Saad v Commissioner of the Australian Federal Police

SUPREME COURT OF VICTORIA
COURT OF APPEAL

S EAPCI 2021 0015

JOSEPH SAAD and others according to the attached schedule	Applicants
v
COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE	Respondent

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JUDGES:	BEACH, SIFRIS and WALKER JJA
WHERE HELD:	MELBOURNE
DATE OF HEARING:	6 August 2021
DATE OF JUDGMENT:	3 September 2021
MEDIUM NEUTRAL CITATION:	[2021] VSCA 246
JUDGMENT APPEALED FROM:	[2020] VCC 2080 (Judge Dyer)

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CONFISCATION – Restraining order – Revocation – Evidence – Where respondent adduced affidavit of authorised officer in support of restraining order – Whether evidence admissible – Whether officer required to disclose source of information in affidavit – Whether hearsay rule engaged – Evidence admissible – Appeal dismissed – Mai v Commissioner of the Australian Federal Police (2020) 62 VR 118; Hyder v Commonwealth [2012] NSWCA 336; New South Wales Crime Commission v Vu [2009] NSWCA 349; International Finance Trust Co Ltd v New South Wales Crime Commission [2008] NSWCA 291; DPP (ACT) v Hiep (1998) 86 FCR 33; George v Rockett (1990) 170 CLR 104 considered – Proceeds of Crime Act 2002 (Cth) ss 18, 19, 42, 49, 315(2)(b) – Evidence Act 2008 (Vic) ss 59(1), 75.

CONFISCATION – Restraining order – Revocation – Jurisdiction – Whether admissibility of evidence adduced in support of restraining order can be challenged on revocation application – Whether evidence can only be contested on appeal – Admissibility of evidence can be challenged on revocation application – DPP (Cth) v Kamal [2011] WASCA 55 considered – Proceeds of Crime Act 2002 (Cth) ss 18, 42.

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APPEARANCES:	Counsel	Solicitors
For the Applicants	Mr P Solomon QC with Mr C Juebner and Ms A Singh	Doogue and George Criminal Lawyers
For the Respondent	Ms L De Ferrari SC with Ms R Burton	Australian Federal Police

BEACH JA:

I agree with Walker JA.

SIFRIS JA:

I agree with Walker JA.

WALKER JA:

Introduction

In December 2019 certain property belonging to the applicants was the subject of restraining orders made pursuant to s 18 of the Proceeds of Crime Act 2002 (Cth) (‘POCA’). Those orders were made ex parte. The applicants later sought to have the restraining orders revoked pursuant to s 42 of the POCA. The sole basis for the revocation application was that the key parts of the evidence that had been adduced in support of the application for the restraining orders was hearsay (the ‘impugned evidence’) and was inadmissible because the affidavits filed in support of the application did not disclose the source of the hearsay evidence. That was said to mean that the hearsay evidence did not fall within s 75 of the Evidence Act 2008 (Vic)[1] (which permits hearsay evidence to be adduced in an interlocutory application ), and thus it was inadmissible.

[1]The applicants submitted that the relevant evidence legislation was the Evidence Act 2008 (Vic), whereas the respondent submitted that the relevant Act was the Evidence Act 1995 (Cth). In my opinion the applicants’ submission should be accepted. That is because s 4 of the Commonwealth Evidence Act applies that Act to proceedings in a federal court, but does not apply it to proceedings in State courts. Section 5 then makes provision for the ‘extended application’ of the Commonwealth Evidence Act to proceedings in ‘Australian Courts’, which is defined to include State and Territory courts. But that extended application relevantly applies only certain sections to proceedings that are interlocutory in nature. Those sections do not include s 59 or s 75. In those circumstances the Victorian Evidence Act will be picked up and applied by s 79 of the Judiciary Act 1903 (Cth), because the Commonwealth Evidence Act does not ‘otherwise provide’. (The respondent also submitted that the key provisions in issue are identical in the two Acts, so it does not ultimately matter which Act is applied. Having said that, not all the provisions to which I shall refer are identical.)

The revocation application was dismissed by the trial judge in December 2020. The trial judge found, in summary, that the affidavits relied upon by the respondent at the hearing of the revocation applications were not relied upon for proof of a fact, but were relied upon for proof of a suspicion held on reasonable grounds.[2] As a consequence he held that the objections to admissibility failed.
[2]Saad v Australian Federal Police [2020] VCC 2080, [67] (‘Reasons’).

The applicants now seek leave to appeal from the trial judge’s decision. The applicants contend, by proposed ground 1, that the trial judge erred in finding that the affidavits were not relied upon for proof of a fact, and, by proposed ground 2, that he should have determined that:

(a) in order to establish reasonable grounds for the requisite suspicion, the respondent was required to prove facts;

(b) those facts were required to be proved by admissible evidence; and

(c) the admissible evidence at the hearing of the revocation applications was insufficient for a finding that the authorised officer who made the affidavit had reasonable grounds for the stated suspicion.

At the hearing of the appeal, argument was directed to three issues:

(d) First, does s 75 of the Evidence Act have any role to play in determining whether an affidavit filed in support of an application for a restraining order under s 18 of the POCA is admissible? (‘Issue 1’)

(e) Second, if s 75 does have a role to play, was its requirement that the affidavit state the source of the hearsay material satisfied by the affidavits filed by the respondent, so as to render the impugned evidence admissible under that section? In particular, can a general introductory statement identifying the sources of information by reference to entities, but without reference to particular identified individuals, satisfy the requirement in s 75 that the source of the hearsay is identified? (‘Issue 2’)

(f) Third, can the admissibility of the affidavit material relied upon to make a restraining order under s 18 be challenged on a revocation application under s 42 of the POCA, or must such a challenge occur only by way of an appeal against the restraining order? (‘Issue 3’)[3]

[3]Although on one view Issue 3 might be thought to arise first, the applicants dealt with the issues in this order in oral argument, as did the respondent in his written case. I have dealt with them in the same order.

For the reasons that follow, I would grant leave to appeal but dismiss the appeal. In summary, I have concluded as follows:

(g) As to Issue 1: s 75 of the Evidence Act does not have a role to play in determining whether an affidavit filed in support of an application for a restraining order under s 18 of the POCA is admissible. That affidavit must set out the grounds on which the deponent suspects that the suspect has committed a serious offence. That is directed to identifying the matters in the mind of the deponent that caused him or her to form the suspicion. It is not directed to the truth or otherwise of those matters. Section 59 of the Evidence Act is thus not engaged, and there is thus no need to resort to s 75 to permit the giving of hearsay evidence.

(h) As to Issue 2: in light of my conclusion on Issue 1, Issue 2 does not arise. Nor do I consider it appropriate to express my views on Issue 2. Although the application of s 75 to the affidavits in question was argued before us, the effect, if any, of s 9(2)(c) of the Evidence Act, which preserves the operation of the courts’ general law powers in relation to evidence in interlocutory proceedings, was not the subject of argument. I consider it would be inappropriate to determine the admissibility of the impugned evidence pursuant to s 75 only, without considering the relationship between s 75 and the courts’ general law powers in relation to evidence in interlocutory proceedings, or the admissibility of the impugned evidence pursuant to those general law powers.

(i) As to Issue 3: although the resolution of Issue 1 is sufficient to dispose of the appeal, it is appropriate to express my conclusion on Issue 3. In my opinion the admissibility of the affidavit material relied upon to make a restraining order under s 18 could be challenged on an application under s 42 of the POCA. It is not the case that such a point may be taken only on an appeal against the order.

Relevant legislation
The POCA

The POCA provides a regime by which property that is used in, or is the proceeds of, serious criminal offending can be forfeited to the State. The making of restraining orders fits into that regime by ensuring that property is not disposed or otherwise dissipated prior to the determination of whether it is to be forfeited. The regime was described by N Adams J in Commissioner of the Australian Federal Police v Tjongosutiono, in a passage approved by this Court in Mai v Commissioner of the Australian Federal Police,[4] as involving several ‘interlocutory stages’, as follows:

Before a court makes any forfeiture order under the Act in relation to property either suspected of being the proceeds of an offence or the instrument of a serious offence, there are a number of interlocutory stages through which the proceedings might pass. The first stage is that the Commissioner seeks that the relevant property be restrained. Those proceedings are usually heard and determined ex parte.
If the restraint proceedings have been heard ex parte and orders restraining the property made, then the owner of the property is entitled to have the orders revoked under s 42 or the Act, presuming the application is brought within 28 days. …
Proceedings brought under s 42 of the Act are effectively ‘strike-out’ proceedings heard after the restraining orders are first made and before the matter proceeds any further.
Presuming that a revocation application is unsuccessful, the next stage is usually that the owner of the property will be examined under s 180 of the Act. …
After he or she has been examined, the property owner can seek that an interest held in the restrained property be excluded from the restraining order. Section 29 provides that an exclusion order can be made in relation to a restraining order if the court is satisfied that the relevant interest is neither the proceeds of a relevant indictable offence or an instrument of any serious offence. Section 32 provides that such an order cannot be made until after the property owner has been examined under the Act.
Presuming that no exclusion order has been made, the next stage is that the Commissioner will seek a forfeiture order under ss 47 or 49 of the Act. Section 49(4) confers a discretion upon the court to refuse to make a forfeiture order if, although satisfied that the property is an instrument of a serious offence, it is not satisfied that it is the proceeds of an offence and it is also satisfied that it is ‘not in the public interest to make the order’. Section 73 provides that the court is to make an order excluding specified property from a forfeiture order if satisfied that it is neither the proceeds of unlawful activity nor the instrument of a serious offence.[5]

[4](2020) 62 VR 118, 122 [9]; [2020] VSCA 38 (‘Mai’).

[5][2018] NSWSC 48, [96]–[101] (‘Tjongosutiono’).

The present case is at the early part of those various stages: restraining orders have been granted under s 18, and an application for revocation has been made under s 42. It is thus necessary to focus on those provisions in particular. However, although no restraining order was made under s 19, the applicants invoked s 19, together with s 49, as part of their argument. It is thus necessary also to consider the operation of those sections and their place in the POCA regime.

The objects of the POCA are set out in s 5, relevantly as follows:

The principal objects of this Act are:
(a)to deprive persons of the proceeds of offences, the instruments of offences, and benefits derived from offences, against the laws of the Commonwealth or the non‑governing Territories; and
(b)to deprive persons of literary proceeds derived from the commercial exploitation of their notoriety from having committed offences; and
(ba)to deprive persons of unexplained wealth amounts that the person cannot satisfy a court were not derived or realised, directly or indirectly, from certain offences; and
(c)to punish and deter persons from breaching laws of the Commonwealth or the non‑governing Territories; and
(d)to prevent the reinvestment of proceeds, instruments, benefits, literary proceeds and unexplained wealth amounts in further criminal activities; and

(da) to undermine the profitability of criminal enterprises.

Section 18 of the POCA provides as follows:

18 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.

Property that a restraining order may cover
(2)The order must specify, as property that must not be disposed of or otherwise dealt with, the property specified in the application for the order, to the extent that the court is satisfied that there are reasonable grounds to suspect that that property is any one or more of the following:
(a)       all or specified property of the suspect;
...
(b)       all property of the suspect other than specified property;
...
(c)specified property of another person (whether or not that other person’s identity is known) that is subject to the effective control of the suspect;
(d)specified property of another person (whether or not that other person’s identity is known) that is:
(i)        in any case—proceeds of the offence; or
(ii)if the offence to which the order relates is a serious offence—an instrument of the offence.

Affidavit requirements
(3)The application for the order must be supported by an affidavit of an authorised officer stating:
(a)that the authorised officer suspects that the suspect committed the offence; and
(b)if the application is to restrain property of a person other than the suspect 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.

I interpolate here that the term ‘suspect’ is a defined term, as follows:

suspect means:
(a)in relation to a restraining order (other than a restraining order made under section 20A) or a confiscation order (other than an unexplained wealth order) — the person who:
(i) has been convicted of; or
(ii) has been charged with, or is proposed to be charged with; or
(iii)if the order is a restraining order — is suspected of having committed; or

(iv) if the order is a confiscation order — committed;

the offence or offences to which the order relates.

If a restraining order under s 18 is in force, then s 47 provides for a court to make a forfeiture order in relation to the restrained property, as follows:

47 Forfeiture orders—conduct constituting serious offences
(1)A court with proceeds jurisdiction must make an order that property specified in the order is forfeited to the Commonwealth if:
(a)the responsible authority for a restraining order under s 18 that covers the property applies for an order under this subsection; and
(b)the restraining order has been in force for at least 6 months; and
(c)the court is satisfied that a person whose conduct or suspected conduct formed the basis of the restraining order engaged in conduct constituting one or more serious offences.
Note: The order can be made before the end of the period of 6 months referred to in paragraph (1)(b) if it is made as a consent order: see s 316.

(2)A finding of the court for the purposes of paragraph (1)(c) need not be based on a finding as to the commission of a particular offence, and can be based on a finding that some serious offence or other was committed.
(3)The raising of a doubt as to whether a person engaged in conduct constituting a serious offence is not of itself sufficient to avoid a finding by the court under paragraph (1)(c).

Refusal to make a forfeiture order
(4)Despite subsection (1), the court may refuse to make an order under that subsection relating to property that the court is satisfied:
(a)is an instrument of a serious offence other than a terrorism offence; and

(b) is not proceeds of an offence;

if the court is satisfied that it is not in the public interest to make the order.

Section 19 of the POCA provides as follows:

19 Restraining orders—property suspected of being proceeds of indictable offences etc.
When a restraining order must be made
(1) A court with proceeds jurisdiction must order that:
(a)property must not be disposed of or otherwise dealt with by any person; or
(b)property must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in the order;

if:
(c) a proceeds of crime authority applies for the order; and
(d) there are reasonable grounds to suspect that the property is:
(i)the proceeds of a terrorism offence or any other indictable offence, a foreign indictable offence or an indictable offence of Commonwealth concern (whether or not the identity of the person who committed the offence is known); or

(ii) an instrument of a serious offence; and
(e)the application for the order is supported by an affidavit of an authorised officer stating that the authorised officer suspects that:
(i)in any case — the property is proceeds of the offence; or
(ii)if the offence to which the order relates is a serious offence — the property is an instrument of the offence;

and including the grounds on which the authorised officer holds the suspicion; and
(f)the court is satisfied that the authorised officer who made the affidavit holds the suspicion stated in the affidavit on reasonable grounds.

Property that a restraining order may cover
(2) The order must specify, as property that must not be disposed of or otherwise dealt with, the property specified in the application for the order, to the extent that the court is satisfied that there are reasonable grounds to suspect that that property is:
(a) in any case — proceeds of the offence; or
(b)if the offence to which the order relates is a serious offence — an instrument of the offence.

...
Restraining order need not be based on commission of a particular offence
(4)The reasonable grounds referred to in paragraph (1)(d) need not be based on a finding as to the commission of a particular offence.

Section 49 of the POCA provides as follows:

49Forfeiture orders — property suspected of being proceeds of indictable offences etc.
(1)A court with proceeds jurisdiction must make an order that property specified in the order is forfeited to the Commonwealth if:
(a)the responsible authority for a restraining order under section 19 that covers the property applies for an order under this subsection; and
(b)the restraining order has been in force for at least 6 months; and
(c)the court is satisfied that one or more of the following applies:
(i)the property is proceeds of one or more indictable offences;
(ii)the property is proceeds of one or more foreign indictable offences;
(iii)the property is proceeds of one or more indictable offences of Commonwealth concern;
(iv)the property is an instrument of one or more serious offences; and
(e)the court is satisfied that the authority has taken reasonable steps to identify and notify persons with an interest in the property.

(2) A finding of the court for the purposes of paragraph (1)(c):
(a)need not be based on a finding that a particular person committed any offence; and
(b)need not be based on a finding as to the commission of a particular offence, and can be based on a finding that some offence or other of a kind referred to in paragraph (1)(c) was committed.

(3) Paragraph (1)(c) does not apply if the court is satisfied that:
(a)no application has been made under Division 3 of Part 2-1 for the property to be excluded from the restraining order; or
(b)any such application that has been made has been withdrawn.

Refusal to make a forfeiture order
(4)Despite subsection (1), the court may refuse to make an order under that subsection relating to property that the court is satisfied:
(a)is an instrument of a serious offence other than a terrorism offence; and
(b)is not proceeds of an offence;

if the court is satisfied that it is not in the public interest to make the order.

While a restraining order under ss 18 and 19 need not be made ex parte, it can and often will be. In those circumstances, a person affected by such an order may seek to have it revoked under s 42 of the POCA. That section provides as follows:

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.

Importantly for present purposes, s 315(2)(b) of the POCA provides that the rules of evidence applicable in civil proceedings apply to proceedings under the POCA (except in proceedings concerning offences under the Act). That then directs attention to the Evidence Act.

The Evidence Act

The Evidence Act relevantly provides as follows:

(j) Section 59 contains the general prohibition against the use of hearsay evidence:

The hearsay rule — exclusion of hearsay evidence
(1)Evidence of a previous representation made by a person is not admissible to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation.

(2) Such a fact is in this Part referred to as an asserted fact.
(2A)For the purposes of determining under subsection (1) whether it can reasonably be supposed that the person intended to assert a particular fact by the representation, the court may have regard to the circumstances in which the representation was made.
Note:Subsection (2A) was inserted as a response to the decision of the Supreme Court of NSW in R v Hannes (2000) 158 FLR 359.[6]
[6]Emphasis in original.

(k) Section 75 contains an exception to the hearsay rule:

Exception: interlocutory proceedings
In an interlocutory proceeding, the hearsay rule does not apply to evidence if the party who adduces it also adduces evidence of its source.

(l) Section 9 relevantly provides as follows:

Application of common law and equity
(1)This Act does not affect the operation of a principle or rule of common law or equity in relation to evidence in a proceeding to which this Act applies, except so far as this Act provides otherwise expressly or by necessary intendment.
(2)Without limiting subsection (1), this Act does not affect the operation of such a principle or rule so far as it relates to any of the following —
…
(c)a court’s power to dispense with the operation of a rule of evidence or procedure in an interlocutory proceeding.

(m) Section 190 relevantly provides as follows:

Waiver of rules of evidence
(1)The court may, if the parties consent, by order dispense with the application of any one or more of the provisions of —
…
(c) Parts 3.2–3.8 —
in relation to particular evidence or generally.

…
(3)In a civil proceeding, the court may order that any one or more of the provisions mentioned in subsection (1) do not apply in relation to evidence if:
(a) the matter to which the evidence relates is not genuinely in dispute; or
(b)the application of those provisions would cause or involve unnecessary expense or delay.

Factual and procedural background

On 10 December 2019 the respondent filed an application under s 25 of the POCA for restraining orders pursuant to s 18 in relation to property said to be under the effective control of the following persons:

(n) Joseph Saad, the first applicant;

(o) Ramy Saad, the third applicant;

(p) Jared Gersun; and

(q) Daniel Baronian.

The latter two persons are not parties to the present application. Collectively, I refer to these four persons as ‘the suspects’.

In support of the First Restraining Order Application, the respondent filed an affidavit of Federal Agent Mark Anthony John Creighton sworn 10 December 2019 (the ‘First Creighton Affidavit’).

On 10 December 2019, his Honour Judge Misso granted the respondent’s application and made the restraining orders sought (the ‘First Restraining Order’), ex parte, pursuant to s 18 of the POCA, in relation to property said to be under the effective control of the suspects.

On 19 December 2019, the respondent filed a further application under s 25 of the POCA for restraining orders pursuant to s 18, without notice, in relation to property said to be under the effective control of the same four suspects. In support of the further application, the respondent filed a further affidavit of Mr Creighton sworn 19 December 2019 (the ‘Second Creighton Affidavit’).

On 19 December 2019, his Honour Judge Dyer granted the restraining orders sought (the ‘Second Restraining Order’), ex parte, pursuant to s 18 of the POCA, in relation to property said to be under the effective control of the suspects.

On 31 December 2019, two applications for revocation under s 42 of the POCA were filed: one by the first and second applicants, and one by the third to fifth applicants.

On 13 January 2020, his Honour Judge Higham made a third restraining order pursuant to s 18 of the POCA. That order is not the subject of this application, nor was it the subject of the revocation applications. However, in support of that third restraining order, the respondent filed an affidavit of Marco Piscicelli sworn 13 January 2020 (the ‘First Piscicelli Affidavit’). The respondent relied upon the First Piscicelli Affidavit before the primary judge in the revocation application.

On 30 March 2020, the first and second applicants, and the third to fifth applicants, filed particulars of grounds for the revocation applications. On 28 April 2020, the respondent filed a further affidavit of Mr Piscicelli sworn 28 April 2020 (the ‘Second Piscicelli Affidavit’), to be relied upon in the hearing of the revocation applications.

On 18 December 2020, his Honour Judge Dyer delivered his ruling and made orders dismissing the revocation application with costs.

The s 18 applications and the affidavits in support

As this Court observed in Mai, a critical step in the making of a restraining order under either s 18 or s 19 involves an authorised officer deposing by affidavit as to the fact that he or she holds the relevant suspicions, and stating the grounds of those suspicions: ss 18(3), 19(1)(e).[7] That affidavit will also be relevant to the assessment, under s 42, of whether there are ‘no grounds’ for the making of the restraining order. However, on a s 42 application the respondent is permitted to file further affidavits to support the restraining order.
[7]Mai (2020) 62 VR 118, 125; [2020] VSCA 38.

In the present case, the respondent initially filed one affidavit in support of each restraining order: the First Creighton Affidavit for the First Restraining Order and the Second Creighton Affidavit for the Second Restraining Order. At the hearing of the revocation application under s 42, the respondent also relied upon the First and Second Piscicelli Affidavits.

The first application for a restraining order sought orders in respect of funds standing to the credit of various bank accounts. The second application for a restraining order sought orders in respect of real property in Victoria and New South Wales, several motor vehicles and a boat. Each restraining order was sought on the basis that the suspects had committed serious offences, namely:

(r) dishonestly causing a loss to another person, namely the Department of Home Affairs, which is a Commonwealth entity, contrary to s 135.1(3) of the Criminal Code (Cth) (the ‘Fraud Offence’); and/or

(s) dealing in money reasonably suspected of being the proceeds of crime, contrary to s 400.9 of the Criminal Code (Cth) (the ‘Money Laundering Offence’).

Each application stated that an authorised officer suspected on reasonable grounds that the property the subject of the order was property of or under the effective control of the suspects.

The First Creighton Affidavit

The First Creighton Affidavit was sworn on 10 December 2019. Before the trial judge, the applicants objected to many paragraphs of the affidavit. However, before us the applicants focused their case on paragraphs 4, 17 and 18–22. They contended that, in so far as paragraph 2 set out the source of information which informed Mr Creighton’s belief, that paragraph was insufficient to satisfy the requirement in s 75 for a deponent to identify the source of hearsay evidence. I will thus focus on those paragraphs of the affidavit.

In paragraph 1 of the First Creighton Affidavit (to which no objection was taken) Mr Creighton stated that he was a member of the Australian Federal Police (‘AFP’), stationed at Melbourne in the Criminal Assets Confiscation Taskforce (‘CACT’), and that he is an authorised officer within the meaning of s 338 of the POCA. In paragraph 2 (to which no objection was taken) he explained the basis for his affidavit, as follows:

I make this affidavit from my own knowledge, information and belief obtained in the course of my duties as a member of the AFP. This knowledge, information and belief is from both my own enquiries and enquiries made by other members of the AFP about which I have been informed and which I believe to be true and correct. The sources of this information includes:
(a) files in the possession of the AFP which I have read;
(b)evidence, information and documents collected by the AFP which I have examined;

b) information obtained from the Australian Border Force (ABF);
c)information obtained from Australian Transaction Reports and Analysis Centre (AUSTRAC);
d)information obtained from the Commonwealth Bank of Australia (CBA);
e)information obtained from the Australian Securities & Investments Commission (ASIC).

In paragraph 4 (to which objection was taken), Mr Creighton stated that Joseph and Ramy Saad (and the other two suspects) are suspects in an ABF investigation codenamed Operation Cabestro into ‘a smuggling syndicate exploiting the Customs and [ATO] importation, warehousing and drawback provisions to evade the payment of duty on alcohol and receive drawbacks (refunds) on this duty where none is payable’. In paragraph 5 (to which objection was taken) he stated that he suspected that funds standing to the credit of the bank accounts in respect of which the restraining order is sought were under the effective control of the suspects.

In paragraph 6 (to which objection was taken), Mr Creighton stated that, for the reasons set out in his affidavit, he suspected that the suspects had each committed the offences set out above. He then, in paragraphs 7 to 16, set out some general information concerning the way in which customs duties are collected and administered by the ABF. That information was not specific to the applicants, and although it had been objected to below, the applicants accepted that it was not necessary for us to consider that evidence for the purposes of this appeal.

In paragraph 17 (to which objection was taken), Mr Creighton provided a summary of the ‘modus operandi of the syndicate’, as follows:

(a)Importers (VP BRANDS INTERNATIONAL PTY LTD (VP BRANDS) and SOUTH PACIFIC WORLDWIDE TRADING PTY LTD (SOUTH PACIFIC)) are importing spirits (whiskey, vodka, gin etc) and deferring the payment of customs duty by placing those spirits into a licensed warehouse;
(b)The Importers then divert the spirits from the licensed warehouse (smuggling) and provide them to domestic wholesalers (WORLDWIDE BEVERAGE PTY LTD (WWBG)). At this point no Customs Duty has been paid, and the Commonwealth has suffered a loss due to evasion of duty;
(c)The domestic wholesalers then supply to exporters (ILE TRADING PTY LTD (ILE TRADING));
(d)The exporters export spirits, and claim a drawback (refund) of duty calculated on the litres of alcohol exported. This causes a loss to the Commonwealth as no duty was paid; and
(e)The importers subsequently declare the spirits have been exported to a third country, however, the spirits have been fully substituted with beer. Beer has a much lower Customs Duty than spirits due to the lower volume of alcohol per litre.

I note that none of the companies identified in paragraph 17 are parties to the present proceeding.

In paragraphs 18–22 (to which objection was taken), Mr Creighton gave evidence concerning ABF examinations of containers designated for export, as follows:

18.Between 20 September 2019 and 2 December 2019, the ABF conducted examinations of 24 containers exported by VP BRANDS. On each occasion an Export Declaration Notice was lodged with ABF for spirits to be removed from a licenced warehouse (the licence being held by Diamondview Enterprises Pty Ltd (DIAMONDVIEW)) for export. Although their contents were declared as various spirits, each container was found to only contain Heineken brand beer. The duty payable on the spirits not located in the examined containers is in excess of AUD$23 million.
19.The total duty payable on all spirits (if they were to be entered for consumption in Australia) that have been imported by VP BRANDS from 9 August 2017 (the date VP BRANDS ceased paying duty on spirits) is in excess of AUD$252 million.
20.The total duty paid on beer imported by VP BRANDS from 9 August 2017 to 23 September 2019 is AUD$28,073,768.
21.Between 15 October 2019 and 2 December 2019, the ABF conducted examinations of five containers exported by SOUTH PACIFIC. On each occasion an Export Declaration Notice was lodged with ABF for spirits to be removed from a licenced warehouse. Although their contents were declared as various spirits, each container was found to only contain either Heineken or Peroni branded beer. The duty payable on the spirits not located in the examined containers is in excess of AUD$4.5 million.
22.I suspect that beer has been substituted for the imported spirits, and the imported spirits, on which no duty has been paid, has been smuggled out of licenced warehouses for sale in Australia and subsequent export and claim of drawback.

At paragraph 23 (parts of which were subject to objection) Mr Creighton stated that he suspected that the suspects had control over the companies he referred to in paragraphs 17 to 21. He set out that the basis for that suspicion, including by reference to company extracts and bank account opening information, each of which was exhibited to his affidavit.

In paragraphs 24 and 25 (to which objection was taken) Mr Creighton gave evidence about information obtained by the ABF from an examination of the electronic devices of Mr Baronian. That information included an email between Mr Gersun and an overseas duty free enterprise, which copied in Mr Baronian and referred to Mr Baronian as Mr Gersun’s business partner. In addition, Mr Creighton stated that the ABF had located WhatsApp messages between Mr Baronian and a person identified as ‘Ken Lewis Thailand’. In those messages it appears that Ken Lewis said to Mr Baronian that ‘It is all proceeds of crime, they have far reaching powers especially for this’, and ‘You need to talk to legal people now and move the shit off shore’. That information did not concern, and was not clearly linked to, the applicants, and although it had been objected to below, the applicants accepted that it was not necessary for us to consider that evidence for the purposes of this appeal.

In paragraph 26 (to which objection was taken), Mr Creighton stated that, ‘on the basis of the matters referred to above’, he suspected that each of the suspects had dealt in monies reasonably suspected to be the proceeds of crime. He said that he suspected that ‘the companies for which they are the sole directors and, therefore, have control of have profited from the evasion of duties payable to the Commonwealth and the receipt of drawbacks which I suspect they have fraudulently claimed’.

In paragraph 27 (to which no objection was taken), Mr Creighton then deposed to his suspicion that funds standing to the credit of various bank accounts were under the effective control of Joseph and Ramy Saad (and others). That suspicion was based on the suspects’ respective positions within each company, or their authority as a signatory in respect of the bank accounts.

In paragraphs 28–30 (to which no objection was taken), Mr Creighton deposed to matters relevant to an application for delayed notification of the affidavit to the applicants, as follows:

28.Resolution of this investigation, namely the planned execution of search warrants and the arrest of the suspects is scheduled to take place on 11 December 2019. Prior to this the investigation is covert and there are limited enquires which I cannot make for risk of alerting the suspects to the investigation.

29.My inquiries to trace the proceeds of the Fraud Offence and to identify any further assets of the suspects are ongoing.
30.As such, an order is sought to delay notification of the contents of this affidavit to allow me and the ABF investigators to continue with ongoing enquiries, and interviews with potential suspects and witnesses, without informing the suspects or examinees of the material contained in this affidavit. In this respect, I seek delayed notification for a period of 7 days to 4pm on 18 December 2019.

Finally, in paragraph 31 (to which objection was taken), Mr Creighton stated his suspicion as follows:

On the basis of the matters outlined in this affidavit, I suspect that each of the suspects have committed the Fraud and Money Laundering Offences and that the accounts specified in paragraph 27 are under their respective effective control.

The Second Creighton Affidavit

The Second Creighton Affidavit was sworn on 19 December 2019. In paragraph 2 Mr Creighton again deposed to the basis on which he made the affidavit, in the same terms as he had in the First Creighton Affidavit. He exhibited a copy of the First Creighton Affidavit, to which objection was taken.

In paragraphs 5 and 6 (to which objection was taken), Mr Creighton stated that between 11 December and 16 December 2019 search warrants were executed in Victoria and New South Wales and that during the execution of those warrants, additional property for restraint had been identified.

In paragraphs 8, 9 and 10 (to which objection was taken), Mr Creighton identified the same four suspects of the ABF investigation, and the same serious offences that the suspects were suspected to have committed, as he had identified in the First Creighton Affidavit.

In paragraph 11 (to which no objection was taken), Mr Creighton deposed that on 11 December 2019 Mr Gersun and Mr Baronian were charged with offences under s 135.1(3) and s 400 of the Criminal Code.

In paragraphs 13–37 (to which no objection was taken), Mr Creighton identified real property under the effective control of the suspects.

In paragraph 38 (to which no objection was taken), Mr Creighton stated that he suspected that if notice was given to the suspects, then most of the assets sought to be restrained may be dissipated.

Finally, in paragraph 39 (to which objection was taken), Mr Creighton deposed to his suspicions in the same terms as paragraph 31 of the First Creighton Affidavit.

The First Piscicelli Affidavit

The First Piscicelli Affidavit was sworn on 13 January 2020. It was made in support of a further application for a restraining order in relation to property under the effective control of Joseph and Ramy Saad. (As noted above, that further restraining order was made, but it is not the subject of this appeal). In paragraph 1 Mr Piscicelli stated that he was a member of the ABF, seconded to the CACT, and that he is an authorised officer within the meaning of s 338 of the POCA. In paragraph 2 he explained the basis for his affidavit, in materially the same terms as Mr Creighton had deposed in his affidavits.

In paragraphs 3 and 5 (to which objection was taken), Mr Piscicelli stated that he had read the First and Second Creighton Affidavits and that he relied upon them and believed their contents to be true. He exhibited copies of those affidavits.

In paragraph 8 (to which objection was taken), Mr Piscicelli stated that Joseph and Ramy Saad (and others) were suspects in Operation Cabestro, in materially the same terms as paragraph 4 of the First Creighton Affidavit. In paragraph 9 (to which objection was taken), he deposed that he suspected that certain bank accounts held in the name of Europeia Portugese Inter Commercio (Aus) Pty Ltd (‘EPIC’) were the proceeds of crime. EPIC is not a party to the present proceeding.

In paragraph 10 (to which objection was taken), Mr Piscicelli stated that, for the reasons outlined in the First Creighton Affidavit, he suspected that Joseph and Ramy Saad had committed serious offences under s 135.1(3) and s 400 of the Criminal Code.

In paragraphs 11–19 (to which no objection was taken), Mr Piscicelli gave evidence concerning EPIC and its connections to various entities, including:

(t) entities referred to in the First Creighton Affidavit and/or the Second Creighton Affidavit;

(u) All Stars Wide International Pty Ltd (the fifth applicant); and

(v) EMRJ Investments Pty Ltd, a company of which Joseph and Ramy Saad (and others) are shareholders and Joseph Saad is a director. He set out details of funds standing to two bank accounts of EPIC held with the CBA.

In paragraph 17 (to which no objection was taken), Mr Piscicelli deposed that on 11 December 2019, the day after the First Restraining Order was made, the sum of $4,948,000 was transferred out of one of EPIC’s accounts to Singapore. In paragraph 18 he stated that on 12 December 2019, an individual wrote to the CBA on behalf of Epic seeking to transfer $11,000,000 from a term deposit account into EPIC’s business transaction account.

In paragraph 21 (to which objection was taken), Mr Piscicelli stated that, on the basis of the matters set out in his affidavit, he suspected that each of Joseph and Ramy Saad had committed the fraud and money laundering offences and that Epic’s bank accounts were the proceeds of those offences.

The Second Piscicelli Affidavit

The Second Piscicelli Affidavit was sworn on 28 April 2020. It was filed in support of the respondent’s opposition to the applicant’s revocation application. It again contained, in paragraph 2, a general explanation of the basis on which Mr Piscicelli made the affidavit, in materially the same terms as the earlier affidavits.

In paragraphs 3–7 (to which no objection was taken), Mr Piscicelli gave evidence concerning Joseph and Ramy Saad’s relationship to two companies, VP Brands and Diamondview.

In paragraphs 8 and 9 (to which objection was taken), Mr Piscicelli then gave the following evidence:

8.On 1 October 2016, JOSEPH, on behalf of DIAMONDVIEW, applied for a warehouse licence under s 79 of the Customs Act 1901 (Cth) in respect of premises situated at 2/82 Eucumbene Drive, Ravenhall in the State of Victoria. This licence was granted on 8 December 2016. On 1 May 2019 this warehouse licence was transferred to 130 Eucumbene Drive, Ravenhall in the State of Victoria (the Licensed Warehouse).
9.The registered proprietor of the Licensed Warehouse is All Stars Wide International Pty Ltd, whose sole director is RAMY.

In paragraph 10 Mr Piscicelli stated that on 11 December 2019 officers from the AFP and members of the ABF executed a search warrant of a warehouse at 30–32 Eucumbene Drive, Ravenhall. No objection was taken to that statement. However, objection was taken to that part of paragraph 10 which defined the warehouse as ‘the Unlicensed Warehouse’ and which stated that the warehouse was not licensed under s 79 of the Customs Act and that the registered proprietor of the property was Diamond Stars (the second applicant).

In paragraph 12 (to which no objection was taken), Mr Piscicelli stated that officers of the AFP and the ABF had executed a search warrant at the warehouse and found over 700 pallets of spirits. He exhibited the AFP’s property seizure record in relation to the search warrant.

In paragraph 13 (to which objection was taken), Mr Piscicelli deposed that, according to his inquiries, VP Brands had not paid any customs duties on spirits since 9 August 2017. In paragraph 14 (to which objection was taken), he stated that no ‘Nature 30’ forms,[8] in regards to spirits, been lodged by Diamondview with the Department of Home Affairs.
[8]Customs forms known as Nature 10 FID, Nature 20 FID and Nature 30 FID were explained in the First Creighton Affidavit at paragraph 13. A Nature 30 FID permits imported goods to enter home consumption and involves paying all duties and GST.

The parties’ arguments below

In the revocation proceeding before the trial judge the applicants put on no evidence. Nor did they cross-examine either Mr Creighton or Mr Piscicelli. The principal argument before the trial judge concerned the admissibility of the affidavit evidence. The first and second applicants were represented separately from the third, fourth and fifth applicants, and the way in which their arguments were put differed slightly, but in essence the key issue was whether the critical parts of the affidavit evidence filed by the respondent were admissible. All parties accepted that the proceedings were interlocutory in nature, so that hearsay material could be relied upon. The essential objection to admissibility was that the material objected to was based on information and belief, but the deponents had not disclosed the source of their information as required by s 75 of the Evidence Act.[9]
[9]Reasons [25].

The third to fifth applicants also contended that Mr Piscicelli’s evidence was not admissible because Mr Piscicelli lacked authority to advance evidence to support a suspicion held on reasonable grounds by a different authorised officer (ie Mr Creighton).

The first and second applicants provided to the Court a marked up version of the four affidavits, with the parts to which objection was taken struck through. It is tolerably clear that, if the objections to the impugned evidence succeeded, there would be no grounds for the making (or continuation) of the restraining orders, such that the restraining order would fall to be revoked under s 42.

In contrast, the respondent contended that admissibility had to be determined by reference to the statute. He submitted that in Director of Public Prosecutions (ACT) v Hiep the Full Court had held, in the context of analogous provisions in the Proceeds of Crime Act 1991 (ACT) (the ‘ACT POCA’), that there was no requirement at law for a deponent to identify the precise source of the information or belief relied upon by the authorised officer underpinning the relevant suspicion.[10] The respondent’s submission was, in summary, that because what was being deposed to was not facts, but the grounds for a suspicion, there was no need for the deponent to give the source of his information. Relatedly, the task for the Court under s 18(1)(f) is not to decide whether the grounds for the suspicion are proved, but whether they were reasonable.
[10](1998) 86 FCR 33, 46 (‘Hiep’).

The trial judge’s reasons

The trial judge commenced his analysis with the following observations:

The essential argument raised by both applicants concerning the admissibility of affidavit material relied upon by the respondent to support the restraining orders is logically appealing if factual proof of serious offending was a pre-condition to the making of a restraining order. The statutory framework and relevant appellate authority cannot ultimately support such an interpretation of the legislation.
Much of the authority relied upon by [the applicants] concerns the admissibility of affidavit material in circumstances where factual matters are to be proved. The legislation presently under consideration does not require proof of specific facts per se to trigger the obligation of a court to impose a restraining order. What is required is the court to be satisfied that ’the authorised officer who made the affidavit holds the suspicion or suspicions stated in the affidavit on reasonable grounds.’ The affidavit requirements supporting a restraining order are also set out.[11]

[11]Reasons [57]–[58] (citations omitted).

After considering George v Rockett and Mai, his Honour went on to observe that under s 18 it is for the court to be satisfied that the authorised officer who made the affidavit supporting the application seeking the restraining order holds the relevant suspicions stated in the affidavit on reasonable grounds. He said, quoting Hadjigeorgiou v New South Wales Crime Commission, that it is not for the court itself to form a view as to the reasonableness of these grounds:

It is not for the Court to go beyond asking whether there is sufficient to induce that state of mind ‘in a reasonable person’. The Court is in that sense evaluating the exercise of that discretionary determination by another, not exercising the discretion for itself or afresh.[12]

[12]Ibid [61], quoting Hadjigeorgiou v New South Wales Crime Commission [2007] NSWCA 197, [43].

The key part of his Honour’s judgment is at [67], as follows:

In the present proceedings those passages of the Creighton and Piscicelli affidavits which are challenged are not relied upon for proof of a fact, but rather proof of a suspicion held on reasonable grounds. Whether those facts are ultimately made out in other proceedings is not a matter with which s 42 is concerned. The argument based upon inadmissibility advanced by each of the applicants, in my view cannot be supported in the present application.

The trial judge also rejected the argument put by the third to fifth applicants concerning the admissibility of Mr Piscicelli’s evidence to support a suspicion held on reasonable grounds by a different authorised officer (ie Mr Creighton).[13]
[13]Reasons [68]–[71].

The applicants’ arguments on the appeal

In this Court the applicants maintained their argument that the hearsay evidence in the Creighton and Piscicelli affidavits is inadmissible because the source of the information and belief is not disclosed. In summary, their argument has the following steps:

(w) the POCA provides a scheme which seeks forfeiture of assets without just compensation;

(x) the making of a restraining order, which is a substantial interference with the rights of property ownership, is generally the first step in the confiscation process and a jurisdictional precondition to various streams of forfeiture under the POCA that may flow;

(y) restraining orders are generally obtained ex parte;

(z) an application for a restraining order must be supported by an affidavit of an authorised officer who deposes to having a suspicion and the grounds on which that suspicion is held;

(aa) the facts that induce the suspicion of the authorised officer must be stated in the affidavit in support of the application for the restraining order;

(bb) the Evidence Act applies to proceedings under the POCA and provides that, in an interlocutory proceeding, the hearsay rule does not apply to evidence if evidence of the source is adduced;

(cc) the ‘source’ has generally been regarded as the person from whom the information was derived; and

(dd) an application for revocation of a restraining order under the POCA is an interlocutory application to which s 75 of the Evidence Act applies.

As part of their written argument, the applicants called in aid ss 19 and 42 of the POCA. Section 49 provides for the forfeiture of property following the making of a restraining order under s 19. It requires a court to make a forfeiture order in certain circumstances. The effect of s 49(3) is that a proceeds of crime authority need not satisfy the court on an application for a forfeiture order under s 49 that the property in question is proceeds of a relevant offence or an instrument of a serious offence if no application has been made for an exclusion order under s 29 or if such an application has been withdrawn. Thus a forfeiture of restrained assets can occur under s 49 in circumstances where (it transpires) the only evidence ever relied on by a proceeds of crime authority is the affidavit of the authorised officer tendered on an ex parte restraining order application under s 19, deposing to a suspicion on certain grounds. This, it was said, supported the argument that the facts underlying that suspicion must be proved by admissible evidence. This argument was referred to, but not developed, before us in oral argument.

The applicants placed extensive reliance on Allsop P’s judgment in International Finance Trust Co Ltd v New South Wales Crime Commission.[14] They also relied upon New South Wales Crime Commission v Vu[15] as confirming the correctness of Allsop P’s applicability of s 75 to the admissibility of affidavit evidence on an application for a restraining order. They urged this Court to follow each of those cases. They acknowledged that the Full Federal Court in Hiep[16] took a different approach from that adopted by Allsop P, but simply said that the Full Federal Court was wrong. I will deal with the authorities in greater detail below.
[14][2008] NSWCA 291 (‘International Finance’).
[15][2009] NSWCA 349 (‘Vu’).
[16](1998) 86 FCR 33.

The applicants made the following ‘high level observations’ directed to the proposition that the First Creighton Affidavit was inadmissible:

(ee) Mr Creighton did not identify the name of any other person within the AFP from whom he obtained information, he referred simply to ‘members of the AFP’;

(ff) Mr Creighton referred to the sources of his information as ‘including’ various files, documents and agencies, which indicated that the information sources he identified were not exhaustive;

(gg) the documents Mr Creighton said he examined (such as ‘files in the possession of the AFP’) were neither described in nor exhibited to the affidavit, and the authors of the documents were not disclosed;

(hh) the statement that there exists a ‘smuggling syndicate’ was conclusionary; and

(ii) the evidence that ‘ABF conducted examinations of 24 containers’ failed to identify any ABF officer as the source of that critical information and Mr Creighton did not anywhere say that he had participated in any of these examinations.

At the hearing, the applicants pointed particularly to paragraphs 4, 17, and 19–22. They submitted that those paragraphs constituted inadmissible hearsay; and that without those paragraphs, there were no reasonable grounds to support the suspicions to which Mr Creighton deposed.

The applicants contended that the trial judge erred in finding that the affidavits relied upon by the respondent were not relied upon to prove any facts. They pointed to the proposition, derived from George v Rockett, that ‘a suspicion is proved by the existence of facts which are sufficient to induce that state of mind in a reasonable person’. The applicants contended that it was necessary for the respondent to prove facts to establish the grounds for the suspicion and that, in proving those facts, s 315 of the POCA mandated the application of the Evidence Act — including, of course, ss 59 and 75.

The applicants accepted that the trial judge was correct to conclude that it was not necessary for the respondent to prove the commission of the suspected offences by admissible evidence. But they contended that it did not follow that the respondent did not need to prove any facts.

Finally, although not raised directly by a ground of appeal or by the applicants’ Written Case, in oral argument the applicants maintained that Mr Piscicelli’s evidence was not admissible to satisfy s 18(1)(f); that is, his evidence was not admissible to support the existence of a suspicion held by a different authorised officer (ie Mr Creighton). However, the applicants appeared to accept that Mr Piscicelli’s evidence could be used to assess whether Mr Creighton’s suspicion was held on reasonable grounds.

The respondent’s arguments on the appeal

The respondent commenced his oral argument by addressing Issue 3 identified in the introduction above, namely whether it is permissible for a suspect, on a revocation application, to challenge the admissibility of the evidence filed and acted upon by the judge who made the restraining order. The respondent contended that such a challenge could be brought only on an appeal, and not on an application under s 42. The respondent contended that, because the affidavit evidence was read on the s 18 application and so was already in evidence, its admissibility could not now be challenged on a s 42 application. The respondent contended that to permit such a challenge on a revocation application would be to confer jurisdiction on a judge of the County Court to review an earlier decision of a judge of that same Court.

In relation to the Issue 1, the respondent contended that the trial judge was correct to conclude that the passages in issue in the four affidavits were ‘not relied upon for proof of a fact, but rather proof of a suspicion held on reasonable grounds’. He contended that the trial judge was distinguishing between whether or not there was actual offending to ground the deponents’ suspicions — which did not need to be proved or determined — from the question of the reasonableness of the suspicions. That distinction, the respondent contended, is found in the authorities to emphasise that suspicion ‘does not require the forensic proof that “findings of fact” do’. The respondent contended that the trial judge’s approach was consistent with Allsop P’s judgment in International Finance.

The respondent submitted that s 75 of the Evidence Act ‘cannot be applied in isolation from specific provisions of s 18 of the [POCA]’:

Because under s 18 of the Act no underlying facts as to offending need be found, s 75 does not render inadmissible the deponents’ evidence put forward to explain the suspicions they hold. The form and detail of that evidence, rather, goes to the weight the Court gives it in determining whether such suspicions are reasonably held.

In relation to Issue 2, the respondent contended, as an alternative to his submission on the first issue, that s 75 does not require a deponent to identify the particular individuals who provided information, and that the source of information can be given in general terms. He submitted that paragraph 2 of the Creighton and Piscicelli Affidavits was sufficient to comply with that aspect of s 75.

Consideration

Issue 1: Did s 75 apply, so as to require identification of the source of the hearsay evidence?

In my opinion the trial judge was correct to conclude that s 75 of the Evidence Act did not require Mr Creighton and Mr Piscicelli to identify the individuals who were the source of the hearsay material set out in their affidavits in order for that material to be admissible. That is because the trial judge was correct to conclude that the hearsay material was put in evidence to prove the grounds — that is the reasons — for the suspicions to which each of Mr Creighton and Mr Piscicelli deposed. Thus, where the affidavits included hearsay material — that is, evidence of a previous representation made by a person — they did so not to prove the existence of a fact that that person intended to assert by the representation, but to inform the Court of the matters to which the deponents had regard in forming their suspicion, regardless of the truth or otherwise of the previous representations.

As the respondent emphasised, it is important to start by considering the statutory question being resolved on a revocation application under s 42. That statutory question is whether there are ‘no grounds’ to make a restraining order at the time the court is considering the revocation application. In Mai this Court explained the nature of the exercise under s 42 as follows:

The requirement that there be ‘no grounds’ on which to make the order plainly relates back to and invokes the statutory test for the making of restraining orders. In the present case, that requires the Court to look to the requirements of ss 18 and 19. As s 42 makes clear, the burden rests on the party seeking to have the restraining order revoked. However, that does not require that party to embark on the exercise of seeking to prove a negative proposition to the effect that there are no circumstances warranting the making of a restraining order. Rather, the application for revocation proceeds on the basis of the evidence that was before the Court making the restraining order, together with such other evidence as the parties might choose to place before it. The question for the Court will be whether the applicant for revocation has satisfied it that, on that material, a restraining order could not be made.[17]

[17](2020) 62 VR 118, 133 [46] (emphasis added) (citation omitted); [2020] VSCA 38. The Court observed that this approach is consistent with the approach of the New South Wales Court of Appeal in Lee v DPP (Cth)(2009) 75 NSWLR 581, 589 [30]; [2009] NSWCA 347 (‘Lee’) and the approach of the Western Australia Court of Appeal in DPP (Cth) v Kamal[2011] WASCA 55, [106], [254] (‘Kamal’).

The Court was quite clear that, on a s 42 application, it is necessary to apply the test set out in s 18: ‘[t]here will be no grounds on which to make the restraining order, within the meaning of s 42(5) of the Act, if the requirements for the making of an order imposed by s 18 of the Act are not made out’.[18]
[18]Mai (2020) 62 VR 118, 134 [47] (emphasis added); [2020] VSCA 38, quoting Kamal [2011] WASCA 55, [106], [142]. See also Lee (2009) 75 NSWLR 581, 589 [30]; [2009] NSWCA 347.

It is also important to observe that before us the parties’ focus was on s 18(1)(f). Sub-para (f) requires, as a precondition to the making of a restraining order, that the court ‘is satisfied that the authorised officer who made the affidavit holds the suspicion or suspicions stated in the affidavit on reasonable grounds’. At the hearing I raised with counsel for the parties the interaction, if any, between s 18(1)(f) and s 18(1)(d), which requires that ‘there are reasonable grounds to suspect that a person has committed a serious offence’. That is, each sub-paragraph is directed, in terms, to the existence of reasonable grounds for a suspicion; there is thus some overlap between them.

In further written submissions, it appears that both parties accepted that the four requirements in sub-paras (a)–(d) of s 18(1) are independent preconditions to the making of an order under s 18. However, there appears to be some divergence in the content given to s 18(1)(d) and s 18(1)(f) by the parties. The applicants contended, relying on Mai[19] and Director of Public Prosecutions (Cth) v Kamal,[20] that under s 18(1)(f) the court had to determine:

(jj) whether the authorised officer ‘had an actual apprehension’ that an offence had been committed or that the property in issue was proceeds of crime; and

(kk) whether the grounds relied upon by the officer were reasonable grounds.

[19](2020) 62 VR 118, 138–9 [68]; [2020] VSCA 38.

[20][2011] WASCA 55, [106], [221].

In contrast, it appears that the respondent’s submission was that, having found under s 18(1)(d) that the grounds were reasonable, s 18(1)(f) required only that the court find that the authorised officer actually held the relevant suspicions, with the reasonableness of the grounds for those suspicions having already been determined under s 18(1)(d).

The applicants’ submissions are consistent with this Court’s judgment in Mai.[21] In that case the Court considered and rejected an argument by the respondent that the words of s 18 ‘require that the court be satisfied that there are reasonable grounds for the holding of the suspicion stated in the affidavit’. The Court explained the argument as follows:

In other words, there was a single inquiry into whether or not reasonable grounds existed and that was a matter for the court, unconstrained by the specification of particular grounds in the affidavit. It was pointed out that new grounds for suspicion might emerge at the hearing of the revocation application and it was submitted that it would be anomalous not to take those matters into account. On the respondent’s construction, the court hearing an application for a restraining order is at large as to the grounds which might provide a basis for the authorised officer’s suspicion. On this approach, ss 18(1)(f) and 19(1)(f) require the court to identify the relevant suspicion and then to decide whether there are reasonable grounds for it.[22]

[21](2020) 62 VR 118, 135 [54]; [2020] VSCA 38.

[22]Ibid 135, [52].

The Court rejected that submission, for three reasons:

First, the construction departs from the natural meaning of the provisions. The provisions identify the issue for the court as whether the authorised officer ‘holds the suspicion [or suspicions] ... on reasonable grounds’. That language suggests that the inquiry is into the reasonableness of the grounds on which the authorised officer holds the suspicion. The respondent’s construction gives the words a wider operation, as if the provisions ask whether the court is satisfied that there are reasonable grounds for the suspicion held by the officer.
Secondly, the construction sits uneasily with the requirement that the authorised officer specify the grounds for his or her suspicion in the affidavit. That requirement demands a clear delineation of the grounds relied upon and ensures that they are the grounds in the mind of the authorised officer. The requirement would serve little, if any, purpose, if the court were able to substitute grounds identified only by lawyers or by the court itself.
Thirdly, in the face of competing constructions, the principle of legality indicates that the constructional alternative less invasive of rights traditionally protected by the common law should be chosen.[23]

[23]Ibid 135, [54]–[56].

I note for completeness that one difficulty with this approach to s 18(1)(f) is that it seems not to take account of s 18(1)(d). In particular that is so in the first reason quoted in [91], above. Section 18(1)(d) is in terms directed to an objective determination by the Court: whether there are reasonable grounds to suspect the person has committed a serious offence. It is not directed, in terms, to the suspicion of the authorised officer.[24]
[24]In this regard, s 18 differs from analogous provisions in State forfeiture regimes, where there is but a single inquiry as to reasonableness, namely whether the court considers that, having regard to the matters contained in the supporting affidavit, and any evidence adduced by the affected person, there are reasonable grounds for the suspicion. See, eg, Criminal Assets Recovery Act 1995 (NSW) s 10A(5) (the ‘NSW Act’).

Further, if the reasonableness of the grounds is determined within s 18(1)(f), it is difficult to see what work s 18(1)(d) is performing within the statutory framework. To put it another way, if the Court determined that s 18(1)(f) was satisfied (that is, that the authorised officer held the relevant suspicion on reasonable grounds), it is difficult to see how s 18(1)(d) would not also be satisfied. Alternatively, if the Court held that s 18(1)(f) was not satisfied, it would not need to address s 18(1)(d). Thus it appears that this approach might leave s 18(1)(d) with no work to do.

It is trite to observe that a court should not construe a statute so that one of its provisions has no separate work to do.[25] I thus retain some residual uncertainty about the question of the interaction between s 18(1)(d) and s 18(1)(f). Ultimately, however, in light of the questions on which the parties joined issue, it is not necessary to resolve this question for the purposes of the present proceeding. That is, both parties accepted that under s 18 the court’s role is to determine whether there are reasonable grounds for the suspicions held by the authorised officer.
[25]Plaintiff M70/2011v Minister for Immigration and Citizenship (2011) 244 CLR 144, 192 [97]; [2011] HCA 32.

Returning to the statute, I note that the function of the court under ss 18 and 19 of the POCA (and also under s 42) is a judicial, rather than an administrative, function. That is, the making of an order under s 18 or s 19 involves an exercise of judicial power.

In Mai this Court went on to explain the nature of the test for ‘reasonable grounds for suspicion’, drawing on George v Rockett:

[I]t is necessary under ss 18 and 19 of the Act to consider whether the authorised officer had an actual apprehension that an offence had been committed, or that the property and the vehicle were proceeds or an instrument of a relevant offence, rather than a mere idle wondering as to that matter or a desire to look into the possibility. It was not in issue before us that Mr White held suspicions meeting this description. The question is whether the grounds upon which he had that state of mind were reasonable. Again applying the above reasoning, that involves asking whether those grounds would in all the circumstances create in the mind of a reasonable person an apprehension that an offence had been committed or that relevant property was the proceeds or an instrument of an offence.[26]

[26](2020) 62 VR 118, 138–9 [68] (emphasis added); [2020] VSCA 58.

However, Mai did not in terms address the nature of the evidence that might be put forward by the authorised officer in the affidavit filed pursuant to s 18 or s 19.

Relevant authorities

It is necessary at this point to address in some detail the authorities that deal with the evidence required on an application for a restraining order under the legislation of this kind. It is important to observe at the outset that the key authorities on which the parties relied did not concern the POCA. Rather, they concerned State or Territory legislation providing for forfeiture of property, such legislation being similar, but not identical, to the POCA. Further, the key NSW authorities relied upon by the applicants concerned a statutory provision that was held to be invalid by the High Court[27] and has since been amended;[28] and the relevant statements in the Full Federal Court authority relied upon by the respondent were by way of obiter. Given these matters, this Court is not bound to follow any of these earlier authorities. Ultimately neither party pressed any submission that this Court was bound to follow the authorities relied upon.
[27]In International Finance Trust Company Ltd v New South Wales Crime Commission (2009) 240 CLR 319; [2009] HCA 49, the High Court held that s 10 of the NSW Act was invalid. The appeal thus succeeded on constitutional grounds, and nothing was said that cast doubt on the approach of the majority of the New South Wales Court of Appeal to the evidence adduced.
[28]Criminal Assets Recovery Amendment Act 2009 (NSW) sch 1, [3].

It is appropriate to commence with the decision of Allsop P in International Finance (with whom Beazley JA agreed). His Honour’s judgment formed the principal basis for the applicants’ case. That case concerned the NSW Act, which was similar to the POCA, although the terms of s 10 (under which a restraining order could be made) were not identical to the terms of s 18. Section 5(2)(b) of the NSW Act contained a direction that the rules of evidence were to apply in an application for a restraining order (similar to s 315(3) of the POCA). However, the NSW Act did not contain any equivalent of s 42 of the POCA, a matter to which I return below.

Allsop P commenced by observing that the NSW Act balanced two important public policy considerations: first, ‘depriving those involved in crime of illicit gains’; and second, ‘the clear recognition in our legal and political system of the importance of the protection of individual rights, including the right to own and enjoy private property’.[29] His Honour considered that the NSW Act sought to accommodate the tension between those two underlying policies in two important ways:

(ll) First, the orders under s 10 (which provided for restraining orders), as well as other provisions, were made by the Court in an exercise of judicial power.

(mm) Second, as noted above, an application under s 10 is governed by the rules of evidence applicable in civil proceedings. Since an application under s 10 is interlocutory in character, the ‘rules of evidence’ are those which are applicable in interlocutory proceedings.

[29][2008] NSWCA 291, [6]–[7].

Relevantly, his Honour then observed as follows:

As to the requirement to comply with the rules of evidence, this applies to an ex parte application under s 10 as much as it does to a contested application under s 22 or s 27. This places important responsibilities upon both the Commission and the Judge hearing the application under s 10. Being an ex parte application, the Commission might be seen to be subject to obligations of disclosure. … It should be recognised, however, that the subject matter for judicial assessment is narrow: the reasonableness of the suspicion, from the affidavit.Further, there is no discretion in the Court if it is satisfied of the reasonableness of the suspicion. Those considerations may affect the question of the existence of any duty, and if it exists, its extent. The question should be seen as one of statutory construction, at least in the first instance … Given, however, that there is no contested hearing after any ex parte order and given that the Judge must make an assessment of the reasonableness of any suspicion by reference to the affidavit, the Judge (and the Commission) will need to be astute to ensure that Parliament’s requirement, that the rules of evidence apply, is followed. If they are not, there will, or may, be appellable error.[30]

[30]Ibid [11] (citations omitted) (emphasis added).

I pause to note that the proposition that ‘there is no contested hearing after any ex parte order’ reveals a significant difference between the NSW Act and the POCA. The POCA contains, of course, s 42. In contrast, the NSW Act contained no analogue to s 42.[31] Rather, the making of a restraining order under s 10 could be challenged on appeal, or application could be made for an exclusion order. No provision was made in the NSW Act for reconsideration of the basis of the restraining order.[32] Indeed, it was the absence of a procedure by which a person subject to a restraining order obtained ex parte could approach the court to have it set aside that was central to Heydon J’s conclusion that s 10 of the NSW Act was repugnant to the judicial process in a fundamental degree and thus invalid.[33] For those reasons, it is necessary to treat what was said in International Finance with a degree of caution; and plainly what was said cannot be transposed uncritically across to an assessment of the POCA.
[31]In International Finance Trust Company Ltd v New South Wales Crime Commission (2009) 240 CLR 319; [2009] HCA 49, three members of the High Court held that the scheme of the NSW Act was such that any conferral of power to set aside an ex parte order would need to be express — and there was no such express power: at 365 [93] (Gummow and Bell JJ), 387 [162] (Heydon J). French CJ agreed with Gummow and Bell JJ: at 351–2 [48].
[32](2009) 240 CLR 319, 364–5 [90]; [2009] HCA 49, quoting New South Wales Crime Commission v Ollis(2006) 65 NSWLR 478, 487; [2006] NSWCA 76. In particular, s 12(1) of the NSW Act, which contained a power to make ‘ancillary orders’ did not extend to the holding of an inter partes hearing for the purpose of dissolving a restraining order.
[33](2009) 240 CLR 319, 385–6 [155]–[160]; [2009] HCA 49.

Allsop P went on to observe that, because an application for a restraining order under s 10 was interlocutory in nature, s 9(2)(c) of the Evidence Act was of particular relevance.[34] He held that it recognises, so as not to affect, any rule of common law or in equity in relation to evidence in a proceeding insofar as it relates to the Court’s power to dispense with the operation of a rule of evidence in an interlocutory proceeding.[35] Allsop P then observed, quoting from Geoffrey W Hill & Associates v King,[36] that there is a long-standing practice of the courts that on an application for an interim or interlocutory injunction, the court is not necessarily concerned to have evidence which on a final hearing would be admissible, and that there is a discretion to receive other material relevant to the question of whether there is a serious issue to be tried.[37] If, in an application under s 10, circumstances of that kind were to arise, his Honour considered that s 9(2) would permit a court to dispense with a rule of evidence. In addition, in circumstances where the application of the rules of evidence would involve unnecessary delay s 190(3) would enable the court to order them not to apply.[38]
[34][2008] NSWCA 291, [12].
[35]Ibid [13].
[36](1992) 27 NSWLR 228, 230.
[37][2008] NSWCA 291, [18].
[38]Ibid.

The applicants’ contention was that the hearsay evidence to which they objected was inadmissible both at the first stage of this matter — that is, on the s 18 application — and at the second stage, that is on the s 42 application. They did not contend that the evidence was admissible on the s 18 application, but no longer admissible on the s 42 application. Given that submission, the key question was whether the evidence was inadmissible on the s 18 application.

It is clear from s 315 of the POCA that the Evidence Act applies to an application for a restraining order under s 18 of the POCA which, as noted above, involves the exercise of judicial power. I also note that the parties agreed that such an application is interlocutory in nature, a proposition supported by authority[57] and which I consider to be correct. It is thus necessary to consider the application of the Evidence Act in the context of an application for a restraining order under s 18.
[57]See, eg, Zheng v Commissioner of the Australian Federal Police (2019) 136 SASR 303, 346 [200]; [2019] SASCFC 157.

Although the argument before us focused principally on s 75 of the Evidence Act, that section is only relevant if the evidence in question would otherwise be inadmissible under s 59 (which sets out the hearsay rule). Section 59(1), set out above, renders hearsay evidence that is otherwise relevant[58] inadmissible ‘to prove the existence of a fact that it can reasonably be supposed that the person intended to assert by the representation’. Such a fact is referred to as the ‘asserted fact’ (s 59(2)).
[58]I note that there was no dispute as to the relevance of the impugned evidence. Plainly, ‘if it were accepted, [it] could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding to a fact in issue’: s 55 of the Evidence Act.

I note that the authorities discussed above did not in terms address the operation of s 59. It appears that, as a matter of substance, McClelland CJ at CL considered that s 59 was not engaged, although he did not refer to that section expressly.[59] Likewise, it is possible that the obiter remarks in Hiep can be understood as turning on s 59 not being engaged. In contrast, Allsop P seems to have assumed that s 59 applied, so that the question was then whether the hearsay rule was displaced by s 75 because the proceeding in question was interlocutory in nature.[60] But in my opinion it is necessary, before coming to s 75, to address s 59.
[59]International Finance [2009] NSWCA 348, [108].
[60]Ibid [15], [19]. See also Vu [2009] NSWCA 349, [37]–[38], [42]–[43] (Spigelman CJ, Allsop P agreeing at [55], Hodgson JA agreeing at [56]); Elfar [2009] NSWCA 348, [46] (Spigelman CJ, Allsop P agreeing at [52], Hodgson JA agreeing at [53]).

In order to assess the application of s 59 it is necessary to consider the statutory context, in order to understand what facts are in issue on a s 42 application, which, as this Court observed in Mai, requires the Court to look to the requirements of s 18. That requires attention to the text, context and purpose of s 18.[61]
[61]See, eg, SAS Trustee Corporation v Miles (2018) 265 CLR 137, 149 [20] (Kiefel CJ, Bell and Nettle JJ), 157 [41] (Gageler J), 162–3 [64] (Edelman J); Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, 46–7 [47] (Hayne, Heydon, Crennan and Kiefel JJ) and the several cases referred to at n 105.

The facts in issue in the present case are relevantly: (a) did the authorised officer hold the requisite suspicion(s); and (b) did he or she hold those suspicions on reasonable grounds, as required by s 18(1)(f). As George v Rockett makes clear, a ‘suspicion’ is something less than proof, and less even than a belief. A suspicion is ‘a state of conjecture or surmise where proof is lacking’, or a ‘slight opinion without sufficient evidence’.[62] Parliament can be taken to be aware of the High Court’s decision in that case at the time the POCA was enacted. In my opinion, in selecting a ‘suspicion’ held on reasonable grounds as the touchstone for a restraining order, Parliament did not intend that the authorised officer was required to prove the facts that underpinned his or her suspicion. That conclusion is supported by the following matters:
[62](1990) 170 CLR 104, 115; [1990] HCA 26.

(nn) the suspicion involves serous criminal offending;

(oo) the object of the order is to restrain property so that it is not dissipated; and

(pp) applications for such orders are often made urgently and at an early stage of an investigation.

Thus, what is being ‘proved’ by the affidavit filed under s 18(3) is not the existence of the offending, or the asserted facts to which the authorised officer deposes, but the basis (ie grounds) on which he or she formed the relevant state of mind (ie suspicion). In that statutory context, if the affidavit includes hearsay evidence, that evidence is not deposed to for the existence of the asserted fact. It is for that reason that the ‘grounds’ for a suspicion under s 18 (and related provisions) may include matters that subsequently are found to be false.

Put another way, if an authorised officer deposes that she holds a suspicion on grounds including, for example, that she obtained information from an officer of the ABF, the evidence is being adduced to show the reason for her suspicion — ‘an ABF officer told me that beer was found in certain pallets in a licensed warehouse, and I believe that officer, and so that is one of the reasons why I suspect that a person has committed a serious offence’. The evidence is not being adduced to prove that beer was in fact found in certain pallets in a licensed warehouse. Proof of that fact would come later, when in the course of events it is necessary to prove the criminal offending.[63]
[63]In that regard, if a restraining order has been granted, then a proceeds of crime authority can obtain a forfeiture order of the restrained property if it establishes on the balance of probabilities that, in respect of a s 18 restraining order, the suspect engaged in conduct constituting a serious offence see (s 47) or, in the respect of a s 19 restraining order, the restrained property is proceeds of a relevant offence or an instrument of a serious offence (see s 49).

This approach is consistent with the purpose of s 18 of the POCA, which is to ensure that property is restrained so as to be available if, later, a forfeiture order is made under s 47. It is at that later stage that facts must be proved (rather than reasonable grounds identified). A requirement that, at the stage of an application under s 18, facts be proved to support the suspicion would undermine, rather than further, the purpose of s 18 in the scheme of the POCA. It is also inconsistent with the selection of suspicion as the relevant standard for the making of an order.

As a consequence, where the grounds for the suspicion set out in an affidavit under s 18(3) include hearsay evidence, they are not inadmissible by reason of s 59 of the Evidence Act. In that context, s 75 is simply not engaged.

As noted above, in their written submissions the applicants sought to draw on the operation of ss 19 and 49 in the statutory scheme to support their contention that s 75 required the identification of the source of the hearsay evidence. That submission was not expanded upon in oral argument. I note for completeness that the operation of ss 19 and 49, and the proposition that a forfeiture order might be made without the underlying facts being proved, provides no reason to reach a different conclusion. That outcome could arise only if: no application was made for an exclusion order; if such an application was made but withdrawn; or, perhaps, if an application for an exclusion order was dismissed.[64] In the first two contexts, the failure to make an application for an exclusion order is in the hands of the affected person. In the latter, the application would have been considered and dealt with by a court in an inter partes hearing at which the affected person was given an opportunity to put on evidence and submissions.
[64]In relation to dismissal, the applicants relied on Application by the Commissioner of the Australian Federal Police [2020] NSWSC 695, where the Court held that an application that was dismissed by a court was an application that had been ‘withdrawn’ for the purposes of s 42(3). I note that this Court was sceptical of such a construction of s 49(3) in Commissioner of the Australian Federal Police v Dong Hua International Investments Pty Ltd[2016] VSCA 15, [39]–[40]. I share that scepticism, but I note that we heard no submissions from the respondent on this issue, and it is not necessary to resolve this issue for present purposes.

It is necessary to say something further about George v Rockett, given that certain passages from that case underpin both the applicants’ argument and Allsop P’s judgment in International Finance. That case concerned an application for a search warrant under s 679 of the Criminal Code (Qld). In considering the function of a justice determining such an application, the Court stated as follows:

When a statute prescribes that there must be ‘reasonable grounds’ for a state of mind — including suspicion and belief — it requires the existence of facts which are sufficient to induce that state of mind in a reasonable person.[65]

Taken alone, that statement might be thought to suggest that the affidavit filed pursuant to s 18 must depose to facts, thus engaging ss 59 and 75 of the Evidence Act.

[65](1990) 170 CLR 104, 112 (emphasis added); [1990] HCA 26.

However, later in George v Rockett the Court, under the heading ‘The facts to be established’, the Court said this:

In considering the sufficiency of a sworn complaint to show reasonable grounds for the suspicion and belief to which s 679 refers, it is necessary to bear in mind that suspicion and belief are different states of mind. …
The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown. …
The objective circumstances sufficient to show a reason to believe something need to point more clearly to the subject matter of the belief, but that is not to say that the objective circumstances must establish on the balance of probabilities that the subject matter in fact occurred or exists: the assent of belief is given on more slender evidence than proof. Belief is an inclination of the mind towards assenting to, rather than rejecting, a proposition and the grounds which can reasonably induce that inclination of the mind may, depending on the circumstances, leave something to surmise or conjecture.[66]

[66]Ibid 115-116 (emphasis added) (citations omitted) .

It is important to observe that George v Rockett was not a case about the application of the Evidence Act or the admissibility of evidence. It concerned an application for a search warrant, which is an administrative decision;[67] thus questions of admissibility of evidence would not arise.[68] Indeed, it appears that there was no challenge to the sworn complaint in that case. Rather, the Court observed, the critical question was ‘whether there was sufficient material in the sworn complaint’ to satisfy the magistrate that there were reasonable grounds for believing that the documents identified in the complaint would afford evidence as to the commission of the two offences set out in the sworn complaint.[69]
[67]See Grollo v Palmer (1995) 184 CLR 348, 359–60 (Brennan CJ, Deane, Dawson and Toohey JJ), 389 (Gummow J); [1995] HCA 26; Love v A-G(NSW) (1990) 169 CLR 307, 318–22 (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ); [1990] HCA 4. These cases concerned telephone interception warrants, but the analysis applies equally to a search warrant: see Palmer v Ayres (2017) 259 CLR 478, 505 [81] (Gageler J); [2017] HCA 5.
[68]Although a sworn complaint was necessary to support the application, it does not appear that the legislation in question provided for the rules of evidence to apply to a decision under s 679 of the Criminal Code (Qld).
[69](1990) 170 CLR 104, 119; [1990] HCA 26.

In my opinion, the highlighted passage in the extract at [135] above makes clear that it is not necessary, when putting before a court the grounds to support a suspicion, that those grounds be proved. In that regard, I agree with McClellan CJ at CL’s analysis of George v Rockett:

As Rockett makes plain there is a significant difference between legislation which requires a judicial officer to be satisfied of a particular state of facts and legislation which requires a judicial officer to be satisfied that there are reasonable grounds for a suspicion held by another. If the judicial officer must be satisfied evidentiary requirements and the obligation to prove matters to the appropriate level will be engaged. When however the judicial officer is called upon to determine whether there are reasonable grounds for another’s belief it is necessary to make the relevant determination by examining the matters which that person has considered in forming their belief.[70]

[70][2008] NSWCA 291, [134] (emphasis added).

That understanding is consistent with the decision of the Privy Council in Hussien v Chong Fook Kam,[71] a case quoted with approval by the High Court in George v Rockett. That case concerned an arrest of a person on reasonable suspicion that they had committed an offence. The Privy Council observed that there is a distinction between reasonable suspicion and prima facie proof: prima facie proof ‘consists of admissible evidence’, whereas reasonable suspicion ‘can take into account matters that could not be put in evidence’.[72]
[71][1970] AC 942.
[72]Ibid 949.

In my opinion, George v Rockett is not authority for the proposition that, in any statute that requires that there be ‘reasonable grounds’ for a suspicion, an affidavit deposing to those grounds must prove the underlying facts in order to be admissible. Rather, it is necessary to pay close attention to the particular statute and what it requires.[73] Section 18 of the POCA requires the affidavit to state the grounds on which the deponent has formed his or her suspicions, and it requires the Court to be satisfied that the grounds for the suspicions are reasonable. It does not require those grounds to be proved to be true. That is, to adopt McClelland CJ at CL’s language, s 18 does not requires a judicial officer to be satisfied of a particular state of facts; rather, it requires a judicial officer to be satisfied that there are reasonable grounds for a suspicion held by another. The applicants’ submission that respondent was required to ‘prove facts’, in the sense of the facts underpinning the authorised officer’s suspicions, should for that reason be rejected.
[73]In that regard, I note that in their written submissions on the appeal, and before the trial judge, the applicants relied on authorities concerning admissibility of hearsay evidence outside the forfeiture context. The applicants did not take us to those authorities in oral argument. There are many such authorities, including authorities concerning the application of the hearsay rule in the context of legislation that requires a person to hold a suspicion on reasonable grounds. It is not necessary to canvas those authorities, because they do not assist in resolving the proper approach to s 18 of the POCA and its interaction with ss 59 and 75 of the Evidence Act. However, I note that there is an extended discussion of many such authorities in Sands v Channel Seven Adelaide Pty Ltd (2009) 104 SASR 452, 548; [2009] SASC 215.

That is not to say that, where hearsay evidence is relied upon, a failure to identify the source of the evidence is irrelevant. As McClellan CJ at CL observed in International Finance, if an affidavit contains conclusions or assertions, without identifying the source of the information on which those conclusions or assertions are based, ‘a court may readily conclude that the affidavit does not disclose reasonable grounds for any asserted suspicion’.[74] Similar observations were made in Vu.[75] But in the present case the trial judge was not asked to consider whether, if admissible, the absence of an identified source for the matters set out in the two Creighton affidavits meant that the impugned evidence should be given so little weight that it could be said that the affidavits failed to disclose reasonable grounds for Mr Creighton’s suspicions; nor is this Court asked to consider that question on this appeal. Rather, the applicants’ case rose or fell on admissibility.
[74][2008] NSWCA 291, [109].
[75][2009] NSWCA 349, [46], [48].

Finally, it is also appropriate to deal briefly with the applicants’ argument concerning the Second Piscicelli Affidavit, namely that it was not admissible to prove that Mr Creighton had the necessary suspicion, so as to satisfy s 18(1)(f). I make two observations at the outset. The first is that s 42 expressly provides that further evidence may be tendered on a revocation application. The applicants did not contend otherwise. The second is that I accept that that further evidence, unless given by the original deponent, cannot be relevant to whether the original deponent held or did not hold a suspicion. However, as the applicants accepted in oral argument, that further evidence could be relevant to whether the suspicion of the original deponent was held on reasonable grounds. It appears to me that the Second Piscicelli Affidavit was tendered for that purpose, not for the purposes of proving that Mr Creighton held a particular suspicion. If that is so, then I consider that it was admissible for that purpose. In any event, once it is accepted that the First Creighton Affidavit was admissible, and that it deposed to his suspicion, it is not necessary to reply on the Second Piscicelli Affidavit for the purpose of proving Mr Creighton’s suspicion. Thus this argument does not avail the applicants, even assuming it is properly raised by the application for leave to appeal.

Issue 3: Can a question of admissibility be raised on s 42 application?

Issue 3 concerns whether a court has jurisdiction, in an application under s 42, to consider the admissibility of evidence that was before the judge who made the restraining order.

The respondent contended that s 42 does not permit a judge to revoke a restraining order on the basis that the evidence relied upon by the judge who made the order was inadmissible. He contended that an argument of that kind could be made on an appeal or an application for judicial review, but not on a revocation application under s 42. That was because to permit, on a s 42 application, a challenge to the admissibility of the evidence acted on in a s 18 application, would in effect be to permit a judge of a court to review a ruling on an evidentiary matter by a judge of the same court.[76] The respondent contended that s 42 did not confer such a jurisdiction.
[76]I note that it does not appear from the material before this Court that either Judge Misso or Judge Dyer, in making the First and Second Restraining Orders, made any ruling on the admissibility of the evidence put before them. That is not surprising, given that the proceedings were ex parte and so no objection to admissibility would have been made.

It may be accepted that, as a matter of general principle, a judge of a court cannot judicially review the decision of another judge of that same court, for example by way of prerogative, injunctive or declaratory relief.[77] As a general proposition, the quashing or overturning of orders already made is a subject properly for an appeal, not for relief from a different judge within the same court that made the initial order. However, the respondent accepted that this general principle applied ‘except to the extent that the statute provides’. Thus in the present case the question is not whether a judge of the County Court can judicially review a decision or ruling of another judge of that Court; the question is whether, pursuant to a specific statutory provision (s 42), a judge of the County Court may revoke an order of another judge of that Court on the ground that the evidence used to obtain the order was inadmissible. That again requires attention to the text, context and purpose of s 42.[78]
[77]See, eg, Bird v Free (1994) 126 ALR 475, 479; Re Jarman; Ex parte Cook (1997) 188 CLR 595, 608–10, 616; [1997] HCA 13; Barton v Walker [1979] 2 NSWLR 740, 756.
[78]See footnote 61 above.

In my opinion s 42 confers a wide power on the judge hearing the application to revoke a restraining order. First, under s 42(5)(a), revocation may occur because the judge considers that there are ‘no grounds’ for the making of the order at the time of the hearing of the revocation application. Although that is a confined basis for revoking the restraining order, it nonetheless involves the second judge undertaking a ‘review’ of the order made by the first judge.

More significantly, s 42(5)(b) permits the court to revoke a restraining order when it is ‘in the interests of justice’ to do so. That is a phrase of wide import. It would permit revocation in circumstances where, for example, there had not been full disclosure on the ex parte s 18 application, as the respondent accepted. In that regard, in Kamal, Martin CJ, after noting that the POCA was amended by the Crimes Legislation Amendment (Serious and Organised Crime) Act 2010 (Cth), made the following observations:

That Act amended s 42(5) so as to provide an additional ground upon which a court might revoke a restraining order by providing that a court may do so 'if satisfied that it is … in the interests of justice'. Given that these amendments were made following the decision in International Finance, it is reasonable to infer that the amendment to s 42 was made in response to that decision and, in particular, to address concerns expressed by some of the majority justices in that case relating to the lack of any facility to enforce the obligation to make full disclosure when proceeding ex parte in the CAR Act. The breadth of the power of revocation provided by the amendment would be sufficient to empower a court to revoke a restraining order because of the DPP's failure to comply with the obligation of full disclosure.[79]

[79][2011] WASCA 55, [44] (emphasis added). See also Onley v Commissioner of the Australian Federal Police [2019] NSWCA 101, [200], [418].

The inclusion of s 42(5)(b) was explained in the supplementary explanatory memorandum to the Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009 (Cth) as follows:

Item 106 will repeal subsection 42(5) of the Proceeds of Crime Act 2002, and replace it with a new section setting out the test for revoking a restraining order. The proposed subsection will allow a court to revoke a restraining order if it is satisfied that there is no basis on which to make the restraining order at the time that the revocation application is considered, or if the court is satisfied that it is otherwise in the interests of justice to do so. This amendment will ensure that, in addition to considering whether there is a basis for making a restraining order, a court that is hearing a revocation application will also be able to have regard to other matters that are relevant to the administration of justice.[80]

[80]Supplementary Explanatory Memorandum, Crimes Legislation Amendment (Serious and Organised Crime) Bill 2009 (Cth) 3–4 (emphasis added).

As the respondent accepted, s 42(5)(b) is not confined to circumstances of material nondisclosure — if it were so confined, one would expect it to be expressed by reference to that concept, in more confined terms. Section 42(5)(b) would, in my opinion, include circumstances where the restraining order was obtained by fraud.[81] I consider that s 42(5)(b) would also permit revocation if the evidence relied upon in the s 18 application was inadmissible for some reason.
[81]As to the nature of that jurisdiction under the general law, see Clone Pty Ltd v Players Pty Ltd (in liq) (2018) 264 CLR 165, 175 [2], 192 [55], 195 [62] (Kiefel CJ, Gageler, Keane, Gordon and Edelman JJ); [2018] HCA 12; Wentworth v Rogers [No 5](1986) 6 NSWLR 534, 538.

It is relevant in this context to observe that s 42 displaces (and replaces) the inherent or implied power of a court to set aside an order made ex parte.[82] As McLure P observed in Kamal:

Under the general law, an order made ex parte is not a final order or determination. It is a provisional determination. The power in s 42(5) of the POC Act is the exclusive source of the power to review an ex parte order. However, it has analogies with the general law power to set aside an ex parte order. Any order made ex parte under the POC Act is also provisional, being one that can be set aside upon a review of the merits (as distinct from an appeal or judicial review).[83]

[82]As to the existence of such a power, see Taylor v Taylor (1979) 143 CLR 1, 16; [1979] HCA 38; Owners of the SS Kalibia v Wilson(1910) 11 CLR 689, 694; [1910] HCA 77.

[83][2011] WASCA 55, [131] (McLure P); see also [2011] WASCA 55, [111] (Martin CJ), [251]–[252] (Buss JA). I note that in Dickson v Commissioner of the Australian Federal Police [2019] NSWSC 1293, [118]–[124] (upheld on appeal: Dickson v Commissioner of the Australian Federal Police [2020] NSWCA 125, [24]) an affected person sought declaratory relief in relation to a restraining order on the basis it was obtained by fraud. It does not appear that that application was made under s 42; rather it seems to have been made on the basis of the courts’ general power to set aside orders obtained by fraud. That application failed at trial and on appeal, but no mention was made by the judges of any jurisdictional bar to granting the relief sought. In Onley v Commissioner of the Australian Federal Police [2019] NSWCA 101, [302], Basten JA said, somewhat cryptically, that ‘a nuanced approach may be required’ to the question whether the court retains its general law powers.

The respondent submitted, and the applicants disputed, that a restraining order under s 18 is akin to an interlocutory injunction at common law.[84] I accept that there are significant differences between an interlocutory injunction and a s 18 order. However, there is a considerable similarity between a restraining order and a Mareva injunction. In any event, the analogy to which McLure P was referring was between s 42 and the general power of a court to set aside an order obtained ex parte, in a context where s 42 displaces the general power. I accept that there are some difficulties with drawing any close analogy between s 42 and the courts’ general power to set aside an ex parte order, given that there are aspects of s 42 that are quite different from that general power.[85] However, it is nonetheless instructive to consider the principles applicable to the general power (while paying due regard to the particular statutory features of s 42).
[84]In support of this the applicants pointed to the following differences: (a) under s 18, the court has no discretion as to whether to make a restraining order, whereas on an ex parte application for an interlocutory or interim injunction the court retains a discretion; (b) interlocutory injunctions are not granted on the basis of a suspicion; (c) no reverse onus applies after an interlocutory or interim injunction is granted; and (d) the purpose of an interlocutory injunction is not to restrain property for forfeiture.
[85]For example: (a) under s 42 an affected person must apply to revoke a s 18 order; in contrast, ’the party subject to ex parte relief should not have to apply to discharge it’ (see Ross v Internet Wines Pty Ltd (2004) 60 NSWLR 436, 453 [109]; [2004] NSWCA 195); (b) the onus on a s 42 application lies on the affected person (see Mai (2020) 62 VR 118, 133 [44]–[46], 136–7 [59]; [2020] VSCA 38; Onley v Commissioner of the Australian Federal Police [2019] NSWCA 101, [210], but cf [299], [418]); in contrast, on the return of an ex parte order, ‘the plaintiff must show sufficient reason for its continuation’: Resort Hotels Management Pty Ltd v Resort Hotels of Australia Pty Ltd (1991) 22 NSWLR 730, 731. See also New South Wales Crime Commission v Chen (2017) 95 NSWLR 426, 432–6 [29]–[51]; [2017] NSWSC 943, discussing the NSW Act.

As a general proposition, where an order is made ex parte without notice, the affected party has a right to approach the court and have the application re-heard. The principles relevant to the exercise of such a power were set out in Savcor Pty Ltd v Cathodic Protection International APS:

If an application is made to the court pursuant to the inherent power …, the court rehears the original application. In those circumstances, the general practice is to refer the matter back to the judicial officer who made the order but it is not fatal if that is not done. It is a rehearing of the whole application. However, at the rehearing the judicial officer has the benefit of submissions and any material the opposing party wishes to place before the court. I do not accept the statement made by the Full Court of Western Australia in Bellgroup NV v Aspinall where the Court seemed to be of the view that an application to set aside in those circumstances could only proceed if new material evidence was placed before the court. In my opinion, the jurisdiction is much wider and gives the right to the party affected by the order to appear before the court and put submissions as to why the order should not be made on the materials which were before the judge who made the first order. It is a rehearing and the court may reach a different decision after hearing submissions. Sir John Donaldson MR in WEA Records Ltd v Visions Channel 4 Ltd wrote concerning ex parte orders:
He [the judge] expects at a later stage to be given an opportunity to review his provisional order in the light of evidence and argument adduced by the other side and, in so doing, he is not hearing an appeal from himself and in no way feels inhibited from discharging or varying his original order.[86]

[86](2005) 12 VR 639, 646–7 [21] (Gillard AJA) (emphasis added) (citations omitted); [2005] VSCA 213. See also Zinc Corporation Ltd v Hirsch [1916] VLR 550, 555.

Gillard AJA there observed that this jurisdiction is different from the power to set aside an ex parte order because there was a material non-disclosure of a material matter by the party who obtained the order.[87]
[87](2005) 12 VR 639, 647 [22] (Gillard AJA); [2005] VSCA 213.

I consider that s 42 operates in an analogous fashion to the inherent or implied power discussed above, in the sense that it involves a re-hearing in light of evidence and argument from the affected person (as well as additional evidence from the applicant for the order). The fact that the bases on which the order may be discharged are limited by the terms of s 42(5) does not alter the underlying nature of the exercise. That proposition is supported by Mai, where this Court observed that, on the question whether there are ‘no grounds’ for making a restraining order, ‘it may well be relevant to that question whether “irrational, improper or unlikely grounds for suspicion” suffice to permit the making of a restraining order’.[88] That suggests that the court on the revocation application has a broad power to take a different view from the judge who granted the restraining order.
[88](2020) 62 VR 118, 652–3 [46] (Tate, McLeish and Hargrave JJA); [2020] VSCA 38.

In my opinion, the terms of s 42(5) — in particular, s 42(5)(b) — are sufficiently broad to permit the judge on a re-hearing to consider the admissibility of the evidence relied upon by the applicant for the restraining order.[89] A broad interpretation of s 42(5)(b) is reinforced by the consideration that the underlying interest at stake is an interest in property and, at common law, forfeiture regimes are construed strictly.[90]
[89]I note that, as the respondent pointed out, the applicants’ reliance on s 42(5)(b) was expressly abandoned below. However, that is not relevant to the broader question of the proper construction of s 42.
[90]Nguyen v DPP (2019) 59 VR 27, 62 [102]; [2019] VSCA 20; Mai (2020) 62 VR 118, 135–6 [56]; [2020] VSCA 38. See also Forbes v Traders' Finance Corporation Ltd (1971) 126 CLR 429, 442, 447; [1971] HCA 60. I do not consider the comments made by Gageler and Keane JJ in Lee v New South Wales Crime Commission (2013) 251 CLR 196, 310 [313]; [2013] HCA 39 (referred to by the respondent), which concerned the principle of legality and the privilege against self-incrimination, to have departed from that long-standing approach to forfeiture regimes.

The respondent accepted that the admissibility of the evidence on a s 18 application could be disputed on appeal or by way of judicial review, and pointed out that the authorities relevant to the admissibility of evidence on an application for a restraining order of this kind had all been decisions in appellate proceedings. So much may be accepted. But the regimes in issue in those cases did not include an equivalent to s 42 of the POCA,[91] thus the only avenue available for consideration of admissibility was on an appeal. The construction and scope of s 42 of the POCA, or any analogous provision, simply did not arise. In the context of the POCA, to accept the respondent’s argument would produce an artificial distinction between the arguments that could be put on a s 42 application and other arguments that would have to be put only on appeal. It would mean that if an affected person wished to challenge both the sufficiency of the grounds and the sufficiency of the evidence, he or she would need to file both an appeal and a revocation application, which would fall to be decided by different courts.
[91]As to the NSW Act, see discussion at [102] above. As to the ACT POCA, it contained a provision conferring on the court a power to revoke a restraining order if the affected person gave appropriate security or undertakings to the court: see s 60. That provision was quite different from s 42 of the POCA.

In my view a construction of s 42 that resulted in a bifurcation of that kind should not be accepted. Section 42 is intended to provide a sufficient avenue for review of an ex parte order (subject of course to the limitations found within the section itself). Its terms are sufficiently wide to support revocation based on inadmissibility of evidence. It should not be read down to preclude an argument for revocation based on the receipt of inadmissible evidence on the s 18 application. That is particularly so given that, although the first judge would have admitted the evidence, he or she would have done so without any objection being taken. The first judge would not in that sense have necessarily turned his or her mind to the admissibility of the evidence; and would not have been assisted by argument as to why the evidence was, or was not, admissible. It is unlikely that any formal ruling would have been made. But even if that were not so, because s 42 involves a re-hearing, I consider that it would permit the second judge to reach a different conclusion on admissibility from the first judge (assuming, for present purposes, that the two judges are different, but noting that in fact the same judge may hear both the s 18 application and the s 42 application, as occurred in the present case in relation to the Second Restraining Order).

In the result, the judge below had jurisdiction to consider the issues he was asked to consider by the applicants concerning the admissibility of the impugned evidence; but for the reasons I have given in my analysis of Issue 1, his Honour was correct to reject the applicants’ submissions.

Conclusion

For these reasons, I would grant leave to appeal but dismiss the appeal.

- - -
SCHEDULE OF PARTIES

JOSEPH SAAD First applicant

DIAMOND STARS PROPERTIES PTY LTD
(ACN 624 399 144) Second applicant

RAMY SAAD Third applicant

RJ & SONS INVESTMENTS PTY LTD
(ACN 607 617 603) Fourth applicant

ALL STARS WIDE INTERNATIONAL PTY LTD
(ACN 607 621 134) Fifth applicant

and

COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE Respondent

[39]Ibid.

[40]Ibid [19].

JOSEPH SAAD	First applicant
DIAMOND STARS PROPERTIES PTY LTD (ACN 624 399 144)	Second applicant
RAMY SAAD	Third applicant
RJ & SONS INVESTMENTS PTY LTD (ACN 607 617 603)	Fourth applicant
ALL STARS WIDE INTERNATIONAL PTY LTD (ACN 607 621 134)	Fifth applicant
and
COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE	Respondent

[2021] VSCA 246

3 September 2021