Thasthahir v AFP

[2019] VCC 2153

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

COMMON LAW DIVISION

Revised
Not Restricted
Suitable for Publication

CONFISCATION LIST

Case No. CI-18-01625

SHAHUL HAMEED THASTHAHIR  First Applicant

ASAN IBRAHAM THASTHAHIR  

ALIYANTHUN NISHA SHAHUL HAMEED    

Second Applicant

     Third Applicant

v

THE COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE

Respondent

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JUDGE:	HIS HONOUR JUDGE DYER
WHERE HELD:	Melbourne
DATE OF HEARING:	18, 19, 20, 21 & 22 November 2019
DATE OF JUDGMENT:	19 December 2019
CASE MAY BE CITED AS:	Thasthahir v AFP
MEDIUM NEUTRAL CITATION:	[2019] VCC 2153

REASONS FOR JUDGMENT
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Subject:  Confiscation
Catchwords:   Applications for exclusion and compensation; burden of proof
  evidence
Legislation Cited:     Proceeds of Crime Act 2002 (Cth)
Cases Cited:            
Judgment:       Applications dismissed

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APPEARANCES:	Counsel	Solicitors
For the First Applicant	In Person
For the Second & Third Applicants For the Respondent	Mr A. Hands Ms E. Ruddle	Ravi James Lawyers Australian Federal Police

HIS HONOUR:

Introduction

1 On 24 April 2018 orders were made in this court pursuant to sections 18 and 25 of the Proceeds of Crime Act 2002 (Cth) (“the Act”).  The orders were made on application by the respondent following criminal charges alleging drug trafficking offences being made against the first applicant, Shahul Hameed Thasthahir (“Shahul”), on 4 December 2015.  The property restrained by the court’s order included a residential property, a commercial property, an industrial property (including its plant and equipment), and significant amounts of cash including approximately $150,000 in Australian currency.

2 On 19 October 2018 Shahul was convicted and sentenced in this court of a serious offence, namely importing a border controlled drug. Following that conviction section 92 of the Act is engaged. The restrained property will be forfeited to the Commonwealth at midnight on 19 January 2020, absent the court making an exclusion order under sections 29 or 94 of the Act prior to that time.

3 The first applicant, Shahul, had made an exclusion application under section 94 of the Act in relation to some of the restrained property, but that application was withdrawn by him on the first day of the hearing.

4 The second applicant Asan Ibrahim Thasthahir (Asan) is Shahul’s father and has made applications for exclusion and compensation under sections 29, 78 and 94A of the Act. Both applications are in respect of an interest claimed by Asan in the industrial property, which is situate at 951 Great Northern Highway, Millendon, Western Australia (“the Millendon property”).

5 Asan’s first application was filed on 11 September 2019 and is made pursuant to sections 78 and 94A of the Act. The grounds set out in that application are as follows:

“The said property is not derived from any criminal activity or from the proceeds of crime as claimed by the Commissioner.  The property was purchased from funds loaned by me to my son with the specific intent to invest in property.”[1] 

[1]Court Book (“CB”) B 5 & 6

6       At the time of making that application Asan had affirmed an affidavit on 28 August 2019 which in large part set out the basis of his claim.

7 Asan’s second application before the court was filed on 23 September 2019 and seeks an order under section 29 of the Act to exclude that property, including all plant and equipment, from the operation of the restraining order.[2]  The grounds relied on in that second application were precisely the same as stated in the first.

[2]CB B 7-8

8 On 26 September 2019 the third applicant, Aliyanthun Nisha Shahul Hameed (“Aliya”) sought exclusion and compensation orders under section 78 or section 94A of the Act.[3] By further application dated 1 October 2019 Aliya sought an exclusion from the restraining order under section 29.[4]  Both applications were in relation to a residential property situate at 65 Suffolk Street, Caversham in the state of Western Australia (“the Caversham property”) and the sum of $59,918 being part of the Australian currency seized on 4 December 2015.

[3]CB B 9-10

[4]CB B 11-12

9       In accordance with orders made prior to the hearing of these applications, the parties had filed affidavit material in respect of each of the applications to be determined, together with written submissions.  The hearing before the court proceeded over five days between 18 and 22 November 2019.  Final written submissions were provided on behalf of each applicant on 26 November 2019, and on behalf of the respondent on 28 November 2019.

10      Each of these applications is civil in nature.  Each applicant bears the onus of proof of each application on the balance of probabilities.

The applications by the second applicant

11 Asan’s exclusion application was withdrawn on the first day of the hearing and the remaining application before this court seeks a compensation order under section 78 of the Act in relation to the Millendon property and its plant and equipment. That property remains subject to the existing restraining order and has not been forfeited. Therefore it is not necessary to consider Asan’s alternative claim made pursuant to section 94A.

12      Asan relied upon an affidavit affirmed on 30 August 2019[5] which described Asan’s sale of three properties in India between February and October 2014 and the provision of a loan of approximately $2 million made to Shahul to invest in property in Australia.[6]  The loan agreement dated 11 September 2014 (and also bearing a date stamp 29 March 2014) is exhibited to Asan’s affidavit.[7]

[5]Exhibit 2A-1

[6]Exhibit 2A-1 [23]

[7]CB E 261-262

13      Asan also relied on a further affidavit he had affirmed on or about 29 September 2019.[8]  In this affidavit Asan described his dealings with a money exchanger, Mr Yakoupdeen, and described the receipt of some 12 bags of money totalling 12 crore of rupees from which Shahul was to be paid $2 million Australian dollars in Australia.[9]

[8]Exhibit 2A-2 CB E 271-340

[9]Exhibit 2A-2 [26]

14      Asan also relied on an affidavit of Yakoupdeen affirmed 15 November 2019.[10]  In that affidavit Mr Yakoupdeen confirmed that he had been manager for Super Travels and Barveen Travel’s money exchange business from March 2006 until March 2015:

“My role in that business was to go and collect and count money from customers, to collect information from those who wanted to send money or who want to sell money and get the details of the people to whom money is to be sent.  It was also my duty and the requirement to ascertain the source of the money.”[11]

[10]Exhibit 2A-3

[11]Exhibit 2A-3 [2]

15      He confirmed that he knew Asan and had known him as a close friend for many years.  He also confirmed that on 10 October 2014 he collected an amount equivalent to $2,200,000 cash in Indian rupees from Mr Asan’s home.  His affidavit continued:

“The purpose of collecting this money was to assist in the transfer of this money to Asan Ibrahim Thasthahir’s son, Shahul Hameed Thasthahir in Australia.

On the following day I handed over the cash to Mr Shahul Hameed Badusha, also known as, Neesam, a Malaysian national, who was at that time I believe the owner of a money exchange business in Malaysia.  The name of that business is HM Ghazali Ahmad SDN BHD.  This is a licensed money service business.”[12]

[12]Exhibit 2A-3 [6] & [7]

16      He went on to state that the business of HM Ghazali SDN BHD was a business used by his then employer for large transfers of money at that time.  He also referred to three encashment receipts which were exhibited to Mr Asan’s affidavits:

“I also confirm I personally completed the encashment receipts number 1639, 1370 and 1371 totalling to Australia dollars $2,200,000.”[13]

[13]Exhibit 2A-3 [10]

17      For completeness I note that Mr Yakoupdeen affirmed a further affidavit on or about 18 November 2019.  The substance of this affidavit was that he had left the employment of Super Travels and Barveen Travel’s Money Exchange and was working for a new employer and could not attend in Australia to give evidence.  I granted leave to Mr Yakoupdeen to give evidence via way of videolink.

18      Asan’s application is made on behalf of Shaaliya Pty Ltd (Shaaliya) as trustee for the Ummu Family Trust.  This trust was described in final submissions on behalf of Asan as “a constructive trust and/or implied or resulting trust arising upon the contribution by a loan to the first applicant provided by the second applicant to the acquisition and maintenance of the property by Ummu Family Trust.”[14]

[14]Final submissions on behalf of the Second Applicant dated 26 November 2019 [3]

19      Asan gave evidence by videolink from the state of Tamil Naidu in India, albeit with some technical difficulties.  He was cross-examined by Ms Ruddle, who appeared on behalf of the respondent in each of the applications.

20      Notwithstanding his appearance by videolink and the opportunity afforded to the respondent to cross‑examine, there were numerous difficulties with the standard of the transmission and practical problems including the unavailability of documentation during cross-examination and the lack of an interpreter present with Mr Asan when the evidence was being given.  Fortunately an interpreter was available in court who was able to satisfactorily translate Mr Asan’s evidence.

21      I note that Mr Yakoupdeen attempted to give evidence from a similar location in India via videolink.  Unfortunately technical problems precluded his oral evidence being taken and he was not able to be cross-examined.

22      The substance of Asan’s application was based upon his considerable wealth in India and his assertion that the Millendon property was purchased from funds loaned by him to Shahul.  He was not registered as the proprietor of that property in any document, nor was he a beneficiary of the Ummu Family Trust.

23      In essence Asan’s evidence maintained that he was a wealthy man in India and had sold three properties in 2014.  He had then gifted certain amounts from the proceeds of these sales to his various children.  Asan maintained that he had entered into a loan agreement with Shahul to invest in property in Australia where his two sons resided.  In final submissions on behalf of Asan the scope of this agreement is described as follows:

“The first applicant (Shahul) was given free rein to invest in properties in Australia on condition that he return the principal within five years and that the profits of the investment loan were to be invested in Shaaliya Pty Ltd.”[15]

[15]Final submissions on behalf of the Second Applicant dated 26 November 2019 at [22]

24      Asan’s evidence, both in affidavit and before the court, was that he had transferred $2,000,000 AUD to Shahul on or about 14 October 2014.  This was supported by the affidavit of the money changer, Yakoupdeen.

25      In my assessment Asan was not a reliable witness.  There were glaring inconsistencies in his evidence.  When cross-examined he could not satisfactorily explain the contents of a visa application dated 19 October 2008 indicating that:

·     Mr Asan was living in penury;[16]

[16]Second affidavit of Marco Piscicelli Exhibit MP-18 Court Book (“CB”)  F 1712

·     He was financially supported by Mr Shahul;[17]

·     He was living in rented accommodation in India and the rental was being paid for by Mr Shahul;[18]

·     His total income between 2002 and 2005 was $60,000 Indian rupees.[19]

[17]Second affidavit of Marco Piscicelli Exhibit MP-18 CB F 1714, F 1738 & F 1761

[18]Second affidavit of Marco Piscicelli, Exhibit MP-18 CB F 1717 to F 1736 & F 1748 to 1752,

[19]Second affidavit of Marco Piscicelli, Exhibit MP-18 CB 1753

26      In the course of cross-examination Asan gave sworn evidence to the court that in the five to ten years prior to the sale of the properties to which he had referred, he received an average of $1,000,000 Indian rupees and up to $1,320,000 Indian rupees per annum in rental income.[20]

[20]Transcript (“T”) 262

27      In each of his affidavits sworn in support of this application, he deposed to selling three properties in India for a total of approximately $3.5 million during 2014, as well as gifting other properties at the same time.[21]

[21]Asan’s affidavits [17] & [19] CB E 201, E 202, E 273 & E 274

28      The inconsistency between the penurious state of Mr Asan as set out in the visa application in 2008 and the apparent affluence deposed to in his affidavits and in oral evidence to this court, is breath taking.

29      Additionally, in my view there were very significant evidentiary gaps concerning the transfer of the funds between Asan and Shahul.  He maintained in evidence that he was unfamiliar with banks,[22] but in evidence before me he confirmed that the rent had been paid directly into his bank account, and in fact he held two bank accounts.[23]

[22]Both Affidavits

[23]T 259, 260 & 273

30      When cross-examined concerning an affidavit affirmed by him in the Supreme Court in October 2015, he deposed to selling two properties in 2014, but still “owned a lot of land which was very valuable.”[24]  This was in stark contrast to the evidence given in this application. 

[24]CB E 629 to 633

31      In the present application he had maintained that he had sold three properties in 2014 which amounted to all of his land in India save for the ancestral land which he retained.[25]

[25]CB E 195 to E 206 & E 271 to E 276

32      I also note that the ancestral land in which Mr Asan now claims ownership is the land that had been described in his visa application as “rented accommodation in India which was being paid for by Shahul.”[26]

[26]Second affidavit of Marco Piscicelli Exhibit MP-18 CB F 1717 to F 1736 & F 1748 to F 1752

33      On the basis of such conflicts in the evidence to which I have referred, I could not conclude that Mr Asan could be described as in any way a reliable witness.  Questions also arise as to the reliability of documentary evidence exhibited to his affidavits.

34      I note in final submissions on behalf of the respondent Ms Ruddle of counsel raised issues about the authenticity of the documents exhibited to Mr Asan’s affidavits.[27]

[27]Respondent’s submissions at [9] to [10]

35      The application made by Mr Asan cannot in my view be saved by the evidence of the money changer, Mr Yakoupdeen.  Again I note the criticism directed towards the credibility of Mr Yakoupdeen in the respondent’s final submissions.  I also take into account that he was not able to be cross‑examined. 

36      In the circumstances of this case where credibility is very much in focus, I note the submission on behalf of the respondent that the affidavit of Mr Yakoupdeen has been falsely created without full understanding of the facts.  The different spelling of the money exchange company appearing on affidavits filed in this court and those filed in another application in the Supreme Court raise real concerns as to their authenticity.  It is difficult to understand if a company were truly engaged in international money exchange why it would appear with a different spelling on what are described as “encashment certificates” in this court from those also relied upon in a similar application in the Supreme Court.  It is unnecessary to decide this issue.  There is simply no evidence in the present application that any company with whom Mr Yakoupdeen was associated had an ability to transfer money overseas.

37      The respondent relies on affidavits from Mr Dale Brennan exhibiting AUSTRAC international funds transfer instruction records which cannot be reconciled with the amounts deposed to in Mr Yakoupdeen’s affidavit.  There is simply no credible evidence to link Mr Asan’s purported transfer of the funds to Yakoupdeen and the purchase of the Millendon property.

38      Submissions were also made on behalf of the respondent that there was very limited reference in documentary material relating to the Millendon property.  This property was not put into the name of the trustee company Shaaliya Pty Ltd, but was purchased by Mr Shahul and his wife, Ms Aliya, purportedly as trustees for the Ummu Family Trust.  There is no reference to Mr Asan in the trust deed.  I accept the submissions made on behalf of the respondent that the nature of any interest Asan may have in the family trust is not explained. 

39      Mr Asan has failed to satisfy this court that he has an interest in the Great Northern Highway property.  He additionally has not satisfied me that the Great Northern Highway property is neither proceeds of unlawful activity, nor an instrument of any serious offence as would be required in respect of the exclusion application. 

40      In relation to his compensation application he similarly has not persuaded me that he has any interest in the Great Northern Highway property, nor that a proportion of the value of his interest in that property was not derived or realised directly or indirectly from the commission of any offence.

41      Finally, he has not satisfied me that any interest he might have in that property is not an instrument of any offence.

42      The applications made by the second applicant are not made out and must be dismissed.

Application on behalf of the Third Applicant

43      The third applicant Aliyanthun Nisha Shahul Hameed (Aliya) is the wife of the first applicant, Shahul, and the daughter-in-law of the second applicant, Asan.

44 On 26 September 2019 the third applicant filed an application for compensation orders under sections 77 and 94A of the Act. On 1 October 2019 she filed an application for an exclusion order under section 29 of the Act.

45      The compensation application was made in relation to the residential property at Caversham, and also to an amount of $59,918 which was a proportion of an amount of Australian currency estimated at $149,300 which had been seized by AFP officers on 4 December 2015.

46      Ms Aliya had sworn an affidavit in support of her application on 11 October 2019.  This affidavit, together with eight exhibits, was tendered in evidence.[28]

[28]Exhibit 3A-2

47      Additionally Ms Aliya relied upon an affidavit from her sister, Rilwana Nashrin affirmed on 9 October 2019 in support of her application.  This affidavit was tendered in evidence.[29]

[29]Exhibit 3A-5

48 Ms Aliya also relied upon evidence which had been given by her father, Mohamed Liyakath Ali Haja Mohaideen in an examination which had been conducted pursuant to section 180 of the Act.[30]

[30]Exhibit 2A  CB G 1 - G 53

49      Ms Aliya gave evidence in her application and was cross-examined. 

50      Insofar as her exclusion application was concerned, there was no issue that she had an interest in the Caversham property as she was the sole registered proprietor.  In order to succeed in her application Ms Aliya had to satisfy the court that the relevant property was not the proceeds of unlawful activity, nor was it an instrument of any serious offence.

51      Insofar as her claim for compensation was concerned, this was ultimately quantified by Mr Hands, who appeared on her behalf, as a figure of between $24,000 and $30,000 which had been lawfully acquired largely as gifts from a wedding and a baby naming ceremony which had taken place in India in 2008 and 2012.  The gifts were said to amount to some $24,000 with the balance of $6,000 being money saved from lawful earnings received by Ms Aliya.

52      The evidence advanced by Ms Aliya in relation to the purchase of the Caversham Road property was as follows:-

·     Her sister, Rilwana, had agreed in approximately July 2014 to purchase approximately half an extensive collection of jewellery acquired by Aliya for an AUD equivalent of $100,000.[31]

·     During her evidence two DVDs were shown to the court.  The first of these recorded the wedding of Aliya and her husband, Shahul.  This was said to show a lavish wedding attended by perhaps 2,000 people.  This wedding was in India on 22 June 2008.    The second DVD showed what is described as a baby naming ceremony which was in fact a ceremony showing the ear piercing of Aliya’s daughter, Aleeseya Hameed, who was born on 25 November 2009.  The ear piercing ceremony took place in August 2012.  The baby naming ceremony according to photos that were tendered as part of Exhibit 3A-2 – AH-7, occurred in July 2010.  The ear-piercing ceremony occurred in 2012.

·     The third applicant came to Australia in 2008 as a dependant and wife of Shahul in accordance with his then current visa.  She worked in a number of jobs until the birth of her second child in February 2015, after which time she ceased employment.  Her taxation assessment notices for the financial years 2014 and 2015 are also exhibited to her affidavit.[32]

[31]Affidavit of Rilwana Exhibit 3A-4, CB E 592

[32]Exhibit 3A-2 (EX H-1)

53      There is essentially no dispute concerning the factual matters surrounding the third applicant’s purchase of the Caversham Road property.  The purchase price was $580,000 and Ms Aliya had obtained a loan of $200,000 by way of a mortgage from the ANZ Bank.  This loan application was made on or about 31 October 2014.

54      Ms Aliya’s sister, Rilwana, has deposed to purchasing a quantity of jewellery in July 2014 for a sum of $100,000.  Taking into account the mortgage from the ANZ Bank and assuming the accuracy of Rilwana’s affidavit, the second applicant had to provide $280,000 to complete the purchase of the property. 

55      In her affidavit affirmed on 11 October 2019 Ms Aliya deposes to receiving a gift of $200,000 from her father to  purchase this property.[33]  She exhibits bank statements from her father, Haja Mohajideen in support of this claim.[34]  The banking details in the exhibit relate to two ANZ accounts, one a Progress Saver Account ending in 6144,[35] the other an Access Advantage Cheque Account ending in 6152.[36]

[33]Exhibit 3A-1 at [21] CB E 344

[34]Exhibit 3A-1 (Exhibit AH-4)

[35]E 542 to E 544

[36]E 547 to E 548

56      It is clear that when police executed a search warrant on this property on 4 November 2015 a total of $149,300 in Australian currency was seized by police.[37]  In the present application the third applicant maintains that somewhere between $24,000 and $30,000 of that sum is from her earnings or the remainder of lavish gifts provided to her at the landmark ceremonies shown in the DVDs.

[37]Exhibit R-6 F 3-4[10]

57      Ms Aliya also exhibited a number of receipts relating to the sale of jewellery in India between 1 September and 15 September 2014.[38]

[38]Exhibit AH-5 CB E 551 to E 553

58      The thrust of the respondent’s opposition to the applications made by Aliya was that she was not a witness of credit and there were numerous examples in the evidence demonstrative of her inconsistency and even willingness to lie.

59      An examination of those bank statements shows as follows:

·     In relation to the Progress Saver Account deposits of $50,000 and $325,000 were made on 27 October 2014.

·     A withdrawal of $324,927.88 was made on 3 November 2014.

·     A further deposit of $85,500 was made on 27 November 2014.

·     Further deposits of $80,050 and $99,400 were made on 8 and 16 December 2014.

·     Deposits of $100,000 and $8,000 were made on 5 January and 8 January 2015.

·     A withdrawal of $400,728.13 was made on 8 January 2015.

·     A deposit of $134,950 was made on 23 February 2015.

·     As at 31 March 2015 the account showed a credit balance of $148,529.83.[39]

[39]CB E 543

60      As to the Access Advantage Cheque Account, I note the following:

·     27 October 2014 a deposit of $99,000.

·     28 October 2014 a withdrawal of $34,310.

·     20 November 2014 a withdrawal of $51,000.

·     8 December 2014 a withdrawal of $110,000.

·     12 December 2014 a debit purchase of $7,184.30.

61      The summary recorded the transactions on that account between 27 October and 12 December 2014 as total deposits of $209,000 and total withdrawals of $202,519.35.

62      Although it is abundantly clear from the bank statements that there were very significant unexplained transactions occurring between 2014 and late March 2015, there are further inconsistencies with Ms Aliya’s evidence both on affidavit and given before me. 

63      Following the sale of jewellery for a total of $100,000 and the gift of $200,000 from her father Ms Aliya required not less than $280,000 to complete the purchase.  She had received a mortgage from the ANZ Bank for $200,000 and it is also clear that an amount of $400,728.13 was transferred from her father’s account, presumably to settle the purchase price on 8 January 2015.  This amount transferred is not less than $100,000 more than the amount deposed to by Ms Aliya if it is assumed that her sister deposited $100,000 into the account when it was opened on 27 October 2014.

64      A further obvious inconsistency is found in the home loan application form signed by Aliya on 31 October 2014.[40]  This sets out the value of her jewellery as $200,000 whereas other material on which she relies deposes to half of that jewellery being sold by her sister for $100,000 with those funds deposited into her father’s Australian bank account on 27 October 2014.

[40]CB E 420

65      When cross-examined, and particularly when questioned about the cash found by Federal police agents at her home, Ms Aliya’s evidence was simply not credible.  In cross-examination in this application she maintained that the money found in the bedroom was hers and amounted to $24,000.[41]  When it was pointed out that there was less than that amount of money in the bedroom, she indicated:

“I put it in small wallets or small purses. … I kept it in different places in the house including the store.”[42]

[41]T 115, L 22 to T 116, L 5

[42]T 120, L 24-31

66      The video recordings taken at the time of the seizure of money revealed very different explanations given by Ms Aliya.  At no time on the video did she state that only part of the money was hers, or that it had been given to her as a gift either at a wedding or in relation to ceremonies for her daughter.

67      In the video evidence played in the course of the hearing, recorded at the time of the execution of the warrant, Ms Aliya firstly asserts, when a large bag of cash is produced:

“I don’t know how much is there exactly it’s … when I have it I just keep on hiding it … I just keep on hiding it like that ‘cause … um … I can’t tell you how much exactly it is … more than 25, not less than 25.”[43]

[43]Video 7

68      As pointed out in final submission on behalf of the respondent, this conversation occurs at the time Federal officers are counting both $50 and $100 notes.[44]

[44]Respondent’s submissions at [6]

69      As the Federal officers continue to count the seized currency, and a total of $56,400 in $50 notes has been counted, Ms Aliya is heard to say that the money was hers, without differentiating between “bedroom money and the other money.”

70      In the conversation evident from the video recording Ms Aliya at no stage states to police that this money ($56,400) is in any way connected with gifts received either at her wedding or in ceremonies for her daughter.  Rather she maintained that she had been working from 2008 in a restaurant.

71      The conversation continues to be recorded on video and as the $100 notes are being produced and counted she still maintains that the police are taking her money.

72      Ms Aliya was also unimpressive in evidence she gave when cross‑examined about amounts of money being paid into  her bank account in addition to the identifiable salary deposits. 

73      In short the blatant inconsistencies concerning her evidence are such that it cannot be accepted as reliable in the absence of corroboration.  What is offered by way of corroboration in the evidence from her father’s affidavit and her sister’s affidavit in my view adds further confusion and degrades the probative value of Ms Aliya’s evidence further.

74      The extensive written submissions by Mr Hands dealing with credit ultimately rely on Ms Aliya being accepted as a truthful witness.  For the reasons stated I am unable to do so.

75      There is no independent evidence that would satisfy me of the proofs required by her.  Her application must also be dismissed.

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