Zayneh v Commissioner of the Australian Federal Police (Ruling)
[2023] VCC 2358
•15 December 2023
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CONFISCATION LIST
Case No. Cl-21-02434
IN THE MATTER of property suspected of being proceeds of indictable offences
and
IN THE MATTER of an application for a stay of proceedings made under s319 of the Proceeds of Crime Act 2002 (Cth)
BETWEEN
| DANNY ZAYNEH AGNES SZWEDZIK DTZ PROPERTY INVESTMENTS PTY LTD D&A PROJECT CONSULTANTS PTY LTD | Applicants |
| v | |
| COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE | Respondent |
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JUDGE: | HIS HONOUR JUDGE FRAATZ | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 May 2023 | |
DATE OF RULING: | 15 December 2023 | |
CASE MAY BE CITED AS: | Zayneh and Ors v Commissioner of the Australian Federal Police (Ruling) | |
| MEDIUM NEUTRAL CITATION: [First Revision 20 December 2023] | [2023] VCC 2358 | |
RULING
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Subject:PROCEEDS OF CRIME
Catchwords: Application for stay of proceedings pending criminal trial – prejudice – consideration of factors in s319 of Proceeds of Crime Act – whether it is in interests of justice to order a stay
Legislation Cited: Proceeds of Crime Act 2002 (Cth); Evidence Act 2008 (Vic); Open Courts Act 2013 (Vic); Court Suppression and Non-publication Orders Act 2010 (NSW)
Cases Cited:Commissioner of the Australian Federal Police v El-Debel [2021] ACTSC 286; Onley v Commissioner of the Australian Federal Police (2019) 367 ALR 291; Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46; Commissioner of the Australian Federal Police v W [2016] NSWSC 683; Commissioner of the Australian Federal Police v Yang [2023] VSCA 271; Commissioner of Australian Federal Police v Elzein [2017] NSWCA 142; Harman v Secretary of State for Home Department [1983] 1 AC 280
Ruling: Stay granted.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicants | Mr C G Juebner KC with Ms E Nadon | Lewenberg & Lewenberg |
| For the Respondent | Mr D McLure SC with Mr D Billington | Australian Federal Police Proceeds of Crime Litigation |
HIS HONOUR:
1On 7 June 2021, the first applicant, Danny Zayneh, was charged with conspiring to import a commercial quantity of methamphetamine and cocaine from the United States and India, and related offences. There are six co-accused in respect of the conspiracy to import a total of 1,000 kilograms of methamphetamine and 600 kilograms of cocaine.
2On 19 July 2021, Mr Zayneh was also charged with trafficking 3.8 kilograms of methamphetamine, and - on the basis of his suspected prior involvement in importations of commercial quantities of illegal drugs - dealing with the proceeds of indictable crime.[1] He is presently in custody.
[1] Schedule A – table of charges filed against Mr Zayneh
3The criminal prosecution of Mr Zayneh is part of Operation Ironside. Central to Operation Ironside was the deployment and monitoring by law enforcement authorities of encrypted communication software, known as AN0M, alleged to have been used by organised crime.
4This proceeding commenced on 11 June 2021, upon the Commissioner of the Australian Federal Police filing an application under s25 of the Proceeds of Crime Act 2002 (Cth) (“the Act”) for restraining orders pursuant to s18 of the Act, custody and control orders pursuant to s38 of the Act, and various ancillary orders pursuant to s39 in relation to various real property, bank accounts, motor vehicles, cash and gold ingots (“property”) in the effective control of suspects Mr Zayneh, and the second applicant, Agnes Helen Szwedzik.
5The property was variously owned by:
(a) Mr Zayneh;
(b) Ms Szwedzik;
(c) Mr Zayneh and Ms Szwedzik jointly;
(d) the third applicant, D&A Project Consultants Pty Ltd (“D&A”);[2] and
(e) the fourth applicant, DTZ Property Investments Pty Ltd (“DTZ”).[3]
[2] Including CBA account number 313211575151 and a 2017 Range Rover registration number BCX819
[3] Units 1-6, 67 Essex Street, Pascoe Vale
6Mr Zayneh was and remains the sole shareholder and director of the third and fourth applicants.[4]
[4]The third applicant, DTZ Property Investments Pty Ltd, was the nominated purchaser of a property in Queensland at the time the restraining orders were made in June 2021. That sale was not completed.
7His Honour Judge Dyer of this Court made separate restraining and other orders sought by the Commissioner in respect of the property[5] on an ex parte basis against Mr Zayneh and Ms Szwedzik on 11 June 2021 and 7 December 2021.
[5] Schedule B – table of restrained assets subject to exclusion applications
8On 6 July 2021 and 10 December 2021, the Commissioner filed applications under s59 of the Act for forfeiture orders pursuant to s47 of the Act in respect of all of the property restrained (“Commissioner’s forfeiture applications”).[6]
[6] Schedule C – table of relevant applications filed in this proceeding
9On 9 December 2021, each applicant filed an application under s74 of the Act for exclusion from forfeiture orders (“exclusion applications”) in respect of all restrained property except:
(a) $38,990 cash concealed in a coffee machine at Mr Zayneh’s premises;
(b) Mr Zayneh’s interest in a Queensland property under a purchase contract because the sale of that property did not proceed;
(c) Units 5 and 6 of the townhouses in Essex Street, Pascoe Vale registered to DTZ, which have been sold pursuant to variations granted by the Court, and the proceeds restrained; and
(d) the 2017 Range Rover, which has been sold and the proceeds restrained.[7]
[7] Riazaty affidavit, [19]
10By applications made 30 May 2022, the applicants seek an order that the following applications in this proceeding be stayed pursuant to s319 of the Act until criminal charges against Mr Zayneh are finally determined or withdrawn:
(a) the exclusion applications; and
(b) the Commissioner’s forfeiture applications.
11The Commissioner filed a further application on 29 August 2022 under s182 of the Act for examination orders.
12The applicants do not oppose the application for examination orders, provided certain protections are put in place and quarantine orders made under s266A(2)(b) of the Act.
13A form of order has been agreed between the parties with respect to the scope of the examination of Mr Zayneh and Ms Szwedzik pursuant to s180 of the Act; and the provision of sworn statements by each of the applicants to the Commissioner as to their property interests and current liabilities.
14Ultimately, the dispute for resolution by the Court is confined to a relatively narrow point: should the examination of Mr Zayneh and Ms Szwedzik about their affairs, the affairs of the other applicants and of the Szwedzik Zayneh superannuation fund be conducted before or after the applicants file material, including evidence and grounds under s75 of the Act, in support of the various exclusion applications.
15Mr Juebner KC, for the applicants, submitted that to require the applicants to file material in support of their exclusion applications would or may compromise Mr Zayneh’s defence of the criminal charges against him.
16For the Commissioner’s part, Mr McLure SC submitted that the stay application was premature, and ought not be heard and determined until such time as:
(a) evidence in the exclusion applications had been filed; and
(b) the Commissioner had advanced his forfeiture applications.
17The Commissioner’s position is that it is only then the prescribed factors under s319 of the Act may be considered; and further, as a corollary, the applicants could not now discharge the burden of satisfying the Court that a stay was indicated.
Overview
18In addition to charges against Mr Zayneh, Ms Szwedzik is charged with a money laundering offence.
19Ms Szwedzik, DTZ, and D&A, and their property, are not identified as being involved in any way in the conspiracy to import border controlled drugs.
20Mr Zayneh alone seeks to exclude:
(a) the Zayneh Commonwealth Bank of Australia account funds;
(b) the Zayneh Westpac account funds;
(c) the Moreland Gold; and
(d) the three wristwatches.
21Mr Zayneh and Ms Szwedzik together seek to exclude:
(a) the 2016 Mercedes motor vehicle; and
(b) the Walkinshaw HSV classic vehicle.
22D&A seeks to exclude:
(a) funds standing to the credit of Commonwealth Bank of Australia account no: 362211038648 held in its name; and
(b) the net proceeds of sale of a 2017 Range Rover.
23DTZ seeks to exclude Units 1 to 4, 67 Essex Street, Pascoe Vale, and the proceeds of the sale of Units 5 and 6 in that development.
24For the reasons that follow, I am satisfied that it is in the interests of justice to grant a stay of the exclusion applications and the Commissioner’s forfeiture applications in relation to Mr Zayneh, Ms Szwedzik, D&A and DTZ.
25In summary, Mr Zayneh and Ms Szwedzik agreed on the day of the hearing to an order requiring each to submit to examination pursuant to s180 of the Act immediately. This is a very significant concession, because otherwise the stay application would have proceeded on the basis that, if granted, the examination process would be delayed until the hearing and determination of Mr Zayneh’s criminal trial. It is not in dispute that due to various complexities, the criminal trial is not expected to commence until 2025 or even later.[8]
[8] See Zayneh v The King[2023] VSCA 311, [5] and [35]
26Mr Zayneh has not caused any delay in the progression of the criminal prosecution against him.
27The power of the Commissioner to examine as to the affairs of each of the applicants is very wide. The purposes of the Act will be served by the conduct of these examinations, and the principal prejudice identified in the Commissioner’s evidence and written submissions is obviated by this concession.
28The circumstances of this case also indicate that there is a real prospect of prejudice to the conduct of Mr Zayneh’s criminal trial if a stay is not granted.
29The basis of the suspicion of involvement in illegal activity supporting the initial restraining orders made under s18 of the Act, and central to the many prosecutions arising out of Operation Ironside, are messages monitored by law enforcement authorities of encrypted communication software, known as ‘AN0M’, alleged to have been used by organised crime. The admissibility of these AN0M messages is the subject of challenge in the numerous prosecutions, including under s138 of the Evidence Act 2008, on the basis that they were improperly or illegally obtained. The admissibility issues are central to defending the charges.[9]
[9]Riazaty affidavit, [13]; [25]-[29]
30Due to the complexity of the criminal proceeding and the unique circumstances of Operation Ironside, which involved deployment of AN0M by law enforcement authorities for use by organised crime, the first stage of the committal was listed for hearing in September 2023. This first stage involves consideration of the admissibility issues which affect all the accused. A second stage of the committal had not yet been fixed, which will consider the individual circumstances of each accused. Mr Lewenberg, in his affidavit sworn 24 May 2023, estimates that the trial of the criminal proceeding may not commence until 2026 or even 2027.[10]
[10] Lewenberg affidavit, [27]
31Against this background, the prosecution is not yet in a position to disclose its hand as to the manner in which it will conduct its criminal case against Mr Zayneh.
32This application proceeds on the basis that the prosecution will seek to rely upon the AN0M encrypted messages in the concurrent criminal proceedings in relation to both:
(a) the failed importation attempt giving rise to the present criminal charges; and
(b) other charges based upon the suspected prior involvement of Mr Zayneh in importations of commercial quantities of illegal drugs (“suspected prior offending”):[11]
(i)dealing with money or property exceeding $100,000 in value, which is reasonably suspected of being the proceeds of indictable crime;[12] and
(ii)possession of gold ingots and one motor vehicle suspected of being proceeds or an instrument of the suspected prior offending.[13]
[11]First Aitken affidavit, [6(b)(i)]
[12]First Aitken affidavit, [6(b)(ii)]
[13]First Aitken affidavit, [34], [37], [7D] and [39], [34A], [37A], [38A]
33I accept the applicants’ submission that issues in relation to the suspected prior offending in particular, and issues extant in the exclusion applications, are likely to be coextensive with the issues in the criminal trial concerning tendency evidence. This is so notwithstanding restrained property may be unrelated to the offending the subject of the conspiracy to import charges. The AN0M messages were central in the ex parte applications for the restraining orders, and remain central to:
(a) the Commissioner’s allegations in this proceeding; and
(b) the criminal prosecution.
Evidence
34The applicants rely upon:
(a) affidavit of law clerk, Justin Riazaty, with exhibits sworn 30 May 2022; and
(b) affidavit of solicitor, Alex Lewenberg, with exhibits sworn 23 May 2024.[14]
[14] Objection to admissibility of paragraph 18 sustained
35The evidence in support of the stay application was, relevantly, as follows:
“A central issue presently before the Magistrates' Court concerns disclosure to be made by the Commonwealth Director of Public Prosecutions (CDPP). These disclosure issues concern a large number of accused, who have been charged as a result of Operation Ironside. Presently, these disclosure issues are being managed collectively in respect of all of the Victorian accused. I believe, based on my observations of the various court hearings which I have attended by audiovisual link, that there are not less than 40 accused.
The disclosure issues presently before the Magistrates' Court have given rise to disputes about public interest immunity, which are yet to be determined. The disclosure issues are relevant to the admissibility of the encrypted AN0M messages, which are sought to be relied upon by the COPP in the various prosecutions arising from Operation Ironside, including against Zayneh. One argument that will be taken by various accused, including Zayneh, is that the encrypted AN0M messages are inadmissible, including by reason of the application of s. 138 of the Evidence Act. The disclosure issues are directly relevant to that argument.[15]
…
A central aspect of the defence of the criminal charges faced by Zayneh is to challenge the admissibility of the AN0M messages . That process is progressing in the Magistrates' Court. The c is multi-layered. Amongst other things, it involves expert evidence concerning the way in which AN0M worked, and a question whether the telephone intercepts lawfully permitted law enforcement authorities to gain access to the AN0M messages.
If this proceeding were required to progress to trial before the conclusion of the criminal proceeding, the admissibility of those same messages would be challenged in this proceeding. I anticipate that, in opposition to the exclusion applications made under s.74 of the POCA and in support of the forfeiture applications made under s. 47 of the POCA, the Commissioner would seek to rely upon those messages…
Dealing with the admissibility of the AN0M messages in this proceeding would create a substantial burden in circumstances where that same issue is presently centrally live in the criminal prosecution.”[16]
[15] Riazaty affidavit, [12], [13]
[16] Ibid, [25]-[27]
36Mr Riazaty goes on to depose to very substantial costs being incurred in relation to the disclosure issues in the criminal prosecution, the associated challenges to claims for public interest immunity and the admissibility arguments generally.[17] Further, that if the same challenges to admissibility were required to be run in this proceeding, it would result in duplication of court time and costs, and substantial delays.[18]
[17] Ibid, [28], [34]-[38]
[18] Ibid, [29]
37In terms of specific prejudice, Mr Riazaty states:
“If the Applicants are required to pursue their exclusion applications, it is likely that Zayneh will be required to file affidavit material, be subject to examinations and give viva voce evidence at trial.
This would force Zayneh to have to choose between, on the one hand, exercising his right to silence and thereby compromising the exclusion applications where the Applicants have the burden of proof or, on the other hand, waiving his right to silence and thereby compromising his criminal defence.
I am advised by Zayneh and believe that he does not wish to waive his right to silence and also does not wish to prejudice either the POCA proceeding or criminal proceeding for himself or the other Applicants.”[19]
[19] Ibid, [30]-[32]
38Mr Zayneh’s solicitor, Mr Lewenberg, has confirmed the truth of the matters deposed to by Mr Riazaty, and updated the costs estimates in Mr Riazaty’s affidavit. He also states:
“The substantive arguments as to admissibility of the AN0M messages and other related arguments cannot be heard by the Magistrates' Court; any such argument can only be heard by the Trial Court.[20]
…
The criminal prosecution against Mr Zayneh carries extreme complexity. The evidence proffered against Mr Zayneh, and specifically the operation of how that evidence comes about, is novel and has resulted in much time being utilised.
In my long career, I have acted for clients alleged to have committed serious drug offences, including the importation of significant illicit substances. The issues that arose in other matters I have acted in do not compare to the complexity of the issues raised in this Operation Ironside prosecution. The complexity of the Operation Ironside issues was recently commented upon in this Honourable Court in Director of Public Prosecutions v James [2022] VCC 1603, where his Honour Judge Cahill stated at [113]-[114]:
‘I was told there are at least dozens of persons, facing charges, who are contesting the lawfulness of interception warrants and it is anticipated challenges to the admissibility of the AN0M communications will take many years to finalise. It is expected, because it is an issue of such significance, litigation will reach the High Court for final determination.’[21]
…
[20] Lewenberg affidavit, [22]
[21] Ibid, 33, 34
If the Commissioner seeks to await the outcome of the criminal prosecution of Mr Zayneh before having his forfeiture applications under s 47 of the POCA heard and determined so as to be able to rely on automatic forfeiture under s 92 of the POCA, then there is no urgency in the applicants filing and serving their evidence in support of their applications to exclude property from forfeiture orders under s 74 of the POCA.
If, contrary to my experience, the Commissioner sought to press his forfeiture applications to be determined ahead of the criminal trial, then the same admissibility issues concerning the AN0M messages would need to be determined in this proceeding. That would cause very substantial unnecessary delay and costs.”[22]
[22] Ibid, [47], [48]
39It is not in dispute that the Commissioner has not yet determined the forfeiture path under the Act in respect of the property in which Mr Zayneh has an interest that he intends to pursue under the Act:
(a) whether he intends to await determination of the criminal trial, and then pursue automatic forfeiture under Part 2-3 of the Act; or alternatively,
(b) pursue non-conviction-based forfeiture pursuant to s47 on the basis that Mr Zayneh has engaged in conduct constituting one or more serious offences as defined (see s47(1)(c) of the Act).
40The Commissioner relies upon the affidavit of Commander Stephen Fry in opposition to the stay applications sworn 29 August 2022 (with exhibits), together with the affidavits of Federal Agent Susanne Margaret Aitken in support of the applications for restraining orders under s18 of the Act sworn 11 June 2021 (“First Aitken affidavit”) and 23 November 2021.
41Commander Fry’s affidavit set out:
(a) matters relevant to the risk that information obtained by virtue of the statutory abrogation of the privilege against self-incrimination would accidentally reach general criminal investigators or prosecutors;
(b) the Australian Federal Police systems where a non-disclosure order under s266A(2)(b) is made; and
(c) the prejudice which the Commissioner will or may suffer if the proceeding is stayed.
42Both parties filed detailed written submissions,[23] which were supplemented by comprehensive oral submissions at the trial.
[23]Applicants' outline of submissions dated 30 May 2022; AFP's outline of submissions dated 13 February 2023
Relevant principles
43Section 319 of the Act provides that a court may stay proceedings under the Act (“POCA proceedings”), which are not criminal in nature, if the court considers that it is in the interests of justice to do so.[24] In considering this application for a stay of proceedings, the Court must take the following into consideration:[25]
[24] s319(1) of the Act
[25] s319(2)-(6) of the Act
“(2) The court must not stay the POCA proceedings on any or all of the following grounds:
(a) on the ground that criminal proceedings have been, are proposed to be or may be instituted or commenced (whether or not under this Act) against the person subject to the POCA proceedings;
(b) on the ground that criminal proceedings have been, are proposed to be or may be instituted or commenced (whether or not under this Act) against another person in respect of matters relating to the subject matter of the POCA proceedings;
(c) on the ground that:
(i) a person may consider it necessary to give evidence, or to call evidence from another person, in the POCA proceedings; and
(ii) the evidence is or may be relevant (to whatever extent) to a matter that is, or may be, at issue in criminal proceedings that have been, are proposed to be or may be instituted or commenced (whether or not under this Act) against the person or any other person;
(d) on the ground that POCA proceedings in relation to another person have been, are to be or may be stayed.
(3) Paragraph (2)(a) applies even if the circumstances pertaining to the POCA proceedings are or may be the same as, or substantially similar to, the circumstances pertaining to the criminal proceedings.
(4) Paragraph (2)(b) applies even if the subject matter of the POCA proceedings is the same as, or substantially similar to, the matter at issue in the criminal proceedings.
…
(6)In considering whether a stay of the POCA proceedings is in the interests of justice, the court must have regard to the following matters:
(a) that the POCA proceedings, and any criminal proceeding of a kind referred to in paragraph (2)(a) or (b), should proceed as expeditiously as possible;
(b) the cost and inconvenience to the Commonwealth of retaining property to which the POCA proceeding relates and being unable to expeditiously realise its proceeds;
(c) the risk of a proceeds of crime authority suffering any prejudice (whether general or specific) in relation to the conduct of the POCA proceedings if the proceedings were stayed;
(d) whether any prejudice that a person (other than a proceeds of crime authority) would suffer if the POCA proceedings were not stayed may be addressed by the court by means other than a stay of the proceedings;
(e) any orders (other than an order for the stay of the POCA proceedings) that the court could make to address any prejudice that a person (other than a proceeds of crime authority) would suffer if the proceedings were not stayed.”
44The applicants bear the onus of proof.
45The Court’s power under s319 to stay the Commissioner’s forfeiture applications and the exclusion applications is to be determined in the context of the Act manifesting a clear legislative intention that proceedings under the Act might proceed concurrently with pending criminal proceedings in respect of the same or related conduct.
46A primary consideration to be taken into account remains the protection of the forthcoming trial of the criminal charges. While the expeditious pursuit of the forfeiture of assets under the Act is an important consideration, careful attention must be given, consistently with the terms of s319, to the avoidance of orders under the Act which might render a later criminal trial unfair.[26]
[26]See discussion in Commissioner of the Australian Federal Police v El-Debel [2021] ACTSC 286, at [24], considering Onley v Commissioner of the Australian Federal Police (2019) 367 ALR 291 (“Onley”)
47It is not in dispute that the applicants must show more than the systemic prejudice sufficient to grant a stay in Commissioner of the Australian Federal Police v Zhao.[27] Acknowledging that since Zhao, and in direct response to it, amendments were made to s319 and to insert the protective orders in s319A, it is also not in dispute that the concerns expressed in Zhao are not irrelevant in this stay application.
[27] (2015) 255 CLR 46 (“Zhao”)
48In Zhao, the Commissioner submitted that confidentiality of evidence could be maintained through the usage of protective orders and the giving of evidence in closed court. The High Court made the following findings:
“The Commissioner suggests that protective orders could be made, which might maintain the confidentiality of evidence, and that evidence could be given in closed court. In the latter regard, the open court principle, to which the law adheres (35), now finds expression in s 28 of the Open Courts Act 2013 (Vic). The rationale of the open court principle is that court proceedings should be subjected to public and professional scrutiny, and courts will not act contrary to the principle save in exceptional circumstances. Closing the court so that the Commissioner might progress forfeiture proceedings and receive the second respondent’s evidence does not qualify as a proper reason for departing from the principle.
During the purpose of argument, at a point when the power given by s 266A of the POC Act to disclose to a prosecutor evidence obtained by compulsion was mentioned, the Commissioner was at pains to reassure the Court that he does not contend that s 266A provides a licence to communicate information obtained in the civil proceedings to the prosecuting authorities. The Commissioner emphasised that the Proceed of Crime Litigation section is not regarded as an arm of the prosecution, which appears to have been the perception of the New South Wales Crime Commission in Do Young Lee.
Regardless of the conduct in Do Young Lee, it would not be correct to approach a matter such as this on the basis that a wrong would be committed. However, s 266A would not render the provision of the second respondent’s evidence to the prosecution unlawful. Even if it could not be used as evidence against him, its possession by the prosecution might affect his defence. The Court of Appeal’s view, that protective orders would not suffice to remove the risk of prejudice to the second respondent’s defence, is clearly correct.”[28]
[28] Ibid, [44]-[46]
49Following the High Court’s decision in Zhao, s319 of the Act was amended. The Explanatory Memorandum relevant to the prohibited grounds for the granting of a stay which are set out in s319(2) to (5) states:
“Secondly, new sub-sections 319(2)-(5) clarify where a court must not grant a stay. These principles are designed to clarify the intention that concurrent civil and criminal proceedings are possible, and require specific consideration of the individual circumstances and associated risks of prejudice. The amendments clarify that proceedings under the Act may only be stayed where the granting of a stay is the only means of addressing the circumstances (ie. the prejudice that may result to a concurrent or subsequent criminal trial). The proposed amendments are primarily designed to ensure that the court will consider the individual circumstances of the proceeding, including the nature of the overlap between the civil and criminal proceedings, and prevent the risk that a person need only claim a risk of prejudice but not provide evidence explaining the nature of that risk.”[29]
[29]Crimes Legislation Amendment (Proceeds of Crime and Other Measures) Bill 2015 Explanatory Memorandum [49]
50Adamson J, in Commissioner of the Australian Federal Police v W,[30] in considering relevant matters under the Act in the context of the amended s319, made the following observations:
[30] [2016] NSWSC 683
“The construction of s 319(2)
The wording of s 319(2) is somewhat curious since it prohibits the Court, in terms, from staying the civil proceedings “on any or all of the following grounds”. The grounds listed are the very matters which were found to be germane (though not determinative) as to whether the interests of justice warranted a stay in Commissioner of the Australian Federal Police v Zhao.
I note that the Explanatory Memorandum said (in the passage highlighted above from [49]) that:
‘The amendments clarify that proceedings under the Act may only be stayed where the granting of a stay is the only means of addressing the circumstances (ie. the prejudice that may result to a concurrent or subsequent criminal trial).’
The difficulty with this passage in the Explanatory Memorandum is that s 319 does not say that a stay may be granted if, and only if, there is no other means of addressing the prejudice. Nor does s 319 say that the only relevant prejudice is that to a concurrent or subsequent criminal trial (indeed, s 319(6)(d) indicates that a wider concept of prejudice is relevant). Rather, the wording of s 319 appears to leave it to the Court to determine whether a stay ought be granted in the interests of justice, while making it clear that matters such as substantial similarity between the circumstances of criminal proceedings and proceedings (which had hitherto, as in Commissioner of the Australian Federal Police v Zhao, been regarded as warranting, if not requiring, a stay) were no longer sufficient in themselves to warrant a stay. I do not regard the explanation in the passage from [49] of the Explanatory Memorandum as according with the express words of the provision. Section 319(6)(d) provides that whether the prejudice can be addressed by a means other than a stay is one of a number of factors to be considered. This is consistent with the passage in the Explanatory Memorandum set out above which suggests that the absence of any other means of addressing the prejudice is a condition precedent to the grant of a stay.
Having regard to the terms and purpose of the Amending Act and the extract from the Explanatory Memorandum to the Bill that became the Amending Act, it appears that Parliament intended that more was required for a stay than the establishment of the matters in s 319(2). In other words, an applicant for a stay of an examination or proceedings under the Proceeds of Crime Act would need to show more than, for example, that criminal proceedings were on foot which related to the same circumstances as the civil proceedings. Further, the Court is obliged to consider the matters set out in s 319(6), as well as to consider whether any prejudice could be overcome by ordering that the Court be closed for the civil proceedings under the Proceeds of Crime Act.[31]
…
[31] Ibid, [45] to [48]
I am not satisfied that the prejudice to the first defendant of being cross-examined in the civil proceedings or being required to give instructions for the cross-examination of the plaintiff’s witnesses could be overcome by means of orders under the Court Suppression and Non-publication Orders Act 2010 (NSW) or an order to close the Court under s 319A of the Proceeds of Crime Act. Moreover, there is a risk that, whatever orders I might make, there will be disclosure of what occurs in the civil proceedings, through misunderstanding, inadvertence or mishap, to those involved in the prosecution. I consider that Mr Moses set the bar too high when he submitted that there was no basis for a “reasonable apprehension” of inadvertent disclosure. I consider it to be relevant to take into account the possibility of inadvertent disclosure, even though the prospects of its occurring may be adjudged to be low.”[32]
[32] Ibid, [59]
51Recently, the Court of Appeal in Commissioner of the Australian Federal Police v Yang[33] considered prejudice the basis of an order prohibiting disclosure of information under s266A of the Act. In considering amendments to the Act since Zhao, the Court confirmed that the Explanatory Memorandum illustrates that the mischief to which s319 is directed is prejudice arising in criminal proceedings.[34] Albeit in the context of the discretion exercisable under s266A(2)(b), the Court articulated the test as being –
“… an assessment of whether the disclosure of the obtained information pursuant to the ancillary order and the examination order would occasion an unacceptable risk of impermissible prejudice to any criminal trial.”[35]
[33] [2023] VSCA 271
[34] Ibid, at [51]
[35] Ibid, at [58]
52There is tension within the section itself. In Commissioner of Australian Federal Police v Elzein,[36] Basten JA said:
“This statement of purpose [in the Explanatory Memorandum] failed to address the difficulty identified by the High Court in Zhao, namely that to require an applicant for a stay to explain how his or her answers to questions, or the provision of a written statement as to the source of funds to purchase property, would cause a risk of prejudice to his or her defence, would be to create the prejudice which the stay seeks to avoid. The present form of s 319(2)-(5) does not advance the situation greatly in favour of refusal of a stay. Even in the old form, the High Court stated that the terms of the section “suggest that a person charged with an offence which is relevant to forfeiture or other civil proceedings brought under the POC Act must do more than point to the existence of criminal proceedings in order to obtain a stay of the civil proceedings.”[37]
[36] [2017] NSWCA 142
[37] Ibid, [69]
53Despite the grounds in s319(2) to (5) not being of themselves sufficient to give rise to a stay, the Court must still consider the accused’s right to remain silent, together with all other relevant matters, in determining a stay application. In Onley, Bathurst CJ said:
“Section 319(1) provides that a court may grant a stay of POCA proceedings if it is in the interests of justice to do so. That includes balancing the right of the person, the subject of the criminal proceedings, to remain silent and the fact that the examination will alter the accusatorial process in the manner described by Hayne and Bell JJ in X7 at [124], with the object of the Act in securing from offenders and their associates the proceeds of their criminal activities. Section319(6) sets out in a non-exhaustive fashion what the court must take into account, which includes the risk of a proceeds of crime authority suffering any prejudice.
Section 319(2) sets out the grounds on which POCA proceedings must not be stayed. That does not mean that prejudice to the accused arising from (in this case) an examination cannot be taken into account. However, if all that can be pointed to in the case of an examination of a person to whom s 319(2)(a) applies is that the circumstances pertaining to the POCA proceedings are the same or substantially similar to the circumstances pertaining to the criminal proceedings, then that of itself will not be sufficient for a stay to be granted.
…
It is in this context that the reliance on what has been described as "inchoate prejudice" falls to be considered. Consistently with what was said in X7 at [124], Lee No 2 at [31]-[38] and [42] and most recently in Strickland at [75]-[78], [101], the fact of the examination, even if kept secret, fundamentally alters the accusatorial judicial process and is thus prejudicial to the accused person.[38]
…
[38] Onley, [230]
I do not think that [s.319(2)] excludes the matters from consideration, as distinct from making it clear that standing alone, they would not justify a stay.”[39]
[39] Onley, [233]
54The relevant principles established by these authorities appear to be as follows:
(a) a court may stay proceedings under the Act that are not criminal proceedings if the court considers that it is in the interests of justice to do so (s319(1));
(b) the court may not stay proceedings on the grounds of concurrent criminal charges (s319(2)(a) and (b));
(c) systemic or inchoate prejudice is not of itself sufficient to grant a stay;
(d) specific prejudice to the conduct of the defence must be demonstrated, which must be real and acute, as distinct from merely theoretical;
(e) having regard to any prejudice to the accused, and prejudice to any other persons including the Commissioner, the question to be resolved is whether it is in the interests of justice to grant the stay application; and
(f) ultimately, in the exercise of the discretion, as Basten JA observed in Onley:
“What is required is an evaluative approach which will depend on the circumstances of the case.”[40]
[40] Onley, [408]
The issues
55Mr Juebner KC submitted that an order under the Act requiring the applicants to file evidence in the exclusion applications might render a later criminal trial unfair.
56Mr McLure SC submitted that:
(a) the overarching tenor of s319 in the context of the Act read as a whole, is that a stay will only be granted where the applicant can demonstrate specific prejudice to themselves which cannot be ameliorated by the steps contemplated by s319, as distinct from theoretical or systemic prejudice which arises whenever a person faces criminal proceedings at the same time as civil proceedings which overlap as to facts or subject matter. Further, a stay should not be granted if to do so would frustrate the anticipated operation of the Act;
(b) the principal objects of the Act[41] include to:
(i)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
(ii)enable law enforcement authorities effectively to trace proceeds and unexplained wealth amounts,
[41] See s5 of the Act
which ultimately enable pecuniary penalty orders under s116 to be made against persons convicted of indictable offences, and who have derived benefits from the commission of the offence;
(c) in the balance is whether closing the Court under s319A in order to further the exclusion applications by ordering the applicants to file evidence is sufficient to preserve the fairness of the criminal proceedings;
(d) it is premature to grant the stay until the Commissioner has had the opportunity to consider affidavit evidence filed by the applicants, make its own enquiries, examine the applicants, and then put on its own evidence;
(e) the Court should not entertain the stay application because there are too many contingencies at this point in time to establish whether the conduct of the civil proceedings in the manner agitated by the Commissioner would compromise Mr Zayneh’s criminal defence;
(f) even in the event that the Commissioner sought to rely upon certain AN0M messages to prove conduct by Mr Zayneh, it is not clear that the disclosure and admissibility issues which have arisen in his criminal proceedings would also arise in this proceeding;
(g) the other applicants’ stay applications cannot succeed on the basis of any concurrency with the criminal proceedings because they are not defendants in those proceedings; and
(h) the stay applications cannot succeed on case management grounds.
57Whilst affording significant protection, it is apparent that the Australian Federal Police standard operating procedures do not in terms afford the applicants any protection in relation to dissemination of affidavit evidence and transcript of hearings of the forfeiture and exclusion applications. Nevertheless, Mr McLure submitted that there was sufficient protection afforded to them by the rule in Harman v Secretary of State for Home Department,[42] at least insofar as affidavit material not being available for use in other proceedings.
[42] [1983] 1 AC 280
58Mr McLure submitted that the applicants could not establish any prejudice if the stay was not granted; in the alternative that any prejudice was slight, and did not outweigh the prejudice to the Commissioner if it was granted.
59The existence of prejudice being a mandatory consideration, it is convenient to commence with consideration of the evidence and submissions on this issue.
Prejudice to the applicants
60It is not in dispute that Mr Zayneh would suffer inchoate or systemic prejudice if the stay were not granted; nor that by s319(c) of the Act, the court must not stay these proceedings on this ground.
61On the exclusion applications, the applicants bear the onus of establishing the matters in s73 of the Act. Relevantly, each applicant must in respect of their respective interest in restrained property establish that the property:
(a) is not proceeds of unlawful activity (source limb);
(b) is not an instrument of any serious offence (use limb).
62In order to advance the exclusion applications, the applicants, who bear the onus of proof, must in the first instance file and serve affidavit evidence to establish the source of the funds used to acquire the restrained assets and explain how they were used.
63The exclusion applications of Mr Zayneh and the two companies controlled by him, D&A and DTZ, will require Mr Zayneh to give evidence as to the source of the funds:
(a) to purchase and develop the Pascoe Vale town houses;
(b) to purchase the Moreland Gold;
(c) to purchase the Range Rover; and
(d) in the CBA Account ($252,340), the Westpac Account ($120,887) and the CBA 8648 Account ($25,213).
64This evidence is required to be given in support of the exclusion applications in circumstances where Mr Zayneh faces serious charges concerning an alleged conspiracy to import drugs and where it has also been alleged that he has engaged in dealing with proceeds of crime, and was previously involved in drug importations.
65The Commissioner has squarely raised the fact that he suspects Mr Zayneh has been involved in earlier importations of drugs; Ms Szwedzik has been involved in money laundering; and that their disclosed income is insufficient to explain their wealth. The Commissioner will invite the Court to draw the inference that the assets were acquired through unlawful activity.
66Neither Mr Zayneh nor Ms Szwedzik ought to be required to make affidavits as to the source of the restrained assets, or be permitted to be cross-examined on them, whilst Mr Zayneh faces serious criminal charges. The requirement to make such affidavits and be exposed to cross-examination on them, where no direct use immunity exists, would fundamentally alter the accusatorial judicial process and result in prejudice to Mr Zayneh’s defence.
67Whilst evidence given at a compulsory examination under s180 of the Act:
(a) might be the subject of protective quarantining orders under s266A(2) of the Act (so as to prevent access to compulsorily acquired material by persons involved in the prosecution); and
(b) cannot be used directly in any criminal proceeding because direct use immunity under s198 of the Act applies,
direct use immunity does not exist in respect of:
(i)affidavits filed in support of an exclusion application; or
(ii)oral evidence given (whether in chief or in cross-examination) at the trial of an exclusion applications.
68A forfeiture order may be made under s47 of the Act if the Commissioner establishes on the balance of probabilities that, inter alia, a person whose conduct or suspected conduct formed the basis of the restraining order engaged in conduct constituting one or more serious offences.
69I find that the Commissioner is likely, in any application for a forfeiture order, to rely on the AN0M messages to seek to establish that Mr Zayneh and Ms Szwedzik engaged in criminal conduct.
70The applicants have established that enormous cost is involved in challenging the admissibility of the AN0M messages and other telephone intercepts in the criminal proceeding.[43] Although criticised by the Commissioner, Mr Zayneh’s evidence included that he had to date incurred over $85,000 in this proceeding; over $300,000 in respect of the criminal proceedings; and that the costs to be incurred in respect of the admissibility issues in the criminal proceedings may exceed $500,000
[43]Riazaty, [25]-[28]; and Lewenberg, [29]-[38]
71This evidence is also relevant to the question of whether property restrained in this proceeding was lawfully acquired. Duplication of these costs is undesirable to say the least. To require the applicants to challenge the admissibility of evidence in a civil proceeding that is also the subject of an extant challenge in the criminal proceedings is oppressive.
72On the material before me I cannot determine or even assess the merits of the applicants’ claim that the AN0M messages and other telephone intercept evidence has been improperly or unlawfully obtained. Nevertheless, it remains an important consideration in both the civil proceedings and the criminal proceedings, at least in terms of the cost involved in making this challenge, which I accept will be the subject of extensive court management, time and cost.
Prejudice to the Commissioner
73The Commissioner adduced evidence[44] that if the exclusion applications and forfeiture application were stayed he will not be able to:
(a) progress his proceeds of crime investigation, thereby limiting his ability to determine the nature and scope of benefits obtained by the respondents by illegal or unlawful means;
(b) identify and, if appropriate, restrain property of the respondents about which he is presently unaware; or
(c) prevent the respondents from taking steps to dissipate any such relevant property.
[44] Commander Fry affidavit, [74]-[76]
74Further, there would be general prejudice due to:
(a) the effluxion of time in relation to availability of information and inability to locate potential examinees or obtain documents; and
(b) his inability to conduct these proceedings to give effect to the principal objects of the Act.
75Those interests are all served by the granting of the examination orders.
76It is unlikely that the Commissioner will seek to have his applications for forfeiture orders under s47 determined in circumstances where Mr Zayneh is facing charges of a "serious offence" such that, upon conviction, automatic forfeiture under s92 of the Act operates. Save for delay, the Commissioner has not established any other material prejudice if he is unable to press his applications at this point in time.
Findings
77The applicants, in the particular circumstances of the nature of the risk of prejudice to Mr Zayneh’s defence, have persuaded me that it is in the interests of justice to exercise my discretion to grant a stay in this proceeding.
78The significant concession by Mr Zayneh and Ms Szwedzik to submit to s180 examinations, noting the wide power to examine on the affairs of each applicant, means that the Commissioner is unable to establish much of the prejudice he asserted in his affidavit material and submissions as to the furtherance of the objects of the Act. The applicants will be examined on behalf of the Commissioner generally in relation to their affairs, assets and liabilities. The Commissioner will be furnished with evidence which he may then consider in his contemplation of whether, and if so when, to pursue further restraining orders and forfeiture under s47.
79That factor weighs heavily in the value judgement I have undertaken as to where the balance lies in this application under s319.
80The principal object of the Act, namely to deprive persons of the proceeds of offences, is served by the granting of proposed orders requiring the applicants to serve sworn statements and be examined upon those statements under s180.
81It is possible that further restraining orders and exclusion applications will arise as a consequence of the s180 examinations. As to the factor of case management, it is unclear where the balance lies at this point in time. This uncertainty does not resolve against the grant of the application.
82In considering whether a stay of POCA proceedings is in the interests of justice, the court must have regard to the matters set out in s319(6):
(a) that the POCA proceedings, and any criminal proceedings of a kind referred to in paragraph (2)(a) or (b), should proceed as expeditiously as possible;
83This is not in dispute. This consideration attended prior to the amendments to s319. I accept that the delay arising in the prosecution of Mr Zayneh’s criminal charges principally arises from the unique circumstances of Operation Ironside.
(b) the cost and inconvenience to the Commonwealth of retaining property to which the POCA proceeding relates and being unable to expeditiously realise its proceeds;
84No custody and control order has been made in respect of the Footscray property or the Ascot Vale units,so any maintenance costs fall upon the applicants; and any cost to store three watches and an unregistered vehicle, in the absence of any evidence as to what those costs might be, I do not regard as material.
85Ms Szwedzik continues to drive and look after the 2016 Mercedes with the permission of the Commissioner. Whilst the applicants conceded that the Mercedes was likely to depreciate in value over the coming years, I do not regard that as sufficient on its own to establish material prejudice to the Commissioner if the stay were granted.
86I accept the evidence of Mr Riazaty as to the present status of the balance of the restrained property.[45] The townhouses in Pascoe Vale and the Footscray property are being managed appropriately by Ms Szwedzik; and the real property, restrained bank accounts, gold, watches and a classic Walkinshaw motor vehicle[46] are appreciating in value.
[45] Riazaty affidavit, [24]
[46] Save for the need to store it safely, no other actions are required to maintain the vehicle
87Whilst there are cases where the Commonwealth incurs significant costs and bears a significant burden in maintaining restrained assets (such as perishable restrained assets)), that is not so here. No particular burden is cast on the Commissioner by reason of any ongoing management of assets.
(c) the risk of a proceeds of crime authority suffering any prejudice (whether general or specific) in relation to the conduct of the POCA proceedings if the proceedings were stayed;
88Other than delay, no significant prejudice has been established by the Commissioner. The effect of this delay is largely ameliorated by the existence of the restraining orders, which prevent the dissipation of assets.
89Any delay in the hearing and determination of forfeiture applications as a result of a stay does not give rise to any material prejudice to the Commissioner so far as the restrained assets are concerned, which are appreciating in value.
(d) whether any prejudice that a person (other than a proceeds of crime authority) would suffer if the POCA proceedings were not stayed may be addressed by the court by means other than a stay of the proceedings;
(e) any orders (other than an order for the stay of the POCA proceedings) that the court could make to address any prejudice that a person (other than a proceeds of crime authority) would suffer if the proceedings were not stayed
90Whilst it is ordered in exceptional circumstances, I consider that closing the Court pursuant to s319A for the hearing of this proceeding to prevent interference with the administration of criminal justice constitutes a significant departure from the principles of open justice.
91In Zhao, the High Court unanimously rejected the suggestion that the proceeding under the Act ought to proceed in a closed court so as to confer protections on the accused:
“The Commissioner suggests that protective orders could be made, which might maintain the confidentiality of evidence, and that evidence could be given in closed court. In the latter regard, the open court principle, to which the law adheres, now finds expression in s 28 of the Open Courts Act 2013 (Vic). The rationale of the open court principle is that court proceedings should be subjected to public and professional scrutiny, and courts will not act contrary to the principle save in exceptional circumstances. Closing the court so that the Commissioner might progress forfeiture proceedings and receive the second respondent's evidence does not qualify as a proper reason for departing from the principle.”[47]
[47] Zhao, at [44]
92I accept the applicants’ submission that the specific introduction of s319A into the Act ought not be regarded as abrogating the requirement expressed in Zhao that exceptional circumstances are necessary for the invocation of a closed court order, having regard to the importance of open justice. There may be cases where, by reason of urgency, it is critical that proceedings under the Act progress whilst criminal proceedings remain pending. Such circumstances might be regarded as sufficiently exceptional to warrant the closing of the court. No exceptional circumstances have been demonstrated in this proceeding to meet this threshold.
93I am not satisfied that the prejudice to Mr Zayneh of being cross-examined in the civil proceedings in relation to the restrained property, his own conduct or affairs, or that of D&A, DLZ, or his superannuation fund; or being required to give instructions for the cross-examination of the Commissioner’s witnesses, could be overcome by means of an order to close the Court under s319A of the Act.
94I also take into account the possibility of inadvertent disclosure, even though the prospects of its occurring may be low.
95I accept the applicants’ submission that whilst some protection can be gained from an order under s266A quarantining compulsorily acquired material, such an order does not obviate the risk arising from affidavit material filed in support of the exclusion applications, or any oral evidence given at the trial of an exclusion application being used against Mr Zayneh in furtherance of the criminal prosecution.
Mr Zayneh
96There is substantial overlap between Mr Zayneh’s criminal charges and these proceedings.
97In addition to the conspiracy charges faced by Mr Zayneh, the First Aitken affidavit also identified that Zayneh was suspected of:
(a) involvement in prior importations of commercial quantities of illegal drugs (“Suspected Prior Offences”); and
(b) dealing with money or property (being cash, gold ingots and a 1988 VL Walkinshaw HSV) exceeding $100,000 in value, which is suspected as being the proceeds of indictable crime (“money laundering offence”).
98Each applicant’s exclusion application is made on the grounds that the relevant property is not proceeds of unlawful activity or an instrument of any offending. On the material before me it is apparent that the AN0M messages will be of central relevance in establishing the underlying circumstances against which the exclusion applications will be determined. Even absent any direct overlap with matters to be proved in the criminal trial, the tendency evidence likely to be adduced in the criminal trial relating to the Suspected Prior Offences or the money laundering offence indirectly overlaps with these proceedings.
99I reject the Commissioner’s submission that it is speculation that the AN0M messages will be relied upon in support of the Commissioner’s forfeiture application; and so “duplicative admissibility and disclosure arguments will not arise”.
100The Commissioner must prove that Mr Zayneh and Ms Szwedzik engaged in unlawful conduct in order to obtain a forfeiture order under s47 of the Act, even if the exclusion applications are dismissed. The grounds relied upon in the Commissioner’s forfeiture applications are the extant criminal charges brought against Mr Zayneh and Ms Szwedzik.
101I am satisfied that the AN0M telephone intercepts in relation to prior importation offending are likely to be relied upon by the Crown to establish the conspiracy charges on the basis of tendency evidence. This evidence is also relevant to the proceedings under the Act for exclusion orders and forfeiture in the context of the Commissioner’s assertions that the relevant restrained property was not lawfully obtained or was an instrument of the earlier offending.
102The Commissioner has also made it clear that he intends to cross-examine the applicants regarding the connection between the prior importation and the new offending. In this context, I reject his submission that the admissibility of the AN0M messages, and the challenge to the admissibility of those messages in the civil proceeding, is unrelated to the Commissioner’s investigation of the grounds of the exclusion application.
103The prejudice to the applicants in relation to costs and the oppressive element of contesting the admissibility of the AN0M messages in proceedings under the Act as well as the criminal proceedings is a factor in favour of exercising the discretion.
104The burden of having to fund both a challenge to the admissibility of the AN0M messages in the criminal defence and the POCA proceeding would be very significant. If the required funding is not available, as Mr Riazaty suggests, this may result in an election as to where the resources are to be deployed.
105To order the applicants to file material, and for the exclusion applications to be pursued in conjunction with the forfeiture application, creates an unacceptable risk of compromise of Mr Zayneh’s criminal proceedings.
106The precise forensic decision which Mr Zayneh must exercise to his prejudice is identified both in evidence and submissions: to preserve his right to silence and prejudice the exclusion applications; or file evidence and prejudice his criminal trial.
107Whilst not sufficient on its own, I find that in the particular circumstances of:
(a) the scale and complicated nature of Operation Ironside;
(b) the difficulty in determining whether Mr Zayneh has engaged in criminal behaviour, reflected in the inordinate delays in the criminal proceeding;
(c) the central importance of the AN0M intercepts in Mr Zayneh’s criminal trial;
(d) the cost and time involved in Mr Zayneh’s objections to the admissibility of that evidence in the criminal proceeding;
(e) the undesirability of a multiplicity of proceedings – civil and criminal – if the stay is not granted and the applicants are forced to challenge the admissibility of evidence in the POCA proceedings; and
(f) the delay, cost and financial strain if the admissibility issues are litigated in the POCA proceedings, which is likely to divert resources from and may therefore prejudice the criminal defence;[48]
resolve into a finding that it is in the interests of justice to grant a stay.
[48] Riazaty affidavit, [40]
108In this instance, the interests of justice are broader than the interests of the parties and the interest of the Commissioner in the furtherance of the objects of the Act. I find that it is not in the interests of justice for this Court to allocate resources to determine the issue of admissibility of the AN0M messages where the outcome of the same or similar arguments in the criminal proceedings are likely to determine this issue for the purposes of the POCA proceedings.[49]
[49] Riazaty affidavit, [27]; confirmed in Lewenberg affidavit, [10]
109I reject the Commissioner’s submissions that the admissibility of the AN0M messages cannot rationally affect the consideration of the Court under s73(1)(c), and that I should proceed to determine the stay on the basis that there “may not be need to refer to any unlawful activity or an instrument of the offence issue when the exclusion applications are determined”. I accept the applicants’ submission that they will be required to put on evidence to satisfy the source and use limbs of s73.
110I find the need to guard against a risk that the prosecution case may extend to adducing tendency evidence under Part 3.6 of the Evidence Act of the earlier importations to be a form of the specific prejudice contemplated in the Explanatory Memorandum upon the amending of the Act which would support a stay.
111To order the applicants to put on evidence in the exclusion applications and for the Commissioner to file his own material, and otherwise permit the Commissioner to advance his applications for forfeiture under s47, unacceptably exposes Mr Zayneh to the risk of compromise of the defence of his criminal charges, and gives rise to the other prejudice referred to above.
112The fact that the Commissioner has not yet advanced his application for forfeiture under s47 cannot be a proper basis to require the applicants to advance their exclusion applications by filing material.
Ms Szwedzik, D&A and DTZ
113It is of no moment that a stay against Mr Zayneh may or will be granted: the Act provides that a stay must not be granted on the ground that POCA proceedings in relation to another person have been, are to be or may be stayed (s319(d)).
114The other applicants instead submit that any requirement to file affidavits and be cross-examined would “be prejudicial to Zayneh”.
115There is a degree of speculation in that contention. The Commissioner made clear in its submissions that he will pursue non-conviction-based forfeiture with respect to property owned by Ms Szwedzik. Ms Szwedzik’s evidence concerning the provenance of the purchase of her residence in Footscray, the origin of over $125,000 funds in her bank account, the purchase of the Walkinshaw HSV, and her interest in the 2016 Mercedes may or may not have anything to do with Mr Zayneh’s criminal charges.
116Nevertheless, the operation of the Act itself produces prejudice because of the overlapping property in which both Mr Zayneh and Ms Szwedzik have an interest. Ms Szwedzik has an interest in property in which Mr Zayneh also has an interest, so she would be exposed to separate proceedings and costs with substantially similar issues if the stay was not granted.
117It also likely that the Commissioner will seek to rely upon the AN0M messages at least in part in this proceeding insofar as it relates to Ms Szwedzik’s suspected prior offending and money laundering, and the admissibility of this evidence affects all the applicants.
118The Commissioner will examine Ms Szwedzik about the connection between the prior importations and the new offending.
119I find the criminal charges against Mr Zayneh to be inextricably linked to the other applicants’ exclusion applications, both in a factual and practical context. To refuse the stay would, in addition to the systemic prejudice, most likely result in the specific prejudice referred to above because the same arguments as to admissibility of the AN0M messages would need to be determined in this Court.
120The stay applications of D&A and DTZ are made in the specific context of Mr Zayneh being the sole director, secretary and owner of all of the shares in both companies. He is the directing mind and will of those companies, and will be required to give evidence in order to exclude its property from forfeiture on the ground that it was lawfully acquired.
121The property of D&A and DTZ restrained includes a significant sum of money and a unit development in Pascoe Vale.
122I have considered the different factors which may apply to companies, including that a body corporate does not enjoy the privilege against self-incrimination; and only in exceptional circumstances will a corporation be excused from complying with rules of court on the ground that to do so will expose its sole director to self-incrimination.[50] I find that in all of the circumstances of this case, none of those considerations override the purpose of s319 of preventing an unacceptable risk of impermissible prejudice to Mr Zayneh’s criminal trial.
[50] Respondent’s submissions, [49], [50]
123In the evaluative approach required in the exercise of the discretion under s319, I find that it is artificial to seek to quarantine issues in respect of individual applicants when the criminal charges and the admissibility of the AN0M messages underpin the present proceedings under the Act. I do not consider it is in the interests of justice for Mr Zayneh’s exclusion application to heard separately from the other applicants’.
Conclusion
124I acknowledge the Commissioner’s submissions that the effect of the grant of a stay is to shift the onus of proof to the Commissioner to demonstrate why a stay should be lifted upon any later prosecution of his application for forfeiture under s47. Notwithstanding this, on balance I am satisfied that it is in the interests of justice to grant a stay in respect of the exclusion applications and the Commissioner’s forfeiture applications until criminal charges against Mr Zayneh are finally determined or withdrawn.
125For the reasons stated, the stay applications are granted.
126I will hear the parties as to the precise form of final orders,[51] and as to costs.
[51]See Schedule D – Minute of consent orders agreed between the parties at the hearing upon the basis that the stay application was granted (reserving a right of the Commissioner to make submissions following Commissioner of the Australian Federal Police v Yang [2023] VSCA 271)
SCHEDULE A
Charges against Danny ZAYNEH
| Date of charge | Offence |
| 7 June 2021 | Two charges of conspiracy to import commercial quantity border controlled drugs in contravention of ss11.5(1) and 307.1(1) of the Criminal Code 1995 |
| 7 June 2021 | One charge of trafficking commercial quantities of controlled drugs in contravention of s302.2 of the Criminal Code 1995 |
| 19 July 2021 | One charge of trafficking a border-controlled drug in contravention of s302.2(1) of the Criminal Code 1995 |
| 19 July 2021 | One charge of dealing with proceeds of crime in contravention of s400.6(1) of the Criminal Code 1995 |
| 19 July 2021 | One charge of possessing a handgun without a license in contravention of s7(1) of the Firearms Act 1996 |
SCHEDULE B
Property restrained in relation to Danny ZAYNEH (ZAYNEH) - orders of his Honour Judge Dyer made 11 June 2021
| No | Property |
| 1 | Unit 1, 67 Essex Street, Pascoe Vale, VIC 3044 being the property more particularly described in Certificate of Title Volume 12296 Folio 943 |
| 2 | Unit 2, 67 Essex Street, Pascoe Vale, VIC 3044 being the property more particularly described in Certificate of Title Volume 12296 Folio 944 |
| 3 | Unit 3, 67 Essex Street, Pascoe Vale, VIC 3044 being the property more particularly described in Certificate of Title Volume 12296 Folio 945 |
| 4 | Unit 4, 67 Essex Street, Pascoe Vale, VIC 3044 the property more particularly described in Certificate of Title Volume 12296 Folio 946 |
| 5 | Unit 5, 67 Essex Street, Pascoe Vale, VIC 3044 the property more particularly described in Certificate of Title Volume 12296 Folio 947 |
| 6 | Unit 6, 67 Essex Street, Pascoe Vale, VIC 3044 the property more particularly described in Certificate of Title Volume 12296 Folio 948 |
| 7 | Commonwealth Bank of Australia (CBA) account number 313211575151, held in the name of ZAYNEH totalling approximately $252,340.06 as at 8 June 2021 |
| 8 | Westpac Banking Corporation account number 733689 511959, held in the name of ZAYNEH with a balance totalling approximately $120,887.23 as at 7 June 2021 |
| 9 | CBA account number 362211038648, held in the name of D&A Project Consultants Pty Ltd with a balance totalling approximately $25,213.21 as at 8 June 2021 |
| 10 | 2017 Black Range Rover bearing registration number BCX819 and VIN/chassis number SALGA2EJ3HA352223 of which D&A Project Consulting Pty Ltd is the registered operator |
| 11 | 1998 VL Walkinshaw HSV Group A which is currently unregistered with VIN: 8VK19XV2 GRP A, seized by the AFP on 7 June 2021 at Unit 916, 1 Moreland Street, Footscray, VIC, 3011 (916 Moreland) |
| 12 | A sum of uncounted cash estimated to be in the sum of approximately $80,000.00 seized during the execution of a warrant from 916 Moreland Footscray which was located hidden inside a coffee machine on 7 June 2021 |
| 13 | A number of ingots, gold in colour and suspected of being gold seized during the execution of a warrant from 916 Moreland on 7 June 2021 |
| 14 | All contractual right, entitlement, title and interest held by ZAYNEH and Agnes Helen SZWEDZIK (SZWEDZIK) in the property located at 12 Gunsynd Drive, Mudgeeraba, QLD, 4213 which is subject to a contract of sale dated 15 May 2021 of real estate from Derick Graham Yates to ZAYNEH and SZWEDZIK and scheduled to settle on 14 June 2021 |
Property restrained in relation to Agnes Helen SZWEDZIK (SZWEDZIK) - orders of his Honour Judge Dyer made 11 June 2021
| No | Property |
| 1 | Real property located at Unit 916, 1 Moreland Street, Footscray VIC, 3011 (“916 Moreland”) being the property more particularly described in Certificate of Title Volume 11844 Folio 766 registered in the name of SZWEDZIK |
| 2 | CBA account number 312010305572, held in the name of SZWEDZIK with a balance totalling approximately $172,746.22 as at 8 June 2021 |
| 3 | 1998 VL Walkinshaw HSV Group A which is currently unregistered and with VIN: 8VK19XV2 GRP A, seized by the AFP on 7 June 2021 at 916 Moreland |
| 4 | A sum of uncounted cash estimated to be in the sum of approximately AUD $80,000.00 seized during the execution of a warrant from 916 Moreland which was located hidden inside a coffee machine on 7 June 2021 |
| 5 | A number of ingots, gold in colour and suspected of being gold seized during the execution of a warrant from 916 Moreland, which was located hidden behind the oven in the kitchen at 916 Moreland on 7 June 2021 |
| 6 | All contractual right, entitlement, title and interest held by ZAYNEH and SZWEDZIK in the property located at 12 Gunsynd Drive, Mudgeeraba, Queensland, 4213 which is subject to a contract of sale dated 15 May 2021 of real estate from Derick Graham Yates to ZAYNEH and SZWEDZIK and scheduled to settle on 14 June 2021 |
Property restrained in relation to ZAYNEH - orders of his Honour Judge Dyer made 7 December 2021
| No | Property |
| 1 | A Richard Mille wristwatch, which was seized by the AFP on 7 July 2021 at Unit 916, 1 Moreland Street, Footscray, VIC 3011 (“916 Moreland”) (referable to AFP Property Seizure Record Number M513653, item number VP004/G/015) |
| 2 | A 2014 Audemars Piguet Royal Oak wristwatch in the watchbox, which was seized by the AFP on 7 July 2021 at 916 Moreland (referable to AFP Property Seizure Record Number M513653, item number VP004/G/018) |
| 3 | A Datejust Black Dial Silver Rolex wristwatch, which was seized by the AFP on 7 July 2021 at 916 Moreland (referable to AFP Property Seizure Record Number M513653, item number VP004/G/017) |
Property restrained in relation to SZWEDZIK - orders of his Honour Judge Dyer made 7 December 2021
| No | Property |
| 1 | A Richard Mille wristwatch, which was seized by the AFP on 7 July 2021 at Unit 916, 1 Moreland Street, Footscray, VIC 3011 (“916 Moreland”) (referable to AFP Property Seizure Record Number M513653, item number VP004/G/015) |
| 2 | A 2014 Audemars Piguet Royal Oak wristwatch in the watchbox, which was seized by the AFP on 7 July 2021 at 916 Moreland (referable to AFP Property Seizure Record Number M513653, item number VP004/G/018) |
| 3 | A Datejust Black Dial Silver Rolex wristwatch, which was seized by the AFP on 7 July 2021 at 916 Moreland (referable to AFP Property Seizure Record Number M513653, item number VP004/G/017) |
| 4 | A 2015 Mercedes Benz with VIN: WDB4632722X256318 and registration VWLF11 of which Agnes Helen SZWEDZIK is the registered operator |
SCHEDULE C
Applications in the proceeding
| No | Application | Grounds and affected property | Applicant | Respondent | Court book (CB) reference |
| 1 | Application filed on 6 July 2021 for a forfeiture order under ss 59 and 47 of the Act | Grounds: The suspect SZWEDZIK has committed a serious offence within the meaning of section 338 of the Act, namely: dealing with money that is reasonably suspected to be proceeds of crime and at the time of the dealing, the value of the money was $100,000 or more, contrary to section 400.9(1) of the Criminal Code 1995 (Cth). Affected property: The property subject to the restraining order made by his Honour Judge Dyer on 11 June 2021 | Commissioner of the Australian Federal Police (AFP) | Agnes Helen SZWEDZIK | CB 364 |
| 2 | Application filed on 6 July 2021 for a forfeiture order under ss 59 and 47 of the Act | Grounds: (a) Between 31 March 2021 and 7 June 2021 at Melbourne, Victoria, Danny ZAYNEH, Omar DIB, Joe SCORDO, Sebastian BEZBORODOFF, Mark JOANNOU, and Robin REFFO with each other and others, conspired to import commercial quantities of border controlled drugs, namely methamphetamine and cocaine, contrary to section 11.5(1) and 307.1(1) of the Criminal Code 1995 (Cth). (b) Between 31 March 2021 and 7 June 2021 at Melbourne, Victoria, Danny ZAYNEH, Omar DIB, Mark JOANNOU and Joe KASALO with each other and others conspired to import commercial quantities of border controlled drugs, namely methamphetamine contrary to section 11.5(1) and 307.1(1) of the Criminal Code 1995 (Cth). (c) Dealing with money that is reasonably suspected to be proceeds of crime and at the time of the dealing, the value of the money was $100,000 or more, contrary to section 400.9(1) of the Criminal Code 1995 (Cth). Affected property: | Commissioner of the Australian Federal Police (AFP) | Danny ZAYNEH | CB 368 |
| 3 | Application filed on 9 December 2021 for an exclusion order under s 74 of the Act | Grounds: (a) The Relevant Property is not proceeds of unlawful activity. (b) The Relevant Property is not an instrument of any serious offence. Affected property: (a) Funds standing to the credit of Commonwealth Bank of Australia account no: 362211038648 held in the name of D&A; and (b) Net proceeds of sale of 2017 Black Range Rover bearing registration no: BCX 819 and VIN/chassis no: SALGA2EJ3HA352223. | D&A Project Consultants Pty Ltd ACN 627 815 865 (“D&A”) | Commissioner of the AFP | CB 353 |
| 4 | Application filed on 9 December 2021 for an exclusion order under s 74 of the Act | Grounds: (a) The Relevant Property is not proceeds of unlawful activity. (b) The Relevant Property is not an instrument of any serious offence. Affected property: | Danny ZAYNEH and Agnes Helen SZWEDZIK in their capacities as trustees of the Szwedzik Zayneh Supperannuation Fund | Commissioner of the AFP | CB 359 |
| 5 | Application filed on 9 December 2021 for an exclusion order under s 74 of the Act | Grounds: (a) The Relevant Property is not proceeds of unlawful activity. (b) The Relevant Property is not an instrument of any serious offence. Affected property: (a) Real property located at Unit 916/1 Moreland Street, Footscray, VIC 3011 being the property more particularly described in Certificate of Title Volume 11844 Folio 766; (b) The funds standing to the credit of the Commonwealth Bank of Australia account no: 312010305572 held in the name of Agnes Helen Szwedzik; and (c) 2015 Mercedes Benz with VIN WDB4632722X256318 with registration VWLF11. | Agnes Helen SZWEDZIK | Commissioner of the AFP | CB 357 |
| 6 | Application filed on 9 December 2021 for an exclusion order under s 74 of the Act | Grounds: (a) The Relevant Property is not proceeds of unlawful activity. (b) The Relevant Property is not an instrument of any serious offence. Affected property: (a) Commonwealth Bank of Australia account no: 313211575151 in the name of ZAYNEH; (b) Westpac Banking Corporation account no: 733689511959 held in the name of ZAYNEH; (c) Ingots, gold in colour seized during the execution of a warrant at Unit 916/1 Moreland Street, Footscray VIC 3011 on 7 June 2021; (d) Richard Mille wrist watch, seized by AFP on 7 June 2021 (referable to AFP property seizure record no: M51363, Item no VP004/G/015); (e) Datejust Black Dial Silver Rolex wrist watch, seized by AFP on 7 June 2021 (referable to AFP property seizure record no: M513653, Item no: VP004/G/017; and (f) 2015 Mercedes Benz with VIN WDB4632722X256318 with registration VWLF11. | Danny ZAYNEH | Commissioner of the AFP | CB 361 |
| 7 | Application filed on 9 December 2021 for an exclusion order under s 74 of the Act | Grounds: (a) The Relevant Property is not proceeds of unlawful activity. (b) The Relevant Property is not an instrument of any serious offence. Affected property: (a) Unit 1, 67 Essex Street, Pascoe Vale VIC 3044 being the property more particularly described in Certificate of Title Volume 12296 Folio 943; (b) Unit 2, 67 Essex Street, Pascoe Vale VIC 3044 being the property more particularly described in Certificate of Title Volume 12296 Folio 944; (c) Unit 3, 67 Essex Street, Pascoe Vale VIC 3044 being the property more particularly described in Certificate of Title Volume 12296 Folio 945; (d) Unit 4, 67 Essex Street, Pascoe Vale VIC 3044 being the property more particularly described in Certificate of Title Volume 12296 Folio 946; and (e) Unit 5, 67 Essex Street, Pascoe Vale VIC 3044 being the property more particularly described in Certificate of Title Volume 12296 Folio 947; | DTZ Property Investments Pty ltd ACN 631 625 682 (“DTZ”) | Commissioner of the AFP | CB 355 |
| 8 | Application filed on 10 December 2021 for a forfeiture order under ss 59 and 47 of the Act | Grounds: (a) Between 31 March 2021 and 7 June 2021 at Melbourne, Victoria, Danny ZAYNEH, Omar DIB, Joe SCORDO, Sebastian BEZBORODOFF, Mark JOANNOU, and Robin REFFO with each other and others, conspired to import commercial quantities of border controlled drugs, namely methamphetamine and cocaine, contrary to section 11.5(1) and 307.1(1) of the Criminal Code 1995 (Cth). (b) Between 31 March 2021 and 7 June 2021 at Melbourne, Victoria, Danny ZAYNEH, Omar DIB, Mark JOANNOU and Joe KASALO with each other and others conspired to import commercial quantities of border controlled drugs, namely methamphetamine contrary to section 11.5(1) and 307.1(1) of the Criminal Code 1995 (Cth). (c) Dealing with money that is reasonably suspected to be proceeds of crime and at the time of the dealing, the value of the money was $100,000 or more, contrary to section 400.9(1) of the Criminal Code 1995 (Cth). Affected property: | Commissioner of the AFP | Danny ZAYNEH | CB 349 |
| 9 | Application filed on 10 December 2021 for a forfeiture order under ss 59 and 47 of the Act | Grounds: The suspect SZWEDZIK has committed a serious offence within the meaning of section 338 of the Act, namely: dealing with money that is reasonably suspected to be proceeds of crime and at the time of the dealing, the value of the money was $100,000 or more, contrary to section 400.9(1) of the Criminal Code 1995 (Cth). Affected property: The property subject to the restraining order made by his Honour Judge Dyer on 7 December 2021. | Commissioner of the AFP | Agnes Helen SZWEDZIK | CB 345 |
| 10 | Application filed on 31 May 2022 for a stay of proceeding under s 319 of the Act | Grounds: Applicants would suffer prejudice if required to progress this proceeding whilst there are concurrent criminal proceedings against Danny Zayneh. | Danny ZAYNEH Agnes Helen SZWEDZIK DTZ Property Investments Pty Ltd D&A Project Consultants Pty Ltd | Commissioner of the AFP | CB 1 |
| 11 | Application filed on 29 August 2022 for an examination order under s 182 of the Act | Grounds: The respondents, DTZ, D&A and Danny Zayneh and Agnes Helen Szwedzik as the trustees of the Szwedzik Zayneh Superannuation Fund (“SMSF”), claim an interest in property which is the subject of the restraining orders made on 11 June 2021 and 7 December 2021 ZAYNEH has direct knowledge of the affairs of: A. DTZ; SZWEDZIK has direct knowledge of the affairs of the SMSF. | Commissioner of the AFP | Danny ZAYNEH Agnes Helen SZWEDZIK | CB 340 |
SCHEDULE D
(Minute of consent orders agreed between the parties at the hearing upon the basis that the stay application was granted)
Cl-21-02434
IN THE COUNTY COURT OF VICTORIA AT MELBOURNE
CONFISCATION AND PROCEEDS OF CRIME LIST
IN THE MATTER of property suspected of being proceeds of indictable offences and
IN THE MATTER of an application for a stay of proceedings made under s.319 of the Proceeds of Crime Act 2002
Between
DANNY ZAYNEH AGNES SZWEDZIK
DTZ PROPERTY INVESTMENTS PTY LTD D&A PROJECT CONSULTANTS PTY LTD
Applicants
and
COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE
MINUTE OF ORDERS PROPOSED BY THE RESPONDENT
Respondent
| JUDGE: | His Honour Judge Fraatz |
DATE MADE: | 25 May 2023 |
ORIGINATING PROCESS: | Application filed on 31 May 2022 under section 319 of the Proceeds of Crime Act 2002 (Cth) (Act) for a stay of proceedings |
HOW OBTAINED: | By consent |
ATTENDANCE: | Christian Juebner KC, Senior Counsel, for the Applicants Elodie Nadon, Junior Counsel, for the Applicants David McLure SC, Senior Counsel, for the Respondents David Billington, Junior Counsel, for the Respondents |
OTHER MATTERS: |
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The Commissioner has leave to apply to the Court to vary orders 2, 4 and 9 below after the Victorian Court of Appeal gives judgment in the matter of Commissioner of the Australian Federal Police v Li S EAPCI 2022 0082. The parties agree and acknowledge that, if the Commissioner so applies, the Court will then consider afresh what orders should be made at that point at time, acknowledging that the Commissioner reserves his position as to the correctness and appropriateness of Orders 2, 4 and 9 as they concern persons not charged with any criminal offence.
THE COURT ORDERS THAT:
Danny ZAYNEH
Pursuant to sections 180 and 180A of the Proceeds of Crime Act 2002 (POCA), Danny ZAYNEH be examined about his affairs and the affairs of:
a.Agnes Helen SZWEDZIK;
b.DTZ Property Investments Pty Ltd (ACN 631 625 682);
c.D & A Project Consultants Pty Ltd (ACN 627 815 865);
d.the Szwedzik Zayneh Superannuation Fund.
Pursuant to section 266A(2)(b) of the POCA, in respect of the examination of Danny ZAYNEH conducted pursuant to order 1:
a.no person may be present during the examination if that person is involved in the investigation for the purposes of a prosecution or prosecution of any alleged criminal offences in respect of which Danny ZAYNEH and/or Agnes Helen SZWEDZIK is being investigated; and
b.insofar as the examination relates to the investigation of the alleged criminal offences committed by Danny ZAYNEH and/or Agnes Helen SZWEDZIK, any compulsorily acquired material not be disclosed to any person involved in the investigation for the purposes of a prosecution or prosecution of Danny ZAYNEH and/or Agnes Helen SZWEDZIK.
Agnes Helen SZWEDZIK
Pursuant to sections 180 and 180A of the POCA, Agnes Helen SZWEDZIK be examined about her affairs and the affairs of:
a.Danny ZAYNEH;
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4.DTZ Property Investments Pty Ltd (ACN 631 625 682);
5.D & A Project Consultants Pty Ltd (ACN 627 815 865); and
6.the Szwedzik Zayneh Superannuation Fund.
Pursuant to section 266A(2)(b) of the POCA, in respect of the examination of Agnes Helen SZWEDZIK conducted pursuant to order 3:
e.no person may be present during the examination if that person is involved in the investigation for the purposes of a prosecution or prosecution of any alleged criminal offences in respect of which Danny ZAYNEH and/or Agnes Helen SZWEDZIK is being investigated; and
f.insofar as the examination relates to the investigation of the alleged criminal offences committed by Danny ZAYNEH and/or Agnes Helen SZWEDZIK, any compulsorily acquired material not be disclosed to any person involved in the investigation for the purposes of a prosecution or prosecution of Danny ZAYNEH and/or Agnes Helen SZWEDZIK.
Sworn Statements
Pursuant to rule 10.21(1) of the County Court Miscellaneous Rules 2019, the Court dispenses with the requirement for the Commissioner of the Australian Federal Police to file an application for ancillary orders under s 39 of the POCA.
Pursuant to section 39(1)(ca) of the POCA, the following persons make and give a declaration of property interests to the Commissioner of the Australian Federal Police in response to the matters at Schedule 1 to these orders no later than 1 December 2023 by serving the declaration upon the Commissioner's Solicitor:
a.Danny ZAYNEH; and
b.Agnes Helen SZWEDZIK.
Pursuant to section 39(1) of the POCA, Danny ZAYNEH make and give a declaration of property interests on behalf of the following entities to the Commissioner of the Australian Federal Police in response to the matters at Schedule 1 to these orders no later than 1 December 2023 by serving the declaration upon the Commissioner's Solicitor:
a.DTZ Property Investments Pty Ltd (ACN 631 625 682);
b.D & A Project Consultants Pty Ltd (ACN 627 815 865)
Protected Material
For the purposes of these Orders ‘Examination Product’ means all:
a.evidence given, including transcripts and other recordings thereof, at an examination authorised by these Orders; and
b.documents produced at or by legal requirement of an examination authorised by these Orders.
For the purposes of these Orders, the following is ‘Protected Material’:
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7.All Examination Product arising from any examination of Danny ZAYNEH and Agnes Helen SZWEDZIK pursuant to these Orders.
8.All declarations made pursuant to these Orders.
Pursuant to the Court’s powers as a Court of Record and, to the extent it applies, section 266A(2)(b) of the POCA, until further order:
e.access to Protected Material is restricted to:
• members of the Criminal Assets Confiscation Taskforce;
• counsel briefed to advise or appear in relation to those proceedings; and
• any expert engaged to give an opinion in relation to those proceedings;
f.Protected Material may only be used for the purpose of:
• any proceeding under the POCA, including any information gathering and investigative activities and applications which are undertaken in relation to those proceedings (including current and future proceedings); or
• complying with a request under Item (b) of 2F of the table to s 266A of the POCA;
g.Protected Material may not be published, nor disseminated to any person who is not either:
• entitled to access under subparagraph a. or b. above;
• this Court.
c.Pursuant to the Court’s powers as a Court of Record, until further order:
•no person other than a party to this action may inspect the Court’s file for this action;
•in the case of the Commissioner, he may only inspect the file by means of an AFP- CAI investigator or AFP-CAL lawyer or counsel retained by same;
•any evidence given in this action by Danny ZAYNEH must not be published or disseminated until upon the conclusion of criminal proceedings, including all appeals and retrials, against the said Danny Zayneh, namely [criminal action numbers to be inserted].
| Dated: 25 May 2023 |
| JUDGE OF THE COUNTY COURT OF VICTORIA |
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SCHEDULE
Provide full particulars of the nature and extent of your property including the following particulars in relation to each item of property:
a.Description of the property, including the nature of your interest in it and, where possible, the estimated value, and the location of the property;
b.The approximate date of acquisition of the property; and
c.A full description of any liability in relation to the property, including the amount of the liability and the name of the person or institution to which the liability is owed.
Provide full particulars of your current liabilities, including the following particulars in relation to each liability:
a.Full description of each liability including the nature of the liability and the amount of the liability; and
b.The name of the person or entity to which the liability is owed.
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