Application by the Commissioner of the Australian Federal Police dated 10 March 2016 re matter 2015/371533

[2016] NSWSC 217

Supreme Court

New South Wales

Medium Neutral Citation:

Application by the Commissioner of the Australian Federal Police dated 10 March 2016 re matter 2015/371533 [2016] NSWSC 217

Hearing dates:

10 March 2016

Date of orders:

10 March 2016

Decision date:

10 March 2016

Jurisdiction:

Common Law

Before:

Davies J

Decision:

Restraining Orders
1. Pursuant to section 19 of the Act, the property specified in Schedule One below 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 Orders
2. Pursuant to section 38 of the Act, the Official Trustee in Bankruptcy (Official
Trustee) is to take custody and control of the property specified at Schedule One
below.

 

Other orders:
3. The proceedings be listed before the Common Law Registrar for further directions on 16 June 2016 at 9am.
4. Liberty to restore on 3 days' written notice.
5. These orders be entered forthwith.

SCHEDULE ONE:

 The cash amount of AUD 299,950 seized by the AFP on 3 February 2015 from the Black Lexus with NSW Registration HC1344 driven by Abdul Rehman (recorded on AFP Property Seizure Record A151666) 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)
Brent Robine Pickavance (Interested party)

Representation:

Counsel:
M Akbar (Plaintiff)
Brent Robine Pickavance (In person)

  Solicitors:
Criminal Assets Litigation, Australian Federal Police (Plaintiff)
Unrepresented (Brent Robine Pickavance)

File Number(s):

2015/371533

Judgment

1. These are proceedings for a restraining order under s 19 of the Proceeds of Crime Act 2002 (Cth). That section provides that a Court must order that property must not be disposed of or otherwise dealt with if the requirements of the section are satisfied.

2. The first requirement is that the application be made by a proceeds of crime authority. The application in the present case is made by the Commissioner of the Australian Federal Police and that entity is a proceeds of crime authority. The second requirement is that there are reasonable grounds to suspect that the property is the proceeds of an indictable offence of the Commonwealth or are an instrument of a serious offence. The section provides, as an associated requirement that, the application for the restraining order must be supported by an affidavit of the authorised officer stating that officer suspects that the property is the proceeds of the offence or, if the offence is a serious offence, the property is an instrument of the offence. That affidavit must include the grounds on which the authorised officer holds the suspicion and the Court must be satisfied that the authorised officer who made the affidavit holds the suspicion stated in the affidavit on reasonable grounds.

3. I have read the affidavit of Anthony Hall affirmed 17 December 2015. Mr Hall is an authorised officer of the Australian Federal Police within the meaning of s 338. I am satisfied that there are reasonable grounds to suspect that the property is the proceeds of an indictable offence under s 19(1)(d)(i) of the Act or an instrument of a serious offence under s 19(1)(d)(ii) of the Act. The offence concerned is an offence under s 400.9(1) of the Criminal Code Act 1995 (Cth), being an offence of dealing with money that is reasonably suspected of being the proceeds of crime and, at the time of dealing, the value of the money is $AUD100,000 or more. That offence is both an indictable offence and a serious offence for the purposes of the Act. I am satisfied from the information that is set out in Mr Hall's affidavit and the documents which form exhibit AH1 to that document that the suspicion held by Mr Hall is a reasonable one.

4. Section 26 requires the giving of written notice to the owner of the property or to other persons whom the Commissioner reasonably believes may have an interest in the property. The three interested persons in this matter are Muhammad Kamran, Abdul Rehman and Brent Pickavance. I am satisfied from the affidavit evidence that notice has been given to those three persons.

5. Mr Pickavance has appeared this morning. He has sought an adjournment in the matter for one week. His solicitor requested him to do so so that consent orders could be prepared in the matter. There does not appear to be any opposition from any person to the making of the restraining orders.

6. No purpose would be achieved by adjourning the proceedings for one week so that a consent order could be made which, in any event, will concern one only of the interested persons. It will still be necessary for the Court to satisfy itself under s 19, at least, in respect of the other interested persons. For that reason, I decline to adjourn the proceedings.

7. I am satisfied that the requirements of s 19 have been established. I note that the usual undertaking as to damages is given on behalf of the applicant I make orders in accordance with paragraphs 1 and 2 of the short minutes of order. I stand the proceedings over before the Registrar to 16 June at 9.00am, liberty to restore on three days' notice and I direct the orders be entered forthwith.

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Decision last updated: 14 March 2016