Commissioner of the Australian Federal Police v He

[2023] NSWSC 1391

Supreme Court

New South Wales

Medium Neutral Citation:

Commissioner of the Australian Federal Police v He [2023] NSWSC 1391

Hearing dates:

26 October 2023

Date of orders:

26 October 2023

Decision date:

16 November 2023

Jurisdiction:

Common Law

Before:

Ierace J

Decision:

Orders made as sought

Catchwords:

CRIME – Proceeds of crime – Restraining Orders

Legislation Cited:

Proceeds of Crime Act 2002 (Cth), ss 19, 49

Criminal Code Act 1995 (Cth), s 400.9

Category:

Procedural rulings

Parties:

The Commissioner of the Australian Federal Police
Wefang He (First Defendant)

Representation:

Counsel:
H Mann

Solicitors:
Australian Federal Police

File Number(s):

2021/282855

JUDGMENT

1. In this matter, the Commissioner of the Australian Federal Police (the Commissioner) moved on prayers 10, 11 and 12 in a notice of motion that was filed on 24 March 2023, in which restraining orders were sought in respect of three bank accounts pursuant to s 19 of the Proceeds of Crime Act 2002 (Cth) (the Act). Those three accounts are in the names of ENX Building Pty Ltd (the thirteenth defendant), SYH Project Pty Ltd (the eighteenth defendant) and HSY Group Pty Ltd (the nineteenth defendant), respectively. The Commissioner also moved on prayer 1, seeking leave to file a further amended summons. The proposed amendments to the summons reflect the restraining orders sought against the thirteenth, eighteenth and nineteenth defendants, and potential future forfeiture of the same accounts pursuant to s 49 of the Act.

2. The Commissioner originally sought these orders before Cavanagh J on 17 October 2023. There was no appearance for the affected defendants. Cavanagh J ordered that the plaintiff write to each of the three defendants at their registered offices to notify them of these proceedings and to serve upon them the proposed orders and relevant material. The matter was stood over and came before me sitting as Duty Judge on 26 October 2023.

3. At the hearing of the notice of motion on that date an affidavit of Nicola Tu (affirmed 25 October 2023) was read confirming service of notification of the Commissioner’s application upon the affected defendants, together with the relevant material and proposed orders, pursuant to the orders of Cavanagh J. The Commissioner also relied upon affidavits of Isabella Wade (affirmed 2 May 2023) and Olivia Scully (affirmed 12 October 2023) as to earlier service of the notice of motion and supporting materials upon the defendants.

4. At the conclusion of the hearing of the application, I made the orders sought in the terms of the short minutes of order. The following are my reasons.

5. An order made pursuant to s 19 of the Act restrains the disposition of, or any dealing with, the specified property, except in the manner and circumstances specified in the order. The sections provide that the application must be made by a “proceeds of crime authority”. I am satisfied that the Commissioner complies with that requirement.

6. A further requirement of s 19 that is relevant to this application is that there are reasonable grounds to suspect that the property is the proceeds of an indictable offence, amongst other bases.

7. In her affidavit affirmed 24 March 2023, Amelia Shelton, an authorised officer for the purposes of the Act, expressed a belief that the property that is the subject of prayers 10, 11 and 12 constitute proceeds and/or instruments of a money laundering scheme contrary to s 400.9 of the Criminal Code Act 1995 (Cth).

8. I was satisfied that there were reasonable grounds to suspect the relevant property is the proceeds of an indictable offence (s 19(d)(i)) and the suspicions deposed to by Ms Shelton in respect of the relevant property are reasonably held (s 19(f)).

9. Accordingly, I granted the restraining orders sought pursuant to s 19 of the Act in the terms of the short minutes of order. It was appropriate in those circumstances to grant leave to the Commissioner to amend the summons by filing a further amended summons and make the procedural orders that were also sought.

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Decision last updated: 16 November 2023