The Commissioner of the Australian Federal Police v He

Yongjie Wei (5th defendant), Quan Lin (7th defendant)

1. In Mr McLenaghan's affidavit of 5 October 2021 he deposed that Mr Yongjie Wei (5th defendant) arrived in Australia from the PRC on 7 August 2019 on a student visa and that on 20 December 2020 YJ Building Pty Ltd (6th defendant) was incorporated and Mr Yongjie Wei became its sole director and shareholder. Mr McLenaghan deposed to his suspicion that Mr Yongjie Wei was paid commission by Mr Yanguo Sun (2nd defendant) to receive deposits into bank accounts in the name of YJ Building Pty Ltd, later to withdraw the funds in cash and to deliver the cash to Ms Wenfang He (1st defendant) and Mr Yanguo Sun. Bank records identified and relied upon by Mr McLenaghan record withdrawals from the accounts of YJ Building Pty Ltd totalling $1.798 million between 24 December 2020 and 4 May 2021. Mr McLenaghan's examination of Australian Tax Office ("ATO") records showed that neither Mr Yongjie Wei (5th defendant) nor his company YJ Building Pty Ltd had returned any income from any source for the financial years ended 30 June 2020 or 2021 ("FY20" and "FY21").
2. Mr McLenaghan further deposed that Mr Quan Lin (7th defendant) arrived in Australia from the PRC on 29 July 2019 on a student visa and that on 29 December 2019 QL Building Pty Ltd (8th defendant) was incorporated and Mr Quan Lin became sole director and shareholder. Mr McLenaghan deposed to his suspicion that Mr Quan Lin was paid commission by Mr Yanguo Sun to receive deposits into bank accounts in the name of QL Building Pty Ltd, later to withdraw the funds in cash and to deliver the cash to Ms Wenfang He and Mr Yanguo Sun. Bank records identified and relied upon by Mr McLenaghan record withdrawals from the accounts of QL Building Pty Ltd totalling $8.624 million between 24 January 2020 and 4 May 2021. Mr McLenaghan's examination of ATO records showed that neither Mr Quan Lin nor his company QL Building Pty Ltd had returned any income from any source for FY20 or FY21.
3. Mr McLenaghan deposed to the immigration status of Mr Yongjie Wei and Mr Quan Lin on the basis of Commonwealth records. In addition to the records-based information concerning those two defendants and their companies, Mr McLenaghan deposed to observations that were made by officers who carried out surveillance of Mr Yongjie Wei in February and March 2021 when he withdrew substantial sums in cash from bank accounts in the name of his company YJ Building Pty Ltd and delivered them to 1 Harry Avenue Leichhardt: $20,000 on 25 February 2021, $30,000 on 8 March 2021 and $20,000 on 10 March 2021.
4. Mr McLenaghan deposed to surveillance, by others, of Mr Yongjie Wei on 4 May 2021 when he withdrew cash sums of $30,000, $40,000 and $50,000 from three separate banks at Chatswood, over the space of 50 minutes in the middle of the day, and transported the cash to 1 Harry Avenue. Mr Quan Lin accompanied Mr Yongjie Wei for the last part of his journey to 1 Harry Avenue, where they were both arrested, together with Ms Wenfang He (1st defendant). AFP officers executed a search warrant at that address at that time and seized $109,770 in cash that was found in various locations around the house.

Wenfang He (1st defendant), Yanguo Sun (2nd defendant)

1. Mr McLenaghan relied upon an analysis made by an AFP forensic accountant of the bank accounts of Ms Wenfang He (1st defendant) and Mr Yanguo Sun (2nd defendant) for the seven financial years FY14-FY20, inclusive. He also examined ATO records of the income tax returns lodged by Ms Wenfang He for each of FY16-FY20 and returns lodged by Mr Yanguo Sun for FY14-FY20. The figures presented in his affidavit from these sources may be considered in table form as follows (cents have been ignored, with the result that the addition figures do not precisely reconcile): FY Combined bank credits $ Combined returned income $ 14 49,447 20,456 15 1,217,967 25,102 16 195,472 53,053 17 376,849 52,968 18 347,717 56,164 19 300,193 77,728 20 730.057 56,628 Total 3,217,705 342,099 Average 459,672 48,871

1. Ms Wenfang He specified her main business activity on only two of the five tax returns lodged by her, nominating "other food product manufacturer" in FY16 and "domestic appliance repair and maintenance" in FY20. Mr Yanguo Sun listed his business activity as "construction worker" on each of his returns.
2. Mr McLenaghan exhibited to his affidavit documents obtained from New South Wales Land Registry Services showing that on 27 April 2018 Ms Wenfang He and Mr Yanguo Sun jointly purchased the property at 1 Harry Avenue Leichhardt for $1,840,000, mortgaging it for $1.1 million. The mortgage was discharged and the property sold and transferred, for $2.1 million, on 7 July 2021. Observations at the time of executing search warrant at the address on 4 May 2021 showed that the house was then occupied by Ms Wenfang He, Mr Yanguo Sun and Ms Haiyan Xu.
3. New South Wales Land Registry Services documents exhibited by Mr McLenaghan also show that on 15 November 2011 Ms Wenfang He and Mr Yanguo Sun jointly purchased, for $780,000, the property at 17 Platform Street, Lidcombe that is described in Schedule 4 to Hamill J's orders and that has been placed in the custody and control of the Official Trustee, pursuant to order 31.

Mr Wenqing Sun (3rd defendant), Ms Haiyan Xu (4th defendant)

1. Mr McLenaghan deposed that Mr Wenqing Sun is the son of Ms Wenfang He and Mr Yanguo Sun and that Ms Haiyan Xu was Mr Wenqing Sun's wife, at least at the date of the application to Hamill J. Mr McLenaghan relied upon an analysis made by an AFP forensic accountant of the bank accounts of Mr Wenqing Sun (3rd defendant) and Ms Haiyan Xu (4th defendant) for the seven financial years FY14-FY20, inclusive. He also examined ATO records of the income tax returns lodged by Mr Wenqing Sun for each of those years and returns lodged by Ms Haiyan Xu for FY16-FY20. Mr McLenaghan's figures from these sources summarised in the following table (cents ignored): FY Combined bank credits $ Combined returned income $ 14 823,530 29,593 15 981,141 19,182 16 234,403 18,754 17 398,724 59,212 18 1,874,580 45,207 19 523,240 24,925 20 2,271,986 22,132 Total 7,107,607 219,005 Average 1,015,372 31,286

1. Gambling records from The Star Casino, obtained by Mr McLenaghan and exhibited to his affidavit, show that over a 28 month period from 4 April 2018 to 27 August 2020, Mr Wenqing Sun made a net loss on gaming at the casino of $1,126,455.
2. Mr McLenaghan exhibited to his affidavit documents obtained from New South Wales Land Registry Services showing that on 17 January 2015 Mr Wenqing Sun purchased the property at 3 Harry Avenue Leichhardt for $1,175,000. The property has at all times been mortgaged. The amount of the mortgage debt is not apparent from the documents exhibited by Mr McLenaghan.
3. Further documents exhibited by Mr McLenaghan, from Australian Capital Territory title records, show that the property at 101/77 Gozzard Street, Gungahlin which is the subject of order 27 and Schedule 3, was transferred on 25 October 2015 for $339,950, apparently to Mr Wenqing Sun. The property is subject to a mortgage that secures a debt of $335,690.

Suspected offences and suspected proceeds of crime

1. In support of the application for orders pursuant to s 18 of the Proceeds of Crime Act it was necessary for Mr McLenaghan to depose to a suspicion that "the suspect committed" a "serious offence". "Suspect" and "serious offence" are defined in s 338. "Serious offence" includes an indictable offence punishable by imprisonment for 3 or more years, against a provision of Pt 10.2 of the Criminal Code (Cth). Mr McLenaghan deposed to his suspicion that each of the defendants had committed an offence against s 400.9(1) of the Criminal Code, which is within Pt 10.2.
2. Relevant parts of s 400.9, for present purposes, are as follows: 400.9 Dealing with property reasonably suspected of being proceeds of crime etc. (1AA) A person commits an offence if: (a) the person deals with money or other property; and (b) it is reasonable to suspect that the money or property is proceeds of indictable crime; and (c) at the time of the dealing, the value of the money and other property is $10,000,000 or more. Penalty: Imprisonment for 5 years, or 300 penalty units, or both. (1AB) A person commits an offence if: (a) the person deals with money or other property; and (b) it is reasonable to suspect that the money or property is proceeds of indictable crime; and (c) at the time of the dealing, the value of the money and other property is $1,000,000 or more. Penalty: Imprisonment for 4 years, or 240 penalty units, or both. (1) A person commits an offence if: (a) the person deals with money or other property; and (b) it is reasonable to suspect that the money or property is proceeds of indictable crime; and (c) at the time of the dealing, the value of the money and other property is $100,000 or more. Penalty: Imprisonment for 3 years, or 180 penalty units, or both. […] (2) For the purposes of this section, it is taken to be reasonable to suspect that money or other property is proceeds of indictable crime if: (a) the conduct constituting the offence involves a number of transactions that are structured or arranged to avoid the reporting requirements of the Financial Transaction Reports Act 1988 that would otherwise apply to the transactions; or […] (c) the value of the money and property involved in the conduct is, in the opinion of the trier of fact, grossly out of proportion to the defendant's income and expenditure over a reasonable period within which the conduct occurs; or (d) the conduct involves a significant cash transaction within the meaning of the Financial Transaction Reports Act 1988, and the defendant: (i) has contravened his or her obligations under that Act relating to reporting the transaction; or (ii) has given false or misleading information in purported compliance with those obligations; or […] (4) Absolute liability applies to paragraphs (1AA)(b) and (c), (1AB)(b) and (c), (1)(b) and (c) […]. (5) This section does not apply if the defendant proves that he or she had no reasonable grounds for suspecting that the money or property was derived or realised, directly or indirectly, from some form of unlawful activity. Note: A defendant bears a legal burden in relation to the matter in subsection (5) (see section 13.4).
3. The Court was required to make the restraining orders against the defendants pursuant to s 18 if satisfied that there were reasonable grounds to suspect that each of them had committed an offence against s 400.9(1) and if satisfied that Mr McLenaghan held his suspicions in that regard on reasonable grounds - both of which requirements amount to substantially the same thing. The aspects of Mr McLenaghan's affidavit and exhibits summarised at [6]-[17] above were ample to satisfy the Court as to there being "reasonable grounds".
4. In support of the application for orders pursuant to s 19 of the Proceeds of Crime Act Mr McLenaghan was required to depose to a suspicion that the property sought to be restrained is proceeds of, inter-alia, any indictable offence, or is an instrument of such offence. "Proceeds" and "instrument" are defined in ss 329 and 330 of the Act. "Proceeds" of an offence is property that is partly or wholly derived or realised, directly or indirectly, from the commission of the offence and "instrument" is property that is used or intended to be used in or in connection with the commission of an offence.
5. Mr McLenaghan deposed to his suspicion that the sum of $109,770 seized on 4 May 2021 (order 25, Schedule 1), the property at 3 Harry Avenue, Lidcombe (order 26, Schedule 2), and the property at 101/77 Gozzard Street, Gungahlin (order 26, Schedule 3) are proceeds and/or instruments of the suspected offences against s 400.9(1) of the Criminal Code. Similarly to the requirements of s 19, the Court was required to be satisfied of the existence of reasonable grounds to suspect that these items of property were proceeds of an indictable offence and that Mr McLenaghan's suspicion in that regard was formed upon reasonable grounds. Those requirements, also, were amply fulfilled by the matters summarised from Mr McLenaghan's affidavit at [6]-[17] above.

The AFP interviews with Ms Haiyan Xu and Mr Quan Lin

1. When the search warrant was executed at 1 Harry Avenue Leichardt on 4 April 2021, as referred to at [9] above, Ms Haiyan Xu was present. Commencing at 5:00pm she was interviewed by a Federal Agent and an investigator from the Australian Border Force ("ABF"), with the assistance of an interpreter. At the commencement of the interview Ms Haiyan Xu was informed that questions would be asked of her about $40,000 in cash that was located under the bottom drawer of a bathroom cabinet at the address. It appeared that Ms Haiyan Xu resided there and use the bathroom. A caution was given in the usual terms that Ms Haiyan Xu was not required to answer questions and that anything she said may be used in evidence.
2. The following provisions of the Crimes Act 1914 are relevant to the questioning that followed. For the purposes of these provisions, Ms Haiyan Xu was a "protected suspect" as defined in s 23B(2): 23G Right to communicate with friend, relative and legal practitioner (1) Subject to section 23L, if a person is under arrest or a protected suspect, an investigating official must, before starting to question the person, inform the person that he or she may: (a) communicate, or attempt to communicate, with a friend or relative to inform that person of his or her whereabouts; and (b) communicate, or attempt to communicate, with a legal practitioner of the person's choice and arrange, or attempt to arrange, for a legal practitioner of the person's choice to be present during the questioning; and the investigating official must defer the questioning for a reasonable time to allow the person to make, or attempt to make, the communication and, if the person has arranged for a legal practitioner to be present, to allow the legal practitioner to attend the questioning. (2) Subject to section 23L, if a person is under arrest or a protected suspect and wishes to communicate with a friend, relative or legal practitioner, the investigating official must: (a) as soon as practicable, give the person reasonable facilities to enable the person to do so; and (b) in the case of a communication with a legal practitioner - allow the legal practitioner or a clerk of the legal practitioner to communicate with the person in circumstances in which, as far as practicable, the communication will not be overheard. (3) Subject to section 23L, if a person is under arrest or a protected suspect and arranges for a legal practitioner to be present during the questioning, the investigating official must: (a) allow the person to consult with the legal practitioner in private and provide reasonable facilities for that consultation; and (b) allow the legal practitioner to be present during the questioning and to give advice to the person, but only while the legal practitioner does not unreasonably interfere with the questioning. 23P Right of non‑Australian nationals to communicate with consular office (1) Subject to section 23L, if a person who is under arrest or a protected suspect is not an Australian citizen, an investigating official must, as soon as practicable: (a) inform the person that if he or she requests that the consular office of: (i) the country of which he or she is a citizen; or (ii) the country to which he or she claims a special connection; be notified that he or she is under arrest or a protected suspect (as the case requires), that consular office will be notified accordingly; and (b) if the person so requests - notify that consular office accordingly; and (c) inform the person that he or she may communicate with, or attempt to communicate with, that consular office; and (d) give the person reasonable facilities to do so; and (e) forward any written communication from the person to that consular office; and (f) allow the person a reasonable time to, or to attempt to, communicate with that consular office. (2) Without limiting subsection (1), an investigating official must not start to question the person unless paragraphs (1)(c), (d) and (f) have been complied with.
3. Section 23L creates exceptions that do not appear to have been engaged by the circumstances of questioning of either Ms Haiyan Xu or Mr Quan Lin. The AFP agent informed Ms Haiyan Xu that she could communicate with a friend or relative to notify such person of her whereabouts (s 23G(1)(a) of the Crimes Act 1914). She said, "No need". She was informed of her right to communicate with and engage a lawyer (s 23G(1)(b)). Ms Haiyan Xu responded by saying, "I don't have a lawyer now" and she then asked if she could "contact a lawyer later and get a lawyer to speak to you". She was told that she could do that. Ms Haiyan Xu told the investigators that she was a citizen of China and the AFP agent informed her that she could communicate with a consular official from that country (s 23P). She asked, "Why do I have to?" And when she was told, "If you don't want to it's no problem at all" she simply said, "Okay" and proceeded to answer questions
4. All of the above appeared in the transcript of the interview that was exhibited to Mr McLenaghan's affidavit. It was not expressly drawn to Hamill J's attention, either in the affidavit or in the oral submissions in support of the ex parte application, that the above circumstances may have given rise to an issue concerning compliance with the applicable provisions of the Crimes Act 1914, although the interview was described in the affidavit as "induced". Having regard to Ms Haiyan Xu's express dispensation with the exercise of her right to make contact with third parties under ss 23G and 23P, I could not be satisfied that the interview was improperly or unlawfully in the absence of evidence from her. I have no basis for doubting that she understood the rights explained to her and the effect of waiving them.
5. Mr McLenaghan deposed to a summary of the content of Ms Haiyan Xu's interview. The summary accurately captured the substance of what she had said. The relevant paragraph of the affidavit is as follows: 63 During the execution of the Harry Ave Warrant, Ms Haiyan voluntarily participated in an induced interview in the presence of Federal Agent Joshua Simpson and ABF Investigator Amanda Pertovt. At Tab 34 of Exhibit NM-1 is a copy of a transcript of the recording of the interview. Based on my review of the transcript, I believe that Ms Haiyan stated that: a) Ms Haiyan has been residing at 1 Harry Avenue for about 2 years; b) Ms Haiyan works as a sales person for Nu Skin; c) The $40,000 located during the Harry Ave Warrant underneath the bottom draw in the bathroom cabinet in the ensuite in her bedroom is her cash. She asserted that the funds were derived partly from money that her mother sent her from China and partly from money she borrowed from friends; d) Mr Wenqing is her husband and, because he has a gambling problem, she withdrew the $40,000 from their joint account and hid it cash; e) Ms Haiyan's mum sends her money from China; and f) Ms Haiyan had not spoken to or seen her husband since Christmas.
6. Also at 1 Harry Avenue Leichardt on 4 May 2021 Mr Quan Lin was interviewed by two Federal Agents, assisted by an interpreter. Mr Quan Lin was a "protected suspect" as defined in s 23B(2). He was cautioned and then informed of his right to contact a lawyer (s 23G(1)(b)). That resulted in the following exchange: Quan Lin Can you find a lawyer for me since I don't know much about the Australian law? Fed Agent Yep. So we will organise a lawyer, I mean straight - I will go upstairs and on the computer will look for a lawyer for you. I'll offer you a number of lawyers. […] And - and you can choose out of that list who you want to contact. So are you happy with that? Quan Lin Okay Fed Agent So meanwhile we'll continue with this, okay? I will continue asking you a few more questions until we've finished all that, and then we will go and find a lawyer. Quan Lin Okay
7. The questioner then informed Mr Quan Lin of his right to contact a family member (s 23G(1)(a)), which he said he wished to exercise. He referred to some numbers stored on his phone and said that they were the people whom wished to contact. The Federal Agent said that before he would be permitted to contact any of those persons it would be necessary for police to "check who that number actually belongs to … to prevent the destruction of evidence". Refusal of permission to make contact on that ground would have been permissible, pursuant to s 23L, for so long as the officer reasonably believed that such contact might compromise the investigation. However, it is not apparent that any inquiry was made by police in that regard.
8. Mr Quan Lin was told of his right to contact a Chinese a consular official (s 23P), to which he responded: If I contact the consulate does that mean I - it is confirmed that I committed a crime? The Federal Agent did not respond to the question in terms but said that whether such contact was made was a matter for Mr Quan Lin. He said: Let me think about it. If I want to I will let you know.
9. The questioning then proceeded without any further delay and without any endeavour to facilitate Mr Quan Lin making contact with a lawyer or to vet the phone numbers of people that Mr Quan Lin said he wanted to contact as friends or relatives.
10. As with the interview of Ms Haiyan Xu, the above circumstances were apparent on the transcript that was exhibited to Mr McLenaghan's affidavit but the affidavit did not refer specifically to those circumstances and nor were the circumstances otherwise brought to the attention of Hamill J. This interview was also described in the affidavit as "induced". Mr McLenaghan deposed to a summary of Mr Quan Lin's interview in the following paragraph, which captures the substance of what he told the investigators: 40 On 4 May 2021, Mr Lin voluntarily participated in an induced interview in the presence of Federal Agent Narges Ammarzadeh and Federal Agent Martin. At Tab 15 of Exhibit NM-1 is a copy of a transcript of the recording of the induced interview. Based on my review of this transcript, I believe that Mr Lin asserted the following: a) At approximately 11:30am on 4 May 2021, Mr Lin withdrew $50,000 cash from his business account in the name of QL Business at the CBA in Eastwood; b) Mr Lin then travelled by car with the cash to Lidcombe where he got arrested; c) The lady at the house earlier that day was the boss' wife. Based on my attendance at the Harry Ave Warrant, I believe that this is a reference to Mrs Wenfang; d) Mr Lin also withdrew $50,000 in cash the week prior from the business account and took it to Lidcombe. This is the most he can withdraw at one time; e) Mr Lin doesn't know who sends him the money, but Mr Lin's boss, who Mr Lin knows as 'Uncle Five', tells him to withdraw the money; f) When Mr Lin withdraws money, he always takes it to 1 Harry Avenue, being a house owned by his boss; g) When the money is taken to 1 Harry Avenue, one of the family members - usually the boss' wife because the boss is at work - collects it; h) Mr Lin does not know the source of the funds but thinks it is from tax evasion as he was told the funds were to pay wages; i) Since Christmas time, Mr Lin has withdrawn funds approximately 15 times and each time takes the funds to 1 Harry Avenue; j) Mr Lin gets paid a commission of 0.15% on how much he withdraws. For example, if Lin withdraws $10,000, he would get a commission of $150; k) The amount of money Mr Lin withdrew on each occasion ranged from several thousand to several tens of thousands of dollars. Mr Lin estimates that has withdrawn a few hundred thousand dollars in cash l) Mr Lin works on construction sites and at factories; and m) Mr Lin is paid in cash and earns on average $4,000 per month or $220 per day.

The defendants' submissions

1. The defendants submit that the evidence comprised in the interviews with each of Ms Haiyan Xu and Mr Quan Lin was illegally and improperly obtained because the questioning of each of them proceeded in breach of ss 23G and 23P of the Crimes Act 1914. I do not consider that there was any breach of either section in relation to the questioning of Ms Haiyan Xu. She expressly saw "no need" to contact a relative or friend, she was content to speak with a lawyer "later" and have that lawyer contact the police and she expressed no wish to contact a Chinese consular official when she was told that she could do so but was not obliged to. On the other hand, the questioning of Mr Quan Lin proceeded in breach of s 23G, both with respect to his desire to contact a relative or friend and his expressed wish to engage lawyer. There was no breach of s 23P in relation to Mr Quan Lin.
2. The defendants submitted the following in writing: Mr McLenaghan's suspicions were based in part, but not exclusively, upon [the] records of interview […]. Hamill J [in his reasons for making the orders] referred to this part of the affidavit as "the summary of the contents of induced interviews with some of the people either involved or suspected of being involved" in the suspected criminality The [plaintiff] placed reliance upon the evidence of the tainted records of interview in support of the orders made by Hamill J. That reliance tolerated improper interview techniques which fail to comply with Australian law. The evidence was material to the exercise of the Courts power conferred by the Proceeds of Crime Act. It is not necessary for [the defendants] to demonstrate that the orders would not otherwise have been made. [The] ex parte restraining order should be revoked [where] part of the evidence relied upon by the [plaintiff] in support of the restraining and ancillary orders had been illegally and improperly obtained, and this fact does not appear to have been brought to the attention of the Duty Judge when the application was made. It is not in the interests of the administration of justice for the AFP to conduct its investigation in breach of important rights of the individual, to use that evidence as part of its case in obtaining ex parte orders affecting an individual's property, and not expressly direct the Court's attention to such matters in obtaining those orders. It is in the interests of justice to revoke the restraining orders in the circumstances of the present case.
3. The defendant conceded that without the interviews there were sufficient materials before Hamill J to substantiate reasonable grounds for the relevant suspicions and, hence, to sustain the orders. It was submitted that the terms of par (a) of s 42(5) support an interpretation of par (b) whereby the interests of justice may require that an ex parte order be set aside despite there being sufficient evidence to support the order as at date of hearing the revocation application.
4. In oral submissions the defendants argued that it is "a problem for the administration of justice" that the Commissioner of the Australian Federal Police should rely, in part, on evidence that was improperly obtained in support of an ex parte application and that the "problem" is "compounded" by the failure to disclose to the judge the impropriety or illegality. It was submitted that: the Court making orders without knowing that there was any issue about [the legality of the conduct of the interviews] was, in effect, condoning, was conscripted into accepting those processes and that is what we say impinged on the integrity of the administration of justice.
5. The defendants cited Director of Public Prosecutions (Cth) v Kamal [2011] WASCA 55 at [4] and Saad v Commissioner of the Australian Federal Police [2021] VSCA 246 [146] for the proposition that the expression "in the interests of justice" in s 42(5)(b) is "of wide import" and "sufficient to empower a court to revoke a restraining order because of the DPP's failure to comply with the obligation of full disclosure". The defendant drew from Director of Public Prosecutions (Cth) v Kamal at [111], [131] and [251]-[252] and from Saad v Commissioner of the Australian Federal Police at [148]-[149] the proposition that s 42(5) is the sole source of power to review an ex parte order made under the Act, to the exclusion of the established procedural rule that a court will set aside an ex parte order upon discovering that full disclosure was not made in the application, but with analogies to the way that rule is implemented under the general law.
6. The defendant submitted that s 42(5)(b) would justify setting aside an ex parte order if the circumstances of it having been obtained would bring the administration of justice into disrepute. It was submitted that that may occur even though the relevant infringement of the law that is identified by the party claiming revocation may have been inadvertent. Reference was made to Strickland v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325; [2018] HCA 53. In that case the content of compulsory examinations conducted pursuant to s 24A of the Australian Crime Commission Act 2002 (Cth) was distributed to investigating police and to the Director of Public Prosecutions, contrary to a direction made by the examiner under s 25A(9). The examinees were subsequently charged with offences to which their compulsory questioning related.
7. At [99]-[100] Kiefel CJ, Bell and Nettle JJ said this: [99] [Although] in previous cases regarding unlawful examination and dissemination of examination product the courts' concerns regarding the administration of justice falling into disrepute have focussed on deliberate or advertent reckless disregard of legal requirements, nothing in previous authority suggests or should be taken to imply that abjectly insouciant, wide-ranging disregard of the requirements of the [Australian Crime Commission Act] of the kind that occurred in the present cases may not also bring the administration of justice into disrepute. […] As Kirby J aptly summarised the position in Truong v The Queen (2004) 223 CLR 122; [2004] HCA 10 at [135]: "relief is not confined to cases of deliberate and knowing misconduct, although that may be sufficient to enliven the jurisdiction. It extends to serious cases where, whatever the initial motivation or purpose of the offending party, and whether deliberate, reckless or seriously negligent, the result is one which the courts, exercising the judicial power, cannot tolerate or be part of." [100] No doubt, society and therefore the law ordinarily looks more askance on instances of deliberate or advertent reckless disregard of a duty or obligation than upon the accidents of incompetence. As a rule, the former are conceived of as entailing greater moral culpability and for that reason their condonation is conceived of as more likely to bring the administration of justice into disrepute. But ultimately it is a question of degree which substantially depends upon the nature of the duty or obligation. If a duty or obligation is of no more than peripheral significance, condonation of its breach, even of an intentional breach, may appear justified in the interests of relatively more pressing considerations of justice. The power to stay proceedings is not available to cure venial irregularities [citation omitted]. But if, as here, the duty or obligation is of a kind that goes to the very root of the administration of justice [citation omitted], condonation of its breach will bring the administration of justice into disrepute regardless of the culprit's mentality. Ultimately, these appeals turn on that distinction.
8. In the present case the following was submitted: [The] Court is, in effect, although not knowingly, condoning on an ex parte application the unlawful [collection] of evidence in, we say, breach of duty. The officers who took that interview have not put on affidavits in this application and the Court can't be used to merely rubberstamp such a process, and the way to enforce the duty where it brings the administration of justice into disrepute under this legislative regime is to revoke the orders.

The plaintiff's submissions

1. The plaintiff submitted, in writing and orally, first, that on the application to Hamill J the plaintiff did not have to prove and did not endeavour to prove against any of the 19 defendants any fact concerning dealings in money that might have been provable by the answers given by Ms Haiyan Xu and Mr Quan Lin under questioning. The plaintiff submitted that on that application he was only required to demonstrate that the suspicions stipulated in ss 18 and 19 were held by Mr McLenaghan on reasonable grounds. Proof of reasonable grounds required identification of the materials to which Mr McLenaghan had regard but it did not require proof of any fact underlying his suspicions.
2. In support of that analysis, the plaintiff relied upon Saad v Commissioner of the Australian Federal Police, wherein it was sought to revoke restraining orders made under the Proceeds of Crime Act on the ground that key parts of the affidavits that had been read in support of the original application in that case had introduced hearsay. It was argued that the hearsay was inadmissible on the interlocutory application because the source of it was not disclosed. Sections 59 and 75 of the Evidence Act 2008 (Vic) were relied upon. Walker JA (Beach and Sifris JJA agreeing) concluded as follows: 7 Section 75 of the Evidence Act does not have a role to play in determining whether an affidavit filed in support of an application for a restraining order under s 18 of the POCA is admissible. That affidavit must set out the grounds on which the deponent suspects that the suspect has committed a serious offence. That is directed to identifying the matters in the mind of the deponent that caused him or her to form the suspicion. It is not directed to the truth or otherwise of those matters. Section 59 of the Evidence Act is thus not engaged, and there is thus no need to resort to s 75 to permit the giving of hearsay evidence.
3. Her Honour's reasoning to the above conclusion is at [84]-[141]. The following paragraphs are especially pertinent (footnote omitted): [129] Thus, what is being "proved" by the affidavit filed under s 18(3) is not the existence of the offending, or the asserted facts to which the authorised officer deposes, but the basis (ie grounds) on which he or she formed the relevant state of mind (ie suspicion). In that statutory context, if the affidavit includes hearsay evidence, that evidence is not deposed to for the existence of the asserted fact. It is for that reason that the "grounds" for a suspicion under s 18 (and related provisions) may include matters that subsequently are found to be false. [130] Put another way, if an authorised officer deposes that she holds a suspicion on grounds including, for example, that she obtained information from an officer of the ABF, the evidence is being adduced to show the reason for her suspicion - "an ABF officer told me that beer was found in certain pallets in a licensed warehouse, and I believe that officer, and so that is one of the reasons why I suspect that a person has committed a serious offence". The evidence is not being adduced to prove that beer was in fact found in certain pallets in a licensed warehouse. Proof of that fact would come later, when in the course of events it is necessary to prove the criminal offending. [131] This approach is consistent with the purpose of s 18 of the POCA, which is to ensure that property is restrained so as to be available if, later, a forfeiture order is made under s 47. It is at that later stage that facts must be proved (rather than reasonable grounds identified). A requirement that, at the stage of an application under s 18, facts be proved to support the suspicion would undermine, rather than further, the purpose of s 18 in the scheme of the POCA. It is also inconsistent with the selection of suspicion as the relevant standard for the making of an order. [132] As a consequence, where the grounds for the suspicion set out in an affidavit under s 18(3) include hearsay evidence, they are not inadmissible by reason of s 59 of the Evidence Act. In that context, s 75 is simply not engaged. [140] That is not to say that, where hearsay evidence is relied upon, a failure to identify the source of the evidence is irrelevant. As McClellan CJ at CL observed in International Finance Trust Co Ltd v NSW Crime Commission [2008] NSWCA 291 at [109], if an affidavit contains conclusions or assertions, without identifying the source of the information on which those conclusions or assertions are based, "a court may readily conclude that the affidavit does not disclose reasonable grounds for any asserted suspicion". Similar observations were made in NSW Crime Commission v Vu [2008] NSWCA 349 at [46], [48].
4. As part of this first submission the plaintiff contends that circumstances that might indicate that the interviews were improperly or illegally obtained could only have a bearing on whether the interviews should be received as evidence in proof of some fact. Following the analysis of Walker JA in Saad v Commissioner of the Australian Federal Police, the plaintiff submits that, because the interviews were not tendered on the ex parte application in proof of any fact but only to disclose part of the reasonable grounds for suspicion, the impropriety or illegality that might render them inadmissible in a different type of proceeding, such the prosecution of either of the interviewees on a criminal charge, was immaterial.
5. The plaintiff's second submission is that the circumstances of conduct of the interviews were immaterial to the ex parte application at another level, namely, that the interviews themselves were unnecessary to Hamill J's determination. They were surplus to the wealth of other material that was relied upon as grounds for Mr McLenaghan's suspicions. The other material, so far as concerns the 1st to 4th defendants, is summarised at [6]-[17] above.
6. Under the general law concerning ex parte proceedings, an applicant must make a full and fair disclosure of all material facts and failure to do so will result in any ex parte relief granted being subsequently set aside. It has been said that this applies whenever an ex parte application is made: Garrard v Email Furniture Pty Ltd (1993) 32 NSWLR 662 at 677; Savcor Pty Ltd v Cathodic Protection International APS [2005] VSCA 213 at [25]. In the latter case it was emphasised at [35] (Gillard AJA, Ormiston and Buchanan JJA agreeing) that to be material, an undisclosed circumstance "would have to be a matter of substance in the decision-making process". The plaintiff submits that materiality in that sense is, by analogy, an appropriate test for determining whether the ex parte restraining orders should be revoked. Pursuant to the plaintiff's first two arguments it is contended that such materiality has not been shown concerning the possible impropriety or illegality of the records of interview of Ms Haiyan Xu and Mr Quan Lin.
7. The plaintiff's third argument is that, even if there was a material nondisclosure to Hamill J concerning failure to accord the interviewees their rights, there are powerful discretionary reasons for not setting aside the ex parte orders in this case. One plaintiff discretionary factor is that the nondisclosure was inadvertent. There is unchallenged evidence from Mr McLenaghan that he is not a police officer and is not trained in the requirements of the Crimes Act 1914 with respect to interviewing suspects. Mr McLenaghan holds Bachelor of Economics and Master of Taxation degrees from the University of Sydney. He worked at the ATO from 2011 until January 2020, primarily in the conduct of taxpayer audits relating to tax evasion, concentrating on evasion of Goods and Services Tax. In February 2020 he was seconded from the ATO to work as a Special Member of the AFP. In that capacity, up to mid May 2020 he was involved in the investigation of economic crimes. He then commenced working as an investigator in the Criminal Assets Confiscation Taskforce. Mr McLenaghan deposed that he was not aware, until the defendants made their present application, that there was any question about whether the two interviews had been conducted other than in full compliance with the law.
8. Another discretionary factor relied on by the plaintiff is the significant public interest in the orders, as an aspect of administration of the criminal law. It is submitted that, because the ex parte application would have been strongly supported without any mention of the records of interview, it would be an erroneous exercise of discretion to vacate the orders and leave the relevant property unrestrained.

Determination

1. I accept the plaintiff's first submission. When documents were put in evidence before Hamill J to establish reasonable grounds for suspicion, it was not material to his Honour's decision for him to be informed of facts bearing upon whether the documents would be admissible if used for the very different purpose of proving the matters asserted in the documents. This is true of all possible grounds of inadmissibility. The answers given by Mr Quan Lin in his interview were hearsay as against all of the defendants who now apply for revocation of the restraining orders. The answers given by Ms Haiyan Xu were hearsay as against all of the defendants except herself. It could not be contended in the face of Saad v Commissioner of the Australian Federal Police that on that account the interviews could not be used to establish reasonable grounds. The possible inadmissibility of documents, on any basis, has nothing to do with an ex parte application that turns only on suspicion and on the existence of reasonable grounds, unless the documents are inadmissible for a reason that affects the reasonableness of relying upon them (see Saad v Commissioner of the Australian Federal Police at [140], quoted at [43] above). The ground of inadmissibility alleged here is not of that nature.
2. I also accept the plaintiff's argument that the circumstances in which the interviews had been conducted were immaterial for the additional reason that the answers given by Ms Haiyan Xu and Mr Quan Lin were surplus to the plaintiff's proof of reasonable grounds for suspicion. The other evidence demonstrated reasonable grounds overwhelmingly.
3. Further, his Honour noted Mr McLenaghan's description of the interviews as "induced" and repeated it in his reasons. The ordinary usage of that term in this field is to denote a statement or interview that was obtained from a suspect under conditions that would make it inadmissible against the maker. The use of that expression in the reasons indicates that his Honour did not proceed upon an assumption that the interviews had been conducted in compliance with all necessary cautions. Although that consideration is not essential to my disposition of the defendants' application, it is another reason why it has not been shown that the failure specifically to alert his Honour to non-compliance with ss 23G of the Crimes Act 1914 was material.
4. I accept the defendants' submission that under s 42(5)(b) of the Act their claim that "it is otherwise in the interests of justice" to revoke the restraining order cannot be dismissed solely on the basis that the inadmissibility of Mr Quan Lin's answers was irrelevant to the ex parte application, or on the basis that other evidence was sufficient to establish "reasonable grounds". As the Federal Agents exceeded their statutory investigative powers in relation Mr Quan Lin, I accept that the question whether revocation would be "in the interests of justice" is not conclusively answered by the fact Mr McLenaghan was unaware of the breach of s 23G and that his nondisclosure to the judge was inadvertent. Nor would it be conclusively answered if there were evidence that the Federal Agents' breach, itself, was inadvertent.
5. On the other hand, I reject the defendants' assertion that, by making the orders upon evidence that included Mr Quan Lin's interview, without knowledge of circumstances giving rise to doubts concerning its legality, Hamill J "was, in effect, condoning, was conscripted into accepting those processes". If the ex parte orders are now allowed to stand, in circumstances where they were strongly supported before the learned judge by evidence independent of the impugned interviews, I do not accept that it would appear to any properly informed member of the public that the Court, as constituted for the present application, thereby condones or chooses to ignore the Federal Agents' excessive use of power. The orders are self-evidently of significant importance in the administration of the criminal law. Revocation on the basis that the ex parte application was supported by the superfluous tender of a record of interview that had been unlawfully obtained would appear to a reasonable observer to be capricious and pointless. It would seem incoherent for the orders to be revoked on account of an excess of police power that had no sensible causal connection with the impugned orders. The interests of justice do not require this.
6. Where there has occurred illegal conduct on the part of a public official, such as the questioning of Mr Quan Lin by Federal Agents in breach of s 23G, the issue of whether the administration of justice will be brought into disrepute by the continuance of a proceeding or the upholding of a court order that has followed upon the illegal conduct will depend upon several interrelated factors. They include the seriousness of the unlawful conduct, the causative relationship between that conduct and the consequent proceedings or court order and the gravity of the relief proposed to be granted, such as a stay of proceedings or dissolution of orders. Here, while the Federal Agents' failure to accord Mr Quan Lin the opportunity to consult a lawyer before answering questions was a serious breach, it was not causal of orders being made because the interview was immaterial in the ex parte application. Further the relief by which the defendants propose the Court should mark its disapproval of the Agents' conduct, namely revocation of the restraining orders, would be a serious setback to the enforcement of the law concerning proceeds of crime, in this case.
7. These circumstances are far removed from those considered in Strickland v Commonwealth Director of Public Prosecutions. The very serious breach of safeguards against misuse of compulsorily acquired information in that case directly caused the examinees, who became the accused, to be deprived of their fundamental right to silence. They had a strong claim to a permanent stay of proceedings on the charges against them, in the interests of justice. In the present case there is no similarly proximate connection between the Federal Agents' excess of power in questioning Mr Quan Lin and the making of the orders that the defendants seek to have revoked. I do not find it to be in the interests of justice that any of the orders made by Hamill J on 6 October 2021 should be set aside.

Orders

1. Orders will be entered as follows: 1. The application of the first, second, third and fourth defendants by their notice of motion filed 10 February 2022 for the revocation of orders made by the Court on 6 October 2021 is dismissed. 2. The said defendants are to pay the plaintiffs costs of the notice of motion.

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. Decision last updated: 19 September 2022