DPP (Cth) v Tan & Anor [2004] NSWSC 856

DPP (Cth) v Tan & Anor [2004] NSWSC 856

Because s 42 of the Proceeds of Crime Act 2002 (Cth) contains no express exclusion, and no necessary implication, preventing an applicant for revocation from adducing relevant and admissible evidence, and because s 42(5) directs attention to whether grounds exist at the time the revocation application is considered, the applicant should be permitted on an interlocutory basis to read her affidavits and seek to tender other relevant evidence, subject to later rulings on admissibility and weight.

Jurisdiction
Australia
Judgment Date
08 September 2004
Procedural Posture
Application to Revoke a Restraining Order Pursuant to S 42 of the Proceeds of Crime Act 2002 (cth) / Interlocutory Ruling on Whether the Applicant for Revocation May Adduce Evidence
Outcome
The Court declined to rule in an umbrella or universal way that the applicant's evidence should be excluded and allowed the applicant for revocation, on an interlocutory basis, to read the affidavits filed and served and to adduce other relevant evidence she may seek to tender.
Legal Topics
['revocation of Restraining Order' 'admissibility of Evidence on Revocation Application' 'right to Be Heard' 'statutory Construction' 'expressio Unius']
['proceeds of Crime' 'confiscation of Proceeds of Crime' 'evidence' 'civil Procedure'] ['revocation of Restraining Order' 'admissibility of Evidence on Revocation Application' 'right to Be Heard' 'statutory Construction' 'expressio Unius']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Application to Revoke a Restraining Order Pursuant to S 42 of the Proceeds of Crime Act 2002 (cth) / Interlocutory Ruling on Whether the Applicant for Revocation May Adduce Evidence

Legal Issues

  1. 1 ['Whether an applicant for revocation of a restraining order under s 42 of the Proceeds of Crime Act 2002 (Cth) may adduce relevant evidence in support of the application.' 'Whether s 42(5) requires the Court to consider the facts and circumstances at the time of considering the application to revoke the restraining order.' 'Whether s 42(4), by expressly allowing the DPP to adduce additional evidence, impliedly prevents the applicant for revocation from adducing evidence.']

Ratio Decidendi

Because s 42 of the Proceeds of Crime Act 2002 (Cth) contains no express exclusion, and no necessary implication, preventing an applicant for revocation from adducing relevant and admissible evidence, and because s 42(5) directs attention to whether grounds exist at the time the revocation application is considered, the applicant should be permitted on an interlocutory basis to read her affidavits and seek to tender other relevant evidence, subject to later rulings on admissibility and weight.

Court Disposition

The Court declined to rule in an umbrella or universal way that the applicant's evidence should be excluded and allowed the applicant for revocation, on an interlocutory basis, to read the affidavits filed and served and to adduce other relevant evidence she may seek to tender.

Orders

  • ['On an interlocutory basis, the applicant for revocation may read the affidavits that she has filed and served.' 'The applicant for revocation may adduce other relevant evidence which she may seek to tender.' 'Applications may be made with respect to particular aspects of the admissibility of the evidence.']