Application by the Commissioner of the Australian Federal Police

[2019] NSWSC 837

Supreme Court

New South Wales

Medium Neutral Citation:

Application by the Commissioner of the Australian Federal Police [2019] NSWSC 837

Hearing dates:

4 July 2019

Date of orders:

04 July 2019

Decision date:

04 July 2019

Jurisdiction:

Common Law

Before:

Davies J

Decision:

1. Pursuant to section 49 of the Proceeds of Crime Act 2002 (Cth) (the Act), the property specified in Schedule One is forfeited to the Commonwealth.

 

2. Pursuant to section 69(2) of the Act, the Commonwealth, and persons acting on its behalf, may dispose of, or otherwise deal with, the property specified in Schedule One immediately.

 

3. The Plaintiff is released from the undertaking as to damages given to the Court on 6 December 2018 in respect of the property specified at Schedule One.

 

4. No order as to costs.

 

5. These orders to be entered forthwith.

 SCHEDULE ONE
The total cash sum of AUD268 500 seized by members of the Australian Federal Police on 6 February 2017 from premises located at 154 Pacific Highway Kangy Angy NSW 2258 together with any interest earned on that amount.

Catchwords:

CRIMINAL LAW - proceeds of crime – forfeiture orders

Legislation Cited:

Proceeds of Crime Act 2002 (Cth)

Category:

Principal judgment

Parties:

Commissioner of the Australian Federal Police (Plaintiff)

Representation:

Counsel:
S Davidson (Plaintiff) (Ex parte)

  Solicitors:
Criminal Assets Litigation, Australian Federal Police
(Plaintiff)

File Number(s):

2018/278747

Judgment

1. The plaintiff seeks a forfeiture order pursuant to s 49 of the Proceeds of Crime Act 2002 (Cth) in respect of property identified in Schedule 1 to the summons filed 11 September 2018. That property is a sum of cash in the amount of AU$268,500 located by the Australian Federal Police at the execution of a search warrant at premises 154 Pacific Highway, Kangy Angy. The plaintiff also seeks, pursuant to s 69(2) of the Act, leave for the Commonwealth to dispose or deal with the forfeited property early, that is, prior to the time stipulated in s 69(1).

2. Section 49 stipulates a number of requirements for the making of a forfeiture order. Those requirements are set out in paragraphs (a) to (e) of subs (1). However, subs (3) provides that paragraph 1(c) does not apply if the court is satisfied that no application has been made under Division 3 of Part 2-1 for the property to be excluded from the restraining order. A restraining order was made by Bellew J on 6 December 2018. The evidence of Nigel Bertram in an affidavit sworn 3 July 2019 establishes to my satisfaction that no application has been made for the property to be excluded from the restraining order.

3. In the result, it is only necessary for the plaintiff to establish that it is a responsible authority, that the restraining order has been in force for at least six months and that the court is satisfied that the authority has taken reasonable steps to identify and notify persons with an interest in the property.

4. The plaintiff is the Commissioner of the Australian Federal Police, who is a responsible authority under the Act.

5. As I have indicated, the restraining order was made on 6 December 2018, more than six months from today.

6. I am also satisfied from Mr Bertram's affidavit and from four affidavits of service of Gavin Bellamy, all sworn 26 June 2019, and from an affidavit of attempted service of Michael Guest sworn 2 July 2019 that the plaintiff has taken reasonable steps to identify and notify persons with an interest in the property. I am satisfied in those circumstances that a forfeiture order should be made under s 49.

7. Section 69(2) gives power to the court to give leave for disposal and dealing with forfeited property to occur earlier than the time stipulated in subs 1. The basis put forward by the plaintiff is that the property is cash and that if it transpires a person claims to have an interest in that property they would be entitled under s 73 to seek an exclusion order or s 77 to seek a compensation order. In those circumstances, where the property is cash the plaintiff would be able to satisfy an order made under either of those sections.

8. I am satisfied in the circumstances that leave should be given under s 69(2) of the Act. For those reasons I make orders in accordance with paragraphs 1 to 5 of the short minutes of order signed by me and dated today.

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Decision last updated: 05 July 2019