NSW Crime Commission v Ollis

[2006] NSWSC 316

Reported Decision: 161 A Crim R 121

New South Wales

Supreme Court

CITATION:	NSW Crime Commission v Ollis [2006] NSWSC 316
HEARING DATE(S):	13/3/2006, 16/3/2006
JUDGMENT DATE :	21 April 2006
JURISDICTION:	Supreme Court
JUDGMENT OF:	Rothman J
DECISION:	Paragraphs [46]-[48] (Orders Made under s27 of the Criminal Assets Recovery Act 1990 (NSW)).
CATCHWORDS:	CRIMINAL ASSETS RECOVERY - Immunity of witness to criminal charges - Immunity not to run to proceedings for recovery - Principles of construction - Perjury and Perverting Course of Justice - Fraud - Immunity from charge not affect existence of serious crime related criminal activity
LEGISLATION CITED:	Criminal Assets Recovery Act 1990 (NSW) Crimes Act 1900 (NSW)
CASES CITED:	Pollard v Commonwealth Director of Public Prosecutions (1992) 28 NSWLR 659 Cabassi v Vila (1940) 64 CLR 130 D’Orta-Ekenaike v Victoria Legal Aid (2005) 79 ALJR 755; [2005] HCA 12 R v Rogerson (1992) 174 CLR 268 Anthony Hordern & Sons v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1 R v Wallis (1949) 78 CLR 529 Electrolux Home Products Pty Ltd v Australian Workers’ Union (2004) 78 ALJR 1231; [2004] HCA 40
PARTIES:	NSW Crime Commission (P) Victor Warren Ollis (D1) Gail Anne Shields (D2) Aaron Gregory Lye (D3) Christopher Lye (D4) Koala Development Pty Ltd ACN 116 719 754 (D5) Parkes Airport Business Centre Pty Ltd ACN 116 261 913 (6) Parkes Airport Construction Pty Ltd ACN 117 091 737 (D7)
FILE NUMBER(S):	SC 10278/2006
COUNSEL:	Mr I Temby QC (P) Mr Dibb (D)
SOLICITORS:	Mr J Giorgiutti (P - Sol to the Cmr) Mr H Karimjee (D2-D7)

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

JUSTICE ROTHMAN

21 April 2006

NSW CRIME COMMISSION v Victor Warren OLLIS
10278/2006

JUDGMENT

1 HIS HONOUR: This is an application by the New South Wales Crime Commission (the Commission) for an order that the first defendant, Victor Ollis, be subject to a proceeds assessment pursuant to the terms of s.27(1) of the Criminal Assets Recovery Act 1990. The function of the Court on such an application is not to assess the proceeds derived from an illegal activity, but simply to order that such a process occur.

2 The provisions of s.27(2) of the Criminal Assets Recover Act 1990 (the Act) make clear that the Court is required to make a Proceeds Assessment Order if certain conditions precedent are met. The terms of subsection 27(2) of the Act are:

“(2) The Supreme Court must make a Proceeds Assessment Order if the Court finds it to be more probable than not that the person against whom the order is sought was, at any time not more than 6 years before the making of the application for the order, engaged in:
(a) a serious crime related activity involving an indictable quantity, or
(b) a serious crime related activity involving an offence punishable by imprisonment for 5 years or more.”

3 Relevantly the six year period refers to any time after 19 January 2000. There are exceptions to the requirement described in the above subsection but none of them are immediately relevant.

4 On 19 January 2006 the Court made a restraining order under s.10 of the Act with respect to all of the interests in property of Ollis. The circumstances of the other six defendants are not caught by the provisions of subsection 27(2) of the Act, nor are they subject, at this stage, to an application either for a Proceeds Assessment Order under s.27 or for an order of forfeiture under s.22 of the Act.

5 The matter came before the Court on summons for summary judgment issued by the Commission on 16 March 2006 at which time Mr Dibb, of Counsel, appeared for all of the defendants. On behalf of the second to seventh defendants, Mr Dibb sought an adjournment of the application insofar as it affected the first defendant. Essentially the basis of that application was that an Assessment Order under s.27 made against the first defendant may, or will, prejudicially affect the second to seventh defendants, in circumstances where an application was before the Court of Appeal by those defendants. I rejected that application for adjournment and issued ex-tempore reasons for that rejection. In part, it was based upon the view that any application that may subsequently be made under s.22 of the Act against the second to seventh defendants would be an application, which itself could be the subject of an adjournment application and await any judgment from the Court of Appeal.

6 The original allegation against Mr Ollis is that on or about 16 December 2005 he committed an offence against s.178BB of the Crimes Act 1900 and he thus engaged in a serious crime related activity, it being an offence involving fraud which is punishable by imprisonment for five years.

7 The circumstances surrounding that allegation are that on 16 December last, Mr Ollis swore two affidavits, each of which was later filed in Wollongong Local Court in support of a Notice of Motion to pay a judgment debt by instalments of $1,000 per month. In so doing, it is said, he made or published, or at least concurred in the making or publishing, of a statement with intent to obtain financial benefit for himself.

8 Each such affidavit, the Commission submits, was a statement made with reckless disregard as to whether it was true or was false or misleading in a material particular. Affidavits were put before the Court and the evidence puts beyond doubt, although I only need to find on the balance of probabilities, that a false statement was made or published with the intent to obtain financial benefit. Mr Ollis had sworn to the fact that he could not or was not able to raise the amount in a judgment debt of some $40,000 in circumstances where he had, in the preceding month, lent $4.5 million to one person and a further $3 million to another. Over and above that amount, at the time of swearing the affidavit, he had a further $7.5 million worth of undisclosed assets.

9 There were further falsehoods in the affidavits. Each false statement, I find, was made by Mr Ollis with the intent to obtain financial benefit for himself. Those statements included: that he was, at the time “doing his best to pay the plaintiffs”; that he was employed by Koala Developments; the amount of the balance in one of his bank accounts; the extent of his liabilities; and the extent of his expenses. Without more, there can be little doubt that the conditions precedent for the making of a Proceeds Assessment Order have been made out by the Commission.

10 I have earlier mentioned that the second to seventh defendants sought an adjournment of the proceedings for summary judgment. The first defendant did not seek such an adjournment. There is no attempt to counter the evidence relating to criminal activity and the first defendant adduced no evidence relevant to that question. The response of the first defendant was to claim immunity, on the basis that the criminal activity in question was criminal activity to which Mr Ollis was liable qua his role as a witness in the proceedings to which his affidavit related.

11 In order to be liable under s.178BB, once the factual issues are determined, the only intent necessary in an accused person is an intent to obtain money, a valuable thing or financial advantage: Pollard v Commonwealth Director of Public Prosecutions (1992) 28 NSWLR 659. Such an offence, being a contravention of s.178BB of the Crimes Act 1900, is an offence involving fraud or dishonesty (Pollard, supra) and the conditions precedent to the making of the order are made out.

12 The immunity is argued on two bases. Firstly, it is said that the immunity extends to immunity under the Act itself. This submission is that the action under the Act is an action to which the immunity of witnesses applies and Mr Ollis has immunity from the suit now before the Court.

13 The other argument upon which Counsel for Mr Ollis relies is that Mr Ollis has immunity from prosecution for that which was done as a witness and that immunity includes immunity from prosecution under s.178BB of the Crimes Act 1900. Because of that immunity, Mr Ollis cannot be found guilty of the serious crime related activity, which underpins the criminal proceedings recovery suit under the Act.

14 By leave granted at the hearing on 17 March 2006 the Commission filed Supplementary Submissions dated 21 March to which the defendant responded on 29 March 2006. By the Supplementary Submissions the Commission puts, in the alternative, that the evidence before the Court makes out, on the balance of probabilities, either (or both) perverting the course of justice or an attempt so to do. Those crimes would also be within the definition of serious crime related activity for the purpose of the Act and, because they are well known exceptions to the immunity, there is, even if the immunity ran as against s.178BB of the Crimes Act 1900, a requirement to make the orders sought.

15 The submission in relation to the crime of perverting the course of justice (and I include hereafter an attempt so to do) is also relevant, it is said by the Commission, because it shows an intention in the legislature to treat the Act as another exception to the immunity otherwise available.

16 Further, the Commission submits that the immunity is, in any event, unavailable here. Mr Ollis is not being sued for swearing, or on the contents of, a false affidavit. The Commission’s submission is that his conduct is serious crime related activity which, coincidentally, occurred in relation to affidavits and/or evidence and therefore the immunity is, in any event, unavailable.

Witness Immunity

17 Fundamental to the matters raised by the first defendant, Mr Ollis, is the issue of witness immunity and it is necessary, because of the basis upon which those submissions are pressed, to expand on the principles associated with that immunity. The existence of immunity for witnesses is dependent upon common law principles, the rationale for which is, largely, the public policy associated with finality of judgments. The immunity exists for all of the actors in the litigious process: witnesses; jurors; judges; and advocates. It was expressed succinctly by Starke J in Cabassi v Vila (1940) 64 CLR 130:

“But it does not matter whether the action is framed as an action for defamation or as an action analogous to an action for malicious prosecution or for deceit or, as in this instance, for combining or conspiring together for the purpose of injuring another; the rule of law is that no action lies against witnesses in respect of evidence prepared, given, adduced or procured by them in the course of legal proceedings. The law protects witnesses and others, not for their benefit, but for a higher interest, namely, the advancement of public justice. The remedy against a witness who has given or procured false evidence is by means of the criminal law or by the punitive process of contempt of court.” (See Cabassi , supra , at 141)

18 Because the rationale of witness immunity is based on the same public policy issues that effect the immunity of barristers, it is informative to examine the re-statement of those principles D’Orta-Ekenaike v Victoria Legal Aid (2005) 79 ALJR 755; [2005] HCA 12. In the joint judgment (Gleeson CJ, Gummow, Hayne and Heydon JJ) the High Court said:

“[31] In Giannarelli Mason CJ said that:
‘The barrister’s immunity, if it is to be sustained, must rest on considerations of public policy.’
His Honour explained that the term ‘immunity’ was used in a sense which assumed that rights and duties might otherwise exist at common law, but the immunity is sustained on considerations of public policy and ‘the injury to the public interest that will arise in the absence of immunity’. Of the various factors advanced to justify the immunity, ‘the adverse consequences for the administration of justice which would flow from the re-litigation in collateral proceedings for negligence of issues determined in the principal proceedings’ … was held to be determinative. The significance of the reference to the administration of justice is of fundamental importance to the proper understanding of the immunity and its foundation.
[32] … Judicial power is exercised as an element of the government of society and its aims are wider than, and more important than, the concerns of the particular parties to the controversy in question, be they private persons, corporations, polities, or the community as personified in the Crown, or represented by a Director of Public Prosecutions. No doubt the immediate parties to a controversy are very interested in the way in which it is resolved. But the community at large has a vital interest in the final quelling of that controversy. And that is why reference to the ‘judicial branch of government’ is more than a mere collocation of words designed to instil respect for the judiciary. It reflects a fundamental observation about the way in which this society is governed. …
[34] A central and pervading tenet of the judicial system is that controversies, once resolved, are not to be reopened except in a few, narrowly defined circumstances. …
[35] … As was said in the joint reasons in Coulton v Holcombe , ‘[I]t is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at the trial’. …
[37] Parties who fail in litigation, whatever its subject, may well consider the result of that litigation to be wrong, even unjust. … If that party does not succeed, an explanation for failure may be sought in what are perceived to be the failures of others – the judge, the witnesses, advocates – anyone other than the party whose case has been rejected. …
[39] From as early as the 16th century, a disappointed litigant could not sue those who had given evidence in the case. That is, the disappointed litigant could not seek to demonstrate that witnesses had given, or parties had suborned, perjured evidence or that witnesses or parties had conspired together to injure that litigant. … All such actions were precluded or answered by an absolute privilege. It mattered not how the action was framed and it mattered not whether the disappointed litigant alleged that the witness had acted deliberately or maliciously. No action lay, or now lies, against a witness for what is said or done in court. It does not matter whether what is done is alleged to have been done negligently or even done deliberately or maliciously with the intention that it harm the person who would complain of it. The witness is immune from suit and the immunity extends to preparatory steps. That the immunity must be pleaded as a defence makes it none the less an immunity from suit. As the whole Court said in Lange v ABC :
‘The result [of the defence] is to confer upon defendants, who chose to plead and establish an appropriate defence, an immunity to action brought against them.’ …
[42] In R v Skinner , Lord Mansfield said that ‘neither party, witness, counsel, jury or judge can be put to answer, civilly or criminally, for words spoken in office’. Of that immunity it has been said in Mann v O’Neill , that it responds to two related considerations ‘to assist full and free access to independent courts for the impartial quelling of controversies, without fear of the consequences’ and ‘the avoidance of the re-agitation by discontented parties of decided cases after the entry of final judgment’ other than by appellate process. That view of the matter reflects the consideration that what is at stake is the public interest in ‘the effective performance’ of its function by the judicial branch of government.”

19 Applying those principles to the situation of Mr Ollis, the first defendant, it is clear that Mr Ollis has an immunity for all that was done as a witness and the preparatory steps thereto. The remaining questions relate to whether that immunity exempts Mr Ollis from orders under the Act either indirectly because of the immunity to charge under s.178BB of the Act, or directly because the immunity protects the first defendant from any cause of action arising under that Act. I will return to these questions after dealing with the alternative argument that, even if there is an immunity under s.178BB of the Act, the evidence before this Court is sufficient to show conduct which perverted the course of justice or attempt to do so.

Perverting the Course of Justice or Attempt

20 As I understand the argument of the Commission, by swearing the affidavits, Mr Ollis made false statements and in so doing intended (and had a tendency) to pervert the course of justice by obstructing the capacity of the Local Court to dispense justice, so as to obtain financial benefit for Mr Ollis. The financial benefit sought to be obtained was the making of an order by the court which was otherwise than in accordance with the justice of the case.

21 As I understand the submission of the Commission, it is that the acts done by Mr Ollis contravene Part 7 of the Crimes Act, either in the general provisions of s.319 or otherwise.

22 The Crimes Act 1900 defines “pervert the course of justice” as a reference “to obstructing, preventing, perverting or defeating the course of justice or the administration of the law”: s.312. Perverting the course of justice is not confined to criminal proceedings. Within the terms of Part 7 of the Crimes Act it is an offence for a person “with intent to mislead any judicial tribunal in any judicial proceedings … [to fabricate] false evidence (other than by purgery or suborning purgery), or knowingly make use of fabricated false evidence: s.317: for which contravention a person is liable to imprisonment for ten years.

23 The general offence, a contravention of s.319 of the Crimes Act 1900, is for any person who “does any act, or makes any omission intending in any way to pervert the course of justice” for which such person is liable to imprisonment for 14 years. A contravention of either section would meet the definition of serious crime related activity within the meaning of the Criminal Assets Recovery Act. Certainly, a contravention of s.317 of the Crimes Act which involved fraud would meet the aforesaid definition. I make that comment lest it be thought that the specific provision in s.317 of the Crimes Act does not come within the generic term perverting the course of justice as stated in the Act.

24 The evidence before me includes the affidavit of Jonathon Lee Sparke, an officer of the Commission, which, apart from setting out formal documentation including the order under s.10 and the application for the order under s.27, exhibits documents which were marked exhibit A and exhibit B, respectively being a copy of the Wollongong Local Court file and transcript of portions of the audio recording of the examination of Mr Ollis on 9 February before Deputy Registrar Green.

25 The defendant adduces no evidence independently of the affidavit and exhibits mentioned above. The defendant submits that the offence of perverting the course of justice is not available on the facts before the Court because it does not establish that Mr Ollis had an intention to pervert the course of justice and there is no evidence before the Court from which such an intention could be gleaned. This submission founds itself on the transcript adduced by the Commission, in which, in examination and cross-examination, Mr Ollis explains how it was that the false documents were compiled and filed.

26 The explanation is to the effect that the document, which is admittedly false, was signed without being read in the presence of Mr Ollis’ solicitor who had compiled the document without instructions and without the provision of any information by Mr Ollis, who was handed the documentation by his solicitor through the window of his car. There can be no doubt that Mr Ollis was aware that the documentation was to be used in the proceedings in the manner in which it was used. The Court does not accept the evidence that the documentation was not read and/or that the contents of it were unknown and were not based on information provided by Mr Ollis. Further, calling of the solicitor in question to testify to each of those matters could easily have corroborated the evidence in question. He was not called. The necessary inference is that the evidence of the solicitor would not have assisted the case of Mr Ollis. The explanation given by Mr Ollis is, independently, fanciful. It would require the court to accept that the solicitor, not Mr Ollis, perverted the course of justice. The court is not prepared to draw that inference on the basis of the evidence presented.

27 The non-acceptance of the evidence of Mr Ollis does not mean that there is evidence of intention. Intention is an element of a contravention of s.319 of the Crimes Act. Section 319 of the Crimes Act is in different terms to the common law of perverting the course of justice but it is informative to repeat that which was said by the High Court in R v Rogerson (1992) 174 CLR 268:

“Attempting to pervert the course of justice, like perverting the course of justice, is a substantive offence … It consists of the doing of an act which has a tendency to pervert the course of justice with an intent to pervert the course of justice” (citations omitted) (per Brennan and Toohey JJ at [2])

28 Section 319 does not seem to require that the act done with the intent to pervert the course of justice must itself have a tendency itself to pervert the course of justice, but in these proceedings nothing turns on whether or not that is the case.

29 On the basis of the material before the Court that is accepted, namely the documents which show an obvious inconsistency and the admissions that they are false, an inference is available that the documents, signed by Mr Ollis, to be used in the course of proceedings, were intended to effect the natural consequences of their compilation and use. That inference is more readily drawn because of the failure to call the solicitor, the one independent person capable of giving evidence of substantiating what would otherwise be seen as a somewhat fanciful proposition.

30 In those circumstances, the Court finds it more probable than not that Mr Ollis engaged in a serious crime related activity involving an offence punishable by imprisonment for five years or more, it being an offence that occurred not more than six years before the making of the application for the order under s.27, the offence being a contravention of s.319 of the Crimes Act 1900 (NSW). Therefore, pursuant to the provisions of s.27 of the Act, the Court is required to make a Proceeds Assessment Order and will do so. Lest my analysis of that which is required under s.319 (even on the balance of probabilities) is wrong, I proceed to deal with the proper construction and interpretation of the Act. I do so, also, because it is necessary to deal with the primary argument: that the immunity applies in such a way as to provide a defence to any civil action under the Act.

31 Another answer to the submission by the Commission that the defendant, in any event, has engaged in serious crime related activity because of the operation of s.319 of the Crimes Act (or more generally, Part 7), is a construction of the Crimes Act which contrasts s.319 with s.389 and s.339. The defendant submits that because perjury and false swearing are the subject of separate contraventions with significant restrictions on the persons who may prosecute, it cannot have been the intention of the legislature to include an act which may amount to perjury as an act which perverts the course of justice. This submission, although not expressed in this way, is to the effect that s.327 (with the restrictions imposed by s.338 and s.339) is intended to deal exclusively with conduct which comes within its reach. In so doing, so the argument goes, the legislature must have intended that perjury was outside the reach of the provisions of s.319 and other like provisions: see by analogy Anthony Hordern & Sons v Amalgamated Clothing & Allied Trades Union of Australia (1932) 47 CLR 1; R v Wallis (1949) 78 CLR 529. The proposed approach to construction of the statute must be applied with great care; it is “a valuable servant, but a dangerous master” (Colquhoun v Brooks (1888) 21 QBD 52 at 65), “and applies only when the intention it expresses is discoverable upon the face of the instrument”: see Houssein v Department of Industrial Relations and Technology (1982) 148 CLR 88 at 94.

32 To construe the Crimes Act as requiring each crime to be mutually exclusive would be an unusual construction. Most criminal activity will contravene more than one legislative prohibition. While there may be double jeopardy issues associated with being charged with more than one offence, that is not a reason to assume that because criminal conduct is contravention of one section, it is not, also, a contravention of another. But the more direct answer to the argument is found in the terms of s.317 of the Crimes Act, which is part of the offences dealing with perverting the course of justice. Paragraph (b) expressly exempts perjury or suborning perjury from its reach. Such an express exemption would be otiose if s.327 was intended exclusively to deal with perjury and all of Division 2 of Part 7 was required to be construed in such a way as to exclude its application to perjury. This express exemption stands in stark contrast to the provisions in paragraphs (a) and (c) of s.317 itself. The normal principles of construction would require paragraphs 317(a) and (c) to be construed so that their reach included perjury or suborning perjury. There is no reason to construe s.319 more narrowly.

33 That is not to say that all perjury will amount to perverting the course of justice. The inclusion of some perjury within the reach of s.319 does not render s.327 of the Crime Act otiose. On a purposive approach to the provisions, the restrictions on prosecution for perjury apply only to perjury and, where conduct that amounts to perjury is also an offence of another kind, those restrictions do not support a construction of the Crimes Act to exclude such conduct from the reach of every other section.

Criminal Assets Recovery Act and Immunity thereto

34 The Act defines, in s.6, a serious crime related activity. As earlier summarised, it relevantly includes an offence which is punishable by imprisonment for five years or more and involves theft, fraud, obtaining financial benefit, perverting the course of justice and other offences. Subsection 6(1) of the Act expressly provides that conduct is a serious crime related activity, whether or not the relevant person has been charged with the offence or, if charged, has been acquitted, or has been convicted and the conviction quashed or set aside.

35 The primary argument as to immunity, and the argument based upon the immunity of s.178BB of the Crimes Act, depends upon a construction of the Act and an understanding of the application of the witness immunity. I have set out, at more length than is usual, the policy basis for witness immunity. The witness immunity arises under the common law. The legislature is capable, at any time, of displacing that immunity. Whether the immunity applies to the Act is a question of the construction of the Act and its relationship with the immunity.

36 Two further answers are sought to be put by the defendant to orders under s.27 of the Act. They are that the Act does not expressly override the common law immunity for witnesses and should therefore be construed in such a way as not to impact upon it. The principles to be adopted in relation to the construction of a legislative enactment and its relationship with the common law was most succinctly summarised by Gleeson CJ in Electrolux Home Products Pty Ltd v Australian Workers' Union (2004) 78 ALJR 1231; [2004] HCA 40, in which the Chief Justice said:

“[19] Reliance was placed in argument upon what was said to be a general principle of construction that, where a statute takes away or interferes with common law rights, then it should be given, if possible, a narrow interpretation. The generality of that assertion of principle requires some qualification. It is true that courts do not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless such an intention is clearly manifested by unmistakable and unambiguous language. It is also true that there is a presumption, relevant for example to the construction of privative clauses, that the legislature does not intend to deprive the citizen of access to the courts, other than to the extent expressly stated or necessarily to be implied. However, as McHugh J pointed out in Gifford v Strang Patrick Stevedoring Pty Ltd modern legislatures regularly enact laws that take away or modify common law rights. The assistance to be gained from a presumption will vary with the context in which it is applied. For example, in George Wimpey & Co Ltd v British Overseas Airways Corporation , Lord Reid said that in a case where the language of a statute is capable of applying to a situation that was unforeseen, and the arguments are fairly evenly balanced, "it is ... right to hold that ... that interpretation should be chosen which involves the least alteration of the existing law". That was a highly qualified statement and, if it reflects a presumption, then the presumption is weak and operates only in limited circumstances.
[20] In Coco v R , Mason CJ, Brennan, Gaudron and McHugh JJ said:
‘The insistence on express authorization of an abrogation or curtailment of a fundamental right, freedom or immunity must be understood as a requirement for some manifestation or indication that the legislature has not only directed its attention to the question of the abrogation or curtailment of such basic rights, freedoms or immunities but has also determined upon abrogation or curtailment of them. The courts should not impute to the legislature an intention to interfere with fundamental rights. Such an intention must be clearly manifested by unmistakable and unambiguous language. General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights.’ (footnote omitted)
[21] The joint judgment in Coco went on to identify as the rationale for the presumption against modification or abrogation of fundamental rights an assumption that it is highly improbable that Parliament would "overthrow fundamental principles, infringe rights, or depart from the general system of law" without expressing its intention with "irresistible clearness". In R v of State for the Home Department; Ex parte Pierson , Lord Steyn described the presumption as an aspect of the principle of legality which governs the relations between Parliament, the executive and the courts. The presumption is not merely a common sense guide to what a Parliament in a liberal democracy is likely to have intended; it is a working hypothesis, the existence of which is known both to Parliament and the courts, upon which statutory language will be interpreted. The hypothesis is an aspect of the rule of law.”

37 Fundamentally the “presumption” is a matter of statutory construction which is borne in mind in determining the proper operation of any enactment.

38 As made clear in the passage cited from D’Orta-Ekenaike (see [39] of the High Court judgment, infra) the immunity of a witness must be pleaded. Such an immunity may be waived.

39 Prior to the pleading of the immunity, the conduct giving rise to the criminal offence (or civil liability) still fits the description which would render the defendant liable. It is only if and when the immunity is pleaded to the charge (in the case of a criminal offence) that the defence arises and, assuming it is established, it thereafter is an immunity from suit. It does not alter the nature of the conduct of the defendant, it only exempts the defendant from liability in circumstances where the defendant chooses to rely on it.

40 I return then to the definition of serious crime related activity in s.6. It matters not, for the purposes of the Act whether a charge has been laid, whether there has been a trial, whether there has been an acquittal or whether there has been an acquittal on the basis of an immunity pleaded by the defendant; the operative force of the Act depends upon the nature of the conduct, not the success of any suit or prosecution in relation to the conduct.

41 Further, the inclusion in subsection 6(2)(d) of the Act of the offence of “perverting the course of justice” shows a clear legislative intention that the Act will not be subject, in and of itself, to the immunity of witnesses or parties to proceedings. Indeed, a judge who in the course of fulfilling his/her duties was guilty of perverting the course of justice would likewise be amenable to the provisions of the Act.

42 Perverting the course of justice is a known exception to the immunity of witnesses (and other persons) involved in the litigation process.

43 To that analysis must be added the terms of s.27 of the Act. Once the Court finds the preconditions satisfied (i.e. that it is more probable than not that the person engaged in a serious crime related activity of the relevant kind) the Act requires the Supreme Court to make a Proceeds Assessment Order. The Court is, once satisfied of the pre-conditions, not possessed of a residual discretion to refuse to make an Assessment Order.

44 A combination of these factors leads me to conclude that the witness immunity that would otherwise be applicable does not apply directly to the Act. Further, it leads me to the view that, notwithstanding that Mr Ollis may have a good defence to a charge under s.178BB of the Crimes Act based on witness immunity, the Act still requires the making of an order under s.27 of the Act in circumstances where the conduct of Mr Ollis amounts to conduct which shows that he, more probably than not, engaged in a serious crime related activity of the requisite kind.

45 Furthermore, if one were to examine this construction in the light of the public policy, one would come to the view that the construction was appropriate: firstly, the Act requires suit not by the party to the original litigation but by the State; secondly, the suit is, itself, in aid of the administration of justice; thirdly, it is in the nature of perjury and perversion of the course of justice, albeit civil in that it is a suit directed at the activity itself, not at an indirect consequence thereof, for example, damage to an injured party.

Conclusions

46 I find that, even though Mr Ollis probably has an immunity on the basis of his status as a witness to a charge under s.178BB of the Crimes Act, that immunity arises only if and when Mr Ollis is charged and pleads the defence of the immunity. Prior to that point (and even after it) the criminal conduct in question still meets the definition of serious crime related activity under the Act and the immunity does not exempt Mr Ollis from the application of that Act to his assets.

47 Further, on the evidence before the Court, I find that it is more probable than not that Mr Ollis was, at a time not more than six years before the making of the application for an order under s.27 of the Act, engaged in a serious crime related activity involving an offence punishable by imprisonment for five years or more, namely, conduct which would amount to a contravention of s.319 of the Crimes Act 1900.

48 In those circumstances, the preconditions for the making of orders under s.27 have been made out and I propose to make appropriate orders. I will hear the parties on the form of any such orders.

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