Commissioner of the Australian Federal Police

[2016] NSWSC 1268

Supreme Court

New South Wales

Medium Neutral Citation:	Commissioner of the Australian Federal Police [2016] NSWSC 1268
Hearing dates:	06 September 2016
Date of orders:	06 September 2016
Decision date:	06 September 2016
Jurisdiction:	Common Law
Before:	Wilson J
Decision:	(1) I propose to make each of the orders set out in the short minutes of order.
Catchwords:	CRIMINAL LAW – proceeds of crime – ss 18 and 19 of the Proceeds of Crime Act 2002 (Cth) – restraining orders – ex parte application
Legislation Cited:	Proceeds of Crime Act 2002 (Cth)
Category:	Principal judgment
Parties:	Commissioner of the Australian Federal Police (Plaintiff)
Representation:	Mr D McLure SC / Mr G O’Mahoney (Plaintiff) (Ex parte)
File Number(s):	2016/00267984
Publication restriction:	Previously restricted.

EX TEMPORE Judgment

1. By summons filed with leave of the Court today in court and made returnable immediately, the Australian Federal Police seeks orders pursuant to the Proceeds of Crime Act 2002 (Cth) which, in broad terms, would restrain the assets of named individuals, those assets being suspected to be the proceeds of crime or an instrument of crime.

2. Filed in support of the summons and relied upon is an affidavit of Trenton Andrew Schmidt of 6 September 2016. Officer Schmidt is a Federal Agent with the Australian Federal Police. Specifically, he is an officer who has some experience of inquiries and investigations connected with money laundering offences, and he has been monitoring particular activity as a consequence of his duties. Specifically, Officer Schmidt has been monitoring conversations intercepted by lawfully issued and operated listening device.

3. As a consequence of the information which has come to the Australian Federal Police through that investigation, Officer Schmidt has formed a number of suspicions as to the commission of particular offences by some particular individuals. The identities of those individuals is set out in the affidavit of Agent Schmidt, as is the basis of the suspicions that he has formed. Officer Schmidt is of the view that persons he has referred to in paragraph 15 of his affidavit have committed a number of offences as a consequence of being a party to a conspiracy to deal with property to become an instrument of crime. That dealing would take place outside Australia and it involves very substantial amounts of money. There is evidence before the Court of what appears to be a plan to, in the vernacular, launder a substantial sum of money in Euro currency, with persons domiciled in New South Wales to receive a significant commission for their role in the laundering of this particular sum of money.

4. What is sought is an order to restrain the funds, they being the proceeds or an instrument of crime. The applications are made pursuant to ss 18 and 19 of the Proceeds of Crime Act. Section 18 provides a power for the Court to make a restraining order in relation to persons suspected of committing serious offences. Section 19 provides the Court with a power to make a restraining order in relation to property suspected of being the proceeds of indictable offences.

5. Here, the property is suspected of connection with offences of money laundering, offences which are criminalised under the Criminal Code, specifically offences contrary to s 400.3 of the Criminal Code and s 400.9 of the Criminal Code. The former of those provisions creates an offence which carries a maximum penalty of 25 years imprisonment; clearly, a very serious offence.

6. Inquiries by the Australian Federal Police have established what appears to be an ongoing criminal arrangement between the individuals to whom I have already referred which, in the short term, involves channelling a very large sum of money through specific bank accounts and distributing funds through various jurisdictions outside Australia. The reward for the involvement of the persons domiciled in this State is something in the vicinity of 20-30 per cent, or thereabouts, of the overall funds.

7. Conversations recorded as part of the investigation suggests that the individuals are well-aware of the criminal nature of the activities in which they are engaged. Indeed, some of the conversations which are reproduced in evidence before the Court are to the effect that the individuals have some concerns about the funds being "frozen", something which, of course, typically happens to funds which are the product of crime. The individuals have, indeed, had conversations about their concerns about going to gaol. The activity has been referred to as "washing currency". It is fairly clear on the material before the Court that those involved are well-aware of the criminal nature of the conduct in which they are engaged but are unconcerned by that criminal conduct because of the very significant reward which would flow to them for their participation.

8. Officer Schmidt is concerned that if immediate action is not taken to restrain these funds they will be distributed in the way that has been discussed in the intercepted conversations and, of course, the funds will then be lost to the legitimate activities of law enforcement. There does appear to be both an urgency about the need for the restraining order and the need for discretion as to advising those persons the subject of these inquiries that inquiries exist.

9. I am satisfied that there are reasonable grounds to suspect that a person has committed a serious offence such that it is appropriate to make the orders that the Australian Federal Police seek to restrain the property referred to in the schedules to the summons. Accordingly, I propose to make the orders that the Australian Federal Police seek.

orders

10. The orders that are sought today and which I propose to make are those set out at prayers 1 through 11 of the summons filed today and returnable instanter. They have been reproduced in draft short minutes of order. I propose to make each of the orders set out in the short minutes of order, noting that I have already made order 1 for the summons to be filed in court and returnable instanter. I additionally make orders 2, 3, 4, 5, 6, 7, 8, 9, 10 and 11; 11 being an order for delayed notification which I am satisfied is necessary in the circumstances of this case to protect the ongoing inquiries into illicit activity in this State.

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Decision last updated: 25 September 2024