Commissioner of the Australian Federal Police v Cacu [2017] NSWCA 5

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Commissioner of the Australian Federal Police v Cacu [2017] NSWCA 5 Hearing dates: 18 August 2016 Decision date: 03 February 2017 Before: Meagher JA at [1]; Gleeson JA at [83]; Sackville AJA at [88] Decision: 1. Grant the Commissioner leave to appeal. 2. Appeal dismissed. Catchwords: CRIMINAL LAW - Procedure – confiscation of criminal assets – Proceeds of Crime Act 2002 (Cth) – restraining order – where sworn statement and examination orders made ex parte against respondent requiring provision of information concerning property, liabilities and dealings with property – where subject matter of orders same as pending criminal charge – where primary judge granted stay of orders – whether in absence of stay respondent at risk of prejudice in conduct of defence in criminal trial by potential prior disclosure to prosecuting authority of information obtained by compulsory processes Legislation Cited: Anti-Money Laundering and Counter Terrorism Financing Act 2006 (Cth), s 136(1), 140(1) Civil Procedure Act 2005 (NSW), s 67 Crimes Act 1900 (NSW), s 254(b)(ii) Crimes Legislation Amendment (Proceeds of Crime and Other Measures) Act 2016 (Cth), s 2, Sch 1, item 4, 5 Criminal Code Act 1995 (Cth), ss 400.3, 400.9 Proceeds of Crime Act 2002 (Cth), ss 18, 38, 39(1), 39A, 39B, 47, 180(1), 183, 187, 188, 189, 193, 196, 197, 198, 266A, 315, 318, 319, 338 Proceeds of Crime Regulations 2002 (Cth), reg 12 Cases Cited: Application of the Commissioner of the Australian Federal Police [2015] NSWSC 888 Commissioner of the Australian Federal Police v McGlone [2016] NSWCA 103 Commissioner of the Australian Federal Police v Zhao (2015) 255 CLR 46; [2015] HCA 5 Lee v Director of Public Prosecutions (Cth) (2009) 75 NSWLR 581; [2009] NSWCA 347 Lee v NSW Crime Commission (2013) 251 CLR 196; [2013] HCA 39 Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20 NSW Crime Commission v Lee (2012) 84 NSWLR 1; [2012] NSWCA 276 X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29 Category: Principal judgment Parties: The Commissioner of the Australian Federal Police (Appellant) Ergan Cacu (Respondent) (Submitting appearance) Representation: Counsel: T M Thawley SC with L T Livingston (Appellant)