Application by the Commissioner of the Australian Federal Police dated 10 February 2016

[2016] NSWSC 56

Supreme Court

New South Wales

Medium Neutral Citation:

Application by the Commissioner of the Australian Federal Police dated 10 February 2016 [2016] NSWSC 56

Hearing dates:

10 February 2016

Date of orders:

10 February 2016

Decision date:

10 February 2016

Jurisdiction:

Common Law

Before:

Davies J

Decision:

Upon the Plaintiff providing, on behalf of the Commonwealth, the usual undertaking as to costs and damages, the Court orders that:

 

Restraining Order
1. Pursuant to Section 19(1)(b) of the Proceeds of Crime Act 2002 (Cth) (“Act”), the property specified in Schedule One must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders.
2. Pursuant to Section 19(1)(b) of the Act, the property specified in Schedule Two must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders.

 

Custody and Control Order
3. Pursuant to Section 38 of the Act the Official Trustee in Bankruptcy is to take custody and control of the property specified in Schedule One.
4. Pursuant to Section 38 of the Act the Official Trustee in Bankruptcy is to take custody and control of the property specified in Schedule Two.

 

Other Orders
5. The proceedings are listed for directions before the Common Law Registrar at 9:00am on 9 March 2016.

 

SCHEDULE ONE
The total cash sum of AUD$135,450.00 seized by members of the Australian Federal Police on 4 November 2011 at 5/6 Acacia Street, Cabramatta NSW and deposited into the AFP Trust Account with the Reserve Bank of Australia on 30 May 2014, together with any interest earned on that amount.

 SCHEDULE TWO
The cash sum of AUD$320.00 seized by members of the Australian Federal Police on 4 November 2011 at 93-97 Newton Road, Wetherill Park, NSW and deposited into the AFP Trust Account with the Reserve Bank of Australia on 30 May 2014, together with any interest earned on that amount.

Catchwords:

CRIMINAL LAW – proceeds of crime – restraining orders

Legislation Cited:

Proceeds of Crime Act 2002 (Cth)

Category:

Procedural and other rulings

Parties:

The Commissioner of the Australian Federal Police (Plaintiff)
Benjamin Faulkner (Interested party)

Representation:

Counsel:
J Millington (Plaintiff)
H Heathcote (Interested party)

  Solicitors:
Criminal Assets Litigation, Australian Federal Police (Plaintiff)
Bannisters Lawyers (Interested party)

File Number(s):

2015/372027)

Judgment

1. This is an application under s 19 of the Proceeds of Crime Act 2002 (Cth). The application is made by a proceeds of crime authority and the application is supported by an affidavit of James Patterson, who deposes that he is an authorised officer within the meaning of s 338 of the Act.

2. Mr Patterson sets out in his affidavit his suspicion that the property sought to be restrained is the proceeds of a serious offence or is the property of an instrument of the offence.

3. The offences concerned are an offence contrary to 400.9.1 of the Schedule to the Criminal Code Act 1995 (Cth), being dealing with money or property reasonably suspected to be the proceeds of crime having a value of $100,000 or more, an offence contrary to s 307.5.1 of the Schedule being possession of a commercial quantity of an unlawfully imported border controlled drug, and an offence contrary to s 307.1 of the Schedule, being importing or exporting a commercial quantity of a border controlled drug. These offences are both indictable and serious offences within the meaning of s 19.1(d)(i) and 19.1.(d)(ii) of the Act.

4. I have read the facts set out in Mr Patterson’s affidavit and relevant documents contained in the exhibit to that document, which is marked JP1. Section 19 requires that a restraining order be made if the court is satisfied that the officer has reasonable grounds to suspect that the property is the proceeds of an indictable offence or an instrument of a serious offence. I am satisfied from the material that the officer’s suspicion is reasonably held.

5. There are two interested persons in relation to the property. Both were convicted and incarcerated in relation to the offences. The first is Christopher Patino. He has provided a letter to the Court saying that he has no objection to the making of the orders sought.

6. The other interested person is Benjamin James Faulkner. Ms Heathcote has appeared this morning for Mr Faulkner seeking a short adjournment of the matter before restraining orders are made. Ms Heathcote is acting for Mr Faulkner in relation to his appeal from the sentence imposed by Judge Norrish in the District Court. Her firm is not acting for him in relation to this present application. Mr Faulkner has, however, made an application to Legal Aid in relation to the restraining orders and the other orders sought.

7. Ms Heathcote’s instructions for present purposes are that Mr Faulkner opposes the making of the restraining orders. He claims a particular interest in some $3,000 of the amount referred to in schedule 1 to the Summons. The adjournment is sought to enable legal aid to be granted to Mr Faulkner and for an assignment of this matter to a firm to be made.

8. The application for an adjournment was opposed. An alternative was put forward that, given Mr Faulkner’s interest was particularly in $3,000 of the amount sought to be restraint, that amount should be carved out from any orders that are made.

9. The Plaintiff was anxious to proceed with the making of the restraining orders because until restraining orders are made orders under s 38 to have the money transferred to the custody and control of the Official Trustee cannot be made. The relevance of such transfer is that, when so transferred, the money will commence to earn interest whereas at the present time when it is held in the AFP trust account it does not earn interest. Because of the Commissioner’s duty in relation to property that has been seized and is restrained, the Plaintiff is anxious that the orders under s 38 be made.

10. I consider, therefore, that the proposal to carve out the $3,000 from the amount the subject of the order is the appropriate way forward. I note that the Plaintiff gives an undertaking as to damages.

11. In those circumstances, with the amendment made to Schedule 1 to reduce the amount to $135,450, I make orders in terms of paragraphs 1 to 4 of the draft orders and I stand the proceedings over before the Registrar at 9:00am on 9 March 2016.

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Decision last updated: 12 February 2016