The NSW Supreme Court has dismissed applications by various defendants to revoke orders previously made by McCallum J on 5 April 2012 under s 39(1) of the Proceeds of Crime Act 2002 (Cth) for the defendants to provide sworn statements of their interests in assets on a world-wide basis. The orders related to proceedings against 2 of the defendants for alleged “tax fraud” and “money laundering”. The 2 defendants argued that to provide such statements would breach their right against self-incrimination and prejudice their right to a fair trial.
However, the Court held that on proper construction of the Act, the right against self-incrimination had been abrogated. It also found that in allowing the orders to stand, there was no real risk (as opposed to a theoretical possibility) of interference with the system of criminal justice, nor of interference with the rights of the 2 defendants. The Court also noted, among other things, that the orders did not require either defendant to disclose matters such as the circumstances in which assets were acquired or how they were acquired etc.
Likewise, the Court dismissed the application for revocation of the orders issued to 2 other defendants in the matter – namely, the spouses of the 2 defendants. It did so on the basis that the spouses had not been accused of committing an offence and, as a result, the issue of the privilege against self- incrimination was not applicable.
The Court also noted that the common law “privilege against spousal incrimination” had been overturned in Australian Crime Commission v Stoddart [2011] HCA 47.
(Commissioner of Australian Federal Police v Dickson and Ors [2012] NSWSC 1167, NSW Supreme Court, Bellew J, 5 October 2012.)
[LTN 195, 9/10]