Gwe v Commissioner of the Australian Federal Police [2020] NSWCA 247

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Gwe v Commissioner of the Australian Federal Police [2020] NSWCA 247 Hearing dates: 25 August 2020 Date of orders: 2 October 2020 Decision date: 02 October 2020 Before: Bathurst CJ at [1]; Bell P at [2]; Emmett AJA at [93] Decision: 1. Grant leave to appeal. 2. Appeal allowed. 3. Set aside the orders of the primary judge and, in lieu thereof, order that: (a) Pursuant to s 29 of the Proceeds of Crime Act 2002 (Cth) all of the Appellants' interests in the property restrained by schedule 2 of the order made on 9 July 2015 be and are hereby excluded from restraint. (b) Pursuant to s 39(1)(e)(i) of the Proceeds of Crime Act 2002 (Cth), the Official Trustee is directed forthwith to pay the funds held by him pursuant to the restraining order made on 9 July 2015 to the Appellants' solicitors, Lincolns Lawyers and Consultants, by electronic funds transfer to such account as may be specified in writing by that firm. (c) Pursuant to s 323 of the Proceeds of Crime Act 2002 (Cth), the Respondent pay costs incurred by the Appellants in connection with the proceeding in the Common Law Division and this appeal. (d) The proceeding is remitted to the Common Law Division for directions on the Appellants' application for damages on the Respondent's undertaking as to damages. 4. Direct that in the absence of agreement between the parties submissions as to costs not exceeding three pages to be filed by Friday 9 October 2020. Catchwords: PROCEEDS OF CRIME – Freezing orders – Proceeds of Crime Act 2002 (Cth) – application to exclude property from restraining order – whether frozen property was acquired in circumstances that would not arouse a reasonable suspicion that property was proceeds of an offence – whether exclusion order should have been made in relation to the property – where applicant had provided sufficient consideration and did not have actual knowledge that the property constituted proceeds of an offence – significance of failure to cross-examine – whether inferences sought to be drawn available in the absence of cross-examination. Legislation Cited: Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) s 142 Proceeds of Crime Act 2002 (Cth) ss 19, 29, 31, 39, 180, 317, 323, 330(4)(a), 338, Pt 2.1 Cases Cited: Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation [1983] 1 NSWLR 1; (1983) 70 FLR 447 Apollo Shower Screens Pty Ltd v Building and Construction Industry Long Service Payments Corporation [1985] 1 NSWLR 561; (1985) 10 IR 88 Browne v Dunn (1893) 6 R 67; [1893] 1 WLUK 44 Director of Public Prosecutions for the State of Victoria v Le (2007) 232 CLR 562; [2007] HCA 52 Director of Public Prosecutions v Le (2007) 17 VR 352; [2007] VSCA 18 Henderson v State of Queensland (2014) 255 CLR 1; [2014] HCA 52 Kuhl v Zurich Financial Services Australia Ltd (2011) 243 CLR 361; [2011] HCA 11 Lordianto v Commissioner of the Australian Federal Police (2019) 266 CLR 273; [2019] HCA 39 Masterton Homes Pty Ltd v Palm Assets Pty Ltd (2009) 261 ALR 382; [2009] NSWCA 234 Precision Plastics Pty Limited v Demir (1975) 132 CLR 362; [1975] HCA 27 Purkess v Crittenden (1965) 114 CLR 164; [1965] HCA 34 Rockcote Enterprises Pty Ltd v FS Architects Pty Ltd; Carelli v FS Architects Pty Ltd [2008] NSWCA 39 Category: Principal judgment Parties: Yoo Tak Gwe (First Applicant) Tan Soi Hoang (Second Applicant) Commissioner of the Australian Federal Police (Respondent) Representation: Counsel: