Australian Federal Police Proceeds of Crime Litigation

1 This is an application for leave to appeal against a refusal to stay civil forfeiture proceedings under the Proceeds of Crime Act 2002 (Cth) ('the POC Act') pending the hearing and determination of related criminal proceedings.

2 On 2 July 2013, the second applicant ('Jin') was charged with dealing with the proceeds of crime. The Crown alleges that Jin is a brothel owner and broker of sex workers who aided and abetted the commission of offences by dealing with cash taken from illegal workers. Jin denies the allegations. There has been a contested committal hearing and the charges are listed for trial next year. The first applicant ('Zhao') is Jin's wife but she has not been charged.

3 Jin and Zhao live together at 90 Tunstall Road, Donvale, being the land comprised in Certificate of Title Volume 11407 Folio 581 ('the Donvale property'). Zhao is the registered proprietor of the Donvale property. There is also an apartment at 1201/283 City Road, Southbank, being the land comprised in Certificate of Title Volume 11310 Folio 727 ('the Southbank property'). Jin is the registered proprietor of the Southbank property. Jin is also director of Jaks Investments Australia Pty Ltd ('Jaks') and Jaks is the registered proprietor of a 2012 Jeep Grand Cherokee motor car, registration ZDP 649, vehicle identification number (VIN) 1C4RJFEG1CC276493 ('the Jeep').

4 On 2 July 2013, a judge of the County Court made orders on the application of the respondent ('the Commissioner') pursuant to ss 25 and 26(4) of the POC Act to restrain the disposition of the Donvale property, the Southbank property, the Jeep and some cash and other personal items. Pursuant to those orders, all of Jin's and Zhao's substantial assets have been seized and restrained ('the Restrained Property'). On 24 July 2013, the Commissioner filed an application pursuant to s 59 of the POC Act for forfeiture of the Restrained Property pursuant to s 49 of the POC Act).

5 On 24 September 2013, Jin and Zhao each filed applications for orders for the exclusion of the Donvale property and the Southbank property from the restraining orders under s 31 of the POC Act; an order for exclusion from forfeiture under s 74 of the POC Act; and a compensation order under s 78 of the POC Act.

6 On 22 November 2013, Jin and Zhao also filed applications pursuant to s 49 of the County Court Act 1958 for a stay of the forfeiture proceedings and exclusion and compensation applications until after the hearing and determination of the charges pending against Jin. As all three matters are inter-related we will refer to the forfeiture proceedings and the exclusion and compensation applications as 'the forfeiture proceedings'. The applications for a stay were supported by an affidavit in which Jin deposed inter alia that:

I am concerned that if I have to make a detailed affidavit or be cross examined regarding the purchase of the Restrained Property and source of any relevant funds that there is a real risk that any such evidence will prejudice my criminal case.

Zhao did not offer any evidence as to how she would be prejudiced if the forfeiture proceedings were not stayed.

7 The judge rejected the applications for stay. His Honour found that there was no evidence as to how the applicants giving evidence in the forfeiture proceedings might give rise to a real risk of prejudice in the criminal proceedings.[1]

8 The judge also held that, taking into account ss 47, 49, 266 and 319 of the POC Act, he was not persuaded that failure to stay the proceedings would interfere with the administration of criminal justice. To the contrary, his Honour said, he considered that a stay would be more likely to frustrate the clear intention of the POC Act that forfeiture and exclusion proceedings may progress while criminal proceedings are extant. His Honour referred in particular to s 319 of the POC Act and the recent decision of the majority of the High Court in Lee v New South Wales Crime Commission,[2] as follows:

... s 319 of the Act ... is in the following terms:

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.

The respondent submits the effect of s 319 of the Act is that an applicant for stay must provide admissible and cogent evidence that describes the basis for a stay and that a statement as to the mere existence of a criminal proceedings in which an applicant's defence might be prejudiced is not a sufficient basis to order a stay.

The respondent submits that the clear intention of the Act is to establish a legislative mechanism for forfeiture of property that may have been derived from criminal activity that runs parallel with, but separate from, the criminal justice system and that the clear intention of the Act when construed as a whole is to progress rather than delay the forfeiture of property. The respondent submits that to grant a stay in the present circumstances on the basis of limited material would defeat the clear purpose of the Act. I accept this submission.[3]

...

Section 80 of the Act is important in my opinion in this context. It provides as follows:

Forfeiture order made under section 47 or 49 unaffected by acquittal or quashing of conviction

A forfeiture order made under section 47 or 49 against a person in relation to an offence is not affected if:

(a) having been charged with the offence, the person is acquitted; or

(b) the person is convicted of the offence and the conviction is subsequently quashed.

The respondent's forfeiture application is one that relies on the power in s 49(1)(a), (b) and (c)(i). It is clear that the Act contemplates the forfeiture proceeding progressing at the same time as a criminal proceeding and acknowledges that both proceedings may result in two seemingly different results. If proved on the civil standard the forfeiture order will stand notwithstanding an acquittal of criminal charges. In my opinion s 80 is a clear indicator the parliament intended for civil forfeiture proceedings progressing in parallel with any criminal proceeding.[4]

Section 319 of the Act has not been considered by the High Court or at appellate level in Victoria. The High Court considered s 63 of the Criminal Assets Recovery Act 1990 (NSW) a provision similar to s 319 of the Act in Lee v New South Wales Crime Commission... Justice Crennan analysed the legislation and concluded it unambiguously abrogated the privilege against self-incrimination. Her Honour also concluded that the legislation separated the power to conduct an examination from criminal proceedings. In my opinion that is what the legislation does here. It clearly envisages a situation where forfeiture and exclusion proceedings under the Act can progress whilst criminal proceedings are on foot.[5]

9 The judge observed that there were some provisions in the POC Act that expressly abrogate the privilege against self-incrimination or govern disclosures, including s 39A and s 266A. However, s 39A only applies in respect of a compulsory process by which a court, in making a restraining order, can direct a suspect to give a sworn statement to a specified person, or order the owner, or a previous owner of relevant property, to give a sworn statement to a specified person, or, if satisfied that there are reasonable grounds to suspect that a person has information relevant to identifying, locating or quantifying relevant property, order that person to give a sworn statement to a specified person.[6] Section 266A limits the disclosure of the information obtained as a result of those orders.[7] Neither of these sections applies to forfeiture proceedings under s 49, or exclusion applications under s 74, or applications for compensation under s 78.

10 The judge went on to observe that there was no suggestion of either Zhao or Jin being compelled to give evidence in the forfeiture proceedings. It would be up to them whether they did so. Jin would also have the protection that, if he did give evidence in the forfeiture proceedings and were asked questions in cross-examination which might tend to incriminate him, he would be entitled to invoke the privilege against self-incrimination procedure now provided for in s 128 of the Evidence Act 2008;[8] and the further protection that the trial judge in the criminal proceedings would have power under Part 3.11 of the Evidence Act 2008 to exclude evidence and otherwise ensure that Jin's trial is fair.[9]

...I am not convinced that a failure to stay the applications will cause an interference with the administration of criminal justice or any following trial of the second applicant. To stay the application would in my view frustrate the clear intentions and purposes of the legislation. For these reasons the applications for a stay are refused.[10]

12 The applicants contend that, although the POC Act may contemplate the hearing of forfeiture proceedings and exclusion applications while criminal charges are pending, the judge erred in the exercise of discretion in refusing to stay the forfeiture proceedings in the circumstances of this case.

13 Counsel for the applicants submitted that the judge erred in fact in finding that there was no evidence of a real risk that the applicants giving evidence in the forfeiture proceedings would prejudice Jin in the criminal proceedings, and that his Honour erred in law in holding that the High Court's decision in Lee No 1[11] implied that a stay of the forfeiture proceedings would run counter to the purposes and intent of the POC Act.

14 Most importantly, however, in counsel's submission the judge failed to appreciate or give sufficient weight to the consideration that, unless the forfeiture proceedings are stayed, the applicants will be confronted with the invidious choice of either giving evidence in the forfeiture proceedings without the benefits of any statutory protection against direct or derivative use of their evidence in the criminal proceedings, and thereby exposing themselves to the risk of their evidence later being used against Jin in the criminal proceedings or, alternatively, preserving Jin's right to silence by not giving evidence in the forfeiture proceedings but thereby giving up the ability to mount an effective defence to the Commissioner's forfeiture claim.

15 In counsel's submission, to subject the applicants to such a dilemma would fly in the face of the cardinal principle of the criminal justice system that it is for the Crown to prove its case beyond reasonable doubt without assistance from the accused; and, in effect, result in a reversal of the burden of proof in the criminal proceedings.

16 With respect, we consider that the judge did err in fact in finding that there was no evidence of how the applicants' giving evidence in the forfeiture proceedings could result in a real risk of prejudice to Jin in the criminal proceedings. Following the concerns expressed in the paragraph of Jin's affidavit set out in the judge's reasons,[12] Jin went on in the same affidavit to depose that:

I have these concerns due to the matters raised in the Affidavit of Emily Nicholson affirmed on 1 July 2013 and filed in these proceedings. By way of example paragraph 26 states:

Based on the results of investigations and conversations between Kim and Moon, I believe that Kim does not have any assets in her name but uses other people to hide her money and assets. I believe the assets and property detailed in the following paragraphs were purchased by other persons on behalf of Kim using the proceeds derived from the Specified Offence.

And paragraphs 31 states:

On 22 October 2011 Jin authorised payments to be made to the home loan account from his Westpac Choice account number 7333005 706465.

And paragraph 32 states:

Analysis of Choice account number 733005 706465 reveals that the account was opened on 21 October 2011 and three deposits were made totalling $100,050.

I believe that the person 'Kim' referred to above is a reference to my aunt. I believe that the person 'Moon' referred to above is a reference to my mother.

In properly presenting my case for these proceedings I would be necessarily required to address these matters in any affidavit filed; however to do so would require me to give evidence as to the purchase of the Restrained Property or ownership of any bank accounts I hold and the source of any funds into those accounts. These matter are directly relevant to the criminal charges. If I am to depose to these matters in an affidavit in this proceedings I will, in effect, [be] waiving my right to silence. I do not wish to do so.

I also note that the charges against me relate to the period 8 February 2013 to 2 July 2013. If the civil proceedings are not stayed I am also very concerned that I will be cross-examined about other matters such as the origin of particular funds and assets outside of this period and there is a real risk that this will prejudice my rights and that it may open up further investigation against me or others.

17 For the reasons which follow, we are also of the view that the judge was wrong in law in treating Lee No 1 as dictating that to stay the forfeiture proceedings would frustrate the clear intention and purpose of the POC Act.

18 Over the last thirty years, applications for a stay of the kind in issue have frequently been decided by reference to guidelines identified by Wooten J in McMahon v Gould, as follows:[13]

(a) Prima facie a plaintiff is entitled to have his action tried in the ordinary course of the procedure and business of the court;

(b) It is a grave matter to interfere with this entitlement by a stay of proceedings, which requires justification on proper grounds;

(c) The burden is on the defendant in a civil action to show that it is just and convenient that the plaintiff's ordinary rights should be interfered with;

(d) Neither an accused nor the Crown are entitled as of right to have a civil proceeding stayed because of a pending or possible criminal proceeding;

(e) The court's task is one of 'the balancing of justice between the parties', taking account of all relevant factors;

(f) Each case must be judged on its own merits, and it would be wrong and undesirable to attempt to define in the abstract what are the relevant factors;

(g) One factor to take into account where there are pending or possible criminal proceedings is what is sometimes referred to as the accused's 'right of silence', and the reasons why that right, under the law as it stands, is a right of a defendant in a criminal proceeding. I return to this subject below;

(h) However, the so-called 'right of silence' does not extend to give such a defendant as a matter of right the same protection in contemporaneous civil proceedings. The plaintiff in a civil action is not debarred from pursuing action in accordance with the normal rules merely because to do so would, or might, result in the defendant, if he wished to defend the action, having to disclose, in resisting an application for summary judgment, in the pleading of his defence, or by way of discovery or otherwise, what his defence is likely to be in the criminal proceeding;

(i) The court should consider whether there is a real and not merely notional danger of injustice in the criminal proceedings;

(j) In this regard factors which may be relevant include:

(i) the possibility of publicity that might reach and influence jurors in the civil proceedings;

(ii) the proximity of the criminal hearing;

(iii) the possibility of miscarriage of justice eg by disclosure of a defence enabling the fabrication of evidence by prosecution witnesses, or interference with defence witnesses;

(iv) the burden on the defendant of preparing for both sets of proceedings concurrently;

(v) whether the defendant has already disclosed his defence to the allegations;

(vi) the conduct of the defendant, including his own prior invocation of civil process when it suited him;

(k) The effect on the plaintiff must also be considered and weighed against the effect on the defendant. In this connection I suggest below that it may be relevant to consider the nature of the defendant's obligation to the plaintiff;

(1) In an appropriate case the proceedings may be allowed to proceed to a certain stage, eg, setting down for trial, and then stayed.

19 In McMahon v Gould, Wooten J went on to say that it should not be thought a sufficient basis to stay civil proceedings pending the completion of criminal proceedings that the defendant would otherwise face the practical compulsion of choosing between giving evidence in the civil proceedings and giving up the ability to mount an effective defence to the civil proceedings. As his Honour put it:

On the other hand, the scope and role of 'the right of silence' in the criminal process should not be exaggerated. As Lord Devlin has observed: '... while the English system undoubtedly does give the accused man the right to say nothing, it does nothing to urge him to take advantage of his right or even to make that course invariably the attractive one'. Nor has 'the right' been understood to give a man freedom from being confronted at his trial with prior inconsistent statements of his own, provided they were made voluntarily. Even at the high point of its protection of the 'right of silence' in the Miranda case, the Supreme Court of the United States held that statements made voluntarily but barred by the Miranda case could be used for purposes of cross-examination. In Harris v New York the Court said: 'The shield provided by Miranda cannot be perverted into a license to use perjury by way of a defense, free from the risk of a confrontation with prior inconsistent utterances.'

In this context there are some consequences of the 'right of silence' which no one, so far as I am aware, puts forward as legitimate reasons for its existence. These include the opportunity it may give the accused to remain silent till the end of the evidence against him at the trial, and then produce a fabricated story perfectly tailored to meet that evidence. They include the possibility of depriving the prosecution of any opportunity to check the accused's story and obtain evidence to refute it before the trial is over. In one particular matter - the last minute production of alibis - the injustice was so frequent and obvious that the legislature made an inroad into the 'right of silence' by requiring notice of such an intended defence.

These are advantages which 'the right of silence' gives to an accused, but they cannot reasonably be regarded as part of the reason why the right exists. In exercising its discretion to stay civil proceedings the court need not be concerned to preserve these advantages. It should be concerned to avoid the causing of unjust prejudice by the continuance of the civil proceedings, not to preserve the tactical status quo in the criminal proceedings whether it be just or unjust.[14]

20 Judged according to those observations, the judge in this case would not have been wrong in refusing a stay of the forfeiture proceedings.

21 Without necessarily accepting that was so, counsel for the applicants submitted that this Court should now reconsider the McMahon v Gould guidelines in light of a number of considered obiter dicta pronouncements, since that case was decided, to the effect that greater weight may need to be given to the practical as opposed to legal prejudice to an accused of facing coincidental forfeiture and criminal proceedings and, more generally, to the primacy of criminal proceedings in the justice system. Some of those dicta were summarised by Robson J in Re AWB Ltd (No 1),[15] as follows:

... In Yuill v Spedley Securities Ltd[16] Kirby P referred to McMahon v Gould[17] as 'the existing law'. His Honour indicated, however, that one day it may be appropriate for the guidelines referred to by Wootten J in McMahon v Gould[18] to be reconsidered. Kirby P said that the guidelines do not take specifically into account the primacy of the administration of criminal justice in our legal system. In Niven v SS,[19] Beazley JA of the New South Wales Court of Appeal said there was force in Kirby P's opinion although the case before [her Honour] was not the case to reconsider McMahon v Gould.[20] In Baker v Commissioner of Federal Police,[21] Gyles J said that in view of Reid v Howard[22] there was some merit in the view that there should be reconsideration of the manner in which the McMahon v Gould[23] line of authorities is now applied so as to decide whether too little weight is given to the practical as well as legal prejudice to the accused and to the primacy of criminal proceedings in our justice system.[24] Gyles J said:[25]

The applicants rely upon the decision of the High Court in Reid v Howard[26] to suggest that the line of authority commencing with McMahon v Gould has given insufficient weight to, and has not fully appreciated the extent of, the privilege against self-incrimination. There is no doubt that Reid v Howard does re-affirm the importance of the privilege against self-incrimination, and does not give any encouragement to think that any devaluation of the principle which may apply in the United Kingdom will be applied in Australia.

Gyles J said, however, that any such reconsideration would need to be undertaken either by the Full Court of the Federal Court of Australia or the High Court. This approach to McMahon v Gould was also adopted by Gray J in Elliot v Australian Prudential Regulation Authority.[27] Gray J did hold that the line of authority in McMahon v Gould was not constructed by way of any exception to the privilege against self-incrimination or self-exposure to a penalty. He said:[28]

Rather, it represents a means which the courts have developed to deal with the possible conflict between actual pending criminal proceedings and civil proceedings or administrative processes.

The approach taken by Gyles J was also adopted by Mansfield J in Guglielmin v Trescowthick (No 3).[29]

22 The question in Reid v Howard[30] was whether the New South Wales Court of Appeal had power in the exercise of its civil jurisdiction to make orders compelling a trustee to disclose information about assets notwithstanding his claim that to do so would tend to incriminate him. In keeping with a practice at that time sanctioned in England and for some time followed by courts in this county, the Court of Appeal made orders compelling the trustee to disclose the information on terms which purported to restrict the use which could be made of it. The High Court, however, held to the contrary that, because the privilege against self-incrimination can only be modified by statute, the Court of Appeal should not have made those orders.

23 Deane J reasoned that the Court of Appeal had erred in the exercise of jurisdiction by failing to give due effect to the privilege against self-incrimination.[31] The plurality, constituted by Toohey, Gaudron, McHugh and Gummow JJ, held that the Court of Appeal had acted beyond jurisdiction because the orders were inimical to justice.[32] The ratio of Reid v Howard was thus that, because the privilege against self-incrimination can only be modified by statute, a court has no power to disregard it or override it in favour of judicially created exceptions.

24 The observations of Kirby P in Yuill v Spedley Securities Ltd[33] are no less in point. His Honour said there that:

One day it may be appropriate for this court to reconsider the guidelines stated by Wootten J in McMahon v Gould. There are, in my view, considerations additional to those which are referred to by Wootten J which it would be relevant to consider in proceeding to determine an application for a stay such as was before Rolfe J. For example, it is in my opinion relevant to take specifically into account the public's own interest in the normal primacy of the administration of criminal justice, being a part of the public law of the community relevant to its good order and peaceful government. This consideration might help explain why, ordinarily but not universally, such proceedings should be heard and determined first.[34]

Also relevant is the fact that serious criminal proceedings are still determined, in most cases in this State, by juries. Most civil litigation is now decided by judges sitting alone. Judges, by their training, are conventionally considered to be better able to make the mental adjustments for excluding the prejudicial effect of pre-trial publicity than lay jurors are. The sensational and highly personalised presentation of much news by the news media today has become a factor relevant to the fair trial of prominent "personalities". Guarding their right to a manifestly fair criminal trial is as much in the interest of the community and its legal institutions as in the interests of the individuals concerned.

A further consideration in cases of this class is the 'deep-rooted' inclination of our law to avoid, directly or indirectly, depriving a person of the right to silence in criminal proceedings. Sometimes the prior litigation of the [civil] trial may have that effect, either by its interlocutory procedures or by the need of the accused, in the forensic setting of the civil trial, to give evidence or ask questions, thereby disclosing a defence to the outstanding criminal charge.[35]

More than lip service must be paid by courts to the preservation of these enduring features of the criminal process, whether in the interpretation of apparently inconsistent statutes or in the exercise of a discretion to stay civil proceedings until related criminal proceedings are completed.[36] Such features exist not only to protect the rights of the individual accused but also to help define the relationship between the organised state and citizens generally. In the context of cases such as the present, it is possible that the guidelines in McMahon v Gould need to be revised to reflect more accurately such considerations. Basic rights matter most where they seem most painful to accord.[37]

25 Likewise, the observations of Gyles J in Baker v Commissioner of Federal Police[38] are relevant. The issue in Baker v Commissioner of Federal Police was whether an administrative decision to invite policemen to answer questions concerning a complaint made against them by a member of the public was an unreasonable decision. The problem was that, if the policemen did not respond to the invitation, they might well be dismissed and, if they did respond and answer questions, what they said might later be used against them in criminal proceedings arising out of the complaint. That is analogous to the situation in this case since, if the applicants were to give evidence in the forfeiture proceedings, their evidence might tend to disclose or suggest Jin's defence to the criminal proceedings.

26 The notion of giving increased primacy to criminal proceedings in the sense contemplated by Kirby P in Yuill also finds support in the reasoning of Hayne and Bell JJ in X7 v Australian Crime Commission.[39] The issue there was whether the Australian Crime Commission Act 2000 (Cth), in particular ss 28 and 30, authorised an examiner to require a person charged with a Commonwealth indictable offence to answer questions about the subject matter of the charged offence. The High Court held by majority[40] that it did not. Relevantly for present purposes, Hayne and Bell JJ[41] observed that:[42]

Even if the answers given at a compulsory examination are kept secret, and therefore cannot be used directly or indirectly by those responsible for investigating and prosecuting the matters charged, the requirement to give answers, after being charged, would fundamentally alter the accusatorial judicial process that begins with the laying of a charge and culminates in the accusatorial (and adversarial) trial in the courtroom. No longer could the accused person decide the course which he or she should adopt at trial, in answer to the charge, according only to the strength of the prosecution's case as revealed by the material provided by the prosecution before trial, or to the strength of the evidence led by the prosecution at the trial. The accused person would have to decide the course to be followed in light of that material and in light of any self-incriminatory answers which he or she had been compelled to give at an examination conducted after the charge was laid. That is, the accused person would have to decide what plea to enter, what evidence to challenge and what evidence to give or lead at trial according to what answers he or she had given at the examination. The accused person is thus prejudiced in his or her defence of the charge that has been laid by being required to answer questions about the subject matter of the pending charge.

As has been explained, if an alteration of that kind is to be made to the criminal justice system by statute, it must be made clearly by express words or by necessary intendment. If the relevant statute does not provide clearly for an alteration of that kind, compelling answers to questions about the subject matter of the pending charge would be a contempt.

27 Of course, Hayne and Bell JJ were speaking there of whether the statute in question empowered the examiner to compel a witness to give evidence. There is no question of compulsion in this case. But their Honours' explication of the 'accusatorial judicial process' presents more generally as based on a broader, more practical view of the privilege against self-incrimination than McMahon v Gould would allow.

28 Importantly, there is also the earlier decision of the Queensland Court of Appeal in Director of Public Prosecutions (Cth) v Jo[43] that, although s 319 of the POC Act provides that the fact that criminal proceedings have been instituted or have commenced is not a basis to stay forfeiture proceedings under the POC Act, an accused should be granted a stay of forfeiture proceedings if he or she can demonstrate that matters to be raised in the forfeiture proceedings may prejudice his or her defence in the criminal proceedings. Wilson J, with whom McMurdo P and Lyons J agreed, delivered the principal judgment. His Honour referred with approval to earlier decisions of Mackenzie J in Queensland v Shaw[44] and of Muir J in Queensland v O'Brien[45] that, where the fact that allowing forfeiture proceedings to be heard before related criminal proceedings might allow the Crown to expose defects in the accused's defence of the criminal charges and to repair deficiencies in the Crown case, there is reason for requiring that the criminal proceedings be heard first. As Wilson J put it:

In Shaw ... Mackenzie J who heard the stay application observed that in the circumstances of the case it was almost inevitable that the applicant would have to go into evidence in the criminal proceedings either to attack the basis for the reasonable suspicion or to give a satisfactory explanation for his possession of the property. The applicant intended adducing evidence including a forensic accountant's opinion based on other evidence of the nature of transactions entered into. The precise contents of that evidence were not known, but the fact that it would present a different interpretation of the applicant's financial position had been expressly revealed. His Honour considered -

whether the fact that allowing the forfeiture proceedings to proceed first may allow the State to expose defects in [the] case relied on by the person who will be a defendant in s 10A [of the Drugs Misuse Act 1984 (Qld)] proceedings and repair any deficiencies in its own evidence which are exposed in the forfeiture proceedings is a reason for requiring the s 10A proceedings to be heard first.

His Honour considered that where the issues were identical in the forfeiture proceedings and the s 10A proceedings, the State should not be afforded the opportunity to use the civil proceedings to test and potentially improve the case it would rely on in the criminal proceedings. He went on -

Firstly, as the law stands, the respondent is in a more favourable position in the s 10A proceedings with regard to disclosure of the material upon which his exculpatory explanation is based. Secondly, there are penal consequences flowing from a conviction.

The case is one where there is a well-defined and real advantage available to a person in criminal proceedings in respect of 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.

...

In O'Brien Muir J granted a stay of forfeiture proceedings against the applicant about five months before his trial on charges of trafficking in and producing methylamphetamine was expected to take place. The Crown case in the criminal proceedings was largely a circumstantial one, and it intended relying on an analysis of the applicant's financial position to show that his financial resources were explicable only by his having engaged in unlawful conduct such as that alleged against him. Counsel for the applicant relied principally on the protection of the right to silence and the maintenance of the privilege against self-incrimination. His Honour said -

It is plain to me, on the material, that there is a high potential for any evidence adduced on an exclusion application to effectively remove the applicant's privilege against self-incrimination and dispense with the right to silence. An application of exclusion, depending on how it is framed, may amount to an admission which can be used against the applicant.

When one looks at this matter broadly, if the matter is stayed for some months until the criminal trial has been completed, the respondent will suffer little in the way of prejudice but, on the other hand, if a stay is not granted, the potential prejudice to the applicant is quite grave.

I have taken into account the length of time that these proceedings have been on foot and also the applicant's conduct in relation thereto. It seems to me that the applicant has engaged in conduct calculated to delay and frustrate the respondent in its progression of the application. There is, however, an innocent explanation for some of that.[46]

29 Counsel for the Commissioner submitted that the New South Wales Court of Appeal had since cast doubt on the reasoning in Jo, in Lee v Director of Public Prosecutions (Cth),[47] by observing that Jo appeared to embrace a view of the statutory scheme which was inconsistent with its express removal of the right to incriminate oneself in respect of answers and documents sought in a compulsory examination under the POC Act.

30 We do not consider Jo to be affected by any such deficiency. Wilson J expressly recognised that the inherent jurisdiction of the court to preserve the privilege against self-incrimination cannot withstand a clear legislative intent to abrogate that privilege by requiring persons to answer questions at an examination conducted under the POC Act. But, as his Honour observed, in the matter with which he was concerned, that point had not then been reached. Up until then, there had been no examination.[48]

31 As we see it, Jo is an authoritative determination of an Australian intermediate appellate court which, subject to any contrary direction of the High Court, we are bound to follow.[49]

Lee v New South Wales Crime Commission (Lee No 1)

32 In Lee No 1, a majority of the High Court spoke in terms which, on one view of the matter, implied that the privilege against self-incrimination is not as broad as Yuill suggested it should be or Jo held that it is.

33 The facts in Lee No 1 were that the New South Wales Crime Commission had applied for orders for compulsory examination of the appellants pursuant to s 31D of the Criminal Assets Recovery Act 1990 (NSW) ('the CAR Act'). At the time of seeking the orders, a confiscation order had been made against the appellants and each of them had been charged with offences and their trials were pending. So far as is relevant, s 31D of the CAR Act provided that:

(1) If an application is made for a confiscation order ... the Supreme Court may, on application by the Commission, when the application for the confiscation order ... is made or at a later time, make any one or more of the following orders:

(a) an order for the examination on oath of:

(i) the affected person, or

(ii) another person,

before the Court, or before an officer of the Court prescribed by rules of court, concerning the affairs of the affected person, including the nature and location of any property in which the affected person has an interest,

...

(3) Sections 13 and 13A apply in respect of a person being examined under an order under this section in the same way as they apply in respect of a person being examined under an order under section 12(1).

34 Section 12(1) of the CAR Act provided as follows:

The Supreme Court may, when it makes a restraining order or at any later time, make any ancillary orders (whether or not affecting a person whose interests in property are subject to the restraining order) that the Court considers appropriate and, without limiting the generality of this, the Court may make any one or more of the following orders:

...

(b) an order for the examination on oath of:

(i) the owner of an interest in property that is subject to the restraining order, or

(ii) another person,

before the Court, or before an officer of the Court prescribed by rules of court, concerning the affairs of the owner, including the nature and location of any property in which the owner has an interest.

(1) A person being examined under section 12 is not excused from answering any question, or from producing any document or other thing, on the ground that the answer or production might incriminate, or tend to incriminate, the person or make the person liable to forfeiture or penalty.

(2) However, any answer given or document produced by a natural person being examined under section 12 is not admissible in criminal proceedings (except proceedings for an offence under this Act or the regulations) if:

(a) the person objected at the time of answering the question or producing the document on the ground that the answer or document might incriminate the person, or

(b) the person was not advised that the person might object on the ground that the answer or document might incriminate the person.

(3) Further information obtained as a result of an answer being given or the production of a document in an examination under section 12 is not inadmissible in criminal proceedings on the ground:

(a) that the answer had to be given or the document had to be produced, or

(b) that the answer given or document produced might incriminate the person.

36 Section 63 of the CAR Act provided further that:

The fact that criminal proceedings have been instituted or have commenced (whether or not under this Act) is not a ground on which the Supreme Court may stay proceedings under this Act that are not criminal proceedings.

37 It was not in issue that the court had a discretion whether to make an examination order under s 31D and, therefore, an obligation to consider the risk that such an examination might pose to the fair criminal trial of the proposed examinee. The question was whether the discretion extended to making an order for the compulsory examination of a person charged with a criminal offence about matters the subject of the charge. That depended on whether the CAR Act evinced sufficient intention to override the privilege against self-incrimination. The majority, comprised of French CJ, Crennan, Gaegler and Keane JJ (Hayne, Kiefel and Bell JJ dissenting), held that it did. The way in which their Honour reasoned to that conclusion is important for present purposes.

38 French CJ began with an examination of the principal objectives of the CAR Act and found that it was an object of the legislation that the procedure which it created for the identification and confiscation of property should be capable of application to a person who has been charged with a serious criminal offence, whether or not the person so charged had been tried. As his Honour observed, that conclusion was reinforced by s 63 in that it has as its premise that proceedings under the CAR Act may be instituted or in train at the same time as criminal proceedings touching the same matter. French CJ noticed that compulsory examination might subject the applicants to a forensic disadvantage of the kind considered in X7 and, therefore, to loss of 'some of the protections conferred by the accusatorial system of criminal justice'.[50] But, as his Honour said, whether that was intended was to be discerned from the proper construction of the statute. Ultimately, French CJ concluded that, because (among other considerations) the objects of the CAR Act expressly contemplated its application to persons facing criminal charges; the examination power was ancillary to substantive confiscation proceedings under the CAR Act; the examination power was conferred on the court as opposed to executive officers; and there was discretion to make or decline to make the order, the policy of the statute and its purpose were identified with sufficient clarity to preclude a constructional choice protective of common law rights, and so to empower the court to make the order sought.[51]

39 Crennan J reasoned alike that, since the evident purposes of examination subsisted irrespective of whether a person had been charged with, tried for or convicted of an offence, to delay an examination from the time when a charge had been laid until criminal proceedings had been completed could frustrate the objects of the CAR Act.[52] Her Honour also noted that the effect of s 63 of the CAR Act was that a person charged with an offence was not entitled, as a matter of right, to have the civil proceedings stayed because of pending criminal proceedings. As such, her Honour said, the section recognised that the operation of the CAR Act may give rise to discrete and conflicting public and private interests in the completion of concurrent civil and criminal proceedings, although it did not override the court's power to stay civil proceedings where necessary to avoid an unfair trial.[53] Taken together, however, the relevant provisions of the CAR Act showed that the privilege against self-incrimination was abrogated irrespective of whether the examinee had been charged with a criminal offence and that the legislature had directed its attention to the effect of that abrogation upon an examinee facing pending criminal proceedings.

40 Gaegler and Keane JJ approached the matter on a similar basis although, like French CJ, with greater concentration on s 63. Their Honours referred with evident approval to the observations of Basten JA in the Court of Appeal that refusal of the order sought would amount to a de facto stay and, therefore, that the statutory purpose revealed by s 63 was not to be ignored merely because the procedure in the case at hand involved resistance to the making of an order for examination as opposed to a stay.

41 Like French CJ, Gaegler and Keane JJ also noticed that there are a variety of ways in which, as a matter of practical reality, examination on oath of a person against whom criminal proceedings have been commenced may have a tendency to give rise to unfairness amounting to interference with the due course of justice and that deprivation of a legitimate forensic choice available to an accused may be one of those ways. But, importantly for present purposes, their Honours added that:

... we are unable to regard as the deprivation of a legitimate forensic choice a practical constraint on the legal representatives of the person leading evidence or cross-examining or making submissions in the criminal proceedings to suggest a version of the facts which contradicted that given by their client on oath in the examination. The legal representatives would, of course, be prevented from setting up an affirmative case inconsistent with the evidence but they would not be prevented from ensuring that the prosecution is put to proof or from arguing that the evidence as a whole does not prove guilt.

The notion that any subtraction, however anodyne it might be in its practical effect, from the forensic advantages enjoyed by an accused under the general law necessarily involves an interference with the administration of justice or prejudice to the fair trial of the accused is unsound in principle and is not consistent with Hamilton...[54]

The significance attributed to s 63 by the Court of Appeal was correct. The discretion conferred on the Supreme Court by s 31D(1)(a) must be exercised consistently with the scheme of the CAR Act. The discretion would not be exercised consistently with the scheme of the CAR Act were the Supreme Court to decline to make an order under s 31D(1)(a) by reference only to circumstances in respect of which s 63 would prevent the making of an order staying proceedings on the application for an order under s 31D(1)(a). Section 63 prevents the staying of proceedings on an application for that order for the reason only that criminal proceedings against the person against whom the order is sought have been commenced but are not completed. The discretion conferred by s 31D(1)(a) would therefore not be exercised consistently with the scheme of the CAR Act if the Supreme Court declined to make the order sought for the reason only that criminal proceedings against the person in respect of whom the order was sought had been commenced but not completed.

The fact that the subject-matter of an examination would overlap with the subject-matter of existing criminal proceedings is a factor additional to that to which s 63 of the CAR Act is addressed. The existence of that additional factor, however, is not alone a sufficient reason to decline to make an order under s 31D(1)(a) where there is reason to consider that the making of the order might enable the Commission to obtain information about the criminal activity the suspicion or probability of which forms the basis of a confiscation order that is sought.

The additional factor alone gives rise to no more than a possibility that the implementation of the examination order might give rise to an interference with the administration of justice. That is the significance of the ability of the Supreme Court, or officer of the Supreme Court before whom the examination is conducted, to control the course of questioning and to make suppression or non-publication orders limiting the timing and scope of any use or dissemination by the Commission of answers given or documents produced. When it is appreciated that the conduct of the examination remains at all times subject to the supervision and protection of the Supreme Court, the possibility that the implementation of the examination order might give rise to an interference with the administration of justice does not rise to the level of a real risk merely because the subject-matter of the examination will overlap with the subject-matter of pending criminal proceedings against the person to be examined.[55]

43 Arguably, each of the central aspects of the majority's reasoning in Lee is applicable to the POC Act.

44 First, it is apparent that the principal objectives of the POC Act include that the procedures which it creates for the identification and confiscation of property should be capable of application to a person who has been charged with a serious criminal offence whether or not the person has yet been tried.[56]

45 Secondly, like s 63 of the CAR Act, s 319 of the POC Act reinforces the conclusion that Parliament intended that forfeiture proceedings may continue against a person charged with a serious criminal offence whether or not the person has yet been tried for the offence.

46 Thirdly, if s 319 of the POC Act is to be read as contemplating the possibility of the subject-matter of forfeiture proceedings overlapping the subject-matter of the criminal proceedings, it would be inconsistent with the scheme of the POC Act if the court were to stay forfeiture proceedings for the reason only that criminal proceedings against the person in respect of whom the order was sought had been commenced but not completed.

47 Fourthly, although a refusal to stay the forfeiture proceedings might subject the applicants to the dilemma of either disclosing Jin's defence to the charges he faces or choosing not to give evidence in the forfeiture proceedings, it is to be assumed that the applicants would not wish to give evidence in the forfeiture proceedings unless they were able to say truthfully on oath that the source of the Restrained Assets is other than the proceeds of crime; and on one view of the matter it is difficult to see how evidence of that kind could prejudice Jin's defence of the criminal proceedings.

48 Alternatively, if it were thought that the applicants might wish to give evidence in the forfeiture proceedings different to the line of their defence to the criminal proceedings, then, to adopt and adapt the reasoning of Gaegler and Keane JJ in Lee No 1, the practical constraint which giving evidence in the forfeiture proceedings would impose on the applicants' legal representatives leading evidence or cross-examining or making submissions in the criminal proceedings suggesting a version of the facts different to that given by the applicants on oath in the forfeiture proceedings ought not to be regarded as the deprivation of a legitimate forensic choice.

49 Finally, just as in Lee No 1, where the compulsory examination was under the control of the court and so attracted the protections against unfairness which a judicial officer is able to afford, so too in this case the forfeiture proceedings are under the control of the court and attract the protections against any unfairness which the court is able to afford. As French CJ observed in Lee No 1, the fact that proceedings are conducted as a concurrent judicial proceeding rather than being conducted by the executive is an important distinguishing feature.[57]

50 More recently, however, the High Court has spoken unanimously in Lee v The Queen[58] in terms which imply that, where the subject matter of forfeiture proceedings is substantially the same as the subject matter of criminal proceedings, unless the forfeiture proceedings are stayed until completion of the criminal proceedings, the Crown may be advantaged in a manner which fundamentally alters its position vis-à-vis the accused and therefore renders the trial of the criminal proceedings unfair.

51 Lee No 2 was concerned with an accused who had been subjected to a compulsory examination under s 16(5) of the New South Wales Crime Commission Act 1985 (NSW). That provision abrogated the privilege against self-incrimination by requiring the subject to answer questions notwithstanding that the answer might tend to incriminate him, but at the same time provided for protections in lieu which included enabling the Commission to direct that any evidence given before it not be published. Although the Commission made such a direction, a copy of the transcript of the accused's evidence before the Commission somehow found its way into the hands of the prosecutor, who therefore had the advantage of knowing in advance of trial the evidence which the accused might give at trial. Correlatively, the accused suffered the disadvantage that he could no longer determine the course to be taken at trial according only to the strength of the Crown case. The Court held unanimously[59] that what had occurred altered the trial in a fundamental respect: 'because it altered the position of the prosecution vis-à-vis the accused',[60] and there was no legislative authority for the alteration. The Court ordered that the conviction be quashed and that, for the purposes of the retrial, the prosecutor should be replaced by another prosecutor who was not aware of the contents of the accused's evidence.

52 Counsel for the Commissioner submitted that the decision in Lee No 2 did not have a great deal to do with the question for decision in this case. He pointed to the fact that there is no issue here of compulsory examination or, consequently in his submission, abrogation of the privilege against self-incrimination. Nor, as counsel would have it, is there to be any unintended alteration in the position of the prosecution vis-à-vis the applicant, since Jin may choose to give or not to give evidence in the forfeiture proceedings according to what he perceives to be his best interests. Of course, counsel recognised, if Jin chooses to give evidence in the forfeiture proceedings, what he says might later be given in evidence in the criminal proceedings. But, counsel contended, that would not result in any change in the nature of the trial or in the position of the prosecution vis-à-vis the accused. For there is nothing new, in counsel's submission, in the notion that what an accused says or does voluntarily in advance of a trial may later be used against him at trial. Statutory modifications aside, that is why an accused has the right to remain silent. In short, it is one thing if a statute takes away the privilege against self-incrimination and provides for other protections in lieu, and if those protections are breached without any statutory authority for the breach. In such cases, it follows that the accused has been unlawfully prejudiced and the court should react accordingly. Hence, the High Court reacted as it did in Lee No 2. But there is no abrogation of privilege or breach of protection in using against an accused what he may choose to say or do in advance of his trial.

53 We do not consider that Lee No 2 can or should be distinguished on that basis. Although it was concerned with compulsory examination, and so in a sense only with a situation where the privilege against self-incrimination is expressly abrogated by statute, logically the High Court's reasoning in Lee No 2 appears to dictate that:

a) the privilege against self-incrimination consists as much of the right of an accused to require the Crown to prove its case without the accused's assistance as it does of the accused's right to refuse to answer incriminating questions;[61]

b) as a constituent of the privilege against self-incrimination, the right to require the Crown to prove its case without the accused's assistance, like the right to refuse to answer incriminating questions, may only be abrogated by statute; [62] and

c) perforce of the principle of legality, as a constituent of the privilege against self-incrimination the right to require the Crown to prove its case without the assistance of the accused may only be abrogated by express statutory terms or clear necessary statutory implication.[63]

54 The failure of the non-publication order to quarantine evidence given by Lee from persons involved in the prosecution of the charges against him reinforced the importance of these principles. We do not consider the principles stated to be at odds with the majority's reasoning in Lee No 1, including the reasoning of Gageler and Keane JJ,[64] because all of the members of the Court in Lee No 1 viewed the privilege against self-incrimination as incorporating the right of an accused to require the Crown to prove its case without the assistance of the accused[65] or saw the 'right to silence', while neither singular nor immutable, as including the right of any person who believes that he or she is suspected of a criminal offence to remain silent when questioned by any person in authority about the occurrence of an offence,[66] and attached some significance to the principle of legality.[67] The emphasis placed by Gageler and Keane JJ on the apparent availability of ancillary measures under the control of the Court to avoid an interference with the administration of justice[68] meant that, when the failure of those measures was revealed in Lee No 2, the principles to which they had subscribed mandated the result. Moreover, given that Lee No 2 is the latest decision of the High Court in point, and a unanimous decision of five members of the Court including French CJ, Crennan and Keane JJ, we consider that we are bound to follow and apply it as best we can.

55 Where, therefore, a question arises as to whether a statutory provision abrogates the right of an accused to require the Crown to prove its case without the accused's assistance, but the provision fails to state with sufficient clarity or necessarily to imply that it does abrogate the right, we take it that the court is bound to proceed on the basis that the right has not been abrogated and to do what the court can to protect it.

56 As has been seen, in Lee No 2 the statute abrogated the privilege against self-incrimination by abolishing the right to refuse to answer incriminating questions but provided in lieu for the protection of a non-publication order. Since the abrogation was in that sense only partial, the court remained bound to do what it could to give effect to the privilege to the extent that the privilege remained. Inasmuch as the non-publication order had been breached, the most that the court could do to give effect to the order, and so preserve the privilege to the extent dictated by the statute, was to deprive the Crown of the benefits of the breach. And, since the court had no power to create exceptions to the privilege which were not ordained by statute, the court was bound to deprive the Crown of the benefits of the breach.

57 In this case, the question is whether s 319 of the POC Act abrogates the privilege against self-incrimination to the extent of taking away the right of the accused to require the Crown to prove its case without the accused's assistance. Ex facie, the section is not inconsistent with it having that effect. As Jo shows, however, and in our view Lee No 2 now tends to confirm, the section is not sufficiently clear in terms or as a matter of necessary implication to compel that conclusion. There is work for the section to do in cases where its application would not result in abrogation of the right of an accused to require the Crown to prove its case without the accused's assistance; as, for example, where the subject matter of forfeiture proceedings is different to the subject matter of criminal proceedings or perhaps where the subject matter is severable and there are severable parts of the forfeiture proceedings which may be explored without trenching upon the accused's right to require the Crown to prove its case without the accused's assistance.

58 If so, it follows from the logic of Lee No 2 that the court is bound to do what it can to protect the accused's right to require the Crown to prove its case without the accused's assistance. And, if the facts are such that the only way in which that can be achieved is by staying forfeiture proceedings until after the related criminal proceedings have been heard and determined, the court is bound to adopt that course.

59 The applicants in this case, or at least Jin, is in a more certain position than was the applicant for stay in Jo. In contrast to Jo, Jin has been charged, there has been a contested committal hearing and the date for trial of the criminal charges has been fixed. Consequently, Jin has a fair idea of what the Crown will allege and seek to prove, and a fair idea from the brief of evidence of the evidence which the Crown may adduce. Thus, as Jin deposed in effect in the passages of his affidavit earlier referred to, there is not only a prima face significant overlap between the subject matter of the charges and the matters to which he would need or wish to depose in the forfeiture proceedings but importantly he could not defend the forfeiture proceedings without telegraphing his likely defence of the criminal proceedings.

60 It follows that, if the forfeiture proceedings were to precede the criminal proceedings, the Crown would be informed in advance of trial of Jin's likely defence to the criminal charges. As has been explained, we take Lee No 2 to imply that, were that to occur, the criminal charges would be altered in a fundamental respect contrary to Jin's privilege against self-incrimination. Since that is not expressly or by necessary implication provided for by statute, the court must do what it can to prevent it.

61 Counsel for the Commissioner submitted that, even if that be so, it is apparent from Lee No 2 that such rights as Jin may have to defend in the forfeiture proceedings without informing the Crown of his likely defence to the criminal charges can be achieved by a non-publication order in relation to Jin's evidence in the forfeiture proceedings. In our view, that is not so. There is a difference between Lee No 2 and this case which means that in this case a non-publication order would not suffice .

62 In Lee No 2, the court was precluded from granting a stay because, as had been established in Lee No 1, the CAR Act abrogated the privilege against self-incrimination to the extent of requiring the applicant to answer questions in the compulsory examination notwithstanding that he faced the prospect of a later trial on related criminal charges. In those circumstances, the best the court could do to protect the applicant's privilege against self-incrimination (to the extent that it had not been abrogated by statute) was to order that his evidence before the Commission not be disclosed to the Crown. In contrast here, and by distinction with the circumstances of the case in Lee No 1, according to our construction of s 319 of the POC Act, there is no abrogation of so much of Jin's privilege against self-incrimination as consists of his right to insist upon the Crown proving its case without his assistance and, therefore, no statutory warrant to detract from that part of the privilege by allowing the forfeiture proceedings to precede the trial of the criminal charges.

63 Subject to a possible exception to which we shall come, in this case the best the court can do to prevent abrogation of the privilege any further than it has been abrogated by statute is to stay the forfeiture proceedings until the hearing and determination of the criminal charges.

64 Counsel for the Commissioner submitted that it was apparent from comparison of the way in which the Commissioner puts his case in the forfeiture proceedings with the terms of the criminal charges and the evidence to be offered by the Crown at the trial of those charges, that there are significant aspects of the forfeiture proceedings which do not overlap the criminal charges. He contended that, to that extent, there is no basis for stay of the forfeiture proceedings.

65 The difficulty with that, however, is that, at least until and unless the Crown files its summary of prosecution opening in accordance with s 182 of the Criminal Procedure Act 2009, neither the applicants nor the court can be sure of the way in which the Crown intends to put its case at trial, or be confident therefore that there are aspects of the forfeiture proceedings which plainly do not overlap the criminal charges. If, as Lee No 2 appears to dictate, an accused's right to require to the Crown to prove its case without the accused's assistance is a constituent of the accused's privilege against self-incrimination, which cannot be abrogated otherwise than by statute, the court should be hesitant to make any order which could prejudice that right until it becomes clear that the risk of prejudice is unfounded.

66 In the result, we shall allow the application for leave to appeal and treat the appeal as instituted and heard instanter. We shall allow the appeal and set aside the judgment below. In lieu thereof, we shall stay the forfeiture proceedings until the hearing and determination of the criminal proceedings or further order, while at the same time reserving to the Commissioner liberty to apply to have the stay revoked or varied at any reasonable time before the trial of the criminal charges on the basis of such if any new material as may establish that there is no risk of abrogation.

67 Finally, having determined that this is the appropriate course to take with respect to Jin's matters, in the interests of avoiding a multiplicity of proceedings, we propose to make the same orders in respect of Zhao's matters and, although Jaks is not a party, also in Jaks' matters.[69]

[2] [2013] HCA 39; (2013) 302 ALR 363 ('Lee No 1').

[6] See POC Act, s 39(c), (d), and (da) respectively.

[7] Section 266A also applies if a person obtains information as a result of the exercise of a power or function under compulsory examinations, production orders, notices to financial institutions, monitoring orders or search warrants.

[8] Cornwell v The Queen [2007] HCA 12; (2007) 231 CLR 260, 271[31].

[11] [2013] HCA 39; (2013) 302 ALR 363.

[13] (1982) 7 ACLR 202, 206-7 (citations omitted).

[15] [2008] VSC 473; (2008) 21 VR 252, 263 [30].

[16] (1992) 8 ACSR 272.

[17] (1982) 7 ACLR 202.

[19] [2006] NSWCA 338.

[20] [1995] HCA 40; (1995) 184 CLR 1.

[21] [2000] FCA 1339; (2000) 104 FCR 359.

[22] [1995] HCA 40; (1995) 184 CLR 1.

[23] (1982) 7 ACLR 202.

[24] Baker v Commissioner of Federal Police [2000] FCA 1339; (2000) 104 FCR 359, 366 [34].

[26] [1995] HCA 40; (1995) 184 CLR 1.

[27] [2004] FCA 586, [16]-[19].

[29] [2005] FCA 139; (2005) 220 ALR 535, 541.

[30] [1995] HCA 40; (1995) 184 CLR 1.

[33] (1992) 8 ACSR 272, 274-5.

[34] Cf Attorney General for New South Wales v John Fairfax & Sons Ltd (1985) 1 NSWLR 402, 405 (CA); Border Morning Mail Pty Ltd v Hansen (25 November 1987, CA(NSW), unreported); (1987) NSWJB 229; R v Hargreaves; Ex parte Dill [1954] Crim LR 54 (DC); Hinch v Attorney General [1987] VicRp 62; [1987] VR 721, 727 (FCV).

[35] Cf Lam Chi Ming v R [1991] 2 AC 212, 222 (PC); R v Director of the Serious Fraud Office; Ex parte Smith (16 June 1992, House of Lords, unreported)Times Law Report. (My emphasis).

[36] Cf Baker v Campbell (1983) 153 CLR 52 Corporate Affairs Commission of New South Wales v Yuill [1991] HCA 28; (1991) 172 CLR 319 ; 4 ACSR 624.

[37] See Adelaide Company of Jehovah's Witnesses Inc v Commonwealth (1943) CLR 116, 124.

[38] [2000] FCA 1339; (2000) 104 FCR 359.

[39] [2013] HCA 29; (2013) 248 CLR 92.

[40] Hayne, Kiefel and Bell JJ, French CJ and Crennan J dissenting.

[43] [2007] QCA 251; (2007) 176 A Crim R 17 ('Jo').

[44] [2003] QSC 436.

[45] Unreported, Supreme Court of Queensland, Muir J, 22 June 2006.

[46] [2007] QCA 251; (2007) 176 A Crim R 17, 22-24 [17]-[19].

[47] [2009] NSWCA 347.

[48] [2007] QCA 251; (2007) 176 A Crim R 17, 24 [22].

[49] Australian Securities Commission v Marlborough Gold Mines Ltd [1993] HCA 15; (1993) 177 CLR 485, 492 (Mason CJ, Brennan, Dawson, Toohey and Gaudron JJ); R v Roussety [2008] VSCA 259; (2008) 24 VR 253, 284 [81] (Weinberg JA).

[50] [2013] HCA 39; (2013) 302 ALR 363, 372 [14].

[54] Ibid [323]-[324] (citations omitted).

[55] Ibid [338]-[340]; compare the reasoning of Kieffel J (with whom Hayne and Bell JJ agreed) in diss, at [209], [212]-[213] (Kiefel J), and see at [58] (Hayne J) and [255] (Bell J).

[56] See, for example, sections 5, 14, 19, 49 and 51.

[58] [2014] HCA 20; (2014) 308 ALR 252 ('Lee No 2').

[59] French CJ, Crennan, Kiefel, Bell and Keane JJ.

[60] (2014) ALR 252, 264 [51].

[63] Ibid 263 [46], 264 [49] and 264 [51].

[65] Lee No 1 [2013] HCA 39; (2013) 302 ALR 363, 376 [20] (French CJ), 404 [125] (Crennan J).

[66] Ibid 454 [318] (Gageler and Keane JJ).

[67] Ibid 380 [29] (French CJ), 404 [126] (Crennan J), 449-452 [307]-[314] (Gageler and Keane JJ).

[69] Supreme Court Act 1986, s 29.