Ng v Commissioner of the Australian Federal Police [No 2]
[2020] WASCA 160
•25 SEPTEMBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: NG -v- COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE [No 2] [2020] WASCA 160
CORAM: MURPHY JA
VAUGHAN JA
HEARD: 24 SEPTEMBER 2020
DELIVERED : 24 SEPTEMBER 2020
PUBLISHED : 25 SEPTEMBER 2020
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
Catchwords:
Proceeds of crime - Appeal - Application of the Proceeds of Crime Act 2002 (Cth) s 319 - Statutory construction - Whether Act empowers court to make orders for referral certificate for pro bono assistance or legal aid - Power not conferred by Act
Self-represented litigants - Appeal - Application for stay of proceedings - Where appellants unable to fund legal representation - Whether in interest of justice to stay the appeal - Turns on own facts
Legislation:
International Covenant on Civil and Political Rights
Legal Aid Commission Act 1976 (WA)
Proceeds of Crime Act 2002 (Cth), s 319, s 293
Rules of the Supreme Court 1971 (WA)
Supreme Court (Court of Appeal) Rules 2005 (WA)
Result:
Application dismissed
Category: B
Representation:
Counsel:
| First Appellant | : | In person |
| Second Appellant | : | In person |
| Respondent | : | G Hill |
Solicitors:
| First Appellant | : | In person |
| Second Appellant | : | In person |
| Respondent | : | Australian Government Solicitor |
Case(s) referred to in decision(s):
Commissioner of the Australian Federal Police v Elzein [2017] NSWCA 142; (2017) 94 NSWLR 700
Commonwealth Director of Public Prosecutions v Bowerman [2006] NSWSC 1309; (2006) 67 NSWLR 695
Dietrich v R [1992] HCA 57; (1992) 177 CLR 292
Doepgen v Mugarinya Community Association Inc [2014] WASCA 67
Mansfield v Director of Public Prosecutions (WA) [2006] HCA 38; (2006) 226 CLR 486
McInnis v R [1979] HCA 65; (1979) 143 CLR 575
New South Wales v Canellis [1994] HCA 51; (1994) 181 CLR 309
Ng v Commissioner of the Australian Federal Police [2019] WASCA 195
Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40
REASONS OF THE COURT:
Overview
The appellants are self-represented litigants. They made application, by an interim application in an appeal dated 26 August 2020, for an order for a 'referral certificate' for pro bono legal assistance; and, in submissions, for an order that legal aid be provided to them. In the alternative, the appellant sought a stay of the appeal until funding for legal assistance was available.
The appellants said that all of their available assets are subject to restraining orders pursuant to s 18 and s 19 of the Proceeds of Crime Act 2002 (Cth) (POCA) and that their application for legal aid has been refused. They claimed to be unable to fund legal representation for the purposes of the appeal. The appellants claimed that, in all the circumstances, the consequence of lack of legal representation would be to deprive them of a fair hearing and result in a miscarriage of justice.
It was not in dispute that the POCA does not permit provision for legal expenses out of restrained funds.[1]
[1] Commonwealth Director of Public Prosecutions v Bowerman [2006] NSWSC 1309; (2006) 67 NSWLR 695 [28].
At the conclusion of the hearing of the application the court ordered that the appellants' application be dismissed. The court said that reasons for that order would be published at a later time. These are our reasons for that order.
Procedural and factual background
The relevant procedural history was outlined in reasons delivered in an earlier interlocutory decision in relation to the appeal:
On 7 February 2019, Kenneth Martin J relevantly made orders restraining dealings in specified property in the name of, or under the effective control of, the appellants. Those orders were made under s 18 and s 19 of the Act [ie the POCA]. At the same time, the judge made examination orders in respect of the appellants and a third party under s 180 of the Act. These orders were made in closed court in the absence of, and without notice to, the appellants. His Honour gave short oral reasons for making those orders.
On 18 February 2019, the appellants relevantly applied for a stay of the examination orders, under s 319 of the Act.
On 6 March 2019, the appellants applied for an order that the restraining orders had ceased to have effect under s 45(2) of the Act. That application was dismissed by Tottle J on 8 March 2019. An appeal against Tottle J's decision of 8 March 2019 was subsequently instituted but was dismissed by consent.
On 20 March 2019, the appellants filed the appeal notice in the present appeal against the restraining orders and the examination orders made on 7 February 2019. The appeal notice seeks leave to appeal and an extension of time in which to appeal.
On 6 April 2019, the appellants made an application in the primary proceedings for the revocation of the restraining orders under s 42 of the Act. This application was subsequently discontinued.
On 25 and 26 July 2019, Tottle J heard the stay application filed on 18 February 2019. On 23 August 2019, the application was dismissed for written reasons published by Tottle J. There has been no appeal against that decision.
On 24 September 2019, an examiner issued an examination notice under s 183 of the Act requiring Mr Cha [the second appellant] to attend for examination and produce certain documents on 26 and 27 November 2019. Although it is not in evidence before us, it appears to be common ground between the parties that a similar examination notice has been issued to Ms Ng [the first appellant].
On 6 November 2019, this court made orders in effect allowing the appellants, who are self-represented, to amend their grounds of appeal and submissions in support of the appeal. The appellants did not seek, and were not granted, a stay of the examination orders at that time.
On 20 November 2019, the appellants filed an application in the appeal seeking a stay of the examination orders until the determination of the appeal. The application was amended on 25 November 2019 to seek an order that the documents specified in the examination notices be filed in this court under seal and provided to the respondent if the appeal is dismissed. At the hearing of the appeal, the appellants indicated that this additional order was only proposed in the event that a stay of the examination orders was granted.
This court heard and dismissed the application for a stay, as amended, on 25 November 2019.[2] (citations omitted)
[2] Ng v Commissioner of the Australian Federal Police [2019] WASCA 195 [3] - [12].
Since that time the appellants have been given leave to rely on amended grounds and substituted written submissions dated 2 July 2020. It is apparent from those documents that the appellants continue to seek leave to appeal together with orders declaring that the restraining orders and examination orders are void ab initio or alternatively invalid. Eight grounds of appeal are advanced. This court has previously concluded that two of the initial grounds were reasonably arguable.[3]
[3] Ng v Commissioner of the Australian Federal Police [31] - [55], [62].
In considering the present application it was not necessary to consider the additional grounds of appeal. It was appropriate to determine the application on the basis that at least two of the grounds are reasonably arguable.
The first appellant, Ms Ng, has deposed to the following effect in her affidavit sworn 26 August 2020 in support of the interim application:
1.All of Ms Ng's available assets have been restrained by the restraining orders ([6]).
2.Ms Ng's income consists of a parenting payment ([6]).
3.The second appellant, Mr Cha, is currently on Jobseeker ([7]).
4.Legal aid has been refused ([11]).
5.English is not Ms Ng's first language; nor is it Mr Cha's first language ([8]).
6.Ms Ng requires legal assistance due to the nature and complexity of the proceedings and her unfamiliarity with the court's rules and civil procedure ([9]).
7.Ms Ng considers that, most of the time, she does not understand what is being said on behalf of the respondent ([10]).
More generally, Ms Ng deposes that she believes she is at real risk of prejudice. In Ms Ng's view, her opportunity for equal justice, and right of a fair hearing, is diminished because she has been deprived of a capacity to fund legal representation. Ms Ng believes that, if forced to represent herself, the appeal hearing will be fundamentally flawed and an injustice will be done.[4]
[4] Affidavit of V M Ng sworn 26 August 2020 pars 11 - 12, 14.
There is no affidavit evidence sworn or affirmed by Mr Cha.
The respondent did not take any point about the absence of an affidavit on the part of Mr Cha. Nor did the respondent complain about the shortcomings in Ms Ng's affidavit evidence. For example, the affidavit failed to provide particulars of the applications for and refusals of legal aid; and the details of Ms Ng's and Mr Cha's available assets and means was highly conclusionary. In circumstances where the evidence was not criticised by the respondent it was appropriate to determine the application on the basis as presented by Ms Ng's affidavit as summarised above.
The parties' submissions
The appellants contended that s 319(6)(e) of the POCA conferred power on the court to make an order to address any prejudice that a person might suffer if POCA proceedings were not stayed. The appellants submitted that this either entitled them to apply for a referral certificate for pro bono assistance, or alternatively, an order for legal aid. In the latter respect the appellants also referred to s 293 of the POCA.
In the alternative, the appellants sought a stay of the appeal until they were able to fund legal representation. They referred to observations of Murphy J in McInnis v R,[5] the decision of the High Court in Dietrich v R[6] and what was said in the Supreme Court of the United States of America in Betts v Brady.[7] In oral submissions Ms Ng referred to art 14.1 of the International Covenant on Civil and Political Rights (ICCPR) and emphasised the statement therein that 'all people shall be equal before the courts'. More specifically, it was said that the appellants were at a special disadvantage by reason of the restraining orders and it would result in a miscarriage of justice if the respondent was permitted to exploit that advantage. The appellants argued that, as the restraining orders deprived them of the capacity to fund legal representation of their choice, the absence of pro bono legal assistance would deprive them of a fair hearing and result in a miscarriage of justice.
[5] McInnis v R [1979] HCA 65; (1979) 143 CLR 575, 590.
[6] Dietrich v R [1992] HCA 57; (1992) 177 CLR 292.
[7] Betts v Brady (1942) 316 US 455, 476.
In both respects, the appellants reiterated many of the matters referred to in Ms Ng's affidavit, namely:
1.The appellants' non-English speaking background.
2.The appellants' lack of legal knowledge.
3.The nature and complexity of the appeal - especially so far as it raised issues of law.
4.The benefits to the court that would arise from the appellants being legally represented.
5.The serious nature of the allegations levelled against the appellants.
The respondent made three submissions. First, there was no power for the court to make the referral sought by the appellants under s 319 of the POCA. Second, the court had no power to formally refer the matter to Legal Aid WA; nor to require the provision of legal aid to the appellants. Third, the appellants had not disclosed any basis for their own appeal to be stayed on their application.
Disposition: Application for referral certificate
Neither the Supreme Court (Court of Appeal) Rules 2005 (WA) nor the Rules of the Supreme Court 1971 (WA) make provision for the court to refer a self-represented party for legal assistance by the issue of a referral certificate.[8] Similarly, nothing in the Legal Aid Commission Act 1976 (WA) empowers this court, either on application or of its own motion, to require that legal aid be provided to a person under that Act.
[8] Compare eg Federal Court Rules 2011 (Cth) pt 4 div 4.2.
Presumably, the absence of any statutory footing in these sources was the reason that the appellants suggested that the court was empowered to make the order for a referral certificate (or order that the appellants be provided with legal aid) by reason of s 319(6)(e) of the POCA.
In the earlier interlocutory decision involving these parties, the court provided a broad overview of the provisions of the Act which were most relevant to the matter then under consideration.[9] It is unnecessary to repeat what was said on the earlier occasion. The same statutory context informs the present application. It is, however, appropriate to say something more about s 319 of the POCA since the appellants' application invokes s 319(6)(e).
[9] Ng v Commissioner of the Australian Federal Police [13] - [22].
Section 319 is entitled '[s]tay of proceedings'. The court may stay proceedings under the POCA (defined as 'POCA proceedings') that are not criminal proceedings 'if the court considers that it is in the interests of justice to do so'. However, by s 319(2):
The court must not stay the POCA proceedings on any or all of the following grounds:
(a)on the ground that criminal proceedings have been, are proposed to be or may be instituted or commenced (whether or not under this Act) against the person subject to the POCA proceedings;
(b)on the ground that criminal proceedings have been, are proposed to be or may be instituted or commenced (whether or not under this Act) against another person in respect of matters relating to the subject matter of the POCA proceedings;
(c)on the ground that:
(i)a person may consider it necessary to give evidence, or to call evidence from another person, in the POCA proceedings; and
(ii)the evidence is or may be relevant (to whatever extent) to a matter that is, or may be, at issue in criminal proceedings that have been, are proposed to be or may be instituted or commenced (whether or not under this Act) against the person or any other person;
(d)on the ground that POCA proceedings in relation to another person have been, are to be or may be stayed.
Sections 319(3) - (5) provide clarification as to the circumstances in which s 319(2)(a), (b) and (d) apply.
Section 319(6) then provides for certain mandatory considerations in exercising the power under s 319(1):
In considering whether a stay of the POCA proceedings is in the interests of justice, the court must have regard to the following matters:
(a)that the POCA proceedings, and any criminal proceedings of a kind referred to in paragraph (2)(a) or (b), should proceed as expeditiously as possible;
(b)the cost and inconvenience to the Commonwealth of retaining property to which the POCA proceeding relates and being unable to expeditiously realise its proceeds;
(c)the risk of a *proceeds of crime authority suffering any prejudice (whether general or specific) in relation to the conduct of the POCA proceedings if the proceedings were stayed;
(d)whether any prejudice that a person (other than a proceeds of crime authority) would suffer if the POCA proceedings were not stayed may be addressed by the court by means other than a stay of the proceedings;
(e)any orders (other than an order for the stay of the POCA proceedings) that the court could make to address any prejudice that a person (other than a proceeds of crime authority) would suffer if the proceedings were not stayed.
Note: Examples of orders the court could make to address any prejudice that a person (other than a proceeds of crime authority) would suffer if the POCA proceedings were not stayed include an order under section 319A (closed court) or an order prohibiting the disclosure of information.
Section 319(6)(e) of the POCA does not empower the court to make an order of either type sought by the appellants, ie an order to refer a self‑represented party for legal assistance by the issue of a referral certificate or an order that a self-represented person be provided with legal aid.
The relevant power conferred on the court is found in s 319(1) of the POCA. It is a power to stay POCA proceedings. Section 319(6)(e) does not confer any additional powers on the court. Rather, s 319(6)(e) enunciates a matter which the court is bound to take into account when considering whether to exercise the power under s 319(1). Section 319(6) as a whole prescribes matters that must be taken into account in considering whether a stay is in the interests of justice.[10] In terms of s 319(6)(e) the court must consider any alternate orders that it could make to address any prejudice that a person would suffer if the POCA proceedings were not stayed. Section 319(6)(e) is premised on the court having existing powers which might ameliorate prejudice arising from the POCA proceedings, thereby being a relevant factor against a stay of the POCA proceedings in the interest of justice, rather than itself conferring a power.
[10] Commissioner of the Australian Federal Police v Elzein [2017] NSWCA 142; (2017) 94 NSWLR 700 [5], [58]. See also [86], [132] as to s 319(6)(e) in particular.
Accordingly, the appellants' application was misconceived so far as it invoked s 319(6)(e) of the POCA as empowering the court to make the primary orders sought in the interim application.
The lack of statutory power in s 319(6)(e) of the POCA is unaffected by s 293 of the POCA. The appellants submitted that s 293 'cast the cost of representation back onto the legal aid commission'.[11] Section 293 only applies where a 'legal aid commission' (as defined) has incurred legal costs for representing a person whose property was covered by a restraining order in proceedings under the POCA or in proceedings defending any criminal charge. Accordingly, it presupposes that legal aid has been provided and legal costs have been incurred. Where that is the case, and other things are satisfied, legal costs must be paid out of the 'Confiscated Assets Account' (as defined). The section - not presently applicable in any event - does not alter the operation of s 319(6)(e) in the circumstances of the present case.
[11] Appellant's submissions par 15.
Disposition: Application to stay the appeal
In the alternative the appellants applied to stay the appeal. The appellants relied on s 319(1) of the POCA as providing the power for the court to order a stay. The respondent accepted that this proceeding, which was an appeal from restraining orders and examination orders made in the General Division of the Supreme Court under the POCA, was a POCA proceeding for the purposes of s 319(1) of the POCA.[12] Whether that concession is correct need not be addressed. Given the respondent's concession it was appropriate to determine the application on the basis that s 319(1) of the POCA was capable of being employed to stay the appeal if it was in the interests of justice to do so.
[12] Respondent's submissions par 9.
The power conferred by s 319(1) of the POCA is able to be exercised by this court where to do so is necessary to ensure the effective exercise of its appellate jurisdiction.[13]
[13] Ng v Commissioner of the Australian Federal Police [26].
In determining whether it was in the interests of justice that the appeal be stayed, the principle in Dietrich v Rdid not assist the appellants. The principle for which Dietrich v R stands was stated in that case by Mason CJ and McHugh J as follows:
In our opinion, and in the opinion of the majority of this Court, the common law of Australia does not recognize the right of an accused to be provided with counsel at public expense. However, the courts possess undoubted power to stay criminal proceedings which will result in an unfair trial, the right to a fair trial being a central pillar of our criminal justice system. The power to grant a stay necessarily extends to a case in which representation of the accused by counsel is essential to a fair trial, as it is in most cases in which an accused is charged with a serious offence.
The applicant is entitled to succeed because his trial miscarried by virtue of the trial judge's failure to stay or adjourn the trial until arrangements were made for counsel to appear at public expense for the applicant at the trial with the consequence that, in all the circumstances of this case, he was deprived of his right to a fair trial and of a real chance of acquittal.[14]
[14] Dietrich v R (297 - 298).
The other members of the majority agreed that, although the court cannot insist on the appointment of counsel to represent an accused, it can stay proceedings as an incident of the general power of the court to ensure a fair trial of serious criminal offences.[15] The principle is based on, and derives from, the accused's right to a fair trial where an indigent person is charged with a serious criminal offence.[16]
[15] Dietrich v R (330 - 331), (337) Deane J; (357 - 358), (361 - 362) Toohey J; (374 - 375) Gaudron J.
[16] New South Wales v Canellis [1994] HCA 51; (1994) 181 CLR 309, 328.
The limited scope of the principle in Dietrich v R was recognised in New South Wales v Canellis. Among other things, in discussing Dietrich v R, a plurality comprising Mason CJ, Dawson, Toohey and McHugh JJ observed that there was no suggestion in the majority judgments in Dietrich v R that the court would exercise a similar jurisdiction in civil proceedings.[17] More generally their Honours stated as to the requirement of procedural fairness:
[S]o far, the Dietrich principle excepted, there is no authority for the proposition that the rules of procedural fairness extend to a requirement that legal representation be provided to a party at a trial …[18]
[17] New South Wales v Canellis (328).
[18] New South Wales v Canellis (330).
This court has affirmed the principle that, putting aside the principle in Dietrich v R, the rules of procedural fairness do not extend to a requirement that legal representation be available to a party appearing before a court or tribunal. Thus, a party is not denied procedural fairness simply because he or she does not have legal representation.[19]
[19] Doepgen v Mugarinya Community Association Inc [2014] WASCA 67 [12].
This appeal is from orders made in civil proceedings.[20] The principle in Dietrich v R is inapplicable. Rather, as is established in the authorities, procedural fairness does not require that legal representation be provided to the appellants with the result that, so as to ensure a fair hearing, the appeal should be stayed until arrangements are made for such representation. Once that is understood to be the position considerable difficulties confronted the appellants' contention that it was in the interests of justice that the appeal be stayed.
[20] POCA s 315.
The court is well aware, moreover, of the difficulties faced by the appellants as self-represented litigants. The operation of the adversarial system of litigation is assisted by the presence of legal representation and may be severely impaired by its absence.[21] The practical reality is that where one of the parties is a self-represented litigant, this court, as a matter of course, takes steps to ensure a fair and just appeal hearing in accordance with law. A self-represented litigant is provided with assistance limited, ordinarily, to that necessary to overcome, so far as is reasonably practicable, the procedural disadvantages a self-represented litigant faces by reason of not being legally trained.
[21] Mansfield v Director of Public Prosecutions (WA) [2006] HCA 38; (2006) 226 CLR 486 [49]. See also Dietrich v R (302).
In that regard it is well-settled that:[22]
1.The court's obligation is to ensure a fair and just appeal hearing for all parties.
2.A self-represented litigant is subject to the practice and procedure of the court as much as any other litigant.
3.The court's obligation in the case of a self-represented litigant is to give sufficient information about the practice and procedure of the court to mean that there is a fair appeal hearing for both parties (the application of the principle depending on the circumstances of the case).
[22] See eg Zerjavic v Chevron Australia Pty Ltd [2020] WASCA 40 [74] - [75].
The appellants' application for a stay of the appeal had to be assessed on the basis that, in accordance with its usual practice, the court would conduct its processes so as to ensure a fair and just appeal hearing in accordance with law. That is consistent with the operation of art 14.1 of the ICCPR.
In this particular case it is acknowledged that the appellants have the additional difficulty of English not being their first language. The standard procedures employed in the court assist in overcoming some of the difficulty occasioned thereby. The appellants have filed a comprehensive appellant's case which sets out their grounds of appeal and their submissions in support of the appeal. We have reviewed the appellant's case. It is readily apparent that the appellants have identified what, on their case, are the alleged errors of the primary judge and the legal contentions in support of that conclusion. The appellant's case is supported by appropriate references to authority and is easily followed. Equally important in terms of addressing the appellants' position as self-represented litigants with a non-English speaking background is the fact that the respondent has filed and served a respondent's answer which puts the appellants on notice of the case they have to meet on appeal. The earliest that the appeal could be listed for hearing is mid-January 2021. Accordingly, the appellants will have ample time to consider the respondent's answer and prepare for the appeal hearing in light of the respondent's answer.
In considering whether it was in the interests of justice to stay the appeal, in exercise of the power under s 319(1), it was also necessary to have regard to the matters referred to in s 319(6) of the POCA. In that respect:
1.The policy of the POCA is that proceedings under the Act should proceed as expeditiously as possible. The stay as sought would be for an indefinite time, ie until funding for legal assistance is available. The delay attendant on a stay is a factor against the order sought by the appellants.
2.The respondent made no suggestion that there was any real risk of cost and inconvenience or prejudice in terms of one or both of s 319(6)(b) or (c).
3.In terms of s 319(6)(d), any prejudice that the appellants may suffer as unrepresented litigants, in the event that the appeal is not stayed, is in part ameliorated by the usual measures that this court accords to self-represented litigants, as discussed at [33] ‑ [34] above. The measures mentioned at [36] above are also relevant.
4.Aside from the orders sought for referral for legal assistance or the provision of legal aid - as previously dealt with at [16] ‑ [25] above - neither party suggested that there was any order that the court could make to address any prejudice that the appellants may suffer as unrepresented litigants in the event that the appeal is not stayed.
Having regard to all of the matters referred to in [8] - [9], [13] ‑ [14] and [28] ‑ [37] above we were not satisfied that it was in the interests of justice to grant a stay of the appeal until funding for legal assistance became available to the appellants. We did not, in the circumstances, take into account that the appellants were seeking to stay their own proceeding;[23] nor that the appellants had previously sought, unsuccessfully, a stay of proceedings before Tottle J.[24] There were two matters which, in our view, weighed heavily against the application for a stay. First, the absence of any right or entitlement to be provided with legal representation in connection with civil proceedings. Second, the circumstance that it cannot be said that the absence of legal representation will render the appeal hearing unfair or unjust.
[23] Compare respondent's submissions par 4.
[24] Compare respondent's submissions par 26.
It was unnecessary to determine whether, so far as the power to grant a stay of the appeal might arise independently of s 319(1) of the POCA, the exercise of the power would be informed by the considerations to which the court must have regard under s 319. The appellants' application was couched solely in terms of s 319(1) of the POCA.
Conclusion and orders
For these reasons we ordered that the appellants' interim application dated 26 August 2020 be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
OE
Associate to the Honourable Justice Vaughan25 SEPTEMBER 2020
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