Application by the Commissioner of the Australian Federal Police

[2023] NSWSC 33

Supreme Court

New South Wales

Medium Neutral Citation:

Application by the Commissioner of the Australian Federal Police [2023] NSWSC 33

Hearing dates:

2 February 2023

Date of orders:

2 February 2023

Decision date:

02 February 2023

Jurisdiction:

Common Law

Before:

Davies J

Decision:

Pursuant to s 316 of the Proceeds of Crime Act 2002 (Cth), the court orders that:

Forfeiture orders

1. Pursuant to s 49 of the Act, the property listed in Schedule 6 be forfeited to the Commonwealth.

2. Pursuant to s 49 of the Act, the property listed in Schedule 7 be forfeited to the Commonwealth.

Leave to deal with forfeited property

3. Pursuant to s 69(2) of the Act, the Commonwealth be given leave to deal immediately with forfeited property.

Other orders

4. These orders be entered forthwith.

5. The proceedings are otherwise dismissed. 

Schedule 6

1. The sum of AUD6,850 cash seized by members of the AFP on 25 August 2021 during the execution of a search warrant at 18 Peterlee Road, Canley Heights, NSW 2166, (recorded on AFP PSR 3635973/007), together with any interest earned on that amount.

2. The right to the credit to funds once remitted by the RBA in relation to $150 seized by the AFP on 25 August 2021 during the execution of a search warrant at 18 Peterlee Road, Canley Heights, NSW 2166, (recorded on AFP PSR 3635973/001), and forensically tested by the AFP before being sent to the RBA for remittance via a claim made on 9 December 2021, together with any interest earned on that amount once banked.

Schedule 7

1. The sum of AUD14,050 cash seized by members of the AFP on 25 August 2021 during the execution of a search warrant at 18 Peterlee Road, Canley Heights, NSW 2166, (recorded on AFP PSR 3635973/005) together with any interest earned on that amount.

2. The right to the credit to funds once remitted by the RBA in relation to $100 seized by the AFP on 25 August 2021 during the execution of a search warrant at 18 Peterlee Road, Canley Heights, NSW 2166, and forensically tested by the AFP before being sent to the RBA for remittance via a claim on 9 December 2021, together with any interest earned on that amount once banked.

Catchwords:

CRIMINAL LAW – proceeds of crime – forfeiture orders

Legislation Cited:

Proceeds Of Crime Act 2002 (Cth)

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

Commissioner of the Australian Federal Police (Plaintiff)

Representation:

Counsel:
M Beamish (Plaintiff)
Z Zreika (Five Interested parties)

Solicitors:
Criminal Assets Litigation, Australian Federal Police (Plaintiff)
Criminal Defence Group (Five Interested parties)

File Number(s):

2022/138339

Publication restriction:

Nil

Judgment

1. These proceedings commenced on 13 May 2022. The summons sought restraining orders under s 19 of the Proceeds of Crime Act 2002 (Cth), custody and control orders pursuant to s 38 of the Act and forfeiture orders pursuant to section 49 of the Act.

2. On 27 June 2022 a number of interested parties who had, by that stage, been identified (for whom Ms Zreika appeared), signed consent orders enabling restraint, custody and control and forfeiture orders.

3. The proceedings came before Walton J as duty judge on 1 July 2022, and on that day his Honour made restraining and forfeiture orders in respect of the property contained in Schedules 1 to 5 of the summons.

4. The Commissioner believed at that time that there might be other interested parties in respect of the property in Schedules 6 and 7. Those parties were Van Tho Tiang and My Nu Tu (“the additional interested parties”). The additional interested parties were notified of the summons but did not appear before Walton J on 1 July 2022.

5. The proceedings came before Cavanagh J on 26 July 2022, and his Honour made restraining orders and custody and control orders in relation to the property listed in Schedules 6 and 7 of the summons on that day. Thereafter the additional interested parties were notified and served with a copy of the summons, the supporting affidavit and the restraining orders made by Walton  J. No response was received from those parties.

6. I am satisfied, from the affidavit of Brendan Smith sworn 27 January 2023, that those the additional interested parties were notified by letter, dated and sent 10  January 2023, of the orders made by Cavanagh J and of the intention of the Commissioner to seek forfeiture orders in the event that no application was made by them under Div 3 of Pt 2-1 of the Act.

7. There has been no application made by either of those additional interested parties. They have not appeared in the proceedings.

8. In those circumstances, the Commissioner seeks forfeiture orders today in respect of the property in Schedules 6 and 7 of the summons.

9. The interested parties named in the consent orders of 27 January 2022, for whom Ms Zreika today appears, consent to the forfeiture orders.

10. In relation to the additional interested parties, the Commissioner must establish the matters set out in s 49 of the Act. I am satisfied that, pursuant to s 49(1)(a) the Commissioner is a responsible authority. I am satisfied that, pursuant to s  49(1)(b), the restraining orders, in respect of the property in Schedules 6 and  7, have been in force for at least six months. I am satisfied, pursuant to s  49(1)(e), that the authority has taken reasonable steps to identify and notify persons with an interest in the property.

11. Ordinarily s 49 (1)(c) would have to be satisfied, but it does not need to be satisfied in circumstances where no application has been made under Div 3 of Pt 2-1 for the property to be excluded from the restraining order. In those circumstances the forfeiture orders sought by the Commissioner should be made.

12. The Commissioner also seeks leave under s 69(2) of the Act, that the Commonwealth and those acting on its behalf can dispose of the property, notwithstanding that the time limits sets out in s 69(1) have not yet expired.

13. The property contained in Schedules 6 and 7 consists only of cash. In those circumstances there is no prejudice to the position of the additional interested parties if the property is disposed of because, in the unlikely event of a successful appeal against today's orders, the Commissioner would be in a position to pay any cash directed by an appeal court if such an order was made. Accordingly, I will grant leave under s 69(2).    

14. I make orders contained in the Short Minutes of Order, which have been signed and dated by me.

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Decision last updated: 03 February 2023