Commissioner of the Australian Federal Police – s 19 application for restraint of assets
[2015] NSWSC 948
•14 July 2015
Supreme Court
New South Wales
Medium Neutral Citation: Commissioner of the Australian Federal Police – s 19 application for restraint of assets [2015] NSWSC 948 Hearing dates: 14 July 2015 Date of orders: 14 July 2015 Decision date: 14 July 2015 Jurisdiction: Common Law Before: Davies J Decision: Upon the Plaintiff giving the usual undertaking as to damages, the court orders that
1. Pursuant to rule 6.15 of the Uniform Civil Procedure Rules 2005 (NSW), the summons be made returnable immediately.
2. Pursuant to sections 26(4) and 182(2) of the Proceeds of Crime Act 2002 (Cth) (the Act) and rule 18.2(2) of the Uniform Civil Procedure Rules 2005 (NSW), the application of the Plaintiff for the relief sought in paragraphs 3 to 7 of the Summons be heard and determined without notice.
Restraining orders
3. Pursuant to section 19 of the Act, the property specified in Schedule One below must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders.
4. Pursuant to section 19 of the Act, the property specified in Schedule Two below must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders.
Custody and Control Orders
5. Pursuant to section 38 of the Act, the Official Trustee in Bankruptcy (Official Trustee) is to take custody and control of the property specified in Schedule One below.
6. Pursuant to section 38 of the Act the Official Trustee is to take custody and control of the property specified in Schedule Two below.
Examination orders
7. Pursuant to section 180 of the Act, Rommy Fernandez is to be examined about his affairs.
Other orders
1. Proceedings be listed for further directions before the Common Law Registrar on 14 October 2015 at 9:00am.
2. Liberty to restore on 3 days written notice.
3. That these orders be entered forthwith.
SCHEDULE ONE
1. Funds standing to the credit of Commonwealth Bank of Australia Savings Account number 062198 - 10589650 in the name of Rommy Fernandez and any interest earned thereon.
SCHEDULE TWO
1. Funds standing to the credit of Commonwealth Bank of Australia Savings Account number 062198-10589669 in the name of Rommy Fernandez and any interest earned thereon.Catchwords: CRIMINAL LAW – proceeds of crime – restraining orders Legislation Cited: Anti-money Laundering and Counter-terrorism Financing Act 2006 (Cth)
Criminal Code Act 1995 (NSW
Proceeds of Crime Act 2002 (Cth)
Uniform Civil Procedure Rules 2005 (NSWCategory: Procedural and other rulings Parties: Commissioner of the Australian Federal Police (Applicant) Representation: Counsel:
Solicitors:
M Akbar (Applicant)
Proceeds of Crime Litigation, Australian Federal Police (Applicant)
File Number(s): 2015/205574
Judgment
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This is an application by the Commissioner of the Australian Federal Police for restraining orders pursuant to section 19 of the Proceeds of Crime Act 2002 (Cth). The application is supported by an affidavit of Darren James Burtenshaw sworn on 13 July 2015. Mr Burtenshaw deposes to the fact that he is an authorised officer within the meaning of s 338 of the Proceeds of Crime Act.
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Mr Burtenshaw swears that he suspects that the property specified in schedules 1 and 2 of the summons is wholly or partly the proceeds and/or the instrument of an indictable and serious offence within the meaning of section 19(1)(d)(i) and (ii) of the Act. The offence is dealing with money that is reasonably suspected of being proceeds of crime and at the time of dealing the value of the money is $A100,000 or more, contrary to section 400.9(1) of the schedule to the Criminal Code Act 1995 (Cth). He also suspects that the property is wholly or partly the proceeds and/or instrument of an indictable and serious offence, being the offence of depositing money into bank accounts for the sole or dominant purpose of ensuring or attempting to ensure that the money involved in the transaction was deposited in a manner and form that would not give rise to a threshold transaction that would have been required to have been reported under section 43 of the Anti-money Laundering and Counter-terrorism Financing Act 2006 (Cth), contrary to section 142(1) of that Act.
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The offences against section 400.9(1) of the Criminal Code and section 142(1) of the AML Act are both indictable offences and serious offences for the purposes of those Acts.
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Mr Burtenshaw sets out the grounds for his suspicion which is based principally on a statement of facts prepared by the criminal case officer responsible for investigating two named persons. It is not necessary to detail the factual basis for Mr Burtenshaw's suspicion. I am satisfied, from a reading of the statement of facts and the other documents annexed to his affidavit, that his suspicion is held on reasonable grounds.
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Section 19 of the Proceeds of Crime Act requires the making of a restraining order in circumstances where there are reasonable grounds to suspect that the property is the proceeds of an indictable offence or an instrument of a serious offence and that the authorised officer who made the affidavit holds the suspicion on reasonable grounds.
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Section 26(4) of the Act requires that the Court must consider the application without notice having been given to any person if the responsible authority, that is the Commissioner of the AFP, requests the Court to do so. The Commissioner has so requested.
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For those reasons it is appropriate that I make the orders that are set out in the short minutes of order. I note the usual undertaking as to damages that has been given by the solicitor for the plaintiff.
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I make orders in terms of paragraphs 1 to 7 of the short minutes of order. The proceedings are listed for further directions before the Common Law Registrar on 14 October 2015 at 9am. Liberty is given to restore the matter on three days' notice and I direct that the orders be entered forthwith.
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Decision last updated: 16 July 2015
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