The Commissioner of the Australian Federal Police v Cranston (No 9)
[2018] NSWSC 533
•27 April 2018
Supreme Court
New South Wales
Medium Neutral Citation: The Commissioner of the Australian Federal Police v Cranston and Ors (No 9) [2018] NSWSC 533 Hearing dates: 13 and 14 March 2018 Date of orders: 14 March 2018 Decision date: 27 April 2018 Jurisdiction: Common Law Before: Fullerton J Decision: 1. Expedition of the Notice of Motion is refused.
2. The Notice of Motion is dismissed.
3. The 66th defendant is to pay the plaintiff’s costs of the Notice of Motion.Catchwords: PROCEEDS OF CRIME – application to vary examination orders – whether examination conducted exceeded that which was permitted under the Proceeds of Crime Act – whether, absent a referral of a question of law under s 192 of the POC Act, the Court has power to intervene in an ongoing examination. Legislation Cited: Proceeds of Crime Act 2002 (Cth) Cases Cited: Shumin v Commissioner of the Australian Federal Police [2017] VSC 269 Category: Procedural and other rulings Parties: The Commissioner of the Australian Federal Police (Plaintiff)
Jeevan Menon (66th Defendant)Representation: Counsel:
Solicitors:
D McLure SC / G O’Mahoney (Plaintiff)
Criminal Assets Litigation, Australian Federal Police (Plaintiff)
A Luong (66th Defendant)
File Number(s): 2017/146280
Judgment
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HER HONOUR: By Notice of Motion filed on 6 March 2018, the 66th defendant sought a variation of orders made by this Court, by consent, on 15 November 2017 as follows:
Pursuant to s 180 of the Proceeds of Crime Act 2002 (Cth) (“the Act”), the following persons are to be examined about the affairs of Jeevan Menon:
a) Jeevan Menon; and
b) Gita Menon.
Pursuant to s 180 of the Act, the following persons are to be examined about the affairs of Gita Menon:
Gita Menon; and
Jeevan Menon.
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The orders sought by Notice of Motion are as follows:
1. That the hearing of this Motion be expedited.
2. That the Consent Orders made on 15 November 2017 regarding the examination of Jeevan Menon be varied in accordance with order 2.
3. For the avoidance of doubt concerning the order of 15 November 2017, Mr Jeevan Menon be examined about the restrained property the subject of these proceedings, including the circumstances surrounding the acquisition of the restrained property, the nature of Dev Menon’s interest in the restrained property and the origin of the monies used to purchase the restrained property.
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On 14 March 2018 I made the following orders:
The order seeking expedition is refused.
The Notice of Motion is dismissed.
The 66th defendant is to pay the plaintiff’s costs of the Notice of Motion.
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What follows are my reasons for dismissing the Notice of Motion.
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On 20 February 2018, the examination of the 66th defendant commenced before an authorised examiner in accordance with the consent orders made by the Court on 15 November 2018. The examination did not conclude on that day and was scheduled to continue on 29 March 2018.
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The Notice of Motion filed on 6 March was listed for directions on 13 March 2018. Mr Luong, solicitor, appeared on that date. I expressed my concern as to the delay in filing the Notice of Motion in circumstances where Mr Luong had raised with me at a directions hearing in the substantive proceedings on 23 February 2018 the possibility that an application would be filed to narrow the scope of the examination of the 66th defendant with a further day scheduled for the examination to continue.
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Mr Luong advised that counsel who holds the brief to appear in the examination proceedings was in Canberra on sabbatical and that he did not have the resources as a solicitor to commit to advancing his client’s interests with the necessary dispatch to ensure the notice of motion was filed promptly. I informed Mr Luong that I was not satisfied that either or both bases for his tardiness satisfactorily explain the delay and for that reason alone I was concerned that no satisfactory basis had been shown to expedite the hearing of the motion.
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Notwithstanding, I accepted Mr Luong’s invitation to review the transcript of the examination proceedings of 20 February 2018 which he submitted would satisfy me that the examination into the affairs of the 66th defendant thus far has exceeded any legitimate enquiry into his affairs (as defined) and that I should expedite the hearing of the motion to ensure his client’s interests as an examinee are protected.
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With some reluctance I adjourned the further hearing of the Notice of Motion to 14 March 2018 with a view to finally determining whether expedition should be granted and even if that were so, whether there was any utility in the making of the orders sought in circumstances where the examination of the 66th defendant has already commenced. I directed that Mr Luong provide a summary of transcript references where he contended that Counsel for the Commissioner had exceeded the scope of the examination. That note was provided in the evening of 13 March 2018.
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Having considered the transcript of the examination proceedings, I was not satisfied that any variation of the orders made by consent on 15 November 2017 was warranted and, that being the case, that the hearing of the Notice of Motion should be expedited.
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Mr Luong submitted that the orders made by consent were too broad such that examination of the 66th defendant may amount to a “fishing expedition”. He relied on Shumin v Commissioner of the Australian Federal Police [2017] VSC 269 (“Shumin”) in support of that contention and the Court’s power in s 100 of the POC Act to prevent any further examination otherwise than limited in the way proposed in order 2 of the Notice of Motion by operation of s 100 of the POC Act.
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In Shumin, Forrest J considered it necessary to “clarify” an examination order he had made in the following terms:
Pursuant to section 180 of the Proceeds of Crime Act 2002, Guo Zhimin be examined.
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In determining that a “clarifying” order was required, his Honour said:
I acknowledge the force in the Commissioner’s contention that there could have been no real doubt as to what the orders were directed to (especially in the light of the orders relating to the other examinees and where evidence has already been filed). However, I think it preferable that the orders should, for the benefit of the examiner and the parties, identify with relative precision the affairs which are to be the subject of the examination. This is particularly so given the coercive nature of a s 180 examination.
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The orders I made on 15 November 2017 do not in my view suffer from the same uncertainty that Forrest J accepted was demonstrated in the case he was considering. In contrast, the orders I made, by consent on that occasion, provide that the examination of Jeevan Menon is in respect of his “affairs”. The orders made by Forrest J did not have that level of specificity (though that was plainly their intent).
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That being so, there is no reason to doubt that the approved examiner and the parties to the examination of the 66th defendant are aware of the nature of the affairs which are to be the subject of the examination. This is so given the definition attaching to “affairs” in s 338 of the Proceeds of Crime Act 2002 (Cth):
"affairs" of a person includes, but is not limited to:
(a) the nature and location of property of the person or property in which the person has an interest; and
(b) any activities of the person that are, or may be, relevant to whether or not the person has engaged in unlawful activity of a kind relevant to the making of an order under this Act.
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Additionally, I was not satisfied from my review of the transcript of the examination that Mr McLure SC, who appeared on behalf of the Commissioner of the AFP, had exceeded any reasonable limit to a line of questioning he was entitled to undertake consequent upon the orders made on 15 November 2017. That finding is assisted by the broad definition given to “affairs” in the POC Act.
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Even were I satisfied that the examination had been conducted in a manner that exceeded the examination order, I have some doubts (although I need not resolve the issue) that this Court has power to intervene in the course of an examination and to direct that it be conducted in a particular, subject only to a question of law being referred to this Court by the examiner under s 192 of the POC Act.
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In dismissing the 66th defendant’s Notice of Motion I ordered that he pay the Commissioner’s costs. Mr Luong asked that costs be capped. I directed the parties attempt to reach agreement in respect of costs and advise Accordingly, final cost orders remain to be made.
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Decision last updated: 27 April 2018
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