| JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIA LOCATION : PERTH CITATION : DIRECTOR OF PUBLIC PROSECUTIONS (CTH) -v- MARKER [2011] WADC 64 CORAM : MARTINO CJDC HEARD : 14 APRIL 2011 DELIVERED : 14 APRIL 2011 FILE NO/S : POC 2 of 2011 MATTER : IN THE MATTER of Applications pursuant to s 18 and s 47 of the Proceeds of Crime Act 2002 (Cth)
AND
IN THE MATTER of property of ANDREW CHICOTE MARKER
AND
IN THE MATTER of
BETWEEN : DIRECTOR OF PUBLIC PROSECUTIONS (CTH) Applicant
AND
ANDREW CHICOTE MARKER
First Respondent
NATASHA LEE COLLINS
Second Respondent
ADRIAN PETER SORENSEN
Third Respondent
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<Party Name1="DIRECTOR OF PUBLIC PROSECUTIONS (CTH)", Type1="Applicant", Name2="ANDREW CHICOTE MARKER", Type2="First Respondent", Name3="NATASHA LEE COLLINS", Type3="Second Respondent", Name4="ADRIAN PETER SORENSEN", Type4="Third Respondent",> Catchwords: Practice and procedure - Stay of proceedings pending proceedings commenced in Federal Court - Application for a restraining order Legislation: Financial Transaction Reports Act 1988 (Cth)
Proceeds of Crime Act 2002 (Cth) Result: Application for a stay dismissed in part
Restraining order made
Applications otherwise adjourned Representation: Counsel:
Applicant : Mr E W L Greaves
First Respondent : Mr B M Singh and Mr C W B Tan
Second Respondent : Mr B M Singh and Mr C W B Tan
Third Respondent : Mr B M Singh and Mr C W B Tan
Solicitors:
Applicant : Director of Public Prosecutions
First Respondent : Charles Tan Lawyers
Second Respondent : Charles Tan Lawyers
Third Respondent : Charles Tan Lawyers
Case(s) referred to in judgment(s):
Murcia & Associates v Grey [2001] WASCA 240; 25 WAR 209
Sterling Pharmaceuticals Pty Ltd v The Boots Company (Australia) Pty Ltd (1992) 34 FCR 287
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1 MARTINO CJDC: By an originating motion dated 28 January 2011 the Commonwealth Director of Public Prosecutions (the DPP) applies pursuant to s 18 of the Proceeds of Crime Act 2002 (Cth)for a restraining order in respect of property listed in a schedule to the motion, pursuant to s 180 for an order that each of the first respondent, Mr Marker, the second respondent, Ms Collins and the third respondent, Mr Sorensen, be examined about each respondent's affairs and the affairs of the other respondents, including the nature and location of any property, and, pursuant to s 47(1) an order that the property listed in the schedule be forfeited to the Commonwealth. The property listed in the schedule is $132,640 in cash and various other bank notes and coins, some Australian and some foreign. The Australian bank notes and coins include currency denominated in pounds, shillings and pence.
2 The application has been served on the respondents and a memorandum of appearance has been filed for them. The application does not seem to be in the correct form. By reason of O 81F r 2(3)(a)(ii) of the Rules of the Supreme Court 1971 it would appear that the application should have been by originating summons. However the respondents have remedied the applicant's procedural irregularity by filing the memorandum of appearance. 3 In support of the application the DPP filed an affidavit of Federal Agent Steven Craig Perrot made 27 January 2011 and an undertaking as to damages in respect of the restraining order for which the DPP applies. The DPPs' application first came before me on 3 March 2011. The respondents had filed a summons for a stay of proceedings, an affidavit of Mr Marker, an affidavit of Ms Collins and an affidavit of Mr Sorensen, all made on 22 February 2011. After hearing submission on 3 March 2011 I listed the respondents' application for a stay and the DPPs' application for a restraining order for today and gave directions for the filing of further affidavits and submissions. Mr Sorensen has filed another affidavit, made on 10 March 2011. 4 The respondents' application for a stay of this action seeks an order that the action be stayed pending the determination of an action commenced in the Federal Court on 2 November 2011 by Mr Sorensen. 5 The property in respect of which the DPP makes the application was obtained by Australian Federal police officers when they executed search warrants in 2007. Some of the property was seized by police officers on 4 April 2007 when they executed a search warrant on a safe custody box held by the Westpac Bank in the name of Lily Kelly. The remainder of (Page 4)
the property was seized by police officers on 25 May 2007 when they executed a search warrant on the premises of Mr Marker and Ms Collins. The bank notes and coins are very valuable. In August 2007 a numismatic dealer, who inadvertently overlooked one item, appraised the value of the bank notes and coins as being $1,012,893. 6 On 25 May 2007 Ms Collins provided to the Australian Federal Police (the AFP) a statutory declaration made on 22 May 2007. In that statutory declaration Ms Collins declared that Lily Kelly is her aunty, that she had Ms Kelly's permission to use the Westpac safe custody box, that Ms Kelly did not know what Ms Collins was storing in the safe custody box, that Ms Collins was using the safety deposit box to store Mr Sorenson's numismatic investment portfolio and cash and that the cash had been won gambling. 7 On 16 December 2007 Mr Sorenson provided to the AFP a statutory declaration made on the same day in which he declared that he was the owner of all the items seized by the AFP from the safe custody box other than a coin and a bank note which were the property of Mr Marker. Mr Sorenson declared that the bulk of the coins and bank notes had been purchased for him by Mr Marker, that the property was held in trust for him by Ms Collins to protect his assets from potential de facto claims and that the cash was derived from gambling. In that statutory declaration Mr Sorenson asked the AFP to return the property to his lawyer. 8 On 8 January 2008 Mr Marker provided to the AFP a statutory declaration made on the same day in which he declared that he was the owner of three items seized by the AFP from the safe custody box, being the two items that had been referred to in Mr Sorenson's statutory declaration and another item. In that statutory declaration Mr Marker asked the AFP to return the three items to his lawyer. 9 By letter dated 13 September 2010 Mr Sorensen's solicitor Charles Tan wrote to the AFP, for the attention of Federal Agent Perrot, enquiring as to the situation with respect to the property seized and informing the AFP that Mr Sorensen's instructions were that there was no basis for the seizure and that the property should be returned. 10 By letter dated 14 October 2010 Mr Tan, acting on behalf of Mr Marker and Mr Sorensen, wrote to the Commissioner of the AFP demanding the return of all property seized by the AFP from the safe custody box and from the premises of Mr Marker and Ms Collins and also (Page 5)
property seized from the premises of Mr Marker and Ms Collins when a search warrant was executed on 2 April 2007. 11 By letter dated 26 October 2010 Ms Justine Gough, the acting manager of the Perth office of the AFP, replied to Mr Tan's letter of 14 October 2010 to the Commissioner of the AFP. In that letter Ms Gough informed Mr Tan that the property was seized pursuant to s 3E of the Crimes Act 1914 (Cth) search warrants, that a brief of evidence requiring items from all three property seizures as evidence would be submitted to the DPP in November 2010, that the charges proposed in the brief would be multiple charges of offences contrary to s 400.9 of the Criminal Code 1995 (Cth), that a brief of evidence requiring items from all three property seizures as evidence was currently before the DPP for Western Australia for consideration in commencing proceeds of crime action under Western Australian legislation and that property not required for the briefs was available for collection by the person entitled to it. The property not required for the briefs was listed in a schedule to the letter. It did not include the cash, the coins or the bank notes. 12 By an action commenced in the Federal Court on 2 November 2010 Mr Sorensen applied under the Administrative Decisions (Judicial Review) Act 1977 (Cth) for review of the decision not to return the seized property to him and made a common law claim in detinue. The respondents to that action are the police officer who seized the property under the search warrants and the Commissioner of the AFP. I have been informed that the respondents to the Federal Court action have applied for a stay of that action pending determination of this action and that the stay application in the Federal Court has been listed for hearing in that court on 21 April 2011. By their application for a stay of this action the respondents seek that stay pending determination of the Federal Court action. 13 It is only the DPPs' application for a restraining order that is being pursued today. However to determine the respondents' stay application it is necessary to consider the whole of the DPPs' application in this court. The application is not based on any of the respondents having been convicted of or charged with any offence. The application seeks orders under s 18 of the Proceeds of Crime Act 2002 (Cth) for a restraining order based on a person being suspected of having committed an offence, under s 180 of the Proceeds of Crime Act 2002 (Cth) for examination orders relating to restraining orders and under s 47 of the Proceeds of Crime Act 2002 (Cth) for forfeiture orders based on conduct constituting serious offences. (Page 6)
14 Each of s 18 and s 47 provide that a court with 'proceeds jurisdiction' has power to make the restraining order and the forfeiture order respectively. Section 180 provides that the court which made the restraining order, or any court which could have made the restraining order, may make an examination order. By s 314 of the Proceeds of Crime Act 2002 (Cth) state courts have jurisdiction under the Act. Section 335(2)(b) provides that where all or part of conduct constituting an offence is reasonably suspected of having occurred in a state or territory, the courts that have proceeds jurisdiction for the order are those with jurisdiction to deal with criminal matters on indictment in that state or territory. The DPPs' application is based on bank deposits alleged to have been made by Mr Marker in Western Australia. If the DPP makes out the case for the orders sought then the District Court of Western Australia has proceeds jurisdiction because at least part of the conduct of the suspected offences would be reasonably suspected of having occurred in Western Australia. By s 335(7) the Federal Court would not have proceeds jurisdiction because its jurisdiction is limited to cases based on a proposal that a person be charged with an offence, a person having been charged with an offence or a person's conviction of the offence. 15 The District Court does not have the inherent jurisdiction of the Supreme Court in civil matters: Murcia & Associates v Grey [2001] WASCA 240; 25 WAR 209. However the court does have incidental powers which are necessary for the exercise of the jurisdiction conferred upon it and those powers are sufficient, at least, to enable it to correct irregularities in its procedures and rules and to prevent abuses of its process: Murcia per Steytler J at [16]. The court therefore does have power to grant a temporary stay of a civil action in appropriate circumstances. 16 The Federal Court is a superior court of record. The action commenced in that court by Mr Sorensen was commenced before the action commenced in this court. If that action could determine the matters to be determined in this court then I would conclude that it would be appropriate to stay this action to enable that court to determine the issues. It is undesirable for two courts to compete to see which of them should determine common facts first and for time and resources to be expended on determining the same issues in different courts: Sterling Pharmaceuticals Pty Ltd v The Boots Company (Australia) Pty Ltd (1992) 34 FCR 287 per Lockhart J at 291. However the Federal Court does not have proceeds jurisdiction in the circumstances of this case and so does not have jurisdiction to determine the matters raised in this action. (Page 7)
17 Section 18 of the Proceeds of Crime Act 2002 (Cth) requires this court to make the restraining order applied for if conditions specified in the section are satisfied. The issues raised by Mr Sorensen in the Federal Court action are whether there are reasonable grounds for the respondents to that action to be satisfied that the property is required for a purpose mentioned in s 3ZQU of the Crimes Act 1914 (Cth) or other judicial or administrative proceedings, whether the respondents' reasons for retaining the property are tainted by mala fides and whether Mr Sorensen is entitled to possession of the property. 18 The DPPs' case under s 18 is that Mr Marker has committed serious offences and that the property is property of Mr Marker. The DPP has filed the affidavit of Federal Agent Steven Craig Perrot to which I have referred. Annexure A to that affidavit is a print out of his authorisation as an officer under s 338 of the Proceeds of Crime Act 2002 (Cth). For the restraining order to be made all of the following must be satisfied: 1. There are reasonable grounds to suspect that Mr Marker has committed a serious offence; 2. The affidavit of Federal Agent Perrot must state that he suspects that Mr Marker has committed the serious offence; 3. The affidavit must include the grounds on which Federal Agent Steven Craig Perrot holds the suspicion; 4. The court must be satisfied that Federal Agent Steven Craig Perrot holds the suspicion on reasonable grounds; and 5. The court must be satisfied that there are reasonable grounds to suspect that the property in respect of which the application is made is Mr Marker's property. 19 The determination of those matters requires determination of provisional matters only. It does not require a final determination that Mr Marker has committed a serious offence or a determination that the property is his property. By reason of the mandatory requirement of s 18 that the court must make a restraining order if conditions are satisfied, the fact that the Federal Court does not have proceeds jurisdiction and the fact that the determination of the application for the restraining order does not involve any final determination of whether an offence has been committed or who owns the property, I conclude that I should determine the (Page 8)
restraining order application but should decline to hear the application for the examination orders or for the forfeiture order at least until after the hearing of the application for the stay of the Federal Court action. 20 In his affidavit Federal Agent Perrot deposes that he suspects that the first respondent has committed three offences against s 31 of the Financial Transaction Reports Act 1988 (Cth)in that he conducted transactions to avoid reporting requirements. The three offences are suspected to have been committed between 24 May 2005 and 3 August 2005. The first offence is alleged to have concerned a total of $30,368, the second offence is alleged to have concerned a total of $20,460 and the third offence is alleged to have concerned a total of $37,000, so Federal Agent Perrot suspects that transactions in breach of the section totalled more than $50,000 in value during a six month period. 21 A serious offence is defined in s 338 of the Proceeds of Crime Act 2002 (Cth). The offences that Federal Agent Perrot suspects that the first respondent has committed come within par (e) of that definition. 22 In 2000 Mr Marker was charged with possession of a prohibited drug with intent to sell or supply, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). On 30 January 2001 in the Supreme Court of Western Australia a freezing order on property owned or controlled by Mr Marker and by Opulent Assets Pty Ltd was made, pursuant to the Criminal Property Confiscation Act 2000 (WA). On 15 March 2002 in this court Mr Marker was sentenced to 6 years and 8 months imprisonment for the offence against the Misuse of Drugs Act 1981 (WA). He was released from prison on 24 January 2004. On 18 August 2005 the Supreme Court of Western Australia made orders by consent setting aside the freezing order in respect of property claimed by Ms Collins. An Australian Securities and Investments Commission historical company extract for Opulent Assets Pty Ltd dated 20 June 2007 is Annexure C to Federal Agent Perrot's affidavit. It shows that the company's director was Ms Collins and that Ms Collins and Mr Marker each owned one half of the company's issued shares. Mr Marker's address is shown as 54 Bruce Street Como, Western Australia. 23 The first offence that Federal Agent Perrot suspects that Mr Marker committed is that between 24 May 2005 and 31 May 2005 Mr Marker, using false names, was party to two or more transactions, namely four cash deposits into Roxbury Auction House ANZ Bank account, so as to avoid reporting requirements. The grounds for his suspicion that Mr Marker has committed that offence include information provided to (Page 9)
the AFP by Robert Innes, a director of Roxbury Auction House and documentation supplied by the ANZ Bank. Annexure N to Federal Agent Perrot's affidavit is a copy of the statement of Robert Innes. 24 Roxbury Auction House deals in numismatic items. On 19 May 2005 it held an auction. Prior to the auction it received bidding registrations from Natasha Collins of 148 Harper Road, Banjup, Andrew Smith of 54 Bruce Street, Como, Edwin Tan care of Lot 175 Fairlie Road, Canning Vale and Oakie Sanartra of 27 Burke Drive, Attadale. The telephone contact number for Andrew Smith, Edwin Tan and Oakie Sanartra was the same. Purchases were made at the auction by Natasha Collins, Opulent Assets, Edwin Tan and Oakie Sanartra. Opulent Assets purchased seven items for a total of $30,530.50. After the auction Mr Innes met Natasha Collins and her partner, who identified himself as Andrew. 25 Payment for the items purchased by Opulent Assets was made by four cash deposits into Roxbury Auction House's bank account and by a cash payment of $162.50 to Roxbury Auction House on 25 May 2005. The four deposits were a deposit of $8,500 made by Andrew Smith at the ANZ branch in Morley on 24 May 2005, a deposit of $8,750 by Edwin Tan at the Commonwealth Bank branch in Kwinana on 24 May 2005, a deposit of $8,750 by Edwin Tan at the ANZ branch in Cannington on 24 May 2005 and a deposit of $4,368 by E Tan at the ANZ branch in Cannington on 31 May 2005. 26 Federal Agent Perrot suspects that Mr Marker is the person Andrew who met Mr Innes with Natasha Collins and that Mr Marker made the four cash deposits. The grounds for his suspicions are that Mr Marker's first name is Andrew, that he was Ms Collins' partner at the time, that the address given for Andrew Smith to Roxbury Auction House was Mr Marker's address, that by reason of the freezing order Mr Marker had a motive to conceal his identity, that in his statutory declaration of 8 January 2008 Mr Marker has declared that he is the owner of items which match items purchased by a person who gave his name as Andrew Smith, that in his statutory declaration dated 16 December 2007 Mr Sorensen has declared that items seized by the AFP, some of which matched items purchased at the auction on 19 May 2005, were purchased by Mr Marker, that the mobile telephone number provided to Roxbury Auction House for Andrew Smith, Edwin Tan and Oakie Sanartra was a Vodafone telephone number for which the subscriber was shown to be Adam Sanders, there are no electoral roll or WA Police database entries for that name, that there are no electoral roll entries for Edwin Tan, that an (Page 10)
Edwin Kim-Haw Tan was not in Australia in May 2005, that the address given to Roxbury Auction House for Edwin Tan was not an address at which anyone lived and that items matching those purchased in the name of Edwin Tan and Oakie Sanartra were found by AFP officers on 4 April 2007 when they executed a search warrant on the safe custody box held by the Westpac Bank. 27 I conclude from this evidence that Federal Agent Perrot's suspicions that Mr Marker is the person Andrew who met Mr Innes with Natasha Collins and that Mr Marker made the four cash deposits are held on reasonable grounds. 28 The second offence that Federal Agent Perrot suspects that Mr Marker committed is that between 27 July 2005 and 16 August 2005 Mr Marker, using false names, was party to two or more transactions, namely three cash deposits into Colonial Coins & Medals NAB Bank account, so as to avoid reporting requirements. The grounds for his suspicion that Mr Marker has committed that offence include information provided to the AFP by Peter Brooks, the proprietor of Colonial Coins & Medals and documentation supplied by the NAB Bank. Annexure Q to Federal Agent Perrot's affidavit is a statement of Mr Brooks. 29 Colonial Coins & Medals sells and auctions numismatics in Brisbane. On 23 July 2005 Colonial Coins & Medals conducted an auction in Brisbane. Prior to the auction Mr Brooks had met a woman named Natasha and a man named Andrew who provided his name as Andrew Smith and gave his address as a post office box in Success, Western Australia. Mr Brooks mailed a catalogue to that address. 30 Andrew Smith purchased four items for a total of $20,460. Payment for those items was made by three cash deposits into Colonial Coins & Medals' bank account by Andrew Smith. The three cash deposits were a deposit of $4,800 on 27 July 2005, a deposit of $8,000 at the NAB branch in Victoria Park on 8 August 2005 and a deposit of $7,660 at the NAB branch in Cannington on 16 August 2005. 31 Federal Agent Perrot suspects that Mr Marker is the person Andrew Smith who met Mr Brooks and that Mr Marker made the three cash deposits. The grounds for his suspicions are that Mr Marker used the name Andrew Smith to which I have already referred, that the postal address that was provided to Mr Brooks was an address in the name of Ms Collins, that the address given by Andrew Smith when making the three deposits was an address at which no person lived at the time, that by (Page 11)
reason of the freezing order Mr Marker had a motive to conceal his identity, that in his statutory declaration of 8 January 2008 Mr Marker has declared that he is the owner of a Waitangi proof set, which matches an item purchased by Andrew Smith from Colonial Coins & Medals, that an item purchased by Andrew Smith from Colonial Coins & Medals matches an item found on 4 April 2007 by the AFP when they executed a search warrant on a safe custody box held by the Westpac Bank and that items purchased by Andrew Smith matches items found by the AFP on 24 May 2007 when they executed a search warrant at Mr Marker and Ms Collins' premises in Banjup. 32 I conclude from this evidence that Federal Agent Perrot's suspicions that Mr Marker is the person who met Mr Brooks and that Mr Marker made the three cash deposits are held on reasonable grounds. 33 The third offence that Federal Agent Perrot suspects that Mr Marker committed is that between 27 July 2005 and 3 August 2005 Mr Marker, using false names, was party to two or more transactions, namely four cash deposits into International Numismatics Westpac Bank account, so as to avoid reporting requirements. The grounds for his suspicion that Mr Marker has committed that offence include information provided to the AFP by Darren Harris, the director of the company that trades as International Numismatics and documentation supplied by Westpac. Annexure S to Federal Agent Perrot's affidavit is a copy of the statement of Mr Harris. 34 International Numismatics carries on the business of the mail order sale of numismatic items. On 27 July 2005 International Numismatics sold to Andrew Smith care of Natasha Collins of an address in Padbury an 1852 Adelaide Pound for $37,000. On 17 August 2005 International Numismatics sold another Adelaide Pound to the same person for $17,000. 35 In the period from 27 July 2005 to 3 August 2005 four cash deposits of $9,250 were made to International Numismatics Westpac Bank account. Westpac is unable to locate a deposit slip for one of those transactions. The three deposits for which Westpac can locate the deposit slips were a deposit made on 27 July 2005 at Cannington by Adam Samson, a deposit on 3 August 2005 at St George's Terrace by Adam Samson and a deposit on 3 August 2005 at Cannington by Andrew Smith. (Page 12)
36 Federal Agent Perrot suspects that Mr Marker is the person Andrew Smith who purchased the two Adelaide Pounds and that Mr Marker made the four cash deposits. The grounds for his suspicions are that Mr Marker used the name Andrew Smith to which I have already referred, that by reason of the freezing order Mr Marker had a motive to conceal his identity, that two Adelaide Pound coins mounted on cardboard contained handwriting which Mr Harris has informed Federal Agent Perrot he recognises from items sold by International Numismatics, that in his statutory declaration of 16 December 2007 Mr Sorensen declared that various items, including items matching the two Adelaide Pounds sold by International Numismatics were purchased for him by Mr Marker, that the four deposits were made to pay for the first Adelaide Pound purchased, that the name Adam Samson does not appear on the electoral roll or the WA Police database and that the Adelaide Pound paid for matches an item found on 4 April 2007 by the AFP when they executed a search warrant on a safe custody box held by the Westpac Bank. 37 I do not understand the reference to handwriting. I therefore do not regard that as a reasonable ground for the suspicions to be held. However, on the basis of the other grounds, I conclude that Federal Agent Perrot's suspicions are held on reasonable grounds. 38 Federal Agent Perrot also deposes that he suspects that the deposits he suspects were made by Mr Marker were made to avoid reporting requirements under the Financial Transaction Reports Act 1988 (Cth). The grounds for his suspicions are that the deposits were all for amounts under the reporting threshold of $10,000, the use of suspected false names and of different bank branches to make the deposits and that by reason of the freezing order Mr Marker had a motive to conceal his involvement in the transactions. I conclude from the evidence that Federal Agent Perrot holds this suspicion on reasonable grounds and so I conclude that his suspicion that Mr Marker has committed serious offences is held on reasonable grounds. 39 Federal Agent Perrot has also deposed that he suspects that the bank notes, coins and cash found on 4 April 2007 by AFP officers when they executed a search warrant on the safe custody box held by the Westpac Bank and the bank notes and coins found on 25 May 2007 when AFP officers executed a search warrant on Mr Marker and Ms Collins' premises at Banjup are Mr Marker's property. The grounds on which he holds the suspicion with respect to the bank notes and coins are his suspicions that the items were purchased by Mr Marker, which Mr Sorensen has declared in his statutory declaration, the fact that a (Page 13)
Mr Dirk Pot, the proprietor of Rainbow Rarities, has told AFP officers that Andrew Marker purchased many valuable numismatic items from him and that Andrew Marker told Mr Pot that he was purchasing some items for himself and some for his father inlaw, that a large number of numismatic magazines and valuation guides were located at Mr Marker's premises, that the safe deposit box was operated by Ms Collins, who was Mr Marker's de facto partner, the implausibility of Mr Sorensen's assertion that he used Mr Marker to purchase the items to be stored by Ms Collins, the fact that Mr Sorensen is a close friend and associate of Mr Marker and Federal Agent Perrot suspects that he may be prepared to collude with Mr Marker, Federal Agent Perrot’s suspicions that Mr Marker used a false name and that Mr Marker had a motive to deny ownership of property at the time that a freezing order was in place. The grounds on which he holds the suspicion with respect to the cash are his suspicions that the items found with the cash belong to Mr Marker, the fact that cardboard templates similar to those used to secure the cash were found at the premises of Mr Marker and Ms Collins, Federal Agent Perrot's view that Mr Sorensen's explanation of gambling winnings is implausible and that Mr Marker had a motive to deny ownership of items at the time that a freezing order was in place. 40 In his affidavit of 22 February 2011 Mr Marker deposes that he has no interest in the property the subject of the application other than three items, which he identifies, which he deposes belong to him. He also deposes that following the execution of search warrants by federal police in 2007 he was charged with being in possession of money reasonably suspected of being the proceeds of crime. That charge was discontinued and $99,000 seized by the police officers in the execution of the search warrant at his home was returned to him. 41 In her affidavit of the same date Ms Collins has deposed that apart from the three items which belong to Mr Marker the items in the schedule belong to Mr Sorensen. 42 In his affidavit of 22 February 2011 Mr Sorensen has deposed that apart from three items which belong to Mr Marker the items seized which are the subject of this action belong to him. Mr Sorensen has also deposed to the steps that he has taken in his Federal Court action and to his belief that this action is frivolous, vexatious and an abuse of process. In his affidavit of 10 March 2011 Mr Sorensen has repeated his evidence as to the ownership of items, has given more detailed evidence as to his reasons for being concerned that his former partner might claim his assets (Page 14)
and as to his gambling winnings, including annexing a large number of copy of receipts as to his gambling winnings. 43 I have already referred to the provisional nature of findings on an application under s 18 of the Proceeds of Crime Act 2002 (Cth) and of the mandatory requirement of the making of an order if the conditions in the section are satisfied. Nothing in the affidavits of the respondents causes me to doubt the reasonableness of Federal Agent Perrot's suspicion that all of the property the subject of this application is the property of Mr Marker. I am satisfied that there are reasonable grounds to suspect that the property the subject of the application is the property of Mr Marker. 44 In his oral submissions today counsel for the respondents has submitted that the use of the word 'may' in the heading to s 18(2) grants a discretion as to whether I grant a restraining order over all the property. In my view the heading cannot detract from the clear wording of the section. I conclude that I have no discretion as to the making of the restraining order over all property reasonably suspected of being the property of Mr Marker in respect of which the application is made. 45 For the reasons that I have expressed I am satisfied that I am required to make the restraining order that is sought on the undertaking as to damages to which I have referred and I will do so. I will otherwise adjourn the application to a date in approximately one month's time.
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