Caratti v Commissioner of the Australian Federal Police & Anor

Bell and Gageler JJ of the Full Federal Court considered an appeal by Mr Caratti against a decision of a single judge that dismissed his application for an order of certiorari to quash a decision of the Commissioner of the Australian Federal Police (AFP) to seize certain property under the *Proceeds of Crime Act 2002* (Cth). The dispute concerned the lawfulness of the Commissioner's decision to issue a notice under s 153 of the Act, which had the effect of freezing Mr Caratti's assets.

The central legal issue before the Full Court was whether the Commissioner had reasonably suspected that the property in question was an "unexplained wealth" asset, as defined by s 153(1)(a) of the *Proceeds of Crime Act 2002* (Cth). This required the court to determine the proper interpretation of "reasonably suspects" in the context of the statutory power to seize assets based on unexplained wealth, and whether the material before the Commissioner at the time of the decision supported such a suspicion.

The Full Court held that the Commissioner's suspicion must be based on grounds that are reasonable and capable of being tested. While the Commissioner is not required to have proof beyond reasonable doubt, the suspicion must be more than a mere possibility or hunch. In this instance, the court found that the material before the Commissioner did not provide a sufficient evidential basis to form a reasonable suspicion that the property was an unexplained wealth asset. The Commissioner's reliance on inferences drawn from the applicant's failure to provide information was found to be insufficient without a proper foundation for the initial request for that information.

The appeal was allowed, and the decision of the Commissioner to issue the notice under s 153 of the *Proceeds of Crime Act 2002* (Cth) was quashed.