Commissioner of the Australian Federal Police v Cacu

Mr Cacu and Ms Kuzniatsova (or, where it is unnecessary to distinguish between them, the applicants), who are husband and wife seek a general stay of confiscation proceedings that were commenced against them under the Proceeds of Crime Act 2002 (Cth) (the Act) by the Commissioner of the Australian Federal Police. In the alternative, the applicants seek an order that the Court order a stay of orders made on 10 March 2015 relating to the provision of statements under s 39 of the Act and examinations under s 180 of the Act.

On 10 March 2015, the Commissioner applied ex-parte for orders restraining various properties, cars and bank accounts of Mr Cacu and place certain of his property into the custody and control of the Official Trustee in Bankruptcy, and to provide the Commissioner with sworn statements concerning his property, liabilities and dispositions or dealings with property. The Commissioner also sought orders in respect of assets in the name of Ms Kuzniatsova which were suspected of being “subject to the effective control of [Mr Cacu]”. The application was supported by an affidavit of Mr Steven Daher, dated 10 March 2015, which deposed to suspicions held by him that Mr Cacu had committed a number of serious offences under ss 140(1) and 136(1) of the Anti-Money Laundering and Counter Terrorism Financing Act 2006 (Cth) and ss 400.9(1) and 400.3(1) of the Schedule to the Criminal Code Act 1995 (Cth). These offences involve allegations that Mr Cacu provided false or misleading information when opening and using a Westpac bank account, including the use of a false name, ‘Egan Coen’.

On 11 March 2015, Federal Agents arrested Mr Cacu and charged him with offences substantially reflecting the suspicions of Mr Daher in his affidavit. (He was also charged with gun and drug offences which do not presently matter). On this date, the applicants were served with the orders made on 10 March 2015 by this Court.

The applicants filed two notices of motion in this Court on 1 and 24 April 2015. By the first, they sought a stay of the orders requiring Mr Cacu to file sworn statements of financial information with the Commissioner until after the determination of the criminal proceedings faced by him. By the second, they sought a general stay of the proceedings until after Mr Cacu’s criminal proceedings had been determined. The applicants also sought an order for the return of a vehicle to Ms Kuzniatsova and an extension of time for them to challenge the restraining orders. Those orders have been dealt with and the only questions left concern whether to grant either a partial or general stay of these proceedings whilst the criminal charges remain to be tried.

The affidavit of Mr Daher listed those matters which led to his suspicion that Mr Cacu had dealt with property having a value of over $100,000 which is reasonably suspected of being the proceeds of crime, contrary to s 400.9(1) of the Criminal Code. For the same reasons, Mr Daher suspected that Mr Cacu dealt with specified property worth over $1,000,000 which he believed was the proceeds of crime and/or intended it to be an instrument of crime, contrary to s 400.3(1) of the Criminal Code. These reasons were that the various assets (real property, bank accounts and motor vehicles) sought to be forfeited involved the use of funds greatly disproportionate to that expected to be available from legitimate sources of income as declared by Mr Cacu and Ms Kuzniatsova in their yearly tax returns between 2007 and 2014; in respect of some of the assets suspected actually to belong to or controlled by Mr Cacu, Mr Cacu used the alias Egan Coen to acquire or operate them; in respect of bank accounts, actually Mr Cacu’s, the use of the alias; whilst in respect of those in his own name, they represented access to funds; and, in respect of accounts and motor vehicles in Ms Kuzniatsova’s name, they are under Mr Cacu’s control.

It will be seen that the property in respect of which financial statements are sought and, ultimately examination is to occur, is property which is alleged to have been dealt with in a manner that constitutes the specified criminal offences.

The financial statements were ordered to be provided under s 39A(1) of the Act –

Examinations are conducted under Pt 3 Div 1 –

The Proceeds of Crime Regulations 2002 make provision for the appointment of approved examiners –

The orders obtained by the Commissioner included orders restraining specified property of the applicants (orders 6, 7 and 8), orders restraining unspecified property held in the name and known alias of Mr Cacu (order 9), orders granting custody and control of specified property to the Official Trustee in Bankruptcy (orders 10, 11 and 12), orders requiring Mr Cacu to provide the Commissioner with sworn statements of financial information (orders 13 and 14) as also Ms Kuzniatsova (orders 15 and 16) and orders requiring Mr Cacu to obtain bank statements from a Turkish bank account said to be in his name and to transfer funds in that account to the account of the Official Trustee in Bankruptcy (orders 17 and 18).

Those presently in issue are –

Schedule Four sets out the form of the sworn statement required under order 13 and requires the provision of particulars concerning the nature and extent of all assets and liabilities, including the names of persons or institutions having custody of title documents, the dates of acquisition, the amounts and dates of payments in discharge of any liability in relation to property and the source of any such payments, the identity of any creditor, full particulars of dealings with property since 15 May 2009 as well as the property, liabilities and dealings of companies of which Mr Cacu is a director. In substance, the order requires Mr Cacu to disclose the entirety of his financial position to the Commissioner. The requirement to disclose sources of payments is somewhat uncertain in scope: at its narrowest, it would simply require identification of the provider of the funds to Mr Cacu (e.g. the bank account from which they were paid); at its widest, the mode (even if criminal, say by drug dealing) by which he acquired the funds to make the payments would have to be disclosed. It seems to me that this latter construction is the correct one. Orders for examination of the applicants were also made.

The applicants submit, firstly, that Mr Cacu should not be placed in a position where he must decide whether to prejudice his criminal trial or his defence of the forfeiture proceedings. In the event that these proceedings are not stayed, the issue would arise concerning the impact of the compulsory financial statements and examination on the fairness of his trial of the criminal charges. Reliance was placed on Commissioner of the Australian Federal Police v Zhao [2015] HCA 5; 89 ALJR 331, in which the High Court upheld an order staying, until the conclusion of cognate current criminal proceedings, confiscation proceedings brought by the Commissioner. The proceedings had moved to the point that it was necessary to make an exclusion application in order to prevent automatic forfeiture (see ss 19 and 49 of the Act) with the practical consequence that Zhao would have to put on evidence dealing with the issue whether the property was the proceeds of crime or not, the very issue that was the subject of the criminal trial. Hence his need for a stay to avoid prejudicing the fairness of his trial. The applicants contend, as did the second respondent in Zhao that, as Mr Cacu faces pending criminal proceedings concerning allegations that grounded the confiscation proceedings, the issues in the confiscation and the criminal proceedings are “substantially identical”, and he is able to point to the risk of prejudice to his criminal proceedings if required to defend himself in the confiscation proceedings. In Mr Cacu’s affidavit he asserted that the risk of prejudice arises from his ability to defend the confiscation proceedings while the related criminal proceedings remain on foot. In particular, “There are material matters that I would like to advance in defence of the confiscation proceeding. These matters are substantially similar to the matters that I would like to put forward in response to the criminal charges”. Mr Cacu also contended that, in complying with orders 13 and 14, which require him to provide written statements concerning his properties and liabilities, he would need to provide evidence that “would be directly relevant to the criminal charges”. He also deposed to his fear that his answers in the sworn statements might lead police or prosecuting authorities to “conduct further investigations directed at obtaining admissible evidence to prove those matters in my criminal proceeding”. He said that, if the confiscation proceedings continue throughout the criminal proceedings against him, he would be “forced from time to time to make difficult judgements about the extent to which I should waive my right to silence in order to lead evidence to counter the plaintiff’s allegations in the confiscation proceeding”.

The Commissioner submitted that Zhao concerned the pursuit of forfeiture proceedings to a hearing before the relevant criminal proceedings had concluded against the accused, whilst here it has not yet sought forfeiture and does not plan to do so until after the conclusion of the criminal proceedings and, accordingly Zhao is irrelevant. The point of the orders requiring the statements is to identify assets that might be restrained and enable consideration to be given to whether they should be restrained and protected from dissipation. The plaintiff submitted that an order staying the entire proceedings would undermine the principal objects of the legislation, specified in s 5 as including “to enable law enforcement authorities effectively to trace proceeds” of crime and confiscate them. The Commissioner contended this purpose would be thwarted if the currency of criminal proceedings having a factual overlap with the confiscation proceedings (which will almost always exist) provided a basis for staying the latter, including preventing or, at least, substantially delaying the necessary ancillary processes of requiring financial statements and conducting examinations. The Commissioner pointed to s 319 of the Act as demonstrating that the legislature contemplated that criminal and civil proceedings might run concurrently and thus, as stated in Zhao at [30] –

The Commissioner relied on Lee v New South Wales Crime Commission [2013] HCA 39; 251 CLR 196; 235 A Crim R 326 (Lee 1), in which the High Court allowed an accused to be examined under the Criminal Assets Recovery Act 1990 (NSW) (CAR Act) on subject matters related to pending criminal charges because the legislation (submitted to be analogous to the Act) provided adequate safeguards against any risk of prejudice that might arise from the overlap in proceedings. In the context of this case, the Commissioner submitted that, although information from financial statements and the examination can be shared, it is inadmissible against Mr Cacu in any criminal proceedings. Furthermore any sharing – if it occurred – would need to be carefully undertaken to avoid the risk of the trial miscarrying as occurred in Lee v The Queen [2014] HCA 20; 237 A Crim R 436; 88 ALJR 656 (Lee 2) where transcripts of the appellant’s evidence before the Commission were published to the Director of Public Prosecutions and available to the prosecutors.

In Zhao the Court stated (omitting references) –

The submission of the Commissioner as to the generality of the basis for the applicant’s contention that Mr Cacu’s fair trial will be prejudiced is answered, as it seems to me, by the fact (not really contested) that “the offences and the circumstances relevant to both proceedings are substantially identical”: see Zhao at [42], set out above. Requiring Mr Cacu, in effect, to admit (or deny) his ownership or control of the assets which are the subject of the Criminal Code offences will constitute a breach of the “important aspect of a criminal trial which follows from a fundamental principle of the common law … that the prosecution is to prove the guilt of an accused person charged with a crime and cannot compel a person charged with a crime to assist in the discharge of its onus of proof”: Zhao at [18]. This principle is acknowledged by the presence of s 198. However, the use of the statements to obtain derivative evidence is not prohibited and such derivative evidence would be admissible in his trial to support, if it happened to do so, the prosecution case or provide the basis for other charges.

The starting point of the recent jurisprudence concerning the significance of the intersection between executive compulsory investigation and criminal trials dealing with the same person and overlapping factual issues is Hammond v The Commonwealth of Australia [1982] HCA 42; 152 CLR 188, where the plaintiff, who had been charged with criminal offences, was liable to be questioned about those matters by a Royal Commission. It was accepted that, if there were a real risk, as opposed to a remote possibility, that the administration of justice would be interfered with if the proposed examination occurred, it would constitute a contempt of court and the examination must be adjourned until the conclusion of the trial. In finding there was such a risk Gibbs CJ (with whom Mason J agreed) said (at 198) that the proposed examination was “very likely to prejudice… [Hammond] in his defence”. Brennan J, coming to the same conclusion, said (at 202) that, although the source of the immunity against self-incrimination may be debateable, “it is sufficient for present purposes to appreciate that it is a principle deep-rooted in our law and history that the Crown may not subject an accused person to compulsory process to obtain his answers upon the issue of his guilt of an offence with which he has been charged”. Deane J, (who proposed a wider restraint than Gibbs CJ and Brennan J) described it (at 208) as –

In X7 v Australian Crime Commission [2013] HCA 29; 248 CLR 92; 232 A Crim R 410, a majority of the High Court held that the Australian Crime Commission Act 2002 (Cth) did not authorise the examination by the Commission of a charged person in respect of matters which were the subject of the charges. Hayne and Bell JJ described the impact on the process of criminal justice of the proposed construction as follows –

In their dissenting judgment, French CJ and Crennan J concluded that the specific provisions of the Australian Crime Commission Act contemplated the conduct of an examination of a person charged with an offence and made specific provision as to the use and disclosure that might be made of material elicited relevant to the subject matter of the offence, making specific reference to the risk of prejudicing the fair trial of the accused (at [25]-[26]). That Act reflected “a legislative judgment” that gave priority to the investigative functions of the Commission over the “private interest in claiming the privilege against self-incrimination” (at [29]).

The problem in Lee 1 concerned the exercise of the power to order an examination by a registrar of the court of defendants under s 31D of the CAR Act, which was likely to concern conduct in respect of the relevant property that would impinge upon offences with which they were also charged. (I interpolate that examinations under the Act are not conducted by the registrar but by a person prescribed by the regulations: s 183. Although such a person may have judicial or quasi-judicial status (see regulation 12, supra), in no sense are they acting judicially.) French CJ (omitting some references) observed –

The following matters were, according to the Chief Justice, determinative –

In dissent (with Kiefel and Bell JJ), Hayne J concluded that the power given to the Supreme Court of New South Wales, by s 31D(1) of the CAR Act, to order the examination on oath of a person “concerning the affairs of the affected person” did not permit the Court to order the examination of a person charged with, but not yet tried for, an offence about the subject matter of the pending charge since the loss of the privilege against self-incrimination would work “a fundamental alteration to the accusatorial process of criminal justice” which the general language of the section did not envisage (at [59]-[60]). His Honour considered that the question had been decided by X7, which had applied “fundamental and generally applicable principles of very long standing” (at [71]). Furthermore –

His Honour mentioned and dismissed the significance of the lack of a distinction drawn in s 31D between the commencement or otherwise of criminal proceedings and continued (omitting references) –

Hayne J articulated the general principle as follows (omitting most references) –

Crennan J (in the majority), following a review of the CAR Act, focused on the purpose of the ancillary powers given to the court to make orders facilitating the “objects of identifying and recovering property sourced from serious crime related activity” of which examining the defendant was one and noted that delaying an examination until criminal proceedings instituted against the defendant were completed could frustrate these objects (at [131]). The power to order examination and require answers to incriminatory questions is not expressed to be limited by the currency of criminal proceedings and that there is no such limit is indicated by the grant of direct use immunity (at [133]). The allowing of derivative use in criminal proceedings did not oust generally applicable rules as to admissibility and the examinee is protected “against any such derivative use by requiring that the examination take place before the Supreme Court, or an officer of the Court, having in addition to the [power to restrict publication]…, the inherent power to ensure the proper administration of justice”: at [137] quoting Meagher JA in the Court of Appeal in New South Wales Crime Commission v Lee [2012] NSWCA 276; 84 NSWLR 1 at 23-24 [99]. The CAR Act –

It is clear that, as with French CJ, Crennan J’s view of the reach of s 31D rested significantly, indeed decisively, upon the continuing powers of the Court to ensure that the procedures authorised by the CAR Act did not result in an unfair trial. Thus, that s 63 deprives a defendant subject to pending criminal proceedings of an entitlement to have civil proceedings (envisaged by the CAR Act) stayed did “not operate to override the Supreme Court’s ‘undoubted power to stay a criminal proceeding which will result in an unfair trial’: Dietrich v The Queen [1992] HCA 57; 177 CLR 292 at 298 per Mason CJ and McHugh J; see also at 332 per Deane J…” (at [143]). Thus “consideration of whether an order for examination might prejudice the fair trial of a person proposed to be examined is relevant not only to the exercise of discretion under s 31D(1)(a) to order an examination, but also to the subsequent conduct of any examination in the Supreme Court” (at [145]).

Kiefel J, having mentioned the abrogation by s13A(1) of the CAR Act of the common law privilege against self-incrimination (at [158]), pointed out (citing X7) –

Bell J agreed with the judgment of Kiefel J, in her additional remarks emphasising the direct relevance of X7 in disposing of the Commission’s argument that the CAR Act authorised “the compulsory examination of a person about the subject matter of a charged offence” or, if not, “the Registrar conducting the examination would not permit [such] questioning” (at [255] and [258]). “A real risk that the administration of justice will be interfered with” (vide Hammond 152 CLR at 198 per Gibbs CJ) arises not merely from “the conferral of an advantage on the prosecution that the rules of procedure would otherwise deny” but, “as X7 explains, the compulsory examination would … [deprive the accused] of forensic choices legitimately available” by substantially reducing “the areas in which the prosecution case may be tested in accordance with counsel’s obligations” (at [264]-[265]). “[T]he assumption upon which our adversarial system of criminal justice proceeds … [is] that the accused is entitled to be acquitted of a charge of criminal wrongdoing unless unaided by him or her the prosecution proves guilt” (at [266], emphasis in original).

Gageler and Keane JJ both concluded that the CAR Act authorised an order for examination of a person accused of criminal offences about matters relevant to the offences and that this overlap was not a basis for the Court to refuse to make the order (at [268]-[269]). In respect of Hammond and X7, their Honours said (omitting some references) –

The function of the examination was to permit inquiry about matters pertinent to the CAR Act proceedings and any other purpose, such as whether to charge the defendant with offences or assist the conduct of pending criminal proceedings, would be improper (at [327]). But, in pursuit of property in which an “affected person” has an interest, the scope of the examination –

Although it dealt with a different situation to that with which I am faced, I should mention X7 v R [2014] NSWCCA 273, in which the Court (Bathurst CJ, Beazley P, Hidden, Fullerton, R A Hulme JJ agreeing) found that, although the disclosure of X7’s evidence to those conducting the prosecution of his trial had been a breach of the requirements of the examiner’s direction made under s 25A(9) of the Australian Crime Commission Act, a permanent stay of the trial was not justified when a new prosecution team was briefed and was not given the interdicted material. A temporary stay of the examination proceedings until after an impending trial, justified by the interference with the proper processes of the administration of criminal justice and not dependent on any demonstrable practical prejudice was fundamentally different from a permanent stay, which is not only rarely granted, but required the identification of a fundamental defect in fact, as distinct from potentially, having unfair or unjustifiably oppressive consequences incapable of corrective action by the trial judge or else brought the administration of justice into disrepute (Bathurst CJ at [90]-[92]). His Honour pointed out (at [105]), after reviewing the decisions (amongst others) mentioned above, that the judgments (including of those in dissent), particularly in X7, concerned the significance of the essentially agreed position that the examination procedures authorised by the legislation in question fundamentally altered the accusatorial judicial process (the question being whether the legislation permitted this alteration and to what extent) and thus were concerned with the requirement that the trial comply with the law rather than with the question of fairness.

In Application of the Commissioner of the Australian Federal Police [2015] NSWSC 888 Button J declined to make orders under s 180 of the Act for the examination of several persons (the respondents) until the criminal trial then pending against them had concluded. (Publication of the judgment is restricted because of pending criminal trials. However, it will not be necessary to do more than refer to the legal principles applied by his Honour, which will not disclose any identifying material.) Following their arrests on drug importation charges, a search of certain premises linked with one of the respondents located drugs and cash. Ultimately they were charged with importing prohibited substances and dealing with property reasonably suspected of being the proceeds of crime under the Criminal Code 1995 (Cth). The Commissioner commenced proceedings seeking, inter alia, orders for the examination of the respondents about their affairs which, it was not contested, would include the subject matter of their impending trial. The respondents relied, inter alia, on Zhao. The Commissioner sought to distinguish Zhao on the same basis as has been argued before me, namely that it concerned Pt 2.2 of the Act dealing with forfeiture applications and concomitant exclusion orders whilst the instant application (as here) concerned, inter alia, examinations under Pt 3.1. In the latter situation, the privilege against self-incrimination was specifically abrogated, though with direct use immunity (as with the compulsory financial statements) and the proceedings conducted in private, whilst in the former, the hearings were in public and the privilege was not abrogated; furthermore, examinations are directed to serving the fundamental purpose of the Act by enabling the authorities to locate assets that might be subject to forfeiture.

Button J, as I have mentioned, in effect decided to delay the making of the examination orders until the trial was completed. Starting from the obvious facts that the examinations would deal with the cash discovered during the search and that the evidence as to the finding of that cash would be relied on in support of all the charges, his Honour also thought that answers to questions about other moneys could well lead to the discovery of other relevant evidence that would be tendered in the respondents’ trial, since there was no derivative use immunity available. Compulsory disclosure of the entirety of their financial affairs shortly before their trial argued, his Honour considered, for postponement of the examination until after the trial had concluded (ibid at [46]-[47]). His Honour noted, however, (at [48]) the provisions of the Act as to immunity, which did not exclude derivative use, and to the effect that the mere fact of pending criminal proceedings was not a basis for a stay of proceedings under the Act, as I understand his Honour, demonstrated that the problem of overlap had been considered by Parliament and needed to be considered in light of the purpose of the Act to identify, restrain and, ultimately, expropriate tainted property. At the same time, this did not mean that the Court was necessarily precluded from postponing the examination in the circumstances of the case (at [51)]. Although the objects of the Act would be thwarted during the time of any postponement, his Honour considered that there would be no “practical prejudice” since the cash founding the proceedings was in the control of the Commissioner and any further dishonest or illegal dealing with their financial affairs would have been ended with their arrest and incarceration (at [51]-[52]). The legislation does not prohibit the Court from ensuring, to the extent it is able (consistent with the Act), that the pending trial will be conducted consistently with the fundamental characteristics applying in Australia to criminal proceedings, as described in recent decisions of the High Court of Australia, amongst others, X7, Lee 1 and Zhao (at [55]-[56]).

Button J rejected the Commissioner’s submission that Zhao, in particular, was distinguishable because it concerned the postponement of a forfeiture and exclusion hearing until after the pending trial dealing with the same subject matter. His Honour considered that its reasoning applied with “more force here” because it dealt with the situation where the accused had a choice about giving evidence as distinct with what his Honour was considering, where the accused were to be compelled to give evidence in their examination (at [58]). The mere fact that the Act abrogated direct use immunity and not derivative use immunity so far as examinations are concerned and left the forfeiture and exclusion hearings unaffected (because compulsion was not involved) did not suggest a legislative intent to discriminate between the two procedures (as I understand his Honour) for the purpose of considering whether the Court’s discretion to ensure that the overlapping criminal trial was undertaken in accordance with fundamental principles (at [59]-[60]).

Accordingly, Button J considered he should adopt the approach of the Victorian Court of Appeal, which was unanimously upheld by the High Court in Zhao, and postpone the proposed examinations until after the conclusion of the trial.

At [63]-[67], Button J pointed out, in respect of Lee 1, that, although Gageler and Keane JJ were of the view both that the Court had power to order an examination as to overlapping subject matter with a pending trial and no discretion to refuse to do so, both the Chief Justice (explicitly at [49] and [51]) and Crennan J (implicitly at [141]) considered that such a discretion survived, pointing out, at all events that the appeal concerned only the power of the Court to order examinations and not whether the discretion to do so had miscarried. Furthermore, the majority emphasised the significance of the fact that the examination was to be conducted before a Registrar of the Court, which is not the case under the Act.

More generally, his Honour noted (at [68]) that s 180 of the Act itself is permissive and not mandatory, providing for the exercise of the judicial discretion. Whilst the mere fact of pending criminal proceedings does not prevent an examination (s 186(4)) or justify a stay (s 319), adjournments are not prohibited (at [70]).

This reasoning applies here in respect of the examination but, in substance, an order delaying the requirement to provide financial statements would amount to a stay. Where, however, the circumstances in a particular case demonstrate the intersection to a significant degree of the issues in the pending trial and those raised or agitated by the compulsory procedures and create the substantial risk that the trial will be unfair in the sense that fundamental principles of criminal justice will be significantly qualified, a great deal more is involved than the mere coincidence of proceedings, which s 319 states is not a ground for a stay.

The above review of the authorities shows, as it seems to me, that requiring an accused person to assist the Crown in its prosecution of him or her is a substantial departure from the fundamental character of the process of a criminal trial which, unless authorised by statute, would result in the accused being denied a trial according to law. It is not disputed in this case that the Act authorised the orders as to the provision of financial statements made against the applicants as well as those for their examination. The real question is whether these orders must be complied with despite the pending criminal trial against Mr Cacu. Another way of putting this question is whether that part of the investigation of their affairs comprising compliance with the orders should be delayed until after the trial. Although it is not known quite how significant the sought disclosures would be as a practical matter, it can be readily accepted that they would assist the Commissioner to perform his functions under the Act and serve the objects of the Act as they apply to the Mr Cacu. Furthermore, it is self evident that the function and those objects might be frustrated to a greater or lesser degree by delay because of actions that might be undertaken by the applicants or of their agents to conceal or dissipate assets that have been restrained but not identified.

The question here is whether the Act has so adjusted the incidents of trial according to law that the investigative processes ordered to occur must proceed without delay or impediment despite the pendency of Mr Cacu’s trial. Although the statement of affairs and the examination are processes set in motion by orders of the Court, the examination is not conducted by the Court or the Registrar as distinct from the situation in Lee 1. The powers of the Court to control the use of the statement and the conduct of the examination and the information Mr Cacu might disclose, obviously enough, cannot be delegated to the appointed examiner, nor in any sense can the examiner be regarded as acting judicially: he or she is the agent of the executive. It is not altogether clear whether, in light of s 266A, the Court could make it a condition of its orders to the effect that neither the statement nor the information provided by Mr Cacu at the examination be disclosed to the prosecution, though I rather think it could. Certainly such a condition could not be imposed by the examiner in respect of matter disclosed in any examination. However, no party submitted that this might overcome the prejudice that would otherwise subsist were the stay not granted. In this regard, I should mention the point made by French CJ in Lee 1 at [54] (supra) to the effect that keeping material disclosures secret from the prosecution would not remove the forensic disadvantage an accused person would suffer in the conduct of his or her trial from compulsory disclosure, in this respect not disagreeing with the characterisation of the disadvantage stated by Hayne and Bell JJ in X7 at [124] (supra, cf Kiefel J, with whom Bell J agreed, in Lee 1 at [164], [211]-[213] and [240], Crennan J at [ibid 141] where her Honour seemingly implied that secrecy might be sufficient, as did Gageler and Keane JJ at [340]).

The Commissioner has not submitted that there is a particularly urgent need for the financial statements or examinations additional to the common sense consideration that, when dealing with assets of the kind in question here and the inducement to dissipate or conceal them created by impending forfeiture, it is advantageous and best fulfils the objects of the Act to proceed with promptitude. This must be balanced against the real and substantial risk that the legitimacy of the administration of criminal justice will be prejudiced by breach of the fundamental principles to which I have referred (and which, despite the differing results reflecting varying interpretations of relevant legislation, are not significantly controversial) that the Court not only has the power but also the duty to maintain as far as it is able. I am also minded that, in this Court, Button J has made orders staying examinations pending completion of a trial. Where, perhaps, no bright line distinctions can be made, judicial comity should in a comparable case (which this substantially is) lead me to the same result. Accordingly, in respect of Mr Cacu, I propose to order a stay of the orders requiring him to provide statements of his affairs and to order that examination not take place until his impending trial has been completed.

Ms Kuzniatsova is in a different position. She has not been charged and is not facing pending criminal proceedings. It was submitted on her behalf that her defending the confiscation proceedings will be prejudicial to the interests of her husband in his criminal proceedings. Of course, she has a privilege in respect giving evidence in criminal proceedings under s 18 of the Evidence Act 1995 (NSW), but proceedings under the Act are civil in character. In Zhao, the forfeiture proceedings against the accused’s wife were also stayed, essentially to avoid the multiplicity of proceedings (supra at [48]). However, a separate statement of affairs would, at all events, be required and her examination would also proceed independently. Although Button J stayed the wife’s examination in Application of the Commissioner of the Australian Federal Police, at least partly this was because of the possibility that she also might be charged with supplying the drugs forming the basis of her husband’s charges. There is no evidence and it is not submitted that Ms Kuzniatsova is facing this risk. I do not see a proper basis for interfering with the ordinary procedures applying to her by virtue of the orders made against her.

The applicants sought orders extending the time in which to make applications under s 42 of the Act to revoke the restraining orders presently applying to their property. Such an application must be made within 28 days after being notified of the order, if an application has been made for an extension within that period, within such longer period not exceeding three months as the court allows: s 42(1A). There is no question that the application for an extension was made within time. The applicant was in custody during the whole of the 28 day period and, it is submitted, the practical difficulties of mounting a substantive application during that period are so manifest as to make it appropriate to extend the time. The extension was opposed by the Commissioner on the ground that, apart from referring to the incarceration of Mr Cacu, no evidence of the difficulties facing an application for revocation has been adduced. It seemed to me that the difficulties of dealing with legal proceedings whilst in gaol are obvious whilst, on the other hand, it was conceded on behalf of the Commissioner that there was no prejudice that might be occasioned by acceding to the application. For these reasons, I made the order extending time to the applicants to 1 July 2015.