Aliyanthun Nisha Shahul Hameed v Commissioner of the Australian Federal Police
[2020] VSCA 213
•26 August 2020
SUPREME COURT OF VICTORIA
COURT OF APPEAL
S EAPCI 2020 0011
| ALIYANTHUN NISHA SHAHUL HAMEED | Applicant |
| v | |
| COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE | Respondent |
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| JUDGES: | TATE, KAYE and EMERTON JJA |
| WHERE HELD: | MELBOURNE |
| DATE OF HEARING: | 11 August 2020 |
| DATE OF JUDGMENT: | 26 August 2020 |
| MEDIUM NEUTRAL CITATION: | [2020] VSCA 213 |
| JUDGMENT APPEALED FROM: | [2019] VCC 2153 (Judge Dyer) |
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PROCEEDS OF CRIME – Application for exclusion order – Application for compensation order – Applicant’s husband convicted of serious offence – Property liable to automatic forfeiture – Whether trial judge erred in failing to consider hardship under ss 48 or 72 of the Proceeds of Crime Act 2002 (Cth) – Whether trial judge required to consider each application separately – Hardship provisions not applicable – Trial judge entitled to determine applications based on credibility of applicant’s evidence – Witness and documentary evidence insufficient to establish forfeited property was not the proceeds of criminal activity – Leave to appeal refused – Cini v The Commissioner of the Australian Federal Police [2016] VSCA 227, considered – Proceeds of Crime Act 2002 (Cth) ss 18, 29, 48, 72, 77, 92, 93, 94A.
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| APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr A Hands | Ravi James Lawyers |
| For the Respondent | Ms E Ruddle | Criminal Assets Litigation, Australian Federal Police |
TATE JA
KAYE JA
EMERTON JA:
In December 2015, the applicant’s husband, Shahul Hameed Thasthahir (‘Shahul’), was arrested by members of the Australian Federal Police (‘AFP’) at their home at 65 Suffolk Street, Caversham (‘the Caversham property’), and charged with four counts alleging drug trafficking offences pursuant to s 307.1(1) and s 307.8(1) of the Criminal Code (Cth). In April 2018, a judge of the County Court made a restraining order, under s 18 of the Proceeds of Crime Act 2002 (Cth) (‘the Act’), in respect of a number of items of property belonging to or connected with Shahul, including the Caversham property, of which the applicant is the registered proprietor, and a large sum of cash seized by the AFP on the date of Shahul’s arrest at those premises.
In October 2018, Shahul was convicted of one of the drug trafficking offences, and was sentenced to 16 years’ imprisonment. Upon his conviction, the property, that was the subject of the restraining order, was liable to be forfeited, pursuant to pt 2-3 of the Act, unless the County Court of Victoria made an exclusion order (under s 29 or s 94 of the Act) or an extension order (under s 93 of the Act) before that time. In April 2019, a judge of the County Court made the maximum possible extension order under s 93 of the Act until 19 January 2020.
In September 2019, the applicant filed an application for a compensation order under s 77 and s 94A of the Act, and in October 2019 she filed an application for an exclusion order under s 29 of the Act. Those applications were heard by a judge of the County Court in November 2019. On 19 December 2019, the judge, in a reserved decision, dismissed those applications (and associated applications for exclusion and compensation by her father-in-law Asan Thasthahir).[1] Shahul also made an exclusion application under s 94, but he withdrew that application on the first day of the hearing. The applicant seeks leave to appeal against the decision dismissing her applications.
[1]Thasthahir v AFP [2019] VCC 2153 (Judge Dyer) (‘Reasons’).
Background
The applicant was born in India in March 1987. She married Shahul in India on 22 June 2008 by an arranged marriage. She came to Australia, initially under a spousal visa, in about October 2008. There are two children of the marriage, a daughter, who was born in November 2009, and a son, who was born in February 2015. After her arrival in Australia, the applicant was engaged in a number of different employment positions, taking time off for the birth of each of her two children. In December 2014, she ceased her employment as she was then heavily pregnant with her second child. After her second child was born, she remained at home looking after the family.
On 26 November 2014, the applicant signed a contract to purchase the Caversham property for the sum of $580,000.[2] Before doing so, she had, on 31 October 2014, applied for a loan with the Australian and New Zealand Banking Group (‘ANZ’ or ‘ANZ Bank’). Settlement of the property took place on 9 January 2015.
[2]All amounts are expressed in Australian Dollars, unless otherwise noted.
On 4 December 2015, Shahul was arrested by members of the AFP at the Caversham property. At the time of his arrest police undertook a search of the premises, in the course of which they located and seized sums of cash totalling $149,300. The restraining order was made on 24 April 2018. As mentioned, it covered the Caversham property and the cash that was seized by police. In addition, it covered a property located on the Great Northern Highway, Millendon in the State of Western Australia (the ‘Millendon property’), plant and equipment at the Millendon property, and a property located in Spencer Street, Melbourne (‘the Spencer Street property’).
The evidence
At the hearing of the applications, the applicant relied on her own affidavit, an affidavit of her sister, Rilwana Nashrin Mohammed Liyakath Ali (‘Rilwana’), and on evidence given by her father, Mohammed Liyakath Ali Haja Mohaideen (‘Mohaideen’) and her at their examinations under pt 3-1 of the Act.
In her affidavit, the applicant stated that the purchase price of the Caversham property was financed, in part, by a transfer from Mohaideen’s bank account to the person acting as her conveyancer in the sum of $400,728.13 on 8 January 2015. She stated that that sum, in effect, comprised the following:
(a) A gift of $200,000 to her from her father Mohaideen.
(b) In 2014, she had sold some of her gold jewellery, which she received for her wedding, to her sister Rilwana for the sum of $100,000, which was transferred to Mohaideen’s account on 27 October 2014.
(c) With the assistance of Rilwana and Mohaideen, she had sold part of her gold jewellery to gold merchants in India for approximately $100,000.
In her affidavit, the applicant exhibited copies of Mohaideen’s ANZ Progress Saver Account statement for an account ending in the numbers 6144, and for Mohaideen’s ANZ Access Advantage Cheque account ending with the numbers 6152. She also exhibited receipts from jewellers in India evidencing the sale by her of some of her gold jewellery.
The applicant also deposed that she had accumulated some $24,000 in cash gifts from the baby naming ceremonies of her two children, and from the ear piercing ceremony for her first child. After each ceremony, she had brought approximately $8,000 to $10,000 with her when she returned to Australia. She deposed that those monies, which she had been holding for her children, were part of the cash amounts located and seized by the police on the arrest of Shahul at the Caversham property.
At the hearing of the applications, the applicant was cross-examined in some detail. The cross-examination was directed principally to three issues, namely: the provenance of the large sum of cash money found at the Caversham property by the police; the amount of jewellery owned by the applicant; and the source of the funds with which the Caversham property was purchased. We will refer to the cross-examination, in a little detail, when considering ground 3 of the application for leave to appeal.
Rilwana provided a short affidavit, in which she stated that in approximately July 2014, the applicant told her that she wished to sell some gold jewellery, and that she wanted to use the sale proceeds to purchase a house in Australia. Rilwana agreed to purchase half of the ornaments for the amount of 51 Lakhs Indian rupees (approximately equivalent to $100,000). Rilwana stated that she gave that sum to a money exchanger. When she did so, she was accompanied by Shahul. In the proceeding in the County Court, the respondent served a notice of cross-examination in respect of Rilwana. However, due to technical difficulties, it was not possible for counsel for the respondent to cross-examine Rilwana at the hearing.
The examination of Mohaideen under pt 3-1 of the Act focused primarily on the source of the funds that were paid into his two ANZ bank accounts, from which the applicant claimed some $400,000 was paid in respect of the purchase price of the Caversham property.
In cross-examination, Mohaideen stated that, in May or August 2014, he gave one Crore Indian rupees (approximately $200,000) to Shahul, and told him to take it to the money changer to take to Australia. Mohaideen stated that he had saved that money and kept it in his house. He gave it to Shahul because his daughter, the applicant, was alone in a foreign country. Mohaideen did not have any involvement in sending the money to Australia via the money changer. Subsequently, Shahul paid the money back into Mohaideen’s account. Shahul told Mohaideen that when he was about to buy the property, he would get the money out of the account and put some extra money in it to buy the property. In his evidence, Mohaideen stated that he opened his bank account specifically to hold that money. He stated that Shahul also put his own money into the account along with the $200,000. Apart from the gift of $200,000 returned to him by Shahul, Mohaideen did not put any other funds into the account.
The evidence adduced on behalf of the respondent consisted of affidavits sworn by a number of witnesses, and documents that were exhibited to them.
Senior Constable Dale Brennan, of the AFP, made four affidavits. The first affidavit was prepared for the purposes of obtaining the restraining order, and the other three affidavits were directed to the applications made by the applicant.
In his affidavits, Senior Constable Brennan summarised the evidence in respect of the drug trafficking offences with which Shahul was charged. His affidavits then set out a number of matters pertinent to the present applications, including the following:
·Shahul and the applicant are each directors of, and each of them have a 50 per cent shareholding in, a company called Shaaliya Pty Ltd (‘Shaaliya’). The Australian Taxation Office (‘ATO’) records for Shaaliya indicated that that company is the corporate trustee of the ‘Ummu Family Trust’ (‘Ummu Trust’), and the applicant is a beneficiary of that trust. The declared income for the trust (for the 2016 financial year) was derived from a business trading as a restaurant.
·Based on the ATO declarations for Shahul, the applicant (referred to as ‘Nisha’), Shaaliya and the Ummu Trust, Senior Constable Brennan produced the following summary of their declared incomes for the 2014 to 2017 financial years:
Entity
2014
2015
2016
2017
SHAHUL $31,844 $72,795 Not Received Not Received NISHA $48,952 $25,864 $2,331 Not Received SHAALIYA $0 $10,205 Not Received Not Received UMMU TRUST Not Lodged Not Received $2,674 Not Received Total
$80,796
$108,864
$5,005
$0
·An analysis of the Cross Border Movement-Physical Currency reports (‘CBM-PC’), from the database maintained by the Australian Transaction Reports and Analysis Centre (‘AUSTRAC’) between October 2013 and April 2015, demonstrated that Shahul had declared carrying cash into or out of Australia on seven occasions. Shahul declared bringing $120,000 between October 2013 and June 2014, and taking out $105,000 between July 2014 and April 2015. The applicant is not recorded as having made a CBM-PC report.
·An analysis of the International Funds Transfer Instructions (‘IFTI’) (which contains details of telegraphic transfers of funds into or out of Australia) revealed that, between April 2007 and September 2015, Shahul and the applicant sent approximately $155,000 out of Australia by approximately 150 separate low value outgoing international funds transfers, and they received approximately $73,000 by seven incoming transfers.
·An analysis of the ANZ bank accounts in the name of Mohaideen numbered 6144 and 6152 for the period 27 October 2014 to 30 January 2015 revealed the following:
(a)on opening account 6144 on 27 October 2014, Mohaideen deposited $375,000 in cash;
(b)on opening account 6152 on 27 October 2014, Mohaideen deposited $99,000 in cash;
(c)on 28 October 2014, $34,310 was withdrawn from account 6152;
(d)on 3 November 2014, $324,927.88 was transferred from account 6144 to ANZ account number 835647478 held in the name ‘Axiom P/L Trust’ at the Osborne Park branch of ANZ. Open source checks show that ‘Axiom Pty Ltd’ is a law firm engaged in property law and conveyancing.
(e)on 10 November 2014, $10,000 was transferred out of account 6144 to ‘Aliyathunnisha Shahul’;
(f)on 20 November 2014, $51,000 was transferred out of account 6152;
(g)between 27 November 2014 and 5 January 2015, a further $372,950 cash was deposited to account 6144 via five deposits at the ANZ Mandurah branch;
(h)on 8 December 2014, $110,000 in cash was deposited to account 6152 at the ANZ Mandurah branch and was transferred out on the same day;
(i)on 8 January 2015, $400,728 was transferred from account 6144 to ANZ account no 835647478, known to be the account of Axiom Legal Pty Ltd;
(j)on 30 January 2015, $134,950 in cash was deposited to account 6144 at the ANZ Midland branch.
·Inquiries with Land Victoria and Landgate (WA) in relation to Shahul and the applicant identified properties registered in Shahul and the applicant’s names, or solely in the applicant’s name. They included the following:
(a) The Caversham property.
(b)The Millendon property, of which the applicant and Shahul were registered as joint proprietors on 3 July 2015. Landgate records demonstrated that they paid $1,601,000 for that property. It was sold as a going concern and a substantial amount of plant and equipment was part of the sale.
(c)The Spencer Street property, of which Shahul and the applicant became registered proprietors on 26 November 2015. The property was purchased for a consideration of $460,000.
·Senior Constable Brennan noted that the purchase of the Caversham property was largely funded by unsourced cash deposits into the two ANZ accounts operated by Mohaideen during or proximate to the period in which Shahul was accused of having committed the drug trafficking offences. Senior Constable Brennan was unable to identify any legitimate source for the cash that was deposited into those accounts. The amount of cash, used to purchase the Caversham property, was grossly disproportionate to any reported income for the applicant.
·On the search of the Caversham property on 4 December 2015, AFP found and seized cash totalling $149,300, which comprised the following:
(a)$22,210 that was located in the first bedroom. That amount consisted of (inter alia) 48 $100 notes and 307 $50 notes; and
(b)$127,120 in a storeroom. That amount consisted of 703 $100 notes; 1128 $50 notes; and 20 $20 notes.
·During the search AFP members also found and seized further amounts in Malaysian and Singapore dollars, consisting of MYR19,981 and SGD4,410.
·Senior Constable Brennan accessed IFTI reports which contained details of telegraphic transfers of funds into or out of Australia relating to Rilwana. Those reports demonstrated that the only transfer of funds between the applicant and Rilwana occurred in May 2019. In that month, Rilwana transferred $10,020 to the applicant, and three weeks later she transferred a further sum of $10,109 to the applicant.
Senior Constable Adam McCarthy of the AFP was the primary case officer for the criminal proceeding involving Shahul. He swore two affidavits in the present proceeding. In the second affidavit, Senior Constable McCarthy exhibited video footage that was taken during the execution of the search warrant of the Caversham property. That footage played an important role in the cross-examination of the applicant.
The judge’s reasons
In his reasons, the judge, having noted the relevant deposits and withdrawals relating to the two ANZ accounts of Mohaideen, observed that it was abundantly clear that there were very significant unexplained transactions between 2014 and March 2015 in respect of those accounts, and also that there were inconsistencies between the accounts and the evidence given by the applicant.[3]
[3]Reasons [62].
In particular, the judge noted that on the evidence of the applicant, she had sold jewellery for $200,000, received a gift of $200,000 from her father, and obtained a mortgage loan from the ANZ Bank for $200,000. The amount of $400,728.13, transferred from her father’s account on 8 January 2015, was significantly more than the amount required by the applicant to settle the purchase.[4] The judge further noted that in her affidavit the applicant had stated that the $100,000 paid to her by her sister for the jewellery had been deposited into her father’s account on 27 October 2014. That evidence was inconsistent with the loan application made by the applicant to the ANZ Bank dated 31 October 2014, in which she stated that she owned jewellery worth $200,000.[5]
[4]Ibid [63].
[5]Ibid [64].
The judge considered that the applicant’s evidence about the cash found in her home was not credible. She claimed that the money, that was found in her bedroom, was hers and amounted to $24,000. When it was pointed out in cross-examination that there was less than that amount in the bedroom (in fact there was $22,210), she stated that she had put her money in small wallets or purses and kept it in different places in the house. Further, in the course of the search, the applicant gave different explanations for the large amount of cash found in the premises. At no time did she state that only part of the money was hers, or that part of it constituted cash gifts in respect of the ceremonies for her children.[6] The judge also considered that the applicant was ‘unimpressive in evidence’ when cross-examined about the amounts of money paid into her bank account, in addition to identifiable salary deposits.[7]
[6]Ibid [66]–[70].
[7]Ibid [72].
The judge concluded as follows:
In short the blatant inconsistencies concerning [the applicant’s] evidence are such that it cannot be accepted as reliable in the absence of corroboration. What is offered by way of corroboration in the evidence from her father’s affidavit and her sister’s affidavit in my view adds further confusion and degrades the probative value of [the applicant’s] evidence further.
The extensive written submissions by [counsel for the applicant] dealing with credit ultimately rely on [the applicant] being accepted as a truthful witness. For the reasons stated I am unable to do so.
There is no independent evidence that would satisfy me of the proofs required by her. Her application must also be dismissed.[8]
[8]Ibid [73]–[75].
Application for leave to appeal — grounds
In the notice of application for leave to appeal filed on her behalf, the applicant originally relied on four grounds. At the commencement of oral argument, counsel for the applicant abandoned ground 4. The other three grounds are as follows:
GROUND 1
The learned trial judge erred in law by failing to consider the [applicant's] claim for compensation in the full terms of s 77. The learned trial judge did not consider the questions of:
(i)Whether a proportion of the value of the applicant's interest was not derived or realised, directly or indirectly, from the commission of any offence; nor
(ii) Hardship.
GROUND 2
The learned trial judge erred in law in failing to consider the [applicant's] claims for a hardship award on behalf of:
(i) Herself;
(ii) Her two young children.
GROUND 3
The learned trial judge erred in law by dismissing the [applicant's] claims on the basis of her lack of credit rather than considering all of the evidence including the supportive evidence of:
(i) Documents;
(ii) Her father, [Mohaideen]; and
(iii) Her sister, Rilwana.
Submissions
In support of ground 1(ii) and ground 2, counsel for the applicant submitted that although the applicant had made no formal application for hardship under s 48 of the Act, nevertheless she was entitled to a ‘hardship award’ under that section, because she had adverted to that claim in her submissions to the judge. Counsel contended that although, upon the conviction of Shahul, the restrained property was liable to automatic forfeiture, nevertheless the applicant was entitled to rely on s 48 of the Act. Counsel contended that the judge had power to make a specific order for forfeiture in respect of the restrained property before 19 January 2020, notwithstanding that the property was liable to automatic forfeiture on that date. In support of that submission, counsel contended that such an order was made, in a case involving automatic forfeiture, in Cini v Commissioner of the Australian Federal Police.[9]
[9][2016] VSCA 227 (Priest, Santamaria and Kaye JJA) (‘Cini’).
Counsel for the applicant further submitted that the judge was required to, but did not, consider each of the three applications, namely, the applications for an exclusion order, for compensation, and for a hardship order, separately. Rather, the judge simply found that the applicant was not a credible witness, and dismissed each of her applications.
In support of ground 3, counsel for the applicant contended that, based on the evidence of the applicant and Rilwana, and the evidence given by Mohaideen in the examination under pt 3-1 of the Act, it was not open to the judge to reject the applications by the applicant for an exclusion order under s 29 of the Act and an order for compensation under s 77 and s 94A of the Act. In support of that submission, counsel relied on the evidence of Rilwana concerning the sale by the applicant to her of jewellery for the sum of $100,000. Counsel also relied on the receipts, that were exhibited to the applicant’s affidavit, demonstrating the sale by her of a further amount of jewellery for $100,000. The applicant had been employed for most of the time after she had migrated to Australia in 2008. Accordingly, it was submitted, it was not open to the judge to reject the evidence of the applicant as to the provenance of the purchase price that was paid for the acquisition of the Caversham property, or her evidence as to the source of cash, totalling $24,000, that was seized by the AFP largely from her bedroom.
In response, counsel for the respondent commenced her submissions by addressing ground 1(ii) and ground 2, by which the applicant contended that the judge had failed to consider the applicant’s claim for a ‘hardship award’. Counsel for the respondent contended that the judge was correct not to consider any such ‘claim’ for two reasons. First, the applicant did not make any such application. Secondly, and in any event, the provisions of the Act, that were applicable to the property in this case, did not make any provision ‘for hardship’ to be considered. Counsel noted that the offence, that was the subject of the charge on which Shahul was convicted, was a ‘serious offence’, as that term is defined in the Act. In such a case, s 92 provides for the automatic forfeiture of property, that is the subject of a restraining order, on the expiration of six months from the conviction date, or upon expiration of the period provided for in an extension order. The hardship provisions, contained in s 48 and s 72 of the Act, only apply where a Court, on application by a ‘proceeds of crime authority’, makes a forfeiture order. Those provisions did not apply in the present case, because of the effect of the automatic forfeiture of the property under s 92 of the Act.
In respect of ground 1(i), counsel for the respondent commenced by noting that the applicable compensation provision, in the present case, is s 94A of the Act, not s 77 (on which ground 1 is based).
Counsel for the respondent submitted that the key factual issue between the parties, both in respect of the application for an exclusion order, and the application for compensation, was whether the applicant could satisfy the Court of the lawful provenance of the funds used to purchase the Caversham property, and of the source of the amount of cash which, the applicant claimed, consisted of cash gifts from the birth and ear piercing ceremonies for her children. The evidence in respect of the source of the funds, that were used to purchase the Caversham property, came primarily from the applicant. There was only limited documentary evidence which purportedly supported the applicant’s contentions. The applicant bore the onus of proving each of the matters specified in s 29(2)(c) and s 94A(1). Unless the relevant aspects of the applicant’s evidence were accepted, then her exclusion application and her compensation application could not succeed. In the hearing before the judge, the applicant did not submit that there was a different path of reasoning available in respect of each application. Rather, the basic issue, agitated by the parties, concerned the credibility and reliability of the evidence of the applicant in support of the two applications. Counsel for the respondent submitted that the judge addressed that critical issue in his reasons. His finding that the applicant could not be accepted as a truthful witness was, thus, fatal to the success of each application.
In response to ground 3, counsel for the respondent submitted that, contrary to the contentions advanced on behalf of the applicant, it was open to the judge to make the findings of fact, on the basis of which his Honour rejected the applications.
In particular, counsel submitted that it was open to the judge to reject the claim made by the applicant that the funds, used to purchase the Caversham property, came from her father, Mohaideen. The applicant did not produce any documents evidencing the transfer of the sum of $400,728.13 withdrawn from her father’s account on 8 January 2015, to Australia. No documents evidencing the conversion of the cash into Australian currency were provided. The evidence in support of the provenance of the $400,728.13 was, it was submitted, at best flimsy. The respondent did not accept the evidence given by Rilwana, who was unavailable to be cross-examined in respect of the affidavit sworn by her. The evidence, as to the deposit of $200,000 from the sale of the jewellery, was contradicted by the applicant’s loan application to the ANZ Bank on 31 October 2014, in which she stated that she still owned that jewellery.
In addition, it was submitted that the applicant had failed to prove that the $400,000, debited from Mohaideen’s account on 8 January, was not derived from the proceeds of drug trafficking by Shahul. In the pt 3-1 examination, Mohaideen stated that the only funds, that he contributed to that account, were an amount of $200,000. Otherwise, the account was controlled by Shahul, and, after the deposit of those funds by Mohaideen, considerable amounts were credited to, and withdrawn from, that account.
Counsel for the respondent further submitted that, although the applicant gave evidence concerning the source of the $24,000 in cash, that was part of the large amount of cash seized by police from the Caversham property, and no supporting documents were tendered in evidence in relation to that sum. No records were produced evidencing the transfer of any of that money from India to Australia, or the conversion of the cash from Indian rupees to Australian currency.
Finally, counsel submitted, there were a number of inconsistencies in the evidence given by the applicant, in particular, in relation to the large amount of cash found at the Caversham property, and the applicant’s subsequent claim that part of that amount consisted of cash gifts received by her on behalf of her children at the ceremonies. In those circumstances, it was submitted that the judge had a sound basis upon which to reject the credibility of the evidence of the applicant as to the provenance of the funds used to purchase the Caversham property, and of the sum of $24,000 that was the subject of the exclusion and compensation applications.
Analysis and conclusion
It is convenient to consider, first, grounds 1(ii) and 2 of the application for leave to appeal.
An analysis of the Act demonstrates that the respondent is correct in submitting that the hardship provisions contained in the Act do not apply to a case, such as the present, in which the property, that was the subject of a restraining order made pursuant to s 18 of the Act, was liable to automatic forfeiture.
The offence, with which Shahul was charged and of which he was convicted, was a ‘serious offence’ as defined by s 338 of the Act. Accordingly, the restraining order, in respect of the property in question, was made pursuant to s 18, which specifically applies where (inter alia) there are reasonable grounds to suspect that a person has committed a serious offence. Section 92 of the Act is the section that provides for the forfeiture of such property. Section 92 sub-ss (1) and (3) state:
Forfeiting restrained property without a forfeiture order if a person has been convicted of a serious offence
(1)Property is forfeited to the Commonwealth at the end of the period applying under subsection (3) if:
(a) a person is convicted of a *serious offence; and
(b) either:
(i)at the end of that period, the property is covered by a *restraining order under section 17 or 18 against the person that relates to the offence; or
(ii)the property was covered by such a restraining order against the person, but the order was revoked under section 44 or the property was excluded from the order under that section; and
(c)the property is not subject to an order under section 94 excluding the property from forfeiture under this Part.
…
(3) The period at the end of which the property is forfeited is:
(a) the 6 month period starting on the *conviction day; or
(b)if an *extension order is in force at the end of that period—the extended period relating to that extension order.
As noted, in the present case, as a result of two extension orders, the relevant period, specified under s 92(3), was due to expire on 19 January 2020. Thus, by the terms of that section, in the absence of an exclusion order, the property, that was the subject of the restraining order (including the Caversham property and the cash that was the subject of the applications in this case), was liable, without more, to automatic forfeiture to the Commonwealth.
The relevant hardship provisions in the Act are s 48(3) and s 72. Each of those provisions, by their specific terms, only applies where a Court is making a forfeiture order. Section 48(2) of the Act provides that a court (with proceeds jurisdiction) may make an order that property, specified in the order, is forfeited to the Commonwealth, if a person has been convicted of one or more indictable offences, and if the property specified in the order is not proceeds of the offences, but the court is satisfied that that property was an instrument of one or more of the offences. Section 48(3)(a) provides that, in considering whether to make such an order, the court may have regard (inter alia) to any hardship that may reasonably be expected to be caused to any person by the operation of the order.
Section 72(1) of the Act provides that the Court ‘making a forfeiture order’ specifying a person’s property must make another order directing the Commonwealth to pay a specified amount to a dependant of the person if (inter alia) the forfeiture order would cause hardship to that dependant.
Thus, in the present case, the Caversham property and the cash, that were the subject of the restraining order, were liable to automatic forfeiture under the statue upon conviction of Shahul. In such a case, the Court was not required, nor was it empowered, to make a forfeiture order. Rather, the legal source of the forfeiture was the statute. The express terms of the relevant provisions providing for consideration of hardship — s 48 and s 72 — only apply where a Court makes a forfeiture order. By their clear terms, they did not apply to the present case.
Counsel for the applicant sought to avoid the effect of those provisions by submitting that, until the automatic forfeiture of the property occurred on 19 January 2020, the forfeiture of the property was ‘inchoate’. In such a case, he submitted, the Court had power to make a forfeiture order. As mentioned above, he further contended that such an order was made in Cini’s case.
That submission is flawed for two reasons. First, as we have pointed out, the Court, in a case such as this, did not have power to make a forfeiture order. At the risk of repetition, the forfeiture that was to take place on 19 January 2020 was the automatic effect of the statutory provisions we have discussed. Secondly, no forfeiture order was made — nor could it have been made — in Cini’s case.[10]
[10]Cini [2016] VSCA 227, [8] (Priest, Santamaria and Kaye JJA).
For those reasons, ground 1(ii) and ground 2 must fail.
Ground 1(i) contends that the judge erred by failing to consider the applicant’s claim for compensation in the full terms of s 77 of the Act. As counsel for the respondent correctly pointed out, s 77 is only relevant to a case in which a court has made a forfeiture order. For the reasons just discussed, no such order was or could be made in this case. Rather, the relevant provision, for making a compensation order in the case of property that is liable to automatic forfeiture, is s 94A of the Act. During the oral hearing, the Court indicated to the parties that it would address ground 1(i) on the basis that the claim for compensation was made under that provision, and that the ground is addressed to that claim.
Counsel for the applicant was correct to submit that the judge, in his reasons for judgment, did not specifically address the claims made by the applicant for an exclusion order under s 29 of the Act and for a compensation order under s 94A of the Act separately. Nor did the judge specifically consider the particular terms of each of those provisions. However, given the manner in which the case was argued before the trial judge, his Honour was not required to undertake any such independent assessment of the two applications, nor to engage in a detailed examination of the particular statutory prerequisites that applied to each of the two applications.
It is clear, from the submissions made before the primary judge, that the critical issue, in respect of each of the applicant’s applications for exclusion and compensation, concerned the credibility and reliability of the evidence given by the applicant, and the sufficiency of the evidence relied on by her to support her applications. Essentially, counsel for the applicant, in the proceeding, relied on the same evidence to support the application for an exclusion order, that he relied on in support of the application for a compensation order. In the written submissions filed in the hearing before the judge, in support of each of the two applications, the applicant relied on her own affidavit, the affidavit of Rilwana, and the evidence that she and her father Mohaideen gave at their examinations under pt 3-1 of the Act. In respect of each of the two applications, the submissions were based on the assertion that the Caversham property, and the amount of $24,000 cash, were not the proceeds of unlawful activity, nor were they the instruments of a serious offence. The applicant’s submissions further relied on the contention that the Caversham property was purchased with funds borrowed by the applicant from the ANZ Bank and from the proceeds of the sale of another property (at 58 Barbarossa Drive, Caversham) which was in her name. In each submission, it was contended that the sum of $25,000 (or $24,000 to $30,000), found in the bedroom, had been accumulated by her from the baby naming and ear piercing ceremonies.
The written submissions, filed by the respondent before the trial judge, dealt in some detail with the evidence given by the applicant, and the evidence on which she relied in support of her applications. Those submissions focused essentially on contradictions and inconsistencies in the applicant’s evidence, and on the lack of appropriate independent evidence supporting the two applications made by her.
Relevantly, in the hearing before the judge, neither the applicant’s submissions nor the respondent’s submissions sought to differentiate, at all, between the points that were made in support of, or opposition to, each of the two applications. The competing submissions did not address, in any detail at all, the particular requirements of the statutory provisions in question.
Such an approach was not necessary in the context in which the applications were made and resisted. As counsel for the respondent correctly pointed out in her submissions to this Court, the essential question, before the judge in each case, concerned the credibility of the applicant, and the sufficiency of the evidence, relied on by the applicant, in support of her case as to the source of the funds from which the Caversham property was purchased, and in support of her claim that, of the large sum of cash found at the Caversham property, some $24,000 had been derived from the naming and ear piercing ceremonies relating to her children. Essentially, the applicant’s case, both for an exclusion order and for a compensation order, either succeeded or failed on the judge’s assessment of the applicant’s evidence and of the other evidence, that she relied on in relation to those two applications.
For those reasons, the judge did not err in the manner in which he considered and addressed the two applications before him, namely for an exclusion order and for a compensation order. It follows that ground 1(i) of the application for leave to appeal must fail.
We turn, then, to ground 3. Under that proposed ground of appeal, the applicant contended that the judge erred in concluding that the evidence given by the applicant, Mohaideen and Rilwana, and the documentary evidence tendered on her behalf, were insufficient to establish her claims for an exclusion order and a compensation order.
The relevant principles, applicable to such a ground of appeal, have been discussed in a number of decisions of the High Court, including Warren v Coombes,[11] Devries v Australian National Railways Commission,[12] Fox v Percy[13] and Robinson Helicopter Company Inc v McDermott.[14] They were conveniently summarised by this Court in Box Hill Institute of TAFE v Johnson[15] in the following terms:
[11](1979) 142 CLR 531, 537–551; [1979] HCA 9 (Gibbs ACJ, Jacobs and Murphy JJ).
[12](1993) 177 CLR 472, 480–1; [1993] HCA 78 (Deane and Dawson JJ).
[13](2003) 214 CLR 118, 126–7 [25]; [2003] HCA 22 (Gleeson CJ, Gummow and Kirby JJ).
[14][2016] HCA 22, [43] (French CJ, Bell, Keane, Nettle and Gordon JJ).
[15][2015] VSCA 245.
The principles that apply to such a ground of appeal are well established, and for the purposes of this case, can be conveniently summarised as follows:
(1)The appeal before the court comes by way of re-hearing. Accordingly, the court is required to examine the record and to give the judgment which in its opinion ought to have been given at first instance.
(2)Subject to (3) and (4) below, in general, an appellate court is in as good a position as the trial judge to decide on the proper inferences to be drawn from facts which are undisputed, or which, having been disputed, are established on the findings of the trial judge. In deciding the proper inference that is to be drawn, the appellate court should give respect and weight to the conclusion of the trial judge, but, once having reached its own conclusion, it must give effect to it.
(3)In applying those principles, the appellate court should make due allowance for the advantages that are available to the trial judge, and in particular, the advantage the trial judge has in evaluating the credibility and reliability of witnesses, and of gaining an appreciation of the evidence, and the import of it, as it is given.
(4)In particular, in cases in which a judge’s findings of facts are dependent on the judge’s assessment of the character and credibility of the witnesses, the advantage enjoyed by the judge in that respect extends to inferences that are drawn in that context.
(5)Where the judge reaches a conclusion as to the evidence of a witness or witnesses of one party, such a conclusion may be demonstrated to be incorrect, if it is contrary to incontrovertible facts or uncontested testimony, or if (in a rare case) such a conclusion is either ‘glaringly improbable’ or ‘contrary to compelling inferences’.
In relation to those five propositions, we venture the following three observations. First, while an inference is a conclusion based on established facts, nevertheless the interplay between the finding of a particular fact or facts, and the drawing of a conclusion, is not entirely discrete. The drawing of an inference, or reaching of a conclusion, is necessarily affected by precisely how and for what reasons a judge may have accepted, or rejected, a particular piece of evidence which is important to the drawing of that inference or conclusion. Secondly, in a civil proceeding, a judge may only draw an inference or reach a conclusion in favour of a party on whom the onus of proof lies, if that inference or conclusion is the more probable inference or conclusion available on the facts of which the judge is satisfied. The question whether an inference is more probable than another may be affected by the judge’s view of particular facts relied on in support of any competing inference, or of facts relied on to contradict the inference ultimately formed by the judge.
Thirdly, the advantages enjoyed by a trial judge, in assessing witnesses, and drawing inferences, should not be underestimated. The judge has the opportunity of listening to and observing the witnesses, and considering the evidence as it is revealed over a period of time, and of reflecting on that evidence, and its effect, in the course of the trial. That perspective affords the trial judge a substantial advantage, in reaching relevant conclusions on the facts, that is not available to a court of appeal, which is confined to a reading of the transcript and an examination of the exhibits.[16]
[16]Ibid [36]–[38] (citations omitted) (Warren CJ, Hansen and Kaye JJA).
In order to succeed in her applications for an exclusion order and for a compensation order, the applicant was (relevantly) required to prove, on the balance of probabilities, that the Caversham property, and the sum of $24,000 that was part of the cash seized by the police from that property, were not the proceeds of, or derived from, the drug trafficking by her husband, Shahul. In order to succeed on ground 3, the applicant must demonstrate that the judge erred in concluding that she had failed to discharge that onus of proof in respect of those two aspects of her applications. For the reasons that follow, we consider that there was a sound basis for the judge not to accept the evidence of the applicant, or the evidence relied on by her, in support of her two applications. In our view, the evidence relied on by the applicant was wholly deficient for the purposes of discharging the onus of proof borne by her. In particular, the judge had an appropriate basis upon which not to accept the applicant as a witness of truth. The applicant’s evidence, and the other evidence relied on by her, were not sufficient to discharge the onus of proving that the Caversham property was not purchased with the proceeds of unlawful activity, and that the sum of $24,000, claimed by the applicant, was not the proceeds of unlawful activity.
It is convenient to consider, first, the evidence relied on by the applicant relating to the source of the amount of $24,000, which she claimed was included in the cash seized by the AFP from the Caversham property. In her affidavit, the applicant deposed that she had accumulated monies from ceremonies in July 2010, August 2012, and May 2015, from after birth ceremonies for her two children and from the ear piercing ceremony for her first child. She exhibited copies of photographs in respect of two of those ceremonies. However, no independent evidence was adduced by the applicant in support of her claim that she had received, and accumulated, the amount of $24,000 in cash as gifts from guests at those ceremonies.
In cross-examination, the applicant first stated that the sum of $24,000 consisted of cash money that she kept in the drawer in her bedroom at the Caversham property. However, in fact, a lesser amount of $22,210 was seized from that location. In cross-examination, she changed her account, stating that she had put the monies in small wallets or small purses which she kept in different places in the house, including in the storeroom. The videos of the Caversham property, taken during the search, reveal that at no time during the search did the applicant tell police that any of the amount of cash seized, let alone $24,000, consisted of monies held by her for her children. In cross-examination, she agreed that she did not say that to the police at that time. She did not give any explanation why she had omitted to do so. Instead, when she was first presented with the large bag of cash seized from the premises, she said that she did not know how much was there, that she kept ‘hiding’ it or ‘adding’ to it, and that it was more than $25,000.
In cross-examination, the applicant stated that $24,000 to $30,000 came from the ceremonies. She agreed that she had told the police that the money was hers. In further cross-examination, she said that in fact only $6000 of that amount was hers, that she had earned it from her work, and that she was saving it to build a house in India. It might fairly be observed that the further the cross-examination proceeded, the more inconsistent became the answers of the applicant, and the more fanciful the propositions relied on by her.
In the course of the search, two police members counted the money, that had been seized from the storeroom, on the kitchen bench in the presence of the applicant. After they had counted $56,400 in $50 notes, the female police officer said, ‘So $56,400’. The male officer then said to the applicant, ‘So you’re saying this is your money?’, to which the applicant responded, ‘Yeah.’ When he asked her how she acquired the money, the applicant said that she had earned it from work in a restaurant, and that it was ‘my money’. When the male police member pointed out that it was a lot of money to have in cash, in a clean condition, in her home, she responded that she had it to buy a home in India.
After the $100 notes were produced and counted, the applicant continued to insist to the police that they were taking ‘her money’. In cross-examination, she stated that only the $50 notes were hers, and that was the money to which she was referring when speaking to the police. However, as the property seizure record denotes, the sum of $22,210 found in the bedroom consisted of (inter alia) some 48 $100 notes. Importantly, at no time during the search, did the applicant tell police that the large sum of cash seized by them — totalling $149,300 — was not hers, or that she had not previously been aware of its presence in the house. When, at the conclusion of the counting, the female police officer told the applicant that the total amount found (in the storeroom) was $127,120, the applicant did not then say to the police that that money was not hers, or that it was her husband’s. Nor did she express any surprise at the amount that had been counted.
Accordingly, the judge had good reason not to be persuaded, on the balance of probabilities, that, of the cash monies found by the AFP at the Caversham property, some $24,000 consisted of the proceeds of gifts to her children at the ceremonies. Further, the judge was entitled, for good reason, to regard the applicant as not being a truthful and reliable witness.
There were significant deficiencies in the evidence given by the applicant, and the evidence relied on by her, as to the source of the money which was used to pay the purchase price for the Caversham property.
As we have mentioned, in her affidavit, the applicant deposed that of the purchase price, some $400,728.13 came from her father’s account, and that those monies were derived from three sources, namely: first, a gift of $200,000 from her father; secondly, $100,000 from the sale by her to her sister Rilwana of jewellery she had received at her wedding ceremony; and, thirdly, a further $100,000 which she received from the sale by her of gold jewellery to gold merchants in India.
The evidence, as to the gift by the applicant’s father Mohaideen to the applicant of $200,000, was contradictory and unsupported by any independent documentary or other evidence. No evidence was adduced as to the source of the $200,000 given by Mohaideen to the applicant. In his evidence, he said that he gave the money in rupees to Shahul in India. However, neither the applicant nor Mohaideen, nor indeed Shahul, provided any explanation how that money came into Australia. In the pt 3-1 examination, Mohaideen stated that subsequently Shahul insisted on returning the money to him (Mohaideen) and that the money was then paid into Mohaideen’s bank account, apparently to be held by Mohaideen and later provided to the applicant to enable her to purchase the Caversham property. However, again there is no documentary record supporting that evidence. The bank statement for Mohaideen’s ANZ bank account number 6144 recorded a deposit of $325,000 on 27 October 2014. On the same date there was a ‘card entry’ of $50,000. On 3 November 2014, an amount of $324,927.88 was withdrawn. A further amount of $10,000 was withdrawn on 10 November. Thus, most of the initial deposit was effectively withdrawn in November. Subsequently, there were a number of deposits into the account leading up to 5 January 2015. Mohaideen’s evidence was that, apart from an initial deposit of $200,000, the only other deposits into the account were made by Shahul. He said that Shahul had access to the account. On 8 January 2015 — the day before the settlement of the purchase of the Caversham property — the sum of $400,728.13 was withdrawn by ‘card entry’ at the Mandurah branch of the ANZ Bank. There was no documentary or independent evidence that that amount was applied to the purchase of the Caversham property. However, assuming that it was, it is clear, from the evidence of Mohaideen, that it consisted, either wholly or in large part, of money paid into the account by Shahul.
As we have noted, Rilwana was not able to be cross-examined due to technical difficulties. Her affidavit was brief and devoid of detail. She did not provide any supporting documents, such as receipts, proof of income, or photographs of the jewellery purchased, to support her evidence that she purchased jewellery from the applicant for $100,000. Further, no documentary evidence was adduced by the applicant to demonstrate the transfer to her from India of the proceeds of the sale of jewellery by her, both to Rilwana, and to the gold merchants in India.
In her evidence, the applicant said that she sold the jewellery to Rilwana and to the gold jewellers in August and September 2014. She also said that after she had sold the jewellery, she had kept jewellery that was worth approximately $40,000 for herself. On 31 October 2014, the applicant signed an application to the ANZ Bank for a mortgage loan. In that application, it was noted that the applicant had assets that included ‘jewellery, 200,000’. When cross-examined, the applicant claimed that she had told the bank that she had sold the jewellery for $200,000 and that the bank officer may have misunderstood what was said. The content of the loan application is plainly inconsistent with the applicant’s evidence, and Rilwana’s evidence, that before October 2014 she had sold her jewellery worth $200,000.
In addition to the above matters, there was contextual evidence militating against the credibility and reliability of the evidence given by the applicant. In particular, the applicant owned, either by herself, or as joint proprietor with Shahul, the Caversham property, the Millendon property and the Spencer Street property. In addition they had entered into contracts to purchase an apartment in Dubai and a hotel property in Chennai. Based on their declared incomes, those purchases were well beyond their legitimate financial means.
Based on the foregoing matters, we consider that it was open to the judge not to accept the evidence of the applicant, and the evidence relied on by her, in support of her applications for an exclusion order and a compensation order. In particular, there was an appropriate basis upon which the judge could conclude that he was not satisfied, on the balance of probabilities, that the Caversham property, and $24,000 of the cash seized by the police at the Caversham property, were not the proceeds of the criminal activities of the applicant’s husband Shahul. The judge was well justified in reaching that conclusion.
It follows that ground 3, of the application for leave to appeal, must fail.
Summary of conclusion
For the foregoing reasons, the applicant has failed to succeed on grounds 1, 2 and 3 of the application of leave to appeal. As we have stated, ground 4 was abandoned at the commencement of oral argument. Accordingly, the application for leave to appeal must be refused.
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