Commissioner of the Australian Federal Police

[2018] NSWSC 703

Supreme Court

New South Wales

Medium Neutral Citation:	Commissioner of the Australian Federal Police [2018] NSWSC 703
Hearing dates:	17 May 2018
Decision date:	17 May 2018
Jurisdiction:	Common Law
Before:	Adamson J
Decision:	See paragraph [17].
Catchwords:	PROCEEDS OF CRIME – application for forfeiture order in respect of cash found in automotive garage premises – lessee of garage disavowed ownership – public canvassing to ascertain true owner unsuccessful despite overwhelming response to Facebook and Twitter releases – order for forfeiture made
Legislation Cited:	Proceeds of Crime Act 2002 (Cth) s 19, Div 3 Part 2-1, ss 49, 69, 338
Category:	Principal judgment
Parties:	Commissioner of the Australian Federal Police (Plaintiff)
Representation:	Counsel: G O’Mahoney   Solicitors: Australian Federal Police
File Number(s):	2017/161360

Judgment – EX TEMPORE

Introduction

1. By summons filed 29 May 2017, the Commissioner of the Australian Federal Police (the plaintiff) moved the Court for orders, including restraining orders pursuant to s 19 of the Proceeds of Crime Act 2002 (Cth) (the Act).

2. On 29 June 2017 Adams J made restraining orders in respect of the property specified in Schedule 1 to the summons, being a cash amount in the order of $1.6 million seized by the plaintiff on 29 March 2017 from premises at Wetherill Park which were used as an automotive garage (the Cash).

3. The plaintiff today seeks a forfeiture order pursuant to s 49 of the Act in respect of the Cash, as well as an order pursuant to s 69(2) of the Act that the Commonwealth have leave to deal with the forfeited property immediately.

Evidence relied on by the plaintiff

4. Mr O'Mahoney, who appears on behalf of the plaintiff, has read a number of affidavits in support of this application. He read the affidavit of James Cutler, sworn 29 May 2017, which was relied on by the plaintiff in support of the application for restraining orders in June 2017. Mr O'Mahoney also relies on the affidavit of Adrian Linus Edwards, sworn 16 May 2018, in which he deposes to various substantive matters relating to the location of the Cash and steps taken by the plaintiff to notify persons with a potential interest in it. Mr O'Mahoney also relies on the affidavit of service of Rebecca Anne Hema, in which she deposes to the service by the plaintiff of Mr Macri, who is the only person the plaintiff has identified as likely to have an interest in the Cash.

5. Mr O'Mahoney also relies on the affidavit of Daniel Francis Burnicle, of 16 May 2018, which details the attempts made by the plaintiff to notify the public as to the seizure of the Cash, with a view to identifying any person who may have an interest in it. In particular, Mr Burnicle gave evidence of a media release made by the plaintiff on Facebook on 2 July 2017, which, by 14 May 2018, had attracted approximately 15,000 likes; 11,000 comments and 9000 shares. Having reviewed all responses, Mr Burnicle deposed that, notwithstanding the number of responses, most if not all of which indicated that the public apparently found the circumstances of the seizure of the Cash humorous and made light-hearted comments. None provided the slightest indication that any of the respondents had any interest, other than an idle one, in the Cash.

6. The plaintiff also made a Twitter release on 2 July 2017, which also produced a significant response. Each response was reviewed by Mr Burnicle, who did not identify a single comment which appeared to assert a genuine interest in the Cash. I note from the subset of comments provided, which are annexed to Mr Burnicle’s affidavit that it appears to have attracted the public for anecdotal reasons. No person has come forward seeking to claim the Cash.

7. The evidence adduced by the plaintiff established that the Cash was seized from a unit at Wetherill Park which was used for an automotive business by a Mr Macri. Mr Macri, as the tenant of those premises, had exclusive possession of those premises. He was examined on behalf of the plaintiff and was not prepared to provide a comment as to the provenance of the Cash, nor was he prepared to admit that he knew about the Cash, which was stored in the unit in various receptacles, including a backpack, a suitcase and a sports bag. Mr Macri instructed solicitors, who confirmed to the plaintiff that Mr Macri did not propose to seek an exclusion order under the Act and disavowed any proprietary interest in the Cash.

Consideration

8. The plaintiff's application for forfeiture is governed by s 49 of the Act, which obliges a court with proceeds jurisdiction, which includes this Court, to make an order that the specified property is forfeited to the Commonwealth if certain conditions are established.

9. The first condition, contained in s 49(1)(a), is that the responsible authority for a restraining order under s 19 that covers the property applies for an order under this subsection. I am satisfied that the plaintiff is a responsible authority within the meaning of s 338 of the Act and that it has already applied for a restraining order under s 19 that covers the property the subject of this application. As is evident from the summons, the property the subject of the application for the restraining order and the property the subject of the present application is the property set out in Schedule 1 to the summons, being the Cash.

10. The second condition, set out in s 49(1)(b) of the Act, is that the restraining order has been in force for at least six months. That condition is satisfied because, as I have said above, Adams J made such an order on 29 June 2017.

11. The condition in s 49(1)(c) does not apply to the present application, as I am satisfied, on the basis of the evidence I have referred to, that no application has been made under Division 3 of Part 2-1 of the Act for the property to be excluded from the restraining order: s 49(3) of the Act.

12. Turning to the remaining condition in s 49(1), s 49(1)(e) requires that I be satisfied that the authority has taken reasonable steps to identify and notify persons with an interest in the Cash. Having regard to Mr Macri's exclusive possession of the premises on which the Cash was located, it would appear that he is the obvious person who might be regarded as having an interest in the Cash. As referred to above, he has disavowed any such interest. The plaintiff has taken the steps I have referred to above by publishing social media posts on Facebook and Twitter, which report the existence of the Cash, with a view to identifying any member of the public who may have an interest in the property. I am satisfied that those public releases, despite the overwhelming response, failed to identify any person who may have an interest in the property.

13. On this basis, I am obliged, pursuant to s 49(1), to make an order that the property specified in the order is forfeited to the Commonwealth.

14. As I have referred to above, the plaintiff also seeks an order under s 69(2) of the Act that the Commonwealth have leave to deal with the forfeited property immediately. In the circumstances that I have outlined, it does not appear to me that there is any reason why the Cash ought not be dealt with by the Commonwealth immediately, as soon as it is forfeited to the Commonwealth pursuant to the order I am about to make. Accordingly, I am satisfied that it is appropriate to make an order under s 69(2), as proposed on behalf of the plaintiff.

15. For the reasons set out above, I will make orders set out below in terms of paragraphs 1, 2, 3, 4 and 6 of the short minutes of order, which I will sign and date and to which I will ask my Associate to apply the Court seal.

Orders

16. For the reasons set out above I make the following orders:

Forfeiture Orders

1. Pursuant to s 49 of the Proceeds of Crimes Act 2002 (Cth) (the Act), the property specified in the Schedule below be forfeited to the Commonwealth.

2. Pursuant to s 69(2) of the Act, the Commonwealth have leave to deal with the forfeited property immediately.

Other Orders

3. No order as to costs.

4. These orders be entered forthwith.

5. The proceedings are otherwise dismissed.

SCHEDULE

The cash amount of AUD 1,616,460 seized by the Australian Federal Police (AFP) on 29 March 2017 from unit 15/1357 The Horsley Drive, Wetherill Park NSW 2164 (recorded on AFP Property Seizure Record M370030) together with any interest earned on that amount.

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Decision last updated: 18 May 2018