Commissioner of the Australian Federal Police v Arora

[2016] WASC 220

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE -v- ARORA [2016] WASC 220

CORAM:   ALLANSON J

HEARD:   18 JULY 2016

DELIVERED          :   18 JULY 2016

FILE NO/S:   CIV 1794 of 2016

MATTER                :An Application pursuant to Section 19 of the Proceeds of Crime Act 2002 (Cth)

and

Real Property located at 24 Crosthwait Circle, Tapping in the State of Western Australia

BETWEEN:   COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE

Applicant

AND

RUBY ARORA
NOGENDER PAL ARORA
Respondents

Catchwords:

Proceeds of Crime Act 2002 (Cth) - Restraining order under s 19 - Reasonable suspicion - Turns on own facts

Legislation:

Proceeds of Crime Act 2002 (Cth), s 19, s 30, s 31

Result:

Application granted
Restraining order made

Category:    B

Representation:

Counsel:

Applicant:     Mr E A Skeels

Respondents                 :     Mr E W L Greaves

Solicitors:

Applicant:     Australian Federal Police - Proceeds of Crime Litigation

Respondents                 :     WA Criminal Law

Case(s) referred to in judgment(s):

Nil

1. ALLANSON J:  The Commissioner of the Australian Federal Police applies for orders pursuant to the Proceeds of Crime Act 2002 (Cth). The subject of the application is a property at Tapping. The property is registered in the name of Ruby Arora.

2. Immediately, the Commissioner seeks a restraining order under s 19 preventing the property from being disposed of or dealt with except in the manner in circumstances specified in the order, or with the Commissioner's written consent.

3. Ms Arora and her husband, Nogender Pal Arora, apply to be joined to the proceedings and seek orders pursuant to s 29 of the Proceeds of Crime Act excluding the property from restraint.  The joinder is not opposed and Ms and Mr Arora should be joined as respondents to the application.

The Commissioner's application

1. Under s 19, a court with a proceeds jurisdiction must make a restraining order of the kind sought by the Commissioner if the criteria in that section are met. This court has proceeds jurisdiction. The application is supported by the affidavit of Federal Agent Stuart Maxwell McDonald, dated 11 May 2016. Agent McDonald states in the affidavit that he has the suspicion required by s 19 and sets out the grounds for it. The primary question at this stage is whether Agent McDonald has reasonable grounds to hold that suspicion.

2. The respondents are Indian citizens.  They arrived in Australia on 5 April 2013.  The Tapping property was purchased in August 2013.

3. From his investigations, Agent McDonald identified a number of accounts with the ANZ Bank and Bankwest which are held by Mr Arora or Ms Arora, or to which Mr Arora was an authorised signatory.  I have considered the evidence of payments into and transfers between those accounts, and also payments in August 2013 out of an account held by Mr Arora and a joint account in the name of the respondents, apparently in payment for the Tapping property.  It is unnecessary, in these reasons, to analyse the transactions in those accounts identified by Agent McDonald in any detail.  The respondents do not consent to the restraining order, but did not seek to adduce evidence at this stage, or to cross examine Agent McDonald. 

4. Having regard to the number, total value and nature of the transactions in the various accounts in the period before the purchase of the Tapping property, I am satisfied that that there are reasonable grounds to suspect that the Tapping property is the proceeds of an indictable offence or an instrument of a serious offence:  Proceeds of Crime Act s 19, s 330(1)(b), and s 330(2)(b). I am satisfied that the criteria in s 19 have been met, and a restraining order should be made.

The respondents' application for exclusion

1. The exclusion application is on the ground that the property is neither proceeds of an indictable offence nor an instrument of a serious offence. It is not currently supported by evidence. The respondents submit that the exclusion application was necessarily brought urgently, because of the operation of s 30 and 31 of the Act. They will need to file affidavits from a number of people but need further time. The parties agreed to the adjournment of the application to permit conferral on the program for further proceedings.