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File Number(s): 2023/362913

Publication restriction: Nil

JUDGMENT

1. By notice of motion dated 23 September 2025 the plaintiff, the New South Wales Crime Commission (‘the Commission’), seeks an order pursuant to s 12(1)(b1) of the Criminal Assets Recovery Act 1990 (NSW) (‘the Act’) that AA be examined on oath before a Registrar of the Court concerning her affairs, including the nature and location of any property in which she or the defendant, AB, has an interest. AB did not have a position on the application and did not wish to be heard.

2. I am grateful to counsel for both parties for their helpful written and oral submissions.

3. Through her counsel, AA, who is the wife of the defendant, AB, opposes the order being made on the ground that such an examination would likely be injurious to her mental health. Counsel for AA acknowledged that there is utility in an examination of her. Counsel submitted that in the circumstances of AA’s mental health, the discretion should be exercised against ordering her examination.

4. Counsel for AA accepted the Commission’s assertion that AA is competent and compellable to give evidence and has capacity to do so. AA relies on a report of psychiatrist Dr D and other reports from medical professionals about AA’s history of conditions and treatment, with which reports Dr D was also briefed.

The statutory power to order an examination

5. Section 12(1)(b1) provides that the Supreme Court may, when it makes a restraining order or at any later time, make any ancillary order, which can include an order for the examination on oath of a person who is the spouse of the owner of an interest in property concerning the affairs of the person, including the nature and location of any property in which the person or the owner has an interest.

6. The exercise of the power in s 12 of the Act is discretionary but “the discretion must be exercised having regard to the objects of the Act”: New South Wales Crime Commission v Hung Sun Choi [2012] NSWSC 658; (2012) 222 A Crim R 62 (‘NSW Crime Commission v Choi*’*) at [55]. One of the objects of the Act, in s 3(c), is to enable law enforcement authorities effectively to identify and recover property: Lee v NSW C**rime C**ommission (2013) 251 CLR 196; [2013] HCA 39 at [282].

7. The Commission relied in support of its application on the affidavit of Faye Flevaris affirmed on 23 September 2025. Ms Flevaris is a senior forensic accountant employed by the Commission.

8. By way of procedural background, Ms Flevaris states that the Commission commenced proceedings against AB on 15 November 2023 and sought orders pursuant to s 10A of the Act, including a restraining order in respect of all the interests in property of the Defendant, AB. On 15 November 2023 this Court made orders pursuant to s 10A of the Act restraining property of the Defendant, AB.

9. By its summons commencing the proceedings, the Commission seeks various final orders in respect of property of the defendant.

10. Some matters on which the Commission relies were contained in counsel’s written submissions although not in Ms Flevaris’s affidavit. However, counsel for AA did not take objection to the court being informed of those matters in that manner, or dispute the matters stated therein.

11. Ms Flevaris stated that the Commission’s application was based on the suspicion of AB having engaged in an offence of money laundering. According to counsel’s written submissions the defendant has been convicted of and sentenced for an offence of dealing with suspected proceeds of indictable crime in excess of $100,000.

12. The Commission’s submissions outline the subject of the proposed examination of AA, or at least its starting point. At the time of his arrest, AB lived at Property 1 with AA and their children. The Commission seeks to examine AA about the acquisition and funding of a property at Property 2. The Commission’s submissions state that in March 2022 AA purchased Property 2 in her name alone for $1.95M. Because that property is not in the defendant’s name it is not the subject of the restraining order made on 15 November 2023. The Commission suspects that the purchase of Property 2 was made to launder money for the defendant. AA’s income appears to be limited to Centrelink carer payments and no other source of employment or income for her is apparent from the Commission’s searches. The proposed examination is directed to the source of funds for the purchase of the property and any interest the defendant has in the property.

13. In opposing the Commission’s application AA relies on an affidavit of her solicitor Rola Elayan of 28 April 2026, annexed to which was a report of Dr D, forensic psychiatrist, dated 5 January 2026, and the material with which Dr D was briefed, which included reports of general practitioners and a psychologist, Mr S, to which Dr D referred in his report.

14. Dr D stated that he conducted a psychiatric assessment of AA on 12 December 2025. He described her at that time as a 40 year old married woman who was not employed.

15. Dr D obtained a history of a significant decline in AA’s mood in 2010 in the context of problems in her relationship with her husband, during which she experienced suicidal thoughts and intent. She was prescribed antidepressant medication and consulted psychologists and psychiatrists. She reported that her mood deteriorated again in 2019, in response to another stressful situation pertaining to her marriage. She stopped taking her antidepressant medication and her emotional response to triggers became heightened. She said she felt traumatized in 2023 when police raided the family home, after which she had panic attacks and resumed taking her antidepressant medication. She was also prescribed anti-anxiety medication to manage the panic attacks, and she resumed consulting a psychiatrist.

16. In further history provided, AA told Dr D that in March 2024 her husband was incarcerated, which caused her a lot of distress. With her depressive and anxiety symptoms worsening, AA changed her medication. There was no history of admission to psychiatric in-patient units.

17. At the time of her assessment by Dr D in December 2025 AA was taking Lexapro, Melatonin and Diazepam when required. She was unable to attend appointments with psychologists or psychiatrists regularly because of financial pressures. She described her mood as depressed and anxious. She denied suicidal intent. She experienced physiological symptoms of anxiety such as tightness in her chest, shortness of breath and dryness of mouth.

18. AA described to Dr D problems with concentration, including during conversations. She said she felt tense and reported clenching her jaw, and said that panic attacks were triggered by minor stressors, and she avoided any situations that she suspected would be stressful.

19. AA told Dr D she had never attended court proceedings (related to her husband having been charged) as she believed she would not cope with the stress. She believed she would experience a panic attack and be unable to regulate her emotions. She feared that she would not be able to breathe and would experience a heart attack.

20. She told Dr D she worried about her ability to focus during court proceedings. She found she needed to read pages repeatedly to register the information. She said she had found interactions with her husband’s legal representatives highly stressful. She forgot to ask questions and mention details. She worried she may not answer questions correctly in court.

21. Dr D said “no gross impairment in [AA’s] ability to comprehend questions or provide coherent responses was noted”. He said AA accepted that she suffered from depressive and anxiety disorders.

22. Dr D took into account the material with which he had been briefed, as follows. A discharge referral from Liverpool Hospital stated that AA had attended hospital on 20 October 2023 with a chronic cough which coincided with, and appeared to be attributed to, her worsening mental health. An undated report of psychologist Mr S stated AA had been diagnosed with severe major depressive disorder and generalised anxiety disorder which significantly impaired her ability to handle stressful situations. A high risk of panic attacks associated with attending court proceedings was noted. A report of Mr S dated 16 May 2025 noted that AA had a history of depression since 2010, and her symptoms included difficulty concentrating. It stated she experienced memory loss that impacted on her functioning. A referral letter from Dr Y noted AA had suffered from depression for a number of years causing problems with concentration. A report of Dr Y dated 6 March 2025 stated AA suffered from major depression. A report of Dr N stated that AA’s physical and mental health conditions had been worsened by her recent family situation. A report of Dr Y dated 13 November 2025 stated AA suffered from a major depressive disorder and severe anxiety, with a history of panic attacks triggered by stressful situations.

23. Dr D expressed the opinion that the depressive symptoms experienced by AA, including concentration deficits, were such that she suffers from major depressive disorder which has been recurrent in nature. He also stated that AA experienced anxious ruminations, panic attacks and problems with concentration levels. She avoided situations associated with heightened anxiety. He said the information gathered and AA’s presentation during the assessment were consistent with the diagnosis of generalised anxiety disorder.

24. Dr D said the features of AA’s mental health that adversely impact on her ability to give oral evidence in a court include problems with concentration and memory due to her psychiatric conditions, confusion that can be associated with panic attacks experienced whilst attending court and avoidant attitudes towards situations that can increase the risk of having a panic attack, or conversion symptoms, that is, physical symptoms related to AA’s depressive and anxiety disorders.

25. Dr D said at paragraphs [49] to [51] of his report:

“[AA] does not have a permanent impairment of her cognition. Her presentation at the time of assessment would indicate that she could respond to questions posed to her. However, in a heightened state of anxiety or in the midst of having a panic attack, [AA] would not be able to comprehend questions adequately and provide responses that have been carefully considered.

The adverse effects of [AA] attending court to give evidence would include exacerbation of the generalised anxiety disorder, increased risk of developing conversion symptoms such as inability to speak and escalation in the frequency of panic attacks. The acute distress associated with worsening of anxiety symptoms will also have an additive effect on the depressive symptoms and increase the risk of relapse of suicidal thoughts/behaviour.

In my opinion there is a high risk of exacerbation of the generalised anxiety disorder [AA] were to appear in court as a witness. In a heightened state of anxiety, [AA] will be unable to concentrate adequately during the proceedings and will have difficulty providing comprehensive and carefully considered responses to questions posed.”

26. I accept Dr D’s opinions which are supported by the earlier reports of a long history of depression and anxiety in AA.

Submissions

27. In reliance on Dr D’s opinions counsel for AA submitted that it would not be appropriate to make on order for the examination of AA when that process may be harmful to her mental health. Counsel relied on the statement of McCallum J in NSW Crime Commission v Choi that in the exercise of the discretion in s 12 of the Act the court could decline to order the examination of a vulnerable person and submitted that AA is vulnerable. Counsel submitted that the Commission would not suffer a great forensic disadvantage if it cannot examine AA about the subject property.

28. The Commission pressed the application, relying on Dr D’s opinions that AA does not have permanent impairment of her cognition and that she could respond to questions posed to her. The Commission submitted that Dr D’s opinion goes no higher than identifying a risk of AA experiencing difficulty in an examination. The Commission submitted that the weight to be given to Dr D’s report should be considered in the context that it was based on the history given by AA.

Conclusion

29. I accept Dr D’s opinion that AA suffers from the diagnosed conditions and their symptoms. I do note that Dr D observed that during his interview with AA she was able to understand questions and provide responses. I accept that on the basis of his report AA may find being examined in a court a more stressful situation than being assessed by Dr D. I accept that AA may find the proposed examination subject matter and process stressful.

30. On the other hand the subject matter of the proposed examination is relatively limited, recent and not apparently complex. Accepting the contents of Dr D’s report, I am not of the view that how AA funded the purchase of the specified property in 2022 should be beyond her memory and concentration, although that may lead to other and more stressful subjects.

31. Balancing the proposed subject matter of the examination, the purpose of the examination, being to assist in achieving one of the objects of the Act, and Dr D’s reports and opinions, I consider it appropriate to make the order that AA be examined. The examination can begin. The presiding Registrar would have the capacity to manage the examination and to consider any applications made on behalf of AA, should such become necessary during the examination. In my opinion the process should be able to be managed so as to accommodate AA’s conditions.

32. Therefore, I make the following orders:

33. Pursuant to s 12(1)(b1) of the Criminal Assets Recovery Act 1990 (NSW) AA be examined on oath before a Registrar of the Court concerning the affairs of AA, including the nature and location of any property in which AA or AB has an interest.

34. Leave is granted to the plaintiff to obtain from the Registry dates for the examination of AA.

35. Given that the Commission did not specifically seek an order for costs and AA opposed it, I will not make any order as to costs.

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