Ex Parte

[2006] WASC 233

EX PARTE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS [2006] WASC 233

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2006] WASC 233
Case No:	CIV:1649/2006	Heard:	8 AUGUST 2006
Coram:	MARTIN CJ	Delivered:	8/08/06
No of pages:	4	Judgment Part:	1 of 1
Result:	Application allowed
Category:	B
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Parties:	COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
Catchwords:	Ex parte application for restraining order in respect of real estate situated in Western Australia
Legislation:	Proceeds of Crime Act 2002 (Cth), s 19
Case References:	Nil Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : EX PARTE COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS [2006] WASC 233 CORAM : MARTIN CJ HEARD : 8 AUGUST 2006 DELIVERED : 8 AUGUST 2006 FILE NO/S : CIV 1649 of 2006 MATTER : An application pursuant to section 19 of the Proceeds of Crime Act 2002 (Cth) EX PARTE

COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS
Applicant

Catchwords:

Ex parte application for restraining order in respect of real estate situated in Western Australia

Legislation:

Proceeds of Crime Act 2002 (Cth), s 19

Result:

Application allowed

(Page 2)

Category: B

Representation:

Counsel:

Applicant : Mr G T J Farley

Solicitors:

Applicant : Commonwealth Director of Public Prosecutions

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

Nil

Case(s) also cited:

Nil

(Page 3)

1 MARTIN CJ: This is an application for an order pursuant to s 19 of the Proceeds of Crime Act 2002 (Cth) ("the Act"). The application is for a restraining order in respect of identified real estate situated in Western Australia.

2 The application is supported by an affidavit from an officer of the Federal Police who deposes that he is "Authorised to make this affidavit". I take that to be evidence of the proposition that he has been authorised by the Commissioner of Police to make the affidavit and will read the paragraph of his affidavit in that way. In future proceedings of this kind, it might be preferable for the affidavit to specifically enunciate the authority provided for by the Commissioner. Further, if there is an instrument evidencing that authority, perhaps it can be annexed to the affidavit.

3 Section 19 of the Act provides that a court with proceeds jurisdiction - which is this Court because this Court has jurisdiction in respect of indictable criminal matters - must order that property must not be disposed of or otherwise dealt with by any person, or alternatively, must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in the order if certain prerequisites are met. The first of those prerequisites is that the DPP applies for the order and that has been done in this case. The second prerequisite is reasonable grounds to suspect that the property is relevantly, for the purposes of this case, the proceeds of a foreign indictable offence; and that the offence was committed within the six years preceding the application.

4 In this case, the reasonable grounds to suspect that the property is the proceeds of a foreign indictable offence are deposed to by the police officer to whose affidavit I have already referred. Essentially the reasonable grounds rest upon information received from foreign investigative authorities and attached to the affidavit of the police officer.

5 Those authorities have given the police officer grounds to suspect, and I consider on reasonable grounds, that on 15 August 2000 two named persons committed an offence of embezzlement of approximately $US15 million from a bank in Germany. The police officer's affidavit also sets out the circumstances that give rise to the suspicion that part of the proceeds of that crime have in fact been used to purchase the real estate in Western Australia to which I have already referred. For that reason, in my opinion, the second prerequisite is met.

(Page 4)

6 The third prerequisite is a requirement that the application for the order be supported by an affidavit of an authorised officer stating that he suspects that the property is proceeds of the offence and includes the grounds on which he holds that suspicion. As I have already observed, the affidavit, read as I read it, meets that requirement and sets out the grounds upon which the officer holds the suspicion.

7 I have observed that the offence which it is suspected was committed, was committed on 15 August 2000 and is therefore within the six-year period specified by the section.

8 The fourth requirement is that the Court be satisfied that the authorised officer who made the affidavit holds the suspicions stated in the affidavit on reasonable grounds and I have already addressed that aspect when dealing with the second requirement. For those reasons it seems to me that the prerequisites for making an order under the section are satisfied and therefore I am obliged to make the order.

9 The order I think I should make is in terms of the first limb of the section; that is, that the property must not be disposed of or otherwise dealt with by any person, but I would add the rider that that course not be taken without prior leave of the Court. I will not make any order or direction giving liberty to apply for the revocation of that order because those rights are conferred by the Act itself.

10 The order I propose to make is:

1. Pursuant to section 19 of the Proceeds of Crime Act 2002 (Cth) the following specified property, being the property referred to as Lot 23 on Strata Plan 24594, Register Number 23/SP24594, Volume 1969 Folio 478, also known as Mount Eliza Apartments, 23/71 Mount Street, Perth, must not be disposed of or otherwise dealt with by any person except by prior leave of the Court.