Ruzehaji v Commissioner of the Australian Federal Police
[2015] SASCFC 182
•10 December 2015
SUPREME COURT OF SOUTH AUSTRALIA
(Full Court)
RUZEHAJI v COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE
[2015] SASCFC 182
Judgment of The Full Court
(The Honourable Justice Gray, The Honourable Justice Peek and The Honourable Justice Nicholson)
10 December 2015
CRIMINAL LAW - GENERAL MATTERS - OTHER GENERAL MATTERS - STAY OF CIVIL PROCEEDINGS PENDING CRIMINAL PROCEEDINGS
CRIMINAL LAW - PROCEDURE - CONFISCATION OF PROCEEDS OF CRIME AND RELATED MATTERS - FORFEITURE OR CONFISCATION - PROCEDURE - INVESTIGATION AND EXAMINATION
CRIMINAL LAW - PROCEDURE - CONFISCATION OF PROCEEDS OF CRIME AND RELATED MATTERS - RESTRAINING OR FREEZING ORDER - INVESTIGATION AND EXAMINATION
Appeals against orders made by a Judge of the District Court under the Proceeds of Crime Act 2002 (Cth). In November 2012, the respondent obtained orders including examination orders and restraining orders against the appellants following the making of an ex parte application in the District Court. The order was sought as the respondent suspected that the first appellant had committed two serious offences – trafficking in a marketable quantity of a controlled drug. The first appellant was subsequently charged with a number of offences, including drug trafficking offences. In the months that followed, the parties co-operated and varied a number of the orders by consent. In September 2013, co-operation between the parties ceased. The appellants filed an interlocutory application in the District Court seeking to discharge the orders and stay the criminal proceedings. The application was dismissed. On the appeal to the Supreme Court, the respondent proffered an undertaking that the examination conducted of the pursuant to the Proceeds of Crime Act would not touch upon any matters relevant to the criminal proceedings.
Whether the Judge erred in making his ex parte orders. Whether the provisions of the Proceeds of Crime Act addressing examination proceedings are unconstitutional. Whether further examination proceedings should be stayed.
Held per Gray J (Peek and Nicholson JJ agreeing)(dismissing the appeals):
1. The orders made in the District Court pursuant to the Proceeds of Crime Act were interlocutory in nature. The orders had been complied with and varied by consent for months after they were made – there was no suggestion of a controversy. In these circumstances, the Judge did not err by failing to provide written reasons at the time the orders were made.
2. The appellants’ acquiescence and compliance with the November 2012 orders precludes them from now taking technical points about the procedure followed by the District Court when making those orders.
3. The provisions of the Proceeds of Crime Act addressing examination orders and the use of examination transcripts are not unconstitutional. The court’s independence is not infringed and the provisions allow for any ex parte orders to be varied or revoked on application by a person who is subject to such orders.
4. The appellants have not established that there is a real risk of prejudice if further examination proceedings take place. The respondent has undertaken that the examination proceedings will not address the subject matter of the criminal charges. If any unfairness or prejudice arises in the course of the examination proceedings, this can be addressed at a later date. The examination proceedings should not be stayed.
Proceeds of Crime Act 2002 (Cth) s 6, s 7, s 8, s 18, s 24, s 25, s 26, s 33, s 38, s 39, s 41, s 42, s 45, s 48, s 180, s 182, s 183, s 186, s 193, s 198, s 266A and s 319; Criminal Code Act 1995 (Cth) s 302.2, s 306.2, s 307.8 and s 400.5(I); Controlled Substances Act 1994 (SA) s 33LB; District Court Civil Rules 2006 (SA) r 226 and r 242; Judiciary Act 1903 (Cth) s 78B and s 79; Limitation of Actions Act 1936 (SA), referred to.
Commissioner of Australian Federal Police v Zhao (2015) 89 ALJR 331; Commissioner of the Australian Federal Police v Ruzehaji & Anor (No 1) [2014] SADC 60; Commissioner of the Australian Federal Police v Ruzehaji & Anor (No 2) [2014] SADC 61; Commissioner of the Australian Federal Police v Ruzehaji & Anor (No 3) [2014] SADC 62; Northern Territory of Australia v GPAO (1999) 196 CLR 553; Lee v Director of Public Prosecutions (Cth) (2009) 75 NSWLR 581; Coulton v Holcombe (1986) 162 CLR 1; Lee v The Queen (2014) 88 ALJR 656; Nicholas v The Queen (1998) 193 CLR 173; Palmer v Clarke (1989) 19 NSWLR 158; Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd (2001) 4 VR 28; Director of Public Prosecutions (Tas) v Cook (2006) 166 A Crim R 234; Electric Light and Power Supply Corporation Ltd v Electricity Commission of NSW (1956) 94 CLR 554; Gordon v Tolcher (2006) 231 CLR 334; Licul v Corney (1976) 180 CLR 213; X7 v Australian Crime Commission (2013) 248 CLR 92; Sorby v The Commonwealth (1983) 152 CLR 281; International Finance Trust Company and Another v New South Wales Crime Commission and Others (2009) 240 CLR 319, considered.
RUZEHAJI v COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE
[2015] SASCFC 182Full Court: Gray, Peek and Nicholson JJ
GRAY J.
These are consolidated appeals against orders made in the District Court under the Proceeds of Crime Act 2002 (Cth) in respect of the defendants and appellants, Amir Sabit Ruzehaji and Ruzehaji Enterprises Pty Ltd.[1]
[1] Mr Ruzehaji is the sole director, secretary and shareholder of Ruzehaji Enterprises.
The proceedings have a protracted history. This Court reserved judgment following the hearing of this appeal in May 2014. At the request of the parties, the Court agreed to defer the finalisation of the matter pending the resolution of unrelated proceedings in the High Court. Judgment in that matter was handed down by the High Court on 12 February 2015.[2] The parties were given leave to file further written submissions consequent upon that decision. The last of those submissions was filed on 28 May 2015. Further affidavit material was tendered by the parties on the resumed hearing of the appeal. Oral submissions concluded on 25 August 2015 and the Court reserved judgment on that date. It is to be regretted that the matter has taken so long to resolve. In the circumstances, the delay has been unavoidable.
[2] Commissioner of Australian Federal Police v Zhao (2015) 89 ALJR 331.
The principal concern of Mr Ruzehaji is that he not be subjected to further examination proceedings under the Proceeds of Crime Act while he faces criminal proceedings. His concern is that he will be examined on matters the subject of the criminal proceedings to his prejudice. This concern has led him to challenge the District Court orders with which he had previously acquiesced and with which he had complied. Mr Ruzehaji did so in an effort to prevent further examination proceedings. In the alternative, he has sought a stay of the further examination until the conclusion of the criminal proceedings. The respondent, the Commissioner of the Australian Federal Police, through his senior counsel, has undertaken to this Court that any further examination would not deal with the subject matter of the criminal proceedings.
I have reached the conclusion that the appeals should be dismissed, as should an associated application for judicial review. I consider that, having regard to the defendants’ acquiescence and compliance with the orders under challenge, it is too late to have those orders set aside, even if grounds to do so were made out. I would decline to order a stay of the further examination as the Commissioner’s undertaking makes it unnecessary. My reasons follow.
The History of the Proceedings
On 26 November 2012, the Commissioner commenced proceedings against the defendants by way of a summons issued pursuant to sections 25 and 26 of the Proceeds of Crime Act. The summons included a request pursuant to section 26(4) of the Act that the Court consider the application “without notice having been given to any person”. The summons sought orders, inter alia: restraining the defendants from dealing with, and requiring them to forfeit, bank accounts, motor vehicles and real property; requiring Mr Ruzehaji to provide a sworn statement of the defendants’ interests and liabilities; and permitting an examination of Mr Ruzehaji concerning the defendants’ affairs. The Commissioner filed an interlocutory application seeking all of the orders sought in the summons except for the forfeiture order.
Two affidavits were filed in support of the application. Shaun Robert Milligan, a federal agent and a member of the Criminal Assets Confiscation Taskforce of the Australian Federal Police, set out the grounds of his suspicion that Mr Ruzehaji had committed two serious offences, namely two counts of trafficking in a marketable quantity of a controlled drug.[3] Mr Milligan deposed that Mr Ruzehaji has not been charged with the offences, but it was possible that he would be charged with the offences, or similar offences, in due course. Mr Milligan further deposed to the assets he believed to be under the effective control of Mr Ruzehaji, including a number of motor vehicles registered to Ruzehaji Enterprises. Paul Henry d’Assumpcao, the solicitor employed by the Australian Government Solicitor with carriage of the matter, deposed that “[f]or the reasons outlined in the affidavit of [Mr Milligan], I believe that this matter should be heard urgently.”
[3] Criminal Code Act 1995 (Cth) section 302.2.
On 28 November 2012, the Commissioner’s application was heard ex parte. Mr d’Assumpcao appeared on behalf of the Commissioner. Judge Muecke, as his Honour then was, made orders in terms of draft minutes of order restraining property said to belong to, or to be under the control of, the defendants. The Judge made further orders, including an order that the Official Trustee take possession of motor vehicles, ancillary orders and an examination order. A return date of 19 December 2012 was fixed. Liberty was granted to all parties to apply.
On 13 December 2012, the documents filed in Court and copies of section 24 and 42 of the Proceeds of Crime Act were served on Mr Ruzehaji. On 19 December 2012, Mr Ruzehaji was arrested and bailed to appear in court on 1 February 2013.
On 19 December 2012, the matter was again heard by Judge Muecke. On this occasion, the defendants were represented by Michael Dadds, a solicitor. The transcript of proceedings records that Mr Dadds advised the Judge:
I’ve had some discussions this morning with my learned friend regarding the terms of the restraining order and some variations that I’m hoping to achieve shortly. Between ourselves we hope that we can sort those things out by way of correspondence and then the filing of minutes of order and perhaps we can ask the court to deal with that matter administratively, within the next few days.
…
I understand my friend has minutes of order in the meantime. That’s all by consent and hopefully the next your Honour will hear from us is by way of correspondence and hopefully a variation to the orders in terms of further minutes that are going to be sent.
[Emphasis added.]
On 11 January 2013, an examination notice was served on Mr Ruzehaji requiring him to attend for examination on 25 March 2013.
On 17 January 2013, an Information was laid in the Magistrates Court charging Mr Ruzehaji with the offences of trafficking a marketable quantity of border controlled drugs,[4] pre-trafficking a commercial quantity of controlled precursors[5] and trafficking a commercial quantity of controlled drugs.[6] These offences expose Mr Ruzehaji to a maximum term of imprisonment of more than three years. A further Information was laid alleging that Mr Ruzehaji possessed a large commercial quantity of a controlled precursor.[7] On 26 June 2013, the Information relating to the offences under the Criminal Code was amended by the provision of particulars and the addition of a fourth count of dealing with money believing the money to be proceeds of crime.[8] The Information was filed in the District Court on 24 September 2014.
[4] Criminal Code Act 1995 (Cth) section 307.8.
[5] Criminal Code Act 1995 (Cth) section 306.2.
[6] Criminal Code Act 1995 (Cth) section 302.2.
[7] Controlled Substances Act 1994 (SA) section 33LB.
[8] Criminal Code Act 1995 (Cth) section 400.5(I).
On 5 February 2013, Mr Ruzehaji, in compliance with the order of the Court of 28 November 2012, as varied by consent on 19 December 2012, swore a section 39 statement, being a statement setting out all interests in property and liabilities of himself and Ruzehaji Enterprises.
On 18 March 2013, a Master of the District Court by consent ordered the release of one bank account from the restraining order to allow for living and other expenses of Mr Ruzehaji. In addition, restraining orders were made in respect of the custody and control of further property.
On 25 March 2013, Mr Ruzehaji was examined pursuant to the examination order made on 28 November 2012. He was represented at the examination by senior counsel and his solicitor. At the outset of the examination, submissions were made concerning section 193 of the Proceeds of Crime Act. Following submissions, Senior Member Bean gave the following direction:
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.
On 11 April 2013, Judge Muecke by consent made an order releasing five vehicles from the restraining order. The proceeding was adjourned for mention to 10 October 2013.
Prior to September 2013, there appeared little or no contention between the parties about the proceedings, interlocutory orders or general procedures being followed. There was a level of co-operation in regard to the variations of the restraining orders. The examination proceeded. However, during September 2013, co-operation between the parties ceased.
On 2 September 2013, the Commissioner filed an interlocutory application for examination orders of six persons, pursuant to section 180 of the Proceeds of Crime Act, about the affairs of Mr Ruzehaji and Ruzehaji Enterprises and in addition in respect of two of them about their own affairs. On 9 September 2013, a further examination notice was served on Mr Ruzehaji.
On 19 September 2013, a notice of change of solicitors was filed on behalf of Mr Ruzehaji by Patsouris and Associates.[9] An interlocutory application was filed on behalf of Mr Ruzehaji seeking the discharge nunc pro tunc of the examination order made on 28 November 2012 pursuant to rules 242 and 226 of the District Court Civil Rules 2006. A stay was sought of the District Court criminal proceedings, pursuant to rule 192. The application came on for hearing in the District Court before Judge Muscat on 20 September 2013 and an interim stay was ordered pending full argument on 6 November 2013.
[9] A notice of acting for Ruzehaji Enterprises was filed by the same solicitors on 26 September 2013.
On 26 September 2013, Mr Ruzehaji gave notice pursuant to section 78B of the Judiciary Act 1903 (Cth) providing the following particulars concerning the nature of the suggested constitutional issue:
The validity of the legislative scheme established by the Proceeds of Crime Act 2002 (Cth) including section 319 of the Proceeds of Crime Act 2002 (Cth) and whether those legislative provisions including section 319 of the Proceeds of Crime Act 2002 (Cth) breach the implication to be drawn from Chapter III of the Constitution.
[Mr Ruzehaji] contends that legislation which purports to circumscribe the exercise of the Court’s jurisdiction to stay a matter to prevent an abuse of process would breach the implication to be drawn from Chapter III of the Constitution as it would be incompatible with judicial decisional independence and the institutional integrity and independence of the Court as a repository of federal jurisdiction.
The scope of section 319 is addressed later in these reasons. Recent High Court authority makes it plain that section 319 does not restrict the court’s jurisdiction to grant a stay to prevent an abuse of process.[10]
[10] Commissioner of Australian Federal Police v Zhao (2015) 89 ALJR 331.
On 14 October 2013, the defendants filed a notice of appeal in the Supreme Court against the orders made by Judge Muecke on 28 November 2012.
On 28 October 2013, an application to adjourn the hearing on 6 November 2013 was refused by Chief Judge Muecke.[11] On this occasion, the Commissioner requested that the Chief Judge provide reasons for the orders made on 28 November 2012 and the Chief Judge indicated that he would do so.
[11] Judge Muecke was appointed Chief Judge of the District Court on 25 July 2013.
On 5 November 2013, interlocutory orders were sought from the Supreme Court to restrain Chief Judge Muecke from altering or amending the record and from providing reasons, for an order adjourning the hearing on 6 November 2013 and a further order that the District Court proceedings be adjourned pending the outcome of the defendants’ earlier filed appeal. A Judge of the Supreme Court dismissed the applications. An order was made that the appeals be consolidated.
On 6 November 2013, Chief Judge Muecke heard submissions on the Commissioner’s application of 2 September 2013 and the defendants’ interlocutory application of 19 September 2013 and reserved judgment. The Chief Judge refused an application to adjourn the proceedings pending the resolution of the appeals and the publication of reasons for his orders of 28 November 2012.
Between 10 December 2013 and 3 April 2014, directions hearings in the Supreme Court addressed the preparation of the consolidated appeals for hearing.
On 24 April 2014, Chief Judge Muecke delivered his decision on the applications for a stay and the setting aside of the orders made on 28 November 2012. The Chief Judge refused to set aside the examination order in respect of Mr Ruzehaji and refused to stay the proceedings. The Chief Judge granted the Commissioner’s application to examine the six other persons concerning the defendants’ affairs. The Chief Judge published three sets of reasons.[12] They addressed his reasons for making the ex parte orders on 28 November 2012, the orders made on 6 November 2013 and the application that he provide reasons for his orders of 28 November 2012.
[12] Commissioner of the Australian Federal Police v Ruzehaji & Anor (No 1) [2014] SADC 60; Commissioner of the Australian Federal Police v Ruzehaji & Anor (No 2) [2014] SADC 61; Commissioner of the Australian Federal Police v Ruzehaji & Anor (No 3) [2014] SADC 62.
The consolidated appeals came on for hearing before this Court in May 2014. In addition to complaining by way of appeal, the defendants sought relief by way of judicial review. The Commissioner acknowledged that this Court’s appellate jurisdiction was broad enough to grant all the relief sought by the defendants. In these circumstances, it is unnecessary for the Court to consider granting any relief by way of judicial review.
The Chief Judge – the Debate about Reasons
The defendants submitted that the reasons of the Chief Judge in respect of the making of the orders of 28 November 2012 were delivered when he was functus officio. In the alternative, it was said that the reasons were so delayed – by a period of almost 18 months – as to be of little or no assistance. The defendants also complained of the delay in the Judge’s determination of the applications dealt with on 6 November 2013.
The duty of judicial officers to provide reasons for their decisions is a well-established incident of the judicial process and is necessary to enable appellate review.
In Palmer v Clarke,[13] Kirby P and Priestley JA reviewed the common law and the oft-related statutory duty of subordinate courts to pronounce judgment and contemporaneously deliver reasons in support of decisions.[14] The authorities recognise that, while flexibility with respect to the publication of reasons can be extended to superior courts of unlimited jurisdiction, in interlocutory matters such as voir dire rulings and various applications in the civil jurisdiction, the obligation on summary and inferior courts is strict. There is a common law duty that such courts provide reasons no later than at the time of judgment. Priestley JA observed:[15]
... Lying behind the formal requirements concerning judgments in the District Court are practical necessities, in the absence of which the court system either could not operate or could only operate with quite unacceptable difficulty. One is that the date when a judgment becomes enforceable must be unambiguous and immediately knowable to any interested person. Another is that the reasons for the judgment must be known at the time of the judgment. Amongst the reasons for this is the necessity, as it seems to me, for parties to know at once why their rights have been affected by a judgment in whatever way the judgment has affected those rights. Also, immediate appeals may sometimes have to be lodged. Also, it seems to me to be highly desirable to enable public confidence in the administration of justice to be maintained for the reasons for the affectation of rights to be known immediately the rights are affected.
Priestley JA then noted:[16]
The matters I have mentioned are only some of those which seem to me to point overwhelmingly towards the need for rules which ensures that there is certainty both about the date of judgment and the reasons for that judgment; the latter preceding the former.
[13] Palmer v Clarke (1989) 19 NSWLR 158.
[14] See, e.g., Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd (2001) 4 VR 28; Director of Public Prosecutions (Tas) v Cook (2006) 166 A Crim R 234.
[15] Palmer v Clarke (1989) 19 NSWLR 158, 174.
[16] Palmer v Clarke (1989) 19 NSWLR 158, 175.
In Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd, Chernov JA noted the clear distinction between inferior courts and superior courts of unlimited jurisdiction with respect to the time at which reasons should be delivered:[17]
… [T]here may be circumstances where the reasons are given “very soon” after the pronouncement of judgment. That view is consistent with the practice of the courts to which I will refer later, including the High Court and this court, that although ordinarily reasons are given when judgment is pronounced, where the justice of the situation requires it there may be an appreciable gap between the pronouncement of judgment and the delivery of reasons.
Chernov JA then went on to discuss the desirability of the timely publication of reasons:[18]
... First, the parties are entitled to a decision which is based on the reasoning process of the judge which has been concluded by the time the decision is pronounced. The court should not reserve to itself the opportunity to mould reasons, after the pronouncement of judgment, so as to make them appear consistent with the decision. That is not to say, of course, that a judge cannot review the reasons after they have been published... Secondly, the unsuccessful party should be in a position to determine within the time constraints imposed by the Rules of Court, whether to appeal against the decision. From a realistic point of view, it can only do this if the reasons for the decision are made available to it when, or very shortly after, judgment is pronounced. There are other sound reasons based on policy and practical considerations which were mentioned by Kirby P and Priestley JA in Palmer and to which I have referred which support the view that as a general rule, all judicial officers who are required to give reasoned judgments, should do so when pronouncing them. But it is another thing altogether to say, as the appellant contends, that a judge of a court of unlimited jurisdiction is under a strict duty to give reasons contemporaneously with the decision.
[17] Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd (2001) 4 VR 28, [28].
[18] Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd (2001) 4 VR 28, [31].
In Director of Public Prosecutions (Tas) v Cook, Crawford J, citing the authorities considered by the Victorian Court of Appeal in Fletcher Construction Australia Ltd v Lines MacFarlane & Marshall Pty Ltd, summarised the rationale underlying the provision of reasons in a timely manner as follows:[19]
… [T]he provision of reasons for decisions serves at least four purposes. It enables the parties to appreciate both the extent to which their arguments have been understood and accepted and the basis of the judge’s decision; it furthers judicial accountability; it enables an understanding of the basis on which like cases will probably be decided in the future; and it enables an appeal court to determine whether the decision was or was not based on an error of law or some other appealable error. Associated with the first and last of those purposes is to be included an enabling or facilitating of the making of a decision by an unsuccessful party whether or not to appeal. With that object in mind, it is usually desirable that reasons be published at the time of a judgment or ruling, and if that is not reasonably possible, then as soon thereafter as the judicial officer can manage it and before the time for an appeal has expired. But in a superior court there is no rule of law that requires it.
[19] Director of Public Prosecutions (Tas) v Cook (2006) 166 A Crim R 234, [24].
This review of authority confirms the importance of reasons being provided at or soon after judgment. It is plainly desirable that parties have reasons for judgment so that they are in a position to exercise their rights of appeal. However, none of the authorities go so far as to say that late reasons are not to be had regard to.
The Commissioner submitted that there was no express legislative requirement in the present proceeding that reasons be given. It was emphasised that the order of 28 November 2012 was made ex parte and provided for a restraining order and other related orders, including an examination order. It was said that the orders on this occasion were not final orders and that, in the ordinary course, they would not usually be the subject of appeal because an affected party could apply to have the orders revoked or varied.
The Commissioner contended that, on the return date, 19 December 2012, the defendants sought and consented through their solicitor to a variation of the orders. In March and April 2013, the orders were further varied by consent. On 5 February 2013, the ordered section 39 statement was sworn by Mr Ruzehaji. The examination ordered by the Judge was conducted in March 2013. The orders made were being varied by consent, and were being complied with and were simply not under challenge. It was said that, in these circumstances, it was understandable that the Judge did not provide reasons.
The Commissioner further pointed out that it was not until September 2013 that the District Court became aware that any contentious issue had arisen. A date for the hearing of the defendants’ applications was promptly set for 6 November 2013. Earlier in these reasons, it has been pointed out that, on 28 October 2013, a hearing before the Chief Judge took place to adjourn the 6 November 2013 hearing and the Commissioner made an application for the provision of reasons in regard to the 28 November 2012 orders. The Judge’s immediate task was to determine the application of the defendants listed for hearing on 6 November 2013. By this time, issues under the Constitution had arisen for argument. The matter had become complex. It was submitted that, when these circumstances are properly understood, the delivery of reasons by the Chief Judge on all matters on 24 April 2014 was understandable and not unreasonable.
The Commissioner further submitted that, on one hand, the defendants complained about the delay in reasons and suggested that they could not be had regard to by this Court, while, on the other hand, making reference to and placing reliance on those reasons in their primary submissions. In the Commissioner’s contention, the reasons provided by the Chief Judge were of considerable assistance in explaining the basis of the making of his orders, both in regard to the making of the initial restraining order and related orders and in the subsequent orders to decline to set aside those orders or order a stay.
In my view, the submissions of the Commissioner should be accepted. I consider, as to be discussed later, the true nature of the orders made in November 2012 to be interlocutory and, although initially made ex parte, the orders were the subject of variation and compliance by consent. There has been acquiescence and compliance. There was no application for reasons by the defendants and it is reasonable to assume that it would have appeared to the Judge that matters were proceeding with the acquiescence of the defendants. I do not consider that, in these circumstances, the Judge was under an obligation to provide reasons for what, in my view, were interlocutory orders. Later in these reasons, the characterisation of the orders is addressed. Had the defendants on the return date in December 2012 indicated that the orders were challenged and made a request for reasons, there is little doubt they would have been provided.
In any event, even if the circumstances were not as described above, I do not consider that the Judge was functus officio. I have found the reasons to be of assistance in understanding the background of the matter and the rationale for the Judge acting as he did. The Judge has acknowledged in the course of his reasons that the passage of time has affected his recollection of certain matters.
Against the above background, it is convenient to now turn to discuss the statutory scheme before considering the particular submissions advanced.
The Scheme of the Proceeds of Crime Act 2002 (Cth)
Part 1-2 of the Proceeds of Crime Act sets out the principal objects of the Act. Those objects include: to deprive persons of the proceeds of offences and the benefits derived from offences against the laws of the Commonwealth; to deprive persons of unexplained wealth that the person cannot satisfy a court was not derived from certain offences; the making of confiscation orders and restraining orders; and to enable law enforcement authorities effectively to trace proceeds, benefits and unexplained wealth amounts.
Part 1-3 provides an outline to the Act. Section 6 provides:
This Act establishes a scheme to confiscate the proceeds of crime. It does this by:
(a) setting out in Chapter 2 processes by which confiscation can occur; and
(b)setting out in Chapter 3 ways in which Commonwealth law enforcement agencies can obtain information relevant to these processes; and
(c) setting out in Chapter 4 related administrative matters.
It concludes with miscellaneous provisions and with definitions and other interpretive material.
Section 7 outlines the confiscation scheme contained in Chapter 2 of the Act and, in particular, addresses freezing orders, restraining orders and forfeiture orders. Section 8 outlines the information gathering process addressed in Chapter 3 and identifies the five ways that information may be obtained, including examination orders, orders for the production and inspection of documents, the provision of information from financial institutions and the searching for and seizing of tainted property or evidentiary material. Chapter 3 also authorises the disclosure to specified authorities for certain purposes of information obtained under the Chapter 3 information gathering processes.
Before coming to address the issues arising on the appeal, it is convenient to briefly summarise provisions of particular relevance. It will be necessary to return later in the reasons to discuss aspects of these provisions in more detail.
The orders under appeal in the within proceeding include a restraining order made pursuant to section 18, an order for the delivery up of the possession of property pursuant to section 39, and an examination order pursuant to section 180. Section 18 provides as follows:
Restraining orders—people suspected of committing serious offences
When a restraining order must be made
(1) A court with *proceeds jurisdiction must order that:
(a) property must not be disposed of or otherwise dealt with by any person; or
(b) property must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in the order;
if:
(c) a *proceeds of crime authority applies for the order; and
(d) there are reasonable grounds to suspect that a person has committed a *serious offence; and
(e) any affidavit requirements in subsection (3) for the application have been met; and
(f) the court is satisfied that the *authorised officer who made the affidavit holds the suspicion or suspicions stated in the affidavit on reasonable grounds.
Note:A court can refuse to make a restraining order if the Commonwealth refuses to give an undertaking: see section 21.
Property that a restraining order may cover
(2)The order must specify, as property that must not be disposed of or otherwise dealt with, the property specified in the application for the order, to the extent that the court is satisfied that there are reasonable grounds to suspect that that property is any one or more of the following:
(a) all or specified property of the *suspect;
(aa) all or specified *bankruptcy property of the suspect;
(b) all property of the suspect other than specified property;
(ba) all bankruptcy property of the suspect other than specified bankruptcy property;
(c) specified property of another person (whether or not that other person’s identity is known) that is subject to the *effective control of the suspect;
(d) specified property of another person (whether or not that other person’s identity is known) that is:
(i) in any case—*proceeds of the offence; or
(ii)if the offence to which the order relates is a *serious offence—an *instrument of the offence.
Affidavit requirements
(3)The application for the order must be supported by an affidavit of an *authorised officer stating:
(a) that the authorised officer suspects that the *suspect committed the offence; and
(b) if the application is to restrain property of a person other than the suspect but not to restrain *bankruptcy property of the suspect—that the authorised officer suspects that:
(i) the property is subject to the *effective control of the suspect; or
(ii) in any case—the property is *proceeds of the offence; or
(iii)if the offence to which the order relates is a *serious offence—the property is an *instrument of the offence.
The affidavit must include the grounds on which the *authorised officer holds those suspicions.
Restraining order need not be based on commission of a particular offence
(4)The reasonable grounds referred to in paragraph (1)(d) need not be based on a finding as to the commission of a particular *serious offence.
Risk of property being disposed of etc.
(5)The court must make a *restraining order even if there is no risk of the property being disposed of or otherwise dealt with.
Later acquisitions of property
(6)The court may specify that a *restraining order covers property that is acquired by the *suspect after the court makes the order. Otherwise, no property that is acquired after a court makes a restraining order is covered by the order.
Sections 25 and 26 provide for how restraining orders are to be obtained:
25 Proceeds of crime authority may apply for a restraining order
A *proceeds of crime authority may apply for a *restraining order.
26 Notice of application
(1) Subject to subsection (4), the *responsible authority must:
(a) give written notice of an application for a *restraining order covering property to the owner of the property (if the owner is known); and
(b) include with the notice a copy of the application and any affidavit supporting the application.
(2) Subject to subsection (4), the *responsible authority must also:
(a) give written notice of an application for a *restraining order covering property to any other person the authority reasonably believes may have an *interest in the property; and
(b) include with the notice:
(i) a copy of the application; and
(ii) a further notice that the person may request that the authority give the person a copy of any affidavit supporting the application.
The authority must comply with any such request as soon as practicable.
(3) The court must not (unless subsection (4) applies) hear the application unless it is satisfied that the owner of the property to which the application relates has received reasonable notice of the application.
(4) The court must consider the application without notice having been given if the *responsible authority requests the court to do so.
(5) The court may, at any time before finally determining the application, direct the *responsible authority to give or publish notice of the application to a specified person or class of persons. The court may also specify the time and manner in which the notice is to be given or published.
(6) A person who claims an *interest in property may appear and adduce evidence at the hearing of the application.
Division 4 of Part 2-1 addresses the giving of effect to restraining orders and, inter alia, provides in section 33:
Notice of a restraining order
(1)If a court makes a restraining order covering property that a person owns, the responsible authority must give written notice of the order to the person.
Note: A person who was not notified of the application for a restraining order may apply to revoke the restraining order within 28 days of being notified of the order: see section 42.
(2)The responsible authority must include a copy of the application and any affidavit supporting the application with the notice (if those documents have not already been given to the person).
(3) However, the court may order that:
(a) all or part of the application or affidavit is not to be given to the person; or
(b) the responsible authority delay giving the notice (and the documents included with the notice) for a specified period;
if the authority requests the court to do so and the court considers that this is appropriate in order to protect the integrity of any investigation or prosecution.
(4)If the court orders the responsible authority to delay giving the notice (and the documents included with the notice) for a specified period, the authority must give the notice as soon as practicable after the end of that period.
Division 5 of part 2-1 addresses the topic of further orders to be made in aid of a restraining order. Section 38 empowers a court to order that the Official Trustee take custody and control of property. Section 39 provides for a range of ancillary orders. Relevant to the present matter, these include directing a person to make a sworn statement setting out his or her interest in property as well as in other dealings with property. Section 39, inter alia, provides:
(1) The court that made a *restraining order, or any other court that could have made the restraining order, may make any ancillary orders that the court considers appropriate and, without limiting the generality of this, the court may make any one or more of the following orders:
(a) an order varying the property covered by the *restraining order;
(b) an order varying a condition to which the restraining order is subject;
…
(ca) an order directing the *suspect in relation to the restraining order to give a sworn statement to a specified person, within a specified period, setting out all of his or her *interests in property, and his or her liabilities;
…
(e) if the Official Trustee is ordered under section 38 to take custody and control of property:
…
Sections 41 and 42 are concerned with applications to revoke a restraining order and provide:
41 When a restraining order is in force
A *restraining order is in force from the time at which it is made.
42 Application to revoke a restraining order
(1) A person who was not notified of the application for a *restraining order may apply to the court to revoke the order.
(1A) The application must be made:
(a) within 28 days after the person is notified of the order; or
(b) if the person applies to the court, within that period of 28 days, for an extension of the time for applying for revocation—within such longer period, not exceeding 3 months, as the court allows.
(2) The applicant must give written notice to the *responsible authority and the *Official Trustee of both the application and the grounds on which the revocation is sought.
(3) However, the *restraining order remains in force until the court revokes the order.
(4) The *responsible authority may adduce additional material to the court relating to the application to revoke the *restraining order.
(5) The court may revoke the *restraining order if satisfied that:
(a) there are no grounds on which to make the order at the time of considering the application to revoke the order; or
(b) it is otherwise in the interests of justice to do so.
Section 45 is concerned with the circumstances in which a restraining order ceases to have effect. Those circumstances include the withdrawal of a restraining order, the acquittal of the person, the quashing of the relevant conviction, and where the person has not been charged or convicted of a relevant offence within a specified time. In the present proceeding, none of the circumstances that would lead to a withdrawal have occurred.
Part 2-2 makes provision for forfeiture orders. The provisions are extensive. Forfeiture orders under section 48 may follow from a person’s conviction for indictable offences, as well as in other circumstances. Forfeiture orders are final orders.
Information gathering, as earlier discussed, is addressed in chapter 3. Section 180 is concerned with examination orders relating to restraining orders and is in the following terms:
Examination orders relating to restraining orders
(1) If a *restraining order is in force, the court that made the restraining order, or any other court that could have made the restraining order, may make an order (an examination order) for the *examination of any person, including:
(a) a person whose property is, or a person who has or claims an *interest in property that is, the subject of the restraining order; or
(b) a person who is a *suspect in relation to the restraining order; or
(c) the spouse or *de facto partner of a person referred to in paragraph (a) or (b);
about the *affairs of a person referred to in paragraph (a), (b) or (c).
(2) The *examination order ceases to have effect if the *restraining order to which it relates ceases to have effect.
The making of examination orders is governed by section 182, which is in the following terms:
Applications for examination orders
(1) An *examination order can only be made on application by the *responsible authority for the *principal order, or the application for a principal order, in relation to which the examination order is sought.
(2) The court must consider an application for an *examination order without notice having been given to any person if the *responsible authority requests the court to do so.
Division 2 of chapter 3 is concerned with the provision of examination notices to persons the subject of examination orders. The relevant sections provide as follows:
183 Examination notices
(1) An *approved examiner may, on application by the *responsible authority, give to a person who is the subject of an *examination order a written notice (an examination notice) for the *examination of the person.
(2) However, the *approved examiner must not give the *examination notice if:
(a) an application has been made under section 42 for the *restraining order to which the notice relates to be revoked; and
(b) the court to which the application is made orders that *examinations are not to proceed.
(3) The fact that criminal proceedings have been instituted or have commenced (whether or not under this Act) does not prevent the *approved examiner giving the *examination notice.
(4) An approved examiner is a person who:
(a) holds an office, or is included in a class of people, specified in the regulations; or
(b) is appointed by the Minister under this section.
184 Additional examination notices
A person who is the subject of an *examination order may be given more than one *examination notice.
185 Form and content of examination notices
(1) The *examination notice:
(a) must be in the prescribed form; and
(b) must require the person to attend the *examination; and
(c) must specify the time and place of the examination; and
(d) must specify such further information as the regulations require.
(2) The *examination notice may require the person to produce at the *examination the documents specified in the notice.
The conduct of examinations is the subject of provisions within division 3 of chapter 3 and it will be convenient to return to these provisions later in these reasons. Division 4 of chapter 3 is concerned with offences relating to examinations.
Part 3-6 of chapter 3 is headed “Disclosure of Information” and of particular relevance to the present proceeding is section 266A, which provides:
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 the person believes on reasonable grounds that the disclosure will serve that purpose:
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
Authority of a foreign country that has a function of investigating or prosecuting offences against a law of the country
Assisting in the prevention, investigation or prosecution of an offence against that law constituted by conduct that, if it occurred in Australia, would constitute an offence against a law of the Commonwealth, or of a State or Territory, punishable on conviction by imprisonment for at least 3 years or for life
3
Australian Taxation Office
Protecting public revenue
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.
Relationship with subsection 228(2)
(8) To avoid doubt:
(a) this section does not limit subsection 228(2) (about a *search warrant authorising the *executing officer to make things seized under the warrant available to officers of other *enforcement agencies); and
(b) subsection 228(2) does not limit this section.
Chapter 5 addresses a number of miscellaneous matters. Section 319 is concerned with stays of proceedings and provides:
Stay of proceedings
The fact that criminal proceedings have been instituted or have commenced (whether or not under this Act) is not a ground on which a court may stay proceedings under this Act that are not criminal proceedings.
The appeals to this Court challenge orders made by Judge Muecke under the Proceeds of Crime Act. Many issues were raised, including an attack on the constitutionality of a number of the provisions within the Proceeds of Crime Act. Before coming to discuss these particular challenges, it is necessary to address two preliminary matters.
The Powers of the District Court of South Australia
When a Commonwealth statute invests jurisdiction in a State court, it is established that it is for the court to which the matter is referred to exercise its authority according to that court’s rules of procedure. This principle was discussed by the High Court in Electric Light and Power Supply Corporation Ltd v Electricity Commission of NSW, where the Court relevantly observed:[20]
Section 3 of the Purchase Act takes the course of referring a particular matter for hearing and determination to an existing court established as part of the judicial system of the State, the proceedings of which are regulated by a statutory enactment and a body of rules, and the authority of which is amplified by some, and qualified by other, provisions of the enactment, one qualification being the duty to state a case upon a question of law if required by a party. When such a course is adopted it is taken to mean, unless and except in so far as the contrary intention appears, that it is to the court as such that the matter is referred exercising its known authority according to the rules of procedure by which it is governed and subject to the incidents by which it is affected. There are well-known passages in National Telephone Co. Ltd. v. Postmaster-General, which it may be as well to quote. Viscount Haldane L.C. said: “When a question is stated to be referred to an established court without more, it, in my opinion, imports that the ordinary incidents of the procedure of that court are to attach, and also that any general right of appeal from its decisions likewise attaches”. Lord Parker of Waddington said: “Where by statute matters are referred to the determination of a court of record with no further provision, the necessary implication is, I think, that the court will determine the matters, as a court. Its jurisdiction is enlarged, but all the incidents of such jurisdiction, including the right of appeal from its decision, remain the same”. Lord Shaw of Dunfermline said: “In the general case, when a court of record … becomes possessed, by force of agreement and statute, of a reference to it of differences between parties, the whole of the statutory consequences of procedure before such a court ensue”. The application of the rule is no doubt stronger in cases where the reference is not of a specific matter but is general and covers all matters of a given description...
[Footnotes omitted. Emphasis added.]
[20] Electric Light and Power Supply Corporation Ltd v Electricity Commission of NSW (1956) 94 CLR 554, 559.
More recently, in Northern Territory of Australia v GPAO, Gleeson CJ and Gummow J observed:[21]
The objective of s 79 [of the Judiciary Act] is to facilitate the particular exercise of federal jurisdiction by the application of a coherent body of law, elements in which may comprise the laws of the State or Territory in which the jurisdiction is being exercised, together with the laws of the Commonwealth, but subject always to the overriding effect of the Constitution itself. Seen in that light, the notion of "inconsistency" involved in the phrase "otherwise provided" in s 79 is akin to that first identified by Mason J in the passage from the judgment in University of Wollongong v Metwally set out earlier in these reasons. This is the need to resolve the problem that arises by conflict between conflicting statutes having the same source. The law of a State or Territory which is to operate as a surrogate law of the Commonwealth is to be measured beside other laws of the Commonwealth.
[Footnote omitted.]
The parties accepted that section 79 operates to apply State provisions to extend time.[22]
[21] Northern Territory of Australiav GPAO (1999) 196 CLR 553, [80].
[22] Gordon v Tolcher (2006) 231 CLR 334.
Further, the Proceeds of Crime Act does not affect the inherent power of a court invested with jurisdiction to make such orders, including orders to stay proceedings under the Act, where those proceedings are considered to be an abuse of process or create a real risk of interference with the administration of justice. In Lee v Director of Public Prosecutions (Cth), Basten JA, MacFarlane JA and Sackville AJA agreeing, observed:[23]
There was no challenge to the view that the Court had power to grant a stay of steps which might be taken under the Proceeds of Crime Act (Cth) where that course was necessary to avoid an apprehended abuse of process. That power was implicitly acknowledged in the statutory limitation on its exercise in the following provision:
“319 Stay of proceedings
The fact that criminal proceedings have been instituted or have commenced (whether or not under this Act) is not a ground on which a court may stay proceedings under this Act that are not criminal proceedings.”
[23] Lee v Director of Public Prosecutions (Cth) (2009) 75 NSWLR 581, [38].
The High Court in Commissioner of the Australian Federal Police v Zhao addressed the power of courts to order a stay and section 319 in the following terms:[24]
Section 319 impliedly acknowledges what is in any case true: that the courts have the power to control their proceedings and to order a stay in an appropriate case. It will be appropriate to do so where the interests of justice require such an order. Section 319 is not expressed to refer specifically to a circumstance where the issues in the forfeiture proceedings and the criminal proceedings are substantially identical. The POC Act does not presume to say what a court should do in such a circumstance.
[24] Commissioner of the Australian Federal Police v Zhao [2015] HCA 5, [36].
The Character of the Orders of 28 November 2012
A question arose as to whether the orders made on 28 November 2012 should be characterised as interlocutory or final and, in particular, whether the orders determined the substantive rights of the defendants.
The defendants initially submitted that these orders and, in particular, the examination order, were determinative of Mr Ruzehaji’s rights, including what was described as a right not to submit to a compulsory examination process in which privilege against self-incrimination was abrogated. That privilege was contended to be a substantive right. It was argued in the alternative that if all other orders made on 28 November 2012 were to be characterised as interlocutory, the restraining order remained a final order. The defendants submitted that this was so notwithstanding their ability to apply under section 42 of the Proceeds of Crime Act to revoke the restraining order. Initially, it was contended that once the section 42 time limit had passed, the only remedy available to the defendants was by way of appeal to the Supreme Court.
In the submission of the Commissioner, the orders of 28 November 2012 were interlocutory. It was pointed out that there was no final disposition of any matter.
The tests for determining whether a matter is interlocutory or final were formulated by the High Court in Licul v Corney, where Barwick CJ expressed the following view:[25]
… To be final for this purpose, the order, in my opinion, must of its own force put an end to the action or proceeding between the parties. …
[25] Licul v Corney (1976) 180 CLR 213, 219.
Gibbs J, in a more detailed analysis, made the following observation:[26]
The distinction between final and interlocutory judgments is not always easy to draw and there has been disagreement as to the test by which the question whether a judgment is final or interlocutory is to be determined. One view – which was preferred by the Court of Appeal in Salter Rex & Co. v. Ghosh – is that the test depends on the nature of the application made to the Court. The other view which, since Hall v. Nominal Defendant, should, I think, be regarded as established in Australia, depends on the nature of the order made; the test is: Does the judgment or order, as made, finally dispose of the rights of the parties? Within either of those tests the judgment of the Full Court in the present case is not a final judgment. It does not have the effect of finally disposing of the rights of the parties. It leaves it open – at least in theory – to the applicants to make a further application, upon prior notice served on the respondent himself, for an extension of time for service of each summons, and if that extension is granted, and the summonses are served, to proceed with the actions. The order is therefore not final in nature whatever its practical effect may be. If it were right to test the matter by looking at the application rather than at the order the same result would follow even more clearly, since the application was not of such a character that whatever order was made on it would finally have disposed of the matters in dispute; in fact of course the order made by Judge Rapke did not do so.
[Footnotes omitted.]
[26] Licul v Corney (1976) 180 CLR 213, 225.
Applying these tests leads to the conclusion that the orders of 28 November 2012 were interlocutory in nature. In the words of Barwick CJ, the orders did not, of their own force, put an end to the action or proceeding between the parties. In the words of Gibbs J, the orders did not finally dispose of the rights of the parties.
A review of the statutory provisions discloses that the restraining order was open to review under section 42. It was accepted by both parties that the time limit imposed by section 42 could be the subject of an extension order under the Limitation of Actions Act 1936 (SA). Counsel for the Commissioner, whose primary submission was that the orders were interlocutory, accepted that the Judge had jurisdiction under the District Court Rules to reconsider, vary and, if need be, set aside all or any of the orders. It was accepted that the restraining order was in the nature of an ex parte injunctive order and, as such, on the return date fixed by the Judge, had the defendants wished, they could have required the Commissioner to make out his case for a continuation of the order and to carry the onus in doing so. The same concession was made in regard to the other orders, including the examination order.
The statutory provisions concerning restraint and information gathering are primarily in aid of the making of a forfeiture order. It is that order which finally disposes of the proceedings. That is the substantive relief to which the proceedings are directed.
Once it is accepted that the orders of 28 November 2012 were interlocutory, it follows that an application may be made to set aside those orders. In the present proceeding, as earlier observed, the defendants acquiesced in the continuation of the orders, sought and acquiesced in variations of the orders, and complied with the orders, including attending at the ordered examination. The concern that has led to the present proceedings appears to have been an attempt by the Commissioner to further examine Mr Ruzehaji and to examine other persons. The examination orders follow on from the restraining order. It remained open for a Judge of the District Court to review each of those orders.
A further matter arising from the characterisation of the orders as interlocutory relates to the jurisdiction of the court to order a stay of the proceedings. Counsel for the Commissioner accepted that the District Court was entitled to make such an order as being within its inherent jurisdiction.
The Appeal
The Orders Made on 28 November 2012
The defendants first submitted that the orders of 28 November 2012 were final orders. For the reasons earlier set out, I reject this submission. In my view, the orders were interlocutory.
In the alternative, the defendants advanced a number of further complaints. The substance of these complaints was that: the Judge was in error to proceed on an ex parte basis; the Commissioner had failed to make proper disclosure on the ex parte application; and the Judge, in making his orders, failed to accord procedural fairness to the defendants, took into account irrelevant considerations and failed to provide reasons.
Four further grounds were identified, but all were related to the application for judicial review and were, as I understand it, no more than a reformulation of the above grounds.
Acquiescence and Compliance
There was no application to set aside any of the orders made by the Judge or for a stay until September 2013. Between November 2012 and September 2013, the defendants acquiesced in the orders; sought and agreed to variations of the orders; and complied with the orders without protest. That compliance included the provision of a sworn statement concerning property and the attendance for examination. Mr Ruzehaji was represented by senior counsel on the examination.
It is relevant to recall the following observations of the High Court in Coulton v Holcombe:[27]
[27] Coulton v Holcombe (1986) 162 CLR 1, 8.
In our opinion, no distinction is to be drawn in the application of these principles between an intermediate court of appeal and an ultimate court of appeal. Finally, in a recent decision of six justices of this Court (University of Wollongong v. Metwally [No.2]) the Court said:
"It is elementary that a party is bound by the conduct of his case. Except in the most exceptional circumstances, it would be contrary to all principle to allow a party, after a case had been decided against him, to raise a new argument which, whether deliberately or by inadvertence, he failed to put during the hearing when he had an opportunity to do so."
The Court of Appeal recognized the great importance, in the public interest, of these principles. Their Honours summarized them in the following terms:
"the finality of litigation; the difficulty of inducing an appeal court to consider new facts; the undesirability of encouraging tactical decisions not to present an issue at first instance: keeping it in reserve for appeal; and the need for vigilance to avoid injustice to a party having to meet new facts and new issues of law for the first time at the appeal court".
[Footnote omitted. Emphasis added.]
In the present proceedings, not only were the points now sought to be argued not taken before the District Court Judge, but the orders were varied by consent and there was compliance, both in respect of the order to provide a sworn statement of assets and the order to attend for examination.
As earlier noted, it appears that the trigger for the within proceedings was the desire of the Commissioner to further examine Mr Ruzehaji and also to examine other persons about the affairs of the defendants. It was open to the defendants to pursue the applications and to appeal to this Court, with permission if necessary, in respect of any adverse determination to their applications heard on 6 November 2013. However, I consider the factors of acquiescence and compliance very relevant to what may be described as technical complaints about the process undertaken in November 2012 and the suggested failure of the Judge to provide reasons. Earlier, I have discussed and rejected the contention that the Judge should not have provided reasons when he did so.
Having regard to the foregoing, I reject the submissions advanced by the defendants concerning the Judge’s delay in providing reasons and seeking to set aside the orders for the provision of an affidavit and examination. I now turn to the remaining issues.
The Use of the Examination Transcript
The defendants contended that certain provisions of the Proceeds of Crime Act were in breach of the Constitution. Attention was drawn to section 266A, as earlier extracted and, in particular, the provision that the examination transcript could be provided to an authority of the Commonwealth that has the function of investigating or prosecuting offences against a law of the Commonwealth for the purpose of assisting in the prevention, investigation or prosecution of an offence against a law that is punishable on conviction by imprisonment for at least three years.
It is to be accepted that the Proceeds of Crime Act contemplates and 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 sections 183(3), 186(3) and 319. It is to be further accepted that section 197(2)(a) of the Proceeds of Crime Act, as qualified by section 198, abrogates the privilege against self-incrimination. It is further clear that section 266A of the Proceeds of Crime Act denies an examinee any derivative use immunity.
The Commissioner accepted that, when regard is had to the above matters, it is evident that relevant provisions of the Proceeds of Crime Act involve a degree of departure from the accusatorial and adversarial processes traditionally forming part of the criminal law.
In X7 v Australian Crime Commission,[28] Hayne and Bell JJ discussed the nature of a criminal trial and the privilege against self-incrimination:
[28] X7 v Australian Crime Commission (2013) 248 CLR 92, [101]-[108].
As will be shown, the whole of the process for the investigation, prosecution and trial of an indictable Commonwealth offence is accusatorial. It is accusatorial in the sense that an accused person is not called on to make any answer to an allegation of wrong-doing, or to any charge that is laid, until the prosecuting authorities have made available to the accused particulars of the evidence on which it is proposed to rely in proof of the accusation that is made. And even after that information has been provided, the accused person need say or do nothing more than enter a plea of guilty or not guilty to the charge. If the accused person chooses to plead not guilty at trial, he or she is entitled to put the prosecution to proof of the charge and, as part of that process, to test the strength of the evidence which the prosecution adduces at trial. The only relevant limit on the accused person’s testing of the strength of the prosecution’s case is provided by the accused person’s instructions to his or her lawyer. The lawyer cannot test the prosecution case in a manner inconsistent with the accused person’s instructions.
The privilege against self-incrimination and the “right to silence”
These features of the accusatorial system of criminal justice can be described as an accused having a “right to silence”. And discussion of the “right to silence” must often proceed in conjunction with a discussion of the privilege against self-incrimination. But, as this Court’s decision in Environment Protection Authority v Caltex Refining Co Pty Ltd shows, the privilege against self-incrimination is distinct from what was there described as “[t]he fundamental principle that the onus of proof beyond reasonable doubt rests on the Crown” and its “companion rule that an accused person cannot be required to testify to the commission of the offence charged”.
In this case, it is necessary to unpack the content of both the privilege against self-incrimination and the so-called “right to silence” to identify whether compulsory examination of a person charged with an offence about the subject matter of the offence charged would be an impermissible interference with the due administration of criminal justice.
As four members of this Court said in Reid v Howard, “[t]he privilege [against self-incrimination], which has been described as a ‘fundamental … bulwark of liberty’, is not simply a rule of evidence, but a basic and substantive common law right”. The evolution of and rationale for the privilege against self-incrimination have been described in various ways. No single explanation has achieved universal acceptance, whether in judicial decisions or academic writings. But neither the existence nor the content of those controversies can be understood as denying that the privilege is now regarded as being “a basic and substantive common law right”, and not just a rule of evidence. That is, it is not a privilege which is concerned only with the use to which answers given may be put at, or in connection with, a trial. It is a privilege which permits the refusal to make an answer regardless of whether the answer is admissible as testimonial evidence. The accusatorial process of criminal justice and the privilege against self-incrimination both reflect and assume the proposition that an accused person need never make any answer to any allegation of wrong-doing.
The notion of an accused person’s “right to silence” encompasses more than the rights that the accused has at trial. It includes the rights (more accurately described as privileges) of a person suspected of, but not charged with, an offence, and the rights and privileges which that person has between the laying of charges and the commencement of the trial.
Accusatorial process of investigation
Part IC (ss 23-23W) of the Crimes Act 1914 (Cth) regulates the investigation of Commonwealth offences. Section 23A(2) provides that Pt IC “does not exclude or limit the operation of a law of a State or Territory so far as it can operate concurrently” with the Part. Section 23A(5) provides that: “The provisions of this Part, so far as they protect the individual, are in addition to, and not in derogation of, any rights and freedoms of the individual under a law of the Commonwealth or of a State or Territory.”
Subject to s 23F(3), if a person is under arrest for a Commonwealth offence, “an investigating official” (which includes (s 23B(1)) a member of the Australian Federal Police and a member of the police force of a State or Territory) “must, before starting to question the person, caution the person that he or she does not have to say or do anything, but that anything the person does say or do may be used in evidence” (s 23F(1)). Section 23F(3) provides that the obligation imposed by s 23F(1) to administer a caution does “not apply so far as another law of the Commonwealth requires the person to answer questions put by, or do things required by, the investigating official”.
Section 23F, with its requirement that, in general, persons under arrest for Commonwealth offences are to be cautioned that they need not say or do anything, is, of course, an important manifestation of an accused’s right to silence. The importance of that general rule is reinforced by s 23S(a) of the Crimes Act, which provides that:
“Nothing in this Part affects:
(a) the right of a person to refuse to answer questions or to participate in an investigation except where required to do so by or under an Act.”
In Lee v The Queen, the High Court similarly observed:[29]
Our system of criminal justice reflects a balance struck between the power of the State to prosecute and the position of an individual who stands accused. The principle of the common law is that the prosecution is to prove the guilt of an accused person. This was accepted as fundamental in X7. The principle is so fundamental that “no attempt to whittle it down can be entertained” albeit its application may be affected by a statute expressed clearly or in words of necessary intendment. The privilege against self-incrimination may be lost, but the principle remains. The principle is an aspect of the accusatorial nature of a criminal trial in our system of criminal justice.
The companion rule to the fundamental principle is that an accused person cannot be required to testify. The prosecution cannot compel a person charged with a crime to assist in the discharge of its onus of proof. Recognising this, statute provides that an accused person is not competent to give evidence as a witness for the prosecution, a protection which cannot be waived.
The purpose of s 13(9) of the NSWCC Act was to protect the fair trial of a person who might be charged with offences. It supported the maintenance of the system of criminal justice referred to in X7 and the trial for which that system provides, in which the prosecution has a defined role and the accused does not. The protective purpose of s 13(9) would usually require that the Commission quarantine evidence given by a person to be charged from persons involved in the prosecution of those charges. It would require the Commission to make a direction having that effect and to maintain the prohibition in the face of requests for access to the evidence. That purpose was not met in the present case, with the consequence that the appellants’ trial differed in a fundamental respect from that which our criminal justice system seeks to provide.
[29] Lee v The Queen (2014) 88 ALJR 656, [32]-[34].
The defendants submitted that the privilege against self-incrimination is an integral element in the exercise of judicial power reposed in the courts by chapter 3 of the Constitution. This proposition has been rejected by the High Court. An example is to be found in the judgment of Mason, Wilson and Dawson JJ in Sorby v The Commonwealth:[30]
In any event the privilege against self-incrimination is not an integral element in the exercise of the judicial power reposed in the courts by Ch. III of the Constitution. It is a privilege that has been abrogated by legislative action in Australia, the United Kingdom and Canada without anyone having previously suggested that it involved the elimination of an integral element in the exercise of judicial power in a democratic society.
…
... These developments are fundamentally inconsistent with the notion that the privilege against self-incrimination is an integral part of the exercise of judicial power. No doubt, like other features of our system of criminal justice, it has a long history and confers a very valuable protection. But it is quite another thing to say that it is an immutable characteristic of the exercise of judicial power.
[30] Sorby v The Commonwealth (1983) 152 CLR 281, 308.
Similarly, the High Court has decided that the alteration of the location and burden of proof traditionally associated with the accusatorial and adversarial processes of the criminal law is not repugnant to chapter 3 of the Constitution. As Brennan CJ observed in Nicholas:[31]
[31] Nicholas v The Queen (1998) 193 CLR 173, [23]-[24].
The judicial power of a court is defined by the matters in which jurisdiction has been conferred upon it. The conferral of jurisdiction prima facie carries the power to do whatever is necessary or convenient to effect its exercise. The practice and procedure of a court may be prescribed by the court in exercise of its implied power to do what is necessary for the exercise of its jurisdiction but subject to overriding legislative provision governing that practice or procedure. The rules of evidence have traditionally been recognised as being an appropriate subject of statutory prescription. A law prescribing a rule of evidence does not impair the curial function of finding facts, applying the law or exercising any available discretion in making the judgment or order which is the end and purpose of the exercise of judicial power. E S Roscoe, observing that the common law had produced a law of evidence of such high technicality as "justly merited the wholesale condemnation of Bentham" credits Lord Denman with the initiation of the move for legislative reform. The preamble to the Evidence Act 1843 (Imp) shows the need which was perceived to warrant legislative intervention:
"Whereas the Inquiry after Truth in Courts of Justice is often obstructed by Incapacities created by the present Law, and it is desirable that full Information as to the Facts in Issue, both in Criminal and in Civil Cases, should be laid before the Persons who are appointed to decide upon them"
it was enacted that certain evidentiary rules be changed. Even though judicial opinion was opposed to the enactment of the Criminal Evidence Act 1898 (Imp), it would not have occurred to the Imperial Parliament that a legislative power to prescribe rules of evidence might be regarded as a usurpation of judicial power.
In The Commonwealth v Melbourne Harbour Trust Commissioners, Knox CJ, Gavan Duffy and Starke JJ said:
"A law does not usurp judicial power because it regulates the method or burden of proving facts."
And in Williamson v Ah On, Higgins J said that "the evidence by which an offence may be proved is a matter of mere procedure". He added:
"The argument that it is a usurpation of the judicial power of the Commonwealth if Parliament prescribe what evidence may or may not be used in legal proceedings as to offences created or provisions made· by Parliament under its legitimate powers is, to my mind, destitute of foundation."
However, Isaacs J pointed out a difference between a rule of evidence and a provision which, though in the form of a rule of evidence, is in truth an impairment of the curial function of finding the facts and hence an usurpation of judicial power. He said:
"It is one thing to say, for instance, in an Act of Parliament, that a man found in possession of stolen goods shall be conclusively deemed to have stolen them, and quite another to say that he shall be deemed to have stolen them unless he personally proves that he got them honestly."
If a court could be directed by the legislature to find that an accused, being found in possession of stolen goods, had stolen them, the legislature would have reduced the judicial function of fact finding to the merest formality. The legislative instruction to find that the accused stole the goods might prove not to be the fact. The legislature itself would have found the fact of stealing. Isaacs J continued:
The first is a parliamentary arbitrary creation of a new offence of theft, leaving no room for judicial inquiry as to the ordinary offence; the second is only an evidentiary section, altering the burden of proof in the ordinary case of theft, and requiring certain preappointed evidence to fit the special circumstances in the interests of justice, because the accused best knows the facts, and leaving the Court with these provisions to examine the facts and determine the matter. "
The reversal of an onus of proof affects the manner in which a court approaches the finding of facts but is not open to constitutional objection provided it prescribes a reasonable approach to the assessment of the kind of evidence to which it relates. Rich and Starke JJ held that a grant of power to make laws for the peace, order and good government of a territory carried the power "to enact whatever laws of evidence it thinks expedient, and in particular justifies laws regulating the burden of proof, both in civil and criminal cases ... and it is not for the Courts of law to say whether the power has been exercised wisely or not". The same view was taken by Gibbs and Mason JJ in Milicevic v Campbell and by Gibbs CJ in Sorby v The Commonwealth.
[Footnotes omitted.]
The circumstances that arise in considering the relevant provisions of the Proceeds of Crime Act are different to those under consideration by the High Court in International Finance Trust Company and Another v New South Wales Crime Commission and Others,[32] another authority relied upon by the defendants. Importantly, there is no requirement on a court to determine an application for an examination order under section 182 of the Proceeds of Crime Act on an ex parte basis, but only to “consider” such an application. Further, there is no barrier to a person against whom an order is made applying to revoke or vary that order and relying on any material or arguments they wish in support of such an application. Finally, the grounds on which an application to revoke or vary an examination order made ex parte could include any failure to make full and frank disclosure in the ex parte application. I reject the defendants’ constitutional challenge.
[32] International Finance Trust Company and Another v New South Wales Crime Commission and Others (2009) 240 CLR 319.
To my mind, the principal and substantive issue to be determined on this appeal is whether further examination of the defendant should be stayed pending the final determination of the criminal proceedings. In Zhao, the High Court held that the respondents in that proceeding were entitled to a temporary stay of forfeiture proceedings under the Proceeds of Crime Act pending the resolution of criminal proceedings in circumstances where the issues in the forfeiture proceedings and the criminal proceedings were substantially identical.
The defendants submitted that the court’s powers to order a stay are not diminished by the operation of section 319 of the Proceeds of Crime Act. It was submitted that Mr Ruzehaji had previously been examined about matters directly relevant to the criminal proceedings. It was contended that Zhao was not distinguishable from the present case and that this Court should adopt the approach taken by the High Court in Zhao. It was submitted that Zhao concerned the same provision of the same legislation applicable to the present case, unlike Lee v New South Wales Crime Commission. It was further submitted that the prejudice to Mr Ruzehaji is comparable to that in Zhao.
The Commissioner pointed out that the decision in Zhao did not address the examination provisions of the Proceeds of Crime Act.[33] The Commissioner pointed out that there were material differences between the provisions of the Proceeds of Crime Act governing forfeiture to be found in part 2-2 and those governing examination orders to be found in part 3-1. Particular attention was drawn to: the express abrogation of the rights to silence and self-incrimination for examination but not forfeiture proceedings; the purpose of examination proceedings being to secure information to track down and follow the reinvestment of proceeds of crime; that forfeiture proceedings are held in open court, in contrast to examinations; and the more expansive immunity afforded to persons the subject of examination proceedings with respect to answers or documents obtained in examination proceedings being used in criminal or civil proceedings, compared with the protections afforded to persons the subject of forfeiture proceedings. Counsel for the Commissioner further pointed out that, when considering the question of a stay, the risk of prejudice was speculative and not real, in contrast to Zhao.
[33] Commissioner of Australian Federal Police v Zhao (2015) 89 ALJR 331, [32].
There were, however, observations in Zhao that are relevant to the within proceedings. The High Court made it clear that criminal proceedings are not necessarily an impediment to civil proceedings under the Proceeds of Crime Act:[34]
Section 319, which is set out above, clearly contemplates that where criminal proceedings are brought with respect to an offence related to civil proceedings for restraining orders or forfeiture orders, an application for a stay may be brought. Its terms suggest that a person charged with an offence which is relevant to forfeiture or other civil proceedings brought under the POC Act must do more than point to the existence of criminal proceedings in order to obtain a stay of the civil proceedings.
Further, the High Court observed:[35]
Section 319 impliedly acknowledges what is in any case true: that the courts have the power to control their proceedings and to order a stay in an appropriate case. It will be appropriate to do so where the interests of justice require such an order. Section 319 is not expressed to refer specifically to a circumstance where the issues in the forfeiture proceedings and the criminal proceedings are substantially identical. The POC Act does not presume to say what a court should do in such a circumstance.
[34] Commissioner of Australian Federal Police v Zhao (2015) 89 ALJR 331, [30].
[35] Commissioner of Australian Federal Police v Zhao (2015) 89 ALJR 331, [36].
The Commissioner submitted that the High Court decision of Lee v New South Wales Crime Commission,[36] which is binding on this Court, was not qualified or overruled by the High Court in Zhao.
[36] Lee v New South Wales Crime Commission (2013) 251 CLR 196.
In Lee v New South Wales Crime Commission,[37] 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.
[37] Lee v New South Wales Crime Commission (2013) 251 CLR 196.
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[38] 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.
[38] Commissioner of Australian Federal Police v Zhao (2015) 89 ALJR 331.
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.[39] 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”.
[39] Lee v Director of Public Prosecutions (Cth) (2009) 75 NSWLR 581, [40].
On the hearing of the appeal, senior counsel appearing for the Commissioner expressly confirmed the undertaking referred to above, namely that the examination would not address the subject matter of the criminal charges.
The Commissioner drew attention to the further protection provided by the Proceeds of Crime Act in the event of any possible future or potential risk of unfairness in the conduct of criminal proceedings. First, pursuant to section 198, an answer given or document produced in an examination is not admissible in evidence in criminal proceedings against the person who gave the answer or produced the document, except in certain identified circumstances which are not presently relevant. Second, under section 266A(3), no answer or document, and no information contained in an answer or document, given or produced by an examinee in an examination that is disclosed to an investigating or prosecuting authority under section 266A is admissible in evidence in criminal proceedings against the examinee. Third, under section 193, an examinee may seek appropriate directions from the approved examiner preventing or restricting disclosure to the public of matters contained in answers given or documents produced in the course of examination, including for the purpose of preventing any unfair prejudice to the examinee’s reputation and any failure by the approved examiner to provide any, or any adequate, directions of this kind could be met with remedies by way of judicial review, including prohibition and certiorari. Fourth, an examination is conducted before an approved examiner, who is either a member of the Administrative Appeals Tribunal; a former Magistrate; a former Judge of the Supreme Court, District Court, or County Court; or is appointed by the Minister and therefore has the institutional independence, professional standing and expertise necessary to ensure that an examination is conducted fairly and in accordance with the Act. Fifth, an examinee’s lawyer is entitled to be present at an examination and may, at such times during the examination as the approved examiner determines, address the approved examiner and examine the examinee about the matters which the approved examiner, or the Commissioner, has examined the person. Finally, an approved examiner may, including at the request of the examinee, refer to this Court any question of law arising at the examination. Contrary to the defendants’ submissions, the potential for indirect or derivative use by prosecuting authorities of any answers given at the examination does not justify or require the stay of an examination. On the contrary, Parliament has explicitly averted to derivative use immunity and has declined to provide it. It is to be recalled that the High Court has recently made it clear that there are remedies available to an accused if derivative use is made of such material in a prosecution such that it causes an accused not to receive a fair trial.[40]
[40] Lee v The Queen (2014) 308 ALR 252.
A Further Matter
Criminal proceedings against Mr Ruzehaji have been the subject of an Information laid in the District Court of South Australia and had been listed for trial in October 2015. Mr Ruzehaji made an application for a permanent stay of those proceedings on the basis of prejudice set to arise from the examination conducted during 2013. That application has yet to be fully argued and has been stood over pending the decision of this Court in respect of these proceedings. The District Court will determine, in due course, whether Mr Ruzehaji is entitled to a stay as a result of matters arising in and from the examination conducted in March of 2013.
Conclusion
I would dismiss the appeals and the application for judicial review.
PEEK J. I agree with the orders proposed by Gray J and I substantially agree with his reasons.
NICHOLSON J. I agree with Gray J.
14
24
1