Application of the Commissioner of the Australian Federal Police dated 9 February 2016

[2016] NSWSC 42

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

Application of the Commissioner of the Australian Federal Police dated 9 February 2016 [2016] NSWSC 42

Hearing dates:

9 February 2016

Date of orders:

09 February 2016

Decision date:

09 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 Orders
1. Pursuant to section 19 of the Proceeds of Crime Act 2002 (Cth), 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 of the Proceeds of Crime Act 2002 (Cth), 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 orders
3. Pursuant to section 38 of the Proceeds of Crime Act 2002 (Cth), 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 Proceeds of Crime Act 2002 (Cth), the Official Trustee in Bankruptcy is to take custody and control of the property specified in Schedule Two.

Upon the Plaintiff providing, on behalf of the Commonwealth, the usual undertaking as to costs and damages, the court orders by consent without admissions, pursuant to section 316 of the Proceeds of Crime Act 2002 (Cth), that:

 

Restraining Orders
5. Pursuant to section 19 of the Proceeds of Crime Act 2002 (Cth), the property specified in Schedule Three must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders.
6. Pursuant to section 19 of the Proceeds of Crime Act 2002 (Cth), the property specified in Schedule Four must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders.
7. Pursuant to section 19 of the Proceeds of Crime Act 2002 (Cth), the property specified in Schedule Five 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
8. Pursuant to section 38 of the Proceeds of Crime Act 2002 (Cth), the Official Trustee in Bankruptcy is to take custody and control of the property specified in Schedule Three.
9. Pursuant to section 38 of the Proceeds of Crime Act 2002 (Cth), the Official Trustee in Bankruptcy is to take custody and control of the property specified in Schedule Four.

 

Other orders
10. Leave be granted for Thoa Thi Tran to file an application under section 29 (pursuant to section 31) of the Proceeds of Crime Act 2002 (Cth).
11. The proceedings be listed before the Common Law Registrar for further directions on Tuesday 24 May 2016 at 9am.
12. Liberty to restore on 3 days' written notice.
13. These orders be entered forthwith.

SCHEDULE ONE
The cash amount of AUD 870,640 seized by the AFP on 24 February 2015 from the vehicle of Cuong Viet Bui (recorded on AFP Property Seizure Record A176865) together with any interest earned on that amount.

 

SCHEDULE TWO
The cash amounts of AUD 4,540 and 4,770 seized by the AFP on 24 February 2015 from the vehicle of Cuong Viet Bui (recorded on AFP Property Seizure Record A176865) and retained by the AFP for the purposes of forensic testing, together with any interest earned on those amounts.

 

SCHEDULE THREE
The cash amount of AUD 426,250 seized by the AFP on 25 February 2015 from a residence at 8/345-47 Elizabeth Drive, Mount Pritchard, NSW (recorded on AFP Property Seizure Record M374504) together with any interest earned on that amount.

 

SCHEDULE FOUR
The cash amount of AUD 2,350 seized by the AFP on 25 February 2015 from a residence at 8/345-47 Elizabeth Drive, Mount Pritchard, NSW (recorded on AFP Property Seizure Record M374504) and retained by the AFP for the purposes of forensic testing, together with any interest earned on that amount.

 SCHEDULE FIVE
2009 Audi Q7, NSW Registration NBK56A (VIN WAUZZZ4LXAD006398)

Catchwords:

Criminal law – proceeds of crime – restraining orders

Legislation Cited:

Proceeds of Crime Act 2002 (Cth)

Category:

Procedural and other rulings

Parties:

Commissioner of the Australian Federal Police (Plaintiff)
Interested parties: Thoa Thi Tran, Cuong Viet Bui and Ka Ming To

Representation:

Counsel:
E Skeels (Plaintiff)
P Tsintilas (for the Interested Parties Thoa Thi Tran & Cuong Viet Bui)
A Miller (for the Interested Party Ka Ming To)

  Solicitors:
Criminal Assets Litigation, Australian Federal Police (Plaintiff)
Tsintilas & Associates (Thoa Thi Tran & Cuong Viet Bui)
LN Legal (Ka Ming To)

File Number(s):

2015/355539

Judgment

1. This is an application by the Commissioner of the Australian Federal Police for orders under ss 19 and 38 of the Proceeds of Crime Act 2002 (Cth). The application is supported by an affidavit of Jody Brian Earl sworn 3 December 2015. The Plaintiff is a proceeds of crime authority. Mr Earl deposes to the fact that he is an authorised officer within the meaning of s 338 of the Act.

2. Mr Earl also deposes to the fact that he suspects the property identified in schedules 1 to 5 of the Summons have the proceeds are the proceeds of an indictable offence under s 19(1)(d)(1) of the Act and/or an instrument of a serious offence under s 19(1)(d)(2) both contrary to s 400.91 of the Criminal Code. Mr Earl bases his suspicion on the matters which he has set out in his affidavit and in the exhibits to that affidavit. I have read the affidavit and the relevant annexures to that affidavit.

3. Section 19 provides that a restraining order must be made if there are reasonable grounds to suspect that the property is the proceeds of an indictable offence or is an instrument of a serious offence, the application for the order is supported by an affidavit of an authorised officer who states that he suspects that the property is the proceeds of the offence, the affidavit includes the grounds on which he holds the suspicion, and when the Court is satisfied that the authorised officer holds the suspicion in the affidavit on reasonable grounds. I am satisfied that Mr Earl holds the suspicion on reasonable grounds.

4. Two of the three interested parties affected by the order have consented to the orders sought by the plaintiff in the matter. There is no consent from the third interested person, that is Cuong Viet Bui. However, his legal representative appears today and has not actively opposed the order being made.

5. I note that under s 316 of the Act, where there is consent the order may be made without a consideration of the matters required otherwise to be considered. In any event, I am satisfied on the basis of the material in Mr Earl's affidavit that the order should be made.

6. I note the undertaking provided by Mr Skeels on behalf of the Commonwealth. In relation to Mr Tran and Ms To, by consent I make orders in terms of paragraphs 1 to 5 of the consent order. I grant the leave referred to in paragraph 6. I stand the proceedings over to the Common Law Registrar for further directions on 24 May. I grant liberty to restore on three days' notice.

7. In relation to the property in schedules 1 and 2 where the relevant interested person is Mr Bui, I make orders in terms of paragraphs 1 to 9 of the draft order provided to me. I grant the leave referred to in paragraph 10. I stand the proceedings over to the Common Law Registrar on 24 May. I grant liberty to restore on three days' notice. I direct that all of the orders should be entered forthwith.

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Amendments

10 February 2016 - Legal representatives section of cover sheet amended.

Decision last updated: 10 February 2016