Commissioner of Australian Federal Police v Elzein

(2017) 94 NSWLR 700; [2017] NSWCA 142

NSW Court of Appeal

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Interrogate

Catchwords

1. Constitutional Law (Cth)
2. › Judicial power of the Commonwealth
3. › Ch III of the Constitution
4. › Essential features of judicial power
5. › Adversarial nature of criminal trial
6. › Whether compulsory examination and sworn statement provisions under Proceeds of Crime Act 2002 (Cth) impermissibly interfere with essential features of judicial power
7. › Whether court's inherent power to control abuse of process impaired
8. › Constitution, Ch III
1. Constitutional Law (Cth)
2. › Trial by jury
3. › Section 80 of the Constitution
4. › Whether compulsory examination provisions alter fundamental features of trial by jury
5. › Constitution, s 80
1. Crime
2. › Proceeds of crime
3. › Examination orders and sworn statements
4. › Proceeds of Crime Act 2002 (Cth), ss 39(1), 180
5. › Whether provisions permit orders against defendant in pending related criminal proceedings
6. › Construction of provisions in light of 2016 amendments
1. Crime
2. › Proceeds of crime
3. › Stay of proceedings
4. › Proceeds of Crime Act 2002 (Cth), s 319
5. › Whether provisions prohibit court from staying proceedings on ground that criminal proceedings are pending
6. › Whether prohibited grounds are prohibited considerations
7. › Scope of court's residual discretion

Quick Take

Sections 180 and 39(1) of the Proceeds of Crime Act 2002 (Cth) authorise examination orders and orders for sworn statements against persons who are defendants in concurrent criminal proceedings relating to the same subject matter. Section 319(2)(a) prohibits a stay based solely on the ground that criminal proceedings have been instituted, but the prohibited grounds are not prohibited considerations — the court retains a broad discretion to stay proceedings in the interests of justice and must have regard to prejudice under s 319(6). The court's power to protect the integrity of the criminal process is constrained only by the prescription that the mere fact of laying charges is insufficient to warrant a stay.