Commissioner of the Australian Federal Police v. Zhao & Anor

Lower Court Judgment

27/06/2014 Supreme Court of Victoria (Court of Appeal) (Nettle, Tate & Beach JJA)

[2014] VSCA 137

Catchwords

Proceeds of crime – Practice and procedure – Application for stay of civil forfeiture proceedings under Proceeds of Crime Act 2002 (Cth) (“POCA”) – Second respondent, who was charged with offence yet to be heard and determined, and first respondent, his wife, were granted stay of forfeiture proceedings against their restrained property by the Victorian Court of Appeal (“VCA”) – Whether VCA erred by not applying test of whether there was a real risk to administration of justice – Whether principles in Lee v The NSW Crime Commission and Lee v The Queen required VCA to take particular approach to stay of in rem civil forfeiture proceedings – Whether VCA failed to pay regard to distinction between compulsory examination under POCA of person charged with offence and nature of in rem civil forfeiture trial when it attached determinative significance to POCA’s abrogation of privilege against self-incrimination in respect of former but not latter – Whether VCA erred by granting a stay for forfeiture of property owned solely by first respondent to first respondent who had not been charged with offence on basis that any evidence she gave could expose risk of her evidence being used against second respondent in criminal proceedings.

Short Particulars