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[2009] NSWCA 347
Court of Appeal (NSW)
2009-09-03
Basten JA, Macfarlan JA, Hidden J
Original judgment source is linked above.
the applicant might prejudice his defence of any future criminal charge by - (d) providing the Director with information or evidence that is not presently in his possession and which may assist any criminal case brought against the applicant by Australian or Malaysian prosecuting authorities; (e) alerting the Director to further information that may enable him to conduct further lines of inquiry that may assist in any criminal case brought against the applicant by Australian or Malaysian prosecuting authorities, or (f) providing information or evidence that might otherwise incidentally benefit any criminal case to be brought against him.
(This summary of the applicant's position is taken from his written summary of argument, par 35 and the transcript of the hearing on 3 September 2009 in this Court, at p 2(20). It does not refer to an application to revoke the restraining order, which was contained within the notice of motion filed by the applicant, but not specifically relied on for the purposes of the argument.) 34 The applicant also challenged the "guidelines" set out by Wootten J in McMahon v Gould, 7 ACLR at 206-207 as no longer properly reflecting the approach to be adopted on a stay application in relation to civil proceedings where criminal proceedings were pending against the defendant. The applicant contended that Wootten J had underrated the "right to silence" and the potential for prejudice in the criminal proceedings, by focusing squarely on the potential prejudice to the plaintiff in the civil proceedings, if they were to be stayed. It was noted that Wootten J had treated the right to silence as "a convenient rubric for several rules and practices which have various origins and serve various purposes": p 207. These were the right to refuse to answer questions in the course of police interrogation; the right not to give evidence at a criminal trial and not to have adverse comment on a failure to give sworn evidence, and the right to refuse to answer questions which might tend to incriminate, in the course of legal proceedings generally. That summary, the applicant contended, pre-dated the acceptance by the High Court that the privilege against self-incrimination was not merely an evidential or testimonial privilege, but a right which was fundamental to the proper administration of justice. 35 McMahon v Gould is distinguishable from the present case. Nevertheless, from the applicant's point of view, it provided an obstacle to his claim for a stay because the absence of a clear entitlement to a stay in a case where criminal charges had been laid made it more difficult to contend for a stay in his case, where not only had no criminal charge been laid, but it was not clear that the applicant would be charged with an indictable offence: cf Proceeds of Crime Act, s 17(1)(d). 36 The analogy relied upon by the applicant was that in McMahon v Gould not merely were there criminal proceedings on foot, but, at least in relation to the statutory offences under the Companies Act 1961 (NSW), which formed part of the basis of the liquidator's proceedings against the defendant, the defendant was not entitled to resist making full discovery by answer to interrogatories, or from answering any question, by reliance on the privilege against self-incrimination. 37 The applicant called in aid the decision of the High Court in Reid v Howard (above at [7]). That case is authority for the proposition that the Supreme Court, exercising powers under s 23 of the Supreme Court Act 1970 (NSW), is not entitled to require that a person answer questions which might otherwise engage the privilege against self-incrimination, by crafting orders which significantly diminish the use of the answers in criminal proceedings. In short, the Court has no power to override the privilege, so as to prevent it defeating a plaintiff's rights in civil proceedings, absent statutory authority. This case was relevant in two respects. The first was its affirmation of the principle that the privilege against self-incrimination "is not simply a rule of evidence, but a basic and substantive common law right": at 11 (Toohey, Gaudron, McHugh and Gummow JJ). Secondly, it recognised that the common law right provided protection not merely against the use in evidence of compelled admissions, but also against disclosure which may set in train a process leading to other incriminating material: at 6-7 (Deane J, referring to Rank Film Distributors Ltd v Video Information Centre [1982] AC 380 at 443 (Lord Wilberforce) and Sorby v The Commonwealth [1983] HCA 10; 152 CLR 281 at 294-5 (Gibbs CJ) and 310 (Mason, Wilson and Dawson JJ)). 38 There was no challenge to the view that the Court had power to grant a stay of steps which might be taken under the Proceeds of Crime Act where that course was necessary to avoid an apprehended abuse of process. That power was implicitly acknowledged in the statutory limitation on its exercise in the following provision: " 319 Stay of proceedings The fact that criminal proceedings have been instituted or have commenced (whether or not under this Act) is not a ground on which a court may stay proceedings under this Act that are not criminal proceedings." 39 What precisely may be included in the concept of a criminal proceeding under the Proceeds of Crime Act was not addressed in submissions. The Act creates offences in respect of persons disposing of property subject to a restraining order (s 37) and for contravening an ancillary order relating to foreign property (s 40); it also creates offences for failing to attend an examination or refusing or failing to answer questions at an examination: ss 195 and 196. Criminal proceedings in relation to conduct which has given rise to a suspicion with respect to property rendering it liable to a restraining order and forfeiture, will generally involve a contravention of another law, such as the Criminal Code. While it was not suggested that s 319 operated in the present case, the Director did contend that, if the existence of criminal proceedings against the applicant would not provide a ground for a stay, it followed that the possibility of criminal proceedings which were not presently in contemplation, could not provide an appropriate basis for a stay either. 40 By way of response, the applicant argued that, had charges been laid, he would have known the precise manner in which the case against him was formulated. That, however, must be a limited basis for distinguishing the circumstances. Even where charges have been laid, it does not follow that further or different charges may not be laid if the results of an examination lead to fresh material becoming available to the Director. Further, it could readily be expected that if criminal proceedings were on foot, there would be an application for a stay in any event, because the risk of harm to the defence case would be all the more immediate from a compulsory examination by the prosecutor contemporaneously with such proceedings. An application for a stay would then not usually be based merely upon the "fact" that criminal proceedings have commenced, but rather on the particular circumstances which might arise in a particular case, such as the potential for specific prejudice to any positive defence the applicant might wish to bring: see, eg, State of Queensland v Shaw [2003] QSC 436 at [13] ff (Mackenzie J). There may be uncertainty as to the precise scope of the ground on which a stay is unavailable by reason of s 319. 41 Putting s 319 to one side, it may be accepted that the dilemma posed for the applicant is real. It is, of course, not a dilemma faced only by a guilty applicant who needs to create a plausible explanation for otherwise suspicious circumstances. The risk applies (at least to some extent) to an innocent party whose property has been restrained under a misapprehension. Even a party with an innocent explanation may be disbelieved and not merely fail to recover the property, but find himself or herself at risk of criminal prosecution. 42 Significantly, there may be variations on that theme: see Shaw at [22]. For example, a person who is innocent of obtaining the money in the fraudulent manner suspected by the Director may nevertheless, in demonstrating a legitimate basis for an interest in the property, reveal the commission of other offences, such as a failure to declare to the Commissioner of Taxation the proceeds of a legitimate business enterprise. Such a possibility reveals a difficulty with the application for a stay, requiring a degree of precision in the terms proposed. Is the stay to be conditioned upon an undertaking from the Director that the applicant will not be charged with breaches of the law in Australia of which he is presently suspected, or must it relate to any offences under Australian law? Similarly, there is a difficulty posed by the potential for prosecution under the laws of a foreign country, in this case Malaysia. 43 Accepting the principles established in the cases in the High Court, relied upon by the applicant, there is no warrant to consider further the guidelines proposed by Wootten J in McMahon v Gould. It is likely that they may require further consideration in an appropriate case, but the quite specific statutory context of the present matter requires that this case be determined in its own legal context. Application of principles (a) general considerations 44 In considering whether to grant a stay on any terms, there is an important distinction to be drawn between:
(a) an order compelling answers to questions or production of documents; (b) proceedings in which the defendant is not entitled, by statute, to rely upon the privilege against self-incrimination, and (c) proceedings where the privilege applies, but in practice the defendant will be compelled to reveal information which might otherwise fall within the scope of the privilege. 45 An order under s 180 may fall within the first category; an exclusion order or a revocation order sought by the applicant would fall within the third category. Unlike Reid v Howard, putting aside the examination order, this is not a case in which the plaintiff in civil proceedings seeks to compel disclosure by the applicant of material which may place him in jeopardy of criminal proceedings. Rather, the applicant is placed in jeopardy consequentially by the step taken by the Director of obtaining a restraining order in relation to property in which the applicant has an interest. (b) examination order 46 The making of an order for examination of a person is discretionary: s 180(1). The person who may be the subject of such an order includes: "(a) a person whose property is, or a person who has or claims an interest in property that is, the subject of the restraining order; or (b) a person whom the restraining order states to be a suspect for the offence to which the restraining order relates; or (c) the spouse or de facto partner of a person referred to in paragraph (a) or (b)." 47 In the present case, the examination order sought in the summons did not state that any person was a suspect for the offence to which it related, nor did it seek to cover any spouse or partner of the applicant. 48 The subject matter of an examination is "the affairs (including the nature and location of any property) of a person referred to" in one of the sub-paragraphs listed above. The order sought in the present case required that the applicant be examined about his affairs (including the nature and location of any property). 49 So far as the examination order is concerned, the present proceedings have an air of prematurity. There are two steps which must occur before the applicant can be examined. First, the Court must make an order permitting the examination; secondly, an approved examiner must give the applicant, once the subject of an examination order, a written notice for his examination: s 183(1). Each of these powers is discretionary and remains to be exercised. Why this Court should interfere to prevent the consideration of the exercise of those powers, in the first instance by a judge of the Court, was not explained in the course of the appeal. Subject to questions of authority, the refusal of the trial judge to grant the relief sought by the applicant merely permits the application for an examination order to be listed for consideration by a member of the Court in the future. Unless there were some legal or factual impediment to the Court properly considering whether to make such an order when sought, it would have been quite inappropriate for the primary judge to grant the relief sought by the applicant in relation to a proposed examination order. (c) exclusion order 50 An application for an exclusion cannot be heard unless the Director has had a reasonable opportunity to conduct an examination of the applicant. As noted above, the only effective way of resisting a forfeiture order was to seek an exclusion order. But that, it was contended, required him, in practical terms to submit to an examination, without the protection of the privilege against self-incrimination. 51 The last step in the argument does not necessarily follow from the statutory scheme. What it does reveal, however, is that there remains a discretionary order with respect to any examination. The Court might yet refuse such an order, or delay its consideration. On current authority, refusal of an examination order would not mean that the Director had not had a reasonable opportunity "to conduct an examination of the applicant" see Director of Public Prosecutions (Cth) v Chan [2004] ACTSC 101; 185 FLR 399; 150 A Crim R 163 at [29] (Crispin J). Critical to the reasoning in Chan were two elements of the statutory scheme, namely that the Director had no entitlement to examine a person absent an order which lay within the discretion of the Court and, secondly, the unlikelihood that Parliament intended to preclude a person from obtaining an exclusion order because the Court thought it inappropriate to permit an examination. Crispin J variously described the discretionary power conferred by s 180 as requiring the Court to be satisfied that the examination of the particular person is "necessary" - at [26] - or that "there are adequate grounds" for the order - at [27]. Clearly Crispin J was concerned that, merely by seizing property on a suspicion based on reasonable grounds, the Director could establish a basis for conducting an examination of a suspect without the right to refuse to answer questions that might incriminate the person. His Honour considered, no doubt correctly, that the purpose of an examination under s 180 should be limited to circumstances where there were real questions as to the true position with respect to the source and ownership of property subject to a restraining order and, possibly other property which might be the proceeds of crime: at [26]. The conclusion in Chan thus involved treating s 32 as satisfied where the Director had had a reasonable opportunity to seek an examination order and, if the application had been granted, to conduct the examination. 52 Because no Court has been asked to adjudicate on the request for an examination order in the present case, the issue as to the correct approach to such an order has not yet arisen. It is not appropriate for this Court to pre-empt the exercise of discretion by a single judge from whom an examination order has yet to be sought in relation to the applicant. Further, the applicant has not yet sought an exclusion order. (d) forfeiture order 53 Unless the applicant obtains a stay with respect to the Director's application, and disregarding the Director's application for an examination order, the Director will presumably be in a position to obtain a forfeiture order forthwith. As has already been noted, the basis for a forfeiture order will differ depending upon whether an application for an exclusion order has been made and not withdrawn, as opposed to the case in which no such application has been made. 54 It has been accepted in other cases that the applicant for an exclusion order bears the onus of proving the matters necessary to establish the grounds for making the order: see [27] above. However, what is less clear is whether it is sufficient for there to be an application for an exclusion order, which need not necessarily be determined, in order to place on the Director the obligation of satisfying the Court that the property is the proceeds of a relevant offence under s 49(1)(c). If, as appears from the wording of the section, the obligation of the Director to satisfy the Court under s 49(1)(c) that the property is the proceeds of an offence is engaged merely by making an exclusion order, which need not be determined, the legal burden of proof is not on the applicant, but on the Director. Although the applicant's position, forensically, may militate in favour of him giving evidence, there is no provision removing the privilege against self-incrimination for the purposes of such proceedings. In that event, the arguments in favour of a stay are greatly reduced. (e) exercise of power 55 It may be that the applicant's argument in the present case was intended to be based on the acceptance of a practical, if not legal, burden of establishing by evidence facts sufficient to remove the grounds for suspicion arising from the Director's evidence. In that case, the attempt to stay the proceedings, so as to prevent the Director seeking a forfeiture order, must be based on broad considerations concerning the scheme of the legislation: see Shaw [2003] QSC 436 at [19]. 56 The dilemma faced by the applicant is one which must arise frequently, if not usually, in such proceedings. Where s 19 is invoked, it may be assumed that the Director is not in a position to lay charges. Accordingly, a stay on the terms sought, namely until the applicant is advised "that he will be charged with one or more offences to which the restraining order relates, and the precise nature of any such charges" is apt to constitute a permanent stay in practical terms. The restraining order would then remain in place and the property be frozen. The alternative is that the stay remain in place until the Director provides an assurance that the applicant will not be prosecuted in relation to property the subject of the restraining order. 57 In Reid v Howard the joint judgment noted a submission that "prosecution authorities cannot be bound" by an assurance or an order of the Court, at least in proceedings in which they were not parties. The correctness of that view was not determined: at 16. Whether the Director could or should give such an assurance may be doubted in the present case; further, it seems unlikely that he has any power to give such an assurance on behalf of Malaysian authorities, although it might be possible to seek an assurance that no information would be supplied to them. Similar problems might arise in relation to State authorities. 58 In any event, the statutory structure makes such an undertaking, condition or assurance inappropriate. It is clear that the power to proceed under the Proceeds of Crime Act was not intended to put the Director to an election, requiring that he or she first institute criminal proceedings or disclaim an entitlement to proceed later by way of criminal charges. Putting to one side the power to require an examination of the applicant, the statutory scheme is consistent with the applicant being required to make a choice as to whether to seek to defend the forfeiture proceedings, at the risk of revealing incriminating material, or to hold his or her hand and permit the forfeiture of the property. To permit the proceedings under the Proceeds of Crime Act to continue, absent some specific factor, will not generally constitute an abuse of the statutory scheme. 59 Considering the matter at that level of generality, the statutory scheme is inconsistent with a stay, absent a specific justification. A stay for a significant period has potential financial consequences for both sides. No doubt the person with an interest in the property is most severely disadvantaged, but the Commonwealth is also at risk because restraining orders are usually conditioned on an undertaking with respect to payment of damages: Proceeds of Crime Act, s 21. Such an undertaking was given in the present case. The case-law 60 There remains a question as to whether the foregoing statements of principle are consistent with those adopted by the Queensland Court of Appeal in DPP v Jo: see above at [6]). 61 DPP v Jo is distinguishable. First, the application for leave to appeal sought to challenge the grant of a stay of proceedings (for a limited period). The challenge by the Director was based upon the proposition that the material before the primary judge "did not afford a sufficient basis upon which to grant a stay" and that his Honour took into account an irrelevant consideration, "namely the length of time it was taking for the criminal charges to crystallize": at [9]. Except to the extent that the applicant seeks to obtain assistance from the reasons for granting the stay on the part of the primary judge, limited assistance can be derived from a refusal to interfere with a stay in circumstances where the applicant must establish an error of principle as a basis for interfering with a refusal to grant a stay. 62 Secondly, the restraining order had been obtained by the Director under s 18 of the Proceeds of Crime Act, not s 19. The sections vary in an important respect. The relevant suspicion under s 18 is that a person has committed a serious offence. By contrast, under s 19, the relevant suspicion relates to property, being the proceeds of certain kinds of offences, rather than to the commission of an offence by a particular person. Moreover, the statutory scheme provides separately for a forfeiture order founded on a restraining order made under s 18 (s 47(1)) and a forfeiture order founded on a restraining order made under s 19 (s 49(1)). The requirements that must be satisfied under s 47 and s 49 are quite different. In particular, s 47 has no equivalent to s 49(3). The case for disclosure of the details of a charge is clearly stronger in circumstances where the suspicion relates to the commission of an offence, as opposed to property being the proceeds of an offence. 63 Thirdly, the stay granted was for a period of a little over nine months, it being anticipated that criminal charges were to "crystallize" within that period: at [8] and [23]. 64 The applicant accepted that Mr Jo was likely to be charged, but noted that the approach adopted by the Queensland Court of Appeal treated similarly both Mr and Mrs Jo (and a company), even though there appears to have been no indication that Mrs Jo would be charged. The basis upon which the Court of Appeal upheld the reasoning of the trial judge may be found at [20], in the judgment of Wilson J, in the following terms: "They cannot be precise about how their defending forfeiture proceedings including by bringing exclusion applications - which would expose them to the likelihood of examinations in the course of which they would have to answer questions about their affairs - may prejudice his defence of criminal charges (on which the [Director] will most probably bear the onus of proof) when they do not know what those charges will be. By going into evidence in the forfeiture proceedings they may afford the [Director] an advantage in the criminal proceedings … and they may both waive their privilege against self-incrimination. On present indications, the risk of waiving the privilege against self-incrimination is particularly acute in Mr Jo's case." 65 There are difficulties with this reasoning. First, as noted above, it seems doubtful whether the likelihood of an examination order should be taken into account in circumstances where no judge has considered whether such an order should be made and no approved examiner has been appointed. 66 Secondly, the fact that the Director may obtain a forensic advantage if the person gave evidence is likely to arise in every case in which forfeiture proceedings are sought to be maintained before the completion of any criminal proceedings. Wilson J noted that if charges were laid, then Mr and Mrs Jo "should be able to particularise the prejudice in the criminal proceedings, and unless they do so, they will be unlikely to obtain a further stay": at [23]. Just how the risk would be explained to the Court at any level of particularity, without jeopardising the privilege, is unclear: cf, eg, Shaw [2003] QSC 436 at [11]. The provisions which were said to have been contravened by a tax avoidance scheme had already been identified, as had the dates during which the scheme operated, and the property restrained involved water craft and motor vehicles: [4]-[6]. Much was already known. 67 More importantly, the premise upon which this reasoning is based is that if a person can identify potential prejudice, in the sense that the Director may obtain a forensic advantage in being able to test their evidence or that of their witnesses, that will constitute a sufficient basis for a stay. That reasoning goes close to requiring the Director to determine the charges and proceed with them before pursuing a forfeiture order, at least where the application for a forfeiture order is made under s 47(1) on the basis of a restraining order in force under s 18. For the reasons indicated above, such an approach would be inconsistent with the apparent purpose and structure of the statutory scheme for confiscation of proceeds of crime, at least under ss 19 and 49. 68 Wilson J also noted that the primary judge "was astute to the objects of the legislation and to the fundamental nature of the privilege against self-incrimination": at [22]. After setting out a passage stating matters of principle, from the judgment of the primary judge, her Honour continued: "The inherent jurisdiction of the Courts to preserve the privilege against self-incrimination cannot remain paramount in the face of a clear legislative intent to abrogate that privilege by requiring persons such as Mr and Mrs Jo to answer questions at an examination conducted under the Act. But that point has not yet been reached, and the stay application was designed (at least in part) to stop it being reached. In that context, the Court clearly has inherent power to uphold the privilege by granting a stay." 69 The intended scope of this passage may be quite limited. The existence of power to grant a stay can be accepted and indeed was conceded in the present case. However, for reasons given above, it is inappropriate to pre-empt the consideration of whether an examination order should be made and whether the approved examiner will exercise his or her power to give an examination notice. Both the Court, and the approved examiner, in considering the exercise of their powers will no doubt be invited to have regard to the fact that the Act does not permit a person to decline to answer questions on the basis of the privilege. However, an offence is committed only where the person refuses or fails to answer a question "that the approved examiner requires the person to answer": s 196(1)(b). How widely the approved examiner would permit the examination to go, in exploring matters which might be relevant primarily to the person's defence, is a further unknown. The intervention of the court to pre-empt all of these decision-making powers being exercised, should only be contemplated where there is some basis for concluding that there would otherwise be an abuse of process. The statute is inconsistent with the proposition that an abuse of process necessarily arises merely because there are outstanding charges pending or because there is the possibility that charges may later be laid. 70 McMurdo P agreed with the reasons give by Wilson J and with the separate reasons of Lyons J. Lyons J also agreed with Wilson J and added at [26]: "Courts have an inherent power to uphold the privilege against self-incrimination where it is in the interests of justice to do so particularly to protect the rights of an individual and to prevent an abuse of process." 71 This language adopts an abuse of process test in exercise of power of the Court to grant a stay, to uphold the privilege. The critical issue is the circumstances in which the privilege should be 'upheld'. 72 His Honour continued at [27]: "In his reasons the primary judge observed that the respondents would defend any criminal prosecutions brought and that the respondents' solicitor had instructions to bring exclusion applications. To pursue those exclusion applications however the respondents bear the onus of satisfying the court that the restrained property was not the proceeds of criminal activity." 73 Lyons J then identified the test which appears to have been adopted by the primary judge, namely "that there was a real risk that the prosecution case may benefit from any evidence that may support a defence to any charges or from evidence that is adduced by the respondents on the exclusion proceeding": at [29]. The primary judge also appears to have held that no specific evidence of prejudice had been made out: at [30]. Given the structure of the statute, discussed above, the mere fact that the Director may benefit from steps taken by the persons interested in the property to protect their property does not demonstrate an abuse of process in allowing the forfeiture proceedings to continue. 74 Lyons J also upheld the view of the primary judge that "to allow the proceedings to continue in the circumstance where the possibility of any criminal charges being laid is and remains - despite the effluxion of what seems to me to be an inordinate period of time - uncertain (or at least unknown) amounts to an abuse of process sufficient to grant a stay, at least temporarily": at [30]. 75 Underlying this last proposition is the assumption that the forfeiture proceedings will be, or become, an abuse of process if no charge is laid within a reasonable time. However, the availability of proceedings based on s 18 of the Act is not conditioned on the laying of charges nor the existence of circumstances which would justify the laying of charges. 76 Underlying the reasoning in DPP v Jo there appears to have been a concern that an examination under Pt 3-1 of the Act could constitute an illegitimate attempt by the Director to obtain material sufficient to allow delaying of charges, or to bolster an existing charge. There are two difficulties with that approach. The first is the need to identify the limits of a legitimate examination under Pt 3-2; the second is to justify the grant of a stay without permitting the examination to go ahead in any form, or even permitting the court to consider whether to make an examination order. If there is a further assumption that an examination will always be an abuse of process where charges have not been laid, or possibly where they have been laid but have not been determined, such a view is inconsistent with the express purposes of the Proceeds of Crime Act. If some form of examination is thought to be legitimate, but there is a fear that the boundaries of legitimacy will be exceeded (again ignoring the fact that there are other mechanisms which would allow a person protection), a real risk of such an outcome, absent a stay of the forfeiture proceedings, must be demonstrated before a stay is appropriate. 77 It is sufficient for present purposes to accept that the reasoning in DPP v Jo is not directly applicable to the present proceedings for the reasons noted above. It is not necessary, therefore, to consider whether the reasoning underlying the decision is "plainly wrong". However, in part it appears to embrace a view of the statutory scheme which is inconsistent with that outlined above and may therefore be doubted. 78 It remains to note a decision of Mackenzie J in the Supreme Court of Queensland, to which the primary judge was taken in the present case and which he declined to follow: at [22]. Shaw was clearly distinguishable: it was a case in which there were concurrent proceedings on foot under the Criminal Proceedings Confiscation Act 2002 (Qld) and for offences under the Drugs Misuse Act 1984 (Qld). After a careful analysis of the relevant principles, Mackenzie J posed the question, at [23], "where the issues are identical in the forfeiture proceedings and the [criminal] proceedings, should the State be afforded the opportunity to use the civil proceedings to test and potentially improve the case that it will rely upon in the criminal proceedings which involve identical issues?" His Honour continued: "[24] In my view it is not appropriate to do so. Firstly, as the law stands, the respondent is in a more favourable position in the [criminal] proceedings with regard to disclosure of the material upon which his exculpatory explanation is based. Secondly, there are penal consequences flowing from a conviction. [25] The case is one where there is a well defined and real advantage available to a person in criminal proceedings in respect of [not?] revealing evidence in advance. Depriving a defendant of such an advantage by requiring him to undergo prior proceedings where the State may, in effect, test-run the same case it proposes to lead in the prosecution proceeding and if necessary improve it if it can prior to that time is in my view sufficiently of the character of a demonstrated reason why the interests of justice would not be served by the forfeiture proceedings being heard in advance of the criminal proceedings. In my view the circumstances in which a stay is justified are established by the particular facts of the case." 79 In his concluding remarks, Mackenzie J noted that a "rigorous analysis of the evidence … will generally be of importance in determining whether the requirements for a stay are made out": at [26]. That view, which is not to be doubted, correctly limits the assistance which can be obtained by reference to the outcome in earlier cases. The reasoning was approved by Wilson J in DPP v Jo at [17]-[18]. Without doubting his Honour's approach and the decision in that case, it did not mandate any particular outcome in the present case. Conclusions on grounds of appeal 80 The first ground of appeal asserted that the trial judge was in error in seeking to distinguish the decision in DPP v Jo. In fact the trial judge expressly noted that the restraining orders in Jo were made under s 18 of the Proceeds of Crime Act and that the forfeiture order was sought under s 47. For that reason, and the further reasons noted above, Jo was distinguishable. Whether his Honour should nevertheless have applied the principles upon which it appears to be founded is more doubtful. Arguably his Honour was wrong not to identify and apply the relevant principles established in the decision of an intermediate court of appeal in respect of Commonwealth legislation. Nevertheless, for the reasons given above those principles cannot be maintained as applicable under s 19 in the light of the statutory scheme. It is therefore not inappropriate to take a different approach to that adopted in DPP v Jo. 81 To the extent that his Honour declined to follow MacKenzie J in Shaw at [25], quoted by the primary judge at [17], his Honour did not err. 82 Grounds 2 and 3 challenged the test applied by the primary judge with respect to a stay of proceedings which sought both the examination of a person under s 180 and the forfeiture of property under s 49, in circumstances where the person was suspected of, but had not been charged with, committing criminal offences in relation to property to which the restraining order related. 83 The primary judge did not in terms formulate a test, nor did he distinguish between the elements of relief sought by the Director. There would have been reason to take a more particular approach with respect to the different elements of relief sought, as noted above. To do so would not have resulted in a different outcome. 84 Ground 3 alleged that the primary judge had failed to give "any practical consideration" to the impact that the refusal of a stay would have on the appellant's privilege against self-incrimination and right to silence in any criminal proceedings for an offence to which the restraining order related. 85 That ground assumes that criminal proceedings may be laid and that it is possible to know what response the applicant will have to the laying of the charges. If the ground were intended to cover the potential benefit which might accrue to the Director from pursuing either an examination order or a forfeiture order, the ground must nevertheless fail. What may have been missing from the reasoning of the primary judge was a full consideration of the statutory scheme, dealing with different powers separately. However, such consideration should not lead to a different conclusion in the circumstances. 86 Ground 4 challenged his Honour's conclusion that the attempt to limit the stay to the period until the applicant was informed "that he would not be charged with any offence to which the restraining order relates" was so broad as to be impracticable: at [25]. For the reasons noted above, there was no error in rejecting a stay conditioned in that way. Neither in his notice of motion in the Court below, nor in his notice of appeal, did the applicant attempt to formulate some more specific order. To the extent that a degree of specificity was provided in the written submissions before the primary judge, the proposed conditions were, as his Honour noted, impracticable, or inconsistent with the statutory scheme. That conclusion was not show to be erroneous. 87 Ground 5 alleged that the primary judge erred in applying the guidelines taken from McMahon v Gould. Those guidelines, it was asserted, were no longer good law. As the trial judge noted, the guidelines dealt with the exercise of the discretion to grant or refuse a stay of civil proceedings "where an offender was charged with a related criminal offence": at [24]. Hidden J considered it unnecessary to set the guidelines out, merely stating that he accepted them "as a useful guide". It is unclear to what extent reliance was placed upon them, given that this was not a case in which the defendant had been charged with a related criminal offence. 88 Further, it would not have been appropriate for his Honour to dismiss the guidelines as requiring reconsideration in circumstances where they had obtained at least implicit approval from a majority in this Court in Yuill v Spedley Securities Ltd (In liq) (1992) 8 ACSR 272, despite the variation in the common law with respect to the "felony tort rule", effected in Halabi v Westpac Banking Corporation (1989) 17 NSWLR 26. Even Kirby P in Yuill, having expressed the view that the guidelines should await further attention at a later date, accepted in Halabi that they "were now applied not only in this State but elsewhere", noting the express approval given to them by McHugh JA and Samuels JA in Halabi. Kirby P concluded that the primary judge in Yuill, having expressly followed and applied those guidelines, had "conformed to the existing law": at 274. See now Niven v SS [2006] NSWCA 338 at [2] (Beazley JA); at [25]-[37] (Tobias JA, Beazley and Giles JJA agreeing). 89 For reasons given above, the guidelines in McMahon v Gould may give too limited a weight to the general law immunity from compulsion to incriminate oneself, but the context of the Process of Crime Act renders it inappropriate to undertake a broad reconsideration of the terms of the guidelines or the circumstances in which they should properly apply. 90 The appellant has failed to establish grounds for this Court to intervene to grant a stay. The power to grant a stay required satisfaction of the Court that to allow the Director's application to proceed would constitute an abuse of process. There is no suggestion that the present proceedings were instituted, or are sought to be pursued, for a purpose extraneous to those permitted by the Proceeds of Crime Act: see [58] above. 91 For these reasons, the application for leave should be granted, but the appeal dismissed and the applicant ordered to pay the respondent's costs of the proceedings in this Court. **********
19/06/2012 - Amending typographical error - Paragraph(s) 18
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
LEE
DIRECTOR OF PUBLIC PROSECUTIONS
Reported Decision: 261 ALR 123235 FLR 122[2010] ALMD 150575 NSWLR 581[2010] ALMD 1509[2010] ALMD 1511[2010] ALMD 2004197 A Crim R 537
CITATION: LEE v DIRECTOR OF PUBLIC PROSECUTIONS (CTH) [2009] NSWCA 347 This decision has been amended. Please see the end of the judgment for a list of the amendments.
Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; 177 CLR 485 Balog v Independent Commission Against Corruption [1990] HCA 28; 169 CLR 625 Beckwith v The Queen [1976] HCA 55; 135 CLR 569 Burton v Honan [1952] HCA 30; 86 CLR 169 Coco v The Queen [1994] HCA 15; 179 CLR 427 Director of Public Prosecutions (Cth) v Chan [2004] ACTSC 101; 185 FLR 399; 150 A Crim R 163 Director of Public Prosecutions (Cth) v Hart (No 2) [2005] QCA 51; [2005] 2 Qd R 246 Director of Public Prosecutions (Cth) v Jo [2007] QCA 251; 176 A Crim R 17 Director of Public Prosecutions (Cth) v Saxon (1990) 28 NSWLR 263 Director of Public Prosecutions (Cth); re Sunshine World Holdings Ltd [2005] NSWSC 117; 62 NSWLR 400 Director of Public Prosecutions (Cth) v Tan [2003] NSWSC 717 Griffin v Pantzer [2004] FCAFC 113; 137 FCR 209 Hadjigeorgiou v New South Wales Crime Commission [2007] NSWCA 197; 174 A Crim R 124 CASES CITED: Halabi v Westpac Banking Corporation (1989) 17 NSWLR 26 Lee v DPP (Cth) [2008] NSWSC 300 McMahon v Gould (1982) 7 ACLR 202 Mutual Pools & Staff Pty Ltd v The Commonwealth [1994] HCA 9; 179 CLR 155 New South Wales Crime Commission v Kelaita [2008] NSWCA 284 Niven v SS [2006] NSWCA 338 Potter v Minahan [1908] HCA 63; 7 CLR 277 Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9; 152 CLR 328 Rank Film Distributors Ltd v Video Information Centre [1982] AC 380 Re Director of Public Prosecutions; Ex parte Lawler [1994] HCA 10; 179 CLR 270 Reid v Howard [1995] HCA 40; 184 CLR 1 Sorby v The Commonwealth [1983] HCA 10; 152 CLR 281 State of Queensland v Shaw [2003] QSC 436 Studman v Director of Public Prosecutions (Cth) [2007] NSWCA 285; 177 A Crim R 34 Yuill v Spedley Securities Ltd (In liq) (1992) 8 ACSR 272
LOWER COURT MEDIUM NEUTRAL CITATION: Lee v Director of Public Prosecutions (Cth) (No 2) [2009] NSWSC 174
McMahon v Gould (1982) 7 ACLR 202; Director of Public Prosecutions (Cth) v Jo [2007] QCA 251; 176 A Crim R 17, distinguished and doubted.
State of Queensland v Shaw [2003] QSC 436, distinguished. IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL CA 40155/09 SC 13850/07
22 October 2009 LEE v DIRECTOR OF PUBLIC PROSECUTIONS (CTH) Judgment 1 JUDGMENT of THE COURT delivered by BASTEN JA: On 30 July 2007 the respondent ("the Director") sought and obtained an order in the Common Law Division restraining disposal of certain property, pursuant to s 19 of the Proceeds of Crime Act 2002 (Cth). The property consisted of funds held in each of seven bank accounts, five of which were in the name of Mr Kee Sien Lee ("the applicant") and two of which were in company names. 2 The summons also sought an order that the applicant be examined about his affairs (including the nature and location of any property), pursuant to s 180 of the Proceeds of Crime Act. Thirdly, the summons sought an order that the property specified in the schedule be forfeited to the Commonwealth, pursuant to s 49. 3 On 4 September 2007 the applicant filed a notice of motion seeking to strike out orders 2 and 3 sought in the summons, namely the order that he be examined and the order for forfeiture. The notice of motion also sought a declaration that the restraining order had ceased to be in force pursuant to s 45(2) of the Proceeds of Crime Act. The motion came before Hidden J in the Common Law Division who, on 7 April 2008, refused the orders and declarations referred to above: Lee v DPP (Cth) [2008] NSWSC 300. No appeal has been brought from those decisions. 4 The applicant's notice of motion sought two further orders. The first was that the restraining order be revoked, pursuant to s 42 of the Proceeds of Crime Act. The second was that the orders for examination and forfeiture (and a claim for costs) be "stayed". Because the orders had not been made, they could not in terms be stayed, but it appears to have been assumed that this form of relief constituted an application for a stay of the determination of the summons, to the extent that it sought relief other than the restraining order. 5 So far, it appears that the revocation of the restraining order pursuant to s 42 has not been pursued. Rather, the applicant sought to pursue the order for a stay, which was refused by Hidden J on 20 March 2009: Lee v Director of Public Prosecutions (Cth) [2009] NSWSC 174. It is from that judgment that the present application for leave to appeal is brought. 6 As will be explained below, the application raises, first, important questions with respect to the proper construction and operation of the Proceeds of Crime Act. Secondly, the primary judge adopted an approach which, the applicant contended, was inconsistent with that adopted by the Queensland Court of Appeal in Director of Public Prosecutions (Cth) v Jo [2007] QCA 251; 176 A Crim R 17 (McMurdo P, Wilson and Lyons JJ). If it were held that the application of Jo would produce a different result, the Director invited this Court not to follow Jo. Any proceeding under the Proceeds of Crime Act will be an exercise of federal jurisdiction, whether in this Court or in another State Supreme Court. Accordingly, this Court should not decline to follow principles established by another intermediate appeal court under the same Act unless persuaded that the decision was distinguishable or plainly wrong: cf Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; 177 CLR 485 at 492. 7 Thirdly, the applicant invited this Court to review the approach taken in exercising the discretion to stay proceedings which may give rise to a real risk of disclosure of incriminating material, pending determination of related criminal proceedings, being principles commonly sourced to the judgment of Wootten J in McMahon v Gould (1982) 7 ACLR 202. The approach adopted in that case was said to be inconsistent with subsequent statements of principle by the High Court in, for example, Reid v Howard [1995] HCA 40; 184 CLR 1. 8 The issues raised are significant and warrant a grant of leave to appeal. Issues raised on appeal 9 The legislation under which the Director proceeded permits an application for a restraining order in respect of identified property where there are reasonable grounds to suspect that the property is the proceeds of an indictable offence and the application is supported by an affidavit of an authorised officer stating the officer's suspicion to that effect: Proceeds of Crime Act, s 19. If those conditions are satisfied, the order must be made. Once a restraining order has been in force for six months, a forfeiture order is liable to follow, virtually as of course, unless the person interested in the property has sought to have the property excluded from the restraining order: s 49(1)(c) and (3). Before such an application can be entertained, the Director must have had an opportunity to examine him, pursuant to an order under s 180. 10 Although there is no requirement under s 19 that any person be convicted or even charged with a criminal offence in respect of the property, nevertheless, where the suspicion is that the property is the proceeds of an offence in which the interested person may have been involved, he or she may, in a practical sense, be placed by the statutory scheme in the position of either having to waive the right to silence in relation to the means by which the property was acquired, or to allow the forfeiture order to be made. Before the primary judge, the applicant argued that the stay should operate until he was either -
(b) advised that he will be charged with one or more offences to which the restraining order relates, and the precise nature of any such charge or charges. 11 The Director concedes that he is not presently in a position to charge the applicant; he also contends that he cannot be required to give an undertaking not to press charges in the future. Accordingly a stay would, in his submission, thwart the intended purpose of the Act, which is to allow forfeiture of the proceeds of crimes, even where there is no more than a reasonably grounded suspicion relating to the property. 12 In one sense, the issue thus raised is whether the applicant was required by the legislation either to forego his right against self-incrimination or his interest in the property. The dilemma was arguably accentuated by the fact that his proposed inquisitor in an examination under s 180, would act on the initiative of his potential prosecutor, namely the Director. 13 Whether or not the applicant is placed on the horns of such a dilemma and whether or not the stay which he now seeks is the appropriate remedy, are the issues to be determined. They are to be addressed in the first place not by reference to authority, but rather by reference to the text and purpose of the statute. Statutory scheme: Proceeds of Crime Act (a) general principles 14 As noted by McPherson JA in Director of Public Prosecutions (Cth) v Hart (No 2) [2005] QCA 51; [2005] 2 Qd R 246 at [16], in relation to the Proceeds of Crime Act: "There is a lengthy history of the use of legislative provisions like these as adjuncts to enforcing customs and excise duties, trade and navigation laws, anti-slave trading measures, and other activities prohibited by Parliament. Courts of Admiralty and Exchequer developed special procedures in rem against forfeited goods to give effect to such legislation, which in modern times have been held to be still available to common law courts in the United States: see discussion in CJ Hendry Co v Moore (1943) 318 US 133 and cf Willey v Synan (1935) 54 CLR 175, 185-186." 15 In Burton v Honan [1952] HCA 30; 86 CLR 169 an issue was raised as to the constitutional validity of such provisions in the Customs Act 1901 (Cth). Noting that reliance had been placed on the incidental power, Dixon CJ, at 178, acknowledged the potential for injustice to innocent individuals if their property were forfeit. His Honour continued: "On the other side it is pointed out that in the history of English and Australian Customs legislation forfeiture provisions are common, drastic and far reaching, and that they have been considered a necessary measure to vindicate the right of the Crown and to ensure the strict and complete observance of the Customs laws, which are notoriously difficult of complete enforcement in the absence of strong provisions supporting their administration." 16 Modern legislation permitting the confiscation by the state of proceeds of crime has a history of some two decades in this country: see Proceeds of Crime Act 1987 (Cth), Confiscation of Proceeds of Crime Act 1989 (NSW) and Drug Trafficking (Civil Proceedings) Act 1990 (NSW). In Director of Public Prosecutions (Cth) v Saxon (1990) 28 NSWLR 263 at 264 Kirby P noted that there was similar legislation in the UK, namely the Drug Trafficking Offences Act 1986 (UK) and that a common progenitor appeared to be the forfeiture statute enacted in the USA in 1982. The present Act identifies as one of its principal objects giving effect to Australia's obligations under the Council of Europe Convention on Laundering, Search, Seizure and Confiscation of the Proceeds from Crime (Strasbourg, 1990) to which Australia is a signatory: Proceeds of Crime Act, s 5(f). 17 An important aspect of such legislation, in which respect the Proceeds of Crime Act is not unique, is to provide for the confiscation of the proceeds of suspected crime, in the absence of criminal proceedings or conviction. Proceedings "on an application for a restraining order or a confiscation order are not criminal proceedings": s 315(1). Further, except in relation to offences under the Act, "the rules of construction applicable only in relation to the criminal law do not apply in the interpretation of this Act": s 315(2). To the extent that principles of construction relating to penal provisions have been applied in construing the Criminal Assets Recovery Act 1990 (NSW) that course is not available with respect to the Proceeds of Crime Act: cf New South Wales Crime Commission v Kelaita [2008] NSWCA 284 at [16] (Allsop P, Giles and Bell JJA agreeing). However, the constraint is of limited significance. As explained by Gibbs J in Beckwith v The Queen [1976] HCA 55; 135 CLR 569 at 576: "The rule formerly accepted, that statutes creating offences are to be strictly construed, has lost much of its importance in modern times. In determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject by refusing to extend the category of criminal offences …. The rule is perhaps one of last resort." 18 There is, however, a more general principle of construction that denies a statutory intention to modify or abolish fundamental rights or freedoms absent clear and unambiguous language. That principle does not require express reference to the right or freedom which is diminished, but the intention to modify or abolish must arise by necessary implication from the terms of the statute: see generally Kelaita at [13]-[15]. The high store set by the preservation of such basic rights and freedoms is sometimes declared as requiring an intention to the contrary to be expressed with "irresistible clearness": see, eg, Studman v Director of Public Prosecutions (Cth) [2007] NSWCA 285; 177 A Crim R 34 at [35] (McClellan CJ at CL, Spigelman CJ and Handley AJA agreeing). 19 It is true that such language has a long lineage. It appears to have been adopted in Australia from Maxwell on Statutes (4th ed) by O'Connor J in Potter v Minahan [1908] HCA 63; 7 CLR 277 at 304. However, the statement in Maxwell on Statutes contained a degree of hyperbole which was unnecessary to the determination of that case. In Potter, the construction of the term "immigrant" for which the appellant was contending ("boldly" in O'Connor J's view) was such as to include any Australian-born permanent resident who was returning to the country after a month in New Zealand: at 303. So far from being irresistibly clear, his Honour remarked that it was "hardly necessary to say that an interpretation which would impute to the legislature an intention to bring about that result stands condemned on the face of it": at 303-304. More commonly, that which is to be expressed clearly is contrasted with ambiguous statements, as in Coco v The Queen [1994] HCA 15; 179 CLR 427 at 437: "General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights." (b) legislative purposes 20 The next step is to identify the broad purpose of the legislation. The Proceeds of Crime Act manifests a plain and clear intention to effect the confiscation of property in the circumstances which it prescribes, regardless of the interests of any person in the property. As a law of the Commonwealth, it constitutes an accepted exception to the requirement that any law of the Parliament providing for the compulsory acquisition of property from a person must provide for compensation on just terms: Constitution, s 51(xxxi); Burton v Honan 86 CLR at 180-181 (Dixon CJ); Re Director of Public Prosecutions; Ex parte Lawler [1994] HCA 10; 179 CLR 270; Mutual Pools & Staff Pty Ltd v The Commonwealth [1994] HCA 9; 179 CLR 155 at 187-188 (Deane and Gaudron JJ). There was no argument put to the contrary. 21 Thus, the confiscation of property is not achieved by words of general implication, nor is it an intrusion on general law protections which has come about incidentally to the main purpose of the legislation: see Balog v Independent Commission Against Corruption [1990] HCA 28; 169 CLR 625 at 635-636 (Mason CJ, Deane, Dawson, Toohey and Gaudron JJ); Hadjigeorgiou v New South Wales Crime Commission [2007] NSWCA 197; 174 A Crim R 124 at [95]. The taking of the property in the prescribed circumstance is the primary purpose of the legislation: Proceeds of Crime Act, s 5. The interests of a person in property the subject of a valid restraining order are deliberately and expressly at risk of confiscation, absent affirmative steps to exclude property on the application of the interested person. There is thus a clear and manifest intention to interfere with property rights. 22 The other general right upon which the applicant relies is that which is to be found in the "privilege against self-incrimination". As explained by Allsop J in Griffin v Pantzer [2004] FCAFC 113; 137 FCR 209 (with the agreement of Ryan and Heerey JJ), once the privilege is held to operate outside curial proceedings, it may better be described as a fundamental right and not merely a testimonial privilege: at [44]; relying on Pyneboard Pty Ltd v Trade Practices Commission [1983] HCA 9; 152 CLR 328 at 340-341 (Mason ACJ, Wilson and Dawson JJ stating that the principle was "too fundamental a bulwark of liberty to be categorized simply as a rule of evidence applicable to judicial and quasi-judicial proceedings"). That being accepted, the scope of the right is nevertheless encapsulated in similar terms to the evidential privilege and operates so as to prevent a person being required to answer a question, or provide a document which, in either case, may have an incriminating effect. (It is not necessary for present purposes to consider other means of self-incrimination.) (c) examination orders 23 The potential for such a consequence is expressly recognised by the Proceeds of Crime Act. Thus, Pt 3-1 of the Act dealing with examinations, makes it an offence to fail or refuse to answer a question that the approved examiner requires the person to answer: s 196(1)(b). Similarly, the section makes it an offence to refuse to produce a document specified in the examination notice: s 196(1)(c). That obligation is, however, subject to an exception in circumstances where, under another law, the person "could not, in proceedings before a court, be compelled to answer the question or produce the document": s 197(1). That qualification to the obligation is then removed where "the only reason or reasons why the person could not be so compelled" is, inter alia, that "answering the question or producing the document would tend to incriminate the person or to expose the person to a penalty": s 197(2)(a). 24 The imposition of the obligation, subject to a qualification which is expressed and then withdrawn, are followed by a further provision providing a limited protection by way of "use immunity": " 198 Admissibility of answers and documents An answer given or document produced in an examination is not admissible in evidence in civil or criminal proceedings against the person who gave the answer or produced the document except: (a) in criminal proceedings for giving false or misleading information; or (b) in proceedings on an application under this Act; or (c) in proceedings ancillary to an application under this Act; or (d) in proceedings for enforcement of a confiscation order; or (e) in the case of a document, in civil proceedings for or in respect of a right or liability it confers or imposes." 25 This legislative scheme recognises in express terms the availability of the right not to incriminate oneself and removes it in respect of answers and documents sought in an examination under the Act. While it provides protection against use of such answers and documents, that protection does not extend to proceedings or an application under the Act itself, whether or not there could have been objection on the grounds of self-incrimination in those proceedings. Finally, the terms of s 198 are carefully formulated so as to render the answers or documents inadmissible in evidence, but not to exclude their use in other ways. This reflects the underlying purposes of the examination, the details of which are not presently relevant. Certain other protections are provided, at the discretion of the examiner, permitting directions preventing or restricting the disclosure of answers or documents to the public (s 193), but otherwise, the scope of the use to which an answer or a document may be put will depend upon the purpose of the examination. (d) forfeiture orders 26 The second kind of order relevantly available under the Act is a forfeiture order under s 49. There is likely to be no basis for resistance to such an order unless the Director is required to satisfy the Court that the property is proceeds of one or more relevant offences. Such a finding is not, however, required if the Court is satisfied that no application has been made for property to be excluded from the restraining order, pursuant to Pt 2-1, Div 3 of the Act: s 49(3). (e) exclusion orders 27 An application to exclude property which is subject to a restraining order requires the Court to be satisfied that "the property is neither the proceeds of an indictable offence, a foreign indictable offence or an indictable offence of Commonwealth concern", for the purposes of s 19: s 29(2)(d)(i). It has been held that the applicant has the burden of proving the matters sought to be established under s 29(2) as ground for excluding the property from the scope of the restraining order: see s 317(1) and Director of Public Prosecutions (Cth) v Hart (No 2) [2005] 2 Qd R 246 at [10]-[12] (McPherson JA, Williams JA agreeing) and [49] (Chesterman J, Williams JA agreeing). That burden was not in dispute in the present proceedings, the applicant indeed relying upon the difficulty he would face in seeking to obtain such an order, without giving evidence and thus placing himself at risk of self-incrimination. 28 Further, an application for exclusion of property must not be heard if the Director "has not been given a reasonable opportunity to conduct an examination of the applicant": s 32. This requirement, the applicant contended, meant that, in order to resist a forfeiture order, he not merely had to seek an order excluding property from the scope of the restraining order, but before doing so, had to submit to an examination. (It will be necessary to revisit this contention shortly.) (f) revocation orders 29 The other possibility open to the applicant to avoid forfeiture, is to pursue relief sought in his notice of motion for an order revoking the restraining order, pursuant to s 42 of the Act. 30 Section 42(5) empowers the Court to revoke the restraining order "if satisfied that there are no grounds on which to make the order at the time of considering the application to revoke the order". It has been held that this provision imposes on the applicant a burden of so satisfying the court. Because the Director may adduce material to the court and the applicant may need to rely upon his or her own evidence, there is no reason to suppose that the factual basis for the court's determination need be the same as that relied upon when the original order was made. Whether the relevant statutory basis for an order must be the same as that relied upon in making the restraining order has not been decided: see Director of Public Prosecutions (Cth); re Sunshine World Holdings Ltd [2005] NSWSC 117; 62 NSWLR 400 at [19] (Greg James J). The nature of the test has also not been determined, the possibility that "irrational, improper or unlikely grounds for suspicion" might be sufficient to sustain an order having been left open in Director of Public Prosecutions (Cth) v Tan [2003] NSWSC 717 at [14] (Shaw J). It seems preferable, however, to treat s 42(5) as requiring satisfaction at the time of the revocation hearing as to the absence of such grounds as could have been relied upon to justify a restraining order, being the grounds specified in whichever of ss 17, 18 or 19 formed the basis of the original order. On that view, the order would be liable to revocation if the Court were satisfied that there were no reasonable grounds for the suspicion which had been relied upon. 31 None of these issues need be resolved for present purposes. What is relevant is that in seeking a revocation order, the applicant is not precluded from relying upon the privilege against self-incrimination. The withdrawal of that right only operates with respect to particular processes provided for under the Proceeds of Crime Act, being examination orders in Ch 3, Pt 3-1 and production orders under Pt 3-2. Power to stay proceedings 32 Against this understanding of the statutory scheme, it is necessary to return to the applicant's submission that the orders sought in the summons should be stayed. As already noted, that should be understood as an application for a stay of the proceedings in which that relief was sought. 33 The starting point for the applicant's argument in this regard was that by -
[1994] HCA 9
[1994] HCA 10
(1990) 28 NSWLR 263
(1989) 17 NSWLR 26
(1935) 54 CLR 175
[1994] HCA 15