ETRI v DISTRICT COURT OF NEW SOUTH WALES [1996] NSWCA 174

ETRI v DISTRICT COURT OF NEW SOUTH WALES

SUPREME COURT OF NEW SOUTH WALES — COURT OF APPEAL

HANDLEY JA, GILES AJA and Simos AJA 12 December, 20 December 1996 [1996] NSWCA 174

PROCEDURAL FAIRNESS — District Court — claim that party had been denied a proper hearing by reason of not being given a proper opportunity to be heard.

Held, claim upheld - record removed to Supreme Court, orders quashed, matter remitted to District Court to be dealt with according to law.

Giles AJA. I agree with Simos AJA.

Simos AJA. In this matter the claimant, Abdul Hamid Etri, and his brother, Mohammed Etri, pleaded guilty to a charge that on 28 November 1995 at Sydney Airport, each attempted to take out of Australia a sum of money being not less than $5,000 in value, without giving a report in respect of the transfer in accordance with section 15 of the Financial Transactions Reports Act 1988 (Commonwealth).

A search by customs officers revealed that AUD $120,000 was packed in the claimant's luggage, and onhis person was AUD $3,450 and US $3,600, none of which had been declared. The amount stated in the charge was the total, namely, AUD $123,450 and US $3,600. In addition to pursuing a prosecution for the transfer offence, the Commonwealth Director of Public Prosecutions applied to the Special Federal Court pursuant to section 19 of the Proceeds of Crime Act 1987 (Commonwealth) for the forfeiture of these sums to the Commonwealth, as 'tainted property' pursuant to sections 4 and 19 of that Act.

A further sum of AUD $120,000 was also found to be packed in the luggage of the claimant's brother, who also had cash on his person, being AUD $2,560 and US $3,500, which amounts he had, however, declared. The sum stated in the charge in respect of the claimant's brother was, therefore, AUD $120,000, the forfeiture of which was also sought by the Commonwealth Director of Public Prosecutions.