Reported Decision : 50 NSWLR 465 115 A Crim R 331 New South Wales Supreme Court CITATION : NEW SOUTH WALES CRIME COMMISSION v. MURCHIE [2000] NSWSC 591 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC No. 12829 of 1999 HEARING DATE(S) : Monday 29 May 2000 JUDGMENT DATE : 30 June 2000 PARTIES : NEW SOUTH WALES CRIME COMMISSION v. MURCHIE, George John & ANOR JUDGMENT OF : Greg James J at 1 LOWER COURT Supreme Court JURISDICTION : LOWER COURT 12829 of 1999 FILE NUMBER(S) : LOWER COURT Registrar Robinson JUDICIAL OFFICER : COUNSEL : Plaintiff: I. Temby, QC./R. Bromwich 2nd Defendant: G. Heathcote SOLICITORS : Plaintiff: New South Wales Crime Commission 2nd Defendant: Andrew Watts CATCHWORDS : Review of Registrar's ruling - proceeds of crime legislation - ambit of statutory examination - purposes of restraining order - meaning of "affairs" in Criminal Assets Recovery Act. Criminal Assets Recovery Act 1990 LEGISLATION CITED : Confiscation of Proceeds of Crime Act 1989 Proceeds of Crime Act 1987 (Cth) Drug Trafficking (Civil Proceedings) Act 1990 Bond Corporation Holdings Limited v. Sulan (1990) 3 WAR 49 Young (1999) 46 NSWLR 681 Repatriation Commission v. Vietnam Veterans Association of Australia, New South Wales Branch Inc. & Ors [2000] NSWCA 65 Saraswati (1990-91) 172 CLR 1 Bropho v. Western Australia (1991) 171 CLR 1 Jeffery v. DPP (Cth) 1995 79 A. Crim. R. 514 CASES CITED : NSW Crime Commission v. Gardiner [1999] NSWSC 1210 DPP v. Logan Park Investments Pty. Limited & Anor (1995) 37 NSWLR 118 NSW Crime Commission v. Davies [1999] NSWSC 354 DPP (Cth) v. Jeffery (1992) 58 A. Crim. r. 310 DPP v. Chidiac (1991) 25 NSWLR 372 Woodcroft & Ors v. DPP [2000] NSWCA 128 Toro-Martinez (1993) 71 A. Crim. R. 326 DECISION : Registrar's ruling upheld IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION No. 12829 of 1999 GREG JAMES, J. FRIDAY 30 JUNE 2000 NEW SOUTH WALES CRIME COMMISSION v. GEORGE JOHN MURCHIE & ANOR JUDGMENT 1 HIS HONOUR: Application has been made by motion by Janice Margaret Murchie, one of two respondents in proceedings commenced by the New South Wales Crime Commission pursuant to the Criminal Assets Recovery Act 1990 for a review pursuant to Part 61 Rule 3 of the Supreme Court Rules of a decision or other act of a registrar. 2 It is sought to review what is accepted by both the parties as a decision of Deputy Registrar Robinson on 15 March 2000 overruling an objection by the solicitor for the applicant to a question asked of the applicant in an examination ordered by the court pursuant to s.12(1) of the Criminal Assets Recovery Act 1990. It is contended that the question sought information irrelevant to the examination and raised matters outside the permissible ambit of enquiry on such an examination. It is submitted that the question sought information having nothing to do with the purposes for which the statute provided the facility of examination. 3 Both parties were concerned that this court provide some guidance as to the purposes for which an examination under the Act could be used. 4 The applicant simply contended that there was no possible connection whatsoever between the question and those matters of which s.12 speaks, ie., those matters "concerning the affairs of the owner, including the nature and location of any property in which the owner has an interest". It was contended that only those questions were permissible that are relevant to financial affairs, to identify the owner of property or an interest in property and to the nature and location of property. 5 Both parties have filed most valuable written submissions from which I take the following summary of the relevant circumstances. 6 The restraining order under s.10 of the Criminal Assets Recovery Act 1990 was made on 22 November 1999 in respect of all interests in property of each of George John Murchie and his sister Janice Margaret Murchie. In her case, the property restrained included four lots of real estate, one of which was 50 Hannan Street, Maroubra of which she is the registered owner, and $2,955 cash which was seized by police at that address on 17 November 1999. 7 On that date, both Mr. and Ms. Murchie were arrested and charged with a serious drug offence. 8 The restraining order by clause 3 ordered the examination on oath of each of Mr. and Ms. Murchie before a registrar concerning their own affairs and the affairs of each other, including the nature and location of any property in which either has an interest. 9 That order was made pursuant to s.12(1)(b) of the Act 10 Section 12(1) Criminal Assets Recovery Act provides:- "(1) The Supreme Court may, when it makes a restraining order or at any later time, make any ancillary orders (whether or not affecting a person whose interests in property are subject to the restraining order) that the court considers appropriate and, without limiting the generality of this, the court may make any one or more of the following orders:- (a) an order varying the interests in property to which the restraining order relates; (b) an order for the examination on oath of:- (i) the owner of an interest in property that is subject to the restraining order; or (ii) another person before the court, or before an officer of the court prescribed by rules of court, concerning the affairs of the owner, including the nature and location of any property in which the owner has an interest." 11 On 22 November 1999, the Commission applied for an assets forfeiture order in respect of all restrained property. Accordingly, the restraining order remains in force, pursuant to s.10(9). 12 In support of the restraining order there was evidence in the affidavit of Michael Charles Luland sworn 22 November 1999. It appears from a police statement of facts, Exhibit B to that affidavit, that- (a) Mr. Murchie and an associate named Montgomery were at 50 Hannan Street on the evening of 16 November and the early morning of 17 November; (b) they then and there moved boxes containing cannabis resin, from a shed into the house; (c) Ms. Murchie was also present and talked to her brother and Montgomery when the boxes of cannabis resin were being moved about; and (d) when the search warrant was executed, 750kg of cannabis resin was seized. 13 At the examination, the applicant was asked:- "Now, the previous evening at about 9.00 pm is (sic) there anyone else in your home?" 14 That question was objected to. After argument and a ruling that the question was relevant, Ms. Murchie sought and was granted an adjournment to enable that ruling to be tested. 15 The solicitor for the Commission who asked questions at the examination made clear that he wanted to ask questions "about the drug matter" with which Ms. Murchie was charged. 16 There was in evidence before me that affidavit, the transcript of the examination and the affidavit of the applicant filed in response to the restraining order requirement that she and Mr. Murchie respectively furnish to the Commission sworn statements setting out particulars of their interest in property, liabilities, etc. That affidavit disclosed that she owned considerable and diverse property of substantial value presumably acquired long before her alleged instant participation in the "drug matter". 17 At the hearing of the proceedings it was conceded by senior counsel for the respondent that the question was not relevant if the examination of the applicant was to be entirely confined to her immediate property and finances. But it was asserted it was relevant as going to a participation by her or her brother in serious crime related activity. Similarly it was conceded by counsel for the applicant that if the question related to conduct which amounted to participation in a serious crime related activity preceding the order, and provided it had relevance to the acquisition, whether directly or indirectly, of property or interests in property or in connection therewith, by reason of such conduct it would be relevant. It was, however, contended that if the question related to serious crime related activity, it would not be relevant unless also linked somehow to property. 18 The question objected to occurs in the transcript in the following passage:- "Q. … Now, just going back to the execution of the search warrant by the police on 17 November 1999 at your premises, you're there when the police arrive? A. I was in bed. Q. You were in bed. Do you recall the time at which they arrived? A. I was asleep and I assume - I'm pretty sure it was around about one o'clock in the morning, I think it was at any rate. Q. Well, I have 1.35 am? A. Well then you have the exact time then. Q. I can't say that's the exact time but we're in the ball park. Now, the previous evening at about nine o'clock is there anyone else in your home? ANDREWS: Objection." 19 The objector was asked the basis:- "ACTING DEPUTY REGISTRAR: Yes, state your basis please? ANDREWS: Relevance. It's an examination as to financial affairs. The question as to who may be in a particular location at a particular time I can't see how it could be remotely relevant to these proceedings. GIORGIUTTI: Well, I don't accept that it's to do with financial affairs, affairs generally, and I want to move on and talk about the drug matter with which this witness is charged. ACTING DEPUTY REGISTRAR: All right. On that basis that this is heading towards financial information I'll allow the question that you're proceedings towards, otherwise can you justify for me how it falls within the objects of the Criminal Assets Recovery Act? GIORGIUTTI: Well, it's in connection with a person's affairs. There's no limitation on the word 'affairs', the Act doesn't talk about financial affairs, it talks about affairs and supply of prohibited drug is in my submission an affair. ACTING DEPUTY REGISTRAR: The decision of Master Greenwood in Lahoud is the decision that covers the scope of examinations and in that decision it certainly states that the examination order is very wide in that it concerns the affairs of the owner and is not restricted to business affairs but it must be an affair, dealing, arrangement or activity which is of interest to the Commission in pursuing the objects of the Act as enunciated in s.3. Turning to s.3, it squarely brings us back within the realm of property in terms that the object of the Act is to enable law enforcement authorities effectively to identify and recover property. So unless your question is related to dealings, affairs with these other people who were on the premises then you can -- GIORGIUTTI: Well, in order to recover property, to succeed on a summons the plaintiff is required to establish that this person has engaged in a crime related activity involving an indictable quantity or in this case that's what is sought to be proved. So that the confiscation order can't be made unless that threshold proof is established under s.22 ACTING DEPUTY REGISTRAR: All right. ANDREWS: Just on that point, in my submission that's the ultimate issue to be determined by the court upon hearing appropriate evidence filed by both parties. In addition to the relevant it's not within the purview of an examination here which, as you've correctly pointed it out, has to be confined to matters of financial concern and certainly I concede it's very broad-ranging. ACTING DEPUTY REGISTRAR: I t can concern any affairs, arrangements, activities of the person who owns the property. There's that grey area in between the criminal and the civil proceedings but clearly these are not the proceedings in which the criminal charges are proved or made out. GIORGIUTTI: No, what's required under s.22 is to establish on the balance of probabilities a serious crime related activity. That's the reason why you have s.13 which gives you the protection against self-incrimination because my submission extends to areas of criminality otherwise you wouldn't need s.13 to give the person protection." 20 Subsequently, the learned acting deputy registrar adjourned the proceedings to permit consideration of the matter by the court. 21 There are various dictionary definitions of "affairs". The following two definitions sufficiently illustrate the breadth of the word:- The Macquarie Dictionary (2nd revision):- "1. Anything done or to be done; that which requires action or effort; business; concern. 2. (pl.) matters of interest or concern; particular doings or interests; 3. An event or a performance; a particular action, operation, or proceedings. 4. Thing; matter (applied to anything made or existing, with a descriptive or qualifying term). 5. A private or personal concern; a special function, business, or duty." The New Shorter Oxford English Dictionary (ed. Leslie Brown):- "1. What one has to do; business; a concern, a matter. 2. (pl.) ordinary pursuits of life; business dealings; public matters. 3. A sexual relationship outside marriage; a love affair. 4. A thing; an incident; an occasion; a notorious incident, a scandal." 22 The word "affairs" as occurring in the section is plainly capable of a wide range of meanings even when referring to a person by reference to his or her status as the owner of property. 23 The only decision thrown up by the researches of counsel on the question is that of Master Greenwood of 8 March 1991 in State Drug Crime Commission v. Lahoud & Ors (unreported) to which the learned deputy registrar referred in argument, in which the Master, after examining the statutorilly expressed objects of the Act and its scheme, said:- "Counsel for the witness has submitted that the examination of the affairs of the witness must be restricted to the subject matter of the restraining order. This has not been fully argued. It may well be that the position submitted by the witnesses' counsel does obtain. However, this is not relevant to what is before me because the terms of the restraining order refer to 'interest in property' as defined by the Act including that set out in the schedule to the order. The restraining order is therefore very wide in referring to property not yet identified. This is then picked up by the examination order which requires an examination 'concerning the affairs of the owner including the nature and location of any property in which the owner has an interest'. The plaintiff is therefore entitled to seek information from the witness concerning any interest in property which comes within s.7. The plaintiff is also entitled to establish the source of funds (if any) used to acquired that interest. The term 'the affairs of the owner' given its normal meaning is expansive. Affair is defined in the Macquarie dictionary as (1) 'anything done or to be done, that which requires action or effort, business concern; (2) (plural matters of interest or concern, particular doings or interests'. The word affair as used in S.12(1)(b) includes the nature and location of any property. The definition is therefore wider than the nature and location of property. It is not restricted to business affairs. The legislature intended the word to be used in its widest sense. In my view without restricting its meaning but by way of guidance 'affairs' will refer to any dealing arrangement or activity which would be of interest to the commission in pursuing the objects of the Act as enunciated in s.3 . In my view the definition should not be read down. It was also submitted on behalf of counsel that the questions being asked were an abuse of the process of the court in that the enquiry had become no more than a 'fishing expedition' for the purposes of obtaining evidence which could subsequently be used against the witness. I am certainly not convinced that this is so. The questions, tedious as they were, nevertheless go to the subject matter of the orders made by this court. It is my view that if there were circumstances where the Drug Commission were embarking on an 'evidence gathering' exercise for the purpose of a prosecution then the protection given under s.13(2) to the witness would undoubtedly come into play and if this were not sufficient to protect the witness then it is certainly open to the legal advisers of the witness to seek relief. I would not use the term 'abuse of process' to describe this process. Counsel for the witness has also submitted that the limitation imposed by s.22(2)(a) and s.22(2)(b) ought restrict the period of time about which the witness may be examined. Section 22(1)(a) and s.22(2)(b) limit mandatory recovery by reference to the time of the drug-related activity and the date of the application for the assets forfeiture order. In my view it is appropriate for a witness to be examined about his affairs outside this period in circumstances when it is proper to enquiry about the existence or non-existence of an accumulated capital base from which the owner came to possess the property. It is unclear whether the court has a discretion to make an assets forfeiture order outside the six year period. If it can make such an order then the period in which the 'affairs' of an owner are relevant could be extensive." (emphasis added) 24 In reliance upon the Master's decision, it was contended by the respondent that the word "affairs" denotes something broader than the mere nature and location of the property, that to construe it as solely relating to property, directly or indirectly, was impermissibly to narrow its significance in its context in a statute which provided for forfeiture of property the subject of the restraining order dependent on whether or not a serious crime related activity in which the owners were involved within the statutory period has occurred. In that sense, it was submitted the mere fact of whether there had been an involvement in such activity is relevant. 25 It was contended that the limitation the applicant submitted upon the meaning to be given to the word "affairs" which, in its ordinary use, is of wide meaning (see Bond Corporation Holdings Limited v. Sulan (1990) 3 WAR 49 at 59-60) was impermissibly to qualify the word in the statute by a notional insertion of the word "financial" and to do that would be to offend a fundamental principle of construction: Regina v. Young (1999) 46 NSWLR 681 at 686. 26 It was pointed out that at the examination the privilege against self-incrimination had been abrogated expressly by s.13(1). Section 13(2) provides:- "A statement or disclosure made by a person in answer to a question put in the course of an examination under s.12, or any document or other thing obtained as a consequence of the statement or disclosure, is not admissible against the person in any civil or criminal proceedings except proceedings that compromise:- (a) proceedings in respect of the false or misleading nature of a statement or disclosure made under this Act; or (b) proceedings on an application under this Act, or (c) proceedings ancillary to an application under this Act, or (d) proceedings for enforcement of a confiscation order; or (e) in the case of a document or other thing - civil proceedings for or in respect of a right or liability it confers or imposes." 27 This section clearly contemplates that, in the course of an examination, material will be obtained, available to be used in proceedings on an application under this Act or proceedings ancillary to an application under this Act and these provisions thus contemplate the utility of the answers to questions at an examination on an application for an assets forfeiture order. On the question of whether such an order might be made, the respondent plaintiff may need to prove a serious crime related activity, or an illegal activity from which property was derived or to rebut the assertion to the contrary. I note in passing that s.13(2) protects a person being examined from having the answers or information provided utilised against them in criminal proceedings. This suggests that questions may be asked requiring otherwise incriminatory answers for a different purpose. I note, however, that the protection is not available in relation to their knowledge of the affairs of others except so far as that knowledge might be used against them. 28 The breadth and generality of the word "affairs" requires that I examine the application of the principles of construction. 29 In Repatriation Commission v. Vietnam Veterans' Association of Australia NSW Branch Inc. & Ors [2000] NSWCA 65, Spigelman, CJ. said at paras.107-108:- "The Australian law of statutory interpretation requires a court to consider context in the first instance, not merely after "ambiguity" is identified. (See Regina v. Wilson; ex parte Kisch (1934) 52 CLR 234 at 244; Cooper Brookes (Wollongong) Pty. Limited v. Commissioner of Taxation (Cth) (1980-81) 147 CLR 297 at 304, 319-320; K & S Lake City Freighters Pty. Limited v. Gordon & Gotch Limited (1985) 157 CLR 309 at 312, 315, 321; CIC Insurance Limited v. Bankstown Football Club Limited (1996-97) 187 CLR 384 at 408; Project Blue Sky Inc. v. Australian Broadcasting Authority (1998) 194 CLR 335 at [60]). As Sir Anthony Mason put it in K & S Lake City Freighters (supra) at 315 (in dissent, but not with respect to the law of statutory interpretation):- 'Problems of legal interpretation are not solved satisfactorily by ritual incantations which emphasise the clarity of meaning which words have when viewed in isolation, divorced from their context. The modern approach to interpretation insists that the context be considered in the first instance, especially in the case of general words, and not merely at some later stage when ambiguity might be thought to arise." 30 In Saraswati v. The Queen (1990-91) 172 CLR 1 at 21, as he has in many other decisions, McHugh, J. pointed to the necessity to adopt the construction which will promote the underlying purpose or object of an act. The necessity to identify the true purpose or object the statute seeks to achieve from its language and its scheme has been described by Spigelman, CJ. in the Sir Ninian Stephen lecture delivered at the University of Newcastle on 23 March 1999 as follows:- "A good shorthand description of this approach is 'literal in total context'. Whenever general words must be construed, it is essential for the interpreter to bear in mind that a statute has a context, it has a background and it reflects assumptions as to the circumstances in which it will operate. The words of the statute do not exist in limbo." 31 In that paper, his Honour had regard to the canons of interpretation and in particular the operation of rebuttable presumptions concerning the invasion of common law rights and the protection of property. Section 5 of the Criminal Assets Recovery Act reads:- "(1) For the purposes of this Act, proceedings on an application for a restraining order or a confiscation order are not criminal proceedings. (2) Except in relation to an offence under this Act:- (a) the rules of construction applicable only in relation to the criminal law do not apply in the interpretation of the provisions of this Act; and (b) the rules of evidence applicable in civil proceedings apply, and those applicable only in criminal proceedings do not apply, to proceedings under this Act." 32 The objects of the legislation are quite clear from s.3:- "The principal objects of this Act are:- (a) to provide for the confiscation, without requiring a conviction, of property of a person if the Supreme Court finds it to be more probable than not that the person has engaged in serious crime related activities; and (b) to enable the proceeds of serious crime related activities to be recovered as a debt due to the Crown; and (c) to enable law enforcement authorities effectively to identify and recover property." 33 It is clear that the legislation is intended to operate to enable the confiscation of property and to deter criminality. Any assumption that it should be given a restricted meaning and its general words read down, fails to have regard to the clear intention of the legislature. In Bropho v. Western Australia (1991) 171 CLR 1 at 18, the High Court said in respect of an assumption that the legislature would make its intention in the case of legislation intended to effect basic rights "unambiguously clear":- "If such an assumption be shown to be or to have become ill-founded, the foundation upon which the particular presumption (ie., in favour of a restrictive construction) rests will necessarily be weakened or removed. Thus, if what was previously accepted as a fundamental principle or fundamental right ceases to be so regarded, the presumption that the legislature would not have intended to depart from that principle or to abolish or modify that right will necessarily be undermined and may well disappear." 34 Considering ss.3 and 5, there is little aid to be gained here from the application of the usual assumptions and in this respect this Act differs from that considered in Jeffery v. Director of Public Prosecutions (Cth) (1995) 79 A. Crim R. 514. 35 Notwithstanding the differences, however, some assistance can be gained from decisions and examinations of the provisions of other statutes to like effect. 36 The Act is akin to other New South Wales and Commonwealth legislation (Confiscation of Proceeds of Crime Act 1989 and Proceeds of Crime Act 1987 (Cth)) and there is other legislation in other States of a similar kind and for similar objects. There are important distinctions since that other legislation is, in the main, conviction based, albeit such legislation generally permits restraining orders and critically operates on property affected by such orders. Further, that legislation contains similar provisions for examination of the affairs of persons whose property might be the subject of forfeiture. 37 The Commonwealth legislation and the legislation of the various States has been recently extensively reviewed by the Australian Law Reform Commission in Report No. 87 Confiscation That Counts, a review of the Proceeds of Crime Act 1987 which report stated it was reflecting the law as at 31 March 1999. Although it refers to examination orders at pp.146-147, little assistance is to be derived from the references in that Report. 38 The philosophy underlying such legislation has been described by Adams, J. in New South Wales Crime Commission v. Gardiner [1999] NSWSC 1210 at para.9:- "The philosophy underlying the Act appears to be that if it is established, first of all, that there is a reasonable suspicion that property is derived from crime-related activity and that some crime-related activity - not necessarily that to which the suspicion attaches - occurred within six years of the application under s.22, it is reasonable and appropriate that the property should be forfeited unless the person with an interest can show more probably than not it was innocently acquired." 39 The judicial approach to legislation of this kind is referred to by his Honour at para.18 in his citations of DPP v. Logan Park Investments Pty. Limited & Anor (1995) 37 NSWLR 118 and New South Wales Crime Commission v. Davies [1999] NSWSC 354. That approach is summarised in Jeffery (supra) by Cole, JA. 40 However, the remarks of Hunt, CJ. at CL. in Director of Public Prosecutions (Cth) v. Jeffery (1992) 58 A. Crim. R. 310 at 320 although dealing with the Commonwealth Act are equally as apposite to the interpretation of the Criminal Assets Recovery Act even having regard to the express objects of that latter Act as setting the statutory context for the statutory provision for examination:- "The words of s.48(4)(e)(I) are, however, clear. In the context of the subsection, which deals specifically with applications in relation to 'serious offences', the legislature appears deliberately to have used the words 'any unlawful activity', which are themselves defined by the statue in very wide terms. The repeal in England in 1870 of the common law forfeiture of all of the property of a person convicted of a capital felony and of certain other offences (such as striking or threatening a judge) does not prevent the legislature from reintroducing a limited form of that concept where it forms the view that such measures are necessary in order to deter those who may otherwise be minded to commit the serious offences to which s.48(4) of the Proceeds of Crime Act applies: see, generally, Brauer at 118, 119-120. "The statute certainly provides novel, drastic and Draconian remedies. As a penal statute, it will be enforced only where the intention of the legislature is clear: DPP v. Milienou (1991) 22 NSWLR 489 at 497; 53 A. Crim. R. 271 at 279. Where that intention is clear it will be given effect to, notwithstanding the drastic consequences to those affected by the penalties which it imposes: Saffron v. DPP (Cth) (1989) 96 FLR 196 at 199-200. In my view, the intention of the legislature is clear in s.48(4), and it must be applied. There is, accordingly, no limitation to be read into the definition of 'unlawful activities' in s.4(1)." 41 There are in relation to the Commonwealth Act, some decisions of more particular assistance referring to s.48 of that Act which section is not dissimilar to s.12. Section 48 reads:- "Where a court makes a restraining order, the court may, at the time when it makes the restraining order or at any later time, make any ancillary orders that the court considers appropriate and, without limiting the generality of this, the court may make any one or more of the following orders:- … (c) an order for the examination on oath before the court or the registrar of the court of any person, including:- (i) a person whose property is the subject of the restraining order (in this section called the 'owner'); or (ii) a person who is the defendant within the meaning of s.43 in relation to the offence to which the restraining order relates (in this subsection called the 'defendant'); about the affairs (including the nature and location of any property) of:- (iii) anyone else who is either the owner or the defendant, or both; and (iv) if the person to be examined is either the owner or the defendant or both - that person; (d) an order with respect to the carrying out of any undertaking with respect to the payment of damages or costs given by the Commonwealth in connection with the making of the restraining order; (da) an order directing:- (i) the owner; or (ii) if the owner is not the defendant - the defendant; or (iii) if the owner or the defendant is a body corporate - a director of the body corporate specified by the court; to give to:- (iv) where the restraining order is, or includes, an order made under paragraph 43(2)(b) - the Official Trustee; and (v) in any other case - the applicant for the ancillary order or such other person as the court directs; within a period specified in the ancillary order, a statement sworn on oath setting out such particulars of the property, or dealings with the property, of the owner or the defendant, as the case may be, as the court thinks proper. (e) where the restraining order directed the Official Trustee to take custody and control of property:- (i) an order regulating the manner in which the Official Trustee may exercise its powers or perform its duties under the restraining order; (ii) an order determining any question relating to the property to which the restraining order relates, including any question relating to:- (A) the liabilities of the owner; or (B) the exercise of the powers, or the performance of the duties, of the Official Trustee; with respect to the property to which the restraining order relates; (iii) an order directing the owner or another person to do any act or thing necessary or convenient to be done to enable the Official Trustee to take custody and control of the property in accordance with the restraining order." 42 It has been said in relation to the examination provided for by s.48(1)(c)(ii) of the Proceeds of Crime Act (Cth) that it is:- "Clearly in aid of and incidental to provisions authorising restraining orders before conviction and automatic forfeiture and pecuniary penalty and forfeiture orders after conviction." ( DPP v. Toro-Martinez (1993) 71 A. Crim. R. 326 at 345-346 per Handley, JA.) 43 In DPP v. Chidiac (1991) 25 NSWLR 372, during an examination made pursuant to an order under s.48 of the Commonwealth Act, an objection was taken to the registrar conducting the examination on the basis that the continued liability to examination depended upon the continued existence of a restraining order under which the respondent's property had been forfeited to the Commonwealth automatically at the expiration of the relevant time period and thereby, by force of s.57(2)(g) of the Act, the restraining order had ceased to be enforced. 44 Samuels, JA., with whom Mahoney and Meagher, JJA. agreed, referred to the objects and intention of the legislation:- "It is beyond doubt that although the Act executes its provisions by civil process in the course of civil proceedings, it is intended to relieve convicted criminals (I realise that it may reach further than this) of the profits of their crimes." 45 His Honour also concluded, having regard to the particular provisions of the Commonwealth legislation, that the order for examination did not terminate merely because the restraining order came to an end through forfeiture of the respondent's property. His Honour was concerned to look to the purpose of the restraining orders in the statutory context and their relationship to the examination. At 380C-E he held:- "It is clear that the purpose of a restraining order is to freeze the property of a person charged with an indictable offence under s.43(1)(b) in order to prevent assets being dissipated or concealed, and to provide a fund from which a forfeiture order, or an order for a pecuniary penalty, may be met. In order to assist the efficacy of a restraining order, the court is, by s.48, authorised to make what are described as 'ancillary orders', one of which is an order for the examination on oath of the person whose property is subject to a restraining order concerning 'the affairs' of that person including the nature and location of any of his property. It follows, in my view, that while the existence of a restraining order is a prerequisite to the making of an order for examination under the Act, it is by no means self evident that the termination of a restraining order, by reason of the forfeiture to the Commonwealth of the property subject to the order, in consequence of conviction, also terminates an order for examination. At that time the owner's property may or may not have been identified or located. In the present case, the restraining order made on 12 May 1988 related in general terms to 'the assets' of the respondent and, in particular, to property, being land at Clovelly, which was specified in a schedule. It seems perfectly reasonable that even after what I might call notional forfeiture, the location of a convicted person's property might still be unknown, and the Director of Public Prosecutions might be anxious to examine him or her to ascertain, if he can, what property such a person had at the time of the forfeiture, and where it is to be found. Moreover, s.48(1) extends to an examination 'concerning the affairs of the owner, including the nature and location of any property of the owner' and therefore covers an ambit wider than a mere enquiry as to the location of real or personal property; and the order in this case was framed in those terms. Merely because an order is described as 'ancillary' to another order does not of itself entail that upon the termination of the principal order, the ancillary order, if it is still capable of doing its intended work, should also come to an end. It is to be borne in mind that the Full Court of the Federal Court has decided in Official Receiver v. Todd (1986) 14 FCR 177 that liability to examination pursuant to s.81(1) of the Bankruptcy Act 1986 (Cth) does not expire upon discharge from bankruptcy (see especially at 185). Above all, the Act, which provides elaborately in s.57 for the termination of a restraining order, makes no such provision in respect of an order for examination." 46 His Honour's recognition of the role of ancillary orders as adjuncts to the various purposes of a restraining order is most instructive. 47 Recently in Woodcroft & Ors v. DPP [2000] NSWCA 128, the Court of Appeal was concerned to examine the bases upon which restraining orders might properly be made under the Proceeds of Crime Act 1987 (Cth) and in that regard, Giles, JA., with whom Meagher and Beazley, JJA. agreed, said:- "The objects of the Act stated in s.3 include depriving persons of the proceeds of, and benefits derived from, the commission of offences against the laws of the Commonwealth. To that end, the Act provides amongst other things for forfeiture of property to the Commonwealth and the payment of pecuniary penalties to the Commonwealth." 48 His Honour examined the scheme of that Act and in particular the provisions relating to the making of restraining orders and s.48(1). 49 In considering s.48(3), which permits an application to exclude property from the effect of the order in certain circumstances, his Honour held:- "An order within the paragraphs of s.48(1) must be by way of an ancillary order, within the governing description and the commencement of the subsection …" An ancillary order must be ancillary to something, here to the restraining order, in that it is incidental or supplemental to it. The range of paragraphs in s.48(1), which I have not set out other than para(a), shows that a narrow view of what is incidental or supplemental should not be taken." 50 Again there is recognition of the relationship of the examination to the order and its purposes. 51 His Honour then went on to examine whether or not, in the particular circumstances of the order made by Simpson, J. in that matter, in respect of property other than that involved in the original restraining order and owned by someone else other than the person originally named, might be the subject of an ancillary order, holding that it could not be. 52 In Gardiner (supra), Adams, J. held:- "I do not consider that the 'ancillary orders' to which s.12(1) refers mean ancillary only to the restraining order. This is made clear by the language concerning both the time ('at any later time') and the character of the order, which must be ancillary but may affect a person whose interests are subject to restraint. Rather, I consider they are ancillary to proceedings undertaken pursuant to the Act and accordingly ancillary to proceedings under s.22 where an application for forfeiture is made and also to proceeding under s.25. Since the continuing existence of the restraining order is a necessary precondition to the application for a forfeiture order under s.22 of the Act, I consider that whether it should continue is ancillary to proceedings under s.22 and, if it were necessary for me to so decide, ancillary to the order made under s.10." 53 With that assistance, I turn to the statutory scheme of the criminal Assets Recovery Act 1900 to examine the particular context and purpose of restraining orders and their function under the Act. 54 That Act was formerly known as the Drug Trafficking (Civil Proceedings) Act 1990. Its objects have already been referred to. Section 10 provides for restraining orders over property and interests in property to be granted on the application of the commission by the Supreme Court and for the making, under s.12 of "any ancillary orders" including that under s.12(1)(b). 55 Section 22, which is in Part 3 of the Act deals with confiscation. Pursuant to s.22(1), whilst a restraining order is in force, the Commission may apply to the Supreme Court for an order of forfeiture of the property subject to the order. Under s.22(2), the court must make an assets forfeiture order if it finds it more probable than not that the person whose suspected serious crime related activity or serious crime related activities formed the basis of the restraining order, was at any time not more than six years before the making of the application for the assets forfeiture order engaged in (a) serious crime related activity involving an indictable quantity of drugs, or (b) a serious crime related activity involving an offence punishable by imprisonment for five years or more. 56 It is to be noted that the property that might be forfeit does not need to be shown to have been derived from the serious crime related activity. 57 By virtue of s.10(9) after the first 48 hours of its operation, a restraining order remains in force in respect of an interest in property while there is an application for an assets forfeiture order pending and in certain other limited circumstances. 58 Under ss.25 and 26, applications may be made to exclude property from the effects of an assets forfeiture order if it is shown, on balance of probabilities, not to be directly or indirectly illegally acquired or if, after forfeiture it is shown that it is more probable than not that a specified proportion of the value of a forfeited interest under an assets forfeiture order is not attributable to the proceeds of an illegal activity in which latter case, the court may make a declaration to that effect entitling the person to be paid the proportion of the proceeds of sale of the forfeited property. 59 Under Division 2 or Part 3 and pursuant to s.27, the Act also provides for a proceeds assessment order which may be made in addition to an asset forfeiture order, requiring payment to the Treasurer of an amount assessed by the court of the value of the proceeds derived from illegal activities taking place not more than six years before the making of the application. That order must be made if the court finds it to be more probable than not that the persons against whom the order is sought were at any time not more than six years before the making of the application engaged in serious crime related activity of the kind I have described. 60 It is not necessary to deal in any greater detail with the provisions of the Act consequential upon those to which I have referred above for the disposition of the present matter. 61 Without regard to the decided cases, the provisions I have set out show that matters which might establish directly or indirectly involvement in serious crime related activity or illegal activities by a person to whom a restraining order relates as being a person whose suspected serious crime related activity formed the basis of the order, are highly relevant whether or not those matters are linked specifically to property. 62 Having regard to the content of the legislation, its language and its expressed objects, although I would prefer not to express the test as did Master Greenwood as extending to "any dealing, arrangement or activity which would be of interest to the commission in pursuing the object of the Act", which might unfortunately suggest that there is a subjective element in the test turning on the view of the Commission, in my opinion, "the affairs" of which the section speaks are those activities of persons suspected of serious crime related activity whose property is restrained by a restraining order under the Act which activities might affect the making of further orders under the Act. 63 Such a wide construction reflects the breadth of potential effect under the Act of the restraining order and accords with the statutory scheme under which the examination is ancillary, not only to the order, but also to an order for forfeiture. I agree with the views of Adams, J. in this regard in Gardiner (supra) that I have already set out. 64 Such a construction accords with the views expressed by Giles, JA. in Woodcroft (supra) and those expressed in relation to the similar provisions of the Commonwealth legislation in Toro-Martinez (1993) 71 A. Crim. R. 326 and Chidiac (supra) which I have set out above. 65 The ancillary orders available under s.12 have the common feature of assisting the operation of the restraining order in its application to property, but they also are apt to assist the proper determination of applications for forfeiture orders by enabling the ascertainment of matters to which s.22 relates. I see no reason to cut down the width that the language, context and purpose of the Act suggests should be accorded to those measures. 66 I therefore conclude that the examination is intended to allow the eliciting of information of such activities as might be relevant to the existence of serious crime related activity within the six year period or illegal activities as might be relevant to the making of a proceeds assessment order or the assessment of the amount of that order. Those matters might be elicited as well as matters which might go to ascertain, identify and locate property to which the restraining order might be extended by variation or which might become forfeit or which might assist the making, assessment or recovery of a proceeds assessment order. This construction allows the examination to supplement the effect of the order in its full statutory operational effect, ie., it allows assistance to the operation of the order not only as freezing property interests, but as potentially triggering forfeiture or as assisting the making and enforcement of proceeds assessment orders. The question plainly sought information of this kind. 67 I therefore uphold the registrar's ruling allowing the question. 68 The matter will be relisted if necessary on the question of costs. Last Modified: 09/26/2000 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.