Commonwealth Director of Public Prosecutions v v Jo & Temis Pty Ltd [2007] QDC 173

DISTRICT COURT OF QUEENSLAND CITATION: Commonwealth Director of Public Prosecutions v Tatsuo Jo, Misako Jo and Temis Pty Ltd and others [2007] QDC 173 PARTIES: Commonwealth Director of Public Prosecutions (ORIGINAL APPLICANT/RESPONDENT IN THIS APPLICATION) AND Tatsuo Jo, Misako Jo and Temis Pty Ltd ACN 111 014 962 and others (ORIGINAL TENTH, ELEVENTH AND TWELFTH RESPONDENTS/APPLICANTS IN THIS APPLICATION) FILE NO/S: BD626/06 DIVISION: Civil PROCEEDING: Application for stay of order ORIGINATING COURT: District Court at Brisbane DELIVERED ON: 17 January 2007 DELIVERED AT: Brisbane HEARING DATE: 05 October 2006 JUDGE: DURWARD SC DCJ ORDER: 1. That the application for stay is granted. 2. That the proceedings are stayed. 3. That the length of the stay of proceedings, the application for directions and examination orders and the costs of the application be adjourned for further hearing and determination. CATCHWORDS: Application for stay of proceedings - Proceeds of Crime Act 2002 (Cth) - No criminal charges made - investigation incomplete - prejudice - restraining orders made - order for directions and examination extant - whether stay of 1 -- 1 of 17 -- proceedings justified. COUNSEL: Ms P T Chiverall for the respondents C Jennings for the applicants SOLICITORS: Nyst Lawyers for the applicants Commonwealth Director of Public Prosecutions for the respondent [1] The applicants - Tatsuo Jo, Misako Jo and Temis Pty Ltd - are respectively the tenth, eleventh and twelfth respondents in an originating application, against whom restraining orders were made pursuant to section 18 of the Proceeds of Crime Act 2002 on the application of the present respondent, the Commonwealth Director of Public Prosecutions ("the CDPP"). THIS APPLICATION [2] In the present application the three respondents (variously referred to as "the applicants" or as “the tenth, eleventh and twelfth respondents") seek to stay the operation of the originating proceeding for a period of six months. [3] The tenth respondent is alleged to have participated in a tax avoidance scheme between March 2000 and June 2003 and is suspected of having committed offences against section 29D of the Crimes Act 1914 (Fraud) and section 134.2(1) of the Criminal Code 1995 (Commonwealth) (Dishonestly obtaining a financial advantage). [4] The eleventh respondent is the wife of the tenth respondent. The twelfth respondent is a company alleged to be controlled by the tenth respondent. RELEVANT HISTORY [5] Restraining orders were made pursuant to section 18 of the Proceeds of Crime Act 2002 (Commonwealth) ("the Act"): (a) On 06 March 2006 in respect of real property registered in the name of the eleventh respondent; (b) On 04 April 2006 in respect of the twelfth respondent, on the ground that it was an entity under the control of and holding property under the effective control of the tenth respondent; and in respect of a vessel registered in the name of the tenth respondent and motor vehicles registered in the name of the twelfth respondent. 2 -- 2 of 17 -- [6] The aggrieved complainant is the Australian Taxation Office. There are charges under two different statutes because of the replacement of the relevant provision in the Crimes Act 1914 by new provisions in the Criminal Code 1995 (Commonwealth). [7] (a) On 03 April 2006 an application was made for a restraining order for the real property, pursuant to section 47(1) of the Act. No order was made; and (b) On 02 May 2006 orders were sought in respect of the vessel and the motor vehicles pursuant to section 47(1) of the Act. [8] (a) On 07 September 2006; (i) the present application for a stay of the forfeiture order was filed; (ii) an application for examination orders, filed by the CDPP, was adjourned pending the outcome of the subject stay application; (iii) an order was made that any application for exclusion pursuant to the provisions of the Act be filed and served before 24 October 2006; and (b) On 05 October 2006 the stay application was heard by me. THE STATUS OF THE ORIGINATING APPLICATION [9] The Australian Federal Police is investigating the affairs and conduct of the tenth respondent. I was informed that no Brief of evidence, upon which a decision whether to charge or not charge the tenth respondent, had been completed and sent to the CDPP for its assessment. It was submitted that the Brief of evidence would be available "in the New Year", but no specific timings were able to be given. [10] Hence there is presently a period in the proceedings where there is some uncertainty as to whether the tenth respondent will in fact be charged. However, it is not a requirement of section 47 of the Act that the tenth respondent be charged or convicted of the suspected offences. Provided the suspicion held by the CDPP is reasonable then that is all that the legislation requires. THE ALLEGED CRIMINAL CONDUCT [11] The CDPP alleges that the tenth respondent and associated corporate entities were involved in a tax scheme promoted by a tax agent (one Stoddart, who is the first respondent in the originating application and in which another party, one Johnson, the eighth respondent, and associated parties were involved) through entities incorporated in Australia and overseas, involving payment for fictitious services, and a fictitious loan back with the deduction of a 10 per cent fee for the promoter. The 90 per cent balance became a tax deductible sum in the hands of the tenth respondent. The 3 -- 3 of 17 -- applicant alleges that the amount of tax unpaid in the respondents' case amounts to $1,135,516.76. THE PROCEEDS OF CRIME ACT 2002 [12] The Act establishes a scheme to confiscate the proceeds of crime. There are processes relating to confiscation including forfeiture orders under which property is forfeited to the Commonwealth. There are also information gathering provisions including examinations of persons about the affairs of people covered by examination orders. Provisions relevant to the issue in this application are set out in paragraphs 13 to 25 in the Judgment. [13] The dictionary (section 338) defines a serious offence, so far as is relevant, to mean an indictable offence punishable by imprisonment for three or more years involving...(iv) unlawful conduct by a person that causes, or has intended to cause, a loss to the Commonwealth or another person of at least $10,000. [14] The word "suspect" is defined in the dictionary, in relation to a "restraining order" (so far as is relevant), to mean the person who...(b) has been charged with or is proposed to be charged with...the offence or offences to which the order relates. The word "charged" simply means that an information has been laid against the person. Service or arrest is not necessary. [15] The Act has application both within and outside of Australia and regardless of the nationality or citizenship of the person against whom it is applied. Further, section 14 provides that the Act applies in relation to, "(a) an offence committed at any time (whether or not any person is convicted of the offence)...whether the offence...occurred before or after the commencement of this Act." [16] Section 18 provides for the making of a restraining order in respect of a person suspected of committing a serious offence. A restraining order may cover the property specified in the application for the order, "to the extent that the Court is satisfied that there are reasonable grounds to suspect that the property is any one or more of the following (so far as is relevant): "All or specified property of the suspect...specified property of another person (whether or not that other person's identity is known) that is subject to the effect of control of the suspect." The restraining order need not be based on the commission of a particular offence. [17] The Court may exclude property from a restraining order. One of the reasons for excluding specified property from a restraining order is that the property is neither 4 -- 4 of 17 -- proceeds nor an instrument of unlawful activity (section 29). Section 329 provides that property is proceeds of an offence if it is wholly derived or realised, whether directly or indirectly, from the commission of the offence or is partly so derived or realised. Section 32 provides that the Court must not hear an application to exclude specified property from the restraining order if the restraining order is in force and the DPP has not been given a reasonable opportunity to conduct an examination of the applicant. [18] A forfeiture order is made in relation to property specified in the order if the DPP applies for it and the property to be specified in the order is covered by a restraining order under section 18 that has been in force for at least six months and the Court is satisfied that a person whose conduct or suspected conduct form the basis of the restraining order engaged in conduct constituting one or more serious offences (section 47). [19] The fact that a person has been acquitted of an offence with which the person has been charged does not affect the Court's power to make a forfeiture order under section 47...in relation to the offence (section 51). [20] An exclusion order may be made by a Court that has made or is hearing or is to hear an application for a forfeiture order, if, inter alia, and insofar as is relevant, ...the Court is satisfied that the property to be specified in the exclusion order is not the proceeds of unlawful activity (section 73). [21] Pursuant to section 80, examination orders may be made relating to restraining orders for the examination of any person about the affairs (including the nature and location of any property) of a person referred to in paragraph (a), (b) or (c), including: (a) a person whose property is or a person who has or claims an interest in property that is, the subject of the restraining order; or (b) a person whom the restraining order states to be suspect for the offence to which the restraining order relates; or (c) the spouse (including de facto spouse) of a person referred to in paragraph (a) or (b). [22] Insofar as the conduct of examinations are concerned, the following provisions relevantly apply: • The fact that criminal proceedings have been instituted or have commenced (whether or not under this Act) does not prevent the examination of a person; • The approved examiner may require the person to answer a question that is put to the person at the examination and is relevant to the affairs 5 -- 5 of 17 -- of a person referred to in section 180 of the Act (section 186(4) 187(5)). [23] The Act provides for offences that may be relevant to examinations, including the following: (a) Section 195 relates to the failure of a person to attend an examination when required by examination notice so to do or a refusal or failure to attend examination at the time and place specified in the notice. (b) Section 196 provides for offences relating to appearance at an examination. A person attending an examination to answer questions or produce documents must not refuse or fail to be sworn or to make an affirmation, to fail to answer a question or to fail to produce at the examination a document (the latter subject to practicability). [24] An answer given or document produced at an examination is not permissible in evidence in civil or criminal proceedings against the person who gave the answer or produced the document (other than in specified exceptions, none of which need to be referred to here): Section 198. [25] Section 315 provides that the proceedings pursuant to the Act on an application for a restraining order are not criminal proceedings. They are civil proceedings and pursuant to section 317, the onus of proof rests with the applicant and the standard of proof is the balance of probabilities. JURISDICTION [26] The Act provides in section 319 for a stay of proceedings. The section is expressed as follows: "The fact that criminal proceedings have been instituted or have commenced (whether or not under this Act) is not a ground on which a Court may stay proceedings under this Act that are not criminal proceedings." [27] The Court has jurisdiction to prevent an abuse of process. That power is within the inherent jurisdiction of the Court. It is implicit in the manner in which section 319 is expressed, that there is a power to stay orders made pursuant to the Act. All that section 319 does is to provide "that the mere fact that a criminal proceeding has been started against a person is not a ground for staying the forfeiture proceedings." See State of Queensland v. Bush (2003) QSC 375. The Act in section 314 vests jurisdiction: (1) "...in the several Courts of the States and Territories with respect to matters arising under this Act." 6 -- 6 of 17 -- Subject to any constraints pursuant to the Constitution, the jurisdiction is not limited by any limits to which any other jurisdiction of the Court may be subject. Hence the District Court has jurisdiction to stay orders pursuant to the Act, if the circumstances are appropriate and proper. Section 69 District Court of Queensland Act 1967, and Stevens v. Trewin and Anor (1968) 411 at 417. THE GROUNDS FOR THE STAY [28] The applicants contend that in defending the current proceedings (which would include participating in an examination) and/or pursuing an application to exclude the property from the orders, it is probable - or there is a substantial real risk - that the tenth respondent will be prejudiced in the foreshadowed criminal proceedings and the eleventh respondent may be prejudiced in any future criminal proceedings (Affidavit of Mr Nyst, paragraph 19). [29] The Australian Federal Police, at least as recently as September 2006, was engaged in ongoing investigations in respect of the tenth respondent (refer to the exhibits to the Affidavit of Mr Lord). The CDPP declined to adjourn the proceedings "pending the resolution of the investigation and/or any criminal proceedings." [30] In March 2006 the tenth respondent and his solicitor apparently attended upon the offices of the Australian Federal Police and were told that the tenth respondent and the first respondent (Stoddard) would "soon be charged". That has not happened despite the passage of nearly ten months. [31] In his Affidavit Mr Nyst (paragraph 7) states that his instructions relevantly were that the tenth and eleventh respondents wished to maintain their right to silence in the subject proceedings, that they would defend the foreshadowed criminal prosecution and they would make (if necessary) an application to exclude their respective property from any future forfeiture orders sought by the applicant. [32] Mr Nyst in his Affidavit (at paragraph 18) states that the tenth respondent would have to effectively relinquish his right to silence (in his personal capacity and as sole director and shareholder of the twelfth respondent). The evidence in support of an exclusion application may reveal information not presently in the possession of the prosecution, there may be information that alerts the prosecution to other matters and the tenth respondent may be required to give information that would otherwise be privileged. In other words, the defence to the foreshadowed criminal charges would be disclosed. [33] He also said that the eleventh respondent would be compelled to give evidence of a like nature and might be at risk of being charged together with the tenth respondent or in his place. 7 -- 7 of 17 -- [34] The disclosure of the "defence" to the anticipated charges arises from the inevitability - in any application to exclude property from the forfeiture proceedings - to provide such disclosure, it being relevant to both proceedings. [35] No further particularisation of the prejudice to the applicants was given. I referred in the hearing (T20.20) to the fact that the prejudice asserted in their behalf was quite generic and non-specific. That is a factor that has to be taken into account on this application. [36] For the applicants Mr Jennings postulated in his written outline (at paragraphs 25 to 28), although not supported by evidence on affidavit, a number of possible prejudices: the validity of the tenth respondent's conduct, a mistaken understanding of the nature of the impugned transactions and a lawful entitlement to the tax advantage obtained. However, these matters are generic and no more than mere possibilities. They could apply to one or more or all of any number of persons the subject of the type of investigation described in this case. [37] The protocols of the Commonwealth Director of Public Prosecutions, such as they might be, purportedly separating the prosecution process from the forfeiture process within its office, was not deposed to by affidavit or by other evidence. I did not allow counsel for the applicant, Ms Chiverall, to provide that information from the Bar table. [38] Nevertheless, Ms Chiverall contended that the respondents had not demonstrated a sufficient - that is, a substantial and real - risk of prejudice such as to warrant an interference with the CDPP's right under the legislation (T60). THE RELEVANT LEGAL PRINCIPLES [39] In the State of Queensland and Shaw (2003) QSC436, an application for a stay in respect of the equivalent provision in the Queensland legislation (section 93) was made. Drug charges had been laid and a hearing was pending in the Magistrates Court. The applicant contended that in any application to exclude property from the effect of forfeiture proceedings, his defence to the criminal charges would have to be disclosed. He contended that a stay was justified until the completion of the criminal proceedings, on the grounds that: "(a) The evidence relevant to defending the forfeiture proceedings would include evidence not presently in the possession of the State of Queensland; (b) If the stay was refused the State of Queensland would be alerted to further information concerning the financial position of the applicant; (c) By defending the forfeiture proceedings the applicant would be disclosing information which would otherwise be subject to his right to remain silent; 8 -- 8 of 17 -- (d) The State of Queensland would therefore be placed in the advantageous position of being alerted to the need for further evidence and the existence of further chains of inquiry in order to meet the defence raised by the applicant; and (e) Since the criminal proceedings are listed to be heard in about three and a-half months time there would be no significant delay to the forfeiture proceedings." [40] He also contended that his right to silence was effectively compromised. McKenzie J granted the stay until the determination of the prosecution proceedings. [41] It will be readily seen that the submissions in Shaw and on behalf of the applicant in this case are very similar. However, there are distinguishing features: in Shaw charges were pending and were expected to be heard and determined within a relatively short time; a forensic report was expected to be led in the defence case in the summary proceedings and expected to advance a different interpretation of the applicant's financial affairs; and there was no requirement to disclose that expert report for matters being heard in that jurisdiction. Those are features not apparent at all in the applicant's case here. However, there are other relevant considerations in the applicant's case. [42] In State of Queensland v. Bush (supra), McKenzie J, stated the following (at paragraph 4): "It is not useful to try to define, by resort to particular adjectives or phrases, what might suffice to justify deferral of the proceedings. In my view at the minimum, it would require that it be demonstrated by reference to circumstances of the particular case, why the interests of justice will not be served by the forfeiture proceedings being heard in advance of the criminal proceedings." He refused the application for a stay. [43] In State of Queensland v. Henderson (unreported No. 1246 of 2003) Fryberg J, acknowledged that in regard to section 93 of the Queensland Act, "...there is some force in the argument that it is not intended to remove the power of the Court to prevent abuse of its process." However, he found that the evidence before him was insufficient to demonstrate a substantial likelihood of prejudice and that the submissions on behalf of the applicant were speculative. [44] In State of Queensland v. Cannon, (2003) CSC 459 White J, held on a stay application that she was "not...persuaded that in the light of the clear provisions of the Act and no specifically identified prejudice or issues of justice would require the examinations to 9 -- 9 of 17 -- be stayed or adjourned until the criminal proceedings have concluded." She dismissed the applications. [45] In the course of the judgment, her Honour made the following observations: "...references to the so called right of silence do not extend to give a defendant as a matter of right the same protection as set out in the guidelines in McMahon v. Gould (1952) 7ACLR 202, in contemporaneous civil proceedings. In other words, to suggest that what are often held to be important rights enshrined in the criminal process may well be set aside by the clear legislative intent." [46] Further, she referred to the judgments in Henderson (supra) and in Bush (supra). She referred to the lack of specificity in the submissions relied on by the applicant about the prejudice that he would suffer. She continued: "Whatever view one might have about the heavy-handedness of this legislation, nonetheless the legislature has evinced its intention that an examination of the kind which is sought to be held here may occur even if there are criminal proceedings on foot." [47] In each of those three cases criminal charges had been made but had not been determined. To that extent, the cases do not reflect the circumstances of the applicant in the present case. But is that enough to distinguish their predicament and to justify a stay? That is one of the other relevant considerations to which I referred in paragraph 41. THE APPLICABE PRINCIPLES AND THE DISCRETION [48] I was referred to a number of authorities by counsel that iterated the general principles of and the circumstances in which the judicial discretion might be exercised, in an application for a stay of proceedings [49] In McMahon v. Gould (1982) 7 ACLR 202, factors relevant to the issue of whether there is a "real and not merely notional danger of injustice in the criminal proceeding" are listed at page 206. I do not need to set them out here, but the list refers to matters beyond or other than those relied on here. The gravamen of the decision is that while the Court retained its inherent discretion to stay proceedings, it should have regard to the underlying policy of the Act. [50] The primary purpose of the Act, stated simply, is to deter crime and to confiscate unlawfully obtained benefits. One of the means of achieving the policy objective is to require the impugned person to account for the profits and assets obtained through such unlawful activity. However, the significant first step in the process is the obtaining of a restraining order preventing a defendant and others from dealing with property in contravention to what is ordered. Whilst a residual benefit (for example, 10 -- 10 of 17 -- the continued use of the property) arguably may still accrue to the person owing or controlling the property, the capacity to dispose of or otherwise deal with it, is restrained. In other words, the property remains prima facie liable to forfeiture at some future stage. [51] One of the critical "other considerations" in this application is this. Is the policy objective defeated by deferring the forfeiture stage, particularly where the Australian Federal Police investigation in this case has not been concluded, an assessment of all of the evidence has therefore not been completed and a decision whether to prosecute is not able to be finalised and no charges have been made? [52] In Australian Competition and Consumer Commission v. The FFE Building Services Ltd and Others (2003) 130 FCR 37, orders were sought to require the respondents to file and serve statements of the evidence intended to be given by proposed witnesses, prior to the closure of the prosecution case. The application was refused. In the full Court of the Federal Court of Australia, held that to require the respondents to provide evidence in that way would offend the privilege against "exposure to penalties". There was a possibility that the content of the statements would lead to adverse evidence being discovered by the prosecution which would enhance the very case currently being prosecuted against the respondents. It was also said to infringe their free choice as to whether to give or call evidence in their respective cases. The Court recognised that privilege as being distinct from the privilege against exposure to conviction for a crime. [53] The Court stated (at paragraph 12) that "The privilege against self-incrimination protects an individual from making a disclosure that may lead to incrimination or to the discovery of real evidence of an incriminating nature: Sorby v The Commonwealth (1983) 152 CLR 251 at 310. Further, a respondent in a proceeding that is solely for the recovery of a pecuniary penalty should not be ordered to disclose information or produce documents that may assist in establishing his or her liability to the penalty." [54] Further, the Court said that "The privilege of refusing to answer questions or provide information on the ground that the answers or the information might tend to expose the party to the imposition of a pecuniary penalty...is distinct from the privilege against exposure to conviction for a crime." (Paragraphs 12 and 13). [55] The latter privilege has been confirmed in unequivocal terms by the majority in the High Court in Sorby v. The Commonwealth (1983) 152 CLR 281, in the following terms (at page 309): "The privilege against self-incrimination is deeply ingrained in the common law. The principle is that a statute will not be construed to take away a common law right, including the privilege against self-incrimination, unless a legislative intent to do so clearly emerges, whether by express words or necessary implication." 11 -- 11 of 17 -- [56] In Environmental Protection Agency v. Caltex Refining Co Pty Ltd (1992-1993) 178 CLR 477, a number of obiter statements, relevant to the issue here, were made (at pages 526-527): "The so-called 'right to silence' is often invoked in an attempt to express compendiously this rejection" (of inquisitorial procedures) "although in truth there is not just one right but a number of rights, or immunities, of differing scope. There is, of course, the general right, which everyone has, not to answer questions, whether or not the answers might incriminate him. The law, generally speaking, does not oblige persons to answer questions if they do not wish to do so. But that right, or immunity, is not absolute. There are exceptions, and perhaps the most important is that witnesses may not refuse to answer questions put to them in a Court save where they are excused from doing so. The privilege against self-incrimination provides such an excuse, and extends beyond a Court of law to other forms of compulsory examination." [57] The Court (at page 527) also referred to the principle, said to be fundamental in our criminal law, "that the onus of proving a criminal offence lies upon the prosecution and that in discharging that onus it cannot compel the accused to assist it in any way." [58] In Yuill v. Spedley Securities Ltd (1992) 8 ACSR 272, the Court of Appeal of New South Wales referred to the list of factors ("guidelines") in McMahon v. Gould and added some further considerations, namely: "...the public's own interest in the normal primacy of the administration of criminal justice, being a part of the public law of the community relevant to its good order and peaceful government. This consideration might help explain why, ordinarily but not universally, such proceedings should be heard and determined first"; and "A further consideration...is the 'deep-rooted' inclination of our law to avoid, directly or indirectly, depriving a person of the right to silence in criminal proceedings. Sometimes the prior litigation of the criminal trial may have that effect, either by its interlocutory procedures or by the need of the accused, in the forensic setting of the civil trial, to give evidence or ask questions, thereby disclosing a defence to the outstanding criminal charge... More than lip service must be paid by Courts to the preservation of these enduring features of the criminal process, whether in the interpretation of apparently inconsistent statutes or in the exercise of a discretion to stay civil proceedings until related criminal proceedings are completed... Such features exist not only to protect the rights of the individual accused but also to help define the relationship between the organised state and citizens generally. In the context of cases such as the present, it is possible that the guidelines in McMahon v. Gould need to be revised to reflect more accurately such considerations." 12 -- 12 of 17 -- [59] In Rank Film Distributors Ltd and Others v Video Information Centre and Others (1982) AC 380, the Court was dealing with an alleged infringement of copyright and the issue of the potential use of information obtained in criminal proceedings in related civil proceedings. Lord Wilberforce (at page 443) stated that: "Whatever direct use may or may not be made of information given, or material disclosed, under the compulsory process of the Court, it must not be overlooked that, quite apart from that, its provision or disclosure may set in train a process which may lead to incrimination or may lead to the discovery of real evidence of an incriminating character. In the present case, this cannot be discounted as unlikely: it is not only a possible but probably the intended result. The party from whom disclosure is asked is entitled, on established law, to be protected from these consequences." [60] The importance of the principle of the right to silence or the privilege against self- incrimination has been iterated many times: see Elliott v. Australian Prudential Regulation Authority (2004) FCA 586 (at paragraph 17): Australian Competition and Consumer Commission v. FFE (supra); Hamilton v. Oades (1988-1989) 166 CLS 486, at 495. In the latter case, Mason CJ, in the High Court, stated that "The privilege against self-incrimination can only be abrogated by the manifestation of a clear legislative intention. The intention may nonetheless be demonstrated by reference to express words or necessary implication...but the privilege is not likely abrogated, and the phrase 'necessary implication' imports a high degree of certainty as to legislative intention." (Reference to citations omitted). [61] In Elliott's case, the view was expressed that the applicants for a stay (in that case in an administrative process, although that is not a strong distinguishing feature) needed, "...to descend to specifics if they wished to establish that there will be injustice or a prejudice to them from having to elect whether to respond to the letters of 31 October 2003. It is necessary for each applicant separately to say how he or she might be affected in making any response, so that the Court can see if there is a real risk of prejudice or injustice of a sufficiently substantial nature." (Paragraph 21). [62] In the State of Queensland v. O'Brien and Falzon, (No 3879 of 2004) Muir J, considered an application for a stay under section 93 of the Queensland legislation. Charges had been laid in that case but the trial was anticipated to commence several months after the application was heard. His Honour considered that fact to be of some significance in the exercise of his discretion. At page 4 of the decision, he stated that: "It is plain to me, on the material, that there is a high potential for any evidence adduced on an exclusion application to effectively remove the applicant's privilege against self-incrimination and dispense with the right to silence. An application for exclusion, depending on how it is framed, may amount to an admission which can be used against the applicant. When one looks at this matter broadly, if the matter is stayed for some months until the criminal trial has been completed, the respondent will suffer little in 13 -- 13 of 17 -- the way of prejudice but, on the other hand, if a stay is not granted, the potential prejudice to the applicant is quite grave." [63] In Jupiters Limited v. Liu (BS4708 of 2005), White J, referred to the "balancing exercise protecting the plaintiff's entitlement...and the applicant's right not to incriminate herself" (page 4). Her Honour continued to state the following (page 5): "McMahon v. Gould (1982) 7 ACLR 202 is often cited for the guidelines that Wootten J, set out after a review of the earlier authorities in that case. It has been the subject of both favourable and negative observation. Most trenchantly, it was said to be in need of revisiting by Kirby P, in Yuill v. Spedley Securities Limited (1992) ACSR 272. However, the importance the Court places on the protection in real times of the right to silence is to be found in the observations of the High Court in Environmental Protection Authority v. Caltex Refining Co Pty Ltd (1992- 1993) 178 CLR 477, especially at 526 in the joint judgment of Dean, Dawson and Gaudron JJ. There are some facts which the applicant might plead in her civil defence which are not, in reality, in issue but in order to defend the claim she must plead a denial of dishonesty. Even if little more is required to satisfy the rules of Court as to pleading, that is not the end. There are obligations of disclosure and then the trial. Clearly, the applicant will have to give sworn evidence to avoid adverse inferences being drawn. That trial, as I've already observed, will in all likelihood be ready to be heard well before the criminal proceedings. The very issue to be decided in the prosecution case will have been dealt with in the civil proceedings if it is allowed to proceed." [64] Her Honour also stated the following: "...These are very simple proceedings involving, in effect, only the bald issue of dishonesty. If the applicant defends these civil proceedings, the Crown will undoubtedly be given a forensic advantage to which it is not entitled under our system of criminal justice." The stay was granted. [65] Whilst her Honour was dealing with a civil trial preceding the criminal trial arising out of the same factual circumstances, it is not dissimilar to what might develop in an examination of the respondents in these proceedings. The respondents are, pursuant to the legislation, required to answer questions on oath or affirmation, they are required to answer relevant questions asked of them and they are required to produce documents. All of those things are not dissimilar to what would be involved in the necessary proofs in a civil proceeding such as appears to have been likely to take place in the case of Liu. DISCUSSION IN THE CONTEXT OF THIS APPLICATION [66] The legislation is drafted with the clear intent of compromising some fundamental privileges, such as the privilege against self-incrimination. The mere fact that criminal 14 -- 14 of 17 -- charges may have been laid and a hearing of these charges may be pending is not of itself a ground for staying the proceedings under the Act. [67] However, the inherent jurisdiction of the courts to preserve those privileges, to protect the rights of an individual and to prevent an abuse of process remains paramount in spite of the intent of the Act. [68] The circumstances in which the courts may act to stay proceedings are varied and depend upon the nature and particular features of the proceeding that it is being considered. An analysis of the authorities illustrates that. [69] At paragraphs 41 and 47 (supra) I referred to “other relevant considerations”. There have been no criminal charges laid in this proceeding. There was, at least in March 2006, an express intention to charge the tenth respondent and the first respondent “soon”. That did not happen before the hearing of this application and I am not aware that it has since then. More than ten months or more has passed and the applicants are not in a position to say whether they or any one or more of them are likely to be charged and whether have any criminal charges in fact to defend. [70] The impugned conduct is alleged to have happened between about three and one half and seven years ago. It was submitted that there is a paper trail, in a limited sense, it seems, that may assist the prosecution. It seems to be implied, by reason of the partly international nature of the scheme promoted by the First Respondent, that there may be some complexity in the investigation. Certainly it seems to me that it is taking an inordinately long time and no express submissions were made to explain that factor in the proceeding. [71] The applicants may, by reference to evidence based upon their statements and records and subject to any expert analysis that they might engage to explain the lawfulness of their conduct, be able to refute the allegations that may be made against them. But until the content and extent of the evidence that may be relied on by the prosecution in any criminal hearing is known to them, it is not surprising that any particularisation of the specific prejudice that they or any one of them may suffer is not able to be articulated on this application. CONCLUSION [72] It seems to me that there is a real risk that the prosecution case, if charges are to be laid, incidentally may benefit from any evidence that may support a defence to any charges or from evidence that is adduced by the applicants on an exclusion proceeding under Section 73 of the Act or an examination under section 80 of the Act. [73] In that sense, this proceeding if not stayed may lead to the applicants being in the position of having to tender or adduce evidence in the proceeding that has the effect of setting “in train a process which may lead to incrimination or lead to the discovery of real evidence of an incriminating character” (in the sense described by Lord Wilberforce in the passage cited in paragraph 59 (supra), that may make out the prosecution case or bolster its prospects of success. [74] Whilst the applicants are in a position that is different from a number of those whose circumstance is reflected in the authorities to which I have referred, nevertheless it is 15 -- 15 of 17 -- my view that even in the absence of greater specificity about any particular prejudice that may be suffered by one or more of them, the circumstances of this proceeding are somewhat unusual and that the case for some measure of protection for them is made out. [75] In my view, to allow the proceedings to continue in the circumstance where the possibility of any criminal charges being laid is and remains – despite the effluxion of what seems to me to be an inordinate period of time – uncertain (or at least unknown) amounts to an abuse of process sufficient to grant a stay, at least temporarily. [76] There are, of course, conflicting interests in matters such as this and in my view the interests of the applicants outweigh those of the CDPP in the particular circumstances of this matter. I do not think that the CDPP will suffer any demonstrated prejudice in the stay being granted. On the other hand, the applicants almost inevitably will suffer prejudice to an extent that warrants the protection of the court in these proceedings. DECISION [77] The application for a stay of the proceedings is granted. [78] There is an outstanding issue: The length of the stay remains to be determined. On the hearing (at T.15) the applicants’ counsel indicated that whilst the application initially sought an indeterminate stay, it was possible that a stay for a specific period of months might suffice by which time it was thought that a decision may have been made as to whether charges were to be laid. Hence some other period of stay or temporary stay may be appropriate in the circumstances. [79] It is implicit in my reasons for decision on this application that the stay has been made primarily because the time for a decision as to whether to charge or not has not been reached any prosecutory proceedings seem to be in a state of suspense. [80] Hence I will hear the parties further on the issue of the length of the stay of proceedings. [81] On the hearing I varied an order previously made for examination of all of the original respondents so as to exclude the applicants in this application and ordered that the application for directions and examination orders relating to them (that is, the tenth and eleventh respondents) be adjourned until judgment on the stay application. I will therefore hear the parties further in respect of this. [82] I will also hear the parties in respect of costs . Orders [83] 1. That the application for stay be granted. 2. That the proceedings are stayed. 3. That length of the stay of proceedings for this application for directions and examination orders and the costs of the application be adjourned for further hearing and determination. 16 -- 16 of 17 -- 17 -- 17 of 17 --