The Supreme Court has allowed an appeal by Harry Zeman in proceedings brought by the Criminal Assets Bureau and directed that the case return to the High Court for reconsideration.
The dispute concerns procedures under the Proceeds of Crime Act 1996. That legislation allows property found on the balance of probabilities to represent proceeds of crime to be frozen and, after the statutory period, transferred to the State through a disposal order.
Mr Justice Brian Murray said the High Court and Court of Appeal had fallen into error in applying the relationship between three distinct procedures under the Act. He stressed that the initial application under section 3(1) is effectively the substantive trial of whether property represents proceeds of crime, even though the resulting order is described as interlocutory.
A person affected by that order may subsequently apply under section 3(3) to have it discharged. The judge held that this route is the appropriate mechanism for an original respondent who wishes to argue again, on materially new evidence, that the property is not proceeds of crime.
However, such an application cannot ordinarily be used simply to rerun arguments or evidence which could reasonably have been advanced at the original hearing. The court should examine why supposedly new material was not produced earlier and may reject attempts that amount to an abuse of process.
A later application under section 4, after a section 3 order has remained in force for at least seven years, is different. Its purpose is ordinarily to determine whether a final disposal order should be made. An original respondent remains entitled to argue that such an order would create a serious risk of injustice, but should normally use section 3(3), rather than section 4 itself, to reopen whether the assets are proceeds of crime.
The Supreme Court also clarified that belief and hearsay evidence available in the initial process are not generally admissible at the section 4 stage, and that cross-examination there is confined to affidavits sworn for that application.
The appeal was allowed and the proceedings remitted to the High Court to be reheard using that framework.