Commissioner of the Australian Federal Police v Sha
[2020] NSWSC 1287
•22 September 2020
Supreme Court
New South Wales
Medium Neutral Citation: Commissioner of the Australian Federal Police v Sha [2020] NSWSC 1287 Hearing dates: On the papers Decision date: 22 September 2020 Jurisdiction: Common Law Before: Ierace J Decision: Orders made as sought.
Catchwords: CRIMINAL LAW – proceeds of crime – examination of defendants’ affairs
Legislation Cited: Proceeds of Crime Act 2002 (Cth), s 180
Cases Cited: Commissioner of the Australian Federal Police v Sha [2019] NSWSC 1048
Category: Procedural and other rulings Parties: Commissioner of the Australian Federal Police (Plaintiff)
Sigmund Sha (also known as Xin Sha and Sigmund Xin Sha) (First Defendant)
Dingzhi Sha (also known as Daniel Sha) (Second Defendant)
Xi Cai (Third Defendant)File Number(s): 2019/00238895
Judgment
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HIS HONOUR: By a notice of motion filed on 17 April 2020, the plaintiff, being the Commissioner of the Australian Federal Police (“AFP”), sought orders pursuant to s 180 of the Proceeds of Crime Act 2002 (Cth) (“the Act”), to the effect that each of the three defendants be examined in relation to their own affairs and those of the other two defendants. As well, an order was sought that a fourth person be examined in respect of the affairs of each of the three defendants.
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The defendants to these proceedings are Sigmund Sha (also known as Xin Sha and Sigmund Xin Sha) (“the first defendant”), Dingzhi Sha (also known as Daniel Sha) (“the second defendant”) and Xi Cai (“the third defendant”). The plaintiff has forwarded to my Chambers by email copied to the legal representatives of the three defendants, short minutes of order, stating that each of the defendants’ consent to those orders being made in respect of the notice of motion. I am also informed that the parties are content for the matter to be dealt with in Chambers. Since the matter is straightforward, I will do so.
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I note that the short minutes of order do not include the order sought in the notice of motion in relation to the fourth person. Instead, one of the draft orders provides that “the balance of the notice of motion … be adjourned to 12 February 2021 … for directions”. I accept that this is an available course in relation to that part of the notice of motion.
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Section 180 of the Act provides as follows:
“180 Examination orders relating to restraining orders
(1) If a restraining order is in force, the court that made the restraining order, or any other court that could have made the restraining order, may make an order (an examination order) for the examination of any person, including:
(a) a person whose property is, or a person who has or claims an interest in property that is, the subject of the restraining order; or
(b) a person who is a suspect in relation to the restraining order; or
(c) the spouse or de facto partner of a person referred to in paragraph (a) or (b);
about the affairs of a person referred to in paragraph (a), (b) or (c).
(2) The examination order ceases to have effect if the restraining order to which it relates ceases to have effect.”
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On 1 August 2019, on the plaintiff’s application, I made a restraining order in relation to certain property associated with the defendants: Commissioner of the Australian Federal Police v Sha [2019] NSWSC 1048. Accordingly, to the extent that the proposed examinations will concern the same property, the requirement of s 180(1) of the Act is met.
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In relation to ss 180(1)(a) to (c), the plaintiff relies upon two affidavits affirmed by Scott Matthews on 30 July 2019 and 17 April 2020, who deposes that he is a member of the AFP and therefore an authorised officer within the definition of that term at s 338 of the Act. The plaintiff has filed a further affidavit of Scott Matthews, affirmed on 17 July 2020. As the plaintiff has not identified it as evidence it relies upon, I disregard it.
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Having regard to the content, including the annexures, of Mr Mathews’ two affidavits, I am satisfied that the requirements of ss 180(1)(a), (b) or (c) are satisfied, and so it is appropriate to make the orders in the terms sought.
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Decision last updated: 23 September 2020
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