Commissioner of the Australian Federal Police v Arora

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

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.
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.
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

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

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.

The case of the Commissioner of the Australian Federal Police versus Arora was heard in the Federal Circuit and Family Court of Australia. The dispute centred around the application for a restraining order under section 19 of the Proceeds of Crime Act 2002 (Cth). The Commissioner sought the order to prevent the respondent from disposing of assets that were believed to be proceeds of crime. Arora opposed the application, arguing that there was no reasonable suspicion that the assets in question were proceeds of crime. The court was tasked with determining whether the Commissioner had established a reasonable suspicion that the assets were indeed proceeds of crime, thereby justifying the imposition of a restraining order.

The court examined the criteria for issuing a restraining order under section 19, which requires the Commissioner to demonstrate a reasonable suspicion that the assets are proceeds of crime. The central issue was whether the Commissioner had provided sufficient evidence to meet this threshold. The court considered the nature of the evidence presented, the likelihood that the assets were proceeds of crime, and the proportionality of the restraining order in relation to the suspected crime. The court also assessed whether the Commissioner's suspicion was reasonable based on the facts presented, including any previous investigations, convictions, or other relevant information.

In its reasoning, the court found that the Commissioner had presented a compelling case for a reasonable suspicion that the assets were proceeds of crime. The evidence provided, which included links to previous criminal activity and financial transactions, was deemed sufficient to justify the imposition of a restraining order. The court emphasised that the standard of proof required for a restraining order was not as high as that needed for a criminal conviction, but rather a reasonable suspicion based on the facts presented. The court concluded that the Commissioner had met this standard, and therefore, the application for a restraining order was granted. The court's decision was based on the preponderance of the evidence and the need to prevent the potential disposal of assets that were likely to be proceeds of crime.

The final orders of the court were that a restraining order be issued under section 19 of the Proceeds of Crime Act 2002 (Cth) against the respondent, Arora. The order restrained the respondent from disposing of specified assets pending further investigation and potential forfeiture proceedings. The court's decision underscored the importance of the Commissioner's ability to act swiftly to protect the integrity of the criminal justice system and prevent the dissipation of assets that may be derived from unlawful activities.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established