Application of the Commissioner of the Australian Federal Police (No 2) [2015] NSWSC 1171 (13 August 2015)

Last Updated: 19 August 2015

Supreme Court New South Wales

Case Name:	Application of the Commissioner of the Australian Federal Police (No 2)
Medium Neutral Citation:	[2015] NSWSC 1171
Hearing Date(s):	13 August 2015
Decision Date:	13 August 2015
Jurisdiction:	Common Law
Before:	Button J
Decision:	(1) Pursuant to section 49 of the Proceeds of Crime Act 2002 (Cth) ("the Act"), the property restrained by this Court on 11 February 2015 and set out in Schedule One to these orders, be forfeited to the Commonwealth. (2) Pursuant to section 69(2) of the Act, the Commonwealth be given leave to dispose of or otherwise deal with the property forfeited by order 1 herein, immediately. (3) These orders be entered forthwith. (4) The proceedings are stood over generally for directions before the Common Law Registrar at 9 am on 13 October 2015.
Catchwords:	CRIMINAL LAW – proceeds of crime – application for forfeiture under s 49 of the Proceeds of Crime Act 2002 (Cth) – large sums of cash transferred into a particular bank account – restraining order made on previous occasion – whether forfeiture order should be made – whether the Commonwealth should have leave to dispose of or otherwise deal with the property in question
Legislation Cited:	Proceeds of Crime Act (Cth), ss 19, 49, 49(1), 49(1)(a), 49(1)(b), 49(1)(c), 49(1)(e), 49(2), 49(3), 49(4), 335, 338
Cases Cited:	Application of the Australian Federal Police re matter 2012/249599 [2013] NSWSC 1444 Commissioner of the Australian Federal Police [2013] NSWSC 1428
Category:	Principal judgment
Parties:	Commissioner of the Australian Federal Police (Plaintiff) Ex parte
Representation:	Counsel: Solicitors: Australian Federal Police, Proceeds of Crime Litigation (Plaintiff)
File Number(s):	2015/42962

EX TEMPORE JUDGMENT

1. This is an application brought pursuant to s 49 of the Proceeds of Crime Act 2002 (Cth) (the Act). Moving upon a further amended summons filed on 10 April 2015, the plaintiff seeks an order that two sums of cash transferred into a particular bank account on 15 January 2015 be forfeited to the Commonwealth. The plaintiff also seeks an ancillary order that the Commonwealth have leave to dispose of or otherwise deal with the property in question immediately. Additionally, the plaintiff seeks to have those two orders entered forthwith.
2. One of the sums in question is a little under US$60,000. Notably, the other sum is something over US$11 million.
3. In a separate judgment delivered earlier today, I gave reasons why I was content to hear the matter ex parte.
4. I was provided with judgments of two judges of this Court with regard to the section in question that provided a helpful background: Application of the Australian Federal Police re matter 2012/249599 [2013] NSWSC 1444; and Commissioner of the Australian Federal Police [2013] NSWSC 1428.
5. The solicitor for the plaintiff took me through s 49 of the Act. She submitted that every precondition for the mandatory making of a forfeiture order had been satisfied on the evidence and submissions placed before me.
6. First, turning to the chapeau of s 49(1), she submitted that this Court is a court with proceeds jurisdiction, by way of s 335 of the Act.
7. Secondly, with regard to s 49(1)(a), she submitted that her client, the Commissioner of the Australian Federal Police, is a responsible authority, as defined in s 338 of the Act.
8. Thirdly, with regard to the same subsection, she submitted that a restraining order as defined in s 338 of the Act had been sought and granted, pursuant to s 19 of the Act.
9. Fourthly, turning to s 49(1)(b), because that restraining order was first made by Garling J on 11 February 2015, it has been in force for at least six months as at today, 13 August 2015.
10. Fifthly, the solicitor for the plaintiff submitted that s 49(1)(c) has no application, due to the operation of s 49(3), to which I shall turn in a moment.
11. Sixthly, my threshold judgment with regard to proceeding ex parte was founded upon s 49(1)(e).
12. Seventhly, s 49(2) merely informs s 49(1)(c), and accordingly was not relied upon.
13. Eighthly, as for s 49(3), I am satisfied that no application has been made by the defendant for exclusion of the property in question from the restraining order. Accordingly, I accept the submission that I do not need to be satisfied of any attribute of the property in question as envisaged by s 49(1)(c). Having said that, I interpolate to say that I accept the overarching submission of the solicitor for the plaintiff that the funds are held in a bank account in Australia in very suspicious circumstances.
14. Returning to my seriatim analysis of the preconditions contained in s 49 of the Act, I have turned my mind to whether the discretion not to make an order contained in s 49(4) is enlivened. But it can be seen that, in order to exercise any such discretion, I would need to be satisfied of three things: first, that the funds are an instrument of a serious offence (other than a terrorism offence); secondly, that the funds are not proceeds of an offence; and thirdly, that it is not in the public interest to make the order.
15. On the evidence and submissions placed before me, I am not satisfied affirmatively of any of those three matters, let alone all of them. Accordingly no discretion to refuse to make the orders sought arises.
16. For the foregoing reasons, I propose to make the three orders sought by the plaintiff and helpfully contained in Short Minutes of Orders handed up at the end of the hearing before me, and which I shall now endorse.

[ORDERS MADE]

(1) Pursuant to section 49 of the Proceeds of Crime Act 2002 (Cth) ("the Act"), the property restrained by this Court on 11 February 2015 and set out in Schedule One to these orders, be forfeited to the Commonwealth.
(2) Pursuant to section 69(2) of the Act, the Commonwealth be given leave to dispose of or otherwise deal with the property forfeited by order 1 herein, immediately.
(3) These orders be entered forthwith.

[Schedule 1 not included in judgment.]

[Further submissions made.]

17. Supplementary submissions were made in support of an order directed towards the further progress of the matter before this Court. I am content to accept those submissions and make the further order sought.
18. Accordingly, my fourth order is as follows:

(4) The proceedings are stood over generally before the Common Law Registrar for further directions at 9 am on 13 October 2015.

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