On 5 March 2020, the Victorian Court of Appeal (Tate, McLeish and Hargrave JJA) delivered reasons in Mai v Commissioner of the Australian Federal Police  VSCA 38. Ms Mai appealed a decision of the County Court, dismissing her application for revocation of restraining orders made under ss.18 and 19 of the Proceeds of Crimes Act 2002 (POCA).
The appeal concerned the proper construction of the test for revocation, as well as the tests for making restraining orders under ss.18 and 19 of the POCA. Specifically, the Court considered the question of what is meant by the requirement in s.42(5)(a) that the Court be satisfied that “there are no grounds on which to make the order at the time of consideration the application to revoke the order”.
As to that test, the Court observed (at ):
The requirement that there be “no grounds” on which to make the order plainly relates back to and invokes the statutory test for the making of restraining orders. In the present case that requires the Court to look to the requirements of ss.18 and 19. As s.42 makes clear, the burden rests on the party seeking to have their restraining order revoked. However, that does not require that party to embark on the exercise of seeking to prove a negative proposition to the effect that there are no circumstances warranting the making of a restraining order. Rather, the application for revocation proceeds on the basis of the evidence that was before the Court making the restraining order, together with such other evidence as the parties might choose to place before it. The question for the Court will be whether the Applicant for revocation has satisfied it that, on that material, a restraining order could not be made. For our part … we consider that it may well be relevant to that question whether “irrational, improper or unlikely grounds for suspicion” suffice to permit the making of a restraining order.
A further question considered by the Court was the meaning of the requirement that the Court be “satisfied that the authorized officer who made the affidavit holds the suspicion or suspicions stated in the affidavit on reasonable grounds”, as part of a process of the Court determining an application for a restraining order.
It was contended for Ms Mai that this test was to be distinguished from a general test that the Court be satisfied that “there are reasonable grounds” and that, in a revocation application, it was necessary for the Court to only look at the suspicion described in the affidavit in support of the application for the restraining order and the stated grounds in determining whether those grounds were reasonable. On that reading, the Court would not be permitted to identify for itself possible grounds for the relevant suspicion which had not suggested themselves to the authorized officer. The Commissioner of the Australian Federal Police submitted that the Court could form its own view as to the reasonable grounds, and was not limited to the grounds which had been identified by the authorized officer in the affidavit.
The Court determined that the construction for which Ms Mai contended was correct. It follows that, in determining an application for revocation, the Court must consider the reasonableness of the suspicion by reference only to the specific grounds identified in the affidavit and cannot substitute its own suspicion based on other grounds. The Court stated (at ):
The Court’s task under those provisions is to decide whether it is satisfied that the grounds upon which the authorized officer holds the relevant suspicion or suspicions are reasonable.
The Court determined that the Judge at first instance had not applied the correct test and thereby granted leave to appeal. However, the Court also determined the application for itself and, upon the application of the appropriate test, dismissed the appeal.
It follows that, in assessing the prospects of an application for revocation, it is necessary to pay very close regard to the affidavit in support of the application for the restraining order and, in particular, whether the grounds identified by the relevant deponent would give rise, in a reasonable person (i.e. an objective assessment), to the relevant suspicion.