The risk of prejudice
The Commissioner of the Australian Federal Police (Commissioner) now regularly applies for examination orders under s.180 of the Proceeds of Crime Act 2002 (POCA). Commonly, such examinations are conducted whilst criminal charges are either contemplated or already pending.
An examinee must not fail to attend an examination (s.195), must not refuse to be sworn or take an affirmation (s.196(1)(a)) and must not refuse to answer a question which the approved examiner requires the examinee to answer (s.196(1)(b)). Critically, legal professional privilege and the privilege against self incrimination are both abrogated in examinations (s.197(2)). Whilst a direct use immunity is conferred on an examinee, no derivative use immunity exists.
Moreover, s.266A of the POCA permits the disclosure of information coercively gathered at an examination to other law enforcement bodies, including Commonwealth or State authorities charged with investigating and prosecuting criminal offences.
In that context, it is clear that the conduct of a coercive examination of a person suspected of having committed offences, a charged person or a third party (such as the spouse of an accused: AFP v Li & Ors Ruling [2022] VCC 868) has the very real potential to cause substantial prejudice to any criminal prosecution.
Quarantine orders
One tool available to examinees (including an accused) is to seek that the information coercively obtained is quarantined. The Court has the power to make such quarantine orders (s.266A(2)(b)).
The scope of quarantine orders remains to be settled.
There are two key matters which will be determined by the Victorian Court of Appeal later this year. First, whether quarantine orders are able to be made absent the existence of charges (where, for example, there is a real risk of charges being laid in the future). Second, whether quarantine orders can be made to prevent disclosure of information obtained from Party A in the prosecution of Party B (i.e. where the order is not just to prevent self-incrimination).
As matters presently stand, there is single judge Supreme Court authority for the proposition that a quarantine order can be made before charges are laid: Commissioner of the Australian Federal Police v WEN [2017] VSC 391; 267 A Crim R 382. Further, there is single judge Supreme Court authority for the proposition that a quarantine order can be made in respect of the examination of Party A to prevent disclosure to persons involved in the prosecution of Party B (relevantly there the examination of the mother of the accused): AFP v Surinder Kaur [2016] VSC 423; 311 FLR 44. See also last week’s decision Commissioner of the Australian Federal Police v Battah [2023] NSWSC 35.
These issues will be tested in the Commissioner’s application for leave to appeal the ruling in AFP v Li & Ors Ruling [2022] VCC 868.
Practitioners acting for clients in POCA matters need to be aware of the ability to seek such quarantine orders and make application for them whenever appropriate.
