Application of the Commissioner of the Australian Federal Police

[2015] NSWSC 1137

Supreme Court

New South Wales

Medium Neutral Citation:	Application of the Commissioner of the Australian Federal Police [2015] NSWSC 1137
Hearing dates:	5 August 2015
Decision date:	05 August 2015
Jurisdiction:	Common Law
Before:	Button J
Decision:	(1) Pursuant to s 19 of the Proceeds of Crimes Act 2002 (Cth) (the Act) the property specified in schedule 1 of the order must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these proceedings. (2) Pursuant to s 38 of the Act the Official Trustee in Bankruptcy is to take custody and control of the property specified in schedule 1 to this order. (3) The matter is listed for directions on 12 February 2016. (4) These orders are to be entered forthwith.
Catchwords:	CRIMINAL LAW – proceeds of crime – application for restraining orders – contents of trading accounts suspected of being the proceeds of an indictable offence – ex parte application – restraining orders made
Legislation Cited:	Corporations Act 2001 (Cth) Cybercrime Act 2001 (Cth) Criminal Code Act 1995 (Cth), s 400.9 Proceeds of Crime Act 2002 (Cth), ss 19, 19(1)(c), 19(1)(d), 19(1)(e), 19(1)(f), 19(3), 38, 335(2), 338
Category:	Principal judgment
Parties:	The Commissioner of the Australian Federal Police (Applicant)
Representation:	Counsel:   Solicitors: Australian Federal Police (Applicant)
File Number(s):	2015/198278

EX TEMPORE Judgment

1. This is an application brought pursuant to the Proceeds of Crime Act 2002 (Cth) (the Act) by the Commissioner of the Australian Federal Police (the AFP). Only proposed orders 1 and 2, contained in the summons dated 7 July 2015, are pressed today. In a short judgment that I delivered earlier in the proceedings, I explained why I considered it appropriate that I proceed ex parte.

2. In a nutshell, the application is that approximately $77,000.00 held at a financial institution be restrained, and given into the custody of the Official Trustee in Bankruptcy for safekeeping, and so that it can earn interest until the substantive application for forfeiture in proposed order 3 is resolved.

3. The application is brought under s 19 of the Act, and is supported by an affidavit of Robyn Mclean of 6 July 2015.

4. To state things succinctly, the position of the AFP is that a number of trading accounts were “hacked” and used without the knowledge or intention of their owners. A large number of stockmarket trades were undertaken in very cheap stocks, with the result that those stocks rose in value by way of the inherent effect of that number of purchases. Thereafter, the shares were promptly sold at a profit.

5. It is said that, by way of a process of following things through electronically, the account sought to be restrained contains the proceeds of that criminal activity; or, at the least, it is the instrument of an offence pursuant to s 400.9 of the Criminal Code Act 1995 (Cth) (which may be very roughly equated with the well-known State offence of having “goods in custody”).

6. Working through s 19 and the definitions contained in the Act, it can be seen that the Supreme Court is a court with proceeds jurisdiction: see s 335(2).

7. It can also be seen that (subject to an exception to which I shall come in a moment), I must make the orders sought if a number of matters are established.

8. First, if a proceeds of crime authority applies for the order: see s 19(1)(c). The AFP is defined as such an authority: see s 338.

9. Secondly, if I consider that there are reasonable grounds to suspect that the contents of the account is the proceeds of (amongst other things) an indictable offence: see s 19(1)(d). There is no doubt that the offence alleged against the Cybercrime Act 2001 (Cth) and the Corporations Act 2001 (Cth) may be prosecuted on indictment.

10. Thirdly, if there is an affidavit from an authorised officer stating that he or she suspects that the property is the proceeds of the offence in question, and including the grounds upon which that suspicion is held: see s 19(1)(e). There is no doubt that the affidavit of Ms Mclean complies with all of those preconditions.

11. Fourthly, I must be satisfied that Ms Mclean herself holds the suspicion on reasonable grounds: see s 19(1)(f).

12. To my mind, all of those preconditions are amply demonstrated. In particular, based upon the affidavit of Ms Mclean in its entirety, including various annexures, I am satisfied that there are reasonable grounds to suspect that the contents of the account are the proceeds of an indictable offence.

13. Finally, there is no basis upon which I would be satisfied that the mandatory order should not be made, in light of the public interest: see s 19(3).

14. In short, I am satisfied that all of the essential preconditions of s 19 of the Act are made out.

15. As well as that, I consider that the ancillary order that is proposed order 2 makes sound good sense.

16. An alternative submission founded upon the contents of the account being an instrument of a serious offence does not require further analysis, in the circumstances as found by me.

17. I make the following orders:

1. Pursuant to s 19 of the Proceeds of Crimes Act 2002 (Cth) (the Act) the property specified in schedule 1 of the order must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these proceedings.

2. Pursuant to s 38 of the Act the Official Trustee in Bankruptcy is to take custody and control of the property specified in schedule 1 to this order.

3. The matter is listed for directions on 12 February 2016.

4. These orders are to be entered forthwith.

[Schedule 1 not included in judgment]

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Decision last updated: 14 August 2015