Commissioner of the Australian Federal Police v Ruzehaji (No 2)

[2014] SADC 61

DISTRICT COURT OF SOUTH AUSTRALIA

(Civil)

COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE v RUZEHAJI & ANOR (No 2)

[2014] SADC 61

Decision of His Honour Chief Judge Muecke

24 April 2014

PROCEDURE

Restraining Order (including an examination order in respect of the first defendant) made ex parte under the Proceeds of Crime Act 2002 (Cth) against defendants. Reasons for Order given and published.

Proceeds of Crime Act 2002 (Cth) ss25, 26(4), 33, 38, 39, referred to.

COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE v RUZEHAJI & ANOR (No 2)
[2014] SADC 61

1. On 26 November 2012 the plaintiff Commissioner of the Australian Federal Police (“the Commissioner”) filed a Summons naming Amir Sabit Ruzehaji as first defendant (“Mr Ruzehaji”) and Ruzehaji Enterprises Pty Ltd as second defendant (“Ruzehaji Enterprises”). The Summons was filed on behalf of the Commissioner by the Australian Government Solicitor (AGS). The Summons was issued pursuant to ss25 and 26(4) of the Proceeds of Crime Act 2002 (Cth) (“the Act”). Pursuant to that latter section of the Act the Commissioner requested that this court consider the application without notice having been given to any person. The Summons was endorsed under r119 of the District Court Civil Rules 2006 (SA) and the Commissioner sought that the relief sought in paras 1 to 5 and 9 of the Summons be heard and determined urgently pursuant to that Rule.

2. An application such as that made by the Commissioner must be supported by an Affidavit setting out the reasons for the urgency. On the hearing of such an application for urgent determination, I may make orders I consider necessary and appropriate to ensure the determination of the proceeding or issue as a matter of urgency.

3. The issue sought by the Commissioner as a matter of urgency related to only some of the orders sought. The Commissioner sought orders enjoining Mr Ruzehaji and any other person from disposing or otherwise dealing with a Commonwealth Bank account, a number of motor vehicles, and certain property. Orders were also sought that Mr Ruzehaji immediately deliver up possession of a Lamborghini Gallardo motor vehicle (including all keys and any accessories) to the Official Trustee and that any police officer of the Australian Federal Police, a State or a Territory, may enter premises and seize that vehicle, keys and accessories and deliver it to the Official Trustee, and thereafter the Official Trustee shall take custody and control of the Lamborghini.

4. Further, the Commissioner sought an order that the Commissioner may delay giving notice of those orders to Mr Ruzehaji and Ruzehaji Enterprises. Finally, the Commissioner sought an order that the matter otherwise be adjourned for directions on a date to be set.

5. Orders that the Commissioner did not seek as a matter of urgency were an order that Mr Ruzehaji give to a person nominated by the Commissioner a statement sworn on oath setting out all interests and property, and liabilities, of himself and Ruzehaji Enterprises; an order that Mr Ruzehaji to be examined about his affairs (including the nature and location of any property) and the affairs of Ruzehaji Enterprises; and an order that certain of the property sought to be restrained be forfeited to the Commonwealth.

6. On the same day the Commissioner filed the Summons an Interlocutory Application was also filed. By that application the Commissioner applied for the orders in respect of which urgency was sought under r119. The Commissioner, however, also included in the interlocutory application an order that Mr Ruzehaji give a statement sworn on oath setting out all interests in property, and liabilities, of himself and Ruzehaji Enterprises, and an order that Mr Ruzehaji be examined about his affairs (including the nature and location of any property) and the affairs of Ruzehaji Enterprises.

7. The Commissioner filed two affidavits in support of the Summons and Interlocutory Application. A solicitor employed by the AGS swore that he was instructed by officers from the Proceeds of Crime Litigation Branch within the Australian Federal Police (AFP), who were primarily based in Perth. He swore that he had been instructed to seek an urgent hearing of the interlocutory application without notice to Mr Ruzehaji and Ruzehaji Enterprises. He swore that he believed the matter should be heard urgently for the reasons outlined in the Affidavit of Federal Agent Shaun Robert Milligan.

8. Shaun Robert Milligan swore an affidavit on 22 November 2012. He swore that he was a Federal Agent and a member of the AFP stationed at Perth. He swore he was authorised by the Commissioner to make his affidavit and he was an authorised person under the Act. He swore he was a member of the AFP-led Criminal Assets Confiscation Taskforce in Perth. That taskforce has responsibility for investigations under the Act in South Australia.

9. Mr Milligan swore as to searches that had been conducted in respect of property allegedly belonging to Mr Ruzehaji and property under the effective control of Mr Ruzehaji that is owned by Ruzehaji Enterprises.

10. Mr Milligan swore as to his suspicion that Mr Ruzehaji had committed serious drug offences on 16 October 2012 at Windsor Gardens. Those offences involved trafficking in significant quantities of methamphetamine and cocaine. They were serious offences within the meaning of that term in the Criminal Code (Cth).

11. Mr Milligan set out the grounds for his suspicion that Mr Ruzehaji had committed those offences in respect of which he had not then been charged. He swore that it was possible that he would be charged with them, or with similar offences, in due course.

12. Mr Milligan set out in detail in paras 11-24 of his affidavit the results of his searches as to property apparently owned by Mr Ruzehaji or subject to his Effective Control.

13. Mr Milligan sought orders under ss38 and 39 of the Act that the Official Trustee take custody of the Lamborghini on the basis that it is of considerable value, it may be hidden or damaged if it is not secured, and it is registered and he believed it was located in Victoria.

14. Mr Milligan sought an order under s33 of the Act delaying the giving of notice of the restraining order the Commissioner sought to enable the AFP to conclude Operation Mellum. He swore that that operation had commenced in August 2011 with the AFP Adelaide Office conducting an extensive investigation into the activities of Mr Ruzehaji and his associates, who were suspected of operating a narcotic trafficking network. He swore that “The timing of the conclusion of the operation remains fluid and subject to a number of operational considerations. The AFP expects to conclude the operation within a month. The conclusion of the investigation could occur in the week beginning 26 November 2012”.

15. Mr Milligan concluded his affidavit by seeking an order under s 39 of the Act requiring Mr Ruzehaji to provide a sworn statement setting out all of the interests in property and the liabilities of himself and Ruzehaji Enterprises. That order was said to be sought to assist the AFP in understanding the scope of the “all property” nature of the proposed restraining order. He also sought an order that Mr Ruzehaji be examined as to his affairs and the affairs of Ruzehaji Enterprises.

16. I was the Short Notice List Judge in this court in the last week of November 2012 and in the first two weeks of December 2012.

17. On receiving the Commissioner’s Summons, Interlocutory Application and two Affidavits, I caused the Interlocutory Application to be endorsed for urgent hearing on Wednesday 28 November 2012 at 9.30am before me.

18. Before the hearing I read the Summons, the Interlocutory Application and the two affidavits. I also read a letter on the letterhead of the AGS dated 26 November 2012 and addressed to the Registrar of the District Civil Court. It was signed by the same solicitor/lawyer of the AGS who swore the affidavit in support of an urgent hearing of the Commissioner’s interlocutory application. By his letter he enclosed for filing in this court the Summons, the Interlocutory Application, his supporting affidavit and the affidavit of Federal Agent Milligan. In his letter he wrote the following:

    HANDLING OF DOCUMENTS

    5.The summons and affidavit contain highly confidential and sensitive information relating to an as yet unresolved covert police operation. For this reason we ask that the summons and accompanying documents be handled in a manner that limits disclosure even within the Court. In other matters our client has been involved in, the application documents have been delivered directly to the relevant judicial officer’s chambers in a sealed envelope.

    URGENCY

    6.We ask that, if possible, the hearing of this matter be listed at any time Wednesday 28 November 2012 or Thursday 29 November 2012, as there is a risk that the suspect will seek to leave Australia and will then be arrested. In that event, our client considers that there is a very real risk of dissipation of the assets which are sought to be restrained. As is deposed to in the affidavit of Federal Agent Shaun Robert Milligan at [27]:

    -    the matter relates to an ongoing criminal investigation (Operation Mellum)

    -    that investigation has not yet concluded

    -    the timing of the conclusion of the investigation is fluid and subject to a number of operational considerations

    -    the AFP expects to conclude the investigation within a month

    -    the investigation could be concluded in the week beginning 26 November 2012.

    HEARING ARRANGEMENTS

    7.Pursuant to s 26(4) of the Act, the Commissioner asks that the application be listed on an ex parte basis in the first instance. Further we ask that the Defendant’s name not be recorded in any of the Court’s public lists, as doing so could tip the Defendant off to the making of the application. We understand that in the past such matters have been recorded in the lists as ‘No.    of 2012 – in the Matter of the Proceeds of Crime Act 2002 (Cth)’.

    8.Given the sensitive and confidential nature of the application we would also ask that no one be present in the Court room during the hearing aside from the Plaintiff’s counsel and Court staff. This may mean that if the application is to be heard as part of a list, this matter should be heard last.

19. On Wednesday 28 November 2012 the same solicitor who wrote that letter and swore an affidavit appeared before me. There was, of course, no appearance by or for Mr Ruzehaji or Ruzehaji Enterprises. The transcript of the hearing speaks for itself. At the ex parte hearing I told the AGS solicitor that I was familiar with the legislation, and that I had read all the papers. I was asked to make orders which included orders sought in paras 6 and 7 of the orders sought, notwithstanding that, as counsel indicated, they were not strictly necessary to be made that day. They were orders that Mr Ruzehaji give a statement sworn on oath setting out all interests and property and liabilities of himself and Ruzehaji Enterprises and that Mr Ruzehaji be examined about his affairs and the affairs of Ruzehaji Enterprises.

20. At the top of page 5 of the transcript I indicated that I would make orders in terms of minutes signed and dated by me. I indicated that the question of confidentiality and a return date needed to be addressed. I indicated that I was prepared to hold the file in my custody in my office and that permission would not be given to inspect it without my approval and with notice to the Commissioner. As to the return date, the Commissioner’s counsel wondered if a time could be fixed in the week beginning 10 December 2012, which was about a week and a half away. I indicated that it could be done in the following week if it was preferred “to have a bit more time for things to happen and presumably the first defendant and the second defendant to instruct lawyers”. I made the return date Wednesday 19 December 2012, wrote that on the draft Minutes of Order and signed the orders. I indicated that the matter would return before me at 9.30am Wednesday 19 December 2012. I granted liberty to all parties to apply for an earlier hearing or mention.

21. I was familiar with the legislation under which the Commissioner had brought the Summons and Interlocutory Application.

22. I accepted and relied on the affidavit of Mr Milligan in support of the application for restraining orders and that it be heard ex parte. I accepted and acted upon the suspicions he referred to that Mr Ruzehaji had committed serious drug offences involving considerable quantities of methamphetamine and cocaine. I accepted, relied on and acted upon the suspicions and beliefs of federal agents of the AFP who suspected Mr Ruzehaji and his associates of operating a narcotic trafficking network. I accepted, relied on and acted upon those suspicions and beliefs for the purpose of hearing the application ex parte that was brought before the court by the Commissioner.

23. I also considered the Commissioner’s application that I hear the application ex parte in light of those parts of the letter dated 26 November 2012 to which I referred and set out earlier.

24. I was satisfied that the AFP and its agents were conducting an as yet unfinished covert police operation involving their suspicions and beliefs that Mr Ruzehaji was involved in operating a narcotic trafficking network. Agent Milligan referred in his affidavit to the fact that the Lamborghini may be hidden or damaged if it is not secured and that it was registered and believed to be in Victoria. I accepted that the Commissioner considered that there was a very real risk of dissipation of the assets which were sought to be restrained. I was satisfied that that was a real and a reasonable consideration of the Commissioner in light of the other material before me and the Commissioner’s request that Mr Ruzehaji’s name not be recorded in any of the court’s public lists as doing so could “tip him off” to the making of the application. I was satisfied that the fears held were reasonably held and based on reasonable grounds. I brought into my consideration in this respect my experience in dealing with cases involving drugs and those who deal in them or who are suspected of doing so.

25. I was convinced that because of all those considerations I should hear the Commissioner’s application ex parte. I was familiar with the Commonwealth proceeds of crime legislation and the somewhat equivalent State legislation dealing with the same subject matter. My experience was that it was not unusual for applications such as this  to be brought, sought to be heard and be heard ex parte, at least so that property could be preserved until persons who would be subject to such interim orders are notified and have an opportunity to put material before the court to seek a discharge of such interim orders or a variation of them, to allow their living expenses to be released for example, or to make other arrangements for the preservation of property until the conclusion of enquiries and operations of the AFP, the prosecution of any individuals subject to the orders and the ultimate disposition of any application by the Commissioner for permanent relief over any assets the subject of a holding order such as was made by me on 28 November 2012.

26. I considered that it may well be prejudicial to the interests of the Commissioner in any property of Mr Ruzehaji or Ruzehaji Enterprises if a holding order was not made before they were advised of it. I considered that may be necessary to obviate any opportunity to dissipate the assets sought to be the subject of the holding order.

27. I was satisfied that good grounds had been made out for me not only to make the orders that were originally said to be sought and determined urgently, but also to make two further orders to the effect that Mr Ruzehaji file a statement on oath setting out all his interests and Ruzehaji Enterprises’ interests in property and liabilities, and that Mr Ruzehaji be examined about his affairs and the affairs of Ruzehaji Enterprises.

28. By setting a return date three weeks after I made the orders ex parte I anticipated that Mr Ruzehaji and Ruzehaji Enterprises would have by then been served with the orders I made on 28 November 2012. I anticipated that by then they may well be represented, and they could then seek to have me review the orders I made, vary them or revoke them.

29. If necessary I would then have set a timetable for the filing of affidavits to be considered on the hearing of any such application. My practice was to retain certain interlocutory applications beyond my rostered weeks in the Short Notice List. I anticipated this would be one such application, particularly, but not solely, because I had indicated that I would hold the file in my office because of the issue of confidentiality.   I did not consider that by making all the orders I made I would be prejudicing Mr Ruzehaji or Ruzehaji Enterprises in any way in raising any matter they wished before me. I thought that if there was any such prejudice giving liberty to apply would give them the opportunity to bring the matter back before me, even before Wednesday 19 December 2012.

30. Hence, I made the orders that I did on 28 November 2012.