Re Section 34A of the Mutual Assistance in Criminal Matters Act 1987 (Cth)
[2017] WASC 374
•19 DECEMBER 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: RE SECTION 34A OF THE MUTUAL ASSISTANCE IN CRIMINAL MATTERS ACT 1987 (CTH); EX PARTE COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE [2017] WASC 374
CORAM: ALLANSON J
HEARD: 5 DECEMBER 2017
DELIVERED : 18 DECEMBER 2017
PUBLISHED : 19 DECEMBER 2017
FILE NO/S: CIV 2760 of 2017
MATTER :Section 34A of the Mutual Assistance in Criminal Matters Act 1987 (Cth)
EX PARTE
COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE
Applicant
Catchwords:
Practice and procedure - Registration of foreign forfeiture order - Mutual Assistance in Criminal Matters Act 1987 (Cth) - Turns on own facts
Legislation:
Mutual Assistance in Criminal Matters Act 1987 (Cth), s 3, s 11, s 33A, s 34, s 34A, s 34ZG
Proceeds of Crime Act 2002 (Cth), s 335(3), s 338
Result:
Application granted
Category: B
Representation:
Counsel:
Applicant: Mr M Seaman
Solicitors:
Applicant: Australian Federal Police - Proceeds of Crime Litigation
Case(s) referred to in judgment(s):
Nil
ALLANSON J: The Commissioner of the Australian Federal Police applies by notice of motion for orders pursuant to s 34 and s 34A of the Mutual Assistance in Criminal Matters Act 1987 (Cth).
Under the Act, a foreign country may request assistance from Australia in a criminal matter, which includes a matter relating to the forfeiture or confiscation of property in respect of an offence: s 3. The requirements for a request are set out in s 11. The request is made to the Attorney-General or a person authorised by the Attorney-General in writing. The request must be in writing and be accompanied by:
(a)the name of the authority concerned with the criminal matter to which the request relates;
(b)a description of the nature of the criminal matter and a statement setting out a summary of the relevant facts and laws;
(c)a description of the purpose of the request and of the nature of the assistance being sought;
(d)any information that may assist in giving effect to the request.
Part VI of the Act provides for orders relating to proceeds of crime. Division 2, subdivision A deals with enforcement of foreign orders. By s 33A:
(1)The object of this Subdivision is to facilitate international cooperation in the recovery of property through the registration and enforcement of foreign orders in Australia.
(2)For the purpose of achieving this object, it is the intention of the Parliament that the validity of foreign orders not be examined.
Section 34 provides, relevantly to this application:
(1)If:
(a)a foreign country requests the Attorney-General to make arrangements for the enforcement of:
(i)a foreign forfeiture order, made in respect of a foreign serious offence, against property that is reasonably suspected of being located in Australia;
…;
and
(b)the Attorney-General is satisfied that:
(i)a person has been convicted of the offence; and
(ii)the conviction and the order are not subject to further appeal in the foreign country;
the Attorney-General may authorise a proceeds of crime authority, in writing, to apply for the registration of the order.
By s 34A(1):
If a proceeds of crime authority applies to a court with proceeds jurisdiction for registration of a foreign order in accordance with an authorisation under this Subdivision, the court must register the order accordingly, unless the court is satisfied that it would be contrary to the interests of justice to do so.
The proceeds of crime authority must give notice of the application to persons the authority has reason to suspect may have an interest in the property and to such other persons as the court directs: s 34A(2).
The request
This application results from a request from the United States of America for assistance under the Act.
The request is in evidence as an attachment to the affidavit of Michael Seaman, solicitor, sworn 17 October 2017. In summary:
1.On 3 February 2017, the United States Department of Justice requested the assistance of the appropriate authorities in Australia to register and give effect to a final, non-appealable order of forfeiture against three Perth Mint precious metal certificates purchased by Matthew Norman Simpson.
2.The request included a statement of the facts leading to the conviction of Mr Simpson for offences relating to the defrauding of telecommunications companies and others. The offences are foreign serious offences, as defined in s 3 of the Mutual Assistance in Criminal Matters Act.
3.The jury also found that the certificates and other property constituted or were derived from proceeds traceable to the criminal offences.
4.On 10 August 2016, a judge of the United States District Court made a final order of forfeiture in relation to specified property of Mr Simpson, including the three precious metal certificates.
The order of the United States District Court recites that notice and publication of the forfeiture has been made and the time for filing petitions had expired; no further claims or petitions were pending before the court; and the appeal of the underlying convictions, sentence and order of forfeiture had concluded.
Consideration
The court must be satisfied that the application for registration of the order is made by a proceeds of crime authority in accordance with an authorisation under pt VI, div 2, subdivision A.
The Mutual Assistance in Criminal Matters Act incorporates definitions of relevant terms from the Proceeds of Crime Act 2002. Relevantly, this court has 'proceeds jurisdiction', and the Commissioner of Police is a 'proceeds of crime authority': see Proceeds of Crime Act s 335(3), s 338. The request to the Commissioner of Police was made by the Assistant Secretary, International Crime Cooperation Central Authority, Attorney-General's Department of the Commonwealth of Australia. I am satisfied that the person holding that position holds a delegation, pursuant to s 34ZG of the Mutual Assistance in Criminal Matters Act, of the powers and functions of the Attorney-General under s 34 of the Act: see affidavit of Carl John Sullivan dated 15 December 2017.
Notice of the application before this court was given to Mr Simpson, and he was advised how he could be heard if he wished to. Mr Simpson did not advise the court that he wished to be heard, and the application proceeded ex parte.
In these circumstances, the formal requirements for making the application have been complied with. The court must make the orders unless satisfied that it would be contrary to the interests of justice to do so. There is no reason to not make the orders.
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