Commissioner of the Australian Federal Police v Sha

[2019] NSWSC 1048

Supreme Court

New South Wales

Medium Neutral Citation:	Commissioner of the Australian Federal Police v Sha [2019] NSWSC 1048
Hearing dates:	1 August 2019
Date of orders:	01 August 2019
Decision date:	01 August 2019
Jurisdiction:	Common Law
Before:	Ierace J
Decision:	Orders made as sought.
Catchwords:	CRIMINAL LAW – proceeds of crime – restraining orders
Legislation Cited:	Proceeds of Crime Act 2002 (Cth), ss 18, 19
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) Dinghzi Sha (also known as Daniel Sha) (Second Defendant) Xi Cai (Third Defendant)
Representation:	Counsel: U Adamiec (Solicitor) (Plaintiff)   Solicitors: Australian Federal Police (Plaintiff)
File Number(s):	2019/00238895

Judgment

1. HIS HONOUR: The Commissioner of the Australian Federal Police (“the plaintiff”) seeks orders on an ex parte basis pursuant to the Proceeds of Crime Act 2002 (Cth) (“the Act”) in respect of real property at Bella Vista (“the Bella Vista property”).

2. 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”), who is suspected to be the first defendant’s girlfriend.

3. The summons dated 31 July 2019 is supported by an affidavit affirmed by Scott Michael Mathews on 30 July 2019. Mr Mathews is a member of the Australian Federal Police and an authorised officer of the plaintiff within the meaning of s 338 of the Act.

4. Section 18(1) of the Act requires the Court to make a restraining order that property must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in the order, if certain statutory requirements are met.

5. Firstly, a proceeds of crime authority must apply for the order: s 18(1)(a). Secondly, there must be reasonable grounds to suspect that the person has committed a serious offence: s 18(1)(d). Thirdly, the affidavit requirements outlined in s 18(3) for the application must have been met, namely, that the authorising officer provides an affidavit in which he or she deposes to their suspicion that the defendant/s committed the offence and the grounds on which the suspicion is based: s 18(1)(e). Finally, s 18(1)(f) requires the Court to be satisfied that the grounds on which the suspicions are based are reasonable.

6. Section 19 of the Act is in similar terms. Section 19(1)(b) requires the Court to make a restraining order if certain statutory requirements are met. Firstly, the proceeds of crime authority must apply for the order: s 19(1)(c). There must be reasonable grounds to suspect that the property is the proceeds for indictable offence: s 19(1)(d). The application for the order must be supported by an affidavit of an authorised officer stating that he or she suspects that the property is the proceeds of the offence: s 19(1)(e). Section 19(1)(f) requires the Court to be satisfied that the authorised officer’s suspicion is based on reasonable grounds.

7. Mr Mathews, at par 15 of his affidavit, deposes to his suspicions that the first and second defendants committed three serious offences which are as follows: firstly, importing goods, being tobacco products, with the intention of defrauding the revenue contrary to s 233BABAD(1) of the Customs Act 1901 (Cth); secondly, conveying or having in their position goods, being tobacco products, which they knew were imported with intent to defraud the revenue contrary to s 233BABAD(2) of the Customs Act; and thirdly, dishonestly causing a loss to the Commonwealth contrary to s 135.1(3) of the Criminal Code (Cth). These are all serious offences and indictable offences for the purposes of the Act.

8. It is suspected that the defendants established a number of companies through which they imported tobacco products into Australia from the Philippines and intentionally underreported the number of sticks or cigarettes contained within each consignment.

9. Mr Mathews deposes to an estimation of the suspected shortfall being in the amount of A$15,570,576 avoided in total duty and $1,888,452.05 avoided in total GST.

10. In February 2016 the first and second defendants were each charged with seven counts of importing goods and two counts of attempting to import goods. The trial is scheduled to commence on 24 August 2020.

11. Mr Mathews, at par 19 of his affidavit, deposes to his suspicion that the Bella Vista property, which is registered in the name of the third defendant, is subject to the first and second defendants’ control within the meaning of s 18(2)(c) of the Act and/or property that is the proceeds and/or instrument of serious offences within the meaning of s 19(1)(e).

12. I have read Mr Mathews’ affidavit and the exhibits and I am satisfied that the suspicions deposed to by him are based on reasonable grounds, in particular in relation to ss 18(1)(f) and 19(1)(f) of the Act.

13. The plaintiff is also seeking an order pursuant to s 38 of the Act that the official trustee in bankruptcy take custody and control of the real property and, in addition, an ancillary order pursuant to s 39(1)(e), that the official trustee be permitted to gain access to the property with notice, secure the property and insure any building on the property as and when required, to the extent necessary.

14. I am satisfied that the onus borne by the plaintiff has been satisfied and, as such, it is appropriate to make the orders in the terms sought.

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Decision last updated: 15 August 2019