Commissioner of the Australian Federal Police v Dinh
[2013] VSC 110
•14 March 2013
| Do Not Send for Reporting | ||
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
PRACTICE COURT
No. S CI 2013 01226
| IN THE MATTER OF the Proceeds of Crime Act 2002 (Cth) |
| and |
| IN THE MATTER OF property seized on 7 March 2013 and IN THE MATTER Of an application by the Commissioner of the Australian Federal Police |
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JUDGE: | BEACH J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 March 2013 | |
DATE OF JUDGMENT: | 14 March 2013 | |
CASE MAY BE CITED AS: | Commissioner of the Australian Federal Police v Dinh | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 110 | |
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CRIMINAL LAW – Proceeds of crime – Application for restraining order – Ex parte application – Proceeds of Crime Act 2002 (Cth), ss 19 and 24.
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APPEARANCES: | Counsel | Solicitors |
| For the Applicant | Mr A. Hanger | Australian Federal Police Proceeds of Crime Litigation |
HIS HONOUR:
On 7 March 2013, a number of large quantities of cash was seized by the Australian Federal Police. These sums, together with funds currently standing to the credit of a particular bank account, were this morning the subject of an application by the Commissioner of the Australian Federal Police for a restraining order under s 19 of the Proceeds of Crime Act 2002 (Cth).
Section 19 of the Proceeds of Crime Act provides:
“(1) A court with *proceeds jurisdiction must order that:
(a)property must not be disposed of or otherwise dealt with by any person; or
(b)property must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in the order;
if:
(c)a *proceeds of crime authority applies for the order; and
(d)there are reasonable grounds to suspect that the property is:
(i)the *proceeds of a *terrorism offence or any other *indictable offence, a *foreign indictable offence or an *indictable offence of Commonwealth concern (whether or not the identity of the person who committed the offence is known); or
(ii)an *instrument of a *serious offence; and
(e)the application for the order is supported by an affidavit of an *authorised officer stating that the authorised officer suspects that:
(i)in any case—the property is proceeds of the offence; or
(ii)if the offence to which the order relates is a serious offence—the property is an *instrument of the offence;
and including the grounds on which the authorised officer holds the suspicion; and
(f)the court is satisfied that the *authorised officer who made the affidavit holds the suspicion stated in the affidavit on reasonable grounds.
Property that a restraining order may cover
(2)The order must specify, as property that must not be disposed of or otherwise dealt with, the property specified in the application for the order, to the extent that the court is satisfied that there are reasonable grounds to suspect that that property is:
(a)in any case—*proceeds of the offence; or
(b)if the offence to which the order relates is a *serious offence—an *instrument of the offence.
Refusal to make a restraining order
(3)Despite subsection (1), the 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.
Note: A court can also refuse to make a restraining order if the Commonwealth refuses to give an undertaking: see section 21.
Restraining order need not be based on commission of a particular offence
(4) The reasonable grounds referred to in paragraph (1)(d) need not be based on a finding as to the commission of a particular offence.
Risk of property being disposed of etc.
(5) The court must make a *restraining order even if there is no risk of the property being disposed of or otherwise dealt with.”[1]
[1]The asterisked terms in s 19 (as with the rest of the Act) are defined terms in the Act: see s 3 and Chapter 6 of the Act (and in particular, s 338 of the Act).
Section 26 of the Act requires the Court to consider this application “without notice having been given if the responsible authority [the Commissioner] requests the Court to do so”. In this case, the applicant made that request. The request was made on the basis that while the sums seized on 7 March have been secured, there is a relevant apprehension that, if notice of this application was given, the balance currently standing in the bank account to which I have referred would be dissipated.
While s 26(4) of the Act requires the Court to consider the present application without notice having been given, s 26(5) permits the Court “at any time before finally determining the application” to direct the responsible authority (the applicant in this case) to give or publish notice of the application to a specified person or class of persons.[2]
[2]Cf DPP (Cth) v Kamal & Anor (2011) 206 ACrimR 397.
Sub-section (1) of s 19 of the Act requires the Court to make a restraining order if the four conditions set out in paragraphs (c) to (f) of that sub-section have been met. In this case, there can be no doubt that the requirements of paragraph (c) and (e) have been met by the making of the present application with its affidavit in support. Further, the affidavit in support is more than capable of establishing that the requirements of paragraphs (d) and (f) have also been met.
Section 29 of the Act provides for the exclusion of specified interests in property from restraining orders if an application is made under s 30 or 31 and the Court is satisfied that there is a relevant reason for excluding the interest from the order. In the case of a restraining order under s 19, one relevant reason is that the interest in the relevant property is not the proceeds of an indictable offence.
Section 30 of the Act permits an application to exclude property to be made before a restraining order has been made. Section 31 governs applications to exclude property from a restraining order after a restraining order has been made. Whenever an application to exclude property from a restraining order is made, the Act appears to contemplate the applicant for such an exclusion order having to establish a relevant reason for the exclusion. Thus, the scheme of the Act suggests that applications may be made without notice, and granted in circumstances that would then require a person with a relevant interest in the property to establish why that interest should be excluded from the operation of the order. This, in circumstances where if notice was given, a person with a relevant interest might be capable of putting arguments before the Court that one or more of the conditions set out in s 19(1) has not been met.[3]
[3]Most likely paragraph (d) or paragraph (f).
Section 42 of the Act provides that a person who was not notified of the application for a restraining order may apply to the Court to revoke the order. Sub-section (5) of s 42 provides that the Court may revoke the restraining order if satisfied that:
“(a) there are no grounds on which to make the order at the time of considering the application to revoke the order; or
(b) it is otherwise in the interests of justice to do so.”
It might be submitted that the “otherwise in the interests of justice to do so” provision would permit a Court to revoke a restraining order without the applicant for such an order having to carry any onus. That is, it might be possible to contend that a restraining order should be revoked at the suit of an applicant who was not notified before the order was made, by simply establishing that if the matter was heard afresh on the material that was originally available, the original application would not have succeeded.
All of that said, it seems to me at least arguable that a person with a relevant interest in opposing a restraining order is in a worse position (so far as onus is concerned) in seeking to rely upon ss 29, 30, 31 and 42, than they would be the case if they were present before the restraining order was made and could attack the foundations for its making.
I raised with counsel for the applicant this morning this issue and the prospect of making an interim freezing or restraining order outside the operation of the Act. This would obviate the risk of dissipation of the bank account funds, but leave any person with an interest in the property the subject of the present application with the ability to come to Court and contend that no restraining order should be made.
Counsel for the applicant submitted that such a course was contrary to the scheme and intent of the Act. As well as directing me to the text of ss 19, 26, 29, 30,31 and 42 of the Act, counsel also directed me to the principal objects of the Act set out in s 5, and the outline of the Act set out in ss 6 to 11.
There is force in the applicant’s submissions. That is not to say that I accept that there can be no case where it is permissible for the Court to embark upon an application under s 19 without notice, then make an interim freezing or restraining order outside the operation of the Act, and then require notice to be given under s 26(5). However, for present purposes, it is sufficient to say that having regard to the strength of the current application as disclosed in the detailed affidavit material filed in support of it, I was satisfied this morning that the criteria for making an order under ss 19 and 25 of the Act were satisfied. Additionally, having regard to the same matters, I was persuaded to make the restraining order sought without the giving of any notice.
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