Commissioner of the Australian Federal Police v Song & Ors

2 Jian Song and Hai Jiang (the suspects) are each suspected of various offences contrary to Australian criminal law and China's Criminal Code. In 2018, the Commissioner made two applications pursuant to s 25 of the Proceeds of Crime Act 2002 (Cth) (the Proceeds Act). Each application was supported by an affidavit in support sworn by Federal Agent Graham White.[1] On 9 November 2018 Moore J made orders restraining property alleged either to be owned by or under the suspects' effective control, or suspected to be proceeds of various offences pursuant to ss 18 and 19 of the Proceeds Act.

3 The Commissioner's applications for forfeiture of the restrained property are on foot. Jian Song, Xueyue Song and AMG Australian Investment Unit Pty Ltd (the Song parties) have filed exclusion applications asserting interests in the restrained property, which are yet to be heard.

4 The Song parties have applied for a permanent stay of both proceedings (the stay applications) on an identical ground[2] 'that the proceedings are an abuse of the process of the Court.' The Song parties advance two particulars to support this ground. The first particular provides that:

The Court does not have jurisdiction to determine the pending applications for forfeiture because the Commissioner 'should have proceeded under the Mutual Assistance in Criminal Matters Act 1987 [(Cth)]' (the Mutual Assistance Act).

the Commissioner has 'significantly changed its case' against the Song parties and there is no evidence to support the change.

6 The subpoenas seek documents addressed to the first particular.

7 The affidavit in support of restraint relied on the suspicions of Federal Agent White that Xueyue Song and his wife illegally obtained funds in China and that these funds were transferred to Australia, where they were used by the suspects to acquire real properties and other assets in Australia. Federal Agent White based those suspicions on two matters: first, a request for assistance from the Chinese Ministry of Public Security dated 8 July 2016, which sought assistance in tracing the flow of money from China to Australia (the MPS request) and was accompanied by a statement of a Police Superintendent from the Criminal Investigation branch containing relevant background information detailing the Chinese police investigation, and second, the subsequent investigations that the Australian Federal Police (the AFP) undertook.

8 Shortly before the stay applications were to be heard in December 2022, the Song parties sought orders for short service of subpoenas on the Commissioner seeking three categories of documents. Those orders were not made, but at a directions hearing leave was given to issue subpoenas and the hearing date for the stay applications was vacated. On 16 December 2022, the Song parties filed a subpoena to produce in proceeding S ECI 2018 02123, and Xueyue Song filed an identical subpoena to produce in proceeding S ECI 2018 02124.

9 The original draft subpoenas identified three categories of documents: the MPS request itself, any documents ancillary to the MPS request, and any applications requesting assistance from the AFP under the Mutual Assistance Act in the matters before the Court. Although these subpoenas were not issued, the Commissioner responded and provided an English translation of the request, which was contained in an email from 'ICD MPS' to 'AFP Beijing Office'. The Commissioner also responded that, in respect of the second category, any such documents if they existed were not relevant to the stay applications, and indicated that after making enquiries there were no documents to be produced in the third category.

10 The subpoenas that the Song parties ultimately did issue were in substantially broader terms than the proposed draft subpoenas. They identified 17 categories of documents. The Commissioner objected to all categories by a notice of objection dated 3 February 2023. On 8 May 2023 the Song parties gave notice that they no longer seek to rely on 12 of the 17 categories of documents, and they abandoned a further category at the hearing. The hearing addressed the objections to production of the documents in the remaining categories.

11 The four outstanding categories are as follows:[3]

1. All documents (whether in hard copy or electronic form) that record or evidence communications between the AFP and:

a. The AFP Beijing Office; and/or

1. The Xinxiang Public Security Bureau of the Henan province in China; and/or

c. The Chinese Ministry of Public Security (MPS); and/or

1. The Ministry of Justice of the People's Republic of China; and/or

e. The Attorney General's Department for Australia;

Concerning the substance of the request (items 1-4 of paragraph 2 of the request) before the receipt of the request by the Beijing office on or around 8 July 2016.

1. Copies of all documents and or other materials (whether in hard copy or electronic form) provided in response to the request to:

a. The AFP Beijing Office; and/or

1. The Xinxiang Public Security Bureau of the Henan province in China; and/or

c. The Chinese Ministry of Public Security (MPS); and/or

1. The Ministry of Justice of the People's Republic of China; and/or

e. The Attorney General's Department for Australia.

1. All documents (whether in hard copy or electronic form) that record or evidence the making of, the requirement to make or the consideration of the requirement to make an application under any provision of either:
   1. The Mutual Assistance in Criminal Matters Act 1987 (Cth); and/or
   2. The Treaty between Australia and the People's Republic of China on Mutual Assistance in Criminal Matters.

i. Before the request was received;

1. After the request was received but before the commencement of any investigation into the matters contained in the request;

2. After the investigation had commenced but before the provision of an answer to the request;

3. After the investigation had commenced but before the provision of any materials in response to the request;

v. After the provision of an answer to the request;

1. After the provision of any materials in response to the request; and or

2. Before the application for the restraining orders herein was made.

3. All documents which record or evidence the issue of an application for any warrant or the exercise of any other coercive power by the AFP to obtain:

a. The information on which the answer to the request was based;

b. Any materials provided in response to the request.

12 The parties agree on the applicable legal principles.

13 The issuing party is required to identify the legitimate forensic purpose for which access to the documents is sought.[4]

14 The relevance of the documents to the proceeding alone is not sufficient to establish a legitimate forensic purpose.[5] There is no legitimate forensic purpose in circumstances where the relevance of the documents is unknown and the party is seeking to obtain documents to see whether they may be relevant.[6]

15 If the issuing party successfully identifies a legitimate forensic purpose for which the documents are sought, the Court must be satisfied that it is 'on the cards' or that there is a 'reasonable possibility' that the documents will materially assist the case of the party.[7] The phrase 'on the cards' comes from the judgment of Gibbs CJ in Alister v The Queen,[8] distinguishing documents properly sought from that which is a 'fishing expedition'. Gibbs CJ gave the following example:

If, for example, it were known that an important witness for the Crown had given a report of the case to ASIO it would not be right to refuse disclosure simply because there were no grounds for thinking that the report could assist the accused. To refuse discovery only for that reason would leave the accused with a legitimate sense of grievance, since he would not be able to test the evidence of the witness by comparing it with the report.[9]

16 The subpoena must sufficiently describe the documents to be produced so the recipient is not required to make a judgment about whether particular documents fall under the request. The description must be sufficiently confined such that the subpoena is not oppressive or a fishing expedition.[10]

17 Where a party fails to demonstrate a legitimate forensic purpose, the Court should refuse access to the documents and set aside the subpoena.[11]

18 In support of his objection to the subpoena, the Commissioner relied on an affidavit of Nicholas Chan, Detective Sergeant of Police and a Team Leader of Criminal Assets Investigations Canberra, sworn 9 February 2023.[12] Chan deposes to the difficulty in identifying the proper scope of the requests as they are presently worded, and the oppression associated with the collation and production of documents captured by the subpoenas, which he estimates would be contained in thousands of files. He deposes to the need to contact current and former AFP members from the AFP Beijing post and liaise with various Chinese government departments to respond to the subpoenas. Chan deposes that 'such liaison would take an extraordinary amount of time and resources'.[13] The Commissioner also relied on the initial affidavits of Federal Agent White to the extent it is necessary to have regard to their contents.

The Song parties' submissions in support of the subpoena

19 It is necessary to summarise the submissions of the parties in the stay application in order to understand the submissions as to the documents sought by the subpoenas.

20 The Song parties submit that, because the restraining order applications were supported by information contained in the MPS request and derived from the Chinese police authorities, the provisions of the Mutual Assistance Act were engaged so the restraint of the various properties must have been undertaken pursuant to the Mutual Assistance Act and not the provisions of the Proceeds Act.

21 The Song parties acknowledge that the Mutual Assistance Act does not limit the provision of assistance between police forces of different countries but submit that the information obtained in response to the MPS request is caught by s 13A of the Mutual Assistance Act.[14] They submit that as the Mutual Assistance Act is engaged, any application for restraining orders over property located in Australia is governed by Subdivision B of Part VI of the Mutual Assistance Act and in particular s 34J. The legislative framework requires the foreign country to make a request of the Attorney General who may approve an application for a restraining order against property in Australia.

22 The argument on objection has benefited from the parties' written submissions made up to this point in the stay applications. The Song parties' argument is based upon the fact that the Commissioner made a decision to apply under the Proceeds Act and/or a decision not to proceed under the Mutual Assistance Act (the decision to seek restraint) and submit that the decision to seek restraint could only be made pursuant to the Mutual Assistance Act. As developed in the oral submissions at the hearing, the Song parties intend to submit that the decision to seek restraint under the Proceeds Act was improper and unlawful in circumstances where it was abundantly clear that the Mutual Assistance Act was engaged.

23 The Song parties will submit they have suffered a forensic disadvantage,[15] and that the forensic advantage obtained by the Commissioner is twofold. First, the oversight and discretion afforded to the Attorney-General to grant or refuse action has been avoided, and this is a fundamental defect to the Court's jurisdiction. Second, the restraining orders under the Proceeds Act have been obtained on a lower threshold of satisfaction - that of the reasonable suspicion of the federal agent - rather than the higher threshold of reasonable grounds for belief of certain matters as required under the Mutual Assistance Act. That submission relies on the difference between a suspicion and a belief as discussed in George v Rockett.[16]

24 And so to the legitimate forensic purpose of the documents. The Song parties submit that the first three subpoena categories are likely to produce documents that show whether the AFP and the other identified entities considered the application of the Mutual Assistance Act, and whether they 'deliberately or recklessly' chose not to proceed under the Mutual Assistance Act. The Song parties submit that it is 'on the cards' that these documents are likely to exist and would make clear whether that decision was deliberate, reckless or otherwise. In the Song parties' submission, this would assist the ground advanced in their stay application, as any deliberate or reckless decision not to proceed under the Mutual Assistance Act would support the argument that the proceedings are an abuse of process.

25 In relation to category 15, the Song parties submit that it is necessary to identify whether the Commissioner used coercive powers to gather information used in the restraining order applications. Although Counsel did not identify any likely use of coercive powers to obtain the information used, it was submitted that if coercive powers were used, this would strengthen the argument that the Mutual Assistance Act was engaged.

26 The Commissioner has produced the MPS request and concedes that no request or application has been made under the Mutual Assistance Act in relation to the proceedings. The Commissioner submits that there is no factual dispute relevant to the stay application, and that the issue of jurisdiction in the stay application is a question of law. The Commissioner's position in the stay application is that the MPS request was an instance of police-to-police assistance and does not engage the Mutual Assistance Act. The Commissioner submits that the Mutual Assistance Act has no relevance to the proceedings nor is it a code that governs all requests for assistance by foreign countries. Therefore, the Commissioner submits that the restraining orders made under the Proceeds Act were within the Court's jurisdiction.

27 In the Commissioner's notice of objection, prepared when the Song parties sought all 17 categories, the Commissioner argued that the Song parties are impermissibly attempting to use the subpoenas as a de facto form of discovery; that the request is akin to a 'fishing' expedition, seeking an enormously wide range of communications; and that the request lacks precision, with hopelessly wide expression.[17] These submissions remain relevant for the remaining four categories.

28 Finally, the Commissioner submits that answering the subpoenas will delay the hearing of the stay applications and most likely the substantive forfeiture proceedings for no forensic purpose, such that it would constitute an abuse of process, inconsistent with legal practitioners' litigation obligations.

29 The Song parties have crystallised the basis of their first particular to be an improper or unlawful decision to seek restraint and submit that the forensic purpose of the subpoena is to obtain documents that demonstrate whether or not such a decision was deliberate or reckless. Broadly the legitimate forensic purpose of the documents for categories 3, 11 and 14 would be to expose the reasons for the decision to restrain property under the Proceeds Act.

30 The written outline of submissions and supplementary submissions filed by the Song parties contend that the Mutual Assistance Act applies to the exclusion of the Proceeds Act (save for the provisions of the Proceeds Act that are expressly relied on in the Mutual Assistance Act). While the submissions allege that the Commissioner made a decision to proceed under the Proceeds Act, [18] nowhere is the propriety of that decision, much less its deliberate or reckless nature, questioned. This emerged in the course of the hearing of the objection.

31 The Song parties do not contend that, in the face of the MPS request, the Commissioner could make a choice between proceeding under the Mutual Assistance Act or the Proceeds Act and made that choice in such a way as to constitute an abuse of process. The Song parties submit that there can be no such choice.[19]

32 It follows then, for the purpose of determining the question of jurisdiction, the reasons for the decision to seek restraint can have no bearing on the issue. I accept the submission of the Commissioner that the stay applications particularised as a lack of jurisdiction is a question of law.

33 In short, the Song parties argue that s 13A and therefore s 34J of the Mutual Assistance Act are engaged and the effect of this is that s 25 of the Proceeds Act is not open to the Commissioner as an avenue for restraint of property in Australia. The Commissioner disputes this construction. It is not necessary in this application to set out the various provisions of the Mutual Assistance Act that will be relevant in the stay applications. If the Court lacks jurisdiction, the reasons for a decision to proceed under the Proceeds Act, whatever they be, are irrelevant. If on the other hand, the Court has jurisdiction under the Proceeds Act then the considerations that led to the decision to commence proceedings, as might be disclosed from the documents sought by the subpoenas, could not bear upon the question of jurisdiction.

34 The Song parties did not file any material in advance of the hearing that explicitly and precisely identified the forensic purpose of the documents sought. It was drawn out in the oral submissions. Identifying the legitimate forensic purpose is the first step of a two-step process. It is once the legitimate forensic purpose is identified that the person issuing the subpoena then has to also demonstrate that the likelihood of documents being produced that might materially assist their case is 'on the cards'. The oral submissions emphasised the second step: that it was 'on the cards' that documents exist that gave consideration to the requirements prescribed by the Mutual Assistance Act.

35 Insofar as the legitimate forensic purpose with respect to category 3 is concerned it was most succinctly identified as 'wanting to know, in the context of a process of continuing support between the parties, what the process was that pre-dated the request, for example, whether there was anything that 'touched upon the operation of the Mutual Assistance Act'.[20] In my view that purpose falls squarely within the description of seeking to obtain documents to see whether they may be of relevance or of assistance in their case.

36 In Attorney General (NSW) v Chidgey,[21] the accused sought by subpoena production of documents to check compliance with statutory requirements prescribed by the Law Enforcement (Controlled Operations) Act 1997 (NSW). The Magistrate held that if there had been non-compliance then it was 'on the cards' that an argument could be mounted against the admission of that evidence and therefore that the trial had involved a miscarriage of justice. In overturning the decision of the Magistrate, Beazley JA (James and Kirby JJ agreeing) of the NSW Court of Criminal Appeal said:

I am of the opinion that the legitimate forensic purpose identified by the Magistrate amounts to no more than a proposition that the respondent was entitled to engage in a 'fishing expedition' to ascertain whether there had been compliance [with the relevant section]. ...There was no material before the Magistrate to indicate that there had been or might have been, non-compliance with [the relevant section].[22]

37 Insofar as the Song parties submitted that there was a forensic purpose to seeking documents pre-dating the MPS request that purpose amounts to no more than a fishing expedition.

38 The legitimate forensic purpose for category 11 was described as 'to be able to know whether some or other of those documents might have been the subject of provisions of the Mutual Assistance Act'.[23] The documents were likely to demonstrate that, on collection of the information requested, the requesting country ought to have been informed that it needs to make application under Mutual Assistance Act before that information can be provided. The forensic purpose was described as going to the question of impropriety and unlawfulness of continuing under the present proceeding and it was on the cards that such information would have been provided.

39 Category 11 is in fact much broader, seeking all documents provided in response. The factual material itself, as distinct from any correspondence setting out conditions upon which that material could be provided, is not relevant to the stay application. To the extent that documents identifying conditions upon which the information might be provided, the identified forensic purpose again was no more than wanting to know whether or not the case could be advanced that the Commissioner knew that the Mutual Assistance Act must be used.

40 Category 14 again sought documents at various points in time going to the decision to make an application. The making of 'an application' does not specify the nature of such an application or by whom or to whom such application was made or considered. The forensic purpose again is that the documents would answer the question 'Did you consider it at all?'[24] 'You' in this context is the Commissioner and goes to the question of whether the decision not to engage the Mutual Assistance Act was deliberate or otherwise. In my view there is no legitimate forensic purpose in having an answer to the question 'did you engage the Mutual Assistance Act?' in circumstances where, for the purpose of the stay application, it is conceded that no request has been made pursuant to the Mutual Assistance Act.[25]

41 The forensic purpose of category 15 is to ascertain whether any coercive power was exercised by the Commissioner in obtaining information pursuant to the MPS request or otherwise before the restraining orders were made. It was accepted that the information relied on to seek the restraining orders appears to have been obtained voluntarily and there was no particular reason to believe that coercive powers had been used to collect information. In short, the purpose of the documents is so that the Song parties can know whether coercive powers were used in the collection of evidence. Even if this was capable of disclosing a forensic purpose, it could not be said that it was 'on the cards' that such documents existed.

42 The difficulty in articulating a legitimate forensic purpose, and the linking of that purpose to a submission of a deliberate or reckless course of conduct, was compounded by the absence in the written outline of submissions in the stay application of any allegation of deliberate or reckless conduct by the Commissioner. Indeed when challenged to provide the specific basis for making such submissions, counsel for the Song parties disavowed a submission that the conduct was so characterised but only that they are entitled to know whether or not it might be considered deliberate or reckless.[26] Ultimately the forensic purpose, drawn broadly, was that the documents might support the argument that an application under the Mutual Assistance Act 'should have been made'. The documents do not go to a factual dispute about the circumstances of the MPS request in July 2016 nor the application made under the Proceeds Act in November 2018.

43 The Song parties have not discharged their onus to identify a legitimate forensic purpose for production of the four categories of documents in the stay applications.

44 The subpoenas are set aside and in accordance with the application for costs by the Commissioner I will order that the Song parties pay the Commissioner's costs associated with the objection and setting aside the subpoena.

[1] Commissioner of the Australian Federal Police, 'Affidavit of Federal Agent Graham White' sworn on 8 November 2018 In the matter of an alleged offender Hai Jiang S ECI 2018 02124 and In the matter of an alleged offender Jian Song S ECI 2018 02123.

[2] All three Song parties in S ECI 2018 02123 and Xueyue Song only in respect of S ECI 2018 02124.

[3] Maintaining the numbering in the subpoenas.

[4] R v Saleam (1989) 16 NSWLR 14, 18; R v Mokbel (No 1) [2005] VSC 410, [45].

[5] Attorney General (NSW) v Chidgey [2008] NSWCCA 65; (2008) 182 A Crim R 536, [59] ('Chidgey').

[6] Carroll v A-G (NSW) (1993) 70 A Crim R 162, 181.

[7] Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404, 414 ('Alister'); DPP v Selway [No 2] [2007] VSC 244; (2007) 16 VR 508, 514 [10]; Chidgey (n 5) [62], [64].

[10] Alister v The Queen [1984] HCA 85; (1984) 154 CLR 404, 414; R v Saleam (n 4) 17.

[12] Commissioner of the Australian Federal Police, 'Affidavit of Nicholas Chan' sworn on 9 February 2023 In the matter of an alleged offender Hai Jiang S ECI 2018 02124 and In the matter of an alleged offender Jian Song S ECI 2018 02123.

[13] Commissioner of the Australian Federal Police, 'Affidavit of Nicholas Chan' sworn on 9 February 2023, [19].

[14] Song parties, 'Applicant's Outline of Further Submissions', Submissions In the matter of an alleged offender Hai Jiang S ECI 2018 02124 and In the matter of an alleged offender Jian Song S ECI 2018 02123, 7 February 2023 [20].

[15] Relying on Strickland (a pseudonym) v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325 and Moti v The Queen [2011] HCA 50; (2011) 245 CLR 456.

[16] [1990] HCA 26; (1990) 170 CLR 104, 115.

[17] Commissioner of the Australian Federal Police, 'Commissioner's Notice of Objections to Subpoena', In the matter of an alleged offender Hai Jiang S ECI 2018 02124 and In the matter of an alleged offender Jian Song S ECI 2018 02123, 16 December 2022, [36].

[18] Song parties, 'Applicant's Outline of Submissions', Submissions In the matter of an alleged offender Hai Jiang S ECI 2018 02124 and In the matter of an alleged offender Jian Song S ECI 2018 02123, 7 November 2022, [88].

[19] Transcript of Proceedings, In the matter of an alleged offender Hai Jiang S ECI 2018 02124 and In the matter of an alleged offender Jian Song (Supreme Court of Victoria, S ECI 2018 02124 and S ECI 2018 02123, Justice Forbes, 22 May 2023) 26.28-31 ('T').

[25] Commissioner of the Australian Federal Police, 'Commissioner's Notice of Objections to Subpoena', [28].