It follows that there is a considerable amount of which a court needs to be satisfied before it will make a restraining order and so a considerable amount upon which a defendant or other interested person might usefully adduce evidence and make submissions in opposition to the making of the order.
48 In addition to the relatively small possibility that a person named as a defendant is in truth not a person to be charged or who has been convicted of a relevant offence, as, for example, might occur in a case of mistaken identity, it appears to us that in the case of an order pursuant to ss.16(1) or (2)(b), (c) or (d) there would be significant scope for a defendant or other interested person to adduce evidence to support the claim that the judge should not be satisfied on all the evidence before the judge that there are reasonable grounds for making a restraining order, or in the case of an order under s,16(2)(a), that there are not reasonable grounds to conclude that the property sought to be made the subject of the order is tainted property.
49 In the second place, s.26(1) expressly contemplates the possibility that a defendant or other interested person may be heard in opposition to an application for restraining order and ss.26(2) and (3) expressly contemplate that a defendant or other interested person may be heard at the time of the application for a restraining order on all of the matters referred to in s.26(5).
50 In the third place, it appears to us that the onus of proof was just as much on the defendant or interested person seeking exclusion under s.18 of the 1986 Act as amended it is under ss.21, 22 and 24 of the 1997 Act. Under the 1986 Act as amended: if, after a restraining order had been made under s.16, a defendant or other interested person had applied under s.18 to have all or part of the property excluded from the order, that person would have had to satisfy the court that there were not reasonable grounds for making the order in respect of that property. Under the 1997 Act: if, after a restraining order has been made under s.18, a defendant or other interested person applies to have all or part of the property excluded from the order under ss.21, 22 or 24, that person must satisfy the court that the property is not tainted property and will not be required to satisfy any purpose for which the order was made. Theoretically, there is a difference between demonstrating that property is not tainted property or required for a specified purpose and demonstrating that there are not reasonable grounds to believe that property is not tainted property or required for the specified purpose. But the former is not necessarily more difficult to prove than the latter. Indeed an applicant may be able more easily to satisfy a court on the balance of probabilities that property is not tainted property or required for a specified purpose than to establish that there are not reasonable grounds to believe that the property is tainted property or required for a particular purpose. Practically speaking the level of satisfaction required in each case is likely to be the same.
51 In the fourth place, there can be little doubt that the power given to the Supreme Court by s.18 of the 1986 Act to "make such orders in relation to the property to which the restraining order relates as it considers just" included power to set aside a restraining order. Section 26 of the 1997 Act gives the court a similar power to "make such orders in relation to the property to which the restraining order relates as it considers just". The only significant difference between s.18 of the 1986 Act as amended and s.26 of the 1997 Act is that s.18(1)(b) of the 1986 Act as amended expressly authorised the Supreme Court to make an order authorising another court to set aside a restraining order whereas s.26 does not refer to that possibility. But that change is immaterial. The provision in s.18(1)(b) of the 1986 Act for the Supreme Court to authorise another court to set aside a restraining order was premised on the Supreme Court having power itself under s.18(1)(a) to set aside the restraining order and, as it appears to us, the only reason that s.26 does not provide for the Supreme Court to delegate to another court the power to set aside a restraining order under s.26 is that the 1997 Act enables all courts to make restraining orders and gives to each court the same powers with respect to the restraining orders made by that court as the Supreme Court has with respect to restraining orders made by the Supreme Court. It may be, perhaps, that ss.20, 21, and 24 impliedly exclude from s.18 of the 1997 the power to set aside a restraining order after it is made. But even if that is so it still leaves intact the express power under to be exercised at the time of making a restraining order to exclude property from the order and to subject the order to conditions.
52 Finally, any implication which might otherwise be derived from the fact that a restraining order once made is capable of resulting in automatic forfeiture under s.35 of the Act is negatived by the fact that forfeiture under s.32 and civil forfeiture under s.37 are not automatic consequences of a restraining order.
The reasoning in Navarolli
53 That leaves the Director's contention that the Court in Navarolli went too far in exposition of the factual circumstances that may result in a decision to order that notice be given. In our view that is not so.
54 In substance, the court in Navarolli said no more than that, when a judge is faced with an application for restraining order under s.16 of the Act, the judge must consider whether to order that notice be given under s.17 of the Act; and that, in determining whether to order that notice be given, the judge must bear in mind the common law right to be heard and balance it against other competing considerations. As the court said, such competing considerations include, in particular, the risk that notice may result in dissipation of the property the subject of application. Obviously, however, they also include things such as "the risk of criminals being tipped off" with consequent prejudice to an anticipated arrest or a continuing criminal investigation or danger to persons or property .
55 In our view, it is to be expected that the bulk of applications for restraining orders under s.16 of the Act will be made and determined under s.18 without notice and ex parte. That is because an application for a restraining order involves a defendant who is suspected or charged or about to be charged with a serious criminal offence, or who has been convicted of a serious criminal offence or, alternatively, involves reasonable grounds to believe that the property the subject of application is tainted property.[31] In the scheme of things it is likely that in most such cases the risks entailed in giving notice of the application will be seen to outweigh the right to be heard. But, as the Court in effect said in Navarolli, there will be some cases where it is plain that there is no risk of dissipation or of flight or of prejudice to imminent arrest or otherwise sufficient reason to weigh against the common law right to be heard. And, in those cases, it is to be expected that the judge will order that notice of the application be given.
The need for notice
56 In this case the judge at first instance found that there was no risk of the respondent getting his hands on the property the subject of the application and, so far as can be told from his Honour's reasons, it was not suggested that there was any other risk of prejudice likely to result from giving notice.
57 It has not been contended before us that the judge was wrong so to find and it is not now suggested that there was any other risk or consideration which weighed against giving notice.
58 In those circumstances, we are of the view that the judge was not in error to order that the Director give notice under s. 17 of the Act.
Conclusion
59 It follows, for the reasons which we have given, that the appeal will be dismissed.