Introduction
On 31 October 2017, Judge Millstead of the District Court of South Australia delivered a detailed decision concerning the Commissioner of the Australian Federal Police’s (Commissioner) right to conduct compulsory examinations under s.180 of the Proceeds of Crime Act 2002 (POCA) in circumstances where the examinee is facing criminal charges: R v Ruzehaji (No 2) [2017] SADC 119.
Basic facts
Mr Ruzehaji had been charged with drug offences. Prior to his trial, the Commissioner compulsorily examined Mr Ruzehaji under section 180 of the POCA.
Prior to the criminal trial, Mr Rujehaji applied for a permanent stay of the criminal proceedings on the following grounds:
(i) the POCA did not authorise the compulsory examination of a person in respect of charges pending against that person and that by reason of his unlawful examination he had been exposed him to the risk of an unfair trial;
(ii) the transcript of the s 180 examination and/or information obtained in the course of the examination had been unlawfully disseminated to members of the AFP and CDPP lawyers responsible for investigating and prosecuting the charged offences (this contention was abandoned after evidence was given on this issue);
(iii) even if grounds (i) and (ii) were rejected, the compulsory examination constituted a fundamental departure from the accusatorial nature of the criminal justice process and the applicant’s entitlement to a fair trial according to law.
Mr Ruzehaji’s applications were dismissed.
Reasons
Judge Millstead stated (at [91]-[92]):
I reject the applicant’s argument. In my view the POC Act clearly evinces an intention to abrogate the privilege against self-incrimination and the companion principle in relation to examinations conducted under s 180. Put another way, it authorises the compulsory examination of a person charged with an offence about the subject matter of the charged offence where such examination is relevant to POC Act proceedings.
The POC Act establishes a scheme for confiscation orders and restraining orders (s 6) for the principal purpose of depriving persons of the proceeds of criminal activity (s 5). The statute expressly provides (i) that the mere fact that criminal proceedings have been instituted against a person does not prevent the approved examiner giving the person an examination notice (s 183(3)) and (ii) that the ‘affairs’ about which a person may be examined include any ‘unlawful activity’ relevant to the making of an order under the POC Act (s 186(2) and s 338). The legitimacy of examining an accused person about matters relevant to extant charges is reinforced by the following additional features of the POC Act: the abrogation of direct use immunity (s 197(2)(a)) and derivative use immunity (s 266A); and the requirement that proceedings under the POC Act a court cannot be stayed merely because criminal proceedings have been instituted or commenced against the examinee (s 319(2)).
As for the use that may be made of transcript of a compulsory examination, his Honour stated (at [182]):
Even if there had been dissemination of the transcript and derivative use had been made of it such conduct would have been lawful under s 266A of the POC Act. As I earlier stated, the obvious statutory intention is that police, charged with investigating a criminal offence, and members of the DPP, responsible for the prosecution of the offence, are entitled to have access to compulsorily obtained information to the extent allowed by that provision s 266A and to derivatively use such information. This is consistent with other authorities dealing with the construction of similar legislation for example: Seller, OC and Zanon.
Practical implications
Since it appears highly unlikely that an accused will be able to obtain a stay of a compulsory examination pending the resolution of criminal proceedings, an accused should seek a quarantining order. A quarantining order will limit the access provided to any information obtained through the compulsory examination process.
Such quarantining orders were recently made by Riordan J in Commissioner of the Australian Federal Police v Wen & Ors [2017] VSC 391 (see [135]) in circumstances where charges were likely to be laid.
