The Commissioner of the Australian Federal Police

[2018] NSWSC 1737

Supreme Court

New South Wales

Medium Neutral Citation:	The Commissioner of the Australian Federal Police [2018] NSWSC 1737
Hearing dates:	13 November 2018
Decision date:	13 November 2018
Jurisdiction:	Common Law
Before:	Adamson J
Decision:	See paragraph [13]
Catchwords:	PROCEEDS OF CRIME – application for a forfeiture order – no exclusion application made – notice given to interested parties – orders made as sought
Legislation Cited:	Proceeds of Crime Act 2002 (Cth), ss 19, 49, 69, 335, 338
Category:	Principal judgment
Parties:	The Commissioner of the Australian Federal Police (Plaintiff)
Representation:	Counsel: B Walker (Plaintiff)   Solicitors: Australian Federal Police (Plaintiff)
File Number(s):	2018/107958

Judgment – ex tempore

1. The Commissioner of the Australian Federal Police (the plaintiff) seeks a forfeiture order pursuant to s 49 of the Proceeds of Crime Act 2002 (Cth) (the Act). Mr Walker, who appears on behalf of the plaintiff, requested that my associate call the names of the following persons outside the courtroom before the matter commenced. Those persons are: Alexander Daniel, Geraint Coles, Douglas Brodie Gray, Lorraine Lewis Wright and Royston Eustace D’Lima. There was no response when those parties’ names were called outside the courtroom.

2. Section 49 of the Act relevantly provides that a court with “proceeds jurisdiction” must make an order that property specified in the order is forfeited to the Commonwealth if certain matters set out in the subparagraphs to s 49(1) of the Act are satisfied. This court is a court with proceeds jurisdiction: s 335(2) of the Act.

3. The first matter in s 49(1)(a) of the Act is that a responsible authority for a restraining order under s 19 of the Act that covers the property applies for an order under this subsection. The plaintiff is a responsible authority within the meaning of s 338 of the Act and applied for a restraining order under s 19 of the Act. I note that that restraining order was made in respect of the property in schedules 1, 2, 3 and 4 of the summons, which was filed on 6 April 2018. I note that a restraining order in respect of that property was made by Button J on 8 May 2018. Accordingly, I am satisfied that the condition in s 49(1)(a) is satisfied.

4. I turn now to s 49(1)(b), namely, that the restraining order has been in force for at least six months. As referred to above, Button J made the restraining order on 8 May 2018 and, accordingly, s 49(1)(b) has been satisfied in the present case.

5. Section 49(1)(c) requires the court’s satisfaction of certain matters. However, s 49(3) provides that s 49(1)(c) does not apply if no application has been made under Division 3 of Part 2-1 for the property to be excluded from the restraining order; or, (b) any such application that has been made has been withdrawn. Mr Walker read the affidavit of Katrina Hoyes affirmed on 9 November 2018 and the affidavit of service of Rebecca Anne Hema sworn on 9 November 2018. Having read those affidavits, I am satisfied that the Commissioner has identified five persons who are referred to as the interested parties being those persons whose names my associate called outside the courtroom before the hearing began. No application for an exclusion order has been made by any of those persons.

6. I am satisfied that those persons have been given notification both of the making of the restraining order by Button J on 8 May 2018 as well as the plaintiff’s intention to apply for forfeiture orders today, 13 November 2018. As no exclusion applications have been filed, I am satisfied, on the basis of those two affidavits, that they have been notified of those matters and that no substantive response has been received from any of the interested parties to the letters informing them of those matters and of the possibility of seeking an exclusion application.

7. Under those circumstances, I am satisfied that no application has been made for an exclusion order by any of those persons and, accordingly, it is not necessary for s 49(1)(c) of the Act to be satisfied.

8. Turning now to the remaining subsection, s 49(1)(e) of the Act, I am satisfied, on the basis of the affidavits referred to, that the plaintiff has taken reasonable steps to identify and notify persons with an interest in the property. I note that the relevant property was sums of cash seized by the Australian Federal Police on 13 January 2016 from various locations.

9. As I am satisfied as to each of the matters referred to in s 49(1), I am obliged by that section to make an order that the property specified in the order is forfeited to the Commonwealth. Mr Walker has provided me with short minutes of order, which I propose to make. I will make orders in terms of paragraphs 1, 2, 3 and 4 of those short minutes of order.

10. In addition, in paragraph 5 of those short minutes, Mr Walker seeks an order pursuant to s 69(2) of the Act that the Commonwealth have leave to dispose of or otherwise deal with the forfeited property immediately. In the circumstances, there would appear to be no reason why the property in question, being amounts of cash, should not be dealt with by the Commonwealth immediately. Accordingly, I am satisfied that it is appropriate to make an order in terms of paragraph 5 of the short minutes of order.

11. I also make an order in terms of paragraph 6, namely, that these orders be entered forthwith.

12. Accordingly, I will sign that and date the orders and give them to my associate, who will apply the Court’s seal to them.

Orders

13. For the reasons given above, I make the following orders:

1. Pursuant to section 49 of the Proceeds of Crime Act 2002 (Cth), the property specified in Schedule One be forfeited to the Commonwealth.

14. 2. Pursuant to section 49 of the Proceeds of Crime Act 2002 (Cth), the property specified in Schedule Two be forfeited to the Commonwealth.

3. Pursuant to section 49 of the Proceeds of Crime Act 2002 (Cth), the property specified in Schedule Three be forfeited to the Commonwealth.

4. Pursuant to section 49 of the Proceeds of Crime Act 2002 (Cth), the property specified in Schedule Four be forfeited to the Commonwealth.

5. Pursuant to section 69(2) of the Proceeds of Crime Act 2002 (Cth), the Commonwealth have leave to dispose of, or otherwise deal with, the forfeited property immediately.

6.   These orders be entered forthwith.

SCHEDULE ONE

The sum of approximately AUD40,000 cash seized by the Australian Federal Police (AFP) on 13 January 2016 from Bondi Beach in the State of New South Wales and deposited into the AFP Trust Account with the Reserve Bank of Australia, together with any interest earned on that amount.

SCHEDULE TWO

The sum of approximately AUD10,000 cash seized by the AFP on 13 January 2016 from the Ford Focus vehicle bearing NSW registration number and deposited into the RBA Trust Account, together with any interest earned on that amount.

SCHEDULE THREE

The sum of approximately USD51,350 cash seized by the AFP on 13 January 2016 from Bondi Beach in the State of New South Wales and converted by the Commonwealth Bank of Australia to approximately AUD69,375.55, together with any interest earned on that amount.

SCHEDULE FOUR

The sum of approximately AUD98,750 cash seized by the AFP on 13 January 2016 from Zetland in the State of New South Wales and deposited into the AFP Trust Account with the Reserve Bank of Australia, together with any interest earned on that amount.

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Decision last updated: 14 November 2018