Application by the Commissioner of the Australian Federal Police

[2015] NSWSC 1799

Supreme Court

New South Wales

Medium Neutral Citation:	Application by the Commissioner of the Australian Federal Police [2015] NSWSC 1799
Hearing dates:	30 November 2015
Decision date:	30 November 2015
Jurisdiction:	Common Law
Before:	Adamson J
Decision:	See paragraph 16
Catchwords:	CRIMINAL LAW – proceeds of crime – ex parte application for restraining order – reasonable grounds to suspect that property is the proceeds of an indictable offence
Legislation Cited:	Anti-Money Laundering and Counter-Terrorism Financing Act 2006, s 142 Criminal Code (Cth), Pt 10.2, s 400.9 Proceeds of Crime Act 1987 (Cth), s 81 Proceeds of Crime Act 2002 (Cth), ss 19, 332, 338
Category:	Principal judgment
Parties:	The Commissioner of the Australian Federal Police (Plaintiff)
Representation:	Counsel: J Millington (solicitor)(Plaintiff)     Solicitors:
File Number(s):	2015/352254

Judgment (EX TEMPORE – REVISED)

Introduction

1. By summons filed in Court today, the Commissioner of the Australian Federal Police (the Commissioner), seeks orders pursuant to s 19 of the Proceeds of Crime Act 2002 (Cth) (the Act). In support of the summons, the Commissioner relies on the affidavit of Scott Michael Mathews affirmed 30 November 2015. Federal Agent Mathews deposes in paragraph 1 of his affidavit that he is a member of the Australian Federal Police (AFP).

Legislative requirements

Section 19 of the Act

2. Section 19 of the Act provides that a Court with proceeds jurisdiction (which includes this Court) must, if certain conditions are fulfilled, make an order that property not be deposed of or otherwise dealt with by any person. The Court’s obligation to make an order with respect to serious offences is subject to its satisfaction that an appropriate undertaking has been given: s 21 (addressed below).

3. Section 19 provides:

“Restraining orders—property suspected of being proceeds of indictable offences etc.

When a restraining order must be made

(1) A court with *proceeds jurisdiction must order that:

(a) property must not be disposed of or otherwise dealt with by any person; or

(b) property must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in the order;

if:

(c) a *proceeds of crime authority applies for the order; and

(d) there are reasonable grounds to suspect that the property is:

(i) the *proceeds of a *terrorism offence or any other *indictable offence, a *foreign indictable offence or an *indictable offence of Commonwealth concern (whether or not the identity of the person who committed the offence is known); or

(ii) an *instrument of a *serious offence; and

(e) the application for the order is supported by an affidavit of an *authorised officer stating that the authorised officer suspects that:

(i) in any case—the property is proceeds of the offence; or

(ii) if the offence to which the order relates is a serious offence—the property is an *instrument of the offence;

and including the grounds on which the authorised officer holds the suspicion; and

(f) the court is satisfied that the *authorised officer who made the affidavit holds the suspicion stated in the affidavit on reasonable grounds.

Property that a restraining order may cover

(2) The order must specify, as property that must not be disposed of or otherwise dealt with, the property specified in the application for the order, to the extent that the court is satisfied that there are reasonable grounds to suspect that that property is:

(a) in any case—*proceeds of the offence; or

(b) if the offence to which the order relates is a *serious offence—an *instrument of the offence.

Refusal to make a restraining order

(3) Despite subsection (1), the court may refuse to make a *restraining order in relation to an *indictable offence that is not a *serious offence if the court is satisfied that it is not in the public interest to make the order.

Note: A court can also refuse to make a restraining order if the Commonwealth refuses to give an undertaking: see section 21.

Restraining order need not be based on commission of a particular offence

(4) The reasonable grounds referred to in paragraph (1)(d) need not be based on a finding as to the commission of a particular offence.

Risk of property being disposed of etc.

(5) The court must make a *restraining order even if there is no risk of the property being disposed of or otherwise dealt with.”

4. The conditions, the fulfilment of which entitle the Commission to an order under s 19(1)(a) or (b) are set out in s 19(1)(c) – (f) of the Act. These will be considered in turn.

Section 19(1)(c): application made by a proceeds of crime authority

5. The Commissioner is a proceeds of crime authority by reason of the definition under s 338 of the Act. Accordingly s 19(1)(c) is fulfilled.

Section 19(1)(d): reasonable grounds for suspicion

6. There must be reasonable grounds to suspect that the property is the proceeds of an indictable offence. The relevant offences are offences against s 142 of the Anti-Money Laundering and Counter-Terrorism Financing Act2006 (Cth) and an offence contrary to s 400.9(1) of the schedule to the Criminal Code Act 1995 (the Criminal Code), which is contained in Part 10.2 of the Criminal Code.

7. These are both “serious offences” within the meaning of s 338 of the Act, which relevantly includes:

1. unlawful conduct constituted by or relating to a breach of Part 10.2 of the Criminal Code (money‑laundering): paragraph (a)(ii) of the definition of “serious offence”; and

2. an offence against s 142 of the Anti‑Money Laundering and Counter‑Terrorism Financing Act 2006 (conducting transactions so as to avoid reporting requirements relating to threshold transactions): paragraph (ec)(i) of the definition of “serious offence”.

8. Having read the affidavit of Federal Agent Mathews, I am satisfied that there are reasonable grounds to suspect that the property referred in schedule 1 of the summons and to the minute of order is the proceeds of an indictable offence, or indictable offences, within the meaning of s 19(1)(d)(i).

Section 19(1)(e): the application is supported by an affidavit of an authorised officer

9. Section 19(1)(e) provides that it is a condition of the making of an order that the application is supported by an affidavit of an authorised officer stating that the authorised officer suspects, relevantly, that the property is proceeds of the offence. The definition of “authorised officer” in s 338 of the Act includes an AFP member if authorised by the Commissioner.

10. The evidence establishes that Commissioner Negus, by authorisation dated 26 August 2013, authorised all AFP members to be authorised officers under the Act. Accordingly, Federal Agent Mathews is an authorised officer.

11. The condition in s 19(1)(e) is fulfilled by the affidavit of Federal Agent Mathews affirmed 30 November 2015. He sets out the basis for his belief in paragraphs 13 to 47 to his affidavit and summarises those grounds in paragraph 48 of his affidavit.

Section 19(1)(f): reasonable grounds

12. I am required to be satisfied that the officer who made the affidavit holds the suspicion on reasonable grounds. I am satisfied that the matters set out in paragraphs 13 to 47 and summarised in paragraph 48 of the affidavit provide sufficient basis, by way of reasonable grounds, for the suspicion to which Federal Agent Mathews deposes.

Other relevant legislative provisions

Section 26(4): application without notice

13. Section 26(4) of the Act provides that I must consider an application such as the present without notice having been given if the responsible authority requested the Court to do so. Ms Millington, who appears on behalf of the plaintiff in the current application, requests, on behalf of the plaintiff, that I hear the application without notice. Accordingly, I am bound by section 26(4) to do so.

Section 21: requirement for undertaking

14. Section 21 of the Act provides that I may refuse to make a restraining order if the Commonwealth refuses or fails to give the court an appropriate undertaking with respect to the payment of damages or costs (or both) for the making and operation of the order. Ms Millington has, on behalf of the plaintiff, given what I regard as an appropriate undertaking with respect to the payment of damages and costs for the making and operation of the order.

Conclusion

15. For those reasons, I am satisfied that it is appropriate to make the orders set out in the short minute of order, which also notes the plaintiff's undertaking.

Orders

16. Accordingly, I make orders as follows as sought in the short minutes of order which I will sign and date and place with the papers:

UPON THE PLAINTIFF PROVIDING, ON BEHALF OF THE COMMONWEALTH, THE USUAL UNDERTAKING AS TO COSTS AND DAMAGES, THE COURT ORDERS THAT:

(1) Pursuant to rule 6.15 of the Uniform Civil Procedure Rules 2005 (NSW) the summons filed in these proceedings be made returnable immediately.

(2) Pursuant to s 26(4) of the Proceeds of Crime Act 2002 (Cth) (the Act) the application for relief sought in prayers 3 to 6 of these Orders be considered without notice.

Restraining Order

(3) Pursuant to s 19(1)(b) of the Act the property specified in Schedule One of these Orders must not be disposed of order otherwise dealt with by any person except in the manner and circumstances specified.

Custody and Control Orders

(4)   Pursuant to s 38 of the Act the Official Trustee in Bankruptcy (Official Trustee) is to take custody and control of the property specified in Schedule One to the Orders.

(5)   Any orders made be entered forthwith.

SCHEDULE ONE

Funds standing to the credit of Commonwealth Bank of Australia Bank Account Number 062184 11442323 in the name of Lewis Zhen Zhen Yuan, together with any interest earned thereon.

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Decision last updated: 03 December 2015