Commissioner of the Australian Federal Police v W (No 3)
On 29 August 2016, Adamson J published reasons for refusing to extend a stay of proceedings under the Proceeds of Crime Act 2002 (Act), pending criminal trials.
The facts
The defendants in the proceeding under the POCA obtained orders staying the civil proceedings on 1 June 2016 (Commissioner of the Australian Federal Police v W [2016] NSWSC 683; which is the subject of an Asset Confiscation Update published on 21 June 2016).
One of the factors that influenced Adamson J in granting the stay at that time was the fact that the criminal trial was to be heard in August 2016 (hence a stay of some 3 months). The principal basis for seeking the stay was that the accused sought to maintain their right of silence.
After the stay was granted, the Commissioner became aware that the accused had already provided to the prosecution in the criminal proceeding the affidavits which they had filed in the civil proceeding. That is matter that had not been disclosed to Adamson J when his Honour ordered the stay.
Further, the accused then made application for the vacation of the criminal trail on the basis that they had insufficient funds for the criminal trail, having spent their funds in the proceedings under the Act. It had also not been disclosed to Adamson J at the time the stay was ordered that the funding for the criminal trial had not been put in place and that there was a risk that the criminal trial might need to be vacated.
The criminal trial was vacated on the application by the accused. It was expected that the criminal trial would not be relisted for many months.
The accused applied to extend the stay until the conclusion of the criminal trial. The application was refused.
Basis for refusal
The principal basis for refusing the stay was the delay which would be occasioned to the proceedings under the Act. At [11] and [12], Adamson J observed the following:
However, even aside from the defendants’ non-disclosure of the material disclosed to the DPP on the application for a stay, the vacation of the criminal trial affects the balance of the factors such that I consider that the civil proceedings ought be heard although the criminal trial remains pending.
Having regard to the fact that the criminal trial is not likely to be concluded this year or, indeed, in the first half of next year, if at all, I am not disposed to extend the stay. There are mechanisms that can be used and directions made to protect the defendants’ right to silence such as were made by the Court of Appeal in Restricted Judgment1 [2016] NSWCA 103 (see order (7)).
1 McGlone. Although that decision was for some time restricted, it appears not be restricted any longer. It has been referred to in several unrestricted decisions.
His Honour took that viewed notwithstanding the fact that he accepted that there was overlap between the factual matters relevant to the criminal trial and the civil proceedings.
Discussion
Although the duration of any stay is clearly a relevant matter in the exercise of the discretion, in this particular case the fact that the accused had voluntarily made disclosure to the prosecution of matters was also clearly a matter that weighed heavily against the extension of any stay. That is so because the principal reason for seeking the stay was to retain
the right of silence. To some extent, that right had been waived by the voluntary disclosure.
