Australian Federal Police v LJG
[2021] WASC 464
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: AUSTRALIAN FEDERAL POLICE -v- LJG [2021] WASC 464
CORAM: SMITH J
HEARD: 15 DECEMBER 2021
DELIVERED : 20 DECEMBER 2021
FILE NO/S: CIV 2362 of 2021
BETWEEN: AUSTRALIAN FEDERAL POLICE
Plaintiff
AND
LJG
First Defendant
BG
Second Defendant
Catchwords:
Proceeds ofCrime Act 2002 (Cth), s 18 and s 19 - Restraining orders - Turns on own facts
Legislation:
Criminal Code Act 1995 (Cth), s 400.5(1), s 400.9(1)
Proceeds of Crime Act 2002 (Cth), s 18, s 19, s 21(2), s 25, s 26(4), s 38, s 314, s 329, s 335, s 338
Result:
Restraining orders made
Custody and control order made
Category: B
Representation:
Counsel:
| Plaintiff | : | Ms F Reading |
Solicitors:
| Plaintiff | : | Australian Federal Police - Proceeds Of Crime Litigation |
Cases referred to in decision:
Re Application pursuant to Section 19 of the Proceeds of Crime Act 2002 (Cth); Ex parte Commissioner of the Australian Federal Police [2014] WASC 390
Studman v Director of Public Prosecutions (Cth) [2007] NSWCA 285; (2007) 177 A Crim R 32
SMITH J:
On 15 December 2021, I made ex parte orders, including restraining orders under s 18 and s 19 of the Proceeds of Crime Act 2002 (Cth) directed at individuals, LJG and BG. I also made a custody and control order pursuant to s 38. Those orders prevent LJG and BG from disposing of certain property except on terms.
Because of the subject matter of these reasons, the matters which could identify the respondents and all the alleged offences have been anonymised.
These are my reasons for making the restraining orders, and the custody and control order.
The application
The Commissioner of the Australian Federal Police (the Commissioner) applies, ex parte, pursuant to s 25 and s 26(4) of the Proceeds of Crime Act 2002 (Cth) (the Act) as a 'proceeds of crime authority' who is a 'responsible authority' within the meaning of s 338 of the Act, for restraining orders under s 18 in respect of property listed in Schedule One under s 19 of the Act, and in respect of property listed in Schedule Two, of an originating summons filed on 14 December 2021.
The item of property listed in Schedule One is a sum of $95,810 in cash seized by the Australian Federal Police, and is alleged to be under the effective control of LJG and BG. The same sum of seized cash is also listed in Schedule Two. A 2020 Mercedes Benz 470, funds standing to the credit of three bank accounts held with the Commonwealth Bank of Australia and one account held with the National Bank of Australia, are listed also in Schedule Two, and is property alleged to be under the effective control of BG.
The Commissioner also seeks an order pursuant to s 38 of the Act that the Official Trustee take custody and control of the property listed in Schedule One and Schedule Two.
The application for restraining orders and a custody and control order is supported by an affidavit sworn by Federal Agent and member of the Australian Federal Police, Mark Paul Surman, on 14 December 2021.
Pursuant to s 21(2) of the Act, the Commissioner gave an undertaking as to the payment of damages on behalf of the Commonwealth of Australia, filed on 14 December 2021, with respect to this application.
Grounds for making the application ex parte
Under s 26(4) of the Act, the court is required to consider an application without notice if requested by the responsible authority to do so, but is not required to determine an application ex parte.
The grounds of seeking to have the application heard ex parte are that the Australian Federal Police are still investigating the financial circumstances of LJG and BG, and Federal Agent Surman is of the opinion that LJG and BG may, if they become aware that the Commissioner intends to restrain the property, attempt to take steps to lessen the value of the property, by disposing of some of it, or prevent the Commissioner from exercising his powers under the Act.[1]
[1] Affidavit sworn by Mark Paul Surman on 14 December 2021, pars 60 - 62
Having considered the matters set out in Federal Agent Surman's affidavit, and taking account of the fact that the investigation into the financial circumstances of LJG and BG is ongoing, I was satisfied that the interests of justice required the court to consider the application ex parte.
Jurisdiction
An order under s 18 and s 19 may only be made by a court with proceeds jurisdiction, as defined in s 335 of the Act. Pursuant to s 314 and s 335(2) of the Act, this court has jurisdiction to hear and determine the application by virtue of the fact that it also has jurisdiction to deal with criminal matters on indictment.
The orders sought in this matter relate to offences which are alleged to have occurred, or reasonably suspected to have occurred:
(a)contrary to s 400.5(1) of the Criminal Code Act 1995 (Cth), namely dealing with money or property that was, and that they believed to be, proceeds of crime and at the time of the dealing the value of the money or property was $50,000 or more; and
(b)400.9(1) of the Criminal Code Act 1995 (Cth), namely dealing with money to the value of or greater than $100,000 in circumstances where it is reasonable to suspect that the money is proceeds of crime.
A 'serious offence' is defined in s 338 of the Act to be an indictable offence punishable by imprisonment for three or more years, involving specified conduct.
An offence under s 400.5(1) is punishable by imprisonment for a maximum term of 15 years or 900 penalty units or both. An offence under s 400.9(1) is punishable by imprisonment for a maximum term of three years or 180 penalty units or both. Consequently, both of these offences are 'serious offences' as defined in s 338 of the Act.
The court also has jurisdiction to make the custody and control orders sought by s 314 of the Act.
The restraining orders sought under s 18 of the Act
Restraining orders can be made under s 18 relating to the property of, or in the effective control of, a person suspected of committing serious offences.
The court must make a restraining order under s 18 when the following criteria (pre-conditions) are satisfied:
(a)if the applicant is a proceeds of crime authority;
(b)there are reasonable grounds to suspect that a person has committed a serious offence;
(c)the application for the order is supported by an affidavit of an authorised officer (which is defined in s 338 to include an Australian Federal Police member authorised by the Commissioner) and that the authorised officer:
(i)states that that he or she suspects that the suspect committed the offence;
(ii)(if the application is to restrain property of a person other than the suspect, but which is not the bankruptcy property of the suspect) states that it is suspected that the property is subject to the effective control of the suspect or is proceeds or an instrument of a serious offence; and
(iii)includes in the affidavit the grounds on which he or she holds those suspicions.
The restraining orders sought under s 19
Restraining orders can be made under to s 19 which relate property suspected of being proceeds or an instrument of an indictable offence.
A restraining order must be made under s 19 of the Act when the following criteria (pre-conditions) are satisfied:
(a)a proceeds of crime authority applies for the order;
(b)there are reasonable grounds to suspect that the property to be restrained is the proceeds of an indictable offence or an instrument of a serious offence;
(c)the application is supported by an affidavit of an authorised officer and the authorised officer's affidavit deposes to his suspicion that the property is the proceeds of an indictable offence or an instrument of a serious offence, and includes the grounds upon which he holds the suspicion; and
(d)the court is satisfied that the authorised officer who made the affidavit holds the suspicion stated in the affidavit on reasonable grounds.
The evidence in support of the application for restraining orders and a custody and control order
I am satisfied that Federal Agent Surman is an authorised officer. Attached to his affidavit is an authorisation signed by the Commissioner on 5 March 2020 authorising Australian Federal Police members to be authorised officers under the Act.[2]
[2] Affidavit sworn by Mark Paul Surman on 14 December 2021, MS 1.
The court must consider under both s 18 and s 19 whether there are reasonable grounds to suspect the matters set out in [18(b) and (c)] and [20(b) and (c)] of these reasons.
In respect of the pre-condition requiring reasonable grounds for suspicion for the exercise of power requiring the court to issue a restraining order (if all pre-conditions are met), Allanson J made the following observations in Re Application pursuant to Section 19 of the Proceeds of Crime Act 2002 (Cth); Ex parte Commissioner of the Australian Federal Police:[3]
[3]Re Application pursuant to Section 19 of the Proceeds of Crime Act 2002 (Cth); Ex parte Commissioner of the Australian Federal Police [2014] WASC 390 [19] - [21].
Whether a person has reasonable grounds to suspect something is to be judged on the facts known to that person at the time. The concept of reasonable suspicion is well known in the law. In George v Rockett [1990] HCA 26; (1990) 170 CLR 104, the High Court approved the definition of 'suspicion' given by Lord Devlin in Hussien v Chong Fook Kam (1970) AC 942, 948:
in its ordinary meaning [suspicion] is a state of conjecture or surmise where proof is lacking: 'I suspect but I cannot prove' [14].
The court referred also to the comments of Kitto J in Queensland Bacon Pty Ltd v Rees [1966] HCA 21; (1966) 115 CLR 266, 303:
A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to 'a slight opinion, but without sufficient evidence', as Chambers' Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence [14].
For there to be reasonable grounds to suspect there must be material which is sufficient to induce the state of suspicion in a reasonable person. It is not, however, necessary that the material which establishes the reasonable grounds for suspicion be limited to admissible evidence: Walsh v Loughnan [1991] 2 VR 351, 357 (Vincent J); Director of Public Prosecutions (SA) v Tregenza [2002] SASC 414; (2002) 84 SASR 346.
Reasonable grounds to suspect that the respondents have committed a serious offence - s 18
I am satisfied that there are reasonable grounds to suspect that each of the respondents have committed a serious offence under s 400.5(1) and/or s 400.9(1) of the Criminal Code.
To prevent a potential juror from identifying either of the respondents I will simply refer to pars 12 to 58 of the affidavit of Federal Agent Surman. In these paragraphs, the Federal Agent sets out the facts known to him at the time of swearing the affidavit in which, when that material is reviewed, it is clear that the material is sufficient to induce a state of suspicion in a reasonable person that each of the respondents have committed serious offences.
Property subject to control - s 18
In his affidavit, Federal Agent Surman states that he suspects the property in Schedule One, being the quantity of cash is subject to the effective control of both of the respondents, and he outlines in pars 50 and 52 of his affidavit the grounds upon which he holds that suspicion. Consequently, I am satisfied that the affidavit requirements in s 18(3)(b)(i) have been met.
Property is proceeds of an indictable offence or an instrument of a serious offence
Property is proceeds of an offence if it is wholly derived or realised, whether directly or indirectly, from the commission of the offence, or it is partly derived or realised, whether directly or indirectly, from the commission of the offence.[4]
[4] Proceeds of Crime Act 2002 (Cth), s 329(1).
Property can be proceeds of an offence or an instrument of an offence even if no person has been convicted of the offence.[5]
[5] Proceeds of Crime Act 2002 (Cth), s 329(3).
Property is an instrument of an offence if the property is used in, or in connection with, the commission of an offence, or is intended to be used in, or in connection with, the commission of an offence.[6]
[6] Proceeds of Crime Act 2002 (Cth), s 329(2).
Federal Agent Surman deposes in his affidavit in pars 53 to 58 that there are reasonable grounds to suspect that the funds held in the bank accounts and the vehicle are property subject to the control of BG. Each of the bank accounts are held in the name of the second respondent, BG or a company or trust operated by her, and the Mercedes Benz is registered in her name.
A chose in action vested in a person to call on the balance of a bank account is property which is capable of being both proceeds of an offence, and an instrument of an offence.[7]
[7] Studman v Director of Public Prosecutions (Cth) [2007] NSWCA 285; (2007) 177 A Crim R 32, [48] (McClellan CJ at CL).
Having considered the matters set out in pars 53 to 58 of the affidavit of Federal Agent Surman, I am satisfied that there is sufficient material to induce a state of suspicion in a reasonable person, so as to meet the second criterion in s 19 that each item of the property specified in Schedule Two is the proceeds of an indictable offence or an instrument of a serious offence.
Disposition of the application for restraining orders under s 18 and s 19
I am satisfied that the other criterion in s 18 and s 19 have been met, namely that the applicant is a proceeds of crime authority and the affidavit of Federal Agent Surman sets out the prescribed matters.
Having been satisfied that each of the criteria under s 18 and s 19 were met, I was required to make the restraining orders sought by the Commissioner.
Custody and control order
The Commissioner also sought a custody and control order of the property specified in Schedule One and Schedule Two. Under s 38 of the Act, the court may order the Official Trustee to take custody and control of property, or specified property, covered by a restraining order if the court is satisfied that this is required.
A custody and control order enables the rights and duties imposed by pt 4-1 (Powers and duties of the Official Trustee) of the Act to be invoked.
For these reasons, I was satisfied the custody and control order should be made.
Other orders
I also made procedural orders including orders that:
(a)the Commissioner may delay giving the notice of the restraining orders for a specified period to protect the integrity of the investigation, namely until 8pm on Thursday, 16 December 2021
(b)the respondents have liberty to make any application under s 24 (for allowance for expenses to be met from property, or a specified part of property, covered by restraining order), s 29 (to exclude property from a restraining order) or s 42 (to revoke a restraining order) on 24 hours' notice to the Commissioner;
(c)there be liberty to apply; and
(d)costs be in the cause.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
XH
Associate to the Honourable Justice Smith
20 DECEMBER 2021
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