The Commissioner of the Australian Federal Police v He

1. [1]

   The first to fourth defendants seek revocation of orders 6-9, 25-31 and part of order 32 made ex parte by Hamill J on 6 October 2021. Orders 6-9 were made pursuant to s 18 of the Proceeds of Crime Act 2002 (Cth), restraining the property of each of the first to fourth defendants respectively. Orders 25-27 were made pursuant to s 19 of the Act, restraining property specified in Schedules 1-3 of the orders. The property in Schedule 1 is a sum of $109,770 that was seized by the Australian Federal Police (“AFP”) from premises at 1 Harry Avenue, Leichardt on 4 May 2021. Schedule 2 specified real property known as 3 Harry Avenue, Leichardt. Schedule 3 specified real property at 101/77 Gozzard Street, Gungahlin, Australian Capital Territory. Orders 28-32 were made pursuant to s 38 of the Act. They required that the Official Trustee take custody and control of the property in Schedules 1-5. Schedule 4 specified real property at 17 Platform Street, Lidcombe. Schedule 5 specified nine bank accounts. It is sought to have order 32 revoked only in so far as it requires the Official Trustee to take custody and control of item 3 in that Schedule, an account with the Westpac bank in the name of Mr Wenqing Sun (3rd defendant).

2. [2]

   There are altogether 19 defendants to the summons by which the plaintiff sought ex parte restraining orders and other orders on 6 October 2021. Only the first four defendants bring the revocation application and for brevity I will refer to them, collectively, as “the defendants”.

3. [3]

   Relevant extracts from the sections under which the orders were made on 6 October 2021 are as follows:

4. [4]

   The application for revocation of the orders is made pursuant to s 42(5)(b). Relevant extracts of s 42 are as follows:

5. [5]

   The ex parte application was supported by an affidavit of Nicholas McLenaghan affirmed 5 October 2021. He is an authorised officer as defined in s 338 of the Act. His affidavit stated the matters required by s 18(3) and s 19(1)(e). It is alleged that in deposing to his suspicion that a serious crime had been committed (s 18(3)) and that certain property is proceeds of an indictable offence or is an instrument of an offence (s 19), Mr McLenaghan relied in part upon records of police interviews with Ms Haiyan Xu (4th defendant) and Mr Quan Lin (7th defendant), without disclosing to Hamill J that those records of interview were, as the defendants assert, improperly obtained. The alleged impropriety is said to have arisen from failure of the interviewing officers to afford the interviewees the opportunity to communicate with legal practitioners and, in the case of Ms Haiyan Xu who is not an Australian citizen but a citizen of the People’s Republic of China (“PRC”), failure to facilitate contact with a PRC consular official. Sections 23G, 23L and 23P of the Crimes Act 1914 (Cth) are said to have been infringed.

Financial information deposed to by Mr McLenaghan

1. [6]

   In Mr McLenaghan’s affidavit of 5 October 2021 he deposed that Mr Yongjie Wei (5th defendant) arrived in Australia from the PRC on 7 August 2019 on a student visa and that on 20 December 2020 YJ Building Pty Ltd (6th defendant) was incorporated and Mr Yongjie Wei became its sole director and shareholder. Mr McLenaghan deposed to his suspicion that Mr Yongjie Wei was paid commission by Mr Yanguo Sun (2nd defendant) to receive deposits into bank accounts in the name of YJ Building Pty Ltd, later to withdraw the funds in cash and to deliver the cash to Ms Wenfang He (1st defendant) and Mr Yanguo Sun. Bank records identified and relied upon by Mr McLenaghan record withdrawals from the accounts of YJ Building Pty Ltd totalling $1.798 million between 24 December 2020 and 4 May 2021. Mr McLenaghan’s examination of Australian Tax Office (“ATO”) records showed that neither Mr Yongjie Wei (5th defendant) nor his company YJ Building Pty Ltd had returned any income from any source for the financial years ended 30 June 2020 or 2021 (“FY20” and “FY21”).

2. [7]

   Mr McLenaghan further deposed that Mr Quan Lin (7th defendant) arrived in Australia from the PRC on 29 July 2019 on a student visa and that on 29 December 2019 QL Building Pty Ltd (8th defendant) was incorporated and Mr Quan Lin became sole director and shareholder. Mr McLenaghan deposed to his suspicion that Mr Quan Lin was paid commission by Mr Yanguo Sun to receive deposits into bank accounts in the name of QL Building Pty Ltd, later to withdraw the funds in cash and to deliver the cash to Ms Wenfang He and Mr Yanguo Sun. Bank records identified and relied upon by Mr McLenaghan record withdrawals from the accounts of QL Building Pty Ltd totalling $8.624 million between 24 January 2020 and 4 May 2021. Mr McLenaghan’s examination of ATO records showed that neither Mr Quan Lin nor his company QL Building Pty Ltd had returned any income from any source for FY20 or FY21.

3. [8]

   Mr McLenaghan deposed to the immigration status of Mr Yongjie Wei and Mr Quan Lin on the basis of Commonwealth records. In addition to the records-based information concerning those two defendants and their companies, Mr McLenaghan deposed to observations that were made by officers who carried out surveillance of Mr Yongjie Wei in February and March 2021 when he withdrew substantial sums in cash from bank accounts in the name of his company YJ Building Pty Ltd and delivered them to 1 Harry Avenue Leichhardt: $20,000 on 25 February 2021, $30,000 on 8 March 2021 and $20,000 on 10 March 2021.

4. [9]

   Mr McLenaghan deposed to surveillance, by others, of Mr Yongjie Wei on 4 May 2021 when he withdrew cash sums of $30,000, $40,000 and $50,000 from three separate banks at Chatswood, over the space of 50 minutes in the middle of the day, and transported the cash to 1 Harry Avenue. Mr Quan Lin accompanied Mr Yongjie Wei for the last part of his journey to 1 Harry Avenue, where they were both arrested, together with Ms Wenfang He (1st defendant). AFP officers executed a search warrant at that address at that time and seized $109,770 in cash that was found in various locations around the house.

5. [10]

   Mr McLenaghan relied upon an analysis made by an AFP forensic accountant of the bank accounts of Ms Wenfang He (1st defendant) and Mr Yanguo Sun (2nd defendant) for the seven financial years FY14-FY20, inclusive. He also examined ATO records of the income tax returns lodged by Ms Wenfang He for each of FY16-FY20 and returns lodged by Mr Yanguo Sun for FY14-FY20. The figures presented in his affidavit from these sources may be considered in table form as follows (cents have been ignored, with the result that the addition figures do not precisely reconcile):

6. [11]

   Ms Wenfang He specified her main business activity on only two of the five tax returns lodged by her, nominating “other food product manufacturer” in FY16 and “domestic appliance repair and maintenance” in FY20. Mr Yanguo Sun listed his business activity as “construction worker” on each of his returns.

7. [12]

   Mr McLenaghan exhibited to his affidavit documents obtained from New South Wales Land Registry Services showing that on 27 April 2018 Ms Wenfang He and Mr Yanguo Sun jointly purchased the property at 1 Harry Avenue Leichhardt for $1,840,000, mortgaging it for $1.1 million. The mortgage was discharged and the property sold and transferred, for $2.1 million, on 7 July 2021. Observations at the time of executing search warrant at the address on 4 May 2021 showed that the house was then occupied by Ms Wenfang He, Mr Yanguo Sun and Ms Haiyan Xu.

8. [13]

   New South Wales Land Registry Services documents exhibited by Mr McLenaghan also show that on 15 November 2011 Ms Wenfang He and Mr Yanguo Sun jointly purchased, for $780,000, the property at 17 Platform Street, Lidcombe that is described in Schedule 4 to Hamill J’s orders and that has been placed in the custody and control of the Official Trustee, pursuant to order 31.

9. [14]

   Mr McLenaghan deposed that Mr Wenqing Sun is the son of Ms Wenfang He and Mr Yanguo Sun and that Ms Haiyan Xu was Mr Wenqing Sun’s wife, at least at the date of the application to Hamill J. Mr McLenaghan relied upon an analysis made by an AFP forensic accountant of the bank accounts of Mr Wenqing Sun (3rd defendant) and Ms Haiyan Xu (4th defendant) for the seven financial years FY14-FY20, inclusive. He also examined ATO records of the income tax returns lodged by Mr Wenqing Sun for each of those years and returns lodged by Ms Haiyan Xu for FY16-FY20. Mr McLenaghan’s figures from these sources summarised in the following table (cents ignored):

10. [15]

    Gambling records from The Star Casino, obtained by Mr McLenaghan and exhibited to his affidavit, show that over a 28 month period from 4 April 2018 to 27 August 2020, Mr Wenqing Sun made a net loss on gaming at the casino of $1,126,455.

11. [16]

    Mr McLenaghan exhibited to his affidavit documents obtained from New South Wales Land Registry Services showing that on 17 January 2015 Mr Wenqing Sun purchased the property at 3 Harry Avenue Leichhardt for $1,175,000. The property has at all times been mortgaged. The amount of the mortgage debt is not apparent from the documents exhibited by Mr McLenaghan.

12. [17]

    Further documents exhibited by Mr McLenaghan, from Australian Capital Territory title records, show that the property at 101/77 Gozzard Street, Gungahlin which is the subject of order 27 and Schedule 3, was transferred on 25 October 2015 for $339,950, apparently to Mr Wenqing Sun. The property is subject to a mortgage that secures a debt of $335,690.

Suspected offences and suspected proceeds of crime

1. [18]

   In support of the application for orders pursuant to s 18 of the Proceeds of Crime Act it was necessary for Mr McLenaghan to depose to a suspicion that “the suspect committed” a “serious offence”. “Suspect” and “serious offence” are defined in s 338. “Serious offence” includes an indictable offence punishable by imprisonment for 3 or more years, against a provision of Pt 10.2 of the Criminal Code (Cth). Mr McLenaghan deposed to his suspicion that each of the defendants had committed an offence against s 400.9(1) of the Criminal Code, which is within Pt 10.2.

2. [19]

   Relevant parts of s 400.9, for present purposes, are as follows:

3. [20]

   The Court was required to make the restraining orders against the defendants pursuant to s 18 if satisfied that there were reasonable grounds to suspect that each of them had committed an offence against s 400.9(1) and if satisfied that Mr McLenaghan held his suspicions in that regard on reasonable grounds – both of which requirements amount to substantially the same thing. The aspects of Mr McLenaghan’s affidavit and exhibits summarised at [6]-[17] above were ample to satisfy the Court as to there being “reasonable grounds”.

4. [21]

   In support of the application for orders pursuant to s 19 of the Proceeds of Crime Act Mr McLenaghan was required to depose to a suspicion that the property sought to be restrained is proceeds of, inter-alia, any indictable offence, or is an instrument of such offence. “Proceeds” and “instrument” are defined in ss 329 and 330 of the Act. “Proceeds” of an offence is property that is partly or wholly derived or realised, directly or indirectly, from the commission of the offence and “instrument” is property that is used or intended to be used in or in connection with the commission of an offence.

5. [22]

   Mr McLenaghan deposed to his suspicion that the sum of $109,770 seized on 4 May 2021 (order 25, Schedule 1), the property at 3 Harry Avenue, Lidcombe (order 26, Schedule 2), and the property at 101/77 Gozzard Street, Gungahlin (order 26, Schedule 3) are proceeds and/or instruments of the suspected offences against s 400.9(1) of the Criminal Code. Similarly to the requirements of s 19, the Court was required to be satisfied of the existence of reasonable grounds to suspect that these items of property were proceeds of an indictable offence and that Mr McLenaghan’s suspicion in that regard was formed upon reasonable grounds. Those requirements, also, were amply fulfilled by the matters summarised from Mr McLenaghan’s affidavit at [6]-[17] above.

The AFP interviews with Ms Haiyan Xu and Mr Quan Lin

1. [23]

   When the search warrant was executed at 1 Harry Avenue Leichardt on 4 April 2021, as referred to at [9] above, Ms Haiyan Xu was present. Commencing at 5:00pm she was interviewed by a Federal Agent and an investigator from the Australian Border Force (“ABF”), with the assistance of an interpreter. At the commencement of the interview Ms Haiyan Xu was informed that questions would be asked of her about $40,000 in cash that was located under the bottom drawer of a bathroom cabinet at the address. It appeared that Ms Haiyan Xu resided there and use the bathroom. A caution was given in the usual terms that Ms Haiyan Xu was not required to answer questions and that anything she said may be used in evidence.

2. [24]

   The following provisions of the Crimes Act 1914 are relevant to the questioning that followed. For the purposes of these provisions, Ms Haiyan Xu was a “protected suspect” as defined in s 23B(2):

3. [25]

   Section 23L creates exceptions that do not appear to have been engaged by the circumstances of questioning of either Ms Haiyan Xu or Mr Quan Lin. The AFP agent informed Ms Haiyan Xu that she could communicate with a friend or relative to notify such person of her whereabouts (s 23G(1)(a) of the Crimes Act 1914). She said, “No need”. She was informed of her right to communicate with and engage a lawyer (s 23G(1)(b)). Ms Haiyan Xu responded by saying, “I don’t have a lawyer now” and she then asked if she could “contact a lawyer later and get a lawyer to speak to you”. She was told that she could do that. Ms Haiyan Xu told the investigators that she was a citizen of China and the AFP agent informed her that she could communicate with a consular official from that country (s 23P). She asked, “Why do I have to?” And when she was told, “If you don’t want to it’s no problem at all” she simply said, “Okay” and proceeded to answer questions

4. [26]

   All of the above appeared in the transcript of the interview that was exhibited to Mr McLenaghan’s affidavit. It was not expressly drawn to Hamill J’s attention, either in the affidavit or in the oral submissions in support of the ex parte application, that the above circumstances may have given rise to an issue concerning compliance with the applicable provisions of the Crimes Act 1914, although the interview was described in the affidavit as “induced”. Having regard to Ms Haiyan Xu’s express dispensation with the exercise of her right to make contact with third parties under ss 23G and 23P, I could not be satisfied that the interview was improperly or unlawfully in the absence of evidence from her. I have no basis for doubting that she understood the rights explained to her and the effect of waiving them.

5. [27]

   Mr McLenaghan deposed to a summary of the content of Ms Haiyan Xu’s interview. The summary accurately captured the substance of what she had said. The relevant paragraph of the affidavit is as follows:

6. [28]

   Also at 1 Harry Avenue Leichardt on 4 May 2021 Mr Quan Lin was interviewed by two Federal Agents, assisted by an interpreter. Mr Quan Lin was a “protected suspect” as defined in s 23B(2). He was cautioned and then informed of his right to contact a lawyer (s 23G(1)(b)). That resulted in the following exchange:

7. [29]

   The questioner then informed Mr Quan Lin of his right to contact a family member (s 23G(1)(a)), which he said he wished to exercise. He referred to some numbers stored on his phone and said that they were the people whom wished to contact. The Federal Agent said that before he would be permitted to contact any of those persons it would be necessary for police to “check who that number actually belongs to … to prevent the destruction of evidence”. Refusal of permission to make contact on that ground would have been permissible, pursuant to s 23L, for so long as the officer reasonably believed that such contact might compromise the investigation. However, it is not apparent that any inquiry was made by police in that regard.

8. [30]

   Mr Quan Lin was told of his right to contact a Chinese a consular official (s 23P), to which he responded:

9. [31]

   The questioning then proceeded without any further delay and without any endeavour to facilitate Mr Quan Lin making contact with a lawyer or to vet the phone numbers of people that Mr Quan Lin said he wanted to contact as friends or relatives.

10. [32]

    As with the interview of Ms Haiyan Xu, the above circumstances were apparent on the transcript that was exhibited to Mr McLenaghan’s affidavit but the affidavit did not refer specifically to those circumstances and nor were the circumstances otherwise brought to the attention of Hamill J. This interview was also described in the affidavit as “induced”. Mr McLenaghan deposed to a summary of Mr Quan Lin’s interview in the following paragraph, which captures the substance of what he told the investigators:

The defendants’ submissions

1. [33]

   The defendants submit that the evidence comprised in the interviews with each of Ms Haiyan Xu and Mr Quan Lin was illegally and improperly obtained because the questioning of each of them proceeded in breach of ss 23G and 23P of the Crimes Act 1914. I do not consider that there was any breach of either section in relation to the questioning of Ms Haiyan Xu. She expressly saw “no need” to contact a relative or friend, she was content to speak with a lawyer “later” and have that lawyer contact the police and she expressed no wish to contact a Chinese consular official when she was told that she could do so but was not obliged to. On the other hand, the questioning of Mr Quan Lin proceeded in breach of s 23G, both with respect to his desire to contact a relative or friend and his expressed wish to engage lawyer. There was no breach of s 23P in relation to Mr Quan Lin.

2. [34]

   The defendants submitted the following in writing:

3. [35]

   The defendant conceded that without the interviews there were sufficient materials before Hamill J to substantiate reasonable grounds for the relevant suspicions and, hence, to sustain the orders. It was submitted that the terms of par (a) of s 42(5) support an interpretation of par (b) whereby the interests of justice may require that an ex parte order be set aside despite there being sufficient evidence to support the order as at date of hearing the revocation application.

4. [36]

   In oral submissions the defendants argued that it is “a problem for the administration of justice” that the Commissioner of the Australian Federal Police should rely, in part, on evidence that was improperly obtained in support of an ex parte application and that the “problem” is “compounded” by the failure to disclose to the judge the impropriety or illegality. It was submitted that:

5. [37]

   The defendants cited Director of Public Prosecutions (Cth) v Kamal [2011] WASCA 55 at [4] and Saad v Commissioner of the Australian Federal Police [2021] VSCA 246 [146] for the proposition that the expression “in the interests of justice” in s 42(5)(b) is “of wide import” and “sufficient to empower a court to revoke a restraining order because of the DPP’s failure to comply with the obligation of full disclosure”. The defendant drew from Director of Public Prosecutions (Cth) v Kamal at [111], [131] and [251]-[252] and from Saad v Commissioner of the Australian Federal Police at [148]-[149] the proposition that s 42(5) is the sole source of power to review an ex parte order made under the Act, to the exclusion of the established procedural rule that a court will set aside an ex parte order upon discovering that full disclosure was not made in the application, but with analogies to the way that rule is implemented under the general law.

6. [38]

   The defendant submitted that s 42(5)(b) would justify setting aside an ex parte order if the circumstances of it having been obtained would bring the administration of justice into disrepute. It was submitted that that may occur even though the relevant infringement of the law that is identified by the party claiming revocation may have been inadvertent. Reference was made to Strickland v Commonwealth Director of Public Prosecutions (2018) 266 CLR 325; [2018] HCA 53. In that case the content of compulsory examinations conducted pursuant to s 24A of the Australian Crime Commission Act 2002 (Cth) was distributed to investigating police and to the Director of Public Prosecutions, contrary to a direction made by the examiner under s 25A(9). The examinees were subsequently charged with offences to which their compulsory questioning related.

7. [39]

   At [99]-[100] Kiefel CJ, Bell and Nettle JJ said this:

8. [40]

   In the present case the following was submitted:

The plaintiff’s submissions

1. [41]

   The plaintiff submitted, in writing and orally, first, that on the application to Hamill J the plaintiff did not have to prove and did not endeavour to prove against any of the 19 defendants any fact concerning dealings in money that might have been provable by the answers given by Ms Haiyan Xu and Mr Quan Lin under questioning. The plaintiff submitted that on that application he was only required to demonstrate that the suspicions stipulated in ss 18 and 19 were held by Mr McLenaghan on reasonable grounds. Proof of reasonable grounds required identification of the materials to which Mr McLenaghan had regard but it did not require proof of any fact underlying his suspicions.

2. [42]

   In support of that analysis, the plaintiff relied upon Saad v Commissioner of the Australian Federal Police, wherein it was sought to revoke restraining orders made under the Proceeds of Crime Act on the ground that key parts of the affidavits that had been read in support of the original application in that case had introduced hearsay. It was argued that the hearsay was inadmissible on the interlocutory application because the source of it was not disclosed. Sections 59 and 75 of the Evidence Act 2008 (Vic) were relied upon. Walker JA (Beach and Sifris JJA agreeing) concluded as follows:

3. [43]

   Her Honour’s reasoning to the above conclusion is at [84]-[141]. The following paragraphs are especially pertinent (footnote omitted):

4. [44]

   As part of this first submission the plaintiff contends that circumstances that might indicate that the interviews were improperly or illegally obtained could only have a bearing on whether the interviews should be received as evidence in proof of some fact. Following the analysis of Walker JA in Saad v Commissioner of the Australian Federal Police, the plaintiff submits that, because the interviews were not tendered on the ex parte application in proof of any fact but only to disclose part of the reasonable grounds for suspicion, the impropriety or illegality that might render them inadmissible in a different type of proceeding, such the prosecution of either of the interviewees on a criminal charge, was immaterial.

5. [45]

   The plaintiff’s second submission is that the circumstances of conduct of the interviews were immaterial to the ex parte application at another level, namely, that the interviews themselves were unnecessary to Hamill J’s determination. They were surplus to the wealth of other material that was relied upon as grounds for Mr McLenaghan’s suspicions. The other material, so far as concerns the 1st to 4th defendants, is summarised at [6]-[17] above.

6. [46]

   Under the general law concerning ex parte proceedings, an applicant must make a full and fair disclosure of all material facts and failure to do so will result in any ex parte relief granted being subsequently set aside. It has been said that this applies whenever an ex parte application is made: Garrard v Email Furniture Pty Ltd (1993) 32 NSWLR 662 at 677; Savcor Pty Ltd v Cathodic Protection International APS [2005] VSCA 213 at [25]. In the latter case it was emphasised at [35] (Gillard AJA, Ormiston and Buchanan JJA agreeing) that to be material, an undisclosed circumstance “would have to be a matter of substance in the decision-making process”. The plaintiff submits that materiality in that sense is, by analogy, an appropriate test for determining whether the ex parte restraining orders should be revoked. Pursuant to the plaintiff’s first two arguments it is contended that such materiality has not been shown concerning the possible impropriety or illegality of the records of interview of Ms Haiyan Xu and Mr Quan Lin.

7. [47]

   The plaintiff’s third argument is that, even if there was a material nondisclosure to Hamill J concerning failure to accord the interviewees their rights, there are powerful discretionary reasons for not setting aside the ex parte orders in this case. One plaintiff discretionary factor is that the nondisclosure was inadvertent. There is unchallenged evidence from Mr McLenaghan that he is not a police officer and is not trained in the requirements of the Crimes Act 1914 with respect to interviewing suspects. Mr McLenaghan holds Bachelor of Economics and Master of Taxation degrees from the University of Sydney. He worked at the ATO from 2011 until January 2020, primarily in the conduct of taxpayer audits relating to tax evasion, concentrating on evasion of Goods and Services Tax. In February 2020 he was seconded from the ATO to work as a Special Member of the AFP. In that capacity, up to mid May 2020 he was involved in the investigation of economic crimes. He then commenced working as an investigator in the Criminal Assets Confiscation Taskforce. Mr McLenaghan deposed that he was not aware, until the defendants made their present application, that there was any question about whether the two interviews had been conducted other than in full compliance with the law.

8. [48]

   Another discretionary factor relied on by the plaintiff is the significant public interest in the orders, as an aspect of administration of the criminal law. It is submitted that, because the ex parte application would have been strongly supported without any mention of the records of interview, it would be an erroneous exercise of discretion to vacate the orders and leave the relevant property unrestrained.

Determination

1. [49]

   I accept the plaintiff’s first submission. When documents were put in evidence before Hamill J to establish reasonable grounds for suspicion, it was not material to his Honour’s decision for him to be informed of facts bearing upon whether the documents would be admissible if used for the very different purpose of proving the matters asserted in the documents. This is true of all possible grounds of inadmissibility. The answers given by Mr Quan Lin in his interview were hearsay as against all of the defendants who now apply for revocation of the restraining orders. The answers given by Ms Haiyan Xu were hearsay as against all of the defendants except herself. It could not be contended in the face of Saad v Commissioner of the Australian Federal Police that on that account the interviews could not be used to establish reasonable grounds. The possible inadmissibility of documents, on any basis, has nothing to do with an ex parte application that turns only on suspicion and on the existence of reasonable grounds, unless the documents are inadmissible for a reason that affects the reasonableness of relying upon them (see Saad v Commissioner of the Australian Federal Police at [140], quoted at [43] above). The ground of inadmissibility alleged here is not of that nature.

2. [50]

   I also accept the plaintiff’s argument that the circumstances in which the interviews had been conducted were immaterial for the additional reason that the answers given by Ms Haiyan Xu and Mr Quan Lin were surplus to the plaintiff’s proof of reasonable grounds for suspicion. The other evidence demonstrated reasonable grounds overwhelmingly.

3. [51]

   Further, his Honour noted Mr McLenaghan’s description of the interviews as “induced” and repeated it in his reasons. The ordinary usage of that term in this field is to denote a statement or interview that was obtained from a suspect under conditions that would make it inadmissible against the maker. The use of that expression in the reasons indicates that his Honour did not proceed upon an assumption that the interviews had been conducted in compliance with all necessary cautions. Although that consideration is not essential to my disposition of the defendants’ application, it is another reason why it has not been shown that the failure specifically to alert his Honour to non-compliance with ss 23G of the Crimes Act 1914 was material.

4. [52]

   I accept the defendants’ submission that under s 42(5)(b) of the Act their claim that “it is otherwise in the interests of justice” to revoke the restraining order cannot be dismissed solely on the basis that the inadmissibility of Mr Quan Lin’s answers was irrelevant to the ex parte application, or on the basis that other evidence was sufficient to establish “reasonable grounds”. As the Federal Agents exceeded their statutory investigative powers in relation Mr Quan Lin, I accept that the question whether revocation would be “in the interests of justice” is not conclusively answered by the fact Mr McLenaghan was unaware of the breach of s 23G and that his nondisclosure to the judge was inadvertent. Nor would it be conclusively answered if there were evidence that the Federal Agents’ breach, itself, was inadvertent.

5. [53]

   On the other hand, I reject the defendants’ assertion that, by making the orders upon evidence that included Mr Quan Lin’s interview, without knowledge of circumstances giving rise to doubts concerning its legality, Hamill J “was, in effect, condoning, was conscripted into accepting those processes”. If the ex parte orders are now allowed to stand, in circumstances where they were strongly supported before the learned judge by evidence independent of the impugned interviews, I do not accept that it would appear to any properly informed member of the public that the Court, as constituted for the present application, thereby condones or chooses to ignore the Federal Agents’ excessive use of power. The orders are self-evidently of significant importance in the administration of the criminal law. Revocation on the basis that the ex parte application was supported by the superfluous tender of a record of interview that had been unlawfully obtained would appear to a reasonable observer to be capricious and pointless. It would seem incoherent for the orders to be revoked on account of an excess of police power that had no sensible causal connection with the impugned orders. The interests of justice do not require this.

6. [54]

   Where there has occurred illegal conduct on the part of a public official, such as the questioning of Mr Quan Lin by Federal Agents in breach of s 23G, the issue of whether the administration of justice will be brought into disrepute by the continuance of a proceeding or the upholding of a court order that has followed upon the illegal conduct will depend upon several interrelated factors. They include the seriousness of the unlawful conduct, the causative relationship between that conduct and the consequent proceedings or court order and the gravity of the relief proposed to be granted, such as a stay of proceedings or dissolution of orders. Here, while the Federal Agents’ failure to accord Mr Quan Lin the opportunity to consult a lawyer before answering questions was a serious breach, it was not causal of orders being made because the interview was immaterial in the ex parte application. Further the relief by which the defendants propose the Court should mark its disapproval of the Agents’ conduct, namely revocation of the restraining orders, would be a serious setback to the enforcement of the law concerning proceeds of crime, in this case.

7. [55]

   These circumstances are far removed from those considered in Strickland v Commonwealth Director of Public Prosecutions. The very serious breach of safeguards against misuse of compulsorily acquired information in that case directly caused the examinees, who became the accused, to be deprived of their fundamental right to silence. They had a strong claim to a permanent stay of proceedings on the charges against them, in the interests of justice. In the present case there is no similarly proximate connection between the Federal Agents’ excess of power in questioning Mr Quan Lin and the making of the orders that the defendants seek to have revoked. I do not find it to be in the interests of justice that any of the orders made by Hamill J on 6 October 2021 should be set aside.

Orders

1. [56]

   Orders will be entered as follows:

   1. (1)

      The application of the first, second, third and fourth defendants by their notice of motion filed 10 February 2022 for the revocation of orders made by the Court on 6 October 2021 is dismissed.

   2. (2)

      The said defendants are to pay the plaintiffs costs of the notice of motion.