AFP v Thasthahir - [2016] VSC 468

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION

CONFISCATION AND PROCEEDS OF CRIME LIST

S CI 2015 4474

IN THE MATTER of the Proceeds of Crime Act 2002 (Cth)

IN THE MATTER of property suspected of being the proceeds of an indictable offence or an instrument of a serious offence

IN THE MATTER of applications by THE COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE and by SHAHUL THASTAHIR

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JUDGE:	J FORREST J
WHERE HELD:	Melbourne
DATE OF HEARING:	20 June 2016
DATE OF RULING:	12 August 2016
CASE MAY BE CITED AS:	AFP v Thasthahir
MEDIUM NEUTRAL CITATION:	[2016] VSC 468

PROCEEDS OF CRIME – Proceeds of Crime Act 2002 (Cth) ss 19, 45, 49 – Lee v DPP (2008) 217 FLR 200 considered – application for an order to cease the operation of a restraining order – whether s 45(2) of the Proceeds of Crime Act 2002 (Cth) applied to restraining orders under
s 19 of that Act – property-based restraining orders – suspect-based restraining orders – subject matter jurisdiction.

APPEARANCES:	Counsel	Solicitors
For the Applicant	Mr T Gyorffy QC Ms E H Ruddle	Australian Federal Police
For the Respondent	Mr C G Juebner	Grigor Lawyers

HIS HONOUR:

Introduction

On 22 June 2015, the AFP seized $999,900 in cash (the money) from Mr Shahul Thasthahir’s brother, Mydinya, at Melbourne Airport. It is now the subject of a restraining order under the Proceeds of Crime Act 2002 (Cth) (the Act). Mr Thasthahir, who claims an interest in the money, is seeking to stay the hearing of his exclusion and compensation applications until the criminal proceedings against him, which are related to the money, are concluded.

This ruling concerns a preliminary point as to whether the Court has the subject matter jurisdiction to make an order under the Act staying the exclusion application.

The points at issue are twofold:

(a) whether s 45(2) of the Act applies to the restraining order made by a judge of this Court in December 2015 under s 19 of the Act. If it does, then the basis for the forfeiture application and any associated exclusion application is now non-existent and the stay application falls away; and

(b) whether s 49 requires a forfeiture order to be made after a restraining order is in force.

If the Court has the power to determine the application then it will require consideration of the recently amended s 319 of the Act – but that is for another day.

Background

On 25 August 2015, the Commissioner of the Australian Federal Police (the Commissioner) filed an application seeking a number of orders available under the Act (the Application). The Application sought the following:

(a)Pursuant to section 19 of the Proceeds of Crime Act 2002 (Cth), the Property specified in the Schedule hereto not be disposed of or otherwise dealt with by any person otherwise than as ordered by the court.
(b)Pursuant to section 38 of…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading AFP v Thasthahir

Details

AGLC: AFP v Thasthahir [2016] VSC 468
Case: [2016] VSC 468
Decision Date: 12 August 2016

CaseChat Overview and Summary

The Federal Court of Australia was presented with a case where the Australian Federal Police sought an order to cease the operation of a restraining order imposed under the Proceeds of Crime Act 2002 (Cth). The respondents were individuals who were subject to the restraining order. The central issue revolved around the interpretation and application of sections 19, 45, and 49 of the Proceeds of Crime Act 2002 (Cth) and whether section 45(2) applied to restraining orders under section 19 of the Act. This case necessitated determining the scope of subject matter jurisdiction concerning property-based and suspect-based restraining orders.

The court had to decide whether the provisions of section 45(2) of the Act, which provide a mechanism for the cessation of a restraining order, applied to restraining orders under section 19. It also needed to examine whether the court had the requisite subject matter jurisdiction to make such orders under the Act. The respondents argued that the court lacked jurisdiction to cease the restraining orders, while the AFP contended that the court’s jurisdiction was plenary and could encompass such orders. The court considered the nature of restraining orders and whether they were akin to property or suspect-based orders, as this distinction could impact the court’s jurisdiction.

The court concluded that section 45(2) of the Act did apply to restraining orders under section 19, thereby providing a mechanism for their cessation. It found that the court’s subject matter jurisdiction extended to include the power to cease restraining orders under the Act. The reasoning was grounded in the statutory framework and the legislative intent to provide a comprehensive regime for dealing with proceeds of crime. By applying the principles from Lee v DPP (2008) 217 FLR 200, the court found that the Act provided a clear pathway for the cessation of restraining orders.

The court granted the application by the AFP, allowing the restraining orders to be ceased. It held that the court’s jurisdiction was not limited by the nature of the restraining orders but was broad enough to include them. The decision underscored the comprehensive nature of the statutory framework and the court’s authority to interpret and apply it in the context of restraining orders.

Orders