On 9 November 2023, in Commissioner of the Australian Federal Police v Yang [2023] VSCA 271 (AFP v Yang), the Victorian Court of Appeal narrowed the scope for obtaining quarantine (or prohibition) orders which prevent the dissemination of coercively acquired information under s.266A(2)(b) of the Proceeds of Crime Act 2002 (POCA).
The Court of Appeal found that compulsorily acquired information provided by a spouse could be used in the prosecution of the other spouse as the use of the information does not amount to prejudice to the other spouse’s prosecution and therefore does not justify the making of a quarantine order.
The background of AFP v Yang
Xuan Yang (Yang) was not subject to any criminal charges. Her husband, Fuhai Li (Li), and his business associate, Fanwei Meng (Meng), were charged with various criminal offences. The Commissioner applied for Yang to give a sworn statement setting out her interest or dealings with retained property and be examined about Li and Meng’s affairs.
Yang was concerned there was a risk the material she provided could be used by prosecutors against her husband Li and sought an order under s.266A(2)(b) prohibiting the disclosure of the compulsorily acquired information.
In support of her application, Yang submitted the use of compulsorily acquired evidence in her husband’s prosecution would be an abuse of process and contrary to rights given to spouses under s.18 of the Evidence Act 2008 (Vic) (Evidence Act) which entitles them to object to giving evidence against their spouse in a criminal prosecution.
The trial judge noted s.266A of the POCA authorises the disclosure of compulsorily acquired information. Acknowledging the Commissioner’s interest in pursuing the forfeiture application with information provided by Yang, the trial judge recognised how a quarantine order could restrict those investigations. The trial judge considered Yang’s affidavit and noted her “legitimate concerns” about the impact the disclosure of evidence in her husband’s prosecution would have on her relationships with her husband, children, and community.
In granting the quarantine order, the trial judge balanced the parties’ competing interests and prevented the information obtained compulsorily from Yang from being used either directly or derivatively by a prosecuting authority in the criminal trial of Li.
Appealing the order
The Commissioner appealed against the quarantine order because Yang was not the subject of a criminal charge and that the primary judge considered reasons unrelated to the risk of prejudice to any criminal trial.
Yang submitted the prohibition order should remain as the primary judge should have determined there was a real risk she would be charged.
The Court’s decision
The Court noted that s.266A allows the disclosure of information obtained under the POCA to investigating and prosecuting authorities, and “contemplates the derivative” use against a criminal accused.
In relation to the discretion to prohibit disclosure, in the absence of statutory criteria under s.266A(2)(b), the Court concluded “the matters relevant to its exercise must be concerned with prejudice arising in that criminal investigation or prosecution.” The Court of Appeal therefore found exercising discretion under s.266(2)(b) did not allow for the primary judge’s balancing of the parties’ interests.
Addressing the issue of prejudice to Li’s trial, the Court of Appeal rejected Yang’s personal concerns about her evidence being used in the prosecution of her husband. The Court considered the interplay between s.266(2) of the POCA and s.18 of the Evidence Act and found it unlikely that the prosecution of Li would have a forensic advantage if compulsorily acquired evidence was provided to them. The Court also found that merely being called as a prosecution witness against her husband was not a prejudice “which the law seeks to guard”.
Yang’s other ground in support of a quarantine order, that she herself faced “a real risk” of being charged, was rejected by the Court of Appeal as it found the risk of Yang being charged was no “more than conjecture” and this did not justify making a disclosure prohibition order.
Implications
The Court of Appeal in AFP v Yang confirmed that quarantine orders only protect against the risk of prejudice to an examinee’s criminal investigation or prosecution due to self-incrimination. This area of law is complicated and decisions (compare AFP v Surinder Kaur [2016] VSC 423 with AFP v Yang) can turn on fine distinctions. Despite the difficulties, it appears that:
- Evidence obtained from a spouse will not automatically be subject to a prohibition order and may be used against a spouse in a criminal investigation or prosecution.
- The likelihood of criminal charges being laid against an examinee is directly related to the likelihood of obtaining a prohibition order.
- Where there are multiple accused, the practical effect of a quarantine order in one accused’s favour means it is likely such information could not be disclosed to persons involved in the prosecution of others.
Although the scope for obtaining quarantine orders may have narrowed following AFP v Yang, they remain a critical step to guard against the dissemination of coercively acquired information.
Madison Branson Lawyers’ expertise in this specific area
AFP v Yang is the latest decision to clarify the application of the Proceeds of Crime Act 2002 (Cth). Madison Branson Lawyers has been at the forefront of developments in this area and has acted in leading cases, including:
- AFP v Surinder Kaur [2016] VSC 423. We acted for Singh and Arora who were charged with fraud. The Commissioner sought an examination of Kaur (Singh’s mother) about restrained property and Singh and Arora’s activities. While charges against Kaur were unlikely, there was a concern the examination would be used to gather evidence against Singh and Arora. Joining with Kaur’s lawyers, we obtained a prohibition order preventing examination material being used directly or derivatively by the prosecuting authority against Singh and Arora.
- Commissioner of the Australian Federal Police v Wen & Ors [2017] VSC 391. We protected our client (Yan-Ye) by obtaining a prohibition order against disclosure. The Court agreed there was a real risk of derivative use of compulsorily obtained evidence and it was preferable to exercise discretion in an examinee’s favour and prohibit disclosure if there was “a real risk” of being charged and use of the evidence “might prejudice” a “fair trial”. With a real prospect the suspects (including Yan-Ye) would be charged, the Court ordered the prohibition of disclosure to avoid prejudicing a fair trial.
As experts in Proceeds of Crime and Confiscation Law, Madison Branson Lawyers specialise in matters arising under the Proceeds of Crime Act 2002 (Cth) and the Confiscation Act 1997 (Vic). These Acts have wide reach and can affect you even if you are not suspected of a crime, are not charged or guilty of an offence, or have no knowledge of a crime.
The options available are constantly shifting in matters of this nature. If orders are made against you under the Proceeds of Crime Act 2002 (Cth) or the Confiscation Act 1997 (Vic), such as property restraint or forfeiture, you may also be subject to a compulsory examination. If you are the subject of an examination order and wish to seek the protection of a quarantine order, Madison Branson Lawyers can assist. It is imperative you seek urgent legal advice from an experienced proceeds of crime lawyer to best protect your assets.
Please contact us for a confidential discussion.
The information provided in this article does not, and is not intended to, constitute legal advice; instead, all information is for general informational purposes only.
