Commissioner of the Australian Federal Police v Chauhan and Anor (Ruling)

[2017] VCC 336

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

CONFISCATION LIST

Case No. CI-16-00930

IN THE MATTER of the Proceeds of Crime Act 2002 (Cth)

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IN THE MATTER of a suspect, Baljinder Kumar CHAUHAN

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IN THE MATTER of an application by the Commissioner of the Australian Police

COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE			Applicant (Respondent)
v
BALJINDER KUMAR CHAUHAN		First Respondent (Applicant)
and
KANCHAN CHAUHAN	Second Respondent (Applicant)

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	28 March 2017
DATE OF JUDGMENT:	6 April 2017
CASE MAY BE CITED AS:	Commissioner of the Australian Federal Police v Chauhan & Anor (Ruling)
MEDIUM NEUTRAL CITATION:	[2017] VCC 336

RULING
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Subject:  PRACTICE AND PROCEDURE – PROCEEDS OF CRIME

Catchwords: Application by respondents (applicants) seeking orders pursuant to s183(2)(b) and s186(2)(b) of the Proceeds of Crime Act 2002 (Cth) (Act), to revoke restraining orders and unexplained wealth orders prior to any examination of the respondents (applicants)

Legislation cited:     Proceeds of Crime Act 2002 (Cth), s42, s179C, s186(2)(b) and s183(2)(b)

Cases cited:Commissioner of the Australian Federal Police v MNO [2015] VSC 774; Commissioner of the Australian Federal Police v Mah & Ors [2014] VSC 262

Ruling:Applications made by respondents (applicants) dated 12 April 2016 and 29 November 2016 dismissed.

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APPEARANCES:	Counsel	Solicitors
For the Applicant (Respondent)	Ms E Cheeseman SC with Mr E de Zilwa	Solicitor for the Commissioner of the Australian Federal Police
For the Respondents (Applicants)	Mr A Buckland	Nicholas W J Rolfe & Associates

HIS HONOUR:

1       The respondents (applicants), Baljinder Kumar Chauhan and Kanchan Chauhan, have two applications before the Court.

12 April 2016 – the first application

2 This application is brought under s42 and s179C of the Proceeds of Crime Act 2002 (“the Act”). Mr Buckland, for the respondents, clarified that in this proceeding, it was paragraph 4 of the application dated 12 April 2016 that was being pursued by the respondents. Paragraph 4 reads:

“4. Pursuant to Rule 46.08 of the County Court Civil Procedure Rules 2008, the examination order made under s.180 of the Act (ex parte order 5) for the examination of Baljinder Kumar Chauhan and Kanchan Chauhan be set aside and the application for that order be adjourned until after the time has expired for the applicant to apply for revocation of the restraining order and the determination of any such application.”

29 November 2016 – the second application

3 This application is made under s186(2)(b) and s183(2)(b) of the Proceeds of Crime Act 2002:

“1. That pursuant to ss.186(2)(b) and 183(2)(b) of the Act, examinations in respect of the Respondents not proceed until the Respondents’ application dated 25 May 2016 for orders under sections 42 and 179C of the Act has been determined.”

4       The net effect of each of these applications is to have the applications to revoke the restraining orders and the unexplained wealth orders prior to any examination of the respondents.  Mr Buckland agreed this was a proper characterisation of these applications.[1]  Ms Cheeseman agreed.[2] Ms Cheeseman clarified that this application was under s186(2)(b) NOT s183(2)(b) because the Examination Notice has already been issued.

[1]Transcript (“T”) 3

[2]T4

5       The evidence in these applications was by way of affidavits and exhibits.  The following documents were tendered as evidence in this hearing:

·Documents tendered by the applicant:

§Exhibit A – Affidavit of Kate Freshwater dated 19 April 2016

§Exhibit B – Affidavit of Baljinder Chauhan dated 6 May 2016

§Exhibit C – Affidavit of Baljinder Chauhan dated 13 May 2016

§Exhibit D – Affidavit of Baljinder Chauhan dated 20 July 2016

§Exhibit E – Affidavit of Kate Freshwater dated 29 November 2016.

·Documents tendered by the respondents:

§Affidavit of Malcolm Scott dated 10 March 2016

§Affidavit of Sarbjeet Banwait dated 20 December 2016

§Written submissions handed up by Mr De Zilwa at the hearing on 15 March 2015.

6       The parties relied upon written submissions and addressed the Court on the materials in the evidence and the submissions.  The materials in the Court Book were almost one thousand pages.

7 The starting point in these applications is that on 15 March 2016, Judge Murphy made a preliminary unexplained wealth order pursuant to s179B of the Act against Mr Chauhan (Order 3). Judge Murphy also made an unexplained wealth restraining order pursuant to s20A of the Act (Order 2). The third relevant order made by Judge Murphy was that Mr Chauhan provide a sworn statement of assets and liabilities under s39(1)(ca) of the Act (Order 4).

8       On 25 May 2016, Mr Chauhan filed an application to revoke the restraining order and the preliminary unexplained wealth order.

9       On the criminal side of this case, the trial against Mr Chauhan took place in the District Court of New South Wales in April 2016.  The jury was discharged without verdict.  In 2016, the Commonwealth Department of Public Prosecutions advised Mr Chauhan it was not proceeding with the charge against him.

10      On 12 October 2016, the applicant notified the respondents it was going to proceed with an examination notice.  On 31 October 2016, Notices to Attend Examinations were issued to the respondents.

11 The application in this case is to be determined in the statutory context of the unexplained wealth regime set out in Parts 2 -6 of the Act. The relevant sections of the Act were set out in the submissions of the applicant from paragraphs 12 to 26 inclusive. I will not repeat them in these Reasons.

12 The respondents rely on the fact that s42 of the Act does not have a provision which specifically empowers the Commissioner of the Australian Federal Police to have a reasonable opportunity to examine a person prior to the revocation application being heard. This “omission” is to be distinguished from other parts of the Act, such as s32(b); s76 (exclusion applications); s79(3) and s79A (compensation applications); s94(5) and s94(6) (forfeiture orders); s94A (compensation applications); s104(6) and s104(7) (buying back or transferring forfeited property). The difference in this case is that the examination orders are made to assist in the full and proper determination of the preliminary unexplained wealth order. That order gives the Court the power to make the restraining order which is the subject of the revocation application. There is no doubt a court has the power to make an examination order on an ex parte basis in these circumstances.

13      The respondents relied on a decision of Riordan J in Commissioner of the Australian Federal Police v MNO[3] to submit that the examination orders should not have been made by Judge Murphy on 15 March 2016.  The charge in MNO (the same as this case) was dealing in proceeds of crime reasonably suspected of having committed an indictable offence.  The basis for the “suspicion” about the assets is completely different in this case.  The affidavit of Malcolm Scott clearly sets out the basis for the “suspicion” attaching to the respondents’ wealth.  The circumstances of the seizure of the money on Mr Chauhan and the otherwise known financial means of the respondents, give a proper basis for a preliminary unexplained wealth order.

[3][2015] VSC 774

14      In determining these applications by the first and second respondents, I have taken into account the consideration of the six factors referred to by Dixon J in Commissioner of the Australian Federal Police v Mah & Ors.[4]

[4][2014] VSC 262 at paragraph [28]

15 The unexplained wealth orders are different from other orders made under the Act. The respondents in this case come into the country with a declared sum of $40,000. The first respondent’s “wealth” far exceeds that figure. The income earned while in Australia does not correlate with the respondents’ known wealth. The respondents are the only persons who can detail the basis for their wealth and its source. The first respondent has given evidence in his trial and sworn an affidavit in support of his application in this Court. The first respondent, Mr Chauhan, is the sole source of the information contained in his evidence and affidavits. The affidavits do not have sufficient corroborative documentation to verify the first respondent’s employment in Ghana, Benin or Nigeria, which he deposes is the source of their “wealth”. The first respondent deposes to placing a total of USD525,000 with Mr Patel, the money remitter (page 627). The respondents depose to a failed transfer by Mr Patel (in Ghana) to the first respondent in the sum of $150,000 (page 627).

16      There is no documentation that the first respondent has deposed to about his records of the transactions with Mr Patel.  There are no responses from Mr Patel concerning the USD150,000 transfer referred to by the first respondent in the papers.

17 The examination procedure in an unexplained wealth declaration and subsequent restraining order, is a necessary procedure to facilitate the discharge of the Commissioner of the Australian Federal Police’s duties and function as the responsible authority under the Act. I find that it is in the interests of justice that the examination of the respondents takes place before the application to revoke the unexplained wealth order and the restraining order.

18      In forming this finding, I have taken into account the following factors:

(a)The respondents are in the best position to inform the facts pertinent to an assessment of how the wealth was obtained;

(b)The examinations of the respondents will inform the investigations into the process to determine the respondents’ applications for revocation;

(c)The merits of the application to revoke the restraining order will be further informed as a result of the examination of the respondents.  This will advance the interests of justice to both the respondents and the community;

(d)I accept there is a proper basis for the suspicions outlined in Mr Scott’s affidavit for the application for a restraining order to be made.

19      I reject the submission that full disclosure was not made before Judge Murphy by the applicant on 15 March 2016.

Order

20      I order the applications made by the respondents dated 12 April 2016 and 29 November 2016 be dismissed.

21      I will hear the parties on costs.

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