On 9 November 2023, the Victorian Court of Appel delivered the decision in Commissioner of the Australian Federal Police v Yang [2023] VSCA 271 (Emerton P; Priest and Taylor JJA).
In short, the County Court had made a quarantine order under s.266A(2)(b) of the Proceeds of Crime Act 2002 preventing information from the coercive examination of the wife of an accused (Person A) being shared with persons involved in the criminal prosecution of her husband (Person B) under s.266A. The wife had not been charged.
A central question in the appeal was whether the information coercively obtained from Person A could be used in the prosecution of Person B (i.e. whether a quarantine order could seek to protect against more than self-incrimination).
The Court of Appeal determined that a quarantine order can guard only against self-incrimination and stated (at [54]):
If the [wife] were to be called as a prosecution witness in any future trial of her husband and gave evidence incriminating him, that is not a prejudice against which the law seeks to guard, as it is neither unfair nor impermissible.
In reaching that conclusion, the Court distinguished Commissioner of the Australian Federal Police v McGlone [2016] NSWCA 103 (Beazley P, Ward and Gleeson JJA), where a quarantine preventing the wife’s evidence being used in the prosecution of her husband was ultimately consented to by the Commissioner of the Australian Federal Police.
The Court did not make reference in its reasons to AFP v Surinder Kaur [2016] VSC 423; 311 FLR 44 (J Forrest J), where the Court made a quarantine order safeguarding coercively acquired information obtained from the mother of the accused.
Notwithstanding the fact that the scope for obtaining quarantine orders has narrowed, they are still a critical step to guard against the dissemination of coercively acquired information.
Further, where there are multiple accused the practical effect of obtaining a quarantine order to prevent coercively acquired information from Person A being disclosed to any person involved in the prosecution of Person A will likely be that such information can also not be disclosed to persons involved in the (joint) prosecution of others (i.e. Persons B, C and D).
