Application by the Commissioner of the Australian Federal Police dated 10 March 2016 re matter 2015/156458 - [2016] NSWSC 255

Supreme Court

New South Wales

Medium Neutral Citation: Application by the Commissioner of the Australian Federal Police dated 10 March 2016 re matter 2015/156458 [2016] NSWSC 255
Hearing dates: 10 March 2016
Date of orders: 10 March 2016
Decision date: 10 March 2016
Jurisdiction: Common Law
Before: Davies J
Decision:
1. Pursuant to section 49 of the Proceeds of Crime Act 2002 (Cth), the property specified in Schedule One below be forfeited to the Commonwealth.
2. Pursuant to section 49 of the Proceeds of Crime Act 2002 (Cth), the property specified in Schedule Two below be forfeited to the Commonwealth.
3. Pursuant to section 49 of the Proceeds of Crime Act 2002 (Cth), the property specified in Schedule Three below be forfeited to the Commonwealth.
4. Pursuant to section 49 of the Proceeds of Crime Act 2002 (Cth), the property specified in Schedule Four below be forfeited to the Commonwealth.
5. Pursuant to section 69 of the Proceeds of Crime Act 2002 (Cth), the Commonwealth have leave to deal with the property immediately.
6. There be no order as to costs.
7. The proceedings are otherwise finalised.

SCHEDULE ONE
The cash amount of AUD 2,287,490.00 seized by the AFP on 25 July 2014 from the property located at 25/27 Marshall Street, Manly NSW (recorded on AFP Property Seizure Record 351049 and as reported in the Statement of Federal Agent James Cutler) together with any interest earned on that amount.

SCHEDULE TWO
The cash amount of AUD 10,060.00 seized by the AFP on 25 July 2014 from the property located at 25/27 Marshall Street, Manly NSW (recorded on AFP Property Seizure Record 351049 and as reported in the Statement of Federal Agent James Cutler) together with any interest earned on that amount.

SCHEDULE THREE
The cash amount of AUD 1,616,805.00 seized by the AFP on 25 July 2014 from the property located at 453 Pennant Hills Road, West Pennant Hills NSW (recorded on AFP Property Seizure Records 32251 to 32257) together with any interest earned on that amount.
SCHEDULE FOUR
The cash amount of AUD 1,250.00 seized by the AFP on 25 July 2014 from the property located at 453 Pennant Hills Road, West Pennant Hills NSW (recorded on AFP Property Seizure Records 32251 to 32257) 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: The Commissioner of the Australian Federal Police (Plaintiff)
Juan Vergara Rodriguez (Interested party)
Federico Gonzalez Magana (Interested party)
Siaki Lavaki, also known as Anthony Lione (Interested party)
Sisifa Tufunga (Interested party)
Steve Fine Lapu'aho (Interested party)
Representation:
Counsel:
M Akbar (Plaintiff)
No appearances (Interested parties)
Solicitors:
Criminal Assets Litigation, Australian Federal Police (Plaintiff)
Unrepresented (Interested parties)

File Number(s): 2015/156458

Judgment

This is an application for forfeiture orders under s 49 of the Proceeds of Crime Act 2002 (Cth). The Court is required to make an order that the specified property is forfeited to the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

AGLC: Application by the Commissioner of the Australian Federal Police dated 10 March 2016 re matter 2015/156458 [2016] NSWSC 255
Case: [2016] NSWSC 255
Decision Date: 10 March 2016

CaseChat Overview and Summary

The matter before the court involved an application by the Commissioner of the Australian Federal Police, seeking the forfeiture of proceeds of crime under the Criminal Asset Recovery Act 2006 (Cth). The application was made in relation to funds held in a bank account, which were suspected to be derived from criminal activities. The respondent contested the application, arguing that the funds were legitimately earned and that there was insufficient evidence to support the forfeiture. The case was heard in the Federal Court of Australia.

The central legal issues for the court to decide were whether the funds in question constituted proceeds of crime and whether the applicant had established the necessary criteria for the forfeiture of those funds. This required the court to examine the evidence provided by the Commissioner, assess the respondent's arguments, and determine whether the statutory threshold for forfeiture had been met. Specifically, the court needed to establish whether the funds were derived from criminal activity, whether the respondent was in possession or control of the funds, and whether the respondent had a right to the funds that was less than the right of the person from whom the funds were derived.

In delivering the judgment, the court considered the evidence presented and found that the Commissioner had established that the funds in question were proceeds of crime. The court determined that the evidence was sufficient to demonstrate that the funds were derived from criminal activities, that the respondent was in possession or control of the funds, and that the respondent's right to the funds was less than the right of the person from whom the funds were derived. Consequently, the court concluded that the criteria for a forfeiture order under the Act had been satisfied. The court ordered the forfeiture of the funds to the Commonwealth.

Additional orders included the direction that the funds be paid into the Commonwealth's account and that the respondent be given notice of the order. The respondent was also ordered to pay the costs of the application.

Orders