Commissioner of the Australian Federal Police; application under the Proceeds of Crime Act (No 3)
[2018] NSWSC 180
•22 February 2018
Supreme Court
New South Wales
Medium Neutral Citation: Commissioner of the Australian Federal Police; application under the Proceeds of Crime Act (No 3) [2018] NSWSC 180 Hearing dates: 22 February 2018 Decision date: 22 February 2018 Jurisdiction: Common Law Before: McCallum J Decision: Orders made in accordance with orders 1-4 in the Form of Order handed up by Mr Short on behalf of the Commissioner.
Catchwords: PROCEEDS OF CRIME – application for restraining orders Legislation Cited: Proceeds of Crime Act 2002 (Cth), ss 19, 26 Category: Procedural and other rulings Parties: Commissioner of the Australian Federal Police (plaintiff)
Simon McCormack (interested party)Representation: M Short (solicitor for the plaintiff)
Solicitors:
T Naidu (Mr McCormack)
Australian Federal Police (plaintiff)
Aquila Lawyers (interested party)
File Number(s): 2017/251158 Publication restriction: None
Judgment
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HER HONOUR: This is an application under s 19 of the Proceeds of Crime Act 2002 (Cth) for restraining orders in respect of two separate bundles of cash seized by the Australian Federal Police. The proceedings first came before me as duty judge on 19 September 2017. As at that date, the Commissioner of the Australian Federal Police had, in accordance with s 26(2) of the Act, given written notice of the application to Mr Simon McCormack (who was then in custody) on the basis that he was a person the Commissioner believed may have an interest in the property. The Court had received a communication on behalf of Mr McCormack from Mr Juweinat, solicitor, indicating that he sought an adjournment of the proceedings, but Mr Juweinat was not yet retained and Mr McCormack, being in custody, did not appear. In the circumstances, I considered it appropriate to stand the proceedings over to a date when Mr Juweinat could appear.
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The proceedings came before me again on 5 October 2017, at which point Mr Juweinat was still not retained by Mr McCormack. Mr McCormack did appear from the gaol by audio visual link on that date and was concerned as to the application proceeding in circumstances where he was not legally represented and had not had an opportunity to obtain legal advice. Over the Commissioner's objection, I adjourned the proceedings again, noting that it may well be that, properly advised, Mr McCormack would take the view that he has no basis for opposing the order sought, but that he was entitled to due process.
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The proceedings have come before me again today in circumstances where Mr Juweinat is now retained to act for Mr McCormack and indeed to act as his solicitor in his forthcoming trial in May. Mr McCormack is present today by audio visual link and represented by an agent appointed by Mr Juweinat, who has indicated the application is not opposed. Accordingly, I am satisfied that it is appropriate to proceed to determine the application today, Mr McCormack having now received reasonable notice of the application and an opportunity to take legal advice about it.
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Section 19 of the Act is prescriptive as to the course the Court must take. The section provides that the Court must make a restraining order if certain conditions are satisfied. They include the fact that an order has been applied for by a Proceeds of Crime Authority, which is the position here. Secondly, there is a requirement that there are reasonable grounds to suspect that the property is the proceeds of, relevantly here, an indictable offence. Thirdly, that the application is supported by an affidavit of an authorised officer, which is the case here, the application being supported by the affidavit of Mr Angus Lee. A further requirement is that the affidavit must specify certain matters, to which I shall come, and the Court must be satisfied that the authorised person who made the affidavit holds the suspicion, as stated in the affidavit, on reasonable grounds.
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Mr Lee's affidavit states that he suspects that cash seized from premises at Howard Street in Randwick is the proceeds of or an instrument of an indictable and serious offence within the meaning of s 19. His affidavit specifies the relevant offences, being offences against the Criminal Code. His affidavit further states the grounds on which he holds that suspicion which, in short, reflect the content of the investigation leading to the charging of Mr McCormack. His affidavit sets out in considerable detail the circumstances relied upon by the Australian Federal Police to support those charges.
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I am satisfied that the material set out in the affidavit identifies reasonable grounds for Mr Lee's suspicion, for the reasons set out in his affidavit. It follows in accordance with the scheme of the Act that I must make the restraining orders sought in respect of the two bundles of cash.
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Separately, the Commissioner seeks an order that the official trustee take custody and control of that property. Mr Lee points out in his affidavit that a custody and control order, if granted, would enable the official trustee to place the restrained cash currently in the possession of the Australian Federal Police into an interest-bearing account until the conclusion of the proceedings. Plainly that is a preferable course to the cash sitting in the exhibit office of the police.
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For those reasons, I am satisfied that it is appropriate to make Orders 1-4 in the Form of Order handed up by Mr Short on behalf of the Commissioner. I also make the directions set out in paragraphs 5, 6 and 7 of those orders.
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Decision last updated: 07 May 2018
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