Commissioner of the Australian Federal Police v Huang

The matter before the court was an application by the Commissioner of the Australian Federal Police (AFP) to exclude certain property from restraining orders under the Proceeds of Crime Act 2002 (Cth). The applicant sought to restrain the property on the basis that it was the proceeds of an indictable offence or an instrument of any serious offence, as defined by section 29(2)(d) of the Act. The respondent, Huang, contested the application, arguing that the property in question was not subject to the restraining orders as it was not the proceeds of an indictable offence or an instrument of a serious offence.

The court had to determine whether the property was the proceeds of an indictable offence or an instrument of a serious offence. It also needed to consider whether the property ceased to be proceeds or an instrument and whether the applicant acquired the property for sufficient consideration under section 330(4)(a) of the Act. The court had to apply the principles from Lordianto v Commissioner of the Australian Federal Police (2018) 337 FLR 17; [2018] NSWCA 199, which established that the applicant must be a third party, acquire the property for sufficient consideration, and not be wilfully blind to the nature of the property. The court found that the applicant was not a third party, did not acquire the property for sufficient consideration, and was wilfully blind to the nature of the property. Consequently, the court dismissed the application.

The court found that the applicant was not a third party and had an interest in the property through their involvement in the underlying criminal activity. The court also held that the applicant did not acquire the property for sufficient consideration as they were aware of the criminal activity and the nature of the property. Furthermore, the court found that the applicant was wilfully blind to the nature of the property, as they deliberately closed their eyes to the true nature of the property. As a result, the court dismissed the application to exclude the property from restraining orders.

The court ordered that the application be dismissed and that the property remain subject to the restraining orders under the Proceeds of Crime Act 2002 (Cth). The court found that the applicant was not a third party, did not acquire the property for sufficient consideration, and was wilfully blind to the nature of the property. The court held that the property was the proceeds of an indictable offence or an instrument of a serious offence and, therefore, remained subject to the restraining orders.