The Commissioner of the Australian Federal Police v Adam Michael Cranston

[2022] NSWSC 770

Supreme Court

New South Wales

Medium Neutral Citation:

The Commissioner of the Australian Federal Police v Adam Michael Cranston [2022] NSWSC 770

Hearing dates:

23 February 2022

Date of orders:

14 June 2022

Decision date:

14 June 2022

Jurisdiction:

Common Law

Before:

Wright J

Decision:

Restraining orders made under ss 18(1) and 19(1) of the Proceeds of Crime Act 2002 (Cth)

Custody and control order made under s 38 of the Proceeds of Crime Act 2002 (Cth)

Catchwords:

CRIME – confiscations – restraining order – proceeds of crime – where no exclusion application has been made in respect of the property –statutory requirements satisfied – no point of principle

Legislation Cited:

Corporations Act 2001 (Cth), s 601AD

Proceeds of Crime Act 2002 (Cth), ss 18, 19, 38, 49, 69, 316

Category:

Procedural rulings

Parties:

The Commissioner of the Australian Federal Police (Plaintiff)
Adam Michael Cranston (First Defendant)
Jason Cornell Onley (Second Defendant)
Lauren Anne Cranston (Fifth Defendant)
Daniel Rostankovski (Seventh Defendant)
Christopher Guillan (Eighth Defendant)
Daniel Simon Hausman (Ninth Defendant)
Rachel Anne Keary (Eleventh Defendant)
Jessica van Schreven (Thirteenth Defendant)
Sutherland Shire Property 2 Pty Ltd (in liquidation) (Fourteenth Defendant)
Sophia Constantopedos (Twenty-Sixth Defendant)
Fiona Wing-Shan Mak (Thirty-Ninth Defendant)
Stephen Barrett (First Respondent)
Catriona Sue Smith (Second Respondent)
Timothy Bryce Norman and Salvatore Algeri in their capacity as liquidators for Plutus Payroll Australia Pty Ltd (Third Respondent)
Australian Securities and Investments Commission (Fourth Respondent)

Representation:

Counsel:
G O’Mahoney (Plaintiff)
Solicitors:
Criminal Assets Litigation, Australian Federal Police (Plaintiff)

File Number(s):

2017/146280

Judgment

Background

1. By a notice of motion filed on 20 September 2021, the plaintiff, the Commissioner of the Australian Federal Police, has sought restraining orders pursuant to ss 18 and 19 of the Proceeds of Crime Act 2002 (Cth) (the POC Act) in relation to certain property of a number of individuals and corporations, as described in the table set out below at [7] of this judgment.

2. The present application concerns the suspected involvement of a large number of people in an organised taxation fraud involving Plutus Payroll Pty Ltd. There are presently 69 defendants named in these proceedings and, in addition, a number of persons have been identified in the notice of motion filed on 20 September 2021 and other notices of motion as being affected or potentially affected by the orders sought in those notices of motion. These affected parties have been referred to as respondents to the various notices of motion.

3. At the hearing on 23 February 2022, Mr O’Mahoney of counsel, who appeared for the plaintiff, clarified that the only orders sought on this occasion were those in prayers 1 to 6, 12 to 14, and 21 to 24 of the notion of motion filed on 20 September 2021.

The relevant defendants, respondent and other companies

4. The defendants and respondents affected or potentially affected by the orders sought in these prayers for relief are the first defendant (Adam Cranston), the second defendant (Jason Onley), the fifth defendant (Lauren Cranston), the eighth defendant (Christopher Guillan), the tenth defendant (Elizabeth Cranston), the eleventh defendant (Rachel Keary), the fourteenth defendant (Sutherland Shire Property 2 Pty Ltd (in liquidation)), the thirty-ninth defendant (Fiona Wing-Shan Mak), and the fourth respondent to the notice of motion (the Australian Securities and Investments Commission or ASIC). ASIC has been included as a person affected because one of the items of property is funds in an account in the name of AI Advertising Pty Ltd which was deregistered on 14 June 2020 and any property not held on trust by that company has vested in ASIC by operation of s 601AD(2) of the Corporations Act 2001 (Cth).

5. In addition, the following three companies, which are all in liquidation, were mentioned in the evidence and may potentially have had an interest in at least one item of property in question:

1. Plutus Payroll Australia Pty Ltd, ACN 169 205 127;

2. PPA Contractors Australia Pty Ltd, ACN 605 218 273, previously known as Uneek Consulting Services Pty Ltd; and

3. G & T Holdings Pty Ltd, ACN 601 755 202.

6. The plaintiff has given reasonable notice of this application to each of the relevant defendants and the fourth respondent as well as to the solicitors for the liquidators of each of companies. None of these has sought to appear or to oppose the granting of the relevant relief sought in 1 to 6, 12 to 14, and 21 to 24 of the notice of motion filed on 20 September 2021.

The items of property

7. The application relates to 108 items of property identified in Schedule 1, Schedule 2, Schedule 3, Schedule 4, Schedule 5, Schedule 9, Schedule 10, Schedule 11, Schedule 17, and Schedule 18 to the notice of motion filed on 20 September 2021. Those items are described in the table below together with the relevant prayer for relief, schedule to the notice of motion, defendant or respondent and section of the POC Act.

Prayer	Sch	Description of items of property	Def or Resp	POCAct sec
1	1	Bondi Cash, Bondi Bicycle and Bondi Racing Gear Item 1 – Cash in the amount of AUD25,000, recorded as item number BBCU/AC/001 of PSR M383230 Item 2 – Cash in the amount of AUD4,050, recorded as item number BBCU/AC/002 in PSR M383230 Item 3 – 3 x bottles of Henschke red wine, recorded as item number BBCA/AC/008 on PSR M383228 as ‘Hensche’. Item 4 – BMC red/white mountain bike Team Elite 01, recorded as item BBCA/AC/031 in PSR M383235 Item 5 – ‘Motorbike jackets’, recorded as item number BBCA-AC-016 on PSR M383233 Item 6 - Racing gear and leathers, recorded as item number BBCA-AC-018 on PSR M383233 Item 7 – 2 x Bell motorcycle helmets, recorded as item number BBCA-AC-019 on PSR M383233 Item 8 – Race gear, recorded as item number BBCA-AC-020 on PSR M383234 Item 9 – Race leather jackets, recorded as item number BBCA-AC-021 on PSR M383234 Item 10 – Race leather jacket and helmet and helmet accessories, recorded as item number BBCA-AC-022 on PSR M383234 Item 11 – Race helmets x 2, 1 x neck brace, recorded as item number BBCA-AC-023 on PSR M383234 Item 12 – 2 x Shark motorcycle helmets, recorded as item number BBCA-AC-024 on PSR M383234 Item 13 – Boots motorcycle helmet, recorded as item number BBCA-AC-025 on PSR M383234 Item 14 – 2 x Bell motorcycle helmets, recorded as item number BBCA-AC-026 on PSR M383234 Item 15 – 2 x Bell motorcycle helmets, recorded as item number BBCA-AC-027 on PSR M383234	1st Def 10th Def	18(1)
1, 2	2	Bondi Jewellery, Bondi Bedroom Watches and Ring, Bondi Wardrobe Watches, Bondi Clothing Item 1 – 4 x earrings, 1 x ring, 2 x cases, 1 x Tiffanys Bag, recorded as item number BBCA/AC/001 in PSR M383227 Item 2 – 1 x Tudor Watch, 2 x Omega Watches, 1 x Gold Ring, recorded as item number BBCA/AC/002 on PSR M383227 Item 3 – 1 Rolex Watch, 2 x Omega Watches, 1 x Tag Heuer & 1 x Longines watch, recorded as item number BBCA/AC/009 on PSR M383228 Item 4 – Hugo Boss clothing’, recorded as item number BBCA-AC-014 on PSR M383233 Item 5 – ‘Hugo Boss clothing’, recorded as item number BBCA-AC-017 on PSR M383233	1st Def 10th Def	18(1) and 19(1)
3	3	Vacy Vehicles, Vacy Alcohol, Vacy Drone, Vacy Electronics, Vacy Appliances and Vacy Records Item 1 – All-terrain vehicle (ATV) described as a Serial HBCXX976BGF Can-AM 4x4 HD10 Defender, recorded as item APO/001 in PSR M422255 Item 2 – KTM 450 Trailbike, serial number VBR5XR439GM381572, recorded as item APO/002 in PSR M422255 Item 3 – KTM 250 Trailbike, serial number VBKSXK439GM152624, recorded as item APO/003 in PSR M422255 Item 4 – KTM 250 Trailbike, serial number VBKSXK437FM131138, recorded as item APO/004 in PSR M422255 Item 5 – KTM 250 Trailbike, serial VBKSXK43XFM130906, recorded as item APO/005 in PSR M422255 Item 6 – Honda 230L Trailbike, NSW registration RHY25S, recorded as item APO/006 in PSR M422255 Item 7 – Yamaha F125 Trailbike, with serial number YCF125SE8F1516385, recorded as item APO/007 in PSR M422255 Item 8 – Husqvarna TS 342 ride on mower serial 072016A064071, recorded as item APO/008 in PSR M422256 Item 9 – 20 x bottles of 2014 Lake’s Folly Cabernets Red Wine, recorded as item 934/B/067 in PSR M422268 Item 10 – 19 x bottles of 2014 Lake’s Folly Cabernets Red Wine, recorded as item 934/B/068 in PSR M422268 Item 11 – 12 x bottles of 2014 Lake’s Folly Cabernets Red Wine, recorded as item 934/B/069 in PSR M422268 Item 12 – 12 x bottles of 2011 Lake’s Folly Cabernets Red Wine, recorded as item 934/B/070 in PSR M422268 Item 13 – 25 x bottles of 2011 Lake’s Folly Cabernets Red Wine, recorded as item 934/B/071 in PSR M422268 Item 14 – 11 x bottles of Shaw + Smith Sauvignon Blanc white wine, recorded as item 934/B/072 in PSR M422275 Item 15 – 12 x bottles of Lake’s Folly 2012, 3 Estates wine, recorded as item 934/B/073 in PSR M422275 Item 16 – 12 x bottles of Head Red Shiraz 2013, recorded as item 934/B/074 in PSR M422275 Item 17 – 1 x Vintec wine fridge 606500000, recorded as item 934/B/075 in PSR M422275 Item 18 – 1x Shaw + Smith 2014 chardonnay; 2x Audrey Wilkinson 2016 Sem Sav Blanc; 3x Veuve Brut Clicquot; 1x Veuve Rose; 1x Veuve 2008 Rose; 1x Moet, recorded as item 934/B/076 in PSR M422275 Item 19 – 4 x bottles 2013 Head Red; 3 x 2012 Lakes Folly 3 Estates; 1 x Crazy Horse 2006; 3 x 2012 Lakes Folly 3 Estates; 1 x Crazy Horse 2006; 1 x 3000ml; 1 x 1500 ml 2014 Lakes Folly Magnum Shiraz; 2 x Audrey Wilkinson 2014 Shiraz, recorded as item 934/B/077 in PSR M422275 and M422276 Item 20 – 1 x Bundaberg 700ml 125th Anniversary; 1 x Johnnie Walker Black Label 12 years 700ml; 1x Jack Daniels No. 7; 1x No.3 London Gin 750ml; 1 x Bacardi Rum 1862; 1 x 78 degrees Small Baten Gin; 1 x The Kracken Spiced Rum; 1 x ACDC Platinum Shiraz; 1 x Milagro Tequila, 229 bottle number, recorded as item 934/B/078 in PSR M422276 Item 21 – 1 x DJI Phantom Drone, 2 x Batteries and Controller, serial FCCID SS3GL3001510, recorded as item 934/B/062 on PSR M422266 Item 22 – 1 x mini apple iPad (for drone) serial = F9F56AK9FCM5, recorded as item 934/B/061 on PSR M422266 Item 23 – 1 x ceiling speaker, recorded as item AC001 on PSR M422269 Item 24 – 1 x ceiling speaker, recorded as item AC002 on PSR M422269 Item 25 – 1 x amp + 1 head deck, recorded as item AC003 on PSR M422269 Item 26 – 2 x small speakers, recorded as item AC004 on PSR M422269 Item 27 – 1 x subwoofer [sic] and 1x turn table, recorded as item AC005 on PSR M422269 Item 28 – 1 x speaker Aria, recorded as item AC006 on PSR M422269 Item 29 – 1 x speaker Aria, recorded as item AC007 on PSR M422269 Item 30 – 1 x subwoofer + 1x DVD recorded as item AC008 on PSR M422269 Item 31 – 1 x ceiling speaker, recorded as item AC009 on PSR M422269 Item 32 – 1 x ceiling speaker, recorded as item AC010 on PSR M422269 Item 33 – 1 x large speaker, recorded as item AC0011 on PSR M422269 Item 34 – 1 x large speaker, recorded as item AC0012 on PSR M422269 Item 35 – 1 x LG flat screen TV, recorded as item AC0013 on PSR M422269 Item 36 – 3 x remotes (1 x Yamaha, 1 x Panasonic, 1 x LG) recorded as item 034/B/063 on PSR M422266 Item 37 – Cables for sound system with instructions, recorded as item 034/B/064 on PSR M422266 Item 38 – 1 x front load washer 10 kg LG silver, recorded as item 934/B/067 on PSR M422268 Item 39 – 1 x Fisher & Paykel white dryer 6kg, recorded as item 934/B/068 on PSR M422268 Item 40 – Various Records Box 1, recorded as item 934/B/065 on PSR M422266 Item 41 – Various Records Box 2, recorded as item 934/B/066 on PSR M422266	1st Def 14th Def	18(1)
4 and 5	4	Item 1 – Cash in the amount of AUD169,750, recorded as item GH001 in PSR A121741	1st Def 14th Def	18(1) and 19(1)
6	5	Box 1279 Cash Item 1 – Cash the amount of AUD30,000, recorded as item 001 in PSR A228309	1st Def	18(1)
12	9	Picton Jewellery Item 1 – 1 x gold ring with multiple diamonds surrounding ring, recorded as item LCP/001 on PSR M379668 Item 2 – 1 x silver coloured ring with red gem + clear stones surrounding red gem, recorded as item LCP/002 on PSR M379668 Item 3 – 1 x teardrop shaped champagne coloured jewel with smaller stones ring, recorded as item LCP/003 on PSR M379668 Item 4 – 1 x square shaped multi diamond ring, recorded as item LCP/004 on PSR M379668	5th Def	18(1)
13	10	Vaucluse Cash, Vaucluse Satchel and Vaucluse Watches and Items Item 1 – Cash in the amount of US1,508, recorded as item C-JO-001 on PSR A092062 Item 2 – Cash in the amount of AUD1350, recorded as item C-JO-002 on PSR A092062 Item 3 – Cash in the amount of AUD1200, recorded as item C-JO-003 on PSR A092062 Item 4 – Cash in the amount of EUD550, recorded as item C-JO-004 on PSR A092062 Item 5 – Salvatore Ferragamo brown leather satchel, recorded as item CA-JO-026 on PSR A121979 Item 6 – Watch display box containing seven watches, recorded as item CA-JO-013 on PSR A121978 Item 7 – Carl Bucherer watch box containing one Omega watch, recorded as item CA-JO-016 on PSR A121978 Item 8 – 1 x Brietling watch, 1x Tag watch and 1x floral style ring believed to contain diamonds, recorded as item CA-JO-27 on PSR A121980 Item 9 – 1 x IWC watch and 1x Isextrcc extra 1930 rollerball pen, recorded as item CA-JO-33 on PSR A121980	2nd Def 11th Def	18(1)
13 and 14	11	Vaucluse Keary Watch, Vaucluse Clothing, Vaucluse Handbags and Vaucluse Jewellery Item 1 – 1 x Rolex watch, recorded as item CA-JO-36 on PSR A121981 Item 2 – Long black ‘Burberry’ brand trench coat, recorded as item CA-JO-001 on PSR A121977 Item 3 – Tan leather Burberry branded jacket, recorded as item CA-JO-002 on PSR A121977 Item 4 – Brown suede leather jacket, Tom Ford brand, recorded as item CA-JO-003 on PSR A121977 Item 5 – Black Prada women’s jacket, recorded as item CA-JO-004 on PSR A121977 Item 6 – Burberry women’s trench coat, recorded as item CA-JO-005 on PSR A121977 Item 7 – Black Balmain Paris jacket, recorded as item CA-JO-006 on PSR A121977 Item 8 – Black leather jacket Gucci, recorded as item CA-JO-007 on PSR A121977 Item 9 – 1x white Balmain Paris jacket, recorded as item CA-JO-008 on PSR A121977 Item 10 – Tan Balmain Paris jacket, recorded as item CA-JO-009 on PSR A121978 Item 11 – Balmain Paris jacket, black coloured, recorded as item CA-JO-010 on PSR A121978 Item 12 – Black leather jacket, Balmain Paris brand, recorded as item CA-JO-014 on PSR A121978 Item 13 – Navy blue Balmain brand jacket, recorded as item CA-JO-022 on PSR A121979 Item 14 – Black leather Gucci embossed handbag, recorded as item CA-JO-011 on PSR A121978 Item 15 – Black leather Gucci handbag with silver coloured studs, recorded as item CA-JO-012 on PSR A121978 Item 16 – Black velvet Gucci handbag, recorded as item CA-JO-017 on PSR A121978 Item 17 – Leopard print Chloe brand handbag, recorded as item CA-JO-018 on PSR A121979 Item 18 – Black leather St Laurent handbag, recorded as item CA-JO-020 on PSR A121979 Item 19 – Black leather flower pattern St Laurent handbag, recorded as item CA-JO-021 on PSR A121979 Item 20 – Black leather Chanel handbag, recorded as item CA-JO-024 on PSR A121979 Item 21 – Black leather Valentino handbag, recorded as item CA-JO-025 on PSR A121979 Item 22 – Pink Louis Vuitton handbag, recorded as item CA-JO-32 on PSR A121980 Item 23 – Alexander McQueen Clutch black with gold studs, recorded as item CA-JO-34 on PSR A121980 Item 24 – Silver and gold coloured tassel St Laurent brand clutch, recorded as item CA-JO-35 on PSR A121980 Item 25 – Tan leather clutch Salvatore Ferragamo, recorded as item CA-JO-37 on PSR A121981 Item 26 – Black leather with gold clasp bracelet Hermes, recorded as item CA-JO-019 on PSR A121979 Item 27 – 1 x pair of diamond earrings in leather jewellery box, recorded as item CA-JO-28 on PSR A121980 Item 28 – 2 x rough cut clear stones, recorded as item CA-JO-29 on PSR A121980 Item 29 – Believed to be diamond ring with aqua stone, recorded as item CA-JO-30 on PSR A121980 Item 30 – 2 x Cartier brand bracelets, recorded as item CA-JO-31 on PSR A121980	2nd Def 11th Def	18(1) and 19(1)
21 and 22	17	Sutherland Shoulder Bag Item 1 – 1 x Black YSL shoulder bag in black box, recorded as item 007 on PSR A70343	8th Def 39th Def	18(1) and 19(1)
23	18	AI Advertising Bank Account Item 1 – Funds standing in Westpac Bank Account 032558 209379 held in the name of AI Advertising Pty Ltd ACN 610 362 171, together with any interest earned on that account	4th Resp	19(1)

8. In various cases, the items of property are grouped under a heading which indicates that those items of property were seized when a search warrant was executed at a particular location. For example, the items in schedules 1 and 2 to the notice of motion were seized when a search warrant was executed at the Bondi residence of the first and tenth defendants and the items in schedule 9 were seized when a search warrant was executed at the Picton residence of the fifth respondent.

The Evidence

9. The Commissioner relied on the affidavit of Alexander Lachlan Archibald Drummond, affirmed on 10 September 2021 and the affidavit of Darren James Burtenshaw, sworn on 15 May 2017, and the exhibits to those affidavits. As noted above, no defendant, respondent or other person appeared to oppose the making of the orders sought by the Commissioner and, consequently, there were no objections to these affidavits. The affidavits provided detailed reasoning and information supported by relevant documentation in relation to the matters to be determined on this application. I accepted the evidence of Mr Drummond and Mr Burtenshaw.

Statutory provisions

10. The statutory provisions which are relevant to the present application are ss 18, 19 and 38 of the POC Act. Both ss 18 and 19 set out circumstances in which a court is required to make a restraining order in relation to certain property and, more generally, the nature and form that any application made under those provisions must take. Generally, s 18 relates to property of persons suspected of committing a serious offence, while s 19 relates to property suspected of being proceeds of an indictable offence or an instrument of a serious offence.

11. Section 18 relevantly provides as follows:

“18  Restraining orders—people suspected of committing serious offences

When a restraining order must be made

(1)  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 a person has committed a *serious offence; and

(e)  any affidavit requirements in subsection (3) for the application have been met; and

(f)  the court is satisfied that the *authorised officer who made the affidavit holds the suspicion or suspicions stated in the affidavit on reasonable grounds.

Note:          A court can refuse to make a restraining order if the Commonwealth refuses to give an undertaking: see section 21.

Property that a restraining order may cover

(2)  The order must specify, as property that must not be disposed of or otherwise dealt with, the property specified in the application for the order, to the extent that the court is satisfied that there are reasonable grounds to suspect that that property is any one or more of the following:

(a)  all or specified property of the *suspect;

…

(c)  specified property of another person (whether or not that other person’s identity is known) that is subject to the *effective control of the suspect;

(d)  specified property of another person (whether or not that other person’s identity is known) that is:

(i)  in any case—*proceeds of the offence; or

(ii)  if the offence to which the order relates is a *serious offence—an *instrument of the offence.

Affidavit requirements

(3)  The application for the order must be supported by an affidavit of an *authorised officer stating:

(a)  that the authorised officer suspects that the *suspect committed the offence; and

(b)  if the application is to restrain property of a person other than the suspect but not to restrain *bankruptcy property of the suspect—that the authorised officer suspects that:

(i)  the property is subject to the *effective control of the suspect; or

(ii)  in any case—the property is *proceeds of the offence; or

(iii)  if the offence to which the order relates is a *serious offence—the property is an *instrument of the offence.

The affidavit must include the grounds on which the *authorised officer holds those suspicions.

Restraining order need not be based on commission of a particular offence

(4)  The reasonable grounds referred to in paragraph (1)(d) need not be based on a finding as to the commission of a particular *serious offence.

Risk of property being disposed of etc.

(5)  The court must make a *restraining order even if there is no risk of the property being disposed of or otherwise dealt with.

...”.

12. Section 19 is relevantly in the following terms:

“19  Restraining orders—property suspected of being proceeds of indictable offences etc.

When a restraining order must be made

(1)  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 … any other *indictable offence … (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.

Property that a restraining order may cover

(2)  The order must specify, as property that must not be disposed of or otherwise dealt with, the property specified in the application for the order, to the extent that the court is satisfied that there are reasonable grounds to suspect that that property is:

(a)  in any case—*proceeds of the offence; or

(b)  if the offence to which the order relates is a *serious offence—an *instrument of the offence.

Refusal to make a restraining order

(3)  Despite subsection (1), the court may refuse to make a *restraining order in relation to an *indictable offence that is not a *serious offence if the court is satisfied that it is not in the public interest to make the order.

Note:          A court can also refuse to make a restraining order if the Commonwealth refuses to give an undertaking: see section 21.

Restraining order need not be based on commission of a particular offence

(4)  The reasonable grounds referred to in paragraph (1)(d) need not be based on a finding as to the commission of a particular offence.

Risk of property being disposed of etc.

(5)  The court must make a *restraining order even if there is no risk of the property being disposed of or otherwise dealt with.”

13. There are, therefore, a number of statutory requirements that must be satisfied for the Court to be required to make an order of the nature set out in ss 18(1) and 19(1).

Consideration – Section 18

14. The Commissioner’s application for restraining orders under s 18 relates to the items of property listed in Schedules 1, 2, 3, 4, 5, 9, 10, 11, and 17 to the notice of motion.

15. First, the terms of s18(1) require that in order for a court to make an order it must be “a court with proceeds jurisdiction”. The phrase “proceeds jurisdiction” is relevantly defined in s 335 of the POC Act. Section 335 provides, in part, that:

“335 Proceeds jurisdiction

(1)  Whether a court has proceeds jurisdiction for an order, other than a *preliminary unexplained wealth order or an *unexplained wealth order, depends on the circumstances of the offence or offences to which the order would relate.

General rules

(2)  If all or part of the conduct constituting an offence to which the order would relate:

(a)  occurred in a particular State or Territory; or

(b)  is reasonably suspected of having occurred in that State or Territory;

the courts that have proceeds jurisdiction for the order are those with jurisdiction to deal with criminal matters on indictment in that State or Territory.

…”

16. I am satisfied that “all or part” of the conduct constituting the offence to which any restraining order would relate occurred in New South Wales, or is, at least is suspected of having occurred in New South Wales. In these circumstances, this Court has proceeds jurisdiction as it is a court that has jurisdiction to deal with criminal matters on indictment in New South Wales.

17. Under s 18(1)(c), the application for the restraining order must be made by a “proceeds of crime authority”. A “proceeds of crime authority” is defined in s 338 of the POC Act and includes “the Commissioner of the Australian Federal Police”: s 338(a). The Commissioner of the Australian Federal Police is the applicant for the orders sought in this case, and thus s 18(1)(c) is satisfied.

18. The requirements in s 18(1)(d), (e) and (f) are that there must be reasonable grounds to suspect that a person has committed a “serious offence”, the affidavit requirements of s 18(3) must have been met and the authorised officer who made the affidavit must hold the suspicions stated on reasonable grounds. The “reasonable grounds” referred to in s 18(1)(d) need not, however, be based on a finding as to the commission of a particular serious offence: s 18(4).

19. The phrase “serious offence” is defined in s 338 of the POC Act and includes, relevantly:

“(a)  an *indictable offence punishable by imprisonment for 3 or more years, involving:

…

(iii)  unlawful conduct by a person that causes, or is intended to cause, a *benefit to the value of at least $10,000 for that person or another person; or

(iv)  unlawful conduct by a person that causes, or is intended to cause, a loss to the Commonwealth or another person of at least $10,000; or

(aa)  unlawful conduct by a person that consists of an indictable offence (the 3 year offence) punishable by imprisonment for 3 or more years and one or more other indictable offences that, taken together with the 3 year offence, constitute a series of offences:

(i)  that are founded on the same facts or are of a similar character; and

(ii)  that cause, or are intended to cause, a benefit to the value of at least $10,000 for that person or another person, or a loss to the Commonwealth or another person of at least $10,000; or

20. In determining whether these requirements have been met, I have had regard to the evidence in the affidavits of Mr Drummond and Mr Burtenshaw, who are Australian Federal Police (AFP) officers as well as being “authorised officers” within the meaning of that term in s 338 of the POC Act.

21. The affidavit of Mr Drummond stated, among other things, that he suspects that the following persons, including parties whom these proceedings concern, including Adam Cranston, Lauren Cranston, Jason Onley, Daniel Hausman, and Christopher Guillan, have committed the offences specified in the affidavit, all of which are indictable and serious offences for the purposes of the POC Act. Mr Drummond’s affidavit also provided the grounds for these suspicions. In a number of cases, the persons have pleaded guilty to the charges and in others the evidence establishes that there are reasonable grounds for suspecting that the relevant persons have committed one or more relevant serious offences. In the circumstances disclosed in the evidence, I am satisfied that there are reasonable grounds for suspecting that all the relevant persons have committed one or more serious offences.

22. On the detailed bases set out in his affidavit, Mr Drummond suspects that each of the items of property in the table is the property of one of those persons, or is subject to the effective control of that person, or is proceeds of a relevant offence, or is an instrument of a relevant serious offence. In this regard, Mr Drummond also relied to an extent on Mr Burtenshaw’s affidavit and statements of other AFP officers, including Federal Agents Basford, Miller, Knighton, Walter, Vasquez, Coles, Morrison and Anderson, as well as the documents which are referred to in, and which are exhibits to, Mr Drummond’s affidavit. The relevant conclusions, which I accept, are explained at pars 52-54, 67-68, 79-81, 94-96, 105-107, 124, 144-148 and 219-221 of Mr Drummond’s affidavit, and the evidence in support of those conclusions is detailed in the paragraphs preceding each conclusion.

23. I am satisfied that Mr Drummond and, to the extent necessary, Mr Burtenshaw held each of the relevant suspicions on reasonable grounds.

24. Accordingly, in my view, the requirements in 18(1)(d), (e) and (f) have been satisfied.

25. Therefore, I am satisfied that the Commissioner has discharged his onus, on the balance of probabilities, and that I must make orders restraining the property specified in the table above. By operation of s 18(5), I must make the orders even in circumstances where there was no risk of the property being disposed of or otherwise dealt with.

26. Under s 18(2), the order must specify the property in the application that must not be disposed of to the extent that the court is satisfied that there are reasonable grounds that the property falls into one of the relevant paragraphs, s 18(2)(a), (c) and (d).

Consideration – Section 19

27. The reasoning set out above in relation to s 18 applies to the similar requirements of s 19 of the POC Act. The Supreme Court is a court with proceeds jurisdiction and the Commissioner of the AFP is a proceeds of crime authority. Once again, the Burtenshaw affidavit and Drummond affidavit adequately set out the relevant suspicions held by each authorised officer and the grounds upon which they held their suspicions. In addition to the paragraphs of Mr Drummond’s affidavit referred to in relation to the property to be the subject of orders under s 18, the relevant conclusion, which I accept, in relation to the AI Advertising Bank Account is explained at par 226 of Mr Drummond’s affidavit, and the evidence in support of that conclusion is detailed in the paragraphs preceding the conclusion . On these bases, I was satisfied that the requirements in s 19(1)(c), (e), (f) were met.

28. Similarly, having regard to the evidence of Mr Burtenshaw and Mr Drummond, I accepted that there were reasonable grounds to suspect that the property to be made the subject of orders under s 19 was the proceeds of “any other indictable offence” or an instrument of a serious offence. Thus, the requirement in s 19(1)(d) was also satisfied.

29. Once again, in these circumstances, an order under s 19 must be made even if there is no risk of the property being disposed of or otherwise dealt with: s 19(5).

Consideration – Section 38

30. In prayer 24, the Commissioner has sought custody and control orders pursuant to s 38 of the POC Act in relation to the items of property identified in the table.

31. Section 38 states:

“The court may order the *Official Trustee to take custody and control of property, or specified property, covered by a *restraining order if the court is satisfied that this is required.”

32. The items of property in relation to which restraining orders are to be made are numerous. There are a number of persons affected by the orders. The items have, except in one case, been seized as a result of the execution of search warrants and, in the other case, the property is funds in a Westpac bank account. In all the circumstances, it appears to me that the most practicable and effective means of securing custody and control of the items of property that are to be the subject of the restraining orders is to make an order pursuant to s 38.

Orders

33. In formulating the orders relevant to prayers 1 to 6, 12 to 14, and 21 to 24 of the notion of motion filed on 20 September 2021, I have maintained the schedule numbers used in the notice of motion, even though not all of schedules are referred to in the orders.

34. For all of the reasons set out above, the Court makes the following orders:

RESTRAINING ORDERS

Items seized during execution of search warrant on 17 May 2017 at Bondi NSW

1. Pursuant to section 18(1) of the Proceeds of Crime Act 2002 (Cth), in respect of the First Defendant, the property specified in Schedules 1 and 2 must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders.

2. Pursuant to section 19(1) of the Proceeds of Crime Act 2002 (Cth), the property specified in Schedule 2 must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders.

Items seized during execution of search warrant on 17 May 2017 at Vacy NSW

3. Pursuant to section 18(1) of the Proceeds of Crime Act 2002 (Cth), in respect of the First Defendant, the property specified in Schedule 3 must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders.

Item seized during execution of search warrant on 5 July 2017 at Vacy NSW

4. Pursuant to section 18(1) of the Proceeds of Crime Act 2002 (Cth), in respect of the First Defendant, the property specified in Schedule 4 must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders.

5. Pursuant to section 19(1) of the Proceeds of Crime Act 2002 (Cth), the property specified in Schedule 4 must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders.

Items seized during execution of search warrants on 17 May 2017 at the 'Guardian Vaults'

6. Pursuant to section 18(1) of the Proceeds of Crime Act 2002 (Cth), in respect of the First Defendant, the property specified in Schedule 5, must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders.

Items seized during execution of search warrant on 17 May 2017 at Picton NSW

7. Pursuant to section 18(1) of the Proceeds of Crime Act 2002 (Cth), in respect of the Fifth Defendant, the property specified in Schedule 9 must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders.

Items seized during execution of search warrant on 17 May 2017 at Vaucluse NSW

8. Pursuant to section 18(1) of the Proceeds of Crime Act 2002 (Cth), in respect of the Second Defendant, the property specified in Schedules 10 and 11, must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders.

9. Pursuant to section 19(1) of the Proceeds of Crime Act 2002 (Cth), the property specified in Schedule 11 must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders.

Item seized during execution of search warrant on 17 May 2017 at Sutherland NSW

10. Pursuant to section 18(1) of the Proceeds of Crime Act 2002 (Cth), in respect of the Eighth Defendant, the property specified in Schedule 17, must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders.

11. Pursuant to section 19(1) of the Proceeds of Crime Act 2002 (Cth), the property specified in Schedule 17 must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders.

Funds standing in Westpac Bank Account 032558 209379 in the name of Al Advertising

12. Pursuant to section 19(1) of the Proceeds of Crime Act 2002 (Cth), the property specified in Schedule 18 must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders.

CUSTODY AND CONTROL ORDERS

13. Pursuant to section 38 of the Proceeds of Crime Act 2002 (Cth), the Official Trustee in Bankruptcy is to take custody and control of the property specified in Schedules 1, 2, 3, 4, 5, 9, 10 ,11, 17 and 18.

SCHEDULES TO THE ORDERS

Schedule 1

Bondi Cash, Bondi Bicycle and Bondi Racing Gear

Item 1 – Cash in the amount of AUD25,000, recorded as item number BBCU/AC/001 of PSR M383230

Item 2 – Cash in the amount of AUD4,050, recorded as item number BBCU/AC/002 in PSR M383230

Item 3 – 3 x bottles of Henschke red wine, recorded as item number BBCA/AC/008 on PSR M383228 as ‘Hensche’.

Item 4 – BMC red/white mountain bike Team Elite 01, recorded as item BBCA/AC/031 in PSR M383235

Item 5 – ‘Motorbike jackets’, recorded as item number BBCA-AC-016 on PSR M383233

Item 6 - Racing gear and leathers, recorded as item number BBCA-AC-018 on PSR M383233

Item 7 – 2 x Bell motorcycle helmets, recorded as item number BBCA-AC-019 on PSR M383233

Item 8 – Race gear, recorded as item number BBCA-AC-020 on PSR M383234

Item 9 – Race leather jackets, recorded as item number BBCA-AC-021 on PSR M383234

Item 10 – Race leather jacket and helmet and helmet accessories, recorded as item number BBCA-AC-022 on PSR M383234

Item 11 – Race helmets x 2, 1 x neck brace, recorded as item number BBCA-AC-023 on PSR M383234

Item 12 – 2 x Shark motorcycle helmets, recorded as item number BBCA-AC-024 on PSR M383234

Item 13 – Boots motorcycle helmet, recorded as item number BBCA-AC-025 on PSR M383234

Item 14 – 2 x Bell motorcycle helmets, recorded as item number BBCA-AC-026 on PSR M383234

Item 15 – 2 x Bell motorcycle helmets, recorded as item number BBCA-AC-027 on PSR M383234

Schedule 2

Bondi Jewellery, Bondi Bedroom Watches and Ring, Bondi Wardrobe Watches, Bondi Clothing

Item 1 – 4 x earrings, 1 x ring, 2 x cases, 1 x Tiffanys Bag, recorded as item number BBCA/AC/001 in PSR M383227

Item 2 – 1 x Tudor Watch, 2 x Omega Watches, 1 x Gold Ring, recorded as item number BBCA/AC/002 on PSR M383227

Item 3 – 1 Rolex Watch, 2 x Omega Watches, 1 x Tag Heuer & 1 x Longines watch, recorded as item number BBCA/AC/009 on PSR M383228

Item 4 – Hugo Boss clothing’, recorded as item number BBCA-AC-014 on PSR M383233

Item 5 – ‘Hugo Boss clothing’, recorded as item number BBCA-AC-017 on PSR M383233

Schedule 3

Vacy Vehicles, Vacy Alcohol, Vacy Drone, Vacy Electronics, Vacy Appliances and Vacy Records

Item 1 – All-terrain vehicle (ATV) described as a Serial HBCXX976BGF Can-AM 4x4 HD10 Defender, recorded as item APO/001 in PSR M422255

Item 2 – KTM 450 Trailbike, serial number VBR5XR439GM381572, recorded as item APO/002 in PSR M422255

Item 3 – KTM 250 Trailbike, serial number VBKSXK439GM152624, recorded as item APO/003 in PSR M422255

Item 4 – KTM 250 Trailbike, serial number VBKSXK437FM131138, recorded as item APO/004 in PSR M422255

Item 5 – KTM 250 Trailbike, serial VBKSXK43XFM130906, recorded as item APO/005 in PSR M422255

Item 6 – Honda 230L Trailbike, NSW registration RHY25S, recorded as item APO/006 in PSR M422255

Item 7 – Yamaha F125 Trailbike, with serial number YCF125SE8F1516385, recorded as item APO/007 in PSR M422255

Item 8 – Husqvarna TS 342 ride on mower serial 072016A064071, recorded as item APO/008 in PSR M422256

Item 9 – 20 x bottles of 2014 Lake’s Folly Cabernets Red Wine, recorded as item 934/B/067 in PSR M422268

Item 10 – 19 x bottles of 2014 Lake’s Folly Cabernets Red Wine, recorded as item 934/B/068 in PSR M422268

Item 11 – 12 x bottles of 2014 Lake’s Folly Cabernets Red Wine, recorded as item 934/B/069 in PSR M422268

Item 12 – 12 x bottles of 2011 Lake’s Folly Cabernets Red Wine, recorded as item 934/B/070 in PSR M422268

Item 13 – 25 x bottles of 2011 Lake’s Folly Cabernets Red Wine, recorded as item 934/B/071 in PSR M422268

Item 14 – 11 x bottles of Shaw + Smith Sauvignon Blanc white wine, recorded as item 934/B/072 in PSR M422275

Item 15 – 12 x bottles of Lake’s Folly 2012, 3 Estates wine, recorded as item 934/B/073 in PSR M422275

Item 16 – 12 x bottles of Head Red Shiraz 2013, recorded as item 934/B/074 in PSR M422275

Item 17 – 1 x Vintec wine fridge 606500000, recorded as item 934/B/075 in PSR M422275

Item 18 – 1x Shaw + Smith 2014 chardonnay; 2x Audrey Wilkinson 2016 Sem Sav Blanc; 3x Veuve Brut Clicquot; 1x Veuve Rose; 1x Veuve 2008 Rose; 1x Moet, recorded as item 934/B/076 in PSR M422275

Item 19 – 4 x bottles 2013 Head Red; 3 x 2012 Lakes Folly 3 Estates; 1 x Crazy Horse 2006; 3 x 2012 Lakes Folly 3 Estates; 1 x Crazy Horse 2006; 1 x 3000ml; 1 x 1500 ml 2014 Lakes Folly Magnum Shiraz; 2 x Audrey Wilkinson 2014 Shiraz, recorded as item 934/B/077 in PSR M422275 and M422276

Item 20 – 1 x Bundaberg 700ml 125th Anniversary; 1 x Johnnie Walker Black Label 12 years 700ml; 1x Jack Daniels No. 7; 1x No.3 London Gin 750ml; 1 x Bacardi Rum 1862; 1 x 78 degrees Small Baten Gin; 1 x The Kracken Spiced Rum; 1 x ACDC Platinum Shiraz; 1 x Milagro Tequila, 229 bottle number, recorded as item 934/B/078 in PSR M422276

Item 21 – 1 x DJI Phantom Drone, 2 x Batteries and Controller, serial FCCID SS3GL3001510, recorded as item 934/B/062 on PSR M422266

Item 22 – 1 x mini apple iPad (for drone) serial = F9F56AK9FCM5, recorded as item 934/B/061 on PSR M422266

Item 23 – 1 x ceiling speaker, recorded as item AC001 on PSR M422269

Item 24 – 1 x ceiling speaker, recorded as item AC002 on PSR M422269

Item 25 – 1 x amp + 1 head deck, recorded as item AC003 on PSR M422269

Item 26 – 2 x small speakers, recorded as item AC004 on PSR M422269

Item 27 – 1 x subwoofer [sic] and 1x turn table, recorded as item AC005 on PSR M422269

Item 28 – 1 x speaker Aria, recorded as item AC006 on PSR M422269

Item 29 – 1 x speaker Aria, recorded as item AC007 on PSR M422269

Item 30 – 1 x subwoofer + 1x DVD recorded as item AC008 on PSR M422269

Item 31 – 1 x ceiling speaker, recorded as item AC009 on PSR M422269

Item 32 – 1 x ceiling speaker, recorded as item AC010 on PSR M422269

Item 33 – 1 x large speaker, recorded as item AC0011 on PSR M422269

Item 34 – 1 x large speaker, recorded as item AC0012 on PSR M422269

Item 35 – 1 x LG flat screen TV, recorded as item AC0013 on PSR M422269

Item 36 – 3 x remotes (1 x Yamaha, 1 x Panasonic, 1 x LG) recorded as item 034/B/063 on PSR M422266

Item 37 – Cables for sound system with instructions, recorded as item 034/B/064 on PSR M422266

Item 38 – 1 x front load washer 10 kg LG silver, recorded as item 934/B/067 on PSR M422268

Item 39 – 1 x Fisher & Paykel white dryer 6kg, recorded as item 934/B/068 on PSR M422268

Item 40 – Various Records Box 1, recorded as item 934/B/065 on PSR M422266

Item 41 – Various Records Box 2, recorded as item 934/B/066 on PSR M422266

Schedule 4

Item 1 – Cash in the amount of AUD169,750, recorded as item GH001 in PSR A121741

Schedule 5

Box 1279 Cash

Item 1 – Cash the amount of AUD30,000, recorded as item 001 in PSR A228309

Schedule 9

Picton Jewellery

Item 1 – 1 x gold ring with multiple diamonds surrounding ring, recorded as item LCP/001 on PSR M379668

Item 2 – 1 x silver coloured ring with red gem + clear stones surrounding red gem, recorded as item LCP/002 on PSR M379668

Item 3 – 1 x teardrop shaped champagne coloured jewel with smaller stones ring, recorded as item LCP/003 on PSR M379668

Item 4 – 1 x square shaped multi diamond ring, recorded as item LCP/004 on PSR M379668

Schedule 10

Vaucluse Cash, Vaucluse Satchel and Vaucluse Watches and Items

Item 1 – Cash in the amount of US1,508, recorded as item C-JO-001 on PSR A092062

Item 2 – Cash in the amount of AUD1350, recorded as item C-JO-002 on PSR A092062

Item 3 – Cash in the amount of AUD1200, recorded as item C-JO-003 on PSR A092062

Item 4 – Cash in the amount of EUD550, recorded as item C-JO-004 on PSR A092062

Item 5 – Salvatore Ferragamo brown leather satchel, recorded as item CA-JO-026 on PSR A121979

Item 6 – Watch display box containing seven watches, recorded as item CA-JO-013 on PSR A121978

Item 7 – Carl Bucherer watch box containing one Omega watch, recorded as item CA-JO-016 on PSR A121978

Item 8 – 1 x Brietling watch, 1x Tag watch and 1x floral style ring believed to contain diamonds, recorded as item CA-JO-27 on PSR A121980

Item 9 – 1 x IWC watch and 1x Isextrcc extra 1930 rollerball pen, recorded as item CA-JO-33 on PSR A121980

Schedule 11

Vaucluse Keary Watch, Vaucluse Clothing, Vaucluse Handbags and Vaucluse Jewellery

Item 1 – 1 x Rolex watch, recorded as item CA-JO-36 on PSR A121981

Item 2 – Long black ‘Burberry’ brand trench coat, recorded as item CA-JO-001 on PSR A121977

Item 3 – Tan leather Burberry branded jacket, recorded as item CA-JO-002 on PSR A121977

Item 4 – Brown suede leather jacket, Tom Ford brand, recorded as item CA-JO-003 on PSR A121977

Item 5 – Black Prada women’s jacket, recorded as item CA-JO-004 on PSR A121977

Item 6 – Burberry women’s trench coat, recorded as item CA-JO-005 on PSR A121977

Item 7 – Black Balmain Paris jacket, recorded as item CA-JO-006 on PSR A121977

Item 8 – Black leather jacket Gucci, recorded as item CA-JO-007 on PSR A121977

Item 9 – 1x white Balmain Paris jacket, recorded as item CA-JO-008 on PSR A121977

Item 10 – Tan Balmain Paris jacket, recorded as item CA-JO-009 on PSR A121978

Item 11 – Balmain Paris jacket, black coloured, recorded as item CA-JO-010 on PSR A121978

Item 12 – Black leather jacket, Balmain Paris brand, recorded as item CA-JO-014 on PSR A121978

Item 13 – Navy blue Balmain brand jacket, recorded as item CA-JO-022 on PSR A121979

Item 14 – Black leather Gucci embossed handbag, recorded as item CA-JO-011 on PSR A121978

Item 15 – Black leather Gucci handbag with silver coloured studs, recorded as item CA-JO-012 on PSR A121978

Item 16 – Black velvet Gucci handbag, recorded as item CA-JO-017 on PSR A121978

Item 17 – Leopard print Chloe brand handbag, recorded as item CA-JO-018 on PSR A121979

Item 18 – Black leather St Laurent handbag, recorded as item CA-JO-020 on PSR A121979

Item 19 – Black leather flower pattern St Laurent handbag, recorded as item CA-JO-021 on PSR A121979

Item 20 – Black leather Chanel handbag, recorded as item CA-JO-024 on PSR A121979

Item 21 – Black leather Valentino handbag, recorded as item CA-JO-025 on PSR A121979

Item 22 – Pink Louis Vuitton handbag, recorded as item CA-JO-32 on PSR A121980

Item 23 – Alexander McQueen Clutch black with gold studs, recorded as item CA-JO-34 on PSR A121980

Item 24 – Silver and gold coloured tassel St Laurent brand clutch, recorded as item CA-JO-35 on PSR A121980

Item 25 – Tan leather clutch Salvatore Ferragamo, recorded as item CA-JO-37 on PSR A121981

Item 26 – Black leather with gold clasp bracelet Hermes, recorded as item CA-JO-019 on PSR A121979

Item 27 – 1 x pair of diamond earrings in leather jewellery box, recorded as item CA-JO-28 on PSR A121980

Item 28 – 2 x rough cut clear stones, recorded as item CA-JO-29 on PSR A121980

Item 29 – Believed to be diamond ring with aqua stone, recorded as item CA-JO-30 on PSR A121980

Item 30 – 2 x Cartier brand bracelets, recorded as item CA-JO-31 on PSR A121980

Schedule 17

Sutherland Shoulder Bag

Item 1 – 1 x Black YSL shoulder bag in black box, recorded as item 007 on PSR A70343

Schedule 18

AI Advertising Bank Account

Item 1 – Funds standing in Westpac Bank Account 032558 209379 held in the name of AI Advertising Pty Ltd ACN 610 362 171, together with any interest earned on that account

Decision last updated: 14 June 2022