unnecessary for a proceeds of crime authority to prove that the property in question is the proceeds of an indictable offence that has actually been committed or an instrument of a serious offence that has actually been committed. It is sufficient if there are reasonable grounds to suspect that the property is the proceeds of an indictable offence or there are reasonable grounds to suspect that the property is an instrument of a serious offence. The plain meaning of the text of s 19(1) is reinforced by s 19(4) which states that the reasonable grounds referred to in s 19(1)(d) need not be based on a finding as to the commission of a particular offence.
In the present case, the offences relied upon by the respondent comprised, relevantly, the offence created by s 135.1(1) of the Criminal Code and the offence created by s 400.9(1) of the Criminal Code.
Section 135.1(1) provides that a person is guilty of an offence if the person does anything with the intention of dishonestly obtaining a gain from another person and the other person is a Commonwealth entity. Prior to 25 August 2018, the maximum penalty for the offence created by s 135.1(1) was 5 years' imprisonment. The maximum penalty is now 10 years' imprisonment.
Section 400.9(1) provides that a person commits an offence if the person deals with money or other property, and it is reasonable to suspect that the money or property is proceeds of crime, and at the time of the dealing the value of the money and other property is $100,000 or more. The maximum penalty for the offence created by s 400.9(1) is 3 years' imprisonment or 180 penalty units, or both.
At all material times, each of the offences created by s 135.1(1) and s 400.9(1) has been an 'indictable offence' and a 'serious offence', as defined in s 338 of the POC Act.
Property is 'proceeds' of an offence, within s 329(1) of the POC Act, if the property is wholly or partly derived or realised, whether directly or indirectly, from the commission of the offence. Property is an 'instrument' of an offence, within s 329(2) of the POC Act, if the property is used in, or in connection with, the commission of an offence or the property is intended to be used in, or in connection with, the commission of an offence, whether the property is situated within or outside Australia. By s 329(3) of the POC Act, property can be proceeds of an offence or an instrument of an offence even if no person has been convicted of the offence.
It is plain from the provisions of s 19 and s 329 of the POC Act to which we have referred that a proceeds of crime authority which applies for a restraining order under s 19(1) need only establish, relevantly, that:
(a)the authorised officer has stated in the supporting affidavit that the authorised officer suspects that the property in question is proceeds of, relevantly, an indictable offence or the authorised officer suspects that the property in question is an instrument of a serious offence; and
(b)the authorised officer holds the suspicion stated in the affidavit on reasonable grounds.
It is unnecessary for the proceeds of crime authority to establish, upon making an application for a restraining order under s 19(1), that an indictable offence or a serious offence has actually been committed.
The concept of 'reasonable suspicion' in s 19(1) does not require proof of a suspicion that the property in question is, relevantly, the proceeds of an indictable offence or an instrument of a serious offence. The word 'suspicion', in its natural and ordinary meaning, refers to a state of conjecture or surmise where there is an absence of proof. However, a suspicion as to the existence of a fact or circumstance is a positive feeling of actual apprehension or mistrust. Reasonable grounds for a suspicion will not exist unless there is information or material which is sufficient to give rise to the state of suspicion in the mind of a reasonable person. However, information or material which gives rise to a state of suspicion in the mind of a reasonable person need not be based on evidence that is admissible at law. By s 317(1), the proceeds of crime authority which makes an application under s 19(1) bears the onus of proving the matters necessary to establish the grounds for making an order under s 19(1). By s 317(2), relevantly, any question of fact to be decided by the court on an application under s 19(1) is to be decided on the balance of probabilities. See Queensland Bacon Pty Ltd v Rees;[47] Hussien v Chong Fook Kam;[48] George v Rockett;[49] Re Application Pursuant to Section 19 of Proceeds of Crime Act 2002 (Cth); Ex parte Commissioner of Australian Federal Police[50]; Commissioner of Australian Federal Police v Fitzroy All Pty Ltd[51]; Ma v Commissioner of Australian Federal Police.[52]
[47] Queensland Bacon Pty Ltd v Rees [1966] HCA 21; (1966) 115 CLR 266, 303 (Kitto J).
[48] Hussien v Chong Fook Kam [1970] AC 942, 948 (Lord Devlin delivering the advice of the Privy Council).
[49] George v Rockett [1990] HCA 26; (1990) 170 CLR 104, 115 - 116 (Mason CJ, Brennan, Deane, Dawson, Toohey, Gaudron & McHugh JJ).
[50] Re Application Pursuant to Section 19 of Proceeds of Crime Act 2002 (Cth); Ex parte Commissioner of Australian Federal Police [2014] WASC 390 [19] - [21] (Allanson J).
[51] Commissioner of Australian Federal Police v Fitzroy All Pty Ltd [2015] WASC 320; (2015) 299 FLR 439 [23] - [24] (Mitchell J).
[52] Ma v Commissioner of Australian Federal Police [2016] VSC 553 [34] - [35] (John Dixon J).
In the present case, Federal Agent Paynter deposes in his affidavit as to his suspicions that the property in question was the proceeds of an offence, alternatively the instrument of an offence, against s 135.1(1), further or alternatively against s 400.9(1), of the Criminal Code.
We are satisfied that the Primary Judge was entitled to be satisfied, on the basis of the facts and circumstances deposed to by Federal Agent Paynter in his affidavit and on the basis of inferences reasonably open to be drawn from those facts and circumstances, that Federal Agent Paynter held the relevant suspicions, as stated in his affidavit, on reasonable grounds.
Ground 4 fails.
Ground 5: the appellants' submissions
The appellants submitted that a person must be charged with or convicted of an offence connected with forfeiture proceedings as a condition for the making of a forfeiture order.
It was submitted that the respondent's application in the primary proceedings for the forfeiture to the Commonwealth of the property the subject of the restraining orders was defective. In particular, the facts and circumstances deposed to by Federal Agent Paynter in his affidavit do not set out any facts or circumstances 'as to how and why the suspected conduct' constituted one or more serious offences. It was also submitted that the 'prominent purpose' of the respondent in instituting and maintaining the forfeiture application was 'to exert pressure upon [the appellants] to agree to give up all their property'. It was further submitted that the forfeiture application had a 'collateral advantage as [the appellants] had to give up the right of silence and … [be] in the position of having to tender or adduce evidence in the proceedings'. The effect of the appellants having to tender or adduce evidence is to set 'in train a process which may lead to incrimination or lead to the discovery of real evidence of an incriminating character' which may bolster the prospect of success of a future prosecution case.
The appellants contended that the respondent was aware that the restraining orders would cease 'in [28] days if [the appellants were] not charged' unless there was an application for a forfeiture order or other confiscation order before the court. See s 45(2) of the POC Act. The making of the forfeiture application was done 'to prolong the life of [the restraining orders]' and that conduct was 'entirely inconsistent with the operation and intention of [the POC Act]'.
According to the appellants, a forfeiture application will be or become an abuse of process if no charges for serious offences are brought within a reasonable time and no investigations are ongoing.
Ground 5: the respondent's submissions
The respondent submitted that there were fundamental difficulties with ground 5, namely:
(a)although pars 9 and 10 of the respondent's notice of motion filed on 30 November 2018 sought forfeiture orders, those orders were not sought before the Primary Judge on 7 February 2019 and his Honour made no orders in that respect; and
(b)further, the appellants have not sought an order from a judge in the primary proceedings (or any other proceedings at first instance) on the basis of an abuse of process and, consequently, there is no subsisting order which is capable of being appealed to this court.
In any event, the POC Act provides for property to be forfeited to the Commonwealth not only where there has been a conviction for an indictable offence, but also where there has not been any conviction.
Ground 5: its merits
Section 47 and s 49 of the POC Act provide for the making of a forfeiture order where a restraining order has been in force for at least 6 months under s 18 and s 19 respectively.
By s 47(1), a court with proceeds jurisdiction must make a forfeiture order if, relevantly, 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 offences. By s 49(1), a court with proceeds jurisdiction must make a forfeiture order if, relevantly, the court is satisfied that the property in question is the proceeds of one or more indictable offences or an instrument of one or more serious offences.
Section 47(2) provides, in effect, that a finding of the court for the purposes of the court's satisfaction, relevantly, that a person whose conduct or suspected conduct formed the basis of the restraining order engaged in conduct constituting one or more serious offences need not be based on a finding as to the commission of a particular offence, and can be based on a finding that some serious offence or other was committed.
Section 49(2) provides, in effect, that a finding of the court for the purposes of the court's satisfaction, relevantly, that the property in question is the proceeds of one or more indictable offences or is an instrument of one or more serious offences:
(a)need not be based on a finding that a particular person committed any offence; and
(b)need not be based on a finding as to the commission of a particular offence, and can be based on a finding that some offence or other of that kind was committed.
It is plain from s 80 that a forfeiture order can be made under s 47 or s 49 against a person in relation to an offence, notwithstanding that a person has been acquitted of the offence and notwithstanding that a conviction for the offence is subsequently quashed.
Accordingly, the POC Act does not require that a person be charged with or convicted of an offence connected with the forfeiture proceedings before a forfeiture order can be made.
There is no merit in the appellant's assertion that a person must be charged with or convicted of an offence connected with forfeiture proceedings as a condition for the making of a forfeiture order.
It is true that pars 9 and 10 of the respondent's notice of motion filed on 30 November 2018 sought forfeiture orders. However, the respondent did not seek forfeiture orders at the hearing before the Primary Judge on 7 February 2019. No forfeiture orders were made by his Honour on that date. Indeed, no forfeiture orders have yet been made.
The respondent's applications for restraining orders, examination orders and forfeiture orders were consistent with the objects of s 5 of the POC Act; in particular, s 5(a), s 5(c) and 5(e).
The material before this court does not indicate that any relevant misconduct by the respondent or Federal Agent Paynter in connection with the respondent's notice of motion filed on 30 November 2018, the hearing before the Primary Judge on 7 February 2019 or otherwise has occurred. Also, the material before this court does not indicate that there has been any abuse of process in connection with the respondent's application for forfeiture orders, whether arising from any failure by the respondent or Federal Agent Paynter concerning any investigations of any alleged indictable offences or serious offences or the absence of any pending charges for indictable offences or serious offences. Further, a forfeiture application will not be or become an abuse of process merely because no charges for serious offences are brought within a particular time or merely because there are no ongoing investigations.
In any event, the appellants have not made an application in the primary proceedings which alleges that the respondent has abused the process of the court in any respect. Consequently, there is no subsisting order in the primary proceedings which is amenable to appellate scrutiny in the context of this appeal or at all.
Ground 5 fails.
Ground 6: the appellants' submissions
The appellants submitted that the purpose of making a restraining order is to preserve the property so that it will be available to satisfy a forfeiture application under the POC Act.
It was submitted that his Honour erred in the exercise of his discretion in deciding to make the restraining orders because there was no risk of any assets being dissipated. The criminal investigation in relation to the appellants had ended. There was no ongoing investigation. The appellants had not been charged.
Ground 6: the respondent's submissions
The respondent submitted that the premise underpinning ground 6 is flawed.
It was submitted that if the requirements for making a restraining order are satisfied, the court must make the restraining order 'even if there is no risk of the property being disposed of or otherwise dealt with' (s 19(5)). Similar provisions apply to an application for a restraining order under s 18. See s 18(5).
Ground 6: its merits
Section 18(5) of the POC Act provides that the court must make a restraining order even if there is no risk of the property being disposed of or otherwise dealt with.
Section 19(5) provides that the court must make a restraining order even if there is no risk of the property being disposed of or otherwise dealt with.
It is plain, from the statutory text, that the appellant's assertion in ground 6, namely that the Primary Judge erred in the exercise of his discretion in deciding to make the restraining orders because there was no risk of any property being dissipated, is fundamentally misconceived.
If the preconditions in s 18(1) were satisfied, his Honour was bound to make a restraining order, whether or not there was any risk of the property in question being disposed of or otherwise dealt with.
If the preconditions in s 19(1) were satisfied, his Honour was bound to make a restraining order, whether or not there was any risk of the property in question being disposed of or otherwise dealt with.
If the preconditions were satisfied, his Honour was bound to make restraining orders irrespective of the current status of the criminal investigation in relation to the appellants and irrespective of whether the appellants had been charged.
Ground 6 fails.
Ground 7: the appellants' submissions
The appellants submitted that s 180 of the POC Act requires that the court be satisfied that the examination of the particular person is 'necessary' or that there are 'adequate grounds' for making an examination order.
It was submitted that the purpose of an examination under s 180 should be limited to circumstances where there are real questions as to the true position with respect to the source and ownership of property the subject of a restraining order and, possibly, other property which might be the proceeds of crime.
The appellants contended that the material in Federal Agent Paynter's affidavit did not identify any issues arising from the appellants' affairs that need to be investigated or any adequate grounds for the making of the examination orders.
According to the appellants, his Honour erred in the exercise of his discretion in making the examination orders because there was no evidence as to why any examination of a particular person was necessary.
Ground 7: the respondent's submissions
The respondent submitted that the premise underpinning ground 7 is flawed.
It was submitted that there was evidence in Federal Agent Paynter's affidavit which indicated that certain property connected with the appellants was the proceeds of an offence or an instrument of an offence against s 135.1(1) or s 400.9(1) of the Criminal Code.
The 'source' of the relevant property was 'very much a live issue' on the evidence in Federal Agent Paynter's affidavit. An examination of the appellants would enable information to be gathered to assist the responsible authority in obtaining forfeiture orders.
It was reasonably open for the Primary Judge, on the evidence, to make the examination orders.
Ground 7: its merits
It is unnecessary, having regard to our reasons in dealing with ground 2, including our reasons for making examination orders under s 180(1) in relation to each of the appellants, to consider ground 7.
It is sufficient, in the circumstances, to note that there was evidence before the Primary Judge, namely Federal Agent Paynter's affidavit, as to why the examination of each of the appellants was necessary. The evidence in Federal Agent Paynter's affidavit, namely the facts stated in the affidavit and inferences to be drawn from those facts, established that the examination of the appellants would enable information to be gathered (for example, as to the source of the property the subject of the restraining orders) to assist the respondent in obtaining forfeiture orders.
Ground 7 fails.
Ground 8: the appellants' submissions
The appellants submitted that Federal Agent Paynter stated his suspicion with 'insufficient particularity to enable an assessment to be made as to the reasonableness of the grounds' of his suspicion.
It was submitted that his Honour was bound to take into account, in deciding whether to make the restraining orders, whether Federal Agent Paynter held the suspicions articulated in his affidavit and, if so, whether the suspicions were held reasonably.
According to the appellants, his Honour erred in making the restraining orders because he failed to take into account that mandatory relevant consideration.
Ground 8: the respondent's submissions
The respondent submitted, in essence, that there was no doubt that the suspicions set out in Federal Agent Paynter's affidavit were held and were held reasonably.
It was also submitted, in essence, that it was plain from the Primary Judge's reasons that his Honour found that Federal Agent Paynter held the suspicions stated in his affidavit on reasonable grounds.
In those circumstances, and having regard to the satisfaction of the other preconditions in s 18 and s 19, his Honour was bound to make the restraining orders.
Ground 8: its merits
By s 18(1) of the POC Act, a court with proceeds jurisdiction must make a restraining order if the preconditions stated in s 18(1) are satisfied. Those preconditions include the court being satisfied that the authorised officer who made the affidavit holds the suspicion or suspicions stated in the affidavit on reasonable grounds.
By s 19(1) of the POC Act, a court with proceeds jurisdiction must make a restraining order if the preconditions stated in s 19(1) are satisfied. Those preconditions include the court being satisfied that the authorised officer who made the affidavit holds the suspicion stated in the affidavit on reasonable grounds.
In the present case, the relevant offences are those created by s 135.1(1) and s 400.9(1) of the Criminal Code. Each of those offences is a 'serious offence' as defined in s 338.
Each of the appellants is suspected of committing offences against s 135.1(1) by failing to declare income to the Australian Taxation Office and, in the case of Ms Ng, by receiving Centrelink benefits to which she was not entitled. See Federal Agent Paynter's affidavit at [156], [158].
In addition, each of the appellants is suspected of having committed offences against s 400.9(1) by having dealt with money or other property where it was reasonable to suspect that the money or property was the proceeds of crime, the value of the property in question being more than $100,000. See Federal Agent Paynter's affidavit at [179], [159].
We are satisfied that none of the matters raised by the appellants casts any doubt on whether the suspicions set out in Federal Agent Paynter's affidavit are held and are held reasonably.
The Primary Judge said in his reasons that he was satisfied, on the material before him, that 'the reasonable suspicion of Federal Agent Paynter … is established on the evidence to the point that the court is satisfied he holds a reasonable basis for those suspicions that he deposes to in his affidavit and, on that basis, there is established, as per the requirements of s 18 and s 19 … a basis for the court to issue restraining orders in the terms that are sought'.
In our opinion, it is apparent from that passage in his Honour's reasons that his Honour was satisfied that the relevant suspicions of Federal Agent Paynter, as stated in Federal Agent Paynter's affidavit, were held and held on reasonable grounds.
The only conclusion open on the material before the Primary Judge was that the preconditions in s 18(1) and the preconditions in s 19(1) were satisfied.
Consequently, his Honour was bound to make the restraining orders.
Ground 8 fails.
Conclusion
We would grant the appellants' application in an appeal filed 7 July 2021, but only on the basis and only to the extent specified at [101] above.
An extension of time to appeal should be granted.
We would grant leave to appeal in view of our conclusion, in the context of ground 2, that the Primary Judge failed to give adequate reasons for making the examination orders on an ex parte basis. However, as we have mentioned, we would, in the re‑exercise of the discretion on the respondent's application for examination orders in relation to the appellants, make orders under s 180(1) for the examination of each of the appellants.
None of the other grounds of appeal has been made out. The appeal, to the extent it concerns those grounds, should be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
BS
Associate to the Honourable Justice Buss
3 MAY 2022
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