Commissioner of the Australian Federal Police v TK
[2022] ACTSC 196
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Commissioner of the Australian Federal Police v TK |
Citation: | [2022] ACTSC 196 |
Hearing Date: | 26 July 2022 |
DecisionDate: | 26 July 2022 |
Before: | McCallum CJ |
Decision: | Make orders 1-78, 80, 81 and 82 in the originating application. |
Catchwords: | CRIMINAL LAW – PROCEEDS OF CRIME – Application for restraining orders |
Legislation Cited: | Criminal Code Act 1995 (Cth), s 400.9(1) Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 111 |
Parties: | The Commissioner of the Australian Federal Police ( Plaintiff) TK ( First Defendant) M (Second Defendant) TKM (Third Defendant) MK (Fourth Defendant) ET (Fifth Defendant) TB (Sixth Defendant) ASE (Seventh Defendant) FB (Eighth Defendant) MKF (Ninth Defendant) |
Representation: | Counsel O Scully ( Plaintiff) None (ex parte) ( Defendants) |
| Solicitors Australian Federal Police ( Plaintiff) | |
File Number: | SC 256 of 2022 |
McCallum CJ:
This is an application by the Commissioner of the Australian Federal Police for various orders including restraining orders under the Proceeds of Crime Act 2002 (Cth).
The application has been heard in closed court. That is because the orders sought include an order under s 319A of the Act for the application to be heard in closed court and in the absence of the public, and also because suppression orders are sought under s 111 of the Evidence (Miscellaneous Provisions) Act 1991 (ACT) and s 28A of the Proceeds of Crime Act. Part of the reason for seeking those orders is the need to prevent prejudice to the proper administration of justice if the defendants to the application become aware of it. In addition, in aid of the proposed execution of search warrants in relation to the two individual defendants within the next two days, the Commissioner seeks an order delaying the giving of notice of the originating application and the supporting affidavit. For reasons to which I will return, I am satisfied that it is appropriate to make the suppression orders sought and the preliminary orders sought in prayers 1 to 4 of the originating application.
The Commissioner otherwise moves today on prayers 1 to 78 of the originating application. The remaining orders seek the kind of relief appropriately determined at a later stage of the proceedings, including examination orders, forfeiture orders and pecuniary penalty orders.
The Proceeds of Crime Act is quite prescriptive as to the role of the Court in relation to an application of the present kind. The prayers for relief at 9 to 45 of the originating application seek restraining orders in respect of people suspected of committing a serious offence or serious offences pursuant to s 18 of the Act. That section provides that a court with proceeds jurisdiction, which this Court is, must make the order sought if certain conditions are satisfied.
Those conditions are as follows. First, that a proceeds of crime authority applies for the order. That is the case here. Secondly, that there are reasonable grounds to suspect that a person has committed a serious offence. I will return to that issue. Thirdly, that any affidavit requirements in sub-section (3) have been met. Following my exchanges with Ms Scully, appearing for the Commissioner, I am satisfied that they have. Fourthly, the Court must be satisfied that the authorised officer who made the affidavit holds the suspicion or suspicions deposed to on reasonable grounds.
The application here is supported by an affidavit affirmed by Officer Verity Anne LeMaitre, who is a member of the Australian Federal Police and an authorised officer within the meaning of s 338 of the Proceeds of Crime Act. The affidavit is the product of a lengthy investigation in which Officer LeMaitre has been involved. The affidavit addresses each of the categories of property specified in schedules 1 to 14 of the originating application.
I note that the types of property specified include, in schedule 14, cryptocurrency stored in an exchange account held in the name of the first defendant. The way in which that property is sought to be the subject of a restraining order by the Commissioner is on the basis that the terms on which it is held in the exchange account give rise to an obligation similar to the position with an ordinary bank account involving what I might term “real currency”. On that basis, the Commissioner contends that the cryptocurrency account gives rise to a chose in action enforceable against the entity with which the account is held.
The categories of property specified in the schedules to the originating application are otherwise very much the usual kinds of property seen in applications of this kind and no further issue arises there.
Officer LeMaitre has deposed in her careful affidavit to the suspicions that she holds in respect of the conduct of two individual defendants. In particular, she states that she suspects that TK, the first defendant, and M, the second defendant, have each committed an offence contrary to s 400.9(1) of the Criminal Code Act 1995 (Cth), being to engage in prescribed conduct in relation to money or other property that is reasonably suspected to be the proceeds of crime and when the conduct occurs, the value of the money and property was $100,000 or more. That is a serious indictable offence within the meaning of the Act.
The affidavit sets out at considerable length the basis on which the deponent holds that suspicion. There is, in short, an overwhelming body of evidence to support the suspicion, and I am satisfied that the grounds on which the officer holds her suspicions are reasonable.
In addition to the orders sought under s 18 of the Act, the originating application seeks restraining orders in respect of property suspected of being the proceeds of an indictable offence under s 19 of the Act. Again, in respect of such an application, the Act is quite prescriptive. Subsection (1) provides that a court with proceeds jurisdiction must make the order if a proceeds of crime authority applies for it and there are reasonable grounds to suspect that the property is, among other things, an instrument of a serious offence; and the application is supported by an affidavit of an authorised officer stating certain matters; and the court is satisfied that the authorised officer who made the affidavit holds the suspicion on reasonable grounds.
Again, the affidavit of Ms LeMaitre plainly satisfies those requirements and there can be little doubt in this case that she has reasonable grounds for the suspicions to which she has deposed. For present purposes, it is enough to summarise the basis for her suspicion in the terms in which Officer LeMaitre herself has summarised it in [166] of the affidavit:
“I suspect that [M has] committed the s 400.9 Offence based on the following:
a. Between November 2019 and November 2021, [M] acquired at least 5 real properties in her name, 3 real properties through company structures and 1 luxury vehicle using funds derived from [TK]’s criminal offending;
b. The acquisition of the real properties and luxury vehicle was grossly disproportionate to [M]’s declared income;
c. My suspicion that [M] gave false information regarding her employment at [ET] and income, in support of home loan applications, which she would not have otherwise been eligible for if she declared her true income;
d. My suspicion that [M] did not have a legitimate source of income despite being granted a Skilled Nominated Subclass 190 visa declaring on a home loan that she was employed by [ET] on a full-time basis as an Accounts Clerk;
e. [M] became the sole director and shareholder of [MK] and [TKM] on 28 August 2022, both of which I suspect are shell companies intended to disguise money laundering as legitimate business activities and were used to purchase real property;
f. My suspicision in that [M] dealt in proceeds of crime by purchasing real properties and a luxury vehicle using the proceeds derived from [TK]’s money laundering activities.”
Prayers 9 and 34 of the originating application seek what are termed “all property orders”. The application for orders in those terms is based on Officer LeMaitre's suspicion that there may be other property owned by TK and M, currently unknown to the AFP, which may be identified through further investigation. That suspicion is well founded, in my assessment.
Separately, the application seeks ancillary relief of the kind frequently made in such applications, including orders requiring the individual defendants to provide sworn statements as to their assets, liabilities and various dealings. I am satisfied it is appropriate to grant that relief.
Finally, the Commissioner seeks orders that, if the restraining orders are made in respect of the property specified in the originating application and also listed at [16] of Officer LeMaitre's affidavit, that the property be placed under the custody and control of the official trustee pursuant to s 38 of the Act. That section confers power on the Court to make such an order if the Court is satisfied that this is required. Plainly, that is a broad power. I am satisfied that the order is required in the present case because of the extensive dealings, or allegations of unlawful dealings, with property deposed to at length in the affidavit and the exhibit to it.
In short, the period of surveillance which has resulted in police receiving a great deal of intercepted information shows a complex and carefully orchestrated business conducted by TK, effectively washing the proceeds of crime by various means. There is every reason to think that it is appropriate for any seized property or restrained property to be placed in the control of the trustee. For those reasons, I am satisfied that it is appropriate to make orders 1 to 78 in the originating application. I am also satisfied that it is appropriate to make orders 80, 81 and 82.
| I certify that the preceding sixteen [16] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: Date: |
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