Commissioner of the Australian Federal Police v BDS
[2018] WASC 358
•25 OCTOBER 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE -v- BDS [2018] WASC 358
CORAM: ARCHER J
HEARD: 25 OCTOBER 2018
DELIVERED : 25 OCTOBER 2018
FILE NO/S: CIV 2219 of 2018
BETWEEN: COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE
Applicant
AND
BDS
Respondent
Catchwords:
Proceeds of Crime Act 2002 (Cth) s 18 and s 19 - Restraining orders - Turns on own facts
Legislation:
Criminal Code (Cth), s 11, s 400.9
Proceeds of Crime Act 2002 (Cth), s 18, s 19
Result:
Restraining orders made
Category: B
Representation:
Counsel:
| Applicant | : | Ms M Linehan |
| Respondent | : | No appearance |
Solicitors:
| Applicant | : | Australian Federal Police - Proceeds of Crime Litigation |
| Respondent | : | No appearance |
Case(s) referred to in decision(s):
Re Application Pursuant to Section 19 of the Proceeds of Crime Act 2002; Ex parte Commissioner of the Australian Federal Police [2014] WASC 390
ARCHER J:
(This judgment was delivered orally on 25 October 2018 and has been edited for publication, with references added. Because of the subject matter of these reasons, the matters which could identify the respondent or the alleged offences have been anonymised).
Introduction
The Commissioner of the Australian Federal Police applies for a restraining order under s 18 and s 19 of the Proceeds of Crime Act 2002 (Cth) against the respondent.[1] The orders relate to four quantities of cash totalling $232,585. The Commissioner also seeks a custody and control order under s 38 in relation to three of the quantities.
[1] Section 27 authorises a 'proceeds of crime authority' to apply for restraining orders over the same property under more than one section of the Act. The Commissioner is a proceeds of crime authority, by s 338.
The respondent's solicitors advised the court that the respondent did not intend to attend the hearing and did not oppose the orders being made.
As I will explain, it is appropriate to make the orders.
When I refer to legislation, I am referring to the Proceeds of Crime Act, unless I say otherwise.
Jurisdiction
An order under s 18 or s 19 may only be made by a court with 'proceeds jurisdiction'. The Supreme Court, having jurisdiction to deal with criminal matters on indictment in Western Australia, will relevantly have 'proceeds jurisdiction' where all or part of the conduct constituting an offence to which the order would relate occurred, or is reasonably suspected to have occurred, in Western Australia.[2]
[2] Section 335(2).
The orders sought in this case relate to three offences which are alleged to have occurred, or are reasonably suspected to have occurred, contrary to s 11.1(1),[3] s 400.9(1) and s 400.9(1A) of the Criminal Code Act 1995 (Cth), sch 1 (Criminal Code) respectively.[4] I will refer to these offences as the 'relevant offences'. All of the conduct constituting the relevant offences occurred, or is reasonably suspected to have occurred, in Western Australia.[5] The court has proceeds jurisdiction.
[3] Being an attempt to commit an offence contrary to s 307.5(1) of the Criminal Code.
[4] Affidavit of Adrian Luca Guadagnuolo sworn 5 July 2018 (Guadagnuolo Affidavit) [7].
[5] Guadagnuolo Affidavit [11], [16], [18] ‑ [22].
The court also has jurisdiction to make the custody and control order by s 314.
Section 18
Restraining orders made under s 18 relate to the property of, or in the effective control of, persons suspected of committing serious offences.
Subject to matters not relevant here,[6] the court must make a restraining order under s 18 when the criteria set out in that section are satisfied. Those criteria are as follows.
[6] Section 21 permits the court to refuse to make a restraining order if the Commonwealth, or the 'responsible authority' on its behalf, does not make an undertaking as to damages. The Commissioner is a 'responsible authority, as defined in s 338, and has provided an undertaking. Section 26 provides that the court must not hear an application unless the owner of the property has been given reasonable notice of the application, unless the applicant requests the court to do so. Section 26 also gives the court power to direct that other persons be notified. The respondent was given reasonable notice and there is no other person to whom notice should be given.
First, the applicant must be a 'proceeds of crime authority'. The Commissioner is a proceeds of crime authority.[7]
[7] Section 338.
Second, there must be reasonable grounds to suspect that a person, in this case the respondent, has committed a serious offence. The reasonable grounds need not be based on a finding as to the commission of a particular serious offence.[8] I will discuss later whether there are reasonable grounds to suspect that the respondent has committed a serious offence.
[8] Section 18(4).
Third, the application for the order must be supported by an affidavit of an 'authorised officer':[9]
(1)stating that the authorised officer suspects that the 'suspect'[10] committed the offence;
(2)if the application is to restrain property of a person other than the suspect, but which is not the bankruptcy property of the suspect, stating that the authorised officer suspects that the property is subject to the effective control of the suspect or is proceeds or an instrument of a serious offence; and
(3)including the grounds on which the authorised officer holds the suspicions.
[9] Defined in s 338.
[10] 'Suspect' is defined in s 338 to include, in relation to restraining orders, a person charged with, or suspected of having committed, the offence or offences to which the order relates. In this case, that person is the respondent.
Mr Guadagnuolo is an authorised officer.[11] His affidavit meets the above requirements.[12] The third criterion is met.
[11] Guadagnuolo Affidavit [1] ‑ [2] and AG‑1.
[12] Guadagnuolo Affidavit [7(a)], [7(c)], [35] ‑ [37].
Fourth, the court must be satisfied that the authorised officer who made the affidavit holds the suspicion or suspicions stated in the affidavit on reasonable grounds. I will discuss later whether Mr Guadagnuolo holds his suspicions on reasonable grounds.
Section 19
Restraining orders made pursuant to s 19 relate to property suspected of being proceeds or an instrument of indictable offences.
Subject to s 21, which is not relevant here,[13] and s 19(3),[14] the court must make a restraining order under s 19 when the criteria set out in that section are satisfied. Those criteria are as follows.
[13] See footnote 6.
[14] Discussed later under the heading 'Discretionary refusal under s 19'.
First, the applicant must be a proceeds of crime authority. As I have said, that criterion is met.
Second, there must be reasonable grounds to suspect that the property is proceeds of an indictable offence or an instrument of a serious offence. The reasonable grounds need not be based on a finding as to the commission of a particular offence.[15] I will discuss later whether there are reasonable grounds to suspect that the property is proceeds of an indictable offence or proceeds or an instrument of a serious offence.
[15] Section 19(4).
Third, the application for the order must be supported by an affidavit of the authorised officer which:
(1)states that the authorised officer suspects that the property is proceeds of the offence or, if the offence is a serious offence, an instrument of the offence; and
(2)includes the grounds on which the authorised officer holds the suspicion.
As noted in the discussion of s 18, Mr Guadagnuolo was an authorised officer. His original affidavit did not meet the requirements in relation to the cash found as he stated that he suspected that two of the quantities of cash were 'proceeds or an instrument' of an offence which was not a serious offence. The third criterion would not be met by a suspicion that property is an instrument of an offence that is not a serious offence. I raised this deficiency with the applicant's counsel when the matter came before me on 17 October 2018. Subsequently, Mr Guadagnuolo swore a second affidavit which remedied the deficiency.[16]
[16] Affidavit of Adrian Luca Guadagnuolo sworn 19 October 2018 (Guadagnuolo Second Affidavit) [7] ‑ [9].
Fourth, the court must be satisfied that the authorised officer who made the affidavit holds the suspicion or suspicions stated in the affidavit on reasonable grounds, which I will discuss later.
Discretionary refusal under s 19
Section 19(3) provides that a court may refuse to make a restraining order in relation to an indictable offence that is not a serious offence if the court is satisfied that it is not in the public interest to make the order.
One of the relevant offences is an indictable offence that is not a serious offence. However, I am not satisfied that it is not in the public interest to make the order.
Reasonable grounds for suspicion
It remains to consider whether there are reasonable grounds to suspect the matters set out in the second criterion of each section and for Mr Guadagnuolo's suspicions as required by the fourth criterion of each section.
In Re Application Pursuant to Section 19 of the Proceeds of Crime Act 2002; Ex parte Commissioner of the Australian Federal Police,[17] Allanson J made the following observations:
Whether a person has reasonable grounds to suspect something is to be judged on the facts known to that person at the time. The concept of reasonable suspicion is well known in the law. In George v Rockett [1990] HCA 26; (1990) 170 CLR 104, the High Court approved the definition of 'suspicion' given by Lord Devlin in Hussien v Chong Fook Kam (1970) AC 942, 948:
'in its ordinary meaning [suspicion] is a state of conjecture or surmise where proof is lacking: 'I suspect but I cannot prove' [14].'
The court referred also to the comments of Kitto J in Queensland Bacon Pty Ltd v Rees [1966] HCA 21; (1966) 115 CLR 266, 303:
'A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to "a slight opinion, but without sufficient evidence", as Chambers' Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence [14].'
For there to be reasonable grounds to suspect there must be material which is sufficient to induce the state of suspicion in a reasonable person. It is not, however, necessary that the material which establishes the reasonable grounds for suspicion be limited to admissible evidence: Walsh v Loughnan [1991] 2 VR 351, 357 (Vincent J); Director of Public Prosecutions (SA) v Tregenza [2002] SASC 414; (2002) 84 SASR 346.
Committed a serious offence (s 18 second criterion and part of fourth criterion)
[17] Re Application Pursuant to Section 19 of the Proceeds of Crime Act 2002; Ex parte Commissioner of the Australian Federal Police [2014] WASC 390 [19] ‑ [21].
There are reasonable grounds to suspect that the respondent has committed an offence against s 400.9(1) and an offence against s 11.1(1) of the Criminal Code. Each of these is a 'serious offence' as defined.[18] To prevent a potential juror from identifying the respondent, I will simply refer to the Guadagnuolo Affidavit at [35] ‑ [36] and, in particular, the matters set out in subparagraphs (b) ‑ (f) of [35] and the table in the DNA report at pages 46 ‑ 47 of the affidavit.
[18] See the definition in s 338 at subparagraphs (a)(ia), (a)(ii) and (g).
Accordingly, the second criterion of s 18 is met and the fourth criterion is met in relation to one of the two suspicions held by Mr Guadagnuolo.
Property subject to control (remaining suspicion in s 18 fourth criterion)
As I have said, if the application is to restrain the property of a person other than the suspect, but which is not the bankruptcy property of the suspect, one of the suspicions that must be held on reasonable grounds is that the authorised officer suspects that the property is subject to the effective control of the suspect or is proceeds or an instrument of a serious offence.
Mr Guadagnuolo deposed that he suspected that all of the money the subject of this application was either the respondent's property or in his effective control.[19] The money was not the 'bankruptcy property'[20] of the respondent.
[19] Guadagnuolo Affidavit [37].
[20] This is defined in s 338 to mean, in effect, property that had been the suspect's property but which had been vested in another person under the Bankruptcy Act 1966.
There are reasonable grounds to suspect that the property is subject to the respondent's 'effective control'[21] or that it is his property. Again, I will simply refer to the Guadagnuolo Affidavit at [20] and [37], in particular the matters set out in subparagraphs (a) ‑ (f) of [37] and the table in the DNA report at pages 46 ‑ 47 of the affidavit.
[21] Defined in s 337.
Accordingly, the fourth criterion is met in relation to the second of the two suspicions held by Mr Guadagnuolo.
Therefore, I must make an order under s 18.
Proceeds or an instrument (s 19 fourth criterion)
There are reasonable grounds to suspect that the property is proceeds of an indictable offence or proceeds or an instrument of a serious offence.
All three of the suspected offences are indictable[22] and two are serious offences.
[22] Defined in s 338.
Relevantly, property is 'proceeds' of an offence if it is derived or realised, whether wholly or partly, whether directly or indirectly, from the commission of the offence, and whether the property is situated within or outside Australia.[23]
[23] Section 329(1). See also s 330.
Property is relevantly an 'instrument' of an offence if it is used in, or in connection with, the commission of an offence; or the property is intended to be used in, or in connection with, the commission of an offence; whether the property is situated within or outside Australia.[24]
[24] Section 329(2). See also s 330.
Property can be proceeds of an offence or an instrument of an offence, even if no person has been convicted of the offence.[25]
[25] Section 329(3).
The application relates to four quantities of cash set out in four schedules.
A total of $219,900 was found in one location. Of that, an amount of $2,550 was sent for forensic analysis,[26] which is referred to in sch B. The balance is referred to in sch A. There are reasonable grounds to suspect that those two quantities are proceeds or an instrument of a serious offence. Again, I will simply refer to the Guadagnuolo Affidavit at [32] and the table in the DNA report at pages 46 ‑ 47 of the affidavit.
[26] Guadagnuolo Affidavit [23].
In relation to the other two quantities of cash, there are reasonable grounds to suspect that those two quantities are proceeds of an indictable offence. Again, I will simply refer to the Guadagnuolo Second Affidavit at [7] ‑ [9].
Accordingly, the second and fourth criterion under s 19 are met and I must make an order under s 19.
Custody and control order
As I have said, the Commissioner seeks a restraining order in relation to the total of $232,585. The Commissioner also seeks a custody and control order in relation to all of the cash, except for the $2,550 used for forensic investigation.
Under s 38 of the Act, the court may order the Official Trustee to take custody and control of property, or specified property, covered by a restraining order if the court is satisfied this is required. A custody and control order enables the rights and duties imposed by pt 4‑1 of the Act to be invoked. I am satisfied that the order is required.
Orders
For these reasons, I will make the restraining orders under s 18 and s 19 and the custody and control order under s 38 sought by the Commissioner.
I further order that:
(1)the respondent have liberty to make any application under s 24, s 29 or s 42 on 24 hours' notice to the Commissioner;
(2)there be liberty to apply; and
(3)costs be in the cause.
Accordingly, I make orders in terms of the applicant's minute for proposed orders for hearing, filed on 16 October 2018.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CG
ASSOCIATE TO THE HONOURABLE JUSTICE ARCHER20 NOVEMBER 2018
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