Ex parte application of Commissioner of the Australian Federal Police

[2015] NSWSC 1078

Supreme Court

New South Wales

Medium Neutral Citation:

Ex parte application of Commissioner of the Australian Federal Police [2015] NSWSC 1078

Hearing dates:

29 July 2015

Date of orders:

29 July 2015

Decision date:

29 July 2015

Jurisdiction:

Common Law

Before:

Hamill J

Decision:

1. Pursuant to section 49 of the Proceeds of Crime Act 2002 (Cth), the property listed in Schedule One to the summons filed in these proceedings (the Summons) be forfeited to the Commonwealth.

Schedule One
The sum of approximately AUD300,000.00 seized by the Australian Federal Police on 23 December 2014 from [REDACTED] at the branch of Westpac Banking Corporation at [REDACTED] and any interest earned thereon.

2. Pursuant to section 49 of the Proceeds of Crime Act 2002 (Cth), the property listed in Schedule Two to the Summons be forfeited to the Commonwealth.

Schedule Two
The sum of approximately AUD200,000.00 seized by the Australian Federal Police on 23 December 2014 from the business premises of [REDACTED] and any interest earned thereon.

3. Pursuant to section 49 of the Proceeds of Crime Act 2002 (Cth), the property listed in Schedule Three to the Summons be forfeited to the Commonwealth.

Schedule Three
Bank cheque number 038112 issued by Westpac Banking Corporation on 2 December 2014 in the sum of AUD50.00 drawn payable to [REDACTED] seized by the Australian Federal Police on 24 December 2014 from premises at [REDACTED] and any interest earned thereon.

4. Pursuant to section 49 of the Proceeds of Crime Act 2002 (Cth), the property listed in Schedule Four to the Summons be forfeited to the Commonwealth.

Schedule Four
Bank cheque number 038113 issued by Westpac Banking Corporation on 2 December 2014 in the sum of AUD65,648.48 drawn payable to [REDACTED] seized by the Australian Federal Police on 24 December 2014 from premises at [REDACTED] and any interest earned thereon.

Legislation Cited:

Proceeds of Crime Act 2002 (Cth)

Category:

Principal judgment

Parties:

Commissioner of the Australian Federal Police

Representation:

Solicitors:
Solicitor for the AFP

File Number(s):

2015/7095

ex tempore Judgment

1. The plaintiff is the Commissioner of the Australian Federal Police, and orders are sought under the Proceeds of Crime Act 2002 (Cth) that certain property listed and currently subject to a restraining order under the act be forfeited to the Commonwealth.

2. The history of the matter, in short, is that on 8 January 2015 Hall J gave judgment in which he made restraining orders pursuant to s 19 of the Proceeds of Crime Act. Needless to say, six months has passed since that restraining order was in force and the plaintiff now seeks, if you like, a final order, a forfeiture order relating to the same property under s 49 of the act.

3. The application is supported by an affidavit of Glyn Evan Roberts sworn 29 July 2015 and two affidavits of service, one by the aforesaid Mr Roberts sworn 26 March 2015 and one by an Erico Kusnandar sworn 14 July 2015.

4. Section 49 is in the following terms:

1. A court with * proceeds jurisdiction must make an order that property specified in the order is forfeited to the Commonwealth if:

1. the * responsible authority for a * restraining order under section 19 that covers the property applies for an order under this subsection; and

2. the restraining order has been in force for at least 6 months; and

3. the court is satisfied that one or more of the following applies:

1. the property is * proceeds of one or more * indictable offences;

2. the property is proceeds of one or more * foreign indictable offences;

3. the property is proceeds of one or more * indictable offences of Commonwealth concern;

4. the property is an instrument of one or more * serious offences; and

4. 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):

1. need not be based on a finding that a particular person committed any offence; and

2. 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:

1. no application has been made under Division 3 of Part 2-1 for the property to be excluded from the * restraining order; or

2. any such application that has been made has been withdrawn.

4. Despite subsection (1), the court may refuse to make an order under that subsection relating to property that the court is satisfied:

1. is an * instrument of a * serious offence other than a * terrorism offence; and

2. is not * proceeds of an offence;

5. if the court is satisfied that it is not in the public interest to make the order.

5. There has been, since January, an application for exclusion made by a company called Meet Fresh Australia Pty Limited, but that application was withdrawn. So that the requirements of subs (c), being the necessity to be satisfied of the fact that the property is a proceeds of crime et cetera, do not apply by virtue of the provision in s 49 subpara (3). Otherwise the requirements of subs (1) are satisfied in that a responsible authority, as defined in the act - that being, in this case, the Australian Federal Police - has made the application. The restraining order has been in place for at least six months, and I am satisfied the AFP has taken reasonable steps to identify and notify persons with an interest in the property.

6. The section then is in mandatory terms. It says that I must make the forfeiture order, and I propose to do so. Mr Staples, who appears for the Australian Federal Police, has provided me with short minutes of order. I am grateful for that, and I make orders in accordance with that document.

7. Those orders should be taken out forthwith.

**********

Decision last updated: 04 August 2015