Commissioner of the Australian Federal Police v Dickson (No.3)
[2016] NSWSC 564
•6 May 2016
|
New South Wales |
Case Name: | Commissioner of the Australian Federal Police v Dickson (No.3) |
Medium Neutral Citation: | [2016] NSWSC 564 |
Hearing Date(s): | 2 May 2016; 3 May 2016 |
Decision Date: | 6 May 2016 |
Jurisdiction: | Common Law |
Before: | Adamson J |
Decision: | (1) Dismiss the first defendant’s notice of motion for exclusion of items 1, 2, 3, 4, 9a, 9b, 11, 13, 14 and 28 from forfeiture under the Proceeds of Crime Act 2002 (Cth). |
Catchwords: | CRIMINAL ASSETS – proceeds of crime – application for exclusion from forfeiture – onus of proof on applicant to satisfy the Court of elements in s 94(1) of Proceeds of Crime Act 2004 (Cth) in relation to each item of property sought to be excluded – concession made by applicant that some items of property funded by proceeds of illegal activity – applicant’s onus not discharged in relation to any item of property – application dismissed |
Legislation Cited: | Criminal Code Act 1995 (Cth), Schedule, ss 11.5, 135.4, 400.3 |
Cases Cited: | Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 |
Category: | Principal judgment |
Parties: | Commissioner of the Australian Federal Police (Plaintiff) |
Representation: | Counsel: |
File Number(s): | 2012/108692 |
Judgment
Introduction
Anthony Dickson seeks an exclusion order under s 94(1) of the Proceeds of Crime Act 2002 (Cth) (the Act) in respect of certain items of property, including a house in Northbridge, two Rolls Royce motor vehicles, a sports yacht and funds in various bank accounts. All references in these reasons to legislative provisions are to the Act unless otherwise stated.
On 5 April 2012 McCallum J made restraining orders in respect of certain items of property the subject of Mr Dickson’s application. On 26 April 2012, Beech-Jones J made orders restraining certain bank accounts, which are also the subject of Mr Dickson’s application. The effect of the Act is that if an exclusion order is made the items of property will not be forfeited to the Commonwealth. If no such order is made in respect of an item which has been the subject of a restraining order it will automatically be forfeited to the Commonwealth on 19 May 2016 (this being the date specified in the most recent extension order).
On 20 March 2015, Mr Dickson was convicted and sentenced following trial by jury for offences contrary to:
(1)s 135.4(5) of the Schedule to the Criminal Code Act 1995 (Cth) (dishonestly causing a loss, or to dishonestly cause a risk of loss, to a third person, namely the Commonwealth, knowing or believing the loss would occur or where there was a substantial risk of the loss occurring); and
(2)ss 11.5(1) and 400.3(1) of the Schedule to the Criminal Code Act 1995 (Cth) (conspiring with Mr Issakidis (the second defendant) to deal with property of a value of $1m or more believing it to be the proceeds of crime).
These offences are both “serious offences” within the definition in s 338 of the Act.
Relevant legislative provisions
Part 2-3 of the Act provides, in substance, that if a person is convicted of a serious offence, property that is subject to a restraining order relating to the offence is forfeited to the Commonwealth unless the property is excluded from forfeiture.
Section 92 relevantly provides that property which has been the subject of a restraining order is forfeited to the Commonwealth within six months of the conviction day, unless an extension order has been made under s 93. Section 93 provides that an order for extension cannot extend beyond 15 months from the start of the conviction day for the relevant conviction.
Section 94 relevantly provides:
Excluding property from forfeiture under this Part
(1) The court that made a *restraining order referred to in paragraph 92(1)(b) must make an order excluding particular property from forfeiture under this Part if:
(a) a person (the applicant) has applied for an order under this section; and
(b) the court is satisfied that the applicant has an *interest in property covered by the restraining order; and
(d) a person has been convicted of a *serious offence to which the restraining order relates; and
(e) the court is satisfied that the applicant’s interest in the property is neither *proceeds of *unlawful activity nor an *instrument of unlawful activity; and
(f) the court is satisfied that the applicant’s interest in the property was lawfully acquired.
. . .
(6) The application must not be heard until the *responsible authority has had a reasonable opportunity to conduct *examinations in relation to the application.
Section 180A of the Act provides:
Examination orders relating to applications for exclusion from forfeiture
(1) If an application for an order under section 73 or 94 for an * interest in property to be excluded from forfeiture is made, the court to which the application is made may make an order (an examination order) for the * examination of any person including:
(a) a person who has or claims an interest in the property; or
(b) the spouse or * de facto partner of a person referred to in paragraph (a);
about the * affairs of a person referred to in paragraph (a) or (b).
(2) The * examination order ceases to have effect when:
(a) the application is withdrawn; or
(b) the court makes a decision on the application.
The applicant for an exclusion order, in this case Mr Dickson, bears the onus of proving the grounds for making the order. The relevant standard of proof is the balance of probabilities: s 317.
Chapter 6 defines important concepts in the Act and relevantly provides:
329 Meaning of proceeds and instrument
(1) Property is proceeds of an offence if:
(a) it is wholly derived or realised, whether directly or indirectly, from the commission of the offence; or
(b) it is partly derived or realised, whether directly or indirectly, from the commission of the offence;
whether the property is situated within or outside *Australia.
(2) Property is an instrument of an offence if:
(a) the property is used in, or in connection with, the commission of an offence; or
(b) 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.
(3) Property can be proceeds of an offence or an instrument of an offence even if no person has been convicted of the offence.
(4) Proceeds or an instrument of an *unlawful activity means proceeds or an instrument of the offence constituted by the act or omission that constitutes the unlawful activity.
330 When property becomes, remains and ceases to be proceeds or an instrument
(1) Property becomes *proceeds of an offence if it is:
(a) wholly or partly derived or realised from a disposal or other dealing with proceeds of the offence; or
(b) wholly or partly acquired using proceeds of the offence;
including because of a previous application of this section.
(2) Property becomes an *instrument of an offence if it is:
(a) wholly or partly derived or realised from the disposal or other dealing with an instrument of the offence; or
(b) wholly or partly acquired using an instrument of the offence;
including because of a previous application of this section.
(3) Property remains *proceeds of an offence or an *instrument of an offence even if:
(a) it is credited to an *account; or
(b) it is disposed of or otherwise dealt with.
. . .
(6) Property becomes, remains or ceases to be *proceeds of an *unlawful activity, or an *instrument of an unlawful activity, if the property becomes, remains or ceases to be proceeds of the offence, or an instrument of the offence, constituted by the act or omission that constitutes the unlawful activity.
336 Meaning of derived
A reference to a person having derived proceeds, a benefit, literary proceeds or wealth includes a reference to:
(a) the person; or
(b) another person at the request or direction of the first person;
having derived the proceeds, benefit, literary proceeds or wealth directly or indirectly.
336A Meaning of property or wealth being lawfully acquired
For the purposes of this Act, property or wealth is lawfully acquired only if:
(a) the property or wealth was lawfully acquired; and
(b) the consideration given for the property or wealth was lawfully acquired.
Section 338 provides, relevantly:
unlawful activity means an act or omission that constitutes:
(a) an offence against a law of the Commonwealth; or
(b) an offence against a law of a State or Territory; or
(c) an offence against a law of a foreign country.
A responsible authority (in this case the Commissioner) seeking to forfeit property pursuant to s 92 must, before the end of the 6-month period following the conviction day, take reasonable steps to give written notice to any person who has or claims, or who the authority reasonably believes may have, an interest in the item of property: s 92A. It has not been suggested that notice was not given to any person who might fall into any of those categories. Section 93(4) requires the responsible authority to give notice to such persons if the Court makes an extension order. The Commissioner has established that such notice was given following the extension orders made by this Court (the most recent of these having been made by consent by Schmidt J on 8 December 2015).
The issues for determination
It is common ground that Mr Dickson has established the matters required to be proved in s 94(1)(a) (that he has applied for an exclusion from forfeiture order) and s 94(1)(d) (that he has been convicted of a serious offence to which the restraining order relates). The remaining matters to be proved by him on the balance of probabilities are, in respect of each item of property, that he has an interest in the property (s 94(1)(b)); that it was neither the proceeds of an unlawful activity nor an instrument of unlawful activity (s 94(1)(e)); and that it was lawfully acquired (s 94(1)(f)).
The facts
Before addressing the three issues referred to above, by reference to each item of property, I propose to set out a narrative of general facts (which extend beyond any single item of property the subject of the exclusion application) as well as a summary of the evidence of Mr Dickson’s income and that of his former wife, Dagmar Maxianova, the fourth defendant. This narrative will include, where relevant, details of versions given by Mr Dickson at different points of time to explain his situation and the transactions concerning the various items of property.
The reason for setting out these matters in this way is that Mr Dickson’s evidence has not been consistent. His credibility is an issue in the proceedings, although he made a substantial concession (which I accept) in his cross-examination which has the result that he cannot prove the matters in s 94(1)(e) and (f), in respect of which he bears the onus, for almost all of the items for which he claims exclusion from forfeiture.
On 26 October 2006, a payment of $14.3m was made from an account with the Australia and New Zealand Banking Group Ltd (ANZ) to “Neumedix account #1” at the National Australia Bank (NAB) held by Neumedix Health Australia Pty Ltd (NHA). This was the first of several payments from trusts which Mr Dickson referred to as “the ANZ Trusts”. These payments were part of the illegal activity which led to Mr Dickson’s convictions.
In February 2010 the Australian Tax Office (ATO) began a tax audit of NHA in which Mr Dickson was heavily involved and in respect of which he answered various questions posed by the ATO.
By summons filed on 5 April 2012 the Commissioner commenced these proceedings. The relief claimed included an order that certain property be restrained pursuant to s 18. As referred to above, restraining orders were made on 5 April 2012 and 26 April 2012. Mr Tully became Mr Dickson’s solicitor on the record shortly after service of the summons. Apart from a brief period in 2015 (during which he ceased to act) he has remained the solicitor on the record. His firm was also on the record for Mr Dickson’s criminal trial.
On 24 April 2012 the Australian Federal Police (AFP) seized documents from the property in Coolawin Road, Northbridge (the Northbridge Property) pursuant to a warrant.
On 30 April 2014 Mr Dickson created a website for Rand Stone Consulting. Prior to that time it had had no website. Rand Stone Consulting is significant because of Mr Dickson’s evidence that he was employed by the firm, which remunerated him by acquiring some items of property for his use and benefit.
Mr Dickson was arrested in early May 2012.
The criminal trial
On 21 August 2014 Mr Dickson was arraigned on an indictment that contained six counts. Counts 2-5 were alternative counts to the first count.
The flow charts tendered in the criminal trial to show the movement of monies
In the course of the criminal trial various charts and explanatory notes were tendered by the Crown as part of the prosecution case against Mr Dickson.
The content of the charts and explanatory notes
The first of the charts, entitled “Tracing Transactions 1 and 2”, showed that a total of $18,550,000 was transferred from an account at the ANZ to Neumedix account #1 at the NAB. The first payment, of $14.3m, is shown as having been made on 26 October 2006; the second, of $4.25m, is shown as having been made on 28 February 2007. The balance of the chart showed the movement of these funds to and through various entities and through various bank accounts, the detail of which is not material for present purposes. There are references to accounts in the names of “Dampier” and “Intrepid”. The full corporate names of these entities are not included in the exhibit, but they appear from the evidence relied upon by the Commissioner which will be addressed in more detail below.
The explanatory notes to “Tracing Transactions 1 and 2” include the following:
“This chart displays the first two payments received by Neumedix from Thistle and Walter Unit Trusts respectively and are referred to as Transactions 1 and 2. The total amount of these two payments was $18,550,000.”
The second of the charts, entitled “Tracing Transactions 3, 4 and 5”, showed the following transfers from an account at the ANZ Bank to Neumedix account #1 at the NAB: $14.3m (made on 29 February 2008); $4.25m (made on 30 June 2008); and $26.615m (made on 28 November 2008). The balance of the chart showed the movement of these funds to and through various entities and through various bank accounts, the detail of which is not material for present purposes.
The explanatory notes to “Tracing Transactions 3, 4 and 5” include the following:
“2. This chart displays payments 3, 4 and 5 received by Neumedix from Thistle, Walter and Phosco Unit Trusts respectively. The total amount of these three payments was $45,165,000;
3. Figures used for Transactions 3, 4 and 5 are the deposited amounts into Neumedix Account #1- all other figures on the chart reflect the withdrawn amounts from the relevant account unless otherwise stated;”
Mr Dickson’s evidence in his criminal trial
Mr Dickson gave evidence in the criminal trial which he accepted (in his evidence before me) was accurately summarised by Beech-Jones J in the remarks on sentence as follows:
“[39] In his evidence the offender told the jury that throughout these events, he was an employee of Rand Stone Private Equity Partnership (“Randstone”). He said that Rand Stone was a consultant to an entity known as the “HFAC Harmony Biotechnology Private Equity Partnership” (“HFAC”), with HFAC standing for ‘Health for All Children.’ The offender said HFAC was a Cayman Islands based private equity partnership that was originally formed between two wealthy entrepreneurs a number of years ago, and that it invests in medical technology (and similar initiatives) designed to improve the health of all children worldwide.
[40] The offender said that his arrangement with HFAC was that he would act as its ‘steward’ for various medical technologies and that Athena acquired intellectual property rights for the three technologies as the undisclosed agent for HFAC. The offender said that the recipient of funds was NHA [NeuMedix Health Australia], Dampier Finance Asia Pacific Ltd, (“Dampier Finance”), was HFAC’s nominated receiving agent for the payments of the amounts owing by NHA under the three assignment agreements with Athena referred to previously, and that the movement of funds from NHA overseas which I will describe were simply NHA meeting its obligation under those agreements.”
The jury’s verdicts
On 22 December 2014 the jury returned verdicts of guilty with respect to the first and sixth counts. Mr Dickson has been incarcerated since that date.
The conviction and the remarks on sentence
The order for conviction was made on 20 March 2015 before Beech-Jones J passed sentence. In the remarks on sentence, his Honour outlined the financial transactions that gave rise to the convictions. By reason of s 91 of the Evidence Act 1995 (NSW), the findings of fact made by his Honour cannot be used as a basis for a factual finding in these proceedings. Further, a certificate of conviction under s 178 of the Evidence Act does not establish the truth of the facts on which the conviction is based: Steele v Mirror Newspapers Ltd [1974] 2 NSWLR 348 at 378. Accordingly, I can have regard to only those of Beech-Jones J’s findings which Mr Dickson has admitted were correct.
Events following the criminal trial
As a result of the order for conviction on 20 March 2015, the automatic forfeiture date, under s 92, was 19 September 2015. On 10 August 2015 Mr Dickson applied for an extension of this date. An extension order was made by consent by McCallum J on 25 August 2015 which had the effect of extending the date to 20 December 2015.
On 30 November 2015 Mr Dickson reviewed copies of the documents that had been seized by the AFP. These documents comprised 12,000 pages. He has not relied on any of those documents in support of his application for an exclusion order.
Mr Dickson’s application for exclusion from forfeiture
By notice of motion filed on 1 December 2015, Mr Dickson sought exclusion from forfeiture of the following assets:
| Item No | Description |
| 1 | Rolls Royce Phantom motor vehicle (AJD1) |
| 2 | Riviera 4400 Sports Yacht, registration 4444N |
| 3 | The surplus sale proceeds of the Morningside Shopping Centre held by Official Trustee in Bankruptcy |
| 4 | Land at Ipswich purchased by Bristol Wattles Properties Pty Ltd |
| 9a | 4 Coolawin Rd, Northbridge (fee simple) |
| 9b | 4 Coolawin Rd, Northbridge (registered mortgage) |
| 11 | 2010 Rolls Royce Ghost motor vehicle (ADJ2) |
| 13 | Funds in Bank of NZ account in name of Ms Maxianova |
| 14 | Funds in Bank of NZ account in name of Ms Maxianova |
| 28 | Funds formerly held in the UAE Bank Accounts transferred to Official Trustee in Bankruptcy |
Mr Dickson’s affidavit in support of his application
On 1 December 2015 Mr Dickson swore an affidavit in support of his present application. At that time Mr Tully was his solicitor on the record (having ceased briefly by notice dated June 2015). Mr Dickson relevantly deposed as follows:
“[Item 1] This car was substantially funded by the trade-in of another car – Rolls Royce sedan purchased by me several years prior to the payment of any funds from the ANZ Bank trusts. I recall approximately an additional $300,000 was needed to fund the purchase of this car – which was purchased for approximately $1,100,000. So $800,000 was not sourced from ANZ trust distribution money. I recall that the $300,000 was part of my remuneration from my employment contract with Rand Stone Consulting (my full time employer at the time) and I was provided with a “car fringe benefit” under the Australian Fringe Benefits Tax Act regime.
…
[Item 2] This boat was financed by my employer Rand Stone Consulting and was provided to me as a loan fringe benefit under the Fringe Benefit Tax Act Regime.
…
[Item 3] This property was purchased with funds sourced from transactions from an overseas source before August 2006 – the first payment of funds from the ANZ Bank. … Further a loan of $7 million was borrowed from the NAB bank sometime in 2010 or 2011. Clearly $7 million of the value of this asset cannot be sourced from the ANZ Bank trusts.
[Item 4] This property was funded with the $7 million loan from the NAB bank and other funds not traceable to the ANZ Bank trusts.
…
[Items 9a] This property in Northbridge was purchased in February 2005 – 2.5 [sic, 1.5] years before August 2006 ANZ Bank trust first case distributions. This property was funded from non-Australian company (New Zealand Company: Dampier Finance FX Strategies Limited as Mortgagee) with no association to the NeuMedix Health Australasia Pty Ltd (the company that may have claimed false tax deductions following the conspiracy in Count 1 of the Indictment, referred to above) nor ANZ Bank. The property was acquired by Ms Dagmar Maxianova – my ex-wife. The property was purchased with a loan in February 2005 and supported by an unregistered mortgage. A registered mortgage and loan was lodged with the NSW Land Office in relation to this property on 10 May 2010. No funds were ever drawn down or advanced under this loan (supported by the registered mortgage Item 9b).
…
[Item 9b] No funds were drawn down under the loan associated with this mortgage. This mortgage has no value as no money was advanced under the loan associated with the mortgage.
…
[Item 11] This car was funded from the trade-in of a Porsche and prior to that an Aston Martin. The prior two cars were purchased prior to the receipt of ANZ trust funds. The balance of funding was provided by my employer – Rand Stone Consulting (UK based Management Consulting firm).
[Items 13, 14 and 28] I believe that significant amounts of these funds were not sourced from the ANZ Bank trust distributions. There were substantial other sources of funds contributed to these bank accounts – which can be demonstrated from the bank statements of relevant companies.”
On 8 December 2015, Schmidt J made orders by consent extending the automatic forfeiture time to 19 May 2016. Her Honour also ordered that Mr Dickson be examined pursuant to s 180A of the Act and the Court noted that the intention was that the examination would occur on or before 31 March 2016, before the Commissioner was required to file the evidence on which he sought to rely in opposition to the application that certain property be excluded from forfeiture. A direction was also made by consent that required Mr Dickson to serve any further evidence in support of his motion for exclusion from forfeiture by 22 February 2016. Notwithstanding the direction, he did not serve any further evidence (until flow charts were tendered on 2 May 2016, being the first day of the hearing before me).
On 18 February 2016, an examination notice was issued to Mr Dickson in accordance with ss 183 and 185(2) of the Act requiring his attendance on 15 April 2016 for examination in the Administrative Appeals Tribunal (AAT) before Senior Member Lazanas, in her capacity as an approved examiner under the Act. Documents were also required to be produced, including any documents relating to any interest Mr Dickson might have in any of the items of property in respect of which he claimed an exclusion from forfeiture.
The examination of Mr Dickson in the AAT on 15 April 2016
Mr Dickson was examined on 15 April 2016 and a transcript was taken, which is in evidence. He did not produce any documents in answer to the notice.
In the course of the examination Mr Dickson was asked to name the principals of Rand Stone Consulting. He was unable to identify a single one, although he said (at one stage) that he had worked for the firm from the time he stopped working for Ernst & Young in July 2004 until the time of his arrest in early May 2012. He said that he was employed by the firm and was remunerated on an “incentive plan”. He said that, although he did not receive money per se from Rand Stone Consulting, lines of credit (which he referred to as “fringe benefits”) were made available to him by the firm. He could not recall the limit of the lines of credit. Ultimately, he said Rand Stone Consulting drew down between $2.5m and $3m between 2007 and 2010 and applied the funds as he directed.
In his AAT examination, Mr Dickson gave the following evidence about the period after he left Ernst & Young:
"Q. Now, Mr Dickson, you left working for Ernst & Young in 2004. Is that correct?
A. Yes.
Q. Can you remember what month you left Ernst & Young?
A. I think it was 30 June. It was about 30 June.
Q. What were the circumstances that led you to leaving Ernst & Young?
A. I had a contract that expired on that date. They wanted to renew the contract, and I wanted to set up NeuMedix and save lives. I wanted a change of career."
Although Mr Dickson mentioned that he had done work for a mining company, Admiralty Resources NL, he did not mention, at this point of his examination, that Rand Stone Consulting became his employer after he stopped working for Ernst & Young.
Mr Dickson was asked the following questions and gave the following answers concerning the Northbridge Property (which are numbered for ease of reference, although the numbering does not appear in the transcript):
“1. What grounds do you rely on to exclude the [Northbridge Property] from forfeiture?---Is that a question that should be dealt with in this examination – the things that I – a legal action I might take in the future? Is that something that I should be examined on?
2. Can you answer the question, Mr Dickson?---Well, I – I haven’t formalised the grounds on which I will be making that claim in the future. It’s a hypothetical question what legal strategy I will be adopting in the future – I’m undecided.
…
3. Now, in relation to the Northbridge property, you have said in your answer that you have an interest in that property by reason of the fact that you were married to Ms Maxianova who is the registered owner of the property. Correct?---That is my understanding of at least one of the reasons why I would say that there’s an interest in that property, yes.
4. And now I am asking you directly to articulate what other basis you rely upon to assert an interest in that property?---I’m not aware of any other grounds at this point in time that I will be raising in that future court case. I cannot tell you with certainty what grounds I will be raising in the future as to what interest I have when that – I’m still formulating my analysis of my interest in that property.
5. Do you say that you provided any of the funds that went to acquiring the property?---I can’t recall.
6. You can’t recall whether you say that or not or you can’t recall whether you---?---I can’t recall whether I contributed money to purchase that property.
7. Do you recollect that $3.3m towards the $4.6m purchase price was paid into Ms Maxianova’s account from one of the Hong Kong companies associated with your brother, John Dickson?---I can’t recall.
…
8. Mr Dickson, I am going to ask you this question one more time. Did you provide any of the funds that went towards the purchase of the [Northbridge Property]?---And I’ll answer it again one more time. I cannot recall.
9. You have no recollection if any part of the $4.6m was money that you contributed?---I’ve answered that question. I cannot recall.
10. What was your understanding---?--- I have no recollection about whether I put money in or – and so forth. I cannot recall.
11. What was your understanding of where Ms Maxianova obtained the $4.6m to acquire that property?---Plus stamp duty of about another 300, so it was up around the $5m mark. I – I can’t recall the particulars of where – where it came from. I’d like to give you precise answers, but I would like to give you precise – precise answers, so I cannot tell you where it came from. I know it didn’t come from the ANZ transactions that – the subject of my conviction was many years before that, so it came from somewhere else other than that, yes.”
In his examination Mr Dickson said that, after his arrest, his then wife, Ms Maxianova, left Australia with their daughter Natalia, who was born in about 2010. He asserted that he could not recall any details of financial assistance he had given to Ms Maxianova or Natalia. He gave evidence in the examination that he lived in the Northbridge Property until his arrest and that, after Ms Maxianova left to return to Bratislava, his new girlfriend, Monica, moved in. According to Mr Dickson’s evidence in his AAT examination, she continues to reside there.
The hearing of Mr Dickson’s application for exclusion from forfeiture
Mr Dickson’s evidence
Mr Dickson bears the onus of establishing the matters in s 94. His evidence comprised: his affidavit; his oral evidence; and the flow charts which had been tendered in the prosecution case in the criminal trial, referred to above.
The first mention of the Aslan discretionary trust
When Mr Dickson was called to give evidence, Mr Siafakas, who appeared on his behalf, sought leave to adduce further evidence in chief by amending [50] of his affidavit (set out above, relating to item 9a, the Northbridge Property) to delete the reference to “Dampier Finance FX Strategies Ltd” and substitute “Aslan discretionary trust”. In cross-examination, Mr Dickson agreed that he had not previously mentioned the Aslan discretionary trust, either in his earlier affidavit sworn in August 2015, in his affidavit of 1 December 2015, or in the examination on 15 April 2016 in the AAT.
Mr Dickson did not tender any documentary evidence apart from the flow charts referred to below. There were no business records to support any of his assertions. In particular there was not a single document to corroborate his evidence that the Aslan discretionary trust had paid for the Northbridge Property. Indeed, the Commissioner’s evidence, which is addressed in more detail below by reference to each item of property, establishes that the funds for the purchase of the Northbridge Property came from Intrepid Finance International Ltd.
Ms Cheeseman SC, who appeared with Mr Conde for the Commissioner, cross-examined Mr Dickson about his failure to refer to the Aslan discretionary trust in his examination in the AAT. Rather than paraphrase his evidence, I propose to set out the following exchange in full since it illustrates the way in which much of Mr Dickson’s evidence was given.
Q. Mr Dickson, I'm going to ask you to confine your answers to the questions I'm asking you. As you sit there today, are you able to say to the Court whether you have referred to the Aslan discretionary trust before, in the course of the examination before the senior member, as the party that funded the acquisition of the Northbridge home?
A. Well, I'll have to answer that question clearly and honestly. That day was a blur. I'd hardly got any sleep that night. I'd had an attempted murder made on my life a week before that. I had been put in a cell the night before, at 10pm, with an ice addict, who was on ice, who was going frantic all night. I didn't sleep at all. I got to the examination, and I was completely groggy, and I think anyone that was there saw that. So whether I referred to the Aslan trust or not, discretionary trust, I cannot recall, I'm afraid.
The acquisition of the Northbridge Property
Mr Dickson was cross-examined about the answers given in the course of the examination in the AAT, including those set out above. He confirmed the truthfulness of his answers in [3], [4] and [11] above. As to [5], [6], [8], [9] and [10] above, he said that he had thought about it since and was now confident that he had not provided any funds for the acquisition of the Northbridge Property. As to [7] Mr Dickson said that he did not think that the money ever actually went into Ms Maxianova’s account, but rather “would have been transferred directly into the Mallesons trust account”. Mallesons Stephen Jacques (Mallesons) were the firm of solicitors who acted for Ms Maxianova on the purchase of the Northbridge Property.
The ambit of the illegal activity and the veracity of the flow charts
On several occasions in the course of his evidence in the present proceedings Mr Dickson referred to the “flow charts” as setting out relevant dates and transactions. For example in his cross-examination the following exchange occurred:
Q. And what's your answer in relation to the first payment being in August 2006, the first cash distributions? It's a phrase you use repeatedly.
A. Yes, it was sometime late in 2006, and if I could look at the flow charts that I agreed with the AFP, I could tell you the precise date.
In the following passage Mr Dickson confirmed the veracity of the flow charts which were ultimately tendered on his behalf:
I have the big spreadsheets prepared by the AFP, that I agreed to during my trial, that go through every cash flow that followed from the ANZ trusts. If I could refer to that, I could give you the precise date of every payment to the ANZ trust.
In his cross-examination, Mr Dickson admitted that in 2006 he was engaged in discussions with the ANZ on behalf of NHA which led to arrangements which he described as “inertia funding” through trusts. He agreed that the clients of the ANZ Trust arrangement which involved NHA were Incitec, Bluescope and Gunns. He agreed that the arrangements with the ANZ which he set up through corporate vehicles, including NHA, formed part of the factual context for the criminal charges of which he was convicted.
Mr Dickson’s income after 30 June 2004 when he left Ernst & Young
In cross-examination Mr Dickson resiled from the answers set out above which he had given in his examination in the AAT as to the reason he had left Ernst & Young in 2004 (“to set up Neumedix and save lives”). He was reminded of evidence he had given in his AAT examination that he had done some work for a mining company known as Admiralty Resources NL and that he had been unable to recall what his remuneration was.
He confirmed the veracity of his affidavit evidence about the source of funds for item 1 (the Rolls Royce phantom) set out above. He disagreed that the best evidence of what income he had received from his employment with Rand Stone Consulting was what he put in his tax returns. He gave evidence that, although he had specifically referred to the “Australian Fringe Benefits Tax Act Regime”, he did not accept that his remuneration would be subject to fringe benefits tax. The following exchange ensued:
Q. Why do you refer to it being under the Australian Fringe Benefits Tax Act Regime then?
A. Because it would still be a - an Australian fringe benefit, but it's not - it's not subject to Australian Fringe Benefits Tax. It's the way the rules work. Is it worthwhile mentioning to the Court that I've got a Masters in Law specialising in tax? So I think we can‑‑
Q. Well, you've just done it, Mr Dickson. Excuse me for a minute. Your tax return would identify your employer would it not?
A. My tax return would identify - if it gave rise to Australian source income, yes.
Mr Dickson accepted that he had never identified in his Australian tax returns that he had received a fringe benefit from Rand Stone Consulting for the acquisition of various motor vehicles and a boat in Australia. He also agreed that he had not referred to Rand Stone Consulting in his AAT examination when he was first asked about what he had done when he left Ernst & Young (when he confined his answer to a reference to Admiralty Resources NL). He said in these proceedings that his formal contract did not start with Rand Stone Consulting until June 2005. However he adhered to his evidence in the AAT examination that he had worked at Rand Stone Consulting as soon as he left Ernst & Young (from July 2004) until he was arrested (in May 2012).
Mr Dickson confirmed the veracity of his evidence in the AAT examination that he had not been remunerated by any payments when he was working for Rand Stone Consulting but that lines of credit had been made available to him.
Towards the end of his cross-examination, Mr Dickson made a substantial concession which affects his application for exclusion of all items apart from items 9a and 9b, as follows:
Q. You accept, don't you, that all the items of property in respect of which you bring an exclusion application - except items 9a and 9b, relating to the Northbridge property - were acquired after the first part of that $19 million was received, correct?
A. I acknowledge that they were all funded by the ANZ trusts. Does that help?
Q. Yes. And the ANZ trusts you're referring to are the distributions from the four entities, being the two Incitec, one Gunns and - sorry.
A. Bluescope.
. . .
Q. And . . . that gave rise to an income stream from the tax office here, correct?
A. It gave rise to - cash distributions that gave rise to a taxable income stream, yes.
The tender of the flow charts in the present proceedings
After the conclusion of Mr Dickson’s evidence, the flow charts and explanatory notes were tendered on behalf of Mr Dickson and marked as an exhibit in these proceedings. Mr Siafakas informed me that the bundle:
“confirms that a number of the items in question were funded. The sources of funding does come through the ANZ Trust cash distributions.”
Mr Siafakas also confirmed that the purpose of the tender was to provide the Court with further detail of the concession made by Mr Dickson referred to above.
The attempted tender of an employment contract between Mr Dickson and Rand Stone Consulting
After the conclusion of Mr Dickson’s evidence, Mr Siafakas sought to tender a document that purported to be a copy of his employment contract with Rand Stone Consulting. I rejected the tender on the basis that it had not previously been disclosed.
The Commissioner’s evidence
The Commissioner’s evidence comprised two affidavits to which were exhibited documents. Ms Jessep, a solicitor, who swore an affidavit, was not cross-examined. Mr Lee, a member of the AFP who is an authorised officer under the Act, also swore an affidavit. He was cross-examined, but not to any substantial effect. The Commissioner’s evidence largely comprised documents which, save for the following, will be referred to, where relevant, when particular items of property are addressed below.
The Commissioner’s evidence included the tax returns of Mr Dickson and Ms Maxianova, which showed the following:
| Financial Year | Mr Dickson’s declared taxable income | Ms Maxianova’s declared taxable income |
| 2001 | $215,880 | - |
| 2002 | $486,076 | - |
| 2003 | $206,765 | - |
| 2004 | $300,155 | $92 |
| 2005 | $122,513 | $55,606 |
| 2006 | $99,992 | $3,251 |
| 2007 | n/a | -$3,450 |
| 2008 | $171,700 | -$1,653 |
| 2009 | $110,438 | -$3,700 |
| 2010 | $111,011 | - |
Mr Dickson’s credibility
Mr Dickson was an unimpressive witness. He provided no documentary support for his evidence, which was not only self-serving but also, at times, inconsistent with evidence he had given in his AAT examination. He sought to excuse his lack of recollection as reflected by his affidavit evidence and his answers in the course of the AAT examination by giving detailed descriptions of the conditions of his incarceration. In my view, his apparent lack of recollection was tactical rather than real. The excuse would not, in any event, apply to his affidavit, which was prepared at a time when Mr Tully, whose firm had acted for him for some years, was on the record.
Mr Dickson’s failure to recall the name of a single principal of Rand Stone Consulting when he was examined on 15 April 2016 by reason of his fatigue was glaringly improbable, if he had, in fact, worked for that firm for at least seven years. His prevarication about when he started working for Rand Stone Consulting (whether on 1 July 2004 or June 2005) was difficult to follow and suggested that he could not decide which answer would be more beneficial to his interests at any given time.
Mr Dickson’s tendency to take semantic points against the cross-examiner demonstrated his facility with language. Nonetheless he was apparently unable (or unwilling) to respond directly to questions put fairly to him.
His evidence regarding what he contended to be the correct tax treatment of his remuneration from Rand Stone Consulting was particularly telling. On the one hand he denigrated Ms Cheeseman’s questions about his failure to refer to the benefits as fringe benefits in his Australian tax returns, but, on the other, he was unable to explain in any satisfactory way why he himself had referred to the Australian fringe benefit scheme in his affidavit.
Having regard to the directions made about evidence, the preparation and service of his affidavit of 1 December 2015 and his AAT examination on 15 April 2016, I regard the “correction” to [50] of his affidavit in his evidence in chief as a recent invention, designed to obfuscate the provenance of the funds used to purchase of the Northbridge Property. That no mention had previously been made of the Aslan discretionary trust tells strongly against its existence or relevance to the issues to be decided.
Mr Dickson’s evidence in the AAT examination that, as at 15 April 2016, he was still “formulating” his interest in the Northbridge Property showed the extent to which he wished to see the lie of the land before committing himself to a version which he considered to be his best option when the time of the hearing arrived. Whereas, in a criminal trial, an accused cannot, in general, be required to disclose his defence in advance, these proceedings are civil proceedings in respect of which Mr Dickson bears the onus of proof. His circumspection about the way in which he was to put his case on the exclusion application indicated that he did not sufficiently appreciate the distinction between his criminal trial (where he had all the protections of an accusatory system, which include the right to silence), and civil proceedings where he, as applicant, bears the onus of proof on the balance of probabilities.
I regard Mr Dickson’s creation of the website for Rand Stone Consulting on 30 April 2014 as an attempt to give verisimilitude to his references to that firm for the purposes of his then imminent criminal trial (which commenced in August 2014). When Ms Cheeseman put to him that the website was created on the (metaphorical) eve of his criminal trial, he corrected her by insisting that it was not in fact the “eve” (because the criminal trial did not begin until over three months after the creation of the website). His creation of the website was another instance where I gained the impression that Mr Dickson regarded facts as something which he could manipulate for his own purposes, rather than as constituting matters of objective truth.
I am not persuaded that I can accept any of Mr Dickson’s evidence except where it is against interest or corroborated. I accept the substantial concession which he made as to the funds for the acquisition of all items of property in respect of which an exclusion from forfeiture is sought (except items 9a and 9b), which falls into the category of statements against interest. I accept his admissions as to the accuracy of the flow charts and the explanatory notes (which were tendered by the prosecutor in his criminal trial).
The Assets
Items 1, 2, 3, 4, 11, 13, 14 and 28
For completeness I propose to address each item in turn. However, in light of the concession made by Mr Dickson about the source of the funding for all items, except items 9a and 9b, it is largely unnecessary to do so. His concession means that he has not only not proved that any interest he might have in the items of property was neither proceeds of unlawful activity nor the instrument of unlawful activity, but also that he has proved (by his own admission) that the items were proceeds of the unlawful activity. Accordingly, he cannot discharge the onus of proof under s 94(1)(e) and his application for an order excluding those items of property from forfeiture must fail.
Item 1: the Rolls Royce AJD1
Mr Dickson is the registered owner of the Rolls Royce AJD1. Accordingly, he has proved that he has an interest in it within s 94(1)(b). It was purchased on 11 December 2008 (which was after the first date on which cash was distributed pursuant to the ANZ Trusts on 26 October 2006).
As referred to above, Mr Dickson admitted in cross-examination that item 1 was funded with monies from these trusts.
Mr Dickson gave evidence (in his affidavit of 1 December 2015) that the vehicle was “substantially funded” by the trade-in of another car. Although there is a potential inconsistency between these two statements, they can be reconciled on the basis that some of the money for item 1 was obtained through the trade-in of a vehicle and the balance was funded from monies from the ANZ Trusts. For the reasons given above under the heading “Mr Dickson’s credibility” I do not accept Mr Dickson’s affidavit evidence that $300,000 towards the purchase of item 1 was provided by Rand Stone Consulting as a “fringe benefit”.
Because of the definitions in the Act it does not matter whether an asset was wholly or partly derived from the proceeds of an unlawful activity. If the asset was acquired using any amount of proceeds of unlawful activity (no matter how small a proportion this contribution comprised), an exclusion order cannot be made. Accordingly, on the basis of his concession, Mr Dickson has failed to establish the matters in s 94(1)(e) or (f).
Item 2: Riviera sports yacht
Mr Dickson is the registered owner of the Riviera sports yacht (item 2). Accordingly, he has proved that he has an interest in it within s 94(1)(b). It was purchased on 22 March 2012 (which was after the first date on which cash was distributed pursuant to the ANZ Trusts on 26 October 2006).
For the same reasons as given above, I reject his explanation in his affidavit that Rand Stone Consulting funded the purchase as a fringe benefit. As for item 1, the result for item 2 flows from Mr Dickson’s concession. Mr Dickson has failed to establish the matters in s 94(1)(e) or (f).
Item 3: Morningside Shopping Centre sale proceeds
On 5 June 2009 Prima Ultima Pty Ltd (Prima Ultima), as trustee for the Prima Ultima Trust, purchased the freehold property to which these sale proceeds relate for $10.35m. At that time, Mr Dickson was the sole director, shareholder and secretary of Prima Ultima. On 1 December 2009 he resigned as director and secretary, at which time Adrian Compton and Michael Harper became directors. Mr Dickson is not a beneficiary under the Prima Ultima Trust. Prima Ultima was deregistered on 21 September 2015. Until that time it was the third defendant in these proceedings. It did not make any application for an exclusion order prior to its deregistration.
Mr Dickson has failed to establish that he has any interest in item 3 and therefore has failed to discharge the onus of proof regarding s 94(1)(b). In these circumstances it is not necessary to address the Commissioner’s (effectively unchallenged) evidence about the transfers of money at about the time of the acquisition which led to the purchase.
In any event, Mr Dickson’s affidavit evidence as to the acquisition of the shopping centre (set out above) is so vague as to amount to no more than unsubstantiated assertions. His means (as revealed by his tax returns) were patently insufficient to fund the purchase. In any event, because of his general concession referred to above (which I accept), he cannot prove the matters in s 94(1)(e) and (f).
Item 4: Interest in Collingwood Drive property
On 3 March 2011 Bristol Wattle Pty Ltd (Bristol Wattle), the eleventh defendant, purchased this property for $9.075m. Michael Harper is its sole director and secretary. NWOD Projects & Advisory Group Pty Limited is its sole shareholder. Bristol Wattle has not applied for an order excluding this property from forfeiture. Mr Dickson has not established an “interest” in the property for the purposes of s 94(1)(b).
The means of acquisition of this property is covered by Mr Dickson’s general concession referred to above. In these circumstances, he cannot discharge the onus of proving the matters in s 94(1)(e) and (f). In any event, the purchase price was $9.075m. Mr Dickson referred, in his affidavit, to a loan for $7m, which leaves a substantial shortfall, which I infer was met by funds from the ANZ Trusts.
Items 9a and 9b: the Northbridge Property and the registered mortgage
The acquisition of the Northbridge Property in 2005
The Northbridge Property was acquired by Ms Maxianova on 1 March 2005 for $4.6m, pursuant to contracts dated (and presumably exchanged) on 8 February 2005. According to Mr Dickson, the stamp duty was in excess of $300,000 making the total acquisition cost close to $5m. Ms Maxianova’s application for exclusion from forfeiture was dismissed on 2 May 2016 (on the basis that the Commissioner had not had a reasonable opportunity to conduct an examination in relation to her application). She is the sole registered proprietor of this property.
The documentary evidence tendered on behalf of the Commissioner establishes the following.
(1)Mr Dickson and Ms Maxianova were married in Bratislava on 10 July 2004.
(2)Contracts for the purchase of the Northbridge Property were exchanged on 8 February 2005. Although the purchaser nominated on the front page of the contract (signed by the vendor, Paul Marshall) was originally Ms Maxianova, her typed name was ruled through and initialled and Mr Dickson’s name was written in hand and the change initialled. The solicitors for the purchaser were said to be Mallesons.
(3)On 17 February 2005 Mallesons wrote to the Foreign Investment Review Board, relevantly in the following terms:
We act for Dagmar Maxianova (“Purchaser”) in respect of her proposed purchase of residential real estate at 4 Coolawin Road, Northbridge in the State of New South Wales (“Property”) from Paul Harrod Marshall (“Vendor”) for a consideration of $4.6 million. You will see that although the contract for sale notes Anthony James Dickson (Dagmar’s husband) as the purchaser, he has the option to nominate another purchaser under the contract, and has nominated Dagmar, his wife, as sole purchaser of the Property. We enclose a notice under section 26A of the Foreign Acquisitions and Takeovers Act 1975 (“Act”) together with a completed R3 Form.
Dagmar is a citizen of the Slovak Republic but has a temporary visa (class 820) (“spouse visa”). The visa is current until notification of decision on or withdrawal of, Dagmar’s application for partner (residence) visa.
(4)The documents obtained by the Commissioner from the Foreign Investment Review Board included a copy of a remittance advice which recorded that the sum of $3,322,025.54 had been sent by telegraphic transfer from an account at the Hong Kong and Shanghai Banking Corporation Ltd in the name of “Intrepid F I Ltd” [Intrepid Finance International Ltd] to Ms Maxianova on 2 February 2005. I note that the ANZ Trust monies are shown as having passed to this company in the flow charts tendered (although this telegraphic transfer pre-dated the first of such transfers by at least eighteen months).
The respective incomes of Mr Dickson and Ms Maxianova for the relevant period have been set out above. Their combined income is manifestly inadequate to support a loan of the size of the purchase price; in any event, Mr Dickson conceded that he had not contributed to the acquisition of the Northbridge Property. Although Mr Dickson gave evidence in his affidavit that the purchase was made as a result of a loan secured by an unregistered mortgage, he has not produced any documentation to substantiate any such mortgage. Nor was any such document among the documents seized by the AFP pursuant to the warrant that was executed on 24 April 2012 at the Northbridge Property. The evidence, referred to above, established that some of the funds used to purchase the Northbridge Property came from Intrepid Finance International Ltd. Although it is possible that an unregistered mortgage was granted to Intrepid Finance International Ltd to secure these funds, I would not draw that inference on the balance of probabilities in the absence of documents to support it. I am not satisfied that the Northbridge Property was encumbered by a mortgage until the Registered Mortgage was granted in 2010 (referred to below).
Mr Lee’s evidence established that Intrepid Finance International Ltd was a Hong Kong-based company that received funds between about 28 May 2007 and 3 July 2009 amounting to A$67,863,598.40 through the ANZ Trusts depicted on the flow charts. These monies were paid from an account in the name of Dampier Finance Asia Pacific.
The basis of Mr Dickson’s claim for an interest in the Northbridge Property
The only identifiable basis for Mr Dickson’s claim to have an interest in the Northbridge Property for the purposes of s 94(1)(b) is that, according to his evidence, there has been no property settlement between Mr Dickson and Ms Maxianova under the Family Law Act 1975 (Cth). I infer from his evidence that he has not made any such application, although they have been separated for some years. For the reasons given below, Mr Dickson has not established that Ms Maxianova has any equity in the Northbridge Property (once the interests of the registered mortgagee and any other unidentified security holder have been taken into account). Accordingly, he has not proved that she has any interest of any value in the Northbridge Property. Since any interest he might have as a spouse, or former spouse, cannot rise higher than Ms Maxianova’s interest, he has not shown that he has any interest in the Northbridge Property. He has not discharged the onus under s 94(1)(b).
I note that Mr Dickson admitted that he had not contributed to the purchase price of the Northbridge Property. He therefore has no claim to an interest on the basis of the principles in Baumgartner v Baumgartner (1987) 164 CLR 137.
For completeness I propose to address s 94(1)(e) and (f). The Northbridge Property is not covered by the general concession made by Mr Dickson as it was purchased prior to 28 October 2006. Mr Dickson has not discharged his onus of proving that the property was neither proceeds of unlawful activity nor an instrument of unlawful activity. Moreover, the subsequent involvement of Intrepid Finance International Ltd in the unlawful activity associated with Mr Dickson’s convictions is a significant obstruction to proof that the Northbridge Property was lawfully acquired.
The Registered Mortgage granted on 21 April 2010 to Dampier Finance FX Strategies Limited
The Registered Mortgage
The Commissioner’s evidence establishes that on 21 April 2010 Ms Maxianova granted a mortgage over the Northbridge Property in favour of Dampier Finance FX Strategies Limited (a New Zealand company) to secure a loan of JP¥353,602,605, equivalent to approximately $4.1m (the Registered Mortgage). The documents were lodged for registration by Mr Dickson. The terms of the Registered Mortgage refer to a “Governing Document”, which is defined as “Loan Agreement – Coolawin Dampier Finance FX Strategies Ltd as Trustee for Dampier Finance FX Strategies Discretionary Trust and Dagmar Maxianova” dated 21 April 2010 (the Loan Agreement). The terms of the Mortgage are otherwise unexceptional.
The Loan Agreement secured by the Registered Mortgage
The terms of the Loan Agreement are uncommercial. The date for repayment of the loan is the 20th anniversary of the first drawdown date. Clause 2.6.1 provides that no interest will be chargeable on the Facility until the fifth anniversary of the date of execution. Clause 2.6.2 provides that interest thereafter will be at the rate of 2%.
The drawdown notice
The drawdown notice annexed to the Registered Mortgage is addressed to Dampier Finance FX Strategies Ltd as trustee for the Dampier Finance FX Strategies Discretionary Trust. According to the document, Ms Maxianova requested the drawdown of JP¥353,602,605 on 21 April 2010 to “refinance home loan” and indicated that the amount was to be “paid to previous lender”. Although the document appears to be signed by Ms Maxianova, the Commissioner relied on evidence given in the criminal trial by Ms Stegeman, Mr Dickson’s former personal assistant, to the effect that Mr Dickson would often sign his wife’s signature and always used a Mont Blanc fountain pen. She recognised the signature on the document as having been written with such a pen. Although Ms Stegeman purported to witness the signature, it had already been signed when she did so.
Mr Dickson did not address this aspect of the Commissioner’s evidence in his own evidence. It was not put to him in cross-examination that he had signed the drawdown notice. Nonetheless, he had been made aware, by the Commissioner’s evidence, that the Commissioner would be submitting that Ms Maxianova did not sign the drawdown notice herself but that he had signed it instead: see Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1 at 16 per Hunt J.
I am entitled, pursuant to s 183 of the Evidence Act, to examine documents that are in evidence and draw reasonable inferences from them to the extent to which they are admissible: Ocean Marine Mutual Insurance Association (Europe) OV v Jetopay Pty Ltd [2000] FCR 1463; 120 FCR 146 at 151. The signature on the coversheet of the Registered Mortgage (which purports to be that of Ms Maxianova) is markedly different from that which also purports to be hers on the drawdown notice. I draw the inference that the same person did not sign both documents and that Mr Dickson’s failure to address Ms Stegeman’s evidence gives rise to an inference that such evidence would not have assisted his case: Commercial Union Assurance Company of Australia Ltd v Ferrcom Pty Ltd (1991) 22 NSWLR 389 at 418-419, per Handley JA. On the basis of Ms Stegeman’s unchallenged evidence, I infer that Mr Dickson probably signed the drawdown notice in the name of Ms Maxianova.
I note that no application for exclusion has been brought by the registered mortgagee of the Northbridge Property (which is the twelfth defendant in these proceedings).
Whether funds were in fact drawn down under the Registered Mortgage
Mr Dickson’s evidence was that, although the Registered Mortgage was lodged on the title to the Northbridge Property on 10 May 2010, no funds were ever drawn down on the loan. His evidence is inconsistent with the documents referred to above. Nonetheless, for the reasons which follow, I am satisfied that his evidence that no funds were ever drawn down on the loan ought be accepted.
The timing of the grant of the Registered Mortgage is significant for the purposes of s 94(1)(e) and, in particular, to determine whether the Northbridge Property is an instrument of unlawful activity. I am satisfied, on the balance of probabilities, of the following:
(1)Intrepid Finance International Ltd had (by April 2010) received substantial funds as a result of unlawful activity through the ANZ Trusts;
(2)the purpose of the Registered Mortgage was to create the impression (contrary to the fact) that money was actually paid to Intrepid Finance International Ltd to refinance a real mortgage;
(3)it was in Mr Dickson’s interests to have the ATO, which was at the time conducting an audit into NHA, believe that there was a lawful basis for some of the monies held by Intrepid Finance International Ltd;
(4)in reality, no such money was paid to Intrepid Finance International Ltd; and
(5)when he signed the drawdown notice (as Ms Maxianova) and personally lodged the Registered Mortgage, Mr Dickson intended to make use of Ms Maxianova’s registered ownership of the Northbridge Property in, or in connection with, the commission of an offence.
On this basis I am satisfied that the Northbridge Property and the Registered Mortgage were probably instruments of an offence within the meaning of s 329(2).
Conclusion
Mr Dickson’s claim for an exclusion from forfeiture of items 9a and 9b fails as he has not proved the matters in respect of which he bears the onus in s 94(1)(b), (e) or (f).
Item 11: Rolls Royce AJD2
The Rolls Royce AJD2 was acquired on 21 March 2011 and is registered in the name of the seventh defendant, Sydney City Prestige Wholesale Pty Limited (which has not applied for exclusion). Mr Dickson has not established that he has any interest in the property under s 94(1)(b).
As item 11 was purchased after 28 October 2006, it is covered by Mr Dickson’s concession that it was acquired with funds from the ANZ Trusts. Although Mr Dickson’s affidavit evidence was that some of the funds for the purchase of the vehicle were provided by the trade-in of a Porsche and an Aston Martin which had been purchased before 26 October 2006, this is reconcilable with his concession. For the reasons given above, he cannot prove the matters in s 94(1)(e) and (f) if any contribution to the acquisition of the asset was made by proceeds of an unlawful activity. Mr Dickson also gave evidence that this vehicle was paid for by Rand Stone Consulting. For the reasons given above, I do not accept this evidence.
Mr Dickson’s claim for exclusion in respect of item 11 must fail as he has failed to prove any of the matters in s 94(1)(b), (e) and (f).
Items 13, 14 and 28: New Zealand and UAE bank accounts in (or formerly in) the names of Dampier Finance FX Solutions Limited, Meed Incorporated, Esprit de Corps Incorporated and Dampier Finance Group Limited
No application for exclusion is brought by, or on behalf of, Dampier Finance FX Solutions Limited, Meed Incorporated, Esprit de Corps Incorporated or Dampier Finance Group Limited. Mr Dickson has failed to prove that he has any interest in these items as required by s 94(1)(b).
These items are covered by Mr Dickson’s general concession that all property apart from items 9a and 9b were funded with monies from the ANZ Trusts. Accordingly, Mr Dickson cannot prove the matters in s 94(1)(e) or (f).
In any event, even if Mr Dickson’s affidavit evidence that “significant amounts of these funds were not sourced from the ANZ Bank trust distributions”, and that there were “substantial other sources of funds contributed to these bank accounts”, is accepted, this does not assist his application for exclusion. As long as some of the funds from the ANZ Trusts went into these accounts, the application for exclusion must fail as Mr Dickson cannot prove the matters in s 94(1)(e) and (f).
Conclusion
Mr Dickson has failed to make out his claim for exclusion in respect of any of the items identified.
Orders
I made the following orders:
(1)Dismiss the first defendant’s notice of motion for exclusion of items 1, 2, 3, 4, 9a, 9b, 11, 13, 14 and 28 from forfeiture under the Proceeds of Crime Act 2002 (Cth).
(2)Order the first defendant to pay the plaintiff’s costs.
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Key Legal Topics
Areas of Law
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Criminal Law
Legal Concepts
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Proceeds of Crime
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Forfeiture
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Onus of Proof
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Criminal Liability
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