AFP v Thasthahir
[2016] VSC 468
•12 August 2016
| 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
---
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 the Proceeds of Crime Act 2002 (Cth) the Official Trustee take custody and control of the property specified in the schedule hereto.
(c)Pursuant to sub-section 39(1)(ca) of the Proceeds of Crime Act 2002 (Cth), Mydinhaja Thasthahir and Shahul Hameed Thasthahir and any person who makes an application under the Proceeds of Crime Act 2002 (Cth) claiming an interest in the property, is to give the applicant, or such other person as may be nominated in writing by the applicant, or such other person as may be nominated in writing by the applicant, a sworn statement within 28 days of the making of any restraining order in this proceeding or the making of an application under the Proceeds of Crime Act 2002 (Cth) claiming an interest in the property which sets out all of his/her interests in property and his/her liabilities.
(d)Pursuant to section 180 of the Proceeds of Crime Act 2002 (Cth), the following persons be examined about their affairs and each other’s affairs:
i) Mydinhaja Thasthahir; and
ii) Shahul Hameed Thasthahir.
(e)Pursuant to section 49 of the Proceeds of Crime Act 2002 (Cth), the Property specified in the Schedule hereto be forfeited to the Commonwealth.
The schedule to the application identified the money seized at the airport.
On 4 December 2015, Mr Thasthahir was arrested and charged with drug trafficking offences. He remains in custody.
On 15 December 2015, Riordan J made orders under s 19 of the Act in respect of the money:[1]
[1]The order was subsequently varied on 15 December 2015, but the variation is irrelevant for this proceeding
Restraining Order
1.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.
Official Trustee
2.Pursuant to section 38 of the Proceeds of Crime Act 2002 (Cth), the Official Trustee take custody and control of the property specified in the Schedule hereto.
Ancillary Orders
3.Pursuant to sub-section 39(1)(ca) of the Proceeds of Crime Act 2002 (Cth), Mydinhaja Thasthahir and Shahul Hameed Thasthahir and any person who makes an application under the Proceed of Crime Act 2002 (Cth) claiming an interest in the property, is to give the applicant, or such other person as may be nominated in writing by the applicant, a sworn statement within 28 days of the making of any restraining order in this proceeding or the making of an application under the Proceeds of Crime Act 2002 (Cth) claiming an interest in the property which sets out all of his/her interests in property and his/her liabilities.
Examination Orders
4.Pursuant to section 180 of the Proceeds of Crime Act 2002 (Cth), the following persons be examined about their affairs and each other’s affairs:
(a) Mydinhaja Thasthahir; and
(b) Shahul Hameed Thasthahir.
Forfeiture Orders
5.Pursuant to section 49 of the Proceeds of Crime Act 2002 (Cth), the Property specified in the Schedule hereto be forfeited to the Commonwealth.
6.That Orders 1 to 4 inclusive above be made forthwith, and that Order 5 above be adjourned to a date to be fixed not less than 6 months after the making of the restraining order sought herein.
7.Subject to Division 6 of Part 2-1 of the Proceeds of Crime Act 2002 (Cth), these Orders operate until further order.
8.Costs including costs thrown away since the directions hearing on 27 October 2015 reserved.
SCHEDULE
So much of the balance of the Australian Federal Police (AFP) Trust Account maintained with the Commonwealth Bank of Australia (AFP Trust Account) as is referrable to:
i)AFP Property Seizure Record number M300068 and contained in audit bag number 179389, being approximately $20,000 in Australian currency; and
ii)APF Property Seizure Record number M300069 and contained in audit bag numbers 179384, 179385, 179386, 179387 and 179388, being approximately $979,900 in Australian currency;
which was seized on 22 June 2015 by the AFP at Melbourne Airport and deposited into the AFP Trust Account on 1 July 2015.
The Commissioner also made an application for forfeiture of the money at the same time as the restraining application. The forfeiture application is pending.
In May of this year Mr Thasthahir sought a stay of his exclusion applications made under ss 31 and 74 and of his compensation application under s 78 of the Act until the determination of the criminal charges against him.
Mr Thasthahir’s contested committal is scheduled for 25 October 2016.
Relevant provisions of the Act
It is necessary to set out some of the structure of Part 2-1 of the Act, which deals with restraining orders. Sections 17, 18 and 20 have the following headings:
17Restraining orders--people convicted of or charged with indictable offences
18 Restraining orders--people suspected of committing serious offences
20Restraining orders--people suspected of deriving literary proceeds from indictable offences etc
These, it will be seen, deal with restraining orders based on ‘persons suspected of committed offences’. On the other hand, s 19 deals with property-based restraining orders:
19Restraining orders--property suspected of being proceeds of indictable offences etc.
Section 45 is the crucial section in this debate. It reads:
45 Cessation of certain restraining orders
Effect on restraining orders of withdrawal of charges, acquittals etc.
(1)A restraining order that relates to one or more offences ceases to be in force 28 days after one of the following occurs:
(a)the charge, or all of the charges, that relate to the restraining order are withdrawn;
(b)the suspect is acquitted of the offence, or all of the offences, with which he or she was charged;
(c)the suspect’s conviction for the offence, or all of the offences, of which he or she was convicted are quashed;
unless:
(d) there is a confiscation order that relates to the offence; or
(e)there is an application for such a confiscation order before the court; or
(f) there is an application under:
(i) Division 6 of Part 2‑2; or
(ii) Division 4 of Part 2‑3; or
(iii) Division 5 of Part 2‑4 or 2‑5;
for confirmation of a forfeiture, or a confiscation order, that relates to the offence; or
(g) the suspect is charged with a related offence; or
(h) a new trial is ordered in relation to the offence.
Restraining orders if there is no conviction etc.
(2)A restraining order ceases to be in force if, within 28 days after the order was made:
(a)the suspect has not been convicted of, or charged with, the offence, or at least one offence, to which the restraining order relates; and
(b)there is no confiscation order or application for a confiscation order that relates to the offence.
Restraining orders and forfeiture orders etc.
(3)A restraining order ceases to be in force in respect of property covered by the restraining order if:
(a) either:
(i)the court refuses an application for a forfeiture order that would have covered the property; or
(ii) the court excludes the property from a forfeiture order; or
(iii)a forfeiture order that covers the property is discharged or ceases to have effect; or
(iv)the court excludes the property under section 94 from forfeiture under Part 2‑3; and
(b) in the case of a refusal of an application for a forfeiture order:
(i)the time for an appeal against the refusal has expired without an appeal being lodged; or
(ii) an appeal against the refusal has lapsed; or
(iii)an appeal against the refusal has been dismissed and finally disposed of; and
(c) no application for another confiscation order relating to:
(i) an offence to which the restraining order relates; or
(ii) a related offence;
is yet to be determined; and
(d) no other confiscation order relating to such an offence is in force.
(4)A restraining order ceases to be in force to the extent that property that it covers vests absolutely in the Commonwealth under Division 4 of Part 2‑2 or Division 1 of Part 2‑3.
‘Suspect’ is defined by s 338, as:
(a)in relation to a restraining order (other than a restraining order made under section 20A) or a confiscation order (other than an unexplained wealth order)—the person who:
(i) has been convicted of; or
(ii)has been charged with, or is proposed to be charged with; or
(iii)if the order is a restraining order—is suspected of having committed; or (iv) if the order is a confiscation order—committed;
the offence or offences to which the order relates; or
(b)in relation to a restraining order made under section 20A or an unexplained wealth order—the person whose total wealth is suspected of exceeding the value of wealth that was lawfully acquired.
Finally, s 49 reads as follows:
49 Forfeiture orders—property suspected of being proceeds of indictable offences etc.
(1)A court with proceeds jurisdiction must make an order that property specified in the order is forfeited to the Commonwealth if:
(a)the responsible authority for a restraining order under section 19 that covers the property applies for an order under this subsection; and
(b) the restraining order has been in force for at least 6 months; and
(c) the court is satisfied that one or more of the following applies:
(i) the property is proceeds of one or more indictable offences;
(ii)the property is proceeds of one or more foreign indictable offences;
(iii)the property is proceeds of one or more indictable offences of Commonwealth concern;
(iv)the property is an instrument of one or more serious offences; and
(e)the court is satisfied that the authority has taken reasonable steps to identify and notify persons with an interest in the property.
(2) A finding of the court for the purposes of paragraph (1)(c):
(a)need not be based on a finding that a particular person committed any offence; and
(b)need not be based on a finding as to the commission of a particular offence, and can be based on a finding that some offence or other of a kind referred to in paragraph (1)(c) was committed.
(3) Paragraph (1)(c) does not apply if the court is satisfied that:
(a)no application has been made under Division 3 of Part 2‑1 for the property to be excluded from the restraining order; or
(b) any such application that has been made has been withdrawn.
Refusal to make a forfeiture order
(4)Despite subsection (1), the court may refuse to make an order under that subsection relating to property that the court is satisfied:
(a)is an instrument of a serious offence other than a terrorism offence; and
(b) is not proceeds of an offence;
if the court is satisfied that it is not in the public interest to make the order.
The issue and submissions
Counsel for both Mr Thasthahir and the Commissioner agreed that a preliminary point needed to be determined before the stay application could be considered: namely, whether s 45(2)(b) of the Act applied to the restraining order and, if so, whether it operated in such a way that the order was no longer in force. As I mentioned earlier, if this proposition be correct then there is no question of ordering a stay, given that the restraining order is of no effect.
To a large extent, the resolution of this dispute came down to whether or not I would follow the decision of Hidden J in the New South Wales case of Lee v DPP.[2]
[2]Lee v DPP (2008) 217 FLR 200 (‘Lee’).
Counsel made concise and practical submissions, which I summarise below.
Mr Thasthahir’s submissions
Counsel for Mr Thasthahir argued that:
(a) there is no pending application for a forfeiture order under the Act;
(b) by operation of s 45(2)(b) of the Act, the restraining order has ceased to be in force; and
(c) it is not necessary to consider the stay application as the application would be rendered obsolete.
This is because:
(a) by virtue of Rule 6.03(2) of the Supreme Court (Criminal Procedure) Rules 2008 and the inclusion of an application for forfeiture within the Application, the Commissioner sought to apply for a restraining order and a forfeiture order simultaneously;
(b) a proper construction of the Act only allows a forfeiture order to be made after a restraining order is on foot (s 49(1)(a)) – that is, ‘the words “that covers property” are expressed in the present tense’;
(c) accordingly, the Commissioner has not made a valid forfeiture application to date;
(d) the consequence of this is that s 45(2)(b) then operates such that a restraining order ceases to be in force if within 28 days after the restraining order is made ‘there is no confiscation order or application for confiscation order’;
(e) as the Commissioner has failed to make an application for a forfeiture order within 28 days of 25 August 2015, there is no restraining order operating; and
(f) accordingly, if this interpretation is accepted ‘the proceeding is at an end and there is no need to press the stay application.’
As to the Commissioner’s reliance on the decision in Lee, counsel for Mr Thasthahir said:
(a) first, that the Court was not bound by a decision of a single judge of the Supreme Court of NSW, although counsel observed that I would ‘require some persuasion’ that Hidden J wrongly determined the issue;
(b) second, the analysis undertaken by Hidden J was flawed, as the resulting construction means ‘there is actually no need for the Commissioner to ever apply for a forfeiture order because once a restraining order is in place…it operates forever’ as ‘the Commissioner could apply for the restraining order and then sit back, do nothing else, for an indefinite period of time.’[3] This would make ‘a nonsense of the regime’ as the entire purpose of s 45 is to ‘create a window in which a positive step has to be taken, failing which it all comes to an end’;[4]
(c) third, even if Mr Thasthahir’s argument about the correct construction of s 45 is not accepted, having regard to the wording of s 49(1)(a) no current forfeiture application is on foot.
[3]T 16.
[4]Ibid.
The Commissioner’s submissions
The Commissioner said:
(a) there is a pending application for forfeiture;
(b) a a forfeiture application under s 49(1) of the Act can be made at the same time as the restraining application and does not have to be made after the grant of the restraining order; and
(c) section 45(2)(b) does not apply in this case.
The Commissioner submitted that proposition (b) is correct as s 49(1) addresses the considerations and timing for a Court at the time of making the forfeiture order, and does not restrict the timing of the forfeiture application.
The Commissioner’s argument on proposition (c) was to the following effect:
(a) restraint orders and applications under the Act have a number of different bases, ‘consequences, limitations, and controls’;[5]
[5]Outline of Submissions, 19 June 2016, [7].
(b) section 19 restraining applications, as opposed to (for example) section 17 or 18 applications, do not deal with particular suspects, but rather with particular property;
(c) the language of s 45(2) clearly relates to ‘suspect based restraining orders’;[6]
(d) this interpretation is consistent with the decision which held that s 45(2) cannot apply to s 19 restraining orders.
[6]Ibid [9].
The decision in Lee
The underlying facts in Lee are relevantly on all fours with those in this case. In Lee, the Director had sought and obtained a restraining order pursuant to s 19 of the Act. The Director also sought a forfeiture order pursuant to s 49 of the Act as part of the application. The applicant then sought a declaration that s 45(2) of the Act applied so that the restraining order “ceased to be in force”. The applicant also argued that applications for restraining orders and applications for forfeiture orders could not be validly made at the same time.
I will return to the detail of the decision in a moment. It suffices for present purposes to note that Hidden J held that:
(a) section 45(2) did not apply to a restraining order under s 19 – rather, s 45(3) applied; and
(b) section 49 did not mandate that a forfeiture order can only be made after a restraining order is on foot.
Analysis
Evidently, if I follow the decision in Lee then Mr Thasthahir’s preliminary point must be dismissed.
Lee, of course, is a decision concerning the application of Commonwealth legislation. Were Lee the decision of an intermediate appellate court the position would be clear. In Farah Constructions Pty Ltd v Say-Dee Pty Ltd it was observed:
Intermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong.[7]
[7](2007) 230 CLR 89, 151-152.
The Court then referred to the following passage from Australian Securities Commission v Marlborough Gold Mines Ltd:
Although the considerations applying are somewhat different from those applying in the case of Commonwealth legislation, uniformity of decision in the interpretation of uniform national legislation such as the Law is a sufficiently important consideration to require that an intermediate appellate court - and all the more so a single judge - should not depart from an interpretation placed on such legislation by another Australian intermediate appellate court unless convinced that that interpretation is plainly wrong.[8]
[8](1993) 177 CLR 485, 492.
However the position regarding decisions of trial judges of co-ordinate authority is different. There are different views as to the appropriate test, as illustrated in Commercial Bank Co of Sydney Ltd v Federal Commissioner of Taxation, in which Hunt J observed:
The Commissioner, on the other hand, has urged me to adopt the example of Rogers J. in Hamilton Island Enterprises Ply Ltd v. Federal Commissioner of Taxation [1982] I N.S.W.L.R. 113, and follow the decision of Walters J. without full inquiry as to whether it is correct. What his Honour said in that case (at 119) was:
“In my view it is of cardinal importance in the proper administration of justice that single judges of State Supreme Courts exercising federal jurisdiction should strive for uniformity in the interpretation of Commonwealth legislation. Unless I were of the view that the decision of another judge of co-ordinate authority was clearly wrong I would follow his decision.”
…
I doubt, with respect, whether single judges should be quite as unquestioning of each other's decisions as is suggested. It is not always the case that single judges feel obliged to follow decisions even of other judges within the one Supreme Court unless considered to be clearly wrong; and I see no distinction in relation to the decisions of judges of other Supreme Courts merely because all may be exercising federal jurisdiction.[9]
Nonetheless, the approach of Rogers J in Hamilton Island Enterprises Pty Ltd v Federal Commissioner of Taxation[10] has also received support.[11]
[9](1983) 70 FLR 433, 443.
[10](1982) 43 ALR 519.
[11]See, for example Re Rothercroft Pty Ltd and Companies (NSW) Code 1981 (1986) 4 NSWLR 673, 679 (Kearney J).
I accept that whilst I am not bound by the decision in Lee the approach of Hidden J should, at the least, be considered highly persuasive, and I would need a particularly good reason to depart from it. This is because:
(a) ‘it is “highly desirable” that there be conformity of decision as between different States’;[12]
(b) the issue dealt with by his Honour was solely one of statutory construction and interpretation; and
(c) the interpretation was of a Commonwealth Act.
[12]Tillman v A-G (NSW) [2007] NSWCA 327, [46] (Mason P).
Does s 45(2) apply to a restraining order made under s 19?
The structure of the Act, as we have seen, reveals different forms of restraining orders: suspect-based restraining orders in ss 17, 18 and 20 and property-based restraining orders in s 19. This flows from the evident legislative intention to deal differently with confiscation cases where there is a known suspect and where there is not.[13]
[13]Lee (2008) 217 FLR 200, 200.
This differentiation makes sense from a practical point of view. For instance, there may be numerous ‘suspects’ involved in the offences which give rise to the restraining order. There also may well be none. Moreover, a s 19 restraining order could arguably lapse if one potential suspect is not charged - regardless of whether other such suspects have been charged. This, I think, explains why the legislation provides the option of two different forms of restraining order, so as to account for these different situations.
The structure of the Act reflects this legislative intent. The heading in s 45(2) refers to the ‘cessation of certain restraining orders’. Relevantly, it does not refer to the ‘cessation of (all) restraining orders’. Then the wording in s 45(2) refers to ‘the suspect’ and whether ‘the suspect has not been convicted of, or charged with, the offence…’.[14] Pointedly, s 45(2) does not contain a reference to ‘property’ and is contrasted to s 19 which reads ‘property that a restraining order may cover’ and where ‘there are reasonable grounds to suspect that the property is the proceeds of a terrorism offence or any other indictable offence…’.[15] The clear implication is that the Act intends to distinguish between certain types of restraining orders. Moreover, the wording in s 45(3), which I will discuss in a moment, conversely refers to ‘property covered by a restraining order’.
[14]Section 45(2)(a) of the Act.
[15]Section 19 of the Act.
In Lee, Hidden J held that:
Section 19 provides for a restraining order where there are reasonable grounds to suspect that property is, among other things, the proceeds of an indictable offence or a foreign indictable offence, whether or not the identity of the person who committed the offence is known: subs (1)(d). The section makes no reference to a “suspect” and does not require the identification of any person said to have committed, or to be suspected of having committed, an offence.
…
Provision for the cessation of restraining orders, Mr Sakar said, is to ensure that the Director has a “limited window of opportunity” to restrain a person’s property in the course of the procedures under the Act, so that that property would not be “tied up indefinitely”. Should the Director have proper reason to seek the continued restraint of property after the expiration of 28 days, he argued, the Director could seek an extension of the order by invoking the power of the Court under s 39 to make ancillary orders. The Director did not seek such an extension in the present case.
Attractive as these arguments might at first seem, I am persuaded by the submissions of Mr Temby QC, who appeared with Mr Muir for the Director, that they cannot stand with the language of the relevant provisions and the scheme of the legislation. Obviously, Pt 2-1 of the Act is directed to the restraint of dealings with property. However, ss 17, 18 and 20 focus upon a known suspect, that is a person suspected of having committed a relevant offence. The significance of that for present purposes is not diminished by the fact that under those three sections there can be restraint of the property of another person which is subject to the effective control of the suspect or, in the case of ss 17 and 18, property of another person that is proceeds of the offence in question. Section 19, on the other hand, focuses upon property suspected of being the proceeds of a relevant offence, and it matters not whether there is a known suspect.
…
Accordingly, Pt 2-1 evinces a legislative intention to deal differently with those two situations, and that intention is replicated in other Parts of the Act. Section 49 takes its place in Pt 2-2, dealing with forfeiture orders. Sections 47 and 48 are also to be found in that Part. Section 47 is directed specifically at property which has been restrained, upon suspicion of a serious offence, under s 18. Section 48 provides generally for the forfeiture, after a person has been convicted of an indictable offence, of property found to be proceeds of that offence. For the purpose of that section, there need not have been a restraining order in force. Section 49 applies only to property which has been restrained by an order under s 19: subs (1)(b).[16]
[16]Lee (2008) 217 FLR 200, 202 [9], 203 [15]-[16], [18].
The distinction between “property” and “suspect” orders is illustrated by the terms of s 45(3), in respect of which Hidden J said:
Several things should be noted about the subsection. It makes no reference to a “suspect” or a specific offence. It provides for cessation of a restraining order not by reference to the expiry of a period of time but, rather, upon the occurrence of specified events. I accept Mr Temby’s submission that it is only this subsection which could apply to a restraining order under s 19. I am not persuaded by Mr Sackar’s argument that it is simply another mechanism by which any restraining order might cease to operate, and that subs (2) also applies to a s 19 order. The reference in subs (2)(a) to a suspect not having been convicted of, or charged with, any offence to which the restraining order relates is clearly inconsistent with the terms of s 19.[17]
[17]Ibid 204 [22].
The end result is that there is no reason to depart from the conclusion reached by his Honour in Lee. Section 45(2) applies to suspect-based restraining orders and s 45(3) applies to property-based restraining orders.
In this case the order was made under s 19, the property-based restraining provision. It follows that the conditions of s 45(2) are not engaged.
Does s 49 affect a forfeiture application?
Mr Thasthahir argued that s 49 mandated that an application for a forfeiture order can only be made after a restraining order is on foot. But this misapprehends the terms and purpose of s 49. It is irrelevant to the form and the timing of a forfeiture application made under s 19. It sets out the conditions that must be satisfied by the Commissioner at the trial of the forfeiture application which, if satisfied, then empowers the Court to make a forfeiture order, namely:
(a) the existence of a restraining order under s 19 ‘that covers property’;
(b) the need for the restraining order to have been in force for six months;
(c) that the property is the proceeds of crime as set out in sub-ss (i)-(iv); and
(d) that the Commissioner has taken reasonable steps to notify those that might have an interest in the property.
Sub-section (a), which is relied upon by Mr Thasthahir is only concerned with identification of property and its connection to the criminal activities referred to in subsection (c) – as established at the time of the hearing of the forfeiture application. In Lee, Hidden J said:
Section 49(1)(a) requires that there be an application under the section by the Director, but is silent as to when it should be made. The application in the present case was made recognising that it could not be dealt with by the court until the necessary period of time had elapsed. It was not intended that the court’s jurisdiction under s 49 would be invoked until that time had passed. It does not appear to me that making such an application before the court has power to deal with it falls foul of the principles expounded in the cases to which Mr Sackar referred.[18]
[18]Ibid 205 [24].
The fact that the present tense is used in s 49(1)(a) is of no significance, other than requiring a restraining order to be in force over property at the time of the forfeiture hearing, which must take place six months after the restraining order was made.
It is clear, in my view, that the jurisdiction to make an order is dependent on satisfaction of the criteria in s 49(1) – but is irrelevant to the timing of filing the forfeiture application. It follows that any argument based on s 49 affecting the efficacy of a restraining order issued under s 19 is not sustainable.
Conclusion
The Court has jurisdiction to hear and determine the stay application.
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