Commissioner of the Australian Federal Police v Battah

[2023] NSWSC 35

Supreme Court

New South Wales

Medium Neutral Citation:

Commissioner of the Australian Federal Police v Battah [2023] NSWSC 35

Hearing dates:

30 January 2023

Date of orders:

30 January 2023

Decision date:

30 January 2023

Jurisdiction:

Common Law

Before:

Hamill J

Decision:

(1) Pursuant to section 180 of the Proceeds of Crime Act 2002 (Cth), Zoe Battah is to be examined in relation to the affairs of:

(a) herself; and

(b) Matthew Battah.

(2) Until further order, pursuant to section 266A(2)(b) of the Act;

(a) the transcript of the examination of Zoe Battah (“the examination”);

(b) any matter contained in answers given during the course of the examination and documents produced at the examination; and

(c) any information obtained from Zoe Battah during the examination,

be prohibited from disclosure to any authority of the Commonwealth, or of a State or Territory, that has a function of investigating or prosecuting offences with which Matthew Battah is charged, save for an offence or offences under Division 4 of Part 3-1 of the Act.

(3) The proceedings be listed for a further directions hearing on 21 June 2023.

(4) Liberty to apply on 3 days’ written notice.

Catchwords:

CIVIL LAW – proceeds of crime – restraining order in existence – examination order – where target resides overseas – little enthusiasm for return to Australia – where husband to stand trial for drug offences – no question of principle

Legislation Cited:

Criminal Code Act 1995 (Cth)

Proceeds of Crime Act 2002 (Cth), ss 180, 266A

Category:

Principal judgment

Parties:

Commissioner of the Australian Federal Police (Plaintiff)
Matthew Battah (First defendant)
Zoe Battah (Second defendant)

Representation:

Counsel:
O Scully (Plaintiff)
A Lopez (First defendant)
No appearance (Second defendant)

Solicitors:
Australian Federal Police (Plaintiff)
Zahr Partners (First defendant)

File Number(s):

2021/78355

Publication restriction:

Unique personal identifiers have been redacted in accordance with the Supreme Court anonymisation policy

Ex tempore JUDGMENT

1. On 19 March 2021, Justice Cavanagh, sitting as the duty judge, dealt with a summons filed by the Commissioner of the Australian Federal Police (“the Commissioner”) seeking a variety of orders under the Proceeds of Crime Act 2002 (Cth). It included a vast array of orders, some facilitative and some substantive, and critically, for present purposes, restraining orders under the Act in respect of property of two defendants who, as I follow it, are husband and wife: the first defendant, Matthew Battah, and the second defendant, Zoe Battah.

2. His Honour delivered a short ex tempore judgment in which he set out the evidence that led him, and the prosecuting authority, to be of a certain state of mind, that is, having a suspicion relevant to the provisions of the Act justifying the making of the restraining orders and other ancillary orders. Those proceedings unsurprisingly were dealt with ex parte. The relevant orders made were as follows:

“‘All property’ restraining orders

(10) Pursuant to sections 17(2)(a) and 17(6) of the Act, any and all of the property of Matthew Battah (within the meaning of ‘property’ as defined in section 338 of the Act) (including any property acquired by Matthew Battah after the date of this order and any property located in the United Arab Emirates), is not to be disposed of or otherwise dealt with by any person, except in the manner and circumstances specified in this order.

(11) Pursuant to sections 18(2)(a) and 18(6) of the Act, any and all of the property of Matthew Battah (within the meaning of ‘property’ as defined in section 338 of the Act) (including any property acquired by Matthew Battah after the date of this order and any property located in the United Arab Emirates), is not to be disposed of or otherwise dealt with by any person, except in the manner and circumstances specified in this order.

(12) Pursuant to section 18(2)(a) and 18(6) of the Act, any and all of the property of Zoe Battah (within the meaning of ‘property’ as defined in section 338 of the Act) (including any property acquired by Zoe Battah after the date of this order and any property located in the UAE), is not to be disposed of or otherwise dealt with by any person, except in the manner and circumstances specified in this order.

Specified restraining orders

(13) Pursuant to section 17(2)(a) of the Act, the property specified in Schedule One being property of Matthew Battah, must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders.

(14) Pursuant to section 18(2)(a) of the Act, the property specified in Schedule One being property of Matthew Battah, 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 order

(15) Pursuant to section 38 of the Act, the Official Trustee is to take custody and control of the property specified in Schedule One.

Ancillary orders

(16) Pursuant to section 39(1) of the Act, Matthew Battah is directed to give to the Plaintiff within 28 days of the date of service of these orders on him a sworn statement in the form set out in Schedule Two setting out:

(a) All of his interests in property within the meaning of the Act, worldwide, not including any asset or interest in property with a value less than AUD5,000 as at the date of these orders; and

(b) All of his liabilities, worldwide, not including any liability with a value of less than AUD5,000 as at the date of these orders.

(17) Pursuant to section 39(1) of the Act, Zoe Battah is directed to give to the Plaintiff within 28 days of the date of service of these orders on her a sworn statement in the form set out in Schedule Two setting out:

(a) All of her interests in property within the meaning of the Act, worldwide, not including any asset or interest in property with a value less than AUD5,000 as at the date of these orders; and

(b) All of her liabilities, worldwide, not including any liability with a value of less than AUD5,000 as at the date of these orders.

(18) Pursuant to section 39(1)(d) of the Act, Matthew Battah is directed to give the Plaintiff within 28 days of service of these orders on him a sworn statement in the form set out in Schedule Three setting out particulars of, or dealings with, any and all property held in his name.

(19) Pursuant to section 39(1)(d) of the Act, Zoe Battah is directed to give the Plaintiff within 28 days of service of these orders on her a sworn statement in the form set out in Schedule Three setting out particulars of, or dealings with, any and all property held in her name.”

3. Schedule One included:

“(a) AUD9,005 cash seized by the New South Wales Police Force during the execution of a search warrant over a Toyota Hilux registered in the name of Corporate Electrical Group Pty Ltd on 24 April 2015; and

(b) AUD85,350 cash and USD23,000 cash seized by the New South Wales Police Force during the execution of a search warrant at XXXXX XXXXX XXX, St Clair on 24 April 2015.”

4. The background to the matter involved an investigation back in 2014 and 2015, an allegation of the importation of certain prohibited drugs and associated allegations of money laundering and/or dealing with the proceeds of crime.

5. The first defendant, that is Matthew Battah, has been charged with a variety of offences. I am told, and accept from Ms Lopez who appears on his behalf, that his trial for those offences is listed to be heard next year.

6. In the early stages of the current (proceeds of crime) proceedings, both defendants were represented by Zahr Partners. On 15 September 2022, that is over a year after Cavanagh J made the restraining orders, there was filed in the court registry a notice of removal of solicitor on behalf of the second defendant, Zoe Battah. Relevantly, Ms Battah, named as the filing party, nominated a specific address in Dubai in the United Arab Emirates.

7. The Commissioner (or plaintiff) now seeks orders, specifically under s 180 of the Act, for an examination of the second defendant, including an examination in relation to the affairs of herself and the first defendant. To that end, the Commissioner’s lawyers and employees have made attempts to notify her of the current proceedings to see if she wished to be heard against the making of the examination order. There is an affidavit of Ursula Claire Bouzaid affirmed on 27 January 2023 explaining the method of service of a letter upon Ms Battah. The letter is annexed to that affidavit, as is the Australia Post tracking documentation. It is unnecessary to go into detail but the letter explained what had happened up until 29 November 2022, asked the second defendant if there was any opposition to the making of an examination order, asked whether there was any consent to the making of the order, provided a draft consent order to that effect. The balance of the annexed documentation established the delivery of the item on 5 December 2022.

8. As I have said, Ms Lopez of Zahr Partners appears to protect the interests of her client, the first defendant, and specifically raises concerns about the possible interference with the integrity of the criminal proceedings currently listed in the District Court, and at least initially sought that any order that was made be restricted to an examination in relation to the affairs of the second defendant only and not her client, that is, the first defendant. However, in the course of some discussion between the parties’ representatives and I, it has become clear enough that non-disclosure orders can be made pursuant to s 266A of the Act to prevent the dissemination and disclosure of anything Ms Battah were to say about her husband’s financial affairs, such that Ms Lopez accepts that her client’s interests would be protected even if Ms Battah is asked questions about the affairs of her husband.

9. All of this presupposes that somehow the examination will in fact take place in spite of the fact that, on its face, it would seem that shortly after a search warrant was executed, Ms Battah left the country and is not showing a great deal of enthusiasm for coming back. She is a suspect in relation to offences of dealing with the proceeds of crime pursuant to the Criminal Code Act 1995 (Cth), potentially money laundering and, perhaps by way of inference although it is not specifically asserted, some involvement in the big drug importation with which her husband currently stands charged.

10. Returning to s 180 of the Proceeds of Crime Act, I am satisfied that a restraining order is in force and that Ms Battah is a suspect in relation to the restraining order. It might also be thought that she may be a person who claims an interest in the relevant property, but that is not pressed or relied upon. She may also, perhaps, satisfy the criteria of being a spouse or de facto partner of a suspect person. But, again, I do not need to go down that rabbit hole because that is not what is pressed or relied upon by the Commissioner. There is no doubt she is a person who is “a suspect” in relation to the restraining order.

11. The Court is provided with a discretion by the use of the word “may” in subs (1) of s 180. In the circumstances, based on the evidence that I have seen and the absence of any resistance on the part of Ms Battah, who it would seem has been made aware of these proceedings and was legally represented in the proceedings until 15 September 2022, I am satisfied that orders should be made in the following terms:

1. Pursuant to section 180 of the Proceeds of Crime Act 2002 (Cth), Zoe Battah is to be examined in relation to the affairs of:

1. herself; and

2. Matthew Battah.

2. Until further order, pursuant to section 266A(2)(b) of the Act;

1. the transcript of the examination of Zoe Battah (“the examination”);

2. any matter contained in answers given during the course of the examination and documents produced at the examination; and

3. any information obtained from Zoe Battah during the examination,

3. be prohibited from disclosure to any authority of the Commonwealth, or of a State or Territory, that has a function of investigating or prosecuting offences with which Matthew Battah is charged, save for an offence or offences under Division 4 of Part 3-1 of the Act.

4. The proceedings be listed for a further directions hearing on 21 June 2023.

5. Liberty to apply on 3 days’ written notice.

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Decision last updated: 06 February 2023