Re Application Pursuant to Section 19 of the Proceeds of Crime Act 2002 (Cth);
[2014] WASC 390
•24 OCTOBER 2014
RE APPLICATION PURSUANT TO SECTION 19 OF THE PROCEEDS OF CRIME ACT 2002 (CTH); EX PARTE COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE [2014] WASC 390
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 390 | |
| Case No: | CIV:2440/2014 | 20 OCTOBER 2014 | |
| Coram: | ALLANSON J | 24/10/14 | |
| 10 | Judgment Part: | 1 of 1 | |
| Result: | Application granted | ||
| B | |||
| PDF Version |
| Parties: | COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE |
Catchwords: | Restraining order Proceeds of Crime Act 2002 (Cth) s 19 Ex parte application Reasonable grounds for suspicion Turns on own facts |
Legislation: | AntiMoney Laundering and CounterTerrorism Financing Act 2006 (Cth), s 5, s 43, s 142 Criminal Code (Cth), s 400.2, s 400.9 Proceeds of Crime Act 2002 (Cth), s 15B, s 19, s 21, s 25, s 26, s 42, s 329, s 335, s 338 |
Case References: | Director of Public Prosecutions (SA) v Tregenza [2002] SASC 414; (2002) 84 SASR 346 Ex parte The Commissioner of the Australian Federal Police [2012] WASC 252 George v Rockett [1990] HCA 26; (1990) 170 CLR 104 Hussien v Chong Fook Kam (1970) AC 942 Queensland Bacon Pty Ltd v Rees [1966] HCA 21; (1966) 115 CLR 266 Walsh v Loughnan [1991] 2 VR 351 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
AUD 1,492,416.26 held in Australian and New Zealand Banking Group Limited account numbers 016318392765167 in the name of MICHAEL DASS Macquelene Patricia and 016318289838452 in the name of KALIMUTHU Ganesh and AUD 974,520.21 held in Commonwealth Bank of Australia account number 06616510338576 in the name of KALIMUTHU Ganesh
COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE
Applicant
Catchwords:
Restraining order - Proceeds of Crime Act 2002 (Cth) s 19 - Ex parte application - Reasonable grounds for suspicion - Turns on own facts
Legislation:
AntiMoney Laundering and CounterTerrorism Financing Act 2006 (Cth), s 5, s 43, s 142
Criminal Code (Cth), s 400.2, s 400.9
Proceeds of Crime Act 2002 (Cth), s 15B, s 19, s 21, s 25, s 26, s 42, s 329, s 335, s 338
Result:
Application granted
Category: B
Representation:
Counsel:
Applicant : Ms J D Alderson
Solicitors:
Applicant : Australian Federal Police - Proceeds of Crime Litigation
Case(s) referred to in judgment(s):
Director of Public Prosecutions (SA) v Tregenza [2002] SASC 414; (2002) 84 SASR 346
Ex parte The Commissioner of the Australian Federal Police [2012] WASC 252
George v Rockett [1990] HCA 26; (1990) 170 CLR 104
Hussien v Chong Fook Kam (1970) AC 942
Queensland Bacon Pty Ltd v Rees [1966] HCA 21; (1966) 115 CLR 266
Walsh v Loughnan [1991] 2 VR 351
1 ALLANSON J: This application was heard on 20 October 2014. I made orders immediately, with reasons to be published. These are my reasons for making the orders.
The application
2 The application is made pursuant to s 25 of the Proceeds of Crime Act 2002 (Cth). Unless otherwise indicated, references in these reasons to sections are to the provisions of that Act.
3 The applicant applies for a restraining order under s 19 in these terms:
Pursuant to Section 19 of the Proceeds of Crime Act 2002 (Cth) (the Act) the following specified property:
a. Australia and New Zealand Banking Group Limited (ANZ) account number 016318392765167 in the name of Michael Dass MACQUELENE PATRICIA or Macquelene Patricia MICHAEL DASS, including all funds standing to the credit of the aforesaid account together with any interest accruing to that account
b. ANZ account number 016318289838452 in the name of Ganesh KALIMUTHU, including all funds standing to the credit of the aforesaid account together with any interest accruing to that account
c. Commonwealth Bank of Australia (CBA) account number 06616510338576 in the name of Ganesh KALIMUTHU, including all funds standing to the credit of the aforesaid account together with any interest accruing to that account
(collectively the Property)
must not be disposed of or otherwise dealt with by any person except as specified by these orders.
4 Section 19(1) provides:
A court with proceeds jurisdiction must order that:
(a) property must not be disposed of or otherwise dealt with by any person; or
(b) property must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in the order;
if:
(c) a proceeds of crime authority applies for the order; and
(d) there are reasonable grounds to suspect that the property is:
(i) the proceeds of a terrorism offence or any other indictable offence, a foreign indictable offence or an indictable offence of Commonwealth concern (whether or not the identity of the person who committed the offence is known); or
(ii) an instrument of a serious offence; and
(e) the application for the order is supported by an affidavit of an authorised officer stating that the authorised officer suspects that:
(i) in any case—the property is proceeds of the offence; or
(ii) if the offence to which the order relates is a serious offence—the property is an instrument of the offence;
and including the grounds on which the authorised officer holds the suspicion; and
(f) the court is satisfied that the authorised officer who made the affidavit holds the suspicion stated in the affidavit on reasonable grounds.
5 This court has proceeds jurisdiction under s 335, as at least part of the conduct constituting the relevant offences on which the applicant relies occurred in Western Australia.
6 The application has been made by the Commissioner of the Australian Federal Police, who is a proceeds of crime authority: s 338.
7 The Commonwealth has given an undertaking under s 21 with respect to the payment of damages or costs, or both, for the making and operation of the order.
8 The application is supported by the affidavit of Graeme Leigh Marshall, affirmed 17 October 2014. I am satisfied that Federal Agent Marshall is an authorised officer.
9 Federal Agent Marshall states in his affidavit that he suspects that the funds in the three accounts are the proceeds of an indictable offence, an instrument of a serious offence, or both. He states his reasons for that suspicion. The primary question in this application is whether he holds that suspicion on reasonable grounds.
10 To understand the grounds for suspicion, it is necessary first to consider the relevant offences.
11 Two offences are identified in this application: under s 400.9(1) of the Criminal Code (Cth) and s 142 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth). Each of those offences is an indictable offence and a serious offence as defined in s 338 of the Act.
12 Section 400.9 of the Criminal Code relevantly provides:
(1) A person commits an offence if:
(a) the person deals with money or other property; and
(b) it is reasonable to suspect that the money or property is proceeds of crime; and
(c) at the time of the dealing, the value of the money and other property is $100,000 or more.
14 By Criminal Code s 400.2:
A person deals with money or other property if the person does any of the following:
(a) receives, possesses, conceals or disposes of money or other property;
(b) imports money or other property into Australia;
(c) exports money or other property from Australia;
(d) engages in a banking transaction relating to money or other property.
15 The second relevant offence is under s 142 of the Anti-Money Laundering and Counter-Terrorism Financing Act:
(1) A person (the first person) commits an offence if:
(a) the first person is, or causes another person to become, a party to 2 or more non reportable transactions; and
(b) having regard to:
(i) the manner and form in which the transactions were conducted, including the matters to which subsection (3) applies; and
(ii) any explanation made by the first person as to the manner or form in which the transactions were conducted;
it would be reasonable to conclude that the first person conducted, or caused the transactions to be conducted, in that manner or form for the sole or dominant purpose of ensuring, or attempting to ensure, that the money or property involved in the transactions was transferred in a manner and form that would not give rise to a threshold transaction that would have been required to have been reported under section 43.
(3) This subsection applies to the following matters:
(a) the value of the money or property involved in each transaction;
(b) the total value of the transactions;
(c) the period of time over which the transactions took place;
(d) the interval of time between any of the transactions;
(e) the locations at which the transactions took place.
17 Property is the proceeds of an offence if is wholly or partly derived or realised, whether directly or indirectly, from the commission of the offence: s 329(1) of the Act. Property is an instrument of an offence if the property is used in or in connection with, or is intended to be used in or in connection with, the commission of an offence: s 329(2).
18 Property can be the proceeds of an offence or an instrument of an offence even if no person has been convicted of the offence: s 329(3).
Is the suspicion held on reasonable grounds
19 Whether a person has reasonable grounds to suspect something is to be judged on the facts known to that person at the time. The concept of reasonable suspicion is well known in the law. In George v Rockett [1990] HCA 26; (1990) 170 CLR 104, the High Court approved the definition of 'suspicion' given by Lord Devlin in Hussien v Chong Fook Kam (1970) AC 942, 948:
in its ordinary meaning [suspicion] is a state of conjecture or surmise where proof is lacking: 'I suspect but I cannot prove' [14].
20 The court referred also to the comments of Kitto J in Queensland Bacon Pty Ltd v Rees [1966] HCA 21; (1966) 115 CLR 266, 303:
A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to 'a slight opinion, but without sufficient evidence', as Chambers' Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence [14].
21 For there to be reasonable grounds to suspect there must be material which is sufficient to induce the state of suspicion in a reasonable person. It is not, however, necessary that the material which establishes the reasonable grounds for suspicion be limited to admissible evidence: Walsh v Loughnan [1991] 2 VR 351, 357 (Vincent J); Director of Public Prosecutions (SA) v Tregenza [2002] SASC 414; (2002) 84 SASR 346.
22 Federal Agent Marshall refers to information obtained on inquiries made with Australian and New Zealand Banking Group Ltd and the Commonwealth Bank of Australia Ltd, and attaches bank statements for the three accounts that are the subject of this application. He also refers to information obtained from the Department of Immigration and Border Protection. That information satisfies me that that he holds his suspicion on reasonable grounds.
ANZ bank account, account number 392765167
23 Federal Agent Marshall's inquiries show:
(1) Macquelene Patricia Michael Dass arrived in Perth on 25 September 2014, and departed Perth on 28 September 2014. She had previously been in Australia between April 2004 and May 2005.
(2) Ms Michael Dass opened the account on 25 September 2014, using a Malaysian passport as identification.
(3) The account was opened with a deposit of $5,000.
(4) Between 25 September 2014 and 13 October 2014 the balance increased to $755,002.53. The $2.53 is interest; otherwise, the balance was increased by 90 deposits by third parties of between $1,000 and of $9,950, with many for amounts over $9,000.
(5) Many deposits were made on the same day. For example, over $100,000 was deposited on 1 October in 11 deposits of $9,000 or more.
(6) There have been no withdrawals made from the account.
ANZ bank account, account number 289838452
24 Federal Agent Marshall's inquiries show:
(1) Ganesh Kalimuthu arrived in Perth on 11 August 2014 and departed on 13 August 2014. He had previously been in Perth for approximately six days in August 2012.
(2) Mr Kalimuthu opened the account on 11 August 2014, using his Malaysian passport as identification.
(3) The account was opened with a deposit of $5,000.
(4) Between 11 August 2014 and 30 September 2014 the balance increased to $737,413.73. Save for interest, the balance has been increased by 96 deposits to the account by third parties in sums of between $1,000 and $9,500.
(5) There were multiple deposits on the same day.
(6) There have been no withdrawals from the account other than small amounts relating to withholding tax.
CBA account number 10338576
25 Federal Agent Marshall's inquiries show:
(1) Mr Kalimuthu opened the account on 11 August 2014, using his Malaysian passport as identification.
(2) The account was opened with a deposit of $5,000.
(3) Between 11 August 2014 and 9 October 2014 the balance increased to $974,520.21. During that period there have been nine deposits above the reporting threshold and 94 deposits by third parties below the reporting threshold.
(4) The majority of the transactions have been in New South Wales and by cash deposits.
(5) There were multiple deposits on the same day.
(6) There have been no withdrawals other than withholding tax.
26 The ANZ bank account statements record the same address in Canning Vale, Western Australia for Ms Michael Dass and Mr Kalimuthu. No address is given for Mr Kalimuthu for the CBA account, but it was opened at the Canning Vale branch of the CBA.
27 Mr Kalimuthu returned to Perth on 25 September 2014 (the date Ms Michael Dass arrived) and left on 28 September 2014 (the day she left).
28 There is further information linking the CBA account, although indirectly, to an individual who has admitted involvement in international money laundering. It is unnecessary to go into that evidence in detail. Simply on the evidence of the bank accounts, the circumstances in which they were opened, and the record of transactions in them, I am satisfied that Federal Agent Marshall has reasonable grounds for his suspicion that someone, not identified, caused the transactions in those accounts to be conducted in that manner for the sole or dominant purpose of ensuring that they would not give rise to a transaction that would have been required to be reported.
Ex parte application
29 The application was brought ex parte, and the Commissioner asked the court to consider the application without notice to the owner of the funds, or to any other person the Commissioner reasonably believes may have an interest in them. Under s 26(4), the court is required to consider the application without notice having been given if requested by the responsible authority to do so, but is not required to determine the application ex parte.
30 The court may, at any time before finally determining the application, direct the responsible authority to give notice to a specified person or class of persons: s 26(5).
31 In my opinion, the interests of justice required the court to consider the application and make the order restraining the property on an ex parte basis. I formed that opinion for these reasons. First, the application was made on an urgent basis as freezing orders were currently in place over the property under s 15B, and would lapse on 20 October 2014. Second, the nature of the property restrained - funds in bank accounts - would enable them to be moved quickly and dissipated if notice was given of the application. It is appropriate to ensure that the objects of the Act are not defeated by any withdrawal of the funds. Third, neither Ms Michael Dass nor Mr Kalimuthu lives in Australia; both appear to have made only fleeting visits to this country. Fourth, most of the deposits were made after the account holder had left Australia. Many of the deposits in the CBA account were made by cash deposits in New South Wales. These circumstances do not suggest that the funds are owned by the only two individuals who are currently identified.
32 Finally, s 42 allows the court to revoke a restraining order on the application of a person who was not notified of this application. Under s 42(5), the court may revoke the order if it is satisfied that:
(a) there are no grounds on which to make the order at the time of considering the application to revoke the order; or
(b) it is otherwise in the interests of justice to do so.
33 As Martin CJ said in Ex parte The Commissioner of the Australian Federal Police [2012] WASC 252:
The ambit of those rights, although different from the right to be heard before the order is made, is not so materially different as to lead me to conclude in this case that there would be irremediable prejudice to the party who is most affected by the order sought … by proceeding to make the orders without notice and then leaving him to the exercise of the rights he has under s 42 of the Act. [35].
34 For these reasons, the application was granted and the orders made ex parte.
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