Lordianto v Commissioner of the Australian Federal Police [2019] HCA 39

HIGH COURT OF AUSTRALIA

KIEFEL CJ, BELL, KEANE, GORDON AND EDELMAN JJ

Matter No S110/2019

SANKO LORDIANTO & ANOR APPELLANTS

AND

COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE RESPONDENT

Matter No P17/2019

GANESH KALIMUTHU & ANOR APPELLANTS

AND

THE COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE RESPONDENT

Lordianto v Commissioner of the Australian Federal Police Kalimuthu v Commissioner of the Australian Federal Police [2019] HCA 39 Date of Hearing: 7 & 8 August 2019 Date of Judgment: 13 November 2019 S110/2019 & P17/2019

ORDER

Matter No S110/2019

Appeal dismissed with costs.

Matter No P17/2019

Appeal dismissed with costs.

On appeal from the Supreme Court of New South Wales (S110/2019) and the Supreme Court of Western Australia (P17/2019)

Representation

B W Walker SC with T P Mitchell for the appellants in S110/2019 (instructed by Lincolns Lawyers & Consultants)

H K Dhanji SC with E W L Greaves for the appellants in P17/2019 (instructed by Putt Legal Migration)

S P Donaghue QC, Solicitor-General of the Commonwealth, with L T Livingston and C Ernst for the respondent in both matters (instructed by Criminal Assets Litigation – Australian Federal Police)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Lordianto v Commissioner of the Australian Federal Police Kalimuthu v Commissioner of the Australian Federal Police

Criminal practice – Forfeiture of tainted property – Where appellants remitted money to Australia using money remitters or money changers in foreign country – Where large number of cash deposits, usually each less than $10,000, made into appellants' bank accounts in Australia in process known as "cuckoo smurfing" – Where deposits proceeds or instrument of structuring offence under s 142 of Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) – Where Commissioner of Australian Federal Police successfully applied for restraining orders over appellants' bank accounts under s 19 of Proceeds of Crime Act 2002 (Cth) ("POCA") – Where appellants applied under ss 29 and 31 of POCA to have property excluded from orders – Whether property "ceased" to be proceeds or instrument of offence under s 330(4) of POCA – Whether property acquired by third party for sufficient consideration without third party knowing, and in circumstances that would not arouse reasonable suspicion, that property proceeds or instrument under s 330(4)(a) of POCA.