Commissioner of the Australian Federal Police v SNP - [2020] WASC 135

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE -v- SNP [2020] WASC 135
CORAM:   SMITH J
HEARD:   29 APRIL 2020
DELIVERED          :   29 APRIL 2020
PUBLISHED           :   29 APRIL 2020
FILE NO/S:   CIV 2451 of 2019
BETWEEN:   COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE
Applicant
AND
SNP
Respondent

Catchwords:

Proceeds of crime - Forfeiture order - Restraining order - Proceeds of indictable and serious offence - Application for property to be forfeited - Mandatory conditions for making the order sought

Legislation:

Criminal Code Act 1995 (Cth), s 400.9(1)
Proceeds of Crime Act 2002 (Cth), s 18, s 19, s 47, s 49, s 52, s 119, s 314, s 317, s 335(2), s 338

Result:

Forfeiture order granted

Category: B

Representation:

Counsel:

Applicant	:	Ms M Linehan
Respondent	:	No appearance

Solicitors:

Applicant	:	Australian Federal Police - Criminal Assets Litigation
Respondent	:	No appearance

Case(s) referred to in decision(s):

Nil

SMITH J:

Application for forfeiture order

This is an application by the Commissioner of the Australian Federal Police pursuant to s 49 of the Proceeds of Crime Act 2002 (Cth) (the Act) for the court to make a forfeiture order to forfeit property restrained by a restraining order made by Curthoys J on 25 September 2019.
After hearing counsel for the Commissioner, on Wednesday, 29 April 2020, I made the forfeiture order sought by the Commissioner. These are my reasons for making the order.
The Commissioner applies as a 'responsible authority' within the meaning of that term in s 338 of the Act as a 'proceeds of crime authority' within the meaning of that term in s 338.
Section 317 of the Act provides that the applicant in any proceedings under the Act bears the onus of proving the matters necessary to establish the grounds for making the order applied for, and that (subject to s 52 and s 119 not being relevant to this matter) any question of fact to be decided by the court on an application is to be decided on the balance of probabilities.

Procedural history

On 15 August 2019, the Commissioner filed a notice of originating summons seeking various orders, including:
(a)restraining orders pursuant to s 18 and s 19 of the Act; and
(b)forfeiture orders pursuant to s 47 and s 49 of the Act, in relation to specified property, being $175,100 in cash, found in the possession of SNP and seized by Australian Federal Police at Perth Airport on 19 October 2018.
On 25 September 2019, following an ex parte hearing, Curthoys J made the following restraining orders and a custody and control order in respect of the specified property:
Restraining Orders
1.Pursuant to s 18 of the Proceeds of Crime Act 2002 (Cth) (Act), it is ordered that the property identified in Schedule One must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders, or with the written consent of the Applicant.
2.Pursuant to s 19 of the Act, it is ordered that, the property specified in Schedule One must not be disposed of or otherwise dealt with by any person except in the manner and circumstance specified in these orders, or with the written consent of the Applicant.
Other Orders
3.Pursuant to s 38 of the Act, the Official Trustee is to take custody and control of the property specified in Schedule One.
4.There be liberty to all parties to apply.
SCHEDULE ONE
$175,100 seized by the Australian Federal Police from Perth Airport on 19 October 2018, after being found in the possession of [SNP], and located in AFP Official Exhibit & Seized Monies Exempt Account with BSB 092009 and account number 910393.
At the time the Order was made, his Honour had before him an affidavit by Federal Agent Paul Anthony Stewart, sworn on 15 August 2019. Federal Agent Stewart deposed as an authorised officer (within the meaning of s 338 of the Act) that:[1]
[1] Exhibit 1; affidavit of Paul Anthony Stewart, sworn 15 August 2019 [1] ‑ [8].
(a)he held a suspicion that SNP had committed an indictable, serious criminal offence of dealing with money that is reasonably suspected of being proceeds of crime, and at the time of dealing with money, the value of the money was $100,000 or more, contrary to s 400.9(1) of sch 1 to the Criminal Code Act 1995 (Cth);
(b)on 1 July 2019, SNP was charged with the offence;
(c)a witness statement had been obtained from Senior Constable Paul Steven Adams, who stated that on Friday, 19 October 2018:[2]
(i)he was on duty at Perth Airport undertaking uniform police aviation duties when he had cause to examine a black suitcase which contained Australian currency bundled together with elastic bands and packaged in five clear plastic bags which had been wrapped in a towel;
(ii)when SNP was questioned he initially said the money was his, that there was between $50,000 and $60,000 in the bag which he had saved over a long time to purchase a car in Melbourne. When questioned further SNP said that he had saved money with another friend DMT and other people whose names he did not know and that they were going to share the car. SNP then said that the money came from his friend DMT in Brisbane;
(iii)he subsequently counted the money with two other police officers and ascertained the amount was $175,050;
(iv)when counting the money he noticed the cash smelt strongly of cannabis;
(v)when the money was taken to a bank and recounted by a bank teller the total amount of the money seized was $175,100; and
(d)on 23 October 2018, a crime scene investigator, Ashley Peter Williams, conducted a forensic examination of the cash for fingerprints and DNA, and as a result of the analysis ascertained that the DNA profile of another person, JB, was matched to a DNA swab taken from the elastic bands used to bundle the currency.[3]
[2] Exhibit 1; affidavit of Paul Anthony Stewart, sworn 15 August 2019, attachment PS‑3, statement Senior Constable Paul Stephen Adams, pages 18 ‑ 20.
[3] Exhibit 1; affidavit of Paul Anthony Stewart, sworn 15 August 2019, forensic examination summary court report attachment PS‑8, page 31.

Forfeiture orders pursuant to s 49 of the Act

Pursuant to s 314 and s 335(2) of the Act, the court has jurisdiction to hear and determine the application by virtue of the fact that it has jurisdiction to deal with criminal matters on indictment in the State of Western Australia.
Section 49 of the Act provides:
(1)A court with proceeds jurisdiction must make an order that property specified in the order is forfeited to the Commonwealth if:
(a)the responsible authority for a restraining order under section 19 that covers the property applies for an order under this subsection; and
(b)the restraining order has been in force for at least 6 months; and
(c)the court is satisfied that one or more of the following applies:
(i)the property is proceeds of one or more indictable offences;
(ii)the property is proceeds of one or more foreign indictable offences;
(iii)the property is proceeds of one or more indictable offences of Commonwealth concern;
(iv)the property is an instrument of one or more serious offences; and
(e)the court is satisfied that the authority has taken reasonable steps to identify and notify persons with an interest in the property.
(2)A finding of the court for the purposes of paragraph (1)(c):
(a)need not be based on a finding that a particular person committed any offence; and
(b)need not be based on a finding as to the commission of a particular offence, and can be based on a finding that some offence or other of a kind referred to in paragraph (1)(c) was committed.
(3)Paragraph (1)(c) does not apply if the court is satisfied that:
(a)no application has been made under Division 3 of Part 2‑1 for the property to be excluded from the restraining order; or
(b)any such application that has been made has been withdrawn.
Refusal to make a forfeiture order
(4)Despite subsection (1), the court may refuse to make an order under that subsection relating to property that the court is satisfied:
(a)is an instrument of a serious offence other than a terrorism offence; and
(b)is not proceeds of an offence;
if the court is satisfied that it is not in the public interest to make the order.
Section 49(1) imposes an obligation on the court to make a forfeiture order in the event that the four conditions in s 49(1) are satisfied. The court is only released from that obligation if the court is satisfied of the matters specified in s 49(4). If the preconditions specified in s 49(4) are met, the discretion conferred by s 49(4) is only enlivened if the court is satisfied that it is not in the public interest to make a forfeiture order.
It is clear that the condition in s 49(1)(a) has been satisfied in that the Commissioner applies as a proceeds of crime authority who is the relevant responsible authority applies for the forfeiture orders of property covered by the restraining orders made by Curthoys J.
The condition in s 49(1)(b) has been satisfied. The restraining orders were made on 25 September 2019, and have continued in force since that date.
Section 49(1)(c) is satisfied. Section 400.9(1) of the Criminal Code is both an indictable offence and a serious offence for the purpose of the Act. A penalty for an offence under s 400.9(1) of the Criminal Code is imprisonment for 3 years or 180 penalty units, or both.
I am also satisfied that the condition in s 49(1)(e) has been satisfied in that I am satisfied that the authority has taken reasonable steps to identify and notify the persons with an interest in the property. An 'interest' in relation to property or a thing is defined in s 338 of the Act to mean a legal or equitable estate or interest in the property or thing, or a right, power or privilege in connection with the property or thing, whether present or future and whether vested or contingent. The steps that have been taken to identify and notify the persons with an interest in the property are as follows:
(a)SNP was served with a copy of the Commissioner's application for restraining and forfeiture orders;[4]
(b)the Order made by Curthoys J on 25 September 2019 was sent to SNP by email on 26 September 2019;[5]
(c)on 19 March 2020, a letter was sent to SNP by email[6] by Federal Agent Stewart informing SNP that by Wednesday, 25 March 2020, the restraining order made pursuant to s 19 of the Act would have been in force for six months and that after that date the Commissioner intended to write to the Supreme Court of Western Australia and request that a hearing be listed so that a forfeiture order pursuant to s 49 of the Act may be made. The letter requested that SNP advise, by the close of business on 25 March 2020, if he intended to make an application pursuant to div 3 of pt 2-1 of the Act (an application to exclude property from a restraining order). On the same day SNP sent an email to Federal Agent Stewart confirming that he had received the email with the attached letter;[7] and
(d)JB the person whose DNA was found on the elastic bands, was served with a copy of the Commissioner's application for restraining and forfeiture orders and notifying him of the restraining order and the Commissioner's intention to proceed with seeking a forfeiture order of the specified property.[8]
[4] Exhibit 2; affidavit of service of Susan Jane Perovic, sworn 29 August 2019 [3].
[5] Exhibit 4; affidavit of Paul Anthony Stewart, sworn 27 March 2020 [9].
[6] On 11 September 2019 SNP provided Federal Agent Stewart with his email address and SNP subsequently sent to Federal Agent Stewart an email from the provided email address; exhibit 3; affidavit of Paul Anthony Stewart, sworn 12 September 2019 [3].
[7] Exhibit 4; affidavit of Paul Anthony Stewart, sworn 27 March 2020, attachment PS‑23, pages 19 ‑ 21.
[8] Exhibit 3; affidavit of Paul Anthony Stewart, sworn 12 September 2019 [4], exhibit 4; affidavit of Paul Anthony Stewart, sworn 27 March 2020, page 10.
The court is released from a requirement that the condition in s 49(1)(c) must be satisfied by the effect of s 49(3) if the court is satisfied that no application has been made under div 3 of pt 2‑1 of the Act for the (restrained) property to be excluded from the 'restraining order', or that any such application has been withdrawn.
No application to exclude the restrained property from restraining orders has been made. On 20 March 2020, a legal practitioner acting for SNP sent an email to a solicitor employed by the Commissioner and Federal Agent Stewart, advising that his firm had been instructed to confirm that their client did not intend on making an application pursuant to div 3 of pt 2‑1 of the Act.[9]
[9] Exhibit 4; affidavit of Paul Anthony Stewart, sworn 27 March 2020, attachment PS‑25, pages 24 ‑ 25.
On 14 April 2019, a notice of hearing of a special appointment to hear the application of forfeiture of the specified proceeds on Wednesday, 29 April 2020 at 10.00 am was sent by email from the court to SNP and SNP's legal representative.
On the facts before the court, I am satisfied that s 49(4) of the Act is not engaged. Specifically, there is no basis on which the court could consider whether the public interest warrants such an order not being made, pursuant to s 49(4) of the Act.
For these reasons, I am satisfied that each of the relevant conditions specified in s 49(1) of the Act have been made out and there is no basis for the court to refuse the order sought.
Accordingly, I made the orders in the form of the proposed minute of orders filed on behalf of the Commissioner on 6 April 2020.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NM
Research Orderly to the Honourable Justice Smith
29 APRIL 2020