Lordianto v Commissioner of the Australian Federal Police

This matter concerned appeals from decisions of the Supreme Court of Western Australia regarding restraining orders made by the Commissioner of the Australian Federal Police over the appellants' bank accounts. The appellants had remitted money to Australia through foreign money remitters and changers, which was then deposited into their Australian bank accounts via a method known as "cuckoo smurfing." The Commissioner alleged these deposits were the proceeds or instruments of a structuring offence under the *Anti-Money Laundering and Counter-Terrorism Financing Act 2006* (Cth). The appellants sought to have their bank accounts excluded from the restraining orders under section 330(4)(a) of the *Proceeds of Crime Act 2002* (Cth), arguing the property had ceased to be tainted.

The central legal issue before the High Court of Australia was whether the appellants had satisfied the conditions of section 330(4)(a) of the *Proceeds of Crime Act 2002* (Cth). This section requires that property, to be excluded from forfeiture, must have been acquired by a third party for sufficient consideration, and that the third party acquired it without knowledge that it was the proceeds or instrument of an offence, and in circumstances that would not arouse reasonable suspicion. The appellants bore the onus of proving these conditions on the balance of probabilities.

The High Court, in a joint judgment, considered the evidence and the way the case had been conducted at trial. It was noted that the Commissioner had not disputed that the appellants had paid Malaysian Ringgit to a money remitter in Malaysia, and that these funds ultimately led to deposits in the appellants' Australian bank accounts. The trial judge had found that the appellants had earned sufficient money to transfer the amounts to Australia. Crucially, the Commissioner had not raised the issue of whether Mrs Ganesh was a "volunteer" (i.e., had not provided sufficient consideration) at any stage of the proceedings, including in the High Court. The Court found that, in the absence of specific factual allegations or submissions from the Commissioner that Mrs Ganesh was a volunteer, it would be pure speculation to consider that possibility. Therefore, the Court concluded that, on the facts before it and the way the case was run, Mrs Ganesh stood in no different position from her husband regarding the satisfaction of section 330(4)(a).

Consequently, both appeals were dismissed with costs. The High Court upheld the decisions of the lower courts, finding that the appellants had not discharged their onus of proof to demonstrate that the property in their bank accounts had ceased to be tainted property under the *Proceeds of Crime Act 2002* (Cth).