Gwe v Commissioner of the Australian Federal Police

The appeal concerned an application to exclude property from a restraining order made under the *Proceeds of Crime Act 2002* (Cth). The appellants sought to have certain frozen property excluded from the restraining order, arguing that it was acquired in circumstances that would not arouse a reasonable suspicion that it constituted the proceeds of an offence. The Commissioner of the Australian Federal Police opposed this application. The appeal was heard by Bathurst CJ, Bell P, and Emmett AJA.

The central legal issues before the court were whether the frozen property was acquired by the appellants in circumstances that did not give rise to a reasonable suspicion that it was the proceeds of an offence, and consequently, whether an exclusion order should have been made in favour of the appellants. The court also considered the significance of the failure to cross-examine the appellants on their affidavits and whether inferences sought to be drawn by the respondent were available in the absence of such cross-examination.

The Court of Appeal allowed the appeal, finding that the primary judge erred in not making an exclusion order. The court reasoned that the appellants had provided sufficient consideration for the property and had not acted with actual knowledge that it constituted proceeds of an offence. The court emphasised that the respondent had failed to cross-examine the appellants on their affidavits, and therefore, the inferences it sought to draw were not available. The court set aside the orders of the primary judge and ordered that the appellants' interests in the property be excluded from restraint, and that funds held by the Official Trustee be paid to the appellants' solicitors. The respondent was also ordered to pay the appellants' costs.