Application by the Commissioner of the Australian Federal Police dated 10 March 2016 re matter 2015/156458

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 Commonwealth if the requirements of s 49(1) are relevantly established.
In the present case there are three requirements. The first is that the Applicant for the order is a responsible authority. The Applicant, being the Commissioner of the Australian Federal Police, is such an authority.
The second requirement is that the restraining order has been in force for at least six months. The restraining orders were made by Hamill J on 27 July 2015. That requirement is, therefore satisfied.
The third requirement is that the Court is satisfied that the authority has taken reasonable steps to identify and notify persons with an interest in the property. There are five such persons, being, Vergara Rodriquez, Federico Gonzalez Magana, Siaki Lavaki, also known as Anthony Lione, Sisifa Tufunga and Steve Fine Lapu’aho.
I am satisfied from the affidavits of Nicole Marie Van Lent affirmed 2 September 2015, Jeffrey Aaron Kokles sworn 1 March 2016, Jody Brian Earl sworn 2 March 2016, and Trenton Schmidt affirmed 3 March 2016, that the five known persons have either been served or that the authority has taken reasonable steps to identify and to notify such persons.
No application has been made by any person to exclude property from the restraining order. In these circumstances the requirement under s 39(1)(c) of the Act is not required to be established.
Accordingly, I make orders in terms of paras 1 to 5 of the short minutes of order. I note that there is to be no order as to costs and that proceedings are now finalised.

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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.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

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