Commissioner of the Australian Federal Police v Tjongosutiono

The case before the court was an application by the Commissioner of the Australian Federal Police (AFP) for an exclusion order under the Proceeds of Crime Act 2002, which sought to exclude certain property from being dealt with in a particular way. The property in question included an interest in a bank account into which funds were deposited by way of a process known as "cuckoo smurfing", a form of money laundering. The respondent, Tjongosutiono, contended that the property no longer constituted proceeds of crime and that the circumstances did not arouse a reasonable suspicion that it was proceeds of an offence or an instrument of an offence.

The legal issues for determination were whether the property had ceased to be proceeds of crime and whether the circumstances were such that a reasonable suspicion that the property was proceeds of an offence or an instrument of an offence would not be aroused. The court was required to consider the statutory framework and the facts of the case, including the nature of the deposits and the processes by which they were made, to ascertain whether the respondent had discharged the onus of proving that the property was not proceeds of crime or that a reasonable suspicion was not aroused.

The court found that the deposits made to the bank account were indeed proceeds of crime and that the process of "cuckoo smurfing" was a means of laundering those proceeds. It concluded that the property had not ceased to be proceeds of crime as there was no evidence to suggest that the funds had been transformed into a different form of property. The court further held that the circumstances did arouse a reasonable suspicion that the property was proceeds of an offence or an instrument of an offence, given the nature of the deposits and the process used. Consequently, the application for an exclusion order was successful.

The court ordered that the interest in the bank account be excluded from being dealt with in a way that would assist in the retention or control of the property by the respondent. The order also required the bank to transfer the funds to the Commissioner of the AFP, who would hold the proceeds pending further directions of the court.