On 27 June 2014, the Victorian Court of Appeal delivered its unanimous decision (Nettle, Tate and Beach JJA) in Zhao & Jon v Commissioner of the Australian Federal Police [2014] VSCA 137.
It is a landmark decision which affirms that proceedings under the Proceeds of Crime Act 2002 (Cth) (POCA) should be stayed where there are pending criminal charges and there is some overlap between the allegations in the criminal proceeding and the matters which are in issue in the proceeds of crime litigation.
There had, until now, been considerable doubt about whether proceedings should be stayed, arising from the terms of section 319 of the POCA, which is in the following terms:
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.
In short, the Court of Appeal found that section 319 of the POCA was not in sufficiently clear terms to abrogate the right to silence enjoyed by an accused facing criminal charges. Where there is a risk of overlap (which there commonly is), the proper course is to stay the litigation under the POCA.
