Commissioner of the Australian Federal Police v Fitzroy All Pty Ltd
[2015] WASC 320
•28 AUGUST 2015
COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE -v- FITZROY ALL PTY LTD [2015] WASC 320
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 320 | |
| Case No: | CIV:1693/2015 | 31 JULY 2015 | |
| Coram: | MITCHELL J | 28/08/15 | |
| 32 | Judgment Part: | 1 of 1 | |
| Result: | Application transferred to the Supreme Court of Victoria | ||
| B | |||
| PDF Version |
| Parties: | COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE FITZROY ALL PTY LTD |
Catchwords: | Criminal property confiscation Bank account Conducting transactions so as to avoid reporting requirements relating to threshold transactions ('structuring') Dealing with proceeds of crime Proceeds jurisdiction Where account holder controlled from Western Australia and cash deposits made at branches in Victoria Transfer of proceedings |
Legislation: | Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), s 142 Criminal Code (Cth), s 400.9, s 400.13 Jurisdiction of Courts (Crossvesting) Act 1987 (Cth), s 5 Proceeds of Crime Act 2002 (Cth), s 19, s 78, s 314, s 329, s 335 |
Case References: | Ansari v The Queen [2010] HCA 18; (2010) 241 CLR 299 Australian Securities Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1; (2001) 204 CLR 559 Australian Zircon NL v Austpac Resources NL [2010] WASC 166 BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 221 CLR 400 Centurion Trust Co Ltd v Director of Public Prosecutions (WA) [2008] WASCA 6; (2008) 35 WAR 463 Chen v Director of Public Prosecutions (Cth) [2011] NSWCCA 205; (2001) 83 NSWLR 224 Commissioner of the Australian Federal Police v Nguyen [2013] NSWSC 179 Director of Public Prosecutions (Cth) v Fysh [2010] QSC 216; (2010) 240 FLR 247 Director of Public Prosecutions (Cth) v Garcia [2004] QDC 523 Director of Public Prosecutions (Cth) v Ho (Ruling No 16) [2009] VSC 233 Director of Public Prosecutions (Cth) v Studman [2005] NSWSC 824; (2005) 155 A Crim R 515 Equinox Engineering and Installation Pty Ltd v Puffin Installation Services Pte Ltd [2008] WASC 183 Ex parte Commissioner of the Australian Federal Police [2014] WASC 390 Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 George v Rockett (1990) 170 CLR 104 Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4; (2008) 234 CLR 532 He Kaw Teh v The Queen (1985) 157 CLR 523 Hussien v Chong Fook Kam [1970] AC 942 Kingdon v The State of Western Australia [2012] WASCA 74; (2012) 223 A Crim R 449 Milne v The Queen [2014] HCA 4; (2014) 252 CLR 149 Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1 N Joachimson v Swiss Bank Corporation [1921] 3 KB 110 Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266 R v Ansari [2007] NSWCCA 204; (2007) 70 NSWLR 89 R v Lee [2007] NSWCCA 71; (2007) 71 NSWLR 120 Re French Caledonia Travel [2003] NSWSC 1008; (2003) 59 NSWLR 361 Shi v The Queen [2014] NSWCCA 276 Tabe v The Queen [2005] HCA 59; (2005) 225 CLR 418 Vickers v Minister for Business and Consumer Affairs (1982) 43 ALR 389 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Applicant
AND
FITZROY ALL PTY LTD
Respondent
Catchwords:
Criminal property confiscation - Bank account - Conducting transactions so as to avoid reporting requirements relating to threshold transactions ('structuring') - Dealing with proceeds of crime - Proceeds jurisdiction - Where account holder controlled from Western Australia and cash deposits made at branches in Victoria - Transfer of proceedings
Legislation:
Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), s 142
Criminal Code (Cth), s 400.9, s 400.13
Jurisdiction of Courts (Crossvesting) Act 1987 (Cth), s 5
Proceeds of Crime Act 2002 (Cth), s 19, s 78, s 314, s 329, s 335
Result:
Application transferred to the Supreme Court of Victoria
Category: B
Representation:
Counsel:
Applicant : Mr E W L Greaves
Respondent : Mr G W Massey
Solicitors:
Applicant : Australian Federal Police - Proceeds of Crime Litigation
Respondent : Holborn Lenhoff Massey
Case(s) referred to in judgment(s):
Ansari v The Queen [2010] HCA 18; (2010) 241 CLR 299
Australian Securities Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1; (2001) 204 CLR 559
Australian Zircon NL v Austpac Resources NL [2010] WASC 166
BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 221 CLR 400
Centurion Trust Co Ltd v Director of Public Prosecutions (WA) [2008] WASCA 6; (2008) 35 WAR 463
Chen v Director of Public Prosecutions (Cth) [2011] NSWCCA 205; (2001) 83 NSWLR 224
Commissioner of the Australian Federal Police v Nguyen [2013] NSWSC 179
Director of Public Prosecutions (Cth) v Fysh [2010] QSC 216; (2010) 240 FLR 247
Director of Public Prosecutions (Cth) v Garcia [2004] QDC 523
Director of Public Prosecutions (Cth) v Ho (Ruling No 16) [2009] VSC 233
Director of Public Prosecutions (Cth) v Studman [2005] NSWSC 824; (2005) 155 A Crim R 515
Equinox Engineering and Installation Pty Ltd v Puffin Installation Services Pte Ltd [2008] WASC 183
Ex parte Commissioner of the Australian Federal Police [2014] WASC 390
Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89
George v Rockett (1990) 170 CLR 104
Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4; (2008) 234 CLR 532
He Kaw Teh v The Queen (1985) 157 CLR 523
Hussien v Chong Fook Kam [1970] AC 942
Kingdon v The State of Western Australia [2012] WASCA 74; (2012) 223 A Crim R 449
Milne v The Queen [2014] HCA 4; (2014) 252 CLR 149
Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1
N Joachimson v Swiss Bank Corporation [1921] 3 KB 110
Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266
R v Ansari [2007] NSWCCA 204; (2007) 70 NSWLR 89
R v Lee [2007] NSWCCA 71; (2007) 71 NSWLR 120
Re French Caledonia Travel [2003] NSWSC 1008; (2003) 59 NSWLR 361
Shi v The Queen [2014] NSWCCA 276
Tabe v The Queen [2005] HCA 59; (2005) 225 CLR 418
Vickers v Minister for Business and Consumer Affairs (1982) 43 ALR 389
- MITCHELL J:
Summary
1 The Commissioner of the Australian Federal Police seeks a restraining order under s 19 of the Proceeds of Crime Act 2002 (Cth) (POC Act). The restraining order relates to funds standing to the credit of a bank account held by the defendant (Fitzroy). Of the funds standing to the credit of that account, $599,500 is derived from a series of 72 cash deposits of between $7,000 and $9,500 made between 21 April 2015 and 30 April 2015. The deposits were made at various branches of the National Australia Bank (NAB) in Victoria.
2 The Commissioner suspects that making those deposits constituted offences against s 142(1) of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) (AML Act) and s 400.9(1) of the Criminal Code (Cth). The Commissioner seeks a restraining order in relation to the NAB account on the basis that there are reasonable grounds for suspecting that the funds standing to the credit of that account are proceeds of those indictable offences, as well as on other bases.
3 I am satisfied that the Commissioner has established grounds for the making of a restraining order under s 19 of the POC Act. However, I am not satisfied that this court has 'proceeds jurisdiction', or power to make the order, in this case. As the conduct constituting the suspected offences occurred in Victoria, the relevant courts of that State have proceeds jurisdiction for the restraining order which the Commissioner seeks.
4 In these circumstances, it is in the interests of justice that the Supreme Court of Victoria determines this proceeding. I will make an order transferring the proceeding to that court under s 5(2) of the Jurisdiction of Courts (Cross-vesting) Act 1987 (Cth) (Cross-vesting Act).
5 My reasons for reaching these conclusions are set out below.
Background facts
6 The restraining order sought by the Commissioner is an order, under s 19 of the POC Act, that funds standing to the credit of a NAB account in Fitzroy's name (Account) must not be disposed of or dealt with by any person.
7 Fitzroy was placed into voluntary administration on 9 October 2013. Since 7 February 2014, Fitzroy has been subject to a deed of company arrangement. Giovanni Carrello was the administrator of Fitzroy from 9 October 2013, and has been the deed administrator since 7 February 2013. Mary Anastasiou is the sole director, secretary and shareholder of Fitzroy.
8 Mr Carrello, as administrator of Fitzroy, opened the Account on 11 October 2013. He did this by sending a request for the Account to be opened by email to an officer of NAB.
9 The BSB number for the Account is the identifier for the NAB branch located at Shop 7, 60 Russell Street, Morley in Western Australia (Morley Branch). Two bank statements produced to the court show the 'outlet details' to be the Morley Branch, and one statement shows the 'outlet details' to be a NAB branch in Docklands, Victoria. On 30 July 2015 an NAB officer said that the latter statement likely shows the Docklands branch because it was printed in Victoria.
10 On 4 May 2015, the Account had a credit balance of approximately $811,000. Of that balance, $599,500 resulted from a series of 72 cash deposits, in amounts of between $7,000 and $9,500, made between 21 April 2015 and 30 April 2015. Multiple cash deposits of between $7,000 and $9,500 were made on 21, 22, 23, 24, 27, 29 and 30 April 2015. That is, deposits were made on each working day between Tuesday, 21 April 2015 and Thursday, 30 May 2015. Multiple cash deposits were made at a variety of locations in Victoria on each working day.
11 The deposits were made by presenting the relevant amount of cash and a NAB deposit slip to various NAB branches in Victoria. Copies of the deposit slips have been produced in evidence, and appear to me to have been completed by three different hands.
12 Federal Agent Sams, a member of the Australian Federal Police, spoke to Mr Carrello on 8 May 2015. Mr Carrello said that he expected the administration of the Deed to be complete in July 2015. Mr Carrello said that Fitzroy did not conduct any business and is simply a 'wealth holding company'. Mr Carrello said that he largely, if not all the time, dealt with Ms Anastasiou's son, John Kizon. Mr Carrello said that when payments were required to be made to creditors under the Deed he would let Mr Kizon know, and Mr Kizon would arrange for money to be deposited into the Account. Mr Carrello said that he did not know where the money had been sourced from or how it came to be deposited in the Account, or by whom.
13 On 12 May 2015, the Commissioner filed an originating summons in this court applying for a restraining order that funds standing to the credit of the Account must not be disposed of or dealt with by any person.
Leave to commence proceedings
14 The Commissioner initially sought leave, nunc pro tunc, to bring these proceedings under s 440D of the Corporations Act 2001 (Cth). However, at the hearing on 24 July 2015 counsel for the Commissioner and Fitzroy both submitted that leave was not required to commence these proceedings, and the Commissioner did not pursue the application for leave.
Restraining orders
15 Section 19(1) of the POC Act imposes a duty on a court with 'proceeds jurisdiction' to make a restraining order when specified conditions are satisfied. It provides:
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.
16 Section 329(1) of the POC Act defines the term 'proceeds' in the following manner:
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.
17 For these purposes 'property' means real or personal property of every description, whether situated in Australia or elsewhere and whether tangible or intangible, and includes an interest in any such real or personal property.1
18 Section 19(2) - s 19(5) of the POC Act make the following provisions in relation to the exercise of the court's power to grant a restraining order:
(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.
(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.
(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.
(5) The court must make a *restraining order even if there is no risk of the property being disposed of or otherwise dealt with.
19 Other provisions of the POC Act deal with a variety of ancillary matters regarding the grant and effect of a restraining order.
Authority to make the application
20 One of the conditions for the existence of the power to make a restraining order under s 19 of the POC Act is that a 'proceeds of crime authority applies for the order'.2 This condition is satisfied, as the Commissioner is a 'proceeds of crime authority' as defined in s 338 of the POC Act. The Commissioner has exercised his authority, conferred by s 25 of the POC Act, to apply for a restraining order.
Reasonable grounds to suspect that the property is the proceeds of an indictable offence
21 Before a court can make a restraining order under s 19 of the POC Act, one or more of the circumstances referred to in s 19(1)(d) of the POC Act must exist. One of those circumstances is that there are reasonable grounds to suspect that the property is the proceeds of an indictable offence (whether or not the person who committed the offence is known).
Commissioner's position
22 The Commissioner alleges that there are reasonable grounds to suspect that the funds standing to the credit of the Account are proceeds of the following indictable offences:
1. an offence or offences against s 142(1) of the AML Act by the person or persons who made the deposits into the Account between 21 April 2015 and 30 April 2015;
2. an offence or offences against s 400.9(1) of the Codeby the person or persons who made the deposits into the Account between 21 April 2015 and 30 April 2015; and
3. an offence against s 400.9(1) of the Code by Fitzroy receiving or possessing those funds.
Reasonable grounds for suspicion
23 The question is whether there are reasonable grounds for suspecting that the property was derived or realised from the commission of an offence against the relevant offence-creating provision. The court must consider whether the information before it would be sufficient to induce that suspicion in a reasonable person.3
24 A suspicion that property is derived or realised from the commission of an offence does not require proof of that matter. Suspicion is a state of conjecture or surmise where proof is lacking. A suspicion is more than a mere idle wondering whether property is derived or realised from the commission of an offence; it is positive feeling of actual apprehension or mistrust.4 The material which gives rise to such a suspicion need not be confined to admissible evidence,5 although the Commissioner bears the onus of adducing admissible evidence to prove the existence of that material.6
Property to which the suspicion must relate
25 Under s 329(1) of the POC Act, property will be the proceeds of an offence if it is wholly or partly derived or realised, whether directly or indirectly, from the commission of an offence.
26 'Property' is defined by s 338 of the POC Act to include personal property. In the present case the relevant personal property is the chose in action which Fitzroy has against NAB for payment of the amount standing to Fitzroy's credit in the Account. That is, the property is not cash but a debt which is owed to Fitzroy by NAB in the amount of funds standing to the credit of the Account.7 The contract giving rise to the debt is a single continuing contract, as opposed to a series of contracts made on each deposit.8 Therefore, the debt owed by NAB to Fitzroy is a single obligation to pay the amount standing to the credit of the Account from time to time. It is not a series of debts relating to each deposit credited to the Account.
Offence against s 142(1) of the AML Act
Elements
27 The Commissioner contends that the circumstances in which deposits were made, between 21 - 30 April 2015, provide reasonable grounds for suspecting that the debt is the proceeds of the indictable offence provided for in s 142(1) of the AML Act. Before considering the evidence in support of that contention, I shall address the elements of the offence.
28 Section 43 of the AML Act in effect relevantly requires banks to report 'threshold transactions' which, in the case of the transfer of physical currency, involve transfers of not less than $10,000. A transaction which is not a threshold transaction is a 'non-reportable transaction'.9
29 Section 142(1) of the AML Act creates an offence where a person is, or causes another person to become, a party to two or more non-reportable transactions and, having regard to certain matters:
it would be reasonable to conclude that the first person conducted, or caused the transactions to be conducted, in that manner or form for the sole or dominant purpose of ensuring, or attempting to ensure, that the money or property involved in the transactions was transferred in a manner and form that would not give rise to a threshold transaction that would have been required to have been reported under section 43.
30 Section 142(2) provides for a defence where the defendant:
proves that the first person did not conduct the transactions, or cause the transactions to be conducted, as the case may be, for the sole or dominant purpose of ensuring, or attempting to ensure, that the money or property involved in the transactions was transferred in a manner and form that would not give rise to a threshold transaction that would have been required to have been reported under section 43.
31 An offence against s 142 of the AML Act, being punishable by imprisonment for a period exceeding 12 months, is an indictable offence as defined in s 338 of the POC Act.10
32 In R v Lee,11 a court of five judges considered the elements of s 31(1) of the Financial Transaction Reports Act 1988 (Cth), which is cast in very similar terms to s 142(1) of the AML Act. Spigelman CJ, with whom Bell, Howie and Buddin JJ concurred, held that the offence had two physical elements and two fault elements. On that analysis:
1. The first physical element of the offence is that the person is, or causes another person to become, a party to two or more non-reportable transactions. The fault element attaching to this physical element is intention.12
2. The second physical element is that the transactions do not give rise to a threshold transaction that would have been required to have been reported under s 43 of the AML Act.13 The fault element of the second physical element is that the first person conducted, or caused to be conducted, the transactions for the sole or dominant purpose of ensuring, or attempting to ensure, that the money or property involved in the transactions was transferred in a manner and form that would not give rise to a threshold transaction that would have been required to have been reported under section 43.14
33 An alternative, and perhaps preferable, formulation is that the offence has one physical element (being a party to two or more non-reportable transactions) and one fault element (acting for the relevant sole or dominant purpose). However, for the purposes of my analysis of the present case, it is appropriate that I apply the approach adopted by the New South Wales Court of Criminal Appeal.15 The different approaches do not produce a different outcome in this case in any event.
Grounds to suspect that the offence occurred
34 I am satisfied that there are reasonable grounds to suspect that a person, or two or more persons acting jointly,16 was or were intentionally a party to the 72 cash deposits of between $7,000 and $9,500 made between 21 and 30 April 2015.
35 A person who deposits cash at a bank in an amount of less than $10,000 and requests the relevant amount to be credited to another's bank account will be a party to a non-reportable transaction for these purposes.17
36 The payment of $599,500 by 72 cash deposits over a period of less than two weeks, with a series of cash deposits being made at a variety of different locations within each day, does give rise to a suspicion that the payments were a single series of transactions. The deposits were made on each working day over a confined period of time. They were made in a context where the administrator informed Federal Agent Sams that Fitzroy does not trade. There is a pattern to the deposits, and the handwriting on the deposit slips indicates that a limited number of people made the transactions. The circumstances in which the deposits were made provide reasonable grounds for suspecting (although they do not definitively establish) that the deposits were a coordinated series of payments which a single person, or two or more persons acting jointly, either made or caused to be made to the Account.
37 No explanation as to why so many payments would have been made in separate transactions is apparent from what the administrator told Federal Agent Sams, or otherwise. The inference open to be drawn from the bank statements, and what is known of the circumstances in which the account was established and operated, is that a series of deposits were made to avoid exceeding the reportable threshold of $10,000. There are grounds for suspecting that a person, or two or more persons acting jointly, acted for the sole or dominant purpose of ensuring that $599,500 was transferred in a manner and form that would not give rise to a reportable threshold transaction of more than $10,000.
38 There is no evidence to support any defence under s 142(2) of the AML Act.
39 For the above reasons there are reasonable grounds for suspecting that the deposit of $599,500 in the account by 72 cash deposits of between $7,000 and $9,500, made at the NAB branches identified in par 6 of Federal Agent Sams' affidavit of 30 July 2015 between 21 April 2015 and 30 April 2015, was an offence against s 142(1) of the AML Act.
Grounds to suspect that the property was the proceeds of the offence
40 It is then necessary to consider whether the property - the debt owed by NAB to Fitzroy in the amount standing to the credit of the Account - was derived or realised, whether directly or indirectly, from the commission of that offence.18
41 Fitzroy's chose of action against the bank was partly derived from the deposit of cash into the account between 21 and 30 April 2015.
42 The fact that the person, or persons acting jointly, who made the deposits may be unknown does not preclude a conclusion that Fitzroy's chose in action against NAB is reasonably suspected of being the proceeds of an offence against s 142(1) of the AML Act. Section 19(1)(d)(i) of the POC Act expressly indicates that there may be reasonable grounds to suspect that the property is the proceeds of an indictable offence whether or not the identity of the person who committed the offence is known.
43 The fact that not all of the debt is derived from deposits which are suspected of being made in contravention of s 142(1) does not prevent an order being made under s 19 of the POC Act in relation to the whole debt. The definition of 'proceeds' in s 329 of the POC Act makes it sufficient that the debt is partly derived or realised from the commission of an offence. The debt owed by NAB to Fitzroy was partly derived from the suspected offence which involved in making the series of cash deposits between 21 and 30 April 2015. Since this debt was partly derived from the commission of an offence the whole of the debt is the 'proceeds' of an indictable offence.19
44 This does not mean that the owner of an account subject to forfeiture loses the value of all funds standing to the credit of the account. If the Commissioner applies for a forfeiture order, Fitzroy may apply for a compensation order under s 78 of the POC Act. The court will then effectively order the repayment of the proportion of the funds standing to the credit of the Account which it is satisfied was not derived from the commission of any offence and is not an instrument of any offence. In the present case, Fitzroy will be able to obtain a compensation order for that proportion of the funds.
45 By that means the POC Act protects the holder of a bank account from losing the value of innocently held funds because the proceeds of a relevant offence are paid into the account. There is no need to read down the definition of 'proceeds' in s 329 of the POC Act to avoid that result.
46 For the above reasons, I do not accept Fitzroy's submission that only the $599,500 should be the subject of the restraining order.
47 In all the circumstances, I am satisfied that there are reasonable grounds to suspect that the property - being the debt owed by NAB to Fitzroy in the amount of the funds standing to the credit of the Account - is the proceeds of an offence against s 142(1) of the AML Act.
Offence against s 400.9(1) of the Criminal Code (Cth)
48 The Commissioner also contends that the circumstances in which the deposits were made provide reasonable grounds for suspecting that funds standing to the credit of the Account are the proceeds of the indictable offence created by s 400.9(1) of the Code, which provides:
A person commits an offence if:
(a) the person deals with money or other property; and
(b) it is reasonable to suspect that the money or property is proceeds of crime; and
(c) at the time of the dealing, the value of the money and other property is $100,000 or more.
Penalty: Imprisonment for 3 years, or 180 penalty units, or both.
Physical and fault elements
49 The first element of this offence, namely dealing, is a physical element consisting only of conduct.20 As s 400.9 does not specify fault elements for that physical element, intention is the fault element for that physical element.21 That is, it is necessary that the person engaging in the dealing means to engage in that conduct.22
50 Section 400.2 of the Codeprovides:
A person deals with money or other property if the person does any of the following:
(a) receives, possesses, conceals or disposes of money or other property;
(b) imports money or other property into Australia;
(c) exports money or other property from Australia;
(d) engages in a banking transaction relating to money or other property.
51 The Commissioner contends that the person who made the deposits dealt with the money deposited by 'disposing' of that money and engaging in a banking transaction in relating to the money. The Commissioner also contends that Fitzroy dealt with the deposited funds by 'receiving' or 'possessing' the funds deposited into the Account.
52 The second and third physical elements of the offence, specified in s 400.9(1)(b) and s 400.9(1)(c), are each elements of a circumstance in which the conduct specified in s 400.9(1)(a) occurs. Section 400.9(4) provides that absolute liability applies to s 400.9(1)(b) and s 400.9(1)(c). This means that there are no fault elements for those physical elements and the defence of mistake of fact under s 9.2 of the Codeis unavailable.23 However the existence of absolute liability does not make any other defence unavailable.24 One such defence is that provided for by s 10.1 of the Code, which relevantly states:
A person is not criminally responsible for an offence that has a physical element to which absolute liability … applies if:
(a) the physical element is brought about by another person over whom the person has no control …; and
(b) the person could not reasonably be expected to guard against the bringing about of that physical element.
Section 400.9(2)(aa) of the Code
53 In establishing that it is reasonable to suspect the money or property is proceeds of crime, within the meaning of s 400.9(1)(b) of the Code, the Commissioner relies on s 400.9(2)(aa) of the Code. Section 400.9(2)(aa) relevantly provides that s 400.9(1)(b) is taken to be satisfied if the conduct involves a number of transactions that are structured or arranged to avoid the reporting requirements of the AML Act that would otherwise apply to the transactions.
54 Section 400.9(1)(b) and s 400.9(2)(aa) of the Codeoperate in the following manner.
55 Section 400.9(1)(b) requires that it is 'reasonable to suspect that money or property is the proceeds of crime' when the person deals with the money. The act of dealing cannot itself be the conduct which constitutes the offence from which the money or property is derived. In that case, the money or property would become proceeds of crime only after the dealing occurred. Rather, there must be an offence, anterior to the dealing, which gives the money the status of proceeds of crime by the time the dealing occurs.
56 Where the dealing referred to in s 400.9(1) consists of making a series of structured deposits into a bank account, the money being deposited will not be the derived or realised from the commission of an offence against s 142(1) of the AML Act at the time the deposit is made. The money would have that status only when the transaction was complete. In such a case the Commissioner cannot prove that it is reasonable to suspect that the money being deposited is the proceeds of crime by reference to the fact that the making of the deposit constitutes an offence against s 142(1) of the AML Act. Rather, it must be shown that the money deposited is suspected of being derived or realised from the commission of an offence committed prior to the deposit taking place.
57 This requirement of a temporal difference between the relevant dealing and the offence from which the money or other property was realised or derived, or for which the property is to be used as an instrument, has been recognised in relation to other offences created by pt 10.2 of the Code.25 As Basten JA has observed in relation to s 400.5 of the Codeand transactions said to contravene the statutory predecessor to s 142(1) of the AML Act:26
Yet at no time was the money the subject of any particular transaction properly described as proceeds of crime committed in the past, because the crime had not been committed until that transaction was complete.
58 In that context, s 400.9(2)(aa) of the Code operates as a deeming provision. It applies where conduct involves a number of 'transactions' that are structured or arranged 'to avoid' the reporting requirements of the AML Act.
59 The use of the term 'transactions' indicates that s 400.9(2)(aa) only applies where the conduct is of a kind specified in s 400.9(2)(d) of the Code; ie, where the conduct is engaging in a banking transaction relating to money or other property.
60 The use of the term 'to avoid' means that it is necessary to show that the person engaging in the transactions acted with the subjective purpose of avoiding the reporting requirements.
61 A natural reason for a person to act with that subjective purpose is to disguise a transaction concerning money derived from the commission of an earlier offence. Section 400.9(2)(aa) provides that the circumstances that a person engages in a series of banking transactions to avoid the reporting requirements is sufficient to give rise to a reasonable suspicion that the money or other property which is the subject of those transactions was derived or realised from the commission of an anterior offence.
62 That is, the effect of s 400.9(2)(aa) is not to remove the need for a suspected offence committed prior to the time of the relevant dealing. Rather, it provides that the dealings undertaken to avoid the reporting requirements of the AML Act constitute reasonable grounds for suspecting that the money or property is derived or realised from an offence committed prior to the dealing.
Other provisions
63 Section 400.9(5) of the Codeprovides for a defence in the following terms:
This section does not apply if the defendant proves that he or she had no reasonable grounds for suspecting that the money or property was derived or realised, directly or indirectly, from some form of unlawful activity.
64 Section 400.12(1) of the Codeenables a single charge of an offence against s 400.9(1) to be about two or more instances of the defendant engaging in conduct (at the same time or different times) that constitutes an offence against s 400.9(1).
65 Section 400.13(1) of the Codeprovides:
To avoid doubt, it is not necessary, in order to prove for the purposes of this Division that money or property is proceeds of crime, to establish:
(a) a particular offence was committed in relation to the money or property; or
(b) a particular person committed an offence in relation to the money or property.
Grounds to suspect that the property is the proceeds of an offence against s 400.9(1) by persons making the deposits
66 The material identified in Federal Agent Sams' affidavits provides reasonable grounds for suspecting that a person, or two or more persons acting jointly, intentionally dealt with the $599,500 by disposing of the money through making 72 deposits into the Account. The making of those deposits also constituted engaging in banking transactions relating to that money. Such conduct would involve the person or persons dealing with the deposited money. Making those deposits could only be an intentional act. There are reasonable grounds for suspecting that the first element of the offence provided for in s 400.9(1)(a) of the Codeis satisfied.
67 The nature and circumstances of the transactions described above also provide reasonable grounds for suspecting that the deposits were structured to avoid the reporting requirements of the AML Act that would otherwise have applied. In those circumstances there are reasonable grounds to suspect that, by the operation of s 400.9(2)(aa), the second element of the offence provided for in s 400.9(1)(b) of the Codeis taken to be satisfied.
68 As the amount of money involved was $599,500, there is no difficulty in concluding that there are reasonable grounds for suspecting that the third element of the offence provided for in s 400.9(1)(c) of the Codeis satisfied.
69 There is nothing to suggest that the person or persons who made the series of deposits had no reasonable grounds for suspecting that the $599,500 was derived or realised, directly or indirectly, from some form of unlawful activity. There are, therefore, reasonable grounds for suspecting that the defence provided for in s 400.9(5) of the Codeis not available.
70 Therefore, there are reasonable grounds for suspecting that the deposit of $599,500 in the account by 72 cash deposits of between $7,000 and $9,500, made at the NAB branches identified in par 6 of Federal Agent Sam's affidavit of 30 July 2015 between 21 April 2015 and 30 April 2015, was an offence against s 400.9(1) of the Codeby the person, or persons acting jointly, who made the deposits or caused them to be made.
71 It follows, for the reasons given in relation to the suspected offence against s 142(1) of the AML Act, that there are reasonable grounds to suspect that the property - being the debt owed by NAB to Fitzroy in the amount of the funds standing to the credit of the Account - is the proceeds of an offence against s 400.9(1) of the Code.
Grounds to suspect that the property is the proceeds of an offence against s 400.9(1) by Fitzroy
72 The Commissioner also contended that there were reasonable grounds for suspecting that Fitzroy had committed an offence against s 400.9(1) of the Codeby receiving or possessing the funds standing to the credit of the Account.
73 That submission is to be considered in the factual context where there is no evidence that Fitzroy counselled, procured or was otherwise a party to the deposits being structured as a series of payments of less than $10,000. The Commissioner accepted that the administrator was to be regarded as the guiding mind of Fitzroy for these purposes. There is no reason to suspect the administrator knew the structured deposits were being made until he saw bank statements at some unspecified time prior to 8 May 2015. The Commissioner has not relied on provisions of pt 2.5 of the Code,other than s 12.1 which provides that a body corporate may be found guilty of an offence.
Receipt of funds
74 The Commissioner's first submission was that a person who holds a bank account, into which structured payments are made contrary to s 142(2) of the AML Act without the account holder's knowledge, commits an offence against s 400.9 of the Code. This submission is based on the proposition that the receipt of the funds constitutes 'dealing' as defined in s 400.2(a) of the Code.
75 I do not accept that submission for four reasons.
76 First, as I have noted, the fault element for the physical element of dealing is intention. There is no reason to suspect that Fitzroy intentionally received the structured payments of money deposited into the Account.
77 Secondly, there is no reason to suspect that Fitzroy voluntarily received the structured payments. There was no voluntary act which Fitzroy or any of its officers did which constituted the dealing. The only conduct was by third parties without the administrator's knowledge. Conduct can only be a physical element of the offence if it is voluntary.27
78 Thirdly, s 400.9(2)(aa) does not operate in relation to any funds received by Fitzroy. The only 'conduct' to which s 400.9(2)(aa) could refer is the dealing referred to in s 400.9(1)(a), which in this scenario must be the conduct of Fitzroy in receiving the funds. There is no reason to suspect that Fitzroy, in receiving the funds, acted for the purpose of avoiding reporting requirements under the AML Act which would otherwise apply. It did not do an act which involved engaging in any relevant banking transaction.
79 Fourthly, to the extent that the physical element in s 400.9(1)(b) is established, there is no reason to suspect that the circumstance was brought about other than by another person over whom Fitzroy (by the administrator) had no control. Nor is there any evidence, or banking practice of which the court can take judicial notice, of a measure which Fitzroy (by the administrator) could be reasonably expected to have taken to guard against funds being deposited into the account. In those circumstances, s 10.1 of the Codewould operate to prevent Fitzroy from being criminally responsible for an offence.
Possession of funds
80 As an alternative, the Commissioner contended that Fitzroy dealt with the deposited funds by possessing the funds. There are at least three difficulties with the alternative submission that a restraining order should be made on the basis that Fitzroy dealt with the deposited funds by possessing them.
81 First, the suspicion held by Federal Agent Sams in relation to an offence by Fitzroy, deposed to in his third affidavit, is that Fitzroy received the funds. Federal Agent Sams does not depose to holding any suspicion that Fitzroy committed an offence against s 400.9(1) of the Code by possessing the funds, as required by s 19(1)(e) of the POC Act.
82 Secondly, I have some doubts as to whether the concept of possession in s 400.2(a) of the Code can be applied to an incorporeal right such as a debt. Ordinarily the concept of possession involves physical custody or physical control of the thing possessed,28 although the meaning of the term 'possess' may vary according to its statutory context.29
83 Thirdly, even if I was satisfied that there were reasonable grounds to suspect that Fitzroy had committed an offence against s 400.9(1) by possessing funds in the account, those funds would not have been derived from the act of possession. A person does not derive funds merely by possessing the funds. The fact of possession means that the funds have already been derived by the person having possession of the funds. It cannot be the case that the funds in the account are the proceeds of an indictable offence in which the only conduct was possession of the funds.
84 The third difficulty identified above counts conclusively against the existence of reasonable grounds to suspect that the funds in the Account were derived or realised from an offence by Fitzroy against s 400.9(1) of the Code involving only possession of the funds. Given that conclusion it is unnecessary to finally resolve the first or second difficulties identified above.
Conclusion
85 In all the circumstances, I am not satisfied that there are reasonable grounds to suspect that the funds standing to the credit of the Account are the proceeds of an offence against s 400.9(1) of the Codecommitted by Fitzroy.
Other matters
86 The Commissioner also sought to base his application for an order under s 19 of the POC Act on the submission that there were reasonable grounds for suspecting that the funds in the Account were the instrument of an offence against s 142 of the AML Act. Given the conclusions I have reached, it is unnecessary for me to consider that additional ground.
Conclusion as to reasonable grounds for suspicion
87 For the above reasons, I am satisfied that there are reasonable grounds to suspect that the property - being the debt owed by NAB to Fitzroy in the amount of the funds standing to the credit of the Account - is the proceeds of an offence against s 142(1) of the AML Act and s 400.9(1) of the Code, in each case committed by the person or persons who made the deposits or caused them to be made.
Affidavit of an authorised officer
88 Before I can make an order under s 19 of the POC Act, I must also be satisfied of one or more of the matters referred to in s 19(1)(e) of the POC Act. One of those matters is that the application is supported by an affidavit of an authorised officer stating that the authorised officer suspects that the property is the proceeds of the offence, and including the grounds on which the authorised officer holds that suspicion.
89 The Commissioner filed an affidavit of Federal Agent Sams, who as a member of the Australian Federal Police is an authorised officer, on 12 May 2015.30 That affidavit deposes to Federal Agent Sams' suspicion that the funds standing to the credit of the Account are the proceeds of offences against s 142(1) of the AML Act and s 400.9(1) of the Code. He also sets out the grounds on which he holds that suspicion.
90 In his subsequent affidavit of 30 July 2015, Federal Agent Sams deposes that he has not formed any suspicion as to whether there is one or multiple offenders, whether there is one or multiple offences against s 142(1) of the AML Act and whether there are multiple dates for the offences. I have concluded that there are reasonable grounds for suspecting that there was a single offence against s 142(1) of the AML Act by a single offender, or multiple offenders acting jointly. The fact that the offence suspected by Federal Agent Sams is not as specific as the offence I have found reasonable grounds to suspect does not prevent a restraining order being made.
Reasonable grounds for officer's suspicion
91 Section 19(1)(f) of the POC Act requires that, before I can make an order under that section, I must be satisfied that the authorised officer who made the affidavit holds the suspicion stated in the affidavit on reasonable grounds. The stated grounds for Federal Agent Sams' suspicion are the results of inquires as to the management and shareholding of Fitzroy, the circumstances in which the account was opened, the manner in which the deposits were made and the advice he received from Mr Carrello on 8 May 2015.
92 For reasons I have explained above in concluding that there are reasonable grounds to suspect that the property is the proceeds of offences against s 142 of the AML Act and s 400.9(1) of the Code, I am satisfied that Federal Agent Sams holds the suspicion stated in his affidavit on reasonable grounds.
Discretion
93 Section 19(1) of the POC Act requires a court with proceeds jurisdiction to make one of the orders in s 19(1)(a) or 19(1)(b) if each of the requirements of s 19(1)(c) - s 19(1)(f) are satisfied. Further s 19(2) provides that the order must specify, as property that must not be disposed of or 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 the property is proceeds of the offence.
94 In the present case I have found the requirements of s 19(1)(c) - s 19(1)(f) to be satisfied. I have also found that there are reasonable grounds to suspect the debt owed by NAB to Fitzroy in the amount of the funds standing to the credit of the Account is the proceeds of an offence against s 142 of the AML Act and s 400.9(1) of the Code.
95 Section 19(3) of the POC Act provides that the court may refuse to make a restraining order in relation to an indictable offence that is not a serious offence if satisfied that it is not in the public interest to make the order. Section 19(3) is not applicable in the present case as the suspected offences are serious offences as defined in s 338 of the POC Act. This is on the basis that each offence is:31
(a) an indictable offence punishable by imprisonment for 3 or more years, involving:
...
(iii) unlawful conduct by a person that causes, or is intended to cause, a benefit to the value of at least $10,000 for that person or another person[.]
97 In all of the above circumstances, if this court is a court with proceeds jurisdiction in this case, I do not have any discretion to refuse to make the order under s 19 of the POC Act sought by the Commissioner.
Proceeds jurisdiction
98 Section 314(1) of the POC Act and s 39(2) of the Judiciary Act 1903 (Cth) confer federal jurisdiction on this court with respect to matters arising under the POC Act.
99 However, s 19 of the POC Act only confers power to make an order under that section on a court with 'proceeds jurisdiction'.
100 Somewhat unusually, the term 'proceeds jurisdiction' is defined in such a way that the existence of the court's power to make the order depends on findings which the court makes in considering whether the power should be exercised if it exists. It is for this reason that I have left it to the conclusion of these reasons to consider whether this court has power to make the restraining order sought by the Commissioner.
Section 335 of the POC Act
101 Courts having 'proceeds jurisdiction' are identified by s 335 of the POC Act. Section 335(1) explains that whether a court has proceeds jurisdiction for certain orders (including a restraining order under s 19) depends on the circumstances of the offence or offences to which the order would relate.
102 Section 335(2) provides for the general rule for offences occurring or reasonably suspected of having occurred in Australia. It relevantly states:
If all or part of the conduct constituting an offence to which the order would relate:
(a) occurred in a particular State …; or
(b) is reasonably suspected of having occurred in that State …;
the courts that have proceeds jurisdiction for the order are those with jurisdiction to deal with criminal matters on indictment in that State.
103 In the present case the conduct which constitutes the suspected offences against s 142(1) of the AML Act and s 400.9(1) of the Code was depositing cash and requesting the deposited cash be credited to the Account. The third affidavit of Federal Agent Sams shows that this conduct occurred in Victoria. It follows that, if s 335(2) applies, the courts that have proceeds jurisdiction for the order sought by the Commissioner are the courts having jurisdiction to deal with criminal matters on indictment in Victoria. That is, this court would not have proceeds jurisdiction, and would lack power to make a restraining order under s 19 of the POC Act.
104 The Commissioner submits that this court has proceeds jurisdiction under s 335(4) of the POC Act, which relevantly provides:
If:
(a) the order would, if made, be:
(i) a *restraining order under section 19 that relates to an offence committed by a person whose identity is not known and that is not based on a finding as to the commission of a particular offence; … and
(b) the property to which the order would relate is located in a particular State …;
despite subsections (2) and (3), the courts that have proceeds jurisdiction for the order are those with jurisdiction to deal with criminal matters on indictment in that State. (original emphasis)
105 Section 335(4) operates 'despite subsections (2) and (3)', and identifies 'the courts that have proceeds jurisdiction' in a case to which it applies. Unlike other subsections in s 335, subs (4) does not state that it does not prevent other courts having proceeds jurisdiction under s 335(2) of the POC Act.32 It appears from the terms of the section that s 335(2) and s 335(4) are mutually exclusive. In a case to which s 335(4) applies, the courts in the State where the property is located will be 'the courts that have proceeds jurisdiction'. If s 335(4) does not apply, the courts of the State or States where the conduct occurred, or is suspected of having occurred, will be 'the courts that have proceeds jurisdiction'.33
'Particular offence'
106 Despite the heading 'Offender not identified',34the fact that the identity of the offender is not known is not sufficient to engage s 335(4) of the POC Act. Section 335(4)(a)(i) contains an additional requirement that the order under s 19 would, if made, be a restraining order 'that is not based on a finding as to the commission of a particular offence'.
107 The reference to a finding 'as to the commission of a particular offence' is to be understood in the context of s 19(4) of the POC Act, which provides:
The reasonable grounds referred to in paragraph (1)(d) need not be based on a finding as to the commission of a particular offence.
108 In this case, the reference to a 'finding' in s 335(4) is to be taken to be a reference to a factual finding that concerns the existence of reasonable grounds to suspect that the property is the proceeds of an offence referred to in s 19(1)(d)(i) of the POC Act. Of course, a court making orders under s 19(1)(d) will not find that an offence has actually been committed. It need only find that there are reasonable grounds to suspect that property is the proceeds or instrument of an offence. The reference to a 'finding as to the commission of a particular offence' in that context must be to a finding that there are reasonable grounds for suspecting that a particular offence has been committed.
109 The Commissioner submits that the words 'finding as to the commission of a particular offence' should be construed as 'finding as to the commission of a particularised offence'. He submits that in the present case there is no finding as to the commission of a particular offence because it is not known whether there was one offence or multiple offences against s 142(1) of the AML Act, and so the dates of the offence/s are unknown. The Commissioner further submits that, as the NAB branch at which the Account is kept is located in Western Australia, the property to which the proposed order would relate is located in Western Australia. On that basis the Commissioner contends that this court has proceeds jurisdiction and power to make an order under s 19 of the POC Act in relation to the property.
110 I do not accept the Commissioner's submission in that regard for a number of reasons.
111 First, I have concluded that there are reasonable grounds for suspecting that a single offence was committed against s 142(1) of the AML Act. The only particular of the suspected offence which is unknown is the identity of the offender or co-offenders.
112 Secondly, the submission that the reference to a 'particular offence' is to a fully particularised offence is inconsistent with the language used in s 335(4) of the POC Act. The subsection refers to a particular offence, not a particularised offence. As the identity of the alleged offender is a necessary particular of any offence, there would be no need to separately refer to the identity of the offender being unknown if the reference were to a fully particularised offence. On the Commissioner's construction, there could never be a finding as to a particular offence where the identity of the offender is unknown. It would always be sufficient for the purposes of s 335(4) that the identity of the offender is unknown, and the additional requirement that the order not be based on a finding as to the commission of a particular offence would not add anything to the effect of the provision.
113 Thirdly, the reference to the singular 'offence' in s 335(4) of the POC Act should be taken to include the plural.35 So, the reference in s 335(4)(a)(i) is to a finding as to the commission of a particular offence or offences. Suppose that (contrary to the finding above) there were only reasonable grounds for suspecting that the Account was the proceeds either of a single offence or multiple offences against s 142(1) of the AML Act. In those circumstances there would, in my view, still be reasonable grounds for suspecting that the property was the proceeds of a particular offence or offences for the purpose of s 335(4)(a)(i) of the POC Act.
114 Fourthly, the Commissioner's submission is not supported by the decision in Chen on which he relies. In Chen the court was relevantly concerned with a charge that the appellant dealt with money that he intended would become an instrument of crime, by causing structured deposits to be made into a bank account.36 The alleged dealing was engaging in a banking transaction. The prosecution case was that the deposited money was intended to be an instrument of crime.
115 The prosecutor said that the deposited money was intended to be used to commit an offence against s 142(1) of the AML Act or, alternatively:
offences again[st] the revenue. In other words, offences related to the non-payment of tax.37
116 The prosecutor did not more specifically identify the offences against the revenue on which it relied.
117 The majority, Basten JA and Garling J, held that the finding that the money was intended to be used as an instrument of an offence against s 142(1) of the AML Act was not open on the evidence. This was because the conduct alleged to constitute the dealing was the same conduct alleged to constitute the intended offence against s 142(1) of the AML Act.
118 Basten JA upheld the appeal against conviction on the ground that this primary basis upon which the matter was left open to the jury was unavailable in law.38 He did not find it necessary to consider the alternative case based on unspecified revenue offences. Basten JA confined himself to observing:
It is unlikely that the jury would also have been satisfied of the alternative, for which the relevant inferences were less readily capable of being drawn, which it did not need to address if the first alternative were accepted and which was treated in the prosecution case as a back-up position. In any event, the failure to particularise the nature of the offence, across a range of possibilities, would have rendered a conviction based on that alternative unsupported by the evidence [38].
119 Garling J agreed with Basten JA as to the case based on an intention to commit an offence against s 142(1) of the AML Act. He also made observations about whether s 400.13 of the Codeexcused the prosecution from having to identify any specific indictable offences which it alleged the appellant intended to commit.39 Section 400.13 provides that the prosecution does not need to establish an intention that a particular offence would be committed or an intention that a particular person would commit the offence.
120 Garling J observed:
Unless the prosecution identifies the relevant indictable offence, then it is not open to a jury to conclude that the money or other property constituted an instrument of crime.
The effect of s 400.13 of the Criminal Code is only to excuse the prosecution from proving a particular offence, that is, an offence particularised by reference to a person, date, time, place, and any other specific fact, matter or circumstance which would need to be particularised either in the indictment or else to enable an accused to prepare a defence to a specific charge.
The prosecution in this case made no attempt to identify an indictable taxation offence, which could have made the appellant's conduct come within the relevant definition. On the contrary, the vague assertions of the prosecutor, together with the generality of the submissions to the jury by the prosecutor, and the consequent summing up by the trial judge of that part of the prosecution's case, were cast in such a way that it was not open to the jury to convict the appellant on that alternate basis [99] - [100].
121 The point being made by Garling J in this passage is that the prosecution needed to identify the indictable offence which the appellant intended to commit. Equally, in the present case it has been necessary to identify the indictable offences from which the property is reasonably suspected of having been derived. However, Garling J was not saying that there could be no particular offence within the meaning of s 400.13 of the Codeunless the offence was fully particularised. He was not at all concerned with the proper construction of s 335(4) of the POC Act. I am not convinced that the term 'particular offence' in either s 400.13 of the Code or s 335(4) of the POC Act should be confined by what was said by Garling J in the passage quoted above.
122 I accept that the reference in s 335(4) to a 'finding as to the commission of a particular offence' requires more than an identification of an offence-creating provision. However, I am not convinced that there can be no finding as to the commission of a particular offence unless each and every particular of a hypothetical charge which might be required by a defendant in a criminal trial can be identified. Where, as here, there is a specific set of transactions which are said to constitute the relevant offence it may be said that there is a particular offence or offences.
123 In the present circumstances, the condition identified in s 335(4)(a)(i) of the POC Act is not satisfied. The restraining order I would make under s 19 would be based on a finding as to the commission of a particular offence. That finding would be that there are reasonable grounds for suspecting that the deposit of $599,500 in the account by 72 cash deposits of between $7,000 and $9,500, made at the NAB branches identified in par 6 of Federal Agent Sams' affidavit of 30 July 2015 between 21 April 2015 and 30 April 2015, was an offence against s 142(1) of the AML Act and s 400.9(1) of the Code.
124 In those circumstances, s 335(4) of the POC Act does not confer proceeds jurisdiction on the relevant courts of the State in which the property is located. It is therefore unnecessary to determine the correctness of the Commissioner's submission that the property - being the debt owed by NAB to Fitzroy - is located in Western Australia for the purposes of s 335(4)(b) of the POC Act.
Alternative submission
125 The Commissioner submits, as an alternative, that this court had proceeds jurisdiction in relation to an offence which the Commissioner suspects Fitzroy of committing, being an offence against s 400.9(1) of the Codeby receiving or possessing the deposited funds. The Commissioner contends that Fitzroy's conduct in receiving or possessing the funds occurred, or is reasonably suspected of having occurred, in Western Australia. On that basis the Commissioner contends that this court has proceeds jurisdiction under s 335(2) of the POC Act. As I am not satisfied that there are reasonable grounds for suspecting that Fitzroy committed an offence against s 400.9(1) of the Code, this alternative submission falls away.
Conclusion
126 For these reasons, the Supreme Court of Victoria is, and this court is not, a court with proceeds jurisdiction in this matter. That is, the Supreme Court of Victoria is, and this court is not, empowered to make an order under s 19 of the POC Act.
Cross-vesting legislation
127 For the reasons I have explained above I have found that the Commissioner is entitled to an order under s 19 of the POC Act, but that this court does not have power to make the order as it is not a court with proceeds jurisdiction.
128 The Supreme Court of Victoria clearly is a court with proceeds jurisdiction, on the basis that the conduct constituting the relevant offences occurred, or is reasonably suspected of having occurred, in Victoria. The Supreme Court of Victoria is also invested with jurisdiction with respect to matters arising under the POC Act. It is not in the interests of justice that a meritorious application should fail simply because it has been commenced in the wrong court. That is particularly so in circumstances where counsel has informed me that there is a freezing order in place which will come to an end when the court decides the Commissioner's application.40 In these circumstances it is in the interests of justice that this proceeding be determined by the Supreme Court of Victoria. In those circumstances, a transfer order should be made under s 5(2)(b)(iii) of the Cross-vesting Act.41
129 Section 5(2) requires transfer of the proceeding to the Supreme Court of Victoria where it appears to this court that it is in the interests of justice to do so.42 This court may make such an order of its own motion under s 5(7) of the Cross-Vesting Act.
130 I note that in Director of Public Prosecutions (Cth) v Fysh,43 MA Wilson J referred to it being necessary in that case to consider an application for transfer under the Cross-vesting Act only if the court had proceeds jurisdiction. I accept that an order for transfer under s 5 of the Cross-vesting Act is made on the hypothesis that the jurisdiction of this court has been regularly invoked.44 However, in the present case, while this court is not a court with 'proceeds jurisdiction', its jurisdiction to adjudicate upon the Commissioner's application for a restraining order has been regularly invoked.
131 The deployment of the statutory phrase 'proceeds jurisdiction' has the potential to confuse. The word 'jurisdiction' in that defined term is not used in the sense of 'authority to adjudicate'.45 The jurisdiction of this court, in the sense of the court's authority to adjudicate upon the Commission's application for a restraining order, is conferred by s 314 of the POC Act and s 39(2) of the Judiciary Act. The question addressed by s 335 is whether this court can make an order under s 19, rather than whether this court has authority to adjudicate upon the Commissioner's application for such an order. The conclusion that this court is not a court with 'proceeds jurisdiction' does not deny that the Commissioner's application is a proceeding pending in this court for the purposes of s 5(2)(a) of the Cross-vesting Act or that this court is seized of jurisdiction in the matter.
132 In these circumstances I will exercise the power conferred by s 5(2) of the Cross-vesting Actto transfer this proceeding to the Supreme Court of Victoria.
Order
133 For these reasons, I order that proceedings CIV 1693 of 2015 commenced by originating summons dated 12 May 2015, between the Commissioner of the Australian Federal Police and Fitzroy All Pty Ltd (subject to a deed of company arrangement) ACN 093 308 724, be transferred to the Supreme Court of Victoria.
1 Section 338 of the Act (definition of 'property').
2 Section 19(1)(c) of the Act.
3Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4; (2008) 234 CLR 532 [28].
4Hussien v Chong Fook Kam [1970] AC 942, 948; Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266, 303; George v Rockett (1990) 170 CLR 104, 115 - 116.
5Ex parte Commissioner of the Australian Federal Police [2014] WASC 390 [21] and cases there cited.
6 See s 317 of the Act.
7Director of Public Prosecutions (Cth) v Studman [2005] NSWSC 824; (2005) 155 A Crim R 515 [32]; Centurion Trust Co Ltd v Director of Public Prosecutions (WA) [2008] WASCA 6; (2008) 35 WAR 463 [98]; Kingdon v The State of Western Australia [2012] WASCA 74; (2012) 223 A Crim R 449 [21]; Vickers v Minister for Business and Consumer Affairs (1982) 43 ALR 389, 400 - 401.
8N Joachimson v Swiss Bank Corporation[1921] 3 KB 110, 127; Re French Caledonia Travel [2003] NSWSC 1008; (2003) 59 NSWLR 361 [32].
9 Section 5 of the AML Act (definition of 'non-reportable transaction').
10 Read with s 4G of the Crimes Act 1914 (Cth).
11R v Lee[2007] NSWCCA 71; (2007) 71 NSWLR 120. Lee was applied in Director of Public Prosecutions (Cth) v Ho (Ruling No 16) [2009] VSC 233.
12 Section 5.6(1) of the Criminal Code; Lee[3] and [67].
13Lee [4], [67].
14Lee [16].
15Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89 [135].
16 See s 11.2A of the Code.
17 See s 5 of the AML Act (definition of 'non-reportable transaction' read with the definitions of 'reporting entity', 'designated service', 'threshold transaction', 'transfer' and 'transaction', and items 3 and 5 in s 6 of the Act).
18 So as to be proceeds of the offence within the meaning of s 329(1) of the Act.
19Director of Public Prosecutions (Cth) v Garcia [2004] QDC 523 [93].
20 Section 4.1(a) of the Code.
21 Section 5.6(1) of the Code; see Ansari v The Queen [2010] HCA 18; (2010) 241 CLR 299 [49]; Milne v The Queen [2014] HCA 4; (2014) 252 CLR 149 [13]; Shi v The Queen [2014] NSWCCA 276 [35].
22 Section 5.1(1) of the Code.
23 Section 6.2(2) of the Code.
24 Section 6.2(3) of the Code.
25R v Ansari [2007] NSWCCA 204; (2007) 70 NSWLR 89 [15]; Chen v Director of Public Prosecutions (Cth) [2011] NSWCCA 205; (2001) 83 NSWLR 224 [17], [20] - [21], [83] - [88]; Milne v The Queen [2014] HCA 4; (2014) 252 CLR 149 [37].
26Chen [18].
27 Section 4.2 of the Code.
28 See He Kaw Teh v The Queen (1985) 157 CLR 523, 537-8, 585 - 586, 599; Tabe v The Queen [2005] HCA 59;(2005) 225 CLR 418 [7].
29Momcilovic v The Queen [2011] HCA 34; (2011) 245 CLR 1 [16].
30 Section 338 of the POC Act (definition of 'authorised officer').
31 Section 338 of the Act (definition of 'serious offence').
32 Compare s 335(6) and (8)(b) of the POC Act.33 Where s 335(2) operates, the courts of more than one State may have proceeds jurisdiction if the conduct partly occurred in more than one State: see Commissioner of the Australian Federal Police v Nguyen [2013] NSWSC 179[11].
34 This heading forms part of the POC Act: see s 13(1)(a) of the Acts Interpretation Act 1901 (Cth).
35 Section 23(b) of the Acts Interpretation Act 1901 (Cth).
36 Contrary to s 400.5(1) of the Code.
37Chen [14].
38Chen [37].
39Chen [89].
40 See s 15P(2)(b) of the POC Act.
41 As to the general principles governing transfers under s 5(2)(b)(iii) of the Cross-vesting Act see BHP Billiton Ltd v Schultz [2004] HCA 61; (2004) 221 CLR 400. Given that the matter is in federal jurisdiction, the federal legislation would be applicable although equivalent provisions exist in Victorian and Western Australian cross-vesting legislation.
42Schultz [14], [63]; Australian Zircon NL v Austpac Resources NL [2010] WASC 166 [31]; Equinox Engineering and Installation Pty Ltd v Puffin Installation Services Pte Ltd [2008] WASC 183 [5].
43Director of Public Prosecutions (Cth) v Fysh [2010] QSC 216; (2010) 240 FLR 247 [85].
44Schultz [14], [45] - [46], [177].
45Australian Securities Investments Commission v Edensor Nominees Pty Ltd [2001] HCA 1; (2001) 204 CLR 559 [3]; see also [63] - [66].
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