R v Ruzehaji (No 2)

[2017] SADC 119

DISTRICT COURT OF SOUTH AUSTRALIA

(Criminal)

R v RUZEHAJI (No 2)

[2017] SADC 119

Ruling of His Honour Judge Millsteed

31 October 2017

CRIMINAL LAW

Applicant charged with drug offences under Criminal Code 1995 (Cth) – application for a permanent stay of proceedings – applicant compulsorily examined under s 180 of the Proceeds of Crime Act 2002 (Cth) after being charged with drug offences – applicant questioned about matters relevant to drug charges during compulsory examination – whether s 180 authorised examination of an accused person in relation to pending charges – whether transcript of s 180 examination was unlawfully disseminated to persons responsible for investigating and prosecuting drug offences – held: (i) s 180 examination was lawful – (ii) transcript not disseminated as alleged; whether charges should be stayed in any event because compulsory examination constituted a fundamental departure from the accusatorial nature of the criminal justice process: held – applicant had failed to establish that the mere fact he had been compulsorily examined had given rise to undue prejudice or a real risk of prejudice – application for stay dismissed.

Proceeds of Crime Act 2002 (Cth) ss 5, 6, 17-20, 39, 42, 47-49, 73, 92, 94, 180, 182, 183, 186-189, 191, 193, 195-198, 266, 315, 319, 338; Criminal Code Act 1995 (Cth) ss 302, 306, 400, referred to.
Lee v New South Wales Crime Commission (2013) 251 CLR 196; Commissioner of Australian Federal Police v Zhao (2015) 255 CLR 46; X7 v Australian Crime Commission (2013) 248 CLR 92; Ruzehaji and Anor v Commissioner of the Australian Federal Police (2015) 124 SASR 355; Lee v The Queen (2014) 253 CLR 455; Lee v Director of Public Prosecution (Cth) (2009) 75 NSWLR 581; R v Director of Serious Fraud Office; Ex parte Smith [1993] AC 1 at 65; Woolmington v Director of Public Prosecutions [1935] AC 462; R v Independent Broad-Based Anti-Corruption Commissioner (2016) 90 ALJR 433; Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 89 ALJR 622; Sorby v The Commonwealth (1983) 152 CLR 281; Reid v Howard (1995) 184 CLR 1; R v Seller (2013) 232 A Crim R 249; R v OC (2015) 90 NSWLR 134; Hamilton v Oades (1989) 166 CLR 486; Mortimer v Brown (1970) 122 CLR 493; Mansfield v Director of Public Prosecutions (WA) (2006) 226 CLR 486; Knight v FP Special Assets Ltd (1992) 174 CLR 178; Hammond v The Commonwealth (1982) 152 CLR 188; New South Wales Crime Commission v Lee [2012] NSWCA 276; Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 89 ALJR 622; X7 v The Queen (2014) 246 A Crim R 402; R v Catena (No 3) [2013] WASC 97; R v Jacobson (No 4) (2014) 290 FLR 143; Zanon v Western Australia (2016) 50 WAR 1; Barton v The Queen (1980) 147 CLR 75; Jago v District Court (NSW) (1989) 168 CLR 23; Walton v Gardiner (1993) 177 CLR 378, considered.

R v RUZEHAJI (No 2)
[2017] SADC 119

Introduction

1. Following a trial in the District Court of South Australia Amir Ruzehaji (the applicant) and Aram Nasradden were convicted by a jury of drug offences under the Criminal Code Act 1995 (Cth) (the Code) charged on a joint Information filed by the Commonwealth Director of Public Prosecutions (CDPP). The applicant was charged with the drug offences of which he was convicted after he had been compulsorily examined under s 180 of the Proceeds of Crime Act 2002 (Cth) (the POC Act) in relation to matters relevant to the pending charges.

2. Prior to trial, the applicant applied for a permanent stay of the criminal proceedings on the following grounds: (i) the POC Act did not authorise the compulsory examination of a person in respect of charges pending against that person and that by reason of his unlawful examination he had been exposed him to the risk of an unfair trial; (ii) the transcript of the s 180 examination and/or information obtained in the course of the examination had been unlawfully disseminated to members of the Australian Federal Police (AFP) and CDPP lawyers responsible for investigating and prosecuting the charged offences (this contention was abandoned after evidence was given on this issue); and, (iii) even if grounds (i) and (ii) were rejected, the compulsory examination constituted a fundamental departure from the accusatorial nature of the criminal justice process and the applicant’s entitlement to a fair trial according to law.

3. I subsequently delivered an oral ruling rejecting the application. I now provide written reasons for my decision.

   The POC Act

4. To understand the issues raised by the application, and the competing arguments presented by the applicant and the CDPP, it is necessary to refer to the scheme of the POC Act.

   General

5. The principal objects of the POC Act, as set out in s 5, include depriving persons of the proceeds of offences, the instruments of offences and benefits derived from offences against the laws of the Commonwealth; depriving persons of unexplained wealth amounts that the person cannot satisfy a court were not derived from certain offences; punishing and deterring persons from breaching laws of the Commonwealth; preventing the reinvestment of proceeds, instruments and benefits in further criminal activities; to undermine the profitability of criminal enterprises and to provide for confiscation orders and restraining orders.[1]

   [1]    Proceeds of Crime Act2002 (Cth) s 5(g).

6. Section 6 states that the POC Act establishes a scheme by which it seeks to achieve confiscation of the proceeds of crime. The processes of confiscation are set out in Chapter 2 and include restraining orders prohibiting disposal of or dealing with property (Part 2-1), forfeiture orders under which property is forfeited to the Commonwealth (Part 2-2), pecuniary penalty orders requiring payment of amounts based on benefits derived from committing offences (Part 2-4), literary proceeds orders relating to offences (Part 2-5) and unexplained wealth orders requiring payment of unexplained wealth (Part 2-6). The last four mentioned orders are defined as ‘confiscation orders’.[2] Proceedings for restraining orders and confiscation orders are civil in nature.[3]

   [2] Proceeds of Crime Act2002 (Cth) s 338.

   [3]    Proceeds of Crime Act 2002 (Cth) s 315(1) see Commissioner of Australian Federal Police v Zhao (2015) 89 ALJR 331 at [20].

   Restraining orders: Part 2-1

7. Section 17 provides that a court with proceeds jurisdiction[4] must, on the application of a proceeds of crime authority,[5] order that property must not be disposed of, or otherwise dealt with, except in the manner and circumstances specified in the order if a person has been convicted of an indictable offence or charged with an indictable offence or it is proposed that he or she be charged with an indictable offence and, in the case of a person who has not been convicted of an indictable offence, the application is supported by an affidavit of an authorised officer stating that he or she suspects that the ‘suspect’ committed the offence and the court is satisfied that the authorised officer holds the suspicion on reasonable grounds.

   [4]    A court has proceeds jurisdiction if, inter alia, all of the conduct constituting an offence to which the order would relate (a) occurred in a particular State or Territory; or (b) is reasonably suspected of having occurred in that State or Territory: Proceeds of Crime Act 2002 (Cth) s 335(2).

   [5]    Defined to mean the Commissioner of the Australian Federal Police or the Director of Public Prosecution: Proceeds of Crime Act 2002 (Cth) s 338.

8. Section 18 provides that a court with proceeds jurisdiction must, on the application of a proceeds of crime authority, order that property must not be disposed of, or otherwise dealt with, except in the manner and circumstances specified in the order if there are reasonable grounds to suspect that a person has committed a serious offence,[6] and the application is supported by an affidavit of an authorised officer stating that he or she suspects that the person has committed a serious offence and the court is satisfied that the suspicion is held on reasonable grounds.

   [6] Defined to mean, inter alia, an indictable offence punishable by imprisonment for three years or more, involving unlawful conduct constituted by a or relating to a breach of Part 9.1 of the Criminal Code (serious drug offences): Proceeds of Crime Act 2002 (Cth) s 338.

9. Similarly, s 19 provides that a court with proceeds jurisdiction[7] must, on the application of a proceeds of crime authority,[8] order that property must not be disposed of, or otherwise dealt with, except in the manner and circumstances specified in the order if 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’ or (ii) an ‘instrument’ of a serious offence (as those expressions are defined in s 338 of the POC Act) and the application is supported by an affidavit of an authorised officer stating that he or she suspects that the property is either the proceeds of any such offence and the court is satisfied that the suspicion is held on reasonable grounds.

   [7]    A court has proceeds jurisdiction if, inter alia, all of the conduct constituting an offence to which the order would relate (a) occurred in a particular State or Territory; or (b) is reasonably suspected of having occurred in that State or Territory: Proceeds of Crime Act 2002 (Cth) s 335(2).

   [8]    Defined to mean the Commissioner of the Australian Federal Police or the Director of Public Prosecutions: Proceeds of Crime Act 2002 (Cth) s 338.

10. The provisions in Part 2-1, Div 1 further provide that a court with proceeds jurisdiction must, on the application of a proceeds of crime authority, order that property must not be disposed of or otherwise dealt with except in the manner and circumstances specified in the order if there are reasonable grounds to suspect that a person has committed an indictable offence or another specified type of offence and has derived literary proceeds in relation to the offence (s 20); or a person’s total wealth exceeds the value of the persons wealth that was lawfully acquired (s 20A); and, the application is supported by an affidavit of an authorised officer stating that he or she holds the requisite suspicion and the court is satisfied that the suspicion is held on reasonable grounds.

11. The term ‘suspect’ is defined in s 338 to mean in relation to a restraining order (other than a restraining order made under s 20A) or a confiscation order (other than an unexplained wealth order) a person who ‘has been convicted of or has been charged with or is proposed to be charged with or (if the order is a restraining order) is suspected of having committed or (if the order is a confiscation order) committed the offence or offences to which the order relates’. Plainly, the definition of suspect includes a person who is charged with an offence yet to be determined.

    Sworn statements

12. Section 39 permits a court making a restraining order to make ancillary orders. They include directing the ‘suspect’ in relation to the restraining order to give a sworn statement to a specified person at a specified place, within a specified period, setting out all of his or her interests in property and his or her liabilities’(s 39(1)(ca)).

13. Section 39A(1) abolishes the privilege against self-incrimination with regard to such statements by providing that ‘a person is not excused from giving a sworn statement … on the grounds that to do so would tend to incriminate the person or expose the person to a penalty’. It follows that a suspect may be required to give a sworn statement under s 39 though as disclosure of property interests and liabilities may be relevant to pending criminal charges.

14. Section 39A(2), however, stipulates that a sworn statement is not admissible in civil or criminal proceedings against the person who made the statement except in criminal proceedings for giving false or misleading information or in proceedings under the POC Act. In other words, the sub-section provides a person with ‘direct use’ immunity in relation to a statement of affairs given by her or him under s 39. However, it does not expressly prohibit such a statement from being used to discover evidence which is admissible in future civil or criminal proceedings against the person who made the statement. In other words, no express provision is made for ‘derivative use’ immunity.[9]

    [9]    See Lee v New South Wales Crime Commission (2013) 251 CLR 196 at [2] (French CJ).

    Forfeiture orders: Part 2-2

15. A court with proceeds jurisdiction must make an order forfeiting property to the Commonwealth if a proceeds of crime authority applies for the order and a person has been convicted of one or more indictable offences and the court is satisfied that the subject property is the proceeds, or the instrument, of one or more of those offences (s 48).

16. A forfeiture must also be made if:

    · the responsible authority that obtained a s 18 restraining order (that covers the property) applies for the forfeiture order and 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 and the restraining order has been in force for at least six months (s 47); or,

    · the responsible authority that obtained a s 19 restraining order (that covers the property) applies for the forfeiture order and 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 and the restraining order has been in force for at least 6 months (s 49).[10]

    [10] A forfeiture order made under s 47 or s 49 against a person in relation to an offence is not affected if the person, having been charged with an offence, is acquitted, or the person is convicted of the offence and the conviction is subsequently quashed: s 80.

17. A person may resist a forfeiture order made under s 47 or s 49 by obtaining an order revoking the restraining order (s 42). The court may revoke a forfeiture order if satisfied that (a) there are no grounds upon which to make the forfeiture order at the time the application for revocation is made or (b) it is otherwise in the interests of justice to do so. Application may also be made under s 73 to exclude a specified interest in property from a forfeiture order (exclusion order). Such an application may be made at the same time as the application for the forfeiture order or after such an order is made.[11] An exclusion order must be made if the court is satisfied that the applicant’s interest in the property is neither the proceeds of unlawful activity nor an instrument of a serious offence (s 73(1)).

    [11] Commissioner of Australian Federal Police v Zhao (2015) 255 CLR 46 at [28].

18. The POC Act also makes provision for the forfeiture of restrained property, without a forfeiture order, at the end of a defined period following conviction of a person for a serious offence (s 92(1)(b)). Pursuant to s 94, a person who claims an interest in such property may apply to the court for an exclusion order in respect of that interest. The court must make the order if the court is satisfied that the applicant’s interest in the property is neither the proceeds of unlawful activity nor an instrument of unlawful activity and the applicant’s interest in the property was lawfully acquired.

    Examinations Part 3-1

19. Section 180(1) stipulates that where a restraining order is in force the court that made the order, or any other court that could have made the order, may make an order for the examination of any person, including a person who owns or claims an interest in the property that is the subject of the restraining order property or a person named in the restraining order as a suspect. Such an order can only be made on application by the proceeds of crime authority that applied for the restraining order.[12]

    [12]   Proceeds of Crime Act2002 (Cth) s 182 and s 338. Note: s 180A permits the court to which an application for an exclusion order is made to make an order for the examination of the applicant. However, such an application must not be heard until the responsible authority has had a reasonable opportunity to conduct examinations in relation to the application (s 94(6)). Plainly, a person who has criminal charges pending may be an applicant for an exclusion order.

20. Examinations under the POC Act are conducted before persons who are appointed by the Minister under s 183 as ‘approved examiners’.[13] (The examination in the present case took place at the AAT before Senior Member (SM) Bean of the Administrative Appeals Tribunal (the AAT) who was an approved examiner.) The approved examiner may, on application by the responsible authority, give an examination notice to a person who is to be examined.[14] Section 183(3) expressly provides that ‘the fact criminal proceedings have been instituted or have commenced whether or not under the POC Act does not prevent the approved examiner giving the examination notice’.

    [13]   Proceeds of Crime Act2002 (Cth) s 183(5) provides that the Minister may appoint as an approved examiner: (a) a person who holds an office, or is included in a class of people, specified in the regulations; or (b) a person who: (i) is enrolled as a legal practitioner of the High Court, or another Federal Court or of the Supreme Court of a State or Territory; and (ii) has been so enrolled for at least 5 years; and (iii) has indicated to the Minister that the person is willing to be appointed.

    [14]   Proceeds of Crime Act 2002 (Cth) s 183(1).

21. An examination must be conducted at the time and place specified in the examination notice or at a time and place as the approved examiner decides.[15] Section 187 provides that a person may be examined on oath or affirmation by the approved examiner and the responsible authority[16] about her or his ‘affairs’ except in relation to affairs expressly listed in s 187(4). The listed exceptions do not include matters relating to charges pending against the examinee.

    [15] Proceeds of Crime Act2002 (Cth) s 186(1).

    [16] Proceeds of Crime Act2002 (Cth) s 187(1).

22. The definition of ‘affairs’ is defined in s 338 as follows:

    affairs of a person includes, but is not limited to:

    a)   the nature and location of property of the person or property in which the person has an interest; and

    b)   any activities that are, or may be relevant to whether or not the person has engaged in unlawful activity[17] of a kind relevant to the making of an order under this Act.

    [17]   Unlawful activity is defined to mean an act or omission that constitutes an offence against a law of the Commonwealth, State, Territory or foreign country: Proceeds of Crime Act2002 s 338.

23. Pursuant to s 188 the examination must be conducted in private. However, certain persons are entitled to be present at the examination namely, the examiner, the examinee and his or her lawyer, the responsible authority (the Commissioner of the AFP or the DPP) and any person the examiner directs may be present.[18] The examinee’s lawyer may, at such times as the examiner determines, address the approved examiner and examine his client on matters which have been the subject of examination by the examiner or the responsible authority who has examined the person.[19]

    [18] Proceeds of Crime Act 2002 (Cth) s 188(3)(c).

    [19] Proceeds of Crime Act 2002 (Cth) s 189.

24. The examiner may cause a record to be made of the examination and must do so if the examinee or the responsible authority so requests.[20] The examiner is empowered to give directions preventing or restricting the disclosure to the public of matters contained in the answers given, or documents produced, in the course of the examination.[21] In deciding whether to give such a direction, the approved examiner must have regard to the matters set out in s 193(2) which provides:

    [20] Proceeds of Crime Act 2002 (Cth) s 191.

    [21] Proceeds of Crime Act 2002 (Cth) s 193.

    In deciding whether or not to give a direction, the approved examiner is to have regard to:

    (a)    whether:

    (i)an answer that has been or may be given; or

    (ii)a document that has been or may be produced; or

    (iii)a matter that has arisen or may arise;

    during the examination is of a confidential nature or relates to the commission, or to the alleged or suspected commission, of an offence against a law of the Commonwealth or a State or Territory; and

    (b)    any unfair prejudice to a person’s reputation that would be likely to be caused unless the approved examiner gives the direction; and

    (c)    whether giving the direction is in the public interest; and

    (d)    any other relevant matter.

1. The matters identified in s 193(2) which may be subject to a direction do not expressly include matters which may prejudice the fair trial of an examinee. Section 193(2)(c) and (d) may be broad enough to authorise directions that serve to protect an examinee against the use of derivative evidence at her or his trial where the interests of justice so require.[22] However, it is not necessary to express a decided view on this point.

   [22] Compare s 25A(9) of the Australian Crime Commission Act 2002 and the observations made by French CJ and Crennan J in X7v Australian Crime Commission (2013) 248 CLR 92 at [55]-[60].

   Offences Part 3-1 Div 4

2. A person commits an offence if the person fails or refuses to attend an examination at the time and place specified in an examination notice requiring his or her attendance (s 195), or attends the examination and refuses to answer questions or produce documents as required (s 196), or gives an answer or produces a document that is false or misleading (s 197A). However, a person does not commit an offence by refusing to give an answer or produce a document if under a law of the Commonwealth or a law of a State or Territory in which the examination takes place the person could not be compelled to answer the question or produce the document in proceedings before a court (s 197(1)).

3. The exemption contained in s 197(1) is subject to certain qualifications specified in s 197(2). They include the qualification that an offence is committed if the only reason why the person could not be so compelled is that ‘answering the question or producing the document would tend to incriminate the person or to expose the person to a penalty’ (s 197(2)(a)). Accordingly, the privilege against self-incrimination is not a ground upon which a person can refuse to answer questions or produce documents when examined under s 180. Nor can an examinee decline to attend an examination based on interference with his criminal trial.

4. However, an examinee is afforded direct use immunity. Any answer given, or document produced, at an examination is inadmissible in civil or criminal proceedings against her or him, except in limited circumstances including criminal proceedings for giving false or misleading information or in proceedings by virtue of s 198 of the POC Act. The immunity is not expressed to extend to derivative evidence. It can be seen that s 198 is the counterpart of s 39A(2), which applies to sworn statements of affairs.

   Disclosure of information: Part 3-6

5. Disclosure of ‘information’ obtained coercively under the POC Act is governed by s 266A which provides:

   266A  Disclosure

   (1)    This section applies if a person obtains information:

   (a)    as a direct result of:

   (i)the person being given a sworn statement under an order made under paragraph 39(1)(ca), (d) or (da); or

   (ii)the exercise of a power (by the person or someone else), or performance (by the person) of a function, under Part 3-1, 3-2, 3-3, 3-4 or 3-5; or

   (b)    as a result of a disclosure, or a series of disclosures, under this section.

   (2)    The person may disclose the information to an authority described in an item of the following table for a purpose described in that item if:

   (a)The person believes on reasonable grounds that the disclosure will serve that purpose; and

   (b)A court has not made an order prohibiting the disclosure of the information to the authority for that purpose.

6. The table referred to in sub-s (2) relevantly provides:

Recipients and purposes of disclosure
Item	Authority to which disclosure may be made	Purpose for which disclosure may be made
1	Authority with one or more functions under this Act	Facilitating the authority’s performance of its functions under this Act
2	Authority of the Commonwealth , or of a State or Territory, that has a function of investigating or prosecuting offences against a law of the Commonwealth, State or Territory	Assisting in the prevention, investigation or prosecution of an offence against that law that is punishable on conviction by imprisonment for at least 3 years or for life
2A	Not relevant	Not relevant
3	Not relevant	Not relevant

1. Accordingly, information obtained from a sworn statement given pursuant to s 39, or from answers given or documents produced at an examination conducted under s 180, that assists in the prevention, investigation or prosecution of an offence punishable by imprisonment for at least three years may be disclosed, by virtue of item 2, to members of a police force (for example the AFP) or a prosecuting agency (for example the CDPP). However, the balance of s 266A, set out below, places limits on the use that may be made of information lawfully disclosed:

   Limits on use of information disclosed

   (3)In civil or criminal proceedings against a person who gave an answer or produced a document in an examination, none of the following that is disclosed under this section is admissible in evidence against the person:

   (a)     the answer or document;

   (b)     information contained in the answer or document.

   (4)     Subsection (3) does not apply in:

   (a)     criminal proceedings for giving false or misleading information; or

   (b)     proceedings on an application under this Act; or

   (c)     proceedings ancillary to an application under this Act; or

   (d)     proceedings for enforcement of a confiscation order; or

   (e)     civil proceedings for or in respect of a right or liability the document confers or imposes.

   Note: Subsections (3) and (4) reflect section 198.

   (5)In a criminal proceeding against a person who produced or made available a document under a production order, none of the following that is disclosed under this section is admissible in evidence against the person:

   (a)     the document;

   (b)     information contained in the document.

   (6)Subsection (5) does not apply in a proceeding under, or arising out of, section 137.1 or 137.2 of the Criminal Code (false or misleading information or documents) in relation to producing the document or making it available.

   Note: Subsections (5) and (6) reflect subsection 206(2).

   (7)To avoid doubt, this section does not affect the admissibility in evidence of any information, document or thing obtained as an indirect consequence of a disclosure under this section.

   …

2. Section 266A(3), as is the case with s 198, provides for direct use immunity except where an answer or document given or produced at an examination or information contained in the answer or document is tendered in proceedings of the type identified in s 266A(4). None of those exceptions assume any relevance in the present matter.[23] Section 266A(7) makes it plain that derivative evidence obtained as a consequence of information lawfully disclosed under s 266A is admissible in other proceedings.[24] The manifest statutory intention is that police, charged with investigating a criminal offence, and members of the DPP, responsible for the prosecution of the offence, are entitled to have access to compulsorily obtained information to the extent allowed by s 266A and to derivatively use such information against an examinee in criminal proceedings. In other words, it expressly abrogated the principle that the prosecution is required to prove its case without the assistance of an accused person (the companion principle).

   [23] Sections 266A(5) & (6) of the Proceeds of Crime Act 2002 (Cth) relate to ‘production orders’ made by a magistrate under s 202 of the statute Proceeds of Crime Act 2002 (Cth).

   [24] See Ruzehajiand Another v Commissioner of the Australian Federal Police (2015) 124 SASR 355 at [78].

3. This construction accords with the Explanatory Memorandum which accompanied the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2010 (No 3 of 2010) which inserted s 266A in the POC Act. The Explanatory Memorandum stated:

   The Act contains a range of information-gathering powers, including coercive examination, document production, and search and seizure mechanisms. The Act contains no specified limit on the use and sharing of information obtained under the Act. However, judicial decisions have created doubt regarding the extent to which information can be shared. The amendments ensure that information obtained under the regime can be disclosed when that information will assist in the prevention, investigation or prosecution of criminal conduct. It was never the intention of the Act that information obtained in an examination could only be used for the purposes of confiscation proceedings under the Act and could not be shared for any other reason. It is desirable that, if during the course of an examination hearing, information about planned serious criminal activity is uncovered, such information is able to be passed to relevant law enforcement agencies. (my emphasis)

   Power to stay proceedings

4. Section 319(1) of the POC Act vests in a court a discretion to stay proceedings under the POC Act where the interests of justice require. The section expressly provides, however, that a stay cannot be granted ‘on the ground that criminal proceedings have been, are proposed to be or may be instituted or commenced (whether or not under [the POC Act]) against the person subject to POCA proceedings’ (s 319 (2)).

5. The operation of s 319 was considered by the High Court in Commissioner of the Australia Federal Police v Zhao,[25] where proceedings were brought by the Commissioner of the AFP for the forfeiture of property of two respondents under the POC Act, as the proceeds of crime, at a time when the second respondent was charged with aiding and abetting another dealing with the proceeds of crime. The offence and the circumstances relating to it were relevant to the forfeiture proceedings and raised identical issues. The High Court affirmed the decision of the Supreme Court of Victoria that the forfeiture proceedings should be stayed on the basis that there was a real risk of prejudice to the criminal proceedings because the second respondent could not defend the forfeiture proceedings without disclosing his likely defence ahead of his criminal trial.[26]

   [25] Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46.

   [26] Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46 at [47].

6. The High Court held that the POC Act contemplates that restraining orders and forfeiture orders may be made irrespective of whether a person has been charged with an offence connected with forfeiture proceedings and that it ‘follows that the fact that criminal proceedings have been brought may generally be considered not to be an impediment to the continuation of the forfeiture proceedings’.[27]

   [27] Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46 at [34].

7. The High Court found that the POC Act does not affect the inherent power of a court to stay proceedings where the interests of justice so require and that s 319 reflected that power. The court observed that a stay will not be granted ‘merely because related charges have been brought against a person and criminal charges are pending’.[28] In order to obtain a stay, ‘it must be apparent that the person whose property is in question is at risk of prejudice in the conduct of his or her defence in the criminal trial’.[29] However, it was not necessary for the second respondent in that case to ‘state the specific matters of prejudice’ because ‘to do so would make the risk of prejudice a reality by requiring him to reveal information about his defence, the very situation which an order for a stay seeks to avoid’.[30]

   [28] Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46 at [35].

   [29] Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46 at [35].

   [30] Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46 at [43].

8. The Court made the following observation about an argument advanced by the Commissioner:[31]

   During the course of argument, at a point when the power given by s 266A of the POC Act to disclose to a prosecutor evidence obtained by compulsion was mentioned, the Commissioner was at pains to reassure the Court that he does not contend that s 266A provides a licence to communicate information obtained in the civil proceedings to the prosecuting authorities. The Commissioner emphasised that the Proceeds of Crime Litigation section is not regarded as an arm of the prosecution, which appears to have been the perception of the New South Wales Crime Commission in Lee No 2.

   Regardless of the conduct in Lee No 2, it would not be correct to approach a matter such as this on the basis that a wrong would be committed. However, s 266A would not render the provision of the second respondent's evidence to the prosecution unlawful. Even if it could not be used as evidence against him, its possession by the prosecution might affect his defence. The Court of Appeal's view, that protective orders would not suffice to remove the risk of prejudice to the second respondent's defence, is clearly correct.

   [31] Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46 at [45]-[46].

9. With respect to the operation of s 266A the High Court, in the passage quoted above, acknowledged that the section gave power to ‘disclose to a prosecutor evidence obtained by compulsion’. However, in the circumstances of the case before the Court it was necessary to stay the POC Act proceedings because protective orders would not be sufficient to obviate the risk of prejudice generated by the prosecution knowing the respondent’s defence.

   Factual background

   Investigations

10. During 2012 the applicant and Mr Nasradden were the subject of a drug investigation conducted by a team of AFP federal agents (the criminal investigation team). Federal Agent (FA) Lek Thannissorn was designated ‘case officer’ for the investigation.

11. At least by late 2012 the applicant was the subject of a parallel investigation under the POC Act by the AFP Criminal Assets Confiscation Taskforce (CACT). CACT is separate from the sections within the AFP responsible for the investigation of criminal matters. CACT has two functions: the Proceeds of Crime Litigation function (POCL) which is responsible for commencing and conducting POC Act litigation; and, the investigative function responsible for investigating matters relevant to POC Act litigation. Such investigations are required to be undertaken separately from any criminal investigation. FA Milligan who was a member of the investigative arm of CACT was appointed case officer for the POC Act proceedings brought against the applicant and REPL.

    POC Act proceedings commence

12. On 26 November 2012 the Commissioner of the AFP, as the Informant, instituted proceedings under s 26 of the POC Act in the civil jurisdiction of the District Court of South Australia against the applicant and Ruzehaji Enterprises Pty Ltd (REPL)[32] by way of a specially returnable summons and an interlocutory application with supporting affidavits. The summons sought consideration of the application without notice being given to any person pursuant to s 26(4) of the POC Act and the application sought orders (i) restraining the applicant and REPL from dealing in various items of real and personal property pursuant to s18 of the POC Act (ii) requiring the applicant give to a person nominated in writing by the Commissioner, within 21 days of being served with the order, a statement sworn on oath setting out all interests in property, and liabilities of himself and REPL, under s 39 of the POC Act and (iii) requiring the applicant to be examined about his affairs and the affairs of REPL, pursuant to s 180 of the POC Act.

    [32] The applicant was the sole director, secretary and shareholder of REPL.

13. Affidavits from FA Shaun Milligan and Mr Paul d’Assumpcao, a POCL solicitor, were filed in support of the application. A FA Milligan deposed that he had received information from FA Thanissorn which caused him to suspect that the applicant had committed offences against the Code of trafficking in methylamphetamine and set out the grounds of his suspicion. He further deposed that the applicant would be charged with the offences, or similar offences, in due course. Mr d’Assumpcao deposed that the application should be heard urgently.

14. On 28 November 2012, the Commissioner’s application was heard ex parte by Judge Muecke (as he then was) who made the orders sought by the Commissioner, including an order that the applicant provide to FA Milligan a sworn statement of his affairs, under s 39 of the POC Act, by 31 January 2017. The Judge fixed a return date of 19 December 2012.

15. On 13 December 2012 the Commissioner served on the applicant the orders made by Judge Muecke.

    Applicant arrested 

16. On 19 December 2012 the POC Act proceedings were adjourned by Judge Muecke pursuant to an application made by Mr M. Dadds, the applicant’s then solicitor. Later that same day, the applicant was arrested by AFP officers in relation to the drug offences and bailed to appear in the Adelaide Magistrates Court.

    POC Act proceedings continue

17. On 11 January 2013 an examination notice was served on the applicant requiring him to attend for an examination under s 180 of the POC Act on 25 March 2013 at the Administrative Appeals Tribunal (AAT) in Adelaide.

18. On 14 January 2013 Mr E. Greaves, a POCL solicitor sent an email to Mr Dadds confirming the above orders. He further advised Mr Dadds of the scope of the proposed examination in the following terms:

    a. I confirm we will require this examination to proceed, as the topics upon which your client may be examined (his and his company’s affairs) is far broader than the topics to be covered by the s 39 statement (property interests and liabilities).

    b. That I drew your attention to s 266A of the Proceeds of Crime Act 2002, which provides that we may disclose examination material to criminal investigators. I confirm told you that it was not my ordinary practice to do so, and that the recent NSW case of R v Seller & McCarthy would raise significant issues about any proposal to disclose such material. I confirm I am not in a position to undertake not to disclose examination material.

    c.   I confirm I told you that the purpose of the examination is to secure material relevant to forfeiture, and that accordingly I would accept that a matter not relevant to forfeiture would not be an appropriate topic for examination.

19. On 17 January 2013 an information was filed in the Adelaide Magistrates Court by the CDPP charging the applicant with the following offences against the Code: trafficking a commercial quantity of a controlled drug (methylamphetamine);[33] trafficking a marketable quantity of a border controlled drug (cocaine);[34] and, pre-trafficking a commercial quantity of a controlled precursor (pseudoephedrine),[35] each of which attracts a maximum term of imprisonment of more than three years.

    [33] Criminal Code Act 1995 (Cth) s 302.2.

    [34] Criminal Code Act 1995 (Cth) s 302.3.

    [35] Criminal Code Act 1995 (Cth) s 306.2.

20. On 5 February 2013 the applicant provided FA Milligan with a sworn statement under s 39 of the POC Act setting out all interests in property and liabilities of himself and REPL.

    The examination

21. On 25 March 2013 the applicant was examined at the AAT in Adelaide before SM Bean. The applicant was represented at the examination by Mr D. Edwardson QC and his solicitor, Mr Dadds. Mr E. Greaves appeared for the Commissioner. FA Milligan was present for the examination.

22. Immediately prior to the commencement of the examination, Mr Edwardson QC asked Mr Greaves to explain to him the purpose of the examination, and whether the applicant would be questioned about matters relevant to the pending criminal charges. Mr Greaves informed Mr Edwardson QC that he would be asking such questions.[36]

    [36] Affidavit of Edward Greaves sworn on 22 February 2016 at [21].

23. Upon commencement of the proceedings, Mr Edwardson QC informed SM Bean that he was concerned that FA Milligan was present for the examination and that he might divulge answers given by the applicant to the criminal investigation team. Mr Greaves explained to SM Bean that FA Milligan was the case officer for the POC Act proceedings and that he required FA Milligan’s assistance. At that point Mr Edwardson QC conceded that the examination should proceed with FA Milligan present but suggested that if disclosure of the applicant’s answers to persons, other than those with conduct of the POC Act proceedings, was considered necessary, at some later stage, then the matter could come back on before SM Bean for argument. Mr Edwardson QC further suggested that SM Bean could exercise her power under s 193(3) of the POC Act to prevent disclosure to ‘third parties’.

1. Mr Greaves objected to the proposed order because the power to restrict disclosure under s 193 was subject to s 266A which permitted disclosure of information obtained in the course of an examination to an investigative authority and further permitted derivative use of such information. For those reasons, Mr Greaves expressly declined to give an undertaking that disclosure would not occur but added that it had never been his practice to disclose to a criminal investigator information obtained in the course of an examination conducted under s 180.

2. Following counsels’ submissions, SM Bean gave the following direction under s 193:

   I will direct, pursuant to subsections 193(1), that any matter contained in any answers given in the course of this examination and the official transcript of the examination shall not be disclosed to any member of the public with the exception of the legal representatives of the Commissioner of the Australian Federal Police, staff of the Australian Federal Police, the legal representatives of the examinee, staff of the Official Trustee in Bankruptcy performing functions under the Act in relation to this matter for the purpose of performing those functions, staff of the Administrative Appeals Tribunal, staff of Merrill Corporation, and persons who are engaged by an authority as that term is used in section 266A(2) of the Proceeds of Crime Act, where information has been disclosed to that authority pursuant to section 266A of the Act, and those persons are or will perform functions provided for in section 266A(2) of the Act for the purpose of performing those functions.

3. The applicant was then examined by Mr Greaves. The examination focussed substantially on matters unrelated to the pending criminal charges. However, towards the end of the examination, Mr Greaves announced that he intended to ask questions relevant to the charges, and proceeded to do so. The applicant answered the questions and was then briefly examined by his solicitor.

4. Following completion of the applicant’s questioning, SM Bean gave a direction that a transcript of the applicant’s examination be produced pursuant to a request by the Commissioner under s 191(1)(b) of the POC Act, and that a copy of the transcript be provided to the applicant, pursuant to a request made by his solicitor under s 191(2)(b). The proceedings were then adjourned.

   Subsequent proceedings

5. On 26 June 2013 a fresh Information was filed in the Adelaide Magistrates Courts by the CDPP against the applicant. The Information contained the drug charges set out in the Information filed on 17 January 2013 and a further count charging the applicant with dealing in the proceeds of crime.[37]

   [37] Criminal Code Act 1995 (Cth) s 400.5(1).

6. On 2 September 2013 the Commissioner filed in the District Court an interlocutory application for examination orders of six persons under s 180 of the POC Act about the affairs of the applicant and REPL and, in respect of two of them, about their own affairs.

7. On 9 September 2013 a further examination notice was served on the applicant in relation to the extant order made by Judge Muecke on 28 November 2012.

8. On 19 September 2013 the applicant filed an interlocutory application in the District Court seeking nunc pro tunc discharge of the examination made on 28 November 2012 and a stay of the proceedings.

9. On 20 September 2013 the applications, referred to in [2 Sep] and [19 Sep] above, came on for hearing in the District Court before Judge Muscat who stayed the further examination of the applicant, and the examination of the other two persons, pending full argument on 6 November 2013 in respect of both applications.

10. On 14 October 2013 the applicant and REPL filed a notice of appeal in the Supreme Court of South Australia against the orders made by Judge Muecke on 28 November 2012.

11. On 28 October 2013 an application to adjourn the hearing of the argument set down for 6 November 2013 was refused by Chief Judge Muecke (as he had then become). Pursuant to a request by the Commissioner, the Chief Judge stated that he would provide reasons for the orders he had made on 28 November 2012.

12. On 5 November 2013 the applicant applied to a judge of the Supreme Court for interlocutory orders (i) restraining the Chief Judge from providing reasons for the orders made on 28 November 2012 and (ii) adjourning the hearing on 6 November 2013 pending the outcome of the applicant’s earlier filed appeal. The applications were dismissed and an order was made consolidating the appeals.

13. On 6 November 2013 the Chief Judge heard submissions on the Commissioner’s application of 2 September 2013 and on the application for interlocutory orders filed by the applicant on 19 September 2013.

14. On 24 April 2014 Chief Judge delivered rulings wherein he refused to set aside the s 180 examination order made in relation to the applicant on 28 November 2012 or to stay the POC Act proceedings against the applicant in the District Court. He granted the Commissioner’s application for the other six persons to be examined about the applicant’s affairs.

    Supreme Court appeal.

15. The applicant’s appeal came on for hearing in the Full Court of the Supreme Court (SA) on 7 and 8 May 2014. Pursuant to an application made by the Commissioner, and with the applicant’s concurrence, completion of the hearing was adjourned until the High Court delivered its decision in Zhao.[38] On 10 December 2015 the Full Court delivered its decision: Ruzehaji and Another v Commissioner of the Australian Federal Police.[39]

    [38] Commissioner of the Australia Federal Police v Zhao (2015) 255 CLR 46, judgment delivered on 12 February 2015.

    [39] Ruzehaji and Another v Commissioner of the Australian Federal Police (2015) 124 SASR 355.

16. On the hearing of the appeal the applicant contended, among other things, that the orders made by the Chief Judge on 28 November 2012 should be set aside on the grounds that the judge erred in proceeding on an ex parte basis; that the Commissioner had failed to make proper disclosure on the ex parte application; that the Chief Judge failed to accord procedural fairness to the applicant and REPL; and, failed to provide reasons for his decision at the time.

17. Gray J (Peek and Nicholson JJ agreeing) dismissed these grounds on the basis that the applicant and REPL had acquiesced and complied with the orders under challenge, there having been no application to set aside any of the orders made by the judge or for a stay of the POC Act proceedings until 19 September 2013. The acquiescence and compliance included the applicant’s provision of a sworn statement and his examination under ss 39 and 180 of the POC Act, respectively.[40] (As will be seen this acquiescence and compliance is relevant to the applicant’s contention that the criminal proceedings ought to be stayed.) The applicant further contended that the provisions of the POC Act relating to examination orders were unconstitutional because the requirement to attend for an s 180 examination and the possible provision of the transcript of the examination to members of the AFP was offensive to Chapter III of the Constitution in that it infringed the privilege against self-incrimination.

    [40] Ruzehaji and Another v Commissioner of the Australian Federal Police (2015) 124 SASR 355 at [4], [73]-[76].

18. Gray J found that the POC Act authorises a court to order the compulsory examination of a person charged with an offence, which examination covers the circumstances of the offence pursuant to ss 183(3), 186(3) and 319; that s 197(2)(a) of the POC Act, as qualified by s 198, abrogates the privilege against self-incrimination; and, that s 266A of the POC Act denies an examinee any derivative use immunity.[41] He concluded that these features of the statute did not render it unconstitutional.[42]

    [41] Ruzehaji and Another v Commissioner of the Australian Federal Police (2015) 124 SASR 355 at [78].

    [42] Ruzehaji and Another v Commissioner of the Australian Federal Police (2015) 124 SASR 355 at [84].

19. Gray J considered that the principal and substantive issue to be determined on the appeal was whether further examination should be stayed pending the final determination of the pending criminal charges. His Honour reviewed decisions of the High Court, including X7 v Australian Crime Commission,[43] Zhao,[44] Lee v The New South Wales Crime Commission,[45] (Lee No 1) and Lee v The Queen[46] (Lee No 2), dealing with the impact of compulsory examination on a defendant’s right to a fair trial. Gray J concluded that:[47]

    These authorities and the above analysis confirm to my mind that there was nothing inappropriate about the making of the examination order and the provision of the examination notices in the within proceeding, notwithstanding the criminal charges laid against Mr Ruzehaji. However, the decision in Zhao confirms that the inherent jurisdiction of the court to grant a stay remains and that, properly understood, section 319 is not inconsistent with this jurisdiction.

    [43] X7 v Australian Crime Commission (2013) 248 CLR 92.

    [44] Commissioner of the Australia Federal Police v Zhao (2015) 255 CLR 46.

    [45] Lee v The New South Wales CrimeCommission (2013) 251 CLR 196.

    [46] Lee v The Queen (2014) 253 CLR 455.

    [47] Ruzehaji and Another v Commissioner of the Australian Federal Police (2015) 124 SASR 355 at [91].

20. Gray J then went onto consider whether there should be a stay of the further examination and concluded that the applicant had failed to establish grounds warranting a stay. He said:[48]

    It is against this background that I come to consider whether there should be a stay of the further examination on the ground of prejudice to Mr Ruzehaji. As discussed above, more is required than the mere existence of criminal proceedings. Mr Ruzehaji merely asserts in his affidavit that he “anticipates” that he will be required to address matters “directly relevant” to the criminal charges. This does not meet the burden which he must discharge.[49] Mr Ruzehaji has failed to demonstrate any specific prejudice. His evidence is to be contrasted with the evidence relied on in Zhao, which stated the type of evidence the individual would be required to give and how it was directly relevant to the criminal proceedings. Importantly, in the present proceeding there is an undertaking that the examination will not address the subject matter of the criminal charges. The defendants’ submissions infer that Mr Ruzehaji would suffer prejudice if examined. This is not evidence of prejudice but speculation which has no evidentiary basis and ignores the undertaking which has been provided to the Court. There is no evidence Mr Ruzehaji will suffer prejudice if other persons are examined. His assertions in respect of self-incrimination have no application to examinations of other persons. As a consequence, the risk of prejudice to Mr Ruzehaji is not “plain” or “real”.

    [48] Ruzehaji and Another v Commissioner of the Australian Federal Police (2015) 124 SASR 355 at [92].

    [49] Lee v Director of Public Prosecutions (Cth) (2009) 75 NSWLR 581 at [40].

    Criminal proceedings in the District Court

21. Following the applicant’s committal for trial, he was arraigned in the District Court on 4 August 2014 on an information filed by the CDPP and pleaded not guilty to charges of trafficking a commercial quantity of a controlled drug (methylamphetamine)[50] trafficking a marketable quantity of a border controlled drug (cocaine)[51] pre-trafficking a marketable quantity of a controlled precursor (pseudoephedrine)[52] and dealing with the proceeds of crime.[53]

    [50] Criminal Code 1995 (Cth) s 302.2.

    [51] Criminal Code 1995 (Cth) s 302.3.

    [52] Criminal Code 1995 (Cth) s 306.2.

    [53] Criminal Code 1995 (Cth) s 400.5(1).

22. The co-accused Aram Nasradden was separately committed for trial on the drug charges at a later date. The CDPP subsequently filed a single information in the District Court jointly charging the applicant and the co-accused with the drug offences and the applicant, alone, with the offence of dealing with the proceeds of crime.

23. The applicant and the co-accused were tried together before Judge Barrett sitting with a jury in September 2017. Neither of them gave evidence at the trial. On 19 September 2017 the jury returned guilty verdicts against both the applicant and the co-accused on all of the drug charges. Prior to trial the charge of dealing with the proceeds of crime, preferred against the applicant, was severed by order of Judge Barrett to be tried separately at a later date.

    Stay proceedings

    Commencement

24. On 17 June 2015 the applicant filed an application for directions seeking a permanent stay of the criminal proceedings brought against him by the CDPP.

25. On 21 August 2015 the applicant caused two subpoenas to be issued out of the District Court requiring the CDPP and the Commissioner to each produce a substantial number of documents said to be relevant to the stay application, in particular the applicant’s contention that information derived from his examination under s 180 of the POC Act had been unlawfully disseminated to the criminal investigation team and members of the CDPP responsible for prosecuting him. The Commissioner and the CDPP opposed production of many of the documents on grounds of irrelevance, Public Interest Immunity and Legal Professional Privilege.

26. The arguments concerning production of the subpoenaed material came on for hearing before me on 23 February 2016. Mr Edwardson QC and Mr Handshin of counsel appeared for the defendant, and Ms Maharaj QC for the AFP and CDPP. The hearing was protracted and the subject of several adjournments. In the course of the proceedings, the applicant abandoned his call for certain documents and the AFP and CDPP voluntarily produced other documents that fell within the scope of the subpoenas.

27. On 17 August 2016 I ruled that certain documents that remained in dispute were to be produced to the applicant. The AFP and CDPP complied with those rulings.

    Stay hearing

28. The hearing of the stay application commenced on 29 August 2016 and concluded the following day. Mr J. Rapke QC and Mr A. Buckland appeared for the CDPP and Mr Edwardson QC and Mr Handshin appeared for the applicant. Upon the commencement of the hearing, the applicant tendered a closed affidavit and an open affidavit from his solicitor, Harry Patsouris, both sworn on 6 August 2015.[54] The transcript of the applicant’s s 180 examination was exhibited to Mr Patsouris’ closed affidavit. The prosecution tendered a number of affidavits from members of the criminal investigation team and CACT.

    [54] Exhibits D1and D2.

29. At the request of the applicant, the prosecution called six of the affidavit deponents to give evidence, namely: Mr E. Greaves (examined the applicant before SM Bean on 25 March 2013); Ms T. Finnigan (POCL solicitor - assisted Mr Greaves in the POC Act proceedings against the applicant); FA S. Milligan (member of CACT and case officer for the POC Act proceedings against the applicant); FA L. Thanissorn (case officer for the criminal investigation team); and, FA S. Warwick and FA T. Tsvalas (members of the criminal investigation team).

30. The witnesses were examined and cross-examined in relation to the applicant’s allegation that there had been, or may have been, an unlawful dissemination of information obtained during the applicant’s s 180 examination to members of the criminal investigation team or members of the CDPP responsible for prosecuting the pending criminal charges. Mr Greaves was further examined and cross-examined about his reasons for questioning the applicant about matters relevant to the criminal charges. I will set out his reasons later. Following completion of the evidence, oral submissions were made Mr Edwardson QC and Mr Rapke QC in relation to the stay application. Their submissions were supplemented by written submissions that had been filed earlier by the applicant[55] and the prosecution.[56]

    [55] ‘Outline of Submissions’ from the applicant’s solicitor Mr H. Patsouris undated but filed on 30 July 2015; ‘Defendant’s Supplementary Submissions - Stay Application’ prepared by J. Edwardson QC and K. Handshin dated 25 August 2016.

    [56] ‘Outline of Submissions’ prepared by J. Rapke QC and A. Buckland dated 4 August 2015; ‘Supplementary Submissions of the Crown’ prepared by J. Rapke QC and A. Buckland dated 23 August 2016.

    Grounds for stay

31. The grounds upon which the applicant sought a stay of the criminal proceedings at the commencement of the hearing are summarised in the ‘Defendant’s Supplementary Submissions’ at [1]:

    1.   [S]ummary of the three central planks of the defendant’s application.

    1.1A review of the POC Act as a whole, with particular attention devoted to the objectives of the legislative scheme and the salient terms of s 180, demonstrate that a s 180 examination cannot be used for the purpose of extracting information relevant to pending criminal charges … Section 180 does not expressly authorise an examination of this kind and the language deployed by the legislature lacks the clarity to sustain the conclusion that s 180 permits such a course as a matter of necessary intendment.

    1.2In the event s 180 is used for such a purpose, the dissemination of any such information is not authorised by s 266A… Further, the existence of a power to disseminate compulsorily obtained information does not mean that the effects of dissemination on the fairness of a subsequent criminal trial can be quarantined. If dissemination authorised by s 266A occurs for an improper purpose or in relation to information which should not have been compulsorily acquired in the first place, exacting questions concerning the fairness of a subsequent criminal trial will necessarily arise. This is one principle which should be taken from the High Court’s decision in Lee v The Queen (2014) 88 ALJR 656 (Lee No 2).

    1.3Even if a compulsory examination has been validly conducted and coercive material lawfully disseminated, the issue nonetheless remains whether the circumstances in which the defendant is called to answer criminal allegations, expose him to the risk of an unfair trial. Irrespective of whether either of the first two contentions are correct, the fairness of the defendant’s trial has been irremediably eroded because he was subjected to a compulsory examination on matters germane to his defence of serious criminal charges. The use of s 180 to force a defendant to answer questions relating to extant criminal charges, which results in the acquisition by the prosecuting or investigating authorities, of information pertaining to a defendant’s defence of criminal charges produces a fundamental departure from the common law’s requirements of a fair trial.

32. In the course of Mr Edwardson’s QC final submissions it became apparent that the applicant’s argument in relation to [1.1] is twofold: first, it is contended that the POC Act did not authorise the examination of an accused person under s 180 about matters relevant to criminal proceedings against him; and, secondly, even if it did, the applicant’s examination went beyond the scope of the power provided by s 180 because the questioning was in fact irrelevant to the POC Act proceedings. (I will refer to these two limbs of the argument as [1.1A] and [1.1B], respectively.)

    Consideration of issues

    [1.1]A: Can an examinee be questioned under s 180 of the POC Act about the subject matter of a criminal charge pending against her or him?

    Fundamental principles.

33. The first issue is one of statutory construction involving an application of the ‘legality principle’. The Australian criminal justice process is accusatorial in nature. The core features of that process are the right to silence; the privilege against self-incrimination (encompassed in the right to silence);[57] the principle that the onus of proof of a criminal charge rests on the prosecution (the onus principle);[58] and, the ‘companion’ to the onus principle, namely, that an accused person cannot be required to testify to the commission of an offence so as to assist the prosecution to make its case (the companion principle).[59] The privilege against self-incrimination permits the refusal to answer questions regardless of whether the evidence is admissible against the witness as testimonial evidence.[60] Furthermore, it extends to both direct and derivative use of evidence.[61]

    [57] R v Director of Serious Fraud Office; Ex parte Smith [1993] AC 1 at 65 (Lord Mustil).

    [58] Woolmington v Director of Public Prosecutions [1935] AC 462 at 481.

    [59] X7 v Australian Crime Commission (2013) 248 CLR 92 at [159] Kiefel J; R v Independent Broad-Based Anti-Corruption Commissioner (2016) 90 ALJR 433 at [42] (per the Court); Construction, Forestry, Mining and Energy Union v Boral Resources (Vic) Pty Ltd (2015) 89 ALJR 622 at [36]-[37] (French CJ Kiefel, Bell, Gageler and Keane JJ ).

    [60] Sorby v The Commonwealth (1983) 152 CLR 281 at 290-292 per Gibbs CJ); X7 v Australian Crime Commission (2013) 248 CLR 92 at [104].

    [61] Reid v Howard (1995) 184 CLR 1 at 6.

1. These fundamental features of the accusatorial process apply across all stages of the criminal justice process, including the right of persons suspected of crimes and the rights of persons between charges being laid and the commencement of a trial.[62] In other words, the accusatorial nature of the criminal justice system involves not only the trial itself, but also extends to pre-trial inquiries and investigations.[63]

   [62] X7 v Australian Crime Commission (2013) 248 CLR 92 at [46] (French CJ and Brennan J), [99]-[101] (Hayne and Bell JJ, [160] (Kiefel J); Lee v The Queen at [32] (French CJ, Crennan, Kiefel, Bell and Keane JJ). The companion principle, however, is not engaged where a person the subject of a statutory compulsory examination is not charged with any criminal offence about which he is questioned: R v Independent Broad-Based Anti-Corruption Commissioner (2016) 90 ALJR 433.

   [63] X7 v Australian Crime Commission (2013) 248 CLR 92 at [160] (Kiefel J).

2. Pursuant to the principle of legality, statutory provisions are not to be construed as abrogating important common law rights, such as the privilege against self-incrimination and the companion principle, in the absence of clear words or necessary implication. An intention on the part of the legislature to displace or curtail such rights must be expressed with irresistible clearness.[64] However, subject to constitutional limits, where a parliament has decided to enact a law which abrogates such a right or freedom, its decision must be respected.[65]

   [64] X7 v Australian Crime Commission (2013) 248 CLR 92 at [24] (French CJ and Crennan J); [86] (Hayne and Bell JJ); [157]-[158] (Kiefel J); R v Independent Broad-Based Anti-Corruption Commissioner (2016) 90 ALJR 433 at [40].

   [65] Lee v New South Wales Crime Commission (2013) 251 CLR 196 at [3] (French CJ).

   Overview of parties’ submissions 

3. Mr Edwardson QC submitted that the applicant’s compulsory examination on matters relevant to the pending drug charges constituted a marked departure from the accusatorial system of justice. He submitted that the provisions in the POC Act relating to compulsory examinations did not expressly, or by necessary implication, authorise the compulsory examination of an accused person in respect of charges pending against her or him. Accordingly, the applicant’s examination was unlawful. Mr Rapke QC agreed that the compulsory examination of an accused person in relation to pending charges impacted on the accusatorial process of justice but contended that the provisions in the POC Act indicated, with irresistible clearness, that the legislature intended that persons the subject of criminal charges could be compulsorily examined under s 180 in respect of those charges.

4. The parties’ submissions canvassed recent High Court decisions dealing with the application of statutory compulsory examinations to persons charged with a criminal offence. The principal cases to which the parties referred were X7 v Australian Crime Commission (X7 No 1),[66] Lee v New South Wales Crime Commission[67] (Lee No 1) and Lee v The Queen (Lee (No 2)).[68] (The decision in Zhao which I have already discussed confirmed salient general features of the POC Act but did not address the present issue. Reference was also made to several decisions of interstate Courts of Appeal including R v Seller,[69] X7 v The Queen (X7 (No 2),[70] and R v OC.[71] Before canvassing these authorities it is convenient that I state my conclusion in relation to [1.1A].

   [66] X7 v Australian Crime Commission (2013) 248 CLR 92.

   [67] Lee v New South Wales Crime Commission (2013) 251 CLR 196.

   [68] Lee v The Queen (2014) 253 CLR 455.

   [69] R v Seller (2013) 232 A Crim R 249.

   [70] X7 v The Queen (2014) 246 A Crim R 402.

   [71] R v OC (2015) 90 NSWLR 134.

   Proper construction 

5. I reject the applicant’s argument. In my view the POC Act clearly evinces an intention to abrogate the privilege against self-incrimination and the companion principle in relation to examinations conducted under s 180. Put another way, it authorises the compulsory examination of a person charged with an offence about the subject matter of the charged offence where such examination is relevant to POC Act proceedings.

6. The POC Act establishes a scheme for confiscation orders and restraining orders (s 6) for the principal purpose of depriving persons of the proceeds of criminal activity (s 5). The statute expressly provides (i) that the mere fact that criminal proceedings have been instituted against a person does not prevent the approved examiner giving the person an examination notice (s 183(3)) and (ii) that the ‘affairs’ about which a person may be examined include any ‘unlawful activity’ relevant to the making of an order under the POC Act (s 186(2) and s 338). The legitimacy of examining an accused person about matters relevant to extant charges is reinforced by the following additional features of the POC Act: the abrogation of direct use immunity (s 197(2)(a)) and derivative use immunity (s 266A); and the requirement that proceedings under the POC Act a court cannot be stayed merely because criminal proceedings have been instituted or commenced against the examinee (s 319(2)).[72]

   [72] See Lee v New South Wales Crime Commission (2013) 251 CLR 196 at [7] (French CJ).

7. Furthermore, as the High Court stated in Zhao, the statute clearly contemplates that restraining orders and forfeiture orders may be made against a person regardless of whether that person is facing criminal charges. The power to restrain property includes circumstances where a person is reasonably suspected of having committed a serious offence (s 18) and where property is reasonably suspected of being the proceeds of an indictable offence or the instrument of a serious offence (s 19). Such restraining orders may be revoked upon application under s 42 if the court considers, among other things, that there are no grounds upon which to make the forfeiture order at the time the application for revocation is made. A person may also apply for an exclusion order under s 73 which must be granted if the court is satisfied that the applicant’s interest in the property is neither the proceeds of unlawful activity nor an instrument of a serious offence.

8. Plainly where an examinee is subject to a restraining order based on a suspicion that he or she has committed a serious offence or has property suspected of being the proceeds of such an offence information about the offence will be relevant to any application an examinee might make for revocation of a forfeiture order (s 42) or an exclusion order (s 73). In accordance with the objects and scheme of the legislation it is relevant to examine a person under s180 for the purpose of extracting information about any offence or suspected offence which forms the basis of the POC Act proceedings. To construe the legislation in the manner contended for by the applicant would serve to frustrate the objects of identifying and recovering property sourced from crime.

   High Court decisions 

9. In X7[73] the plaintiff was arrested and charged with drug trafficking offences under the Criminal Code (Cth). Before the plaintiff was due to stand trial, he was summonsed to appear and give evidence at an examination conducted under the Australian Crimes Commission Act 2002 (Cth) (ACC Act). He initially answered questions put to him by the examiner but following an adjournment of the proceedings refused to answer any further questions. He was informed by the examiner that he would be charged with failing to answer a question that he was required to answer. The examiner gave a direction pursuant to s 25A(9) of the ACC Act restricting publication of the plaintiff’s evidence and prohibiting the provision of his evidence to officers of the CDPP and police officers associated with prosecution of the charged offences.

   [73] X7 v Australian Crime Commission (2013) 248 CLR 92.

10. The plaintiff commenced proceedings in the High Court’s original jurisdiction seeking certain orders including a declaration that the ACC Act did not authorise an examiner appointed under the Act to require a person charged with a Commonwealth indictable offence to answer questions about the subject matter of a charged offence. In a 3:2 decision delivered in June 2013 the High Court upheld the plaintiff’s argument and made the declaration sought.

11. At the time the ACC Act empowered the Australian Crimes Commission (the Commission) to gather and disseminate criminal information and intelligence. The statute provided for the compulsory examination of persons for the purpose of special ACC operations or investigations (ss 24AA-36). A person appearing at an examination was obliged to answer a question that he or she was required to answer and it was made an offence for a person to refuse or fail to answer such a question (s 30(2)(6)). The ACC Act provided that no answer given at an examination was admissible in subsequent criminal proceedings instituted against the examinee (direct use immunity) if the examinee had claimed prior to giving the answer that it might incriminate him or her (s 30(4)(c) and (5)) but did not expressly provide for indirect or derivative use immunity in relation to information compulsorily obtained. The examiner was empowered to give a direction preventing or limiting the publication of evidence given by an examinee (s 25A(9)) and was obliged to give such a direction if ‘the failure to do so might prejudice the safety or reputation of a person or prejudice the fair trial of a person’(s 25A(9)). It was accepted that this protective provision was wide enough to prevent the derivative use of answers given at an examination in any subsequent prosecution of the examinee for a criminal offence (other than for an offence under the ACC Act).[74] Pursuant to s 25A(11) the CEO could vary or revoke a direction given under s 25A(9) but not if the variation or revocation ‘might … prejudice the fair trial of a person who has been charged with an offence’.

    [74] X7 v Australian Crime Commission (2013) 248 CLR 92 at [55] (French CJ and Crennan J) and at [81] (Hayne and Bell JJ).

12. All of the members of the High Court agreed that the issue was one of statutory construction which engaged the legality principle. The majority of the High Court (Hayne and Bell JJ, with whom Kiefel J agreed; French CJ and Crennan J dissenting) held that the powers of compulsory examination given to the ACC should not to be construed, as a matter of necessary intendment, as applying to persons charged with offences the subject of examination.

13. Hayne and Bell JJ held that permitting the Executive to require a person to answer questions about the subject matter of a pending charge would alter the process of criminal justice to a marked degree whether or not the answers given by the person were admissible at trial or kept secret from those investigating or prosecuting the charged offences.[75] Their Honours said:[76]

    Requiring the accused to answer questions about the subject matter of a pending charge prejudices the accused in his or her defence of the pending charge (whatever answer is given). Even if the answer cannot be used in any way at the trial, any admission made in the examination will hinder, even prevent, the accused from challenging at trial that aspect of the prosecution case. And what would otherwise be a wholly accusatorial process, in which the accused may choose to offer no account of events, but simply test the sufficiency of the prosecution evidence, is radically altered. An alteration of that kind is not made by a statute cast in general terms. If an alteration of that kind is to be made, it must be made by express words or necessary intendment.  

    [75] X7 v Australian Crime Commission (2013) 248 CLR 92 at [70].

    [76] X7 v Australian Crime Commission (2013) 248 CLR 92 at [71].

14. Hayne and Bell JJ further said:[77]

    Even if the answers given at a compulsory examination are kept secret, and therefore cannot be used directly or indirectly by those responsible for investigating and prosecuting the matters charged, the requirement to give answers, after being charged, would fundamentally alter the accusatorial judicial process that begins with the laying of a charge and culminates in the accusatorial (and adversarial) trial in the courtroom. No longer could the accused person decide the course which he or she should adopt at trial, in answer to the charge, according only to the strength of the prosecution's case as revealed by the material provided by the prosecution before trial, or to the strength of the evidence led by the prosecution at the trial. The accused person would have to decide the course to be followed in light of that material and in light of any self‑incriminatory answers which he or she had been compelled to give at an examination conducted after the charge was laid. That is, the accused person would have to decide what plea to enter, what evidence to challenge and what evidence to give or lead at trial according to what answers he or she had given at the examination. The accused person is thus prejudiced in his or her defence of the charge that has been laid by being required to answer questions about the subject matter of the pending charge.

    [77] X7 v Australian Crime Commission (2013) 248 CLR 92 at [124].

15. Hayne and Bell JJ emphasised that the examination provisions in the ACC Act were cast in general terms [78] and although they permitted, if read literally, the examination of a person about the subject matter of a charge pending against the person the provisions they did not expressly or by necessary implication authorise such an examination.[79] Hayne and Bell JJ further considered that the performance of the ACC’s investigative function would not be restricted or impeded if the power to compulsorily examine did not extend to the examination of an accused person about the subject matter of an impending charge.[80]

    [78] Section 28(1) provides: An examiner may summon a person to appear before an examiner at an examination to give evidence and to produce such documents or other things (if any) as are referred to in the summons."Section 30(2) provides: A person appearing as a witness at an examination before an examiner shall not: (a) when required pursuant to section 28 either to take an oath or make an affirmation—refuse or fail to comply with the requirement; (b) refuse or fail to answer a question that he or she is required to answer by the examiner; or (c) refuse or fail to produce a document or thing that he or she was required to produce by a summons under this Act served on him or her as prescribed."

    [79] X7 v Australian Crime Commission (2013) 248 CLR 92 at [76] (Hayne and Bell JJ).

    [80] X7 v Australian Crime Commission (2013) 248 CLR 92 at [147].

16. Hayne and Bell JJ stressed that their conclusion did not hinge on whether a trial following a compulsory examination could be regarded as unfair:[81]

    [T]here may very well have been an antecedent question of policy: should the legislature provide for an examination of the kind described? That would have been a question for the legislature. And it is a question which may well have been affected by notions of what is "fair" or "unfair". But in considering the first, and in this case determinative, question identified ("has the legislature provided for an examination of the kind described?"), debate about the fairness of the outcome would serve only to divert discussion into generally unproductive arguments of the kind which have attended discussion of the privilege against self‑incrimination. More particularly, the debate would necessarily proceed from stated or unstated assumptions about how a balance should be struck in the criminal justice system between individual rights, privileges and immunities, and societal demands for the detection and punishment of crime, especially serious crime. It is neither right nor profitable to approach the questions of construction which must be decided in this case by describing one or other of the possible constructions as leading to "unfair" or "undesirable" results.

    [81] X7 v Australian Crime Commission (2013) 248 CLR 92 at [93].

17. Kiefel J agreed with the reasons of Hayne and Bell JJ.[82]

    [82] X7 v Australian Crime Commission (2013) 248 CLR 92 at [157]-[162].

18. French CJ and Crennan J accepted that the compulsory examination by the executive after a charge has been laid might prejudice the fair trial of the examinee where the prosecution is, as a result, afforded an unfair forensic advantage which would not otherwise be obtainable under the ordinary rules of criminal procedure and that such an unfair forensic advantage may take the form of the prosecution making use of derivative evidence to obtain a conviction.[83]

    [83] X7 v Australian Crime Commission (2013) 248 CLR 92 at [53].

19. They said:[84]

    Given the onus on the prosecution to prove an offence, and the non-compellability of an accused, in the absence of a factor such as the independent sourcing of evidence it is not possible to reconcile a fair trial with reliance on evidence against a person at trial which derives from compulsorily obtained material establishing that person's guilt, or disclosing defences.

    [84] X7 v Australian Crime Commission (2013) 248 CLR 92 at [54].

20. French CJ and Crennan J acknowledged that statutory immunity from derivative use tends to be ineffective by reason of the problem of proving that other evidence is in fact derivative.[85] However, they considered that s 25A (9) and (11) were capable of protecting an examinee against both direct use (also the subject matter of the statutory use immunity under s 30(4) and (5)) and indirect use at trial of material obtained in a compulsory examination by restricting publication or the manner of publication of such material. Similarly, s 25A(3) enabled the examiner to protect the person against direct or indirect use by controlling who may be present at the examination.[86]

    [85] X7 v Australian Crime Commission (2013) 248 CLR 92 at [50] citing Hamilton v Oades (1989) 166 CLR 486 at 496 (Mason CJ).

    [86] X7 v Australian Crime Commission (2013) 248 CLR 92 at [56].

21. French CJ and Crennan J considered that these safeguards were capable of preventing a compulsory examination from occasioning an unfair burden on the examinee when defending criminal charges.[87] Furthermore they showed that the examination provisions did not authorise executive interference with the curial process of criminal trials.[88] Their Honours observed that whether the powers contained in s 25A were sufficient to preclude the prosecution from obtaining an unfair forensic advantage in a trial will depend on the nature of the self-incriminating evidence, the role of the persons who had access to the evidence and the use made of the evidence.[89]

    [87] X7 v Australian Crime Commission (2013) 248 CLR 92 at [57].

    [88] X7 v Australian Crime Commission (2013) 248 CLR 92 at [60].

    [89] X7 v Australian Crime Commission (2013) 248 CLR 92 at [61].

22. Their Honours emphasised that the admissibility of derivative evidence is not necessarily inconsistent with a fair trial. They said:[90]

    It can be acknowledged that there may be some circumstances in which the fairness of a trial can be reconciled with the admissibility of derivative evidence. Not all derivative evidence is of the same quality and derivative evidence may emerge from multiple independent sources. At the outset of an investigation, it may not be clear what derivative evidence will be critical to proving offences, or from which independent sources such evidence might be obtained. However, to the extent that the prosecution may wish to rely on a piece of derivative evidence which was independently obtained, but which was the subject of a protective direction, the CEO has a power to vary a direction given under s 25A(9), provided that the fair trial of the accused is not thereby prejudiced. In any event, the trial judge has a discretion in relation to the admissibility of such evidence, and the court has a power to control any use of derivative evidence which amounts to an abuse of process.

    [90] X7 v Australian Crime Commission (2013) 248 CLR 92 at [58].

1. Bathurst CJ pointed out that in Lee (No 2) the High Court reaffirmed the principles expressed in X7 but did not suggest that the examination in Lee (No 2) was not authorised by the relevant statute, rather the complaint in that case related to dissemination of the transcript.[156]

   [156] X7 v The Queen (2014) 246 A Crim R 402 at [107].

2. His Honour then went on to say:[157]

   In considering the question of a stay I do not think that the reasoning of the majority in Lee (2013) can be ignored. Gageler and Keane JJ at [323] stated that the deprivation of a legitimate forensic choice available to a person may be one of the ways that unfairness amounting to an interference with the due course of justice could arise in a particular case. The reference to a particular case in my opinion is not inconsistent with the views expressed by the other members of the majority in Lee (2013) or what was said in X7 (No 1). Rather, it emphasises the fact that the conduct of the examination may have different consequences depending on its nature and extent in any given case.

   In these circumstances, it does not seem to me that either the decision in X7 (No 1) or in Lee (2014) compels the conclusion that the fact of an unauthorised examination, on its own, requires an order that there be a permanent stay of criminal proceedings relating to the matters the subject of the examination. To grant a stay in such a case would be to grant one without regard to the nature and extent of the unfairness which results. It would also fail to take into account the interests of the community in the prosecution of serious criminal offences.

   If in fact the examination was productive of actual unfairness, it seems to me the person affected would be able to establish that fact without suffering further unfairness or injustice. In the present case an application could be made under s 25A(10) of the ACC Act to vary the direction previously made, so that the content of the examination could be released to a judge hearing the application for a stay, to enable it to be determined if there was any actual unfairness in the particular case. This was the course adopted in R v Seller at [35] and R v X at [7].

   [157] X7 v The Queen (2014) 246 A Crim R 402 at [108]-[110].

3. I respectfully agree with the above analysis. It supports my conclusion that a compulsory examination is not unauthorised merely because it impacts upon the accusatorial nature of the criminal justice system and that the decisions in Lee (No 1) and Lee (No 2) are inconsistent with the applicant’s assertion in that regard. It should be noted that following the decision in X7 (No 2) the respondent applied for special leave to appeal to the High Court. The application was dismissed.[158]

   [158] X7 v The Queen [2015] HCA Trans 109.

4. The next case to which reference should be made is R v OC,[159] another decision of the Court of Appeal (NSW). The accused was charged with the offence of conspiring to commit insider trading after he had been compulsorily examined under s 19 of the Australian Securities and Investments Commission Act 2001 (Cth) (the ASIC Act). Section 68(1) of the ASIC Act abrogated the privilege against self-incrimination in respect of examinations under s 19. Section 68(3) expressly provided for direct use immunity in relation to statements made by an examinee at an examination. Section 76 provided that a statement made by a person at an examination was admissible against that person unless, inter alia, it was inadmissible by virtue of s 68(3). The ASIC Act expressly authorised ASIC to provide a report, including a transcript of the examination to the CDPP in the event that the examination related to a serious contravention of law. After the accused was compulsorily examined, ASIC provided officers of the CDPP and counsel with carriage of the prosecution access to the transcript of the compulsory examination.

   [159] R v OC (2015) 90 NSWLR 134.

5. The accused applied to the trial judge for a stay on the basis that the provision of the transcript to the CDPP and prosecuting counsel compromised his right to a fair trial and that the ASIC Act did not expressly or by necessary implication, authorise disclosure of the contents of his examination to those officers of the CDPP responsible prosecution or those retained by the CDPP for that purpose. The primary judge granted a temporary stay of the proceedings until the prosecution could be resumed by persons who had not had actual or derivative use of the transcript.

6. The Court of Appeal (Bathurst CJ; RA Hulme and Bellew JJ agreeing) allowed a prosecution appeal against the primary judge’s ruling and lifted the stay. The court proceeded on the basis that the principles expressed in X7 in relation to the companion principle had been engaged.[160] The Court acknowledged that the ASIC Act did not expressly authorise that persons actually involved in the prosecution of a person who has been compulsorily examined can have access to the transcript of the examination but concluded that a number of provisions in the ASIC Act when properly construed disclosed such an intention.[161]

   [160] R v OC (2015) 90 NSWLR 134 at [97]-[101].

   [161] R v OC (2015) 90 NSWLR 134 at [103]-[106].

7. The Court further concluded that s 76 expressly contemplated that evidential use may be made of the examination and that the ASIC Act necessarily implied that the transcript could be made available to the prosecutor for the purpose of carrying out the prosecution.[162] Bathurst CJ concluded that:[163]

   [O]nce it is established, as a matter of construction, that the prosecution was entitled to the transcript of the examination, there was no basis on which a “residual discretion” could be exercised to effectively deprive the prosecution of the transcript.

   [162] R v OC (2015) 90 NSWLR 134 at [107]-[119].

   [163] R v OC (2015) 90 NSWLR 134 at [124].

8. The High Court later dismissed an application for special leave to appeal against the decision in OC.[164] (See also R v Catena (No 3)[165] and R v Jacobson (No 4)[166] where reached similar conclusions were reached in relation to the dissemination of transcripts of compulsory examinations under the ASIC Act.)

   [164] OC v The Queen [2016] HCA Trans 26.

   [165] R v Catena (No 3) [2013] WASC 97 (Corboy J).

   [166] R v Jacobson (No 4) (2014) 290 FLR 143 (Kaye J).

9. As in Seller, the appellant in OC was compulsorily examined, and the transcripts of the examination disseminated, before the relevant criminal proceedings had commenced against him and so the companion principle had not in fact been engaged. However, the decision is of assistance because it was assumed that the principle did apply and, notwithstanding its application, the compulsory examination was lawful as was the dissemination of the examination transcript.

10. The final authority of assistance is Zanon v WA.[167] The appellants were convicted of drug trafficking offences under the Misuse of Drugs Act 1981 (WA) (MDA). Prior to being charged with those offences one of the appellants, Quaid, was compulsorily interviewed by police under the Criminal Property Confiscation Act 2000 (WA) (the CPCA). The police provided an officer at the DPP with a recording of the interview. The officer viewed the recording and requested that the police obtain a statement in relation to certain matters arising from the interview. Although the police met a proposed witness he declined to give a statement. At the time of trial the prosecution team were aware of the content of the CPCA interview but no use had been made of it other than the failed attempt to obtain a statement from the proposed witness.

    [167] Zanon v WA (2016) 50 WAR 1.

11. The appellants appealed against their convictions on a number of grounds. Quaid’s grounds included a contention that he had suffered a miscarriage of justice by virtue of the fact that the prosecution were in possession of the CPCA interview at the time of trial in relation to the offences in issue. It was contended that the prosecution’s possession of the interview constituted a fundamental breach of the companion principle in accordance with the decision in Lee (No 2). Mc Lure P, Buss JA and Mitchell J agreeing dismissed the appeal on all grounds.

12. The key features of the CPCA are summarised by Mc Lure P at [95]-[106]. In essence the legislation provides for the confiscation of property acquired as a result of criminal activity and applies to, inter alia, crime-used property and crime-derived property (s 142(d)) whether or not anyone has been charged with, or convicted of, the relevant confiscation offence (s 5(2)(c)). Pursuant to s 73(1) a police officer may stop and detain a person if there are reasonable grounds for suspecting that the person has confiscable property in his or her possession. When exercising that power the police officer may require the person to give the officer any information within the person’s knowledge or control that is relevant to determining whether or not the property is confiscable (s 76(1)(e)). A person who contravenes that requirement commits an offence (s 76(2)). Section 76(4) provides that a person is not excused from complying with the requirement on the ground of self-incrimination. This sub-section also provides the person with direct use immunity in relation to any information given in compliance with the requirement.

13. Under the CPA the DPP has a central role in the operation of the CPCA in that only the DPP may apply to the court for certain declarations such as a declaration that property has been confiscated (s 30) and a freezing order for property (s 41). Furthermore, if a person has been declared a drug trafficker under s 32A(1) of the MDA as a result of being convicted of a confiscation offence, all property the person owned before or after the declaration is confiscated (s 8).

14. Section 70(1) of the CPCA prohibits a person from making a disclosure to anyone, except as permitted under s 71, about the matters specified in paras (a) to (f) of that sub-section. Those matters do not include information obtained by a police officer under s 76(1)(e). Also disclosure may be made to the DPP or a police officer of the matters specified in s 70(1)(a) to (f) without limitation as to purpose.

15. McLure P rejected the appellant’s contention that the prosecution’s possession of the interview constituted a fundamental breach of the companion principle. Following the decision of the High Court in R v Independent Broad-Based Anti-Corruption Commissioner,[168] (IBAC) he held that the common law principle that an accused person cannot be required to testify to the commission of the offence with which they are charged does not apply to information obtained under compulsion prior to the commencement of the prosecution of an offence.[169]

    [168] R v Independent Broad-Based Anti-Corruption Commissioner (2016) 90 ALJR 433.

    [169] Zanon v WA (2016) 50 WAR 1 at [144].

16. However, McLure P proceeded to consider the applicant’s argument on the basis that after the decision in IBAC that there is some uncertainty as to the scope of the law in that regard.[170] In other words, his Honour proceeded to consider the appellant’s companion principle argument on the basis that the principle had been engaged. McLure P concluded (i) that the CPCA authorised disclosure of compulsorily acquired information under s 76 (1)(e) to the DPP (ii) that the use of disclosed information was not limited to determining whether or not property was confiscable and (iii) that the DPP was authorised to derivatively use such information in the prosecution of related offences.

    [170] Zanon v WA (2016) 50 WAR 1 at [146].

17. McLure P said:[171]

    The DPP has extensive, exclusive powers under the CPCA. The DPP would be hindered in the exercise of those powers without having an entitlement to possession of all relevant material, including the investigative material compulsorily acquired under s 76 of the CPCA. Further, the CPCA contains express confidentiality provisions but does not impose an express obligation on individual police, or the police force as a whole, to keep compulsorily acquired information confidential. Moreover, it is particularly significant that information expressly declared by the CPCA to be confidential can be communicated to police who can use it without limitation as to purpose. In my view, the scheme of the CPCA mandates the conclusion that mere possession of information compulsorily acquired under s76(1)(e) of the CPCA by the police and the DPP is positively authorised by the CPCA. That construction of the CPCA is confirmed by the mandatory disclosure requirements in the CPA.

    …

    In my view, the same reasoning results in the conclusion that, not only is the DPP entitled to possession of the compulsorily acquired information under s76 of the CPCA, it is entitled to derivatively use the compulsorily acquired information in the prosecution of persons for the relevant confiscable offence and related offences.

    [171] Zanon v WA (2016) 50 WAR 1 at [151] & [159].

18. For these reasons, McLure P considered that there had been no unauthorised or wrongful conduct by the police and thus no miscarriage of justice. Zanon is a further authority recognising that the mere fact that a statutory compulsory examination of an accused person in respect of charges pending against that person, though impacting on the accusatorial nature of the criminal justice system, does not make the examination unlawful.

19. The authorities which I have canvassed stand in the way of the applicant’s bald proposition that the POC Act does not authorise compulsory examination of an accused person in respect of charges pending against that person by reason of it representing a marked departure from the accusatorial process of justice. Furthermore, the fact that such an examination under the POC Act is lawful was, in my opinion, implicitly acknowledged by the Full Court in Ruzehaji and Another v Commissioner of the Australian Federal Police.[172]

    [172] Ruzehaji and Another v Commissioner of the Australian Federal Police (2015) 124 SASR 355.

20. As earlier noted the principal issue that arose in Ruzehaji was whether a further examination under s 180 should be stayed pending the final determination of the pending criminal charges. At no point did the Full Court suggest that the earlier examination, the subject of complaint in the present proceedings, was unlawful. Indeed, after pointing to similarities between the POC Act and the Criminal Assets Recovery Act 1900 (NSW) (CAR Act), considered by the High Court in Lee v New South Wales Crime Commission (Lee No 1),[173] Gray J said:[174]

    In Lee v New South Wales Crime Commission,[175] the High Court considered provisions in the New South Wales proceeds of crime legislation. That legislation contained a similar provision to section 180(1) of the Proceeds of Crime Act, which empowered the court to make an order for the examination of a person charged with criminal offences about conduct which was the subject of criminal charges against that person. The decision in Lee v New South Wales Crime Commission directly addresses the question of the making of an examination order in circumstances similar to those arising in the within proceedings. Many of the features of the legislative scheme considered in Lee v New South Wales Crime Commission are relevantly comparable to the Proceeds of Crime Act, in particular: delays in examinations pending the resolution of criminal proceedings would frustrate the legislative purpose of permitting examinations concerning serious crime-related activities, irrespective of any related criminal proceedings; the express and unambiguous abrogation of legislative protections for examinees, notwithstanding the existence of any related criminal proceedings; the loss of any forensic advantage for an examinee in related criminal proceedings is incidental to the legislative purpose of facilitating examinations; and the lack of a distinction between pending and finalised criminal proceedings. It was pointed out that the principle that no accused person can be compelled by legal process to admit the offence of which he or she is accused is not strict and that a real risk to the administration of justice does not necessarily arise from the exercise of a statutory power to compel the examination of an accused person where the subject matter of the examination will overlap with the pending criminal proceeding.

    [173] Lee v New South Wales Crime Commission (2013) 251 CLR 196.

    [174] Ruzehaji and Another v Commissioner of the Australian Federal Police (2015) 124 SASR 355 at [90].

    [175] Lee v New South Wales Crime Commission (2013) 251 CLR 196.

21. The clear implication of his Honour’s remarks is that an examination under s 180 of the POC Act may traverse matters which are relevant to a charge pending against an examinee if they are relevant to the POC Act proceedings. For these reasons, the applicant’s argument in relation to [1.1A] must be rejected.

    [1.1B]: Did the questioning of the applicant under s180 of the POC Act go beyond the scope of an authorised examination?

22. Mr Edwardson QC argued that even if the POC Act authorised the examination of an accused person under s 180 about matters relevant to pending criminal proceedings, the applicant’s examination in the present case was not authorised because the questioning in relation to the drug charges was irrelevant to the POC Act proceedings.

23. It may be accepted that the power to compulsorily examine a person under s 180 must be for the purposes of POC Act proceedings. A prerequisite for the making of orders under the POC Act is the proper identification of property which can be subject to confiscation. The provisions governing compulsory examinations are directed to that object.[176] It would be an abuse of the coercive powers in the POC Act to seek to use them for the sole purpose of assisting in the conduct of pending criminal proceedings.[177]

    What were Mr Greaves reasons for questioning the applicant in the course of the s 180 examination about matters relevant to the pending drug charges?

    [176] See Lee v New South Wales Crime Commission (2013) 251 CLR 196 at [129] (Crennan J).

    [177] See Lee v New South Wales Crime Commission (2013) 251 CLR 196 at [327] (Gageler and Keane JJ).

24. On the stay application Mr Greaves’ examination-in-chief was confined to confirming that he swore an affidavit on 22 February 2016 setting out his involvement in the compulsory examination of the applicant. Mr Edwardson’s QC cross-examination of Mr Greaves focussed on the applicant’s allegation that the transcript of the s 180 examination or information derived from the applicant’s evidence may have been disseminated to the criminal investigation team or the CDPP. No attention was paid in cross-examination to Mr Greaves’ reasons for questioning the applicant in relation to the pending charges. However, at one point, Mr Edwardson QC put to Mr Greaves that he was interested in the evidence obtained by the police during the criminal investigation because he considered it to be relevant to the POC Act proceedings, a proposition with which Mr Greaves agreed.[178] Later in cross-examination Mr Greave remarked that there was a ‘significant overlap’ between the civil and criminal proceedings.[179] During the balance of cross-examination, Mr Edwardson QC did not seek to challenge that remark in any way.

    [178] Hearing Transcript 29 August 2016 p 18.

    [179] Hearing Transcript 29 August 2016 p 21.

25. As earlier mentioned, property linked to the applicant was restrained under s 18 of the POC Act by the Chief Judge on the basis that there were reasonable grounds to suspect that applicant had committed a serious indictable offence which involved trafficking in illicit drugs. Mr Greaves testified that the property was also the subject of an application for forfeiture under s 47 which a court must make ‘if the court is satisfied that a person whose conduct formed the basis of the restraining order engaged in conduct constituting one or more serious offences’ and the restraining order has been in force for at least six months (s 47(1)). Such a forfeiture order can only be avoided if the person obtains an order under s 73 (1) on the basis that the court is satisfied that the property in question is neither the proceeds of unlawful activity nor an instrument of a serious offence (s 73(1)).

1. In re-examination, Mr Rapke QC explored with Mr Greaves’ his reasons for having asked the applicant questions relevant to the pending charges. Mr Greaves said: [180]

   [M]y focus at the time was the s18 restraining order and the extant s47 forfeiture [application] and the inevitable exclusion applications that Mr Ruzehaji had to make. I should say Mr Ruzehaji and Amir (sic) Enterprises … Those two entities had to … take positive steps. My experience with proceeds of crime matters is that it’s extremely useful to examine a person who is about to get inundated with disclosure in the course of a criminal [investigation] because as we all know the police are required to disclose everything to an accused person and properly so. My experience had been, prior to the examination of Mr Ruzehaji, it was useful to ask questions about what warehouse you went to, who you were with, who you rang, what you did before they had disclosure because once they could craft their answers accordingly. But if you asked them questions in a compulsory examination or before they had that material they had two choices, tell the truth or guess, and if they guess what the police have and don’t have they often slip up. You pencil in at that point that their prospects of succeeding in the proceeds of crime litigation drastically fall. ..

   [Mr Greaves added that he believed that forfeiture was warranted because the applicant who purported to be a plasterer controlled property worth in excess of $2 million and drove a Lamborghini motor car and that it was obvious to Mr Greaves ‘where the Lamborghini came from’.]

   [180] Hearing Transcript 29 August 2016 pp 35-36.

2. The effect of the evidence given by Mr Greaves is that it at the time of examination it was apparent to him that the applicant would need to apply for an exclusion order under s 73 on the basis that the subject property was not the proceeds of crime. Accordingly, it was relevant to pin the applicant to an account with respect to the drug charges which the Commissioner might be able to contradict, when an application for an exclusion order was made, by evidence that was not known to the accused at the time of the s 180 examination and of which he would have remained unaware until the details of the prosecution’s case were disclosed to him in the usual way. In my view, this was a perfectly proper use of the POC Act compulsory examination powers. Mr Greaves was entitled to elicit answers from the applicant relating to the drug charges in order to improve the Commissioner’s chances of defeating any subsequent application for an exclusion order.

3. It should be observed that at another point in his evidence Mr Greaves expressed some uncertainty as to whether or not an application had in fact been made under s 47 by the time the applicant’s s 180 examination was conducted. No other evidence was put before on whether such an application had been made. Even if Mr Greaves was possibly mistaken on this point and the s 47 application was only being contemplated at the time of the examination that would not undermine the point made above. Any questioning about the applicant’s involvement in the criminal offences was relevant to any application the applicant had made or might make under s 47 and/or s 73.

4. A similar point was made in Lee (No 1) by Gageler and Keane JJ in relation to the CAR Act:[181]

   Recognition of the ancillary and purposive nature of an examination order directs attention to the nature and purpose of the principal proceedings in which such an order can be sought and made. The CAR Act is about recovering the fruits of criminal activity; that is why the principal proceedings are brought. The making of the confiscation order ultimately sought in the principal proceedings in which an examination order can be sought and made necessitates (in the case of an assets forfeiture order or a proceeds assessment order) a finding on the balance of probabilities of serious crime related activity or (in the case of an unexplained wealth order) a finding of a reasonable suspicion of serious crime related activity and a finding on the balance of probabilities of illegal activity. Information of use to the Commission in proceedings for a confiscation order will therefore always encompass information about the criminal activity alleged in the proceedings as the basis of the confiscation order sought.

   [1.2]: Was the transcript of the applicant’s examination unlawfully disseminated to the police and the CDPP?

   [181] Lee v New South Wales Crime Commission (2013) 251 CLR 196 at [328].

5. As earlier noted, at the hearing conducted to examine this issue affidavits from a substantial number of members of CACT, the AFP and CDPP were tendered. Six of the deponents were examined and cross-examined. It is not necessary to descend into a discussion of the affidavit material or the oral evidence. Suffice it to say that the witnesses denied that there had been any dissemination of the transcript, or other information obtained at the s 180 examination, to members of the AFP who were not members of CACT or to members of the CDPP responsible for prosecuting the applicant. Following completion of the evidence Mr Edwardson QC quite properly conceded that there was no evidence of any dissemination having occurred.

6. Even if there had been dissemination of the transcript and derivative use had been made of it such conduct would have been lawful under s 266A of the POC Act. As I earlier stated, the obvious statutory intention is that police, charged with investigating a criminal offence, and members of the DPP, responsible for the prosecution of the offence, are entitled to have access to compulsorily obtained information to the extent allowed by that provision s 266A and to derivatively use such information. This is consistent with other authorities dealing with the construction of similar legislation for example: Seller, OC and Zanon.

   [1.3]: Should the criminal proceedings be stayed though the compulsory examination was lawfully conducted and there had been no dissemination of the transcript or other information acquired from the examination?

7. The power to stay criminal proceedings for abuse of process may be invoked to ensure that proceedings will not result in an unfair trial.[182] In dealing with an application to stay criminal proceedings for abuse of process, the trial judge must weigh up two competing public interests, namely the public interest in seeing accused persons brought to trial and the public interest in ensuring that accused persons receive fair trails. In Walton v Gardiner,[183] Mason CJ, Deane and Dawson JJ said:[184]

   As was pointed out in Jago (See, in particular, (1989) 168 CLR at pp 30-34, per Mason CJ; pp 59-61, per Deane J; p 72, per Toohey J; pp 76-78, per Gaudron J), “The question whether criminal proceedings should be permanently stayed on abuse of process grounds falls to be determined by a weighing process involving a subjective balancing of a variety of factors and considerations. Among those factors and considerations are the requirements of fairness to the accused, the legitimate public interest in the disposition of charges of serious offences and in the conviction of those guilty of crime, and the need to maintain public confidence in the administration of justice.

   [182] Barton v The Queen (1980) 147 CLR 75; Jago v District Court (NSW) (1989) 168 CLR 23.

   [183] Walton v Gardiner (1993) 177 CLR 378.

   [184] Walton v Gardiner (1993) 177 CLR 378 pp 395-396.

8. As Bathurst CJ stated in X7 (No 2) the authorities relating to abuse of process demonstrate the following three matters:[185]

   First, the power to grant a permanent stay is one that rarely will be exercised.  That is unsurprising as in criminal proceedings there are significant countervailing considerations, namely, the interests of the community and the victims of crime in the enforcement of the criminal law: see, for example, Jago at 54; 329-330 per Brennan J.

   Second, a stay will be ordered where there is a fundamental defect of such a nature that there is nothing a judge can do in the conduct of the trial to relieve against its unfair consequences. Implicit in that proposition is that it is necessary to identify both the fundamental defect and the unfair consequences.

   Third, irrespective of whether or not unfairness is demonstrated, a stay may be granted if the proceedings in question are an abuse of process in the sense that the use of the court proceedings brings the administration of justice into disrepute: Rogers v The Queen (1994) 181 CLR 251 at 286; 74 A Crim R 462 at 488-489 and Moti v The Queen at [10].

   [185] X7 v The Queen (2014) 246 A Crim R 402 at [91]-[93].

9. Mr Edwardson QC submitted that the mere fact that the applicant had been compulsorily examined on matters germane to the pending charges exposed the applicant to the risk of an unfair trial warranting a permanent stay of the criminal proceedings. He placed particular emphasis on the nature of the disadvantage that a compulsory examinee may suffer at trial even if the responses of the examinee to questions put to him or her are kept secret as discussed by Hayne and Bell JJ in X7[186] and by French CJ in Lee (No 1).[187]

   [186] X7 v Australian Crime Commission (2013) 248 CLR 92 at [123].

   [187] Lee v New South Wales Crime Commission (2013) 251 CLR 196 at [54].

10. I reject this argument.

11. As Bathurst CJ stressed in  X7 (No 2) the High Court in X7, Lee (No 1) and Lee (No 2) did not address the question of whether, and in what circumstances, criminal proceedings should be stayed when there has been an unauthorised compulsory examination or an unlawful dissemination of the examination transcript to prosecuting authorities. Furthermore, as Bathurst CJ pointed out Gageler and Keane JJ, who were in the majority in Lee No 1, were of the view that the possible deprivation of a legitimate forensic choice of the kind described by Hayne and Bell JJ in X7 does not necessarily give rise to a ‘real risk’ of interference with the proper administration of justice less still, in my respectful opinion, does it constitute a basis for staying criminal proceedings in accordance with established principle.

12. The recent authorities dealing with compulsory examination that I have canvassed do not support the application for a stay. Lee (No 1) established that legislation may authorise the compulsory examination of an accused person. In Lee (No 2) it was determined that the accused had suffered a miscarriage of justice because the unlawful dissemination of the compulsory examination transcript resulted in the prosecution knowing the evidence given by the appellant’s at the compulsory examination which was relevant to the defence case. Seller determined that an accused person was not entitled to a stay of proceedings where the transcript of a compulsory examination relating to the pending charges had been unlawfully disseminated in circumstances where the dissemination had caused no prejudice resulting in a fundamental defect in the trial because it had not been accessed by persons responsible for prosecuting the accused. X7 (No 2) determined that an accused person was not entitled to a stay of proceedings in circumstances where an unlawful compulsory examination had not resulted in a fundamental defect in the accused’s trial notwithstanding the observations made by Hayne and Bell JJ in X7 No 1 regarding the potential impact of a compulsory examination on an examinee’s trial. OC, Zanon, Catena (No 3), R v Jacobson (No 4) illustrate that legislation may authorise the dissemination of compulsory examination transcripts and their derivative use. In OC a stay was held to be inappropriate in circumstances where there had been a lawful dissemination of the compulsory examination in transcript. In Zanon it was determined that there had been no miscarriage of justice resulting from the lawful dissemination and derivative use of a compulsory examination transcript. The High Court refused special leave to appeal against each of the decisions in Seller, X7 (No 2) and OC.

13. In the present case, the applicant’s compulsory examination under the POC Act was lawful and the transcript of the proceedings was not transmitted to any person responsible for investigating or prosecuting the criminal charges brought against the applicant. I do not accept that the legitimate public interest in the disposition of charges of serious offences is outweighed in the circumstances of this case where there is no evidence that the applicant’s compulsory examination has actually prejudiced the applicant’s right to a fair trial or less still given rise to a ‘real risk’ of that happening. Furthermore, I am not aware of any authority which recognises that it is legitimate to stay criminal proceedings where the only alleged source of unfairness is a procedure which has been conducted according to law.

14. A further factor militating against a stay is the acquiescence and compliance of the applicant to the compulsory examination procedures to which Gray J referred in Ruzehaji and Another v Commissioner of the Australian Federal Police.[188] The particular relevant events are set out in [64]–[69] herein. Prior to the compulsory examination conducted on 25 March 2013 the applicant’s solicitor Mr Dadds had been informed by email on 14 January 2013 that the applicants examination would cover topics far broader than the matters set out in the applicants s 39 sworn statement and s 266A of the POC Act authorised disclosure of examination material to criminal investigators. Prior to the commencement of the examination Mr Greaves informed the applicant’s senior counsel of his intention to question the applicant on matters relevant to the drug charges and repeated that statement upon the examination commencing before SM Bean. The questioning of the applicant then proceeded.

    [188] Ruzehaji and Another v Commissioner of the Australian Federal Police (2015) 124 SASR 355.

15. No application was made by the applicant or his legal representatives for the POC Act proceedings to be stayed, as occurred in Zhao, pending determination of the criminal charges. A forensic decision was made to decline to make such an application. No resistance was offered to the compulsory examination proceedings until the applicant filed an appeal in the Supreme Court on 5 November 2013.

16. In my view there is force in the submission made by Mr Rapke QC on this point:[189]

    We say it’s unconscionable to deliberately refrain from raising issues said to impact on the fairness or propriety of proceedings when such matters were well within the knowledge and the competence of counsel to make and to hold them in reserve for greater effect at a later stage.

    Now your Honour is being asked in this application to exercise a discretion, a discretion undoubtedly able to be exercised, but, of course, rarely exercised as the High Court has noted. The conduct of the applicant and his lawyer should weigh heavily against an exercise of that discretion in his favour.

    [189] Hearing transcript pp 137-138.

17. I do not suggest that a decision not to challenge the compulsory examination procedures is a decisive factor but it is a relevant consideration, nonetheless. However, I should make it plain that I would have rejected the application for a stay even if the applicant had offered resistance to the compulsory examination.

18. For the above reasons I dismissed the application for a stay of proceedings on the criminal charges brought against him by the CDPP.