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Proceeds of Crime compulsory examinations

The South Australian District Court recently published an interesting (and lengthy) decision considering the interaction of compulsory examinations under s 180 Proceeds of Crime Act 2002 (Cth) with the accusatorial criminal process: R v Ruzehaji (No 2) [2017] SADC 119.

I say it is interesting for 2 reasons. First it is of interest to me because I had involvement in the matter before I was called to the bar and in fact I gave evidence in the relevant application. Secondly, and my reason for writing about it, it provides some practical insight in a couple of areas. Particularly about the motivations law enforcement agencies have (in a confiscations context) for early compulsory examination/interrogation of suspects.


Mr Ruzehaji was charged with serious Federal drug offences. Immediately before his arrest ex parte orders were made (on the application of the AFP) under s 18 Proceeds of Crime Act 2002 (POCA). These proceedings were legally separate and distinct from the criminal proceedings.1 The criminal and POCA proceedings relied upon broadly the same facts and allegations and substantially the same evidence.

Within a month or so of his arrest I compulsorily questioned Mr Ruzehaji in an examination under s 180 of the Proceeds of Crime Act 2002. Before the examination I advised his solicitor and his counsel that I would ask him questions in examination about matters that were also relevant to his criminal proceedings.2 At the start of the examination I questioned Mr Ruzehaji about matters “unrelated to the pending criminal charges” before announcing that “I intended to ask questions relevant to the charges” which I then did.3

Mr Ruzehaji brought various applications within the POCA proceedings to unscramble the egg – that is undo (as a matter of law) the fact that he had been examined. He failed. In part he failed because he had acquiesced in the examination. This is an important lesson for others. If you are going to challenge the use of coercive power, time is always of the essence. Do so immediately and do so before the power is exercised or at the very least put your position on the record. Those previous applications are described in his Honours reasons at [58] to [73]. Mr Ruzehaji’s challenges to the POCA proceedings failed, including before the Full Court of the Supreme Court of South Australia.

Mr Ruzehaji then brought an application for a permanent stay of his criminal prosecution. It was that application that the present reasons consider (and dismiss). Mr Ruzehaji made a number of arguments in support of his permanent stay application. Most revisited issues that had been decided in earlier litigation between Mr Ruzehaji and the AFP, or decided by other appellate authority. His Honour ruled that once again Mr Ruzehjaji’s acquiescence was relevant to refusing the application.4

Why examine a suspect quickly

One of the more interesting issues (and I say this quite genuinely) is the summary of my evidence about why Mr Ruzehaji was examined on issues relevant to his criminal charges; and why he was examined when he was examined. I gave this evidence (not knowing it at the time of course – I was just a witness) in the context of an argument being advanced on Mr Ruzehaji’s behalf that “the questioning in relation to the drug charges was irrelevant to the POCA proceedings”.5

At [177] his Honour set out this evidence that I gave in re-examination:

[M]y focus at the time was the s18 restraining order and the extant s47 forfeiture [application] and the inevitable exclusion applications that Mr Ruzehaji had to make. I should say Mr Ruzehaji and Amir (sic) Enterprises … Those two entities had to … take positive steps. My experience with proceeds of crime matters is that it’s extremely useful to examine a person who is about to get inundated with disclosure in the course of a criminal [investigation] because as we all know the police are required to disclose everything to an accused person and properly so. My experience had been, prior to the examination of Mr Ruzehaji, it was useful to ask questions about what warehouse you went to, who you were with, who you rang, what you did before they had disclosure because once they could craft their answers accordingly. But if you asked them questions in a compulsory examination or before they had that material they had two choices, tell the truth or guess, and if they guess what the police have and don’t have they often slip up. You pencil in at that point that their prospects of succeeding in the proceeds of crime litigation drastically fall.

At [178] his Honour held:

…it was relevant to pin [Mr Ruzehaji] to an account with respect to the drug charges which the Commissioner might be able to contradict, when an application for an exclusion order was made, by evidence that was not known to the accused at the time of the s 180 examination and of which he would have remained unaware until the details of the prosecution’s case were disclosed to him in the usual way. In my view, this was a perfectly proper use of the POC Act compulsory examination powers. Mr Greaves was entitled to elicit answers from the applicant relating to the drug charges in order to improve the Commissioner’s chances of defeating any subsequent application for an exclusion order.

Other authorities

Ruzehaji is also useful in that his Honour undertook a detailed analysis of many of the recent High Court and Court of Appeal decisions concerning compulsory examinations under various schemes (Confiscation, Crime Commission and also Corruption).6

  1. Reasons at [42]-[48]. 

  2. Reasons at [48][52.] 

  3. Reasons at [56]. 

  4. Reasons at [70] and [190]. 

  5. Reasons at [173]. 

  6. Reasons at [95] – [172] 


Edward Greaves is a barrister at Francis Burt Chambers in Perth, Western Australia. Edward takes briefs in most civil and commercial litigation matters as well as financial and complex crime and regulatory and government matters. View profile | Connect on LinkedIn

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