The Commissioner of the Australian Federal Police v Steffan Treptower

[2018] NSWSC 677

Supreme Court

New South Wales

Medium Neutral Citation:	The Commissioner of the Australian Federal Police v Steffan Treptower [2018] NSWSC 677
Hearing dates:	11 May 2018
Decision date:	11 May 2018
Jurisdiction:	Common Law
Before:	Button J
Decision:	(1) I do not propose to make orders 1 and 2 and, accordingly, orders 3, 4 and 5 will not be entertained by me ex parte. (2) The matter is stood over to the Common Law Registrar’s List at 9.00am next Thursday, 17 May 2018.
Catchwords:	PROCEEDS OF CRIME – application for order for compulsory examination – threshold question whether to proceed ex parte – no compelling reason for proceeding ex parte established – application dismissed
Legislation Cited:	Proceeds of Crime Act 2002 (Cth), ss 180, 180B
Cases Cited:	Clough v Leahy (1904) 2 CLR 139; [1904] HCA 38 DPP (Cth) v Galloway (a Pseudonym) & Ors [2017] VSCA 120 International Finance Trust Co Ltd v NSW Crime Commission (2009) 261 ALR 220; [2009] HCA 49 Lee v The Queen (2014) 88 ALR 656; [2014] HCA 20 R v Seller; R v McCarthy [2015] NSWCCA 76 Strickland (A Pseudonym) & Ors v Commonwealth Director of Public Prosecutions & Ors [2017] HCATrans 238 X7 v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92
Category:	Procedural and other rulings
Parties:	The Commissioner of the Australian Federal Police (Applicant) Steffan Treptower (Respondent)
Representation:	Counsel: Victoria O’Halloran (Applicant) Ex parte (Respondent)   Solicitors: Australian Federal Police (Applicant) Ex parte (Respondent)
File Number(s):	2017/62310
Publication restriction:	Pseudonym adopted for the respondent

EX TEMPORE Judgment – REVISED

Background

1. This matter came into the Duty List shortly after 10.00 am today. With the assistance of counsel for the applicant, the Commissioner of the Australian Federal Police (the AFP), I was given the following understanding of the matter.

2. The allegation is that a person obtained significant funds from a financial institution based on false information. The allegation is also that the putative respondent in this matter was an "introducer" who facilitated the provision of that information.

3. I infer from the fact that an affidavit (which was placed before me with regard to the threshold question of how to proceed) asserts that examination orders have been made against quite a few persons, that the proposition of the AFP is that this was quite a sophisticated and wide ranging joint criminal enterprise, and did not merely involve two people.

4. The motion that has been placed before me today is, in a nutshell, that I order an examination (pursuant to s 180 and, in the alternative, s 180B of the Proceeds of Crime Act 2002 (Cth)) of the introducer about the affairs of the principal and another person. But, as can be seen from the first two proposed orders in the notice of motion of the AFP of 8 May 2018, the starting point is to determine whether it is appropriate to hear this application ex parte.

Proceed ex parte?

5. I think the basal proposition is that a party affected by an order has a right to be heard. There are, of course, exceptions to that, a well-known one of which is an application for a restraining order whereby, if the putative respondent knew that the application was on foot, the whole point of the proceedings could be completely defeated.

6. Still and all, I think it is right to say that there need to be compelling reasons why any order affecting the interests of another person should be made ex parte without giving that person the slightest opportunity to be heard against the making of the order: see, for example, International Finance Trust Co Ltd v NSW Crime Commission (2009) 261 ALR 220; [2009] HCA 49 at [156] per Heydon J.

7. As well as that, it is to be understood that what is sought by these substantive orders is a derogation of the right to silence of a citizen, and a process whereby he or she is compulsorily examined, on pain of punishment if he or she either refuses to answer or answers falsely. That, to my mind, intensifies the desirability, if reasonably practicable, of a person being able to be heard as against the making of such an order.

8. The further intensifying factor is that the parameters of orders such as these has been a matter of intense legal and judicial debate; in truth, since the very first case about this topic which (unless I am mistaken) was in the High Court in Clough v Leahy (1904) 2 CLR 139; [1904] HCA 38, but, more specifically, over the past five years or so in such cases in the Court of Criminal Appeal as R v Seller; R v McCarthy [2015] NSWCCA 76, and in the High Court of Australia as X7v Australian Crime Commission [2013] HCA 29; (2013) 248 CLR 92 and Lee v The Queen (2014) 88 ALR 656; [2014] HCA 20. And, as I remarked to counsel for the AFP in discussion, there is the further appeal from the decision of DPP (Cth) v Galloway (a Pseudonym) & Ors [2017] VSCA 120, which is currently reserved within the High Court of Australia: see Strickland (A Pseudonym) & Ors v Commonwealth Director of Public Prosecutions & Ors [2017] HCATrans 238.

9. In other words, this whole topic is not a straightforward matter. And it is the kind of topic, because of its complexity and controversy, that argues for hearing from both sides.

10. I appreciate the point of counsel for the AFP that there is nothing to suggest, for example, that the putative respondent has been charged with an offence, but, still and all, I think that my note of caution is a sound one.

11. The point is also made by counsel (in support of the proposition that there is utility in proceeding ex parte) that, if I were to do so, and if I were to make an order commanding the examination of the respondent, shortly thereafter she would be provided with an ancillary order prohibiting her from destroying any documents that might be relevant to the examination.

12. So much may be accepted. But I think the truth is that one can infer that it is at least possible that the respondent has known for many months in any event that the authorities are casting a sharp eye on the whole question of her role as introducer.

13. Separately, it was accepted by counsel that, even by way of her proposal, there will be, it seems, a time lag (albeit perhaps a short one) between the making of an order by me and the respondent becoming aware of it, and before that ancillary order being made.

14. Finally, I think it is quite arguable that, if documents were destroyed before the provision of the ancillary order, the respondent could be committing an offence in any event.

15. In short, in my opinion this is not the kind of matter whereby things must be done ex parte, otherwise the whole purpose of the proceedings will be set at naught. To the contrary, I think that this is the kind of matter that cries out for hearing from the other side.

16. For that reason, I determine the threshold question in the negative.

Orders:

1. I do not propose to make orders 1 and 2 and, accordingly, orders 3, 4 and 5 will not be entertained by me ex parte.

2. The matter is stood over to the Common Law Registrar’s List at 9.00am next Thursday, 17 May 2018.

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