The Commissioner of the Australian Federal Police [2013] NSWSC 626

Supreme Court New South Wales

Medium Neutral Citation: The Commissioner of the Australian Federal Police [2013] NSWSC 626 Hearing dates: 17 May 2013 Decision date: 17 May 2013 Jurisdiction: Common Law Before: Beech-Jones J Decision: Restraining order made. Catchwords: Proceeds of Crime Act - no question of principle. Legislation Cited: - Criminal Code Act 1995 (Cth) - Proceeds of Crime Act 2002 (Cth) Category: Interlocutory applications Parties: The Commissioner of the Australian Federal Police (Plaintiff) Representation: Counsel: Ms P. Kelton (Sol) (Plaintiff) Solicitors: Australian Federal Police (Plaintiff) File Number(s): 13/154174

ex tempore Judgment 1This is an ex parte application by the Commissioner of the Australian Federal Police seeking various orders under the Proceeds of Crime Act 2002 (Cth) (the "Act"). 2I will direct myself to the particular form of orders that are sought. The first two orders seek relief under s 19(1)(b) of the Act in respect of monies standing in two bank accounts in the name of Super Forex Financial Pty Ltd. 3Subsection 19(1)(b) provides, in effect, that a Court with proceeds jurisdiction must order that property not be disposed of or otherwise dealt with by any person except in the manner specified if four conditions are satisfied. The first is that a proceeds of crime authority applies to the order. That is satisfied in this case. 4The second is that there are reasonable grounds to suspect the property in question is, inter alia, either the proceeds of an indictable offence, or an instrument of a serious offence. 5On the application there has been read an affidavit of Trent Andrew Schmidt, affirmed 17 May 2013. By reference to various sources of information Mr Schmidt puts forward evidence that Jun Yu Huang orchestrated a scheme of money laundering by arranging through Aslam Yasi Kasimov for amounts of cash in large quantities to be deposited in various accounts in various financial institutions across Sydney. 6In particular, by reference to a statement provided by Mr Kasimov, there is evidence that Mr Huang arranged for an amount of cash of $170,000 to be lodged in one bank account in the name of the company Super Forex Financial Pty Ltd, and on another occasion an amount of $180,000 in another bank account in the name of that company. The manner in which the system of cash deposits occurred gives rise to a reasonable basis for suspecting that the cash was the proceeds of crime. 7Mr Huang has now been charged with an offence of dealing with property reasonably suspected of being the proceeds of crime contrary to ss 400.9(1) of the Criminal Code Act 1995 (Cth). Having regard to the material in Mr Schmidt's affidavit which I have briefly outlined, the second requirement for a restraining order is, in my view satisfied. 8The third criteria for the grant of a restraining order is that the application is supported by an affidavit of an authorised officer stating that that authorised officer suspects that the property is the proceeds of an offence, or the property is an instrument of an offence, and includes the grounds on which the authorised officer holds the suspicion. Mr Schmidt's affidavit records both of those suspicions and the grounds upon which he holds them. The third criterion is satisfied. 9The fourth criterion is that this Court is satisfied that Mr Schmidt holds the suspicions stated in the affidavit on reasonable grounds. In this regard, it is not necessary for me to embark on a consideration of whether there was a reasonable ground for suspecting the property is an instrument of the offence. The brief description that I have outlined clearly demonstrates that there are reasonable grounds for suspecting the property is the proceeds of an offence. 10The application has been made without notice having been given to any person. Sub-section 26(4) of the Act provides: "The court must consider the application without notice having been given if the responsible authority requests the court to do so." 11I will return to the question of notice being given to affected persons in the form of this order. Subject to that matter, it follows that I will make the proposed restraining orders in paragraphs 1 and 2 of the short minutes of order. 12Paragraphs 3 and 4 of the proposed short minutes seek orders under s 38 of the Act in respect of the two bank accounts. Section 38 provides that the Court may order the Official Trustee to take custody and control of the specified property covered by the restraining order if the court is satisfied that this is required. Given that the property in question is the proceeds of the bank account which can be disseminated in an instant, I am satisfied that it is appropriate to make an order placing the Official Trustee in custody and control of those accounts. 13Paragraphs 5, 6 and 7 of the proposed short minutes seek orders under s 180 of the Act requiring the three persons to attend for examination. The three persons are Mr Huang and Mr Kasimov, who I have already mentioned, as well as Yinghua Liu. Yinghua Liu is a director of a company called Austar Forex Pty Ltd. From a statement made by Mr Huang, it is anticipated that he may contend that the deposits were part of a legitimate business of that company. Thus, the basis for the application to examine these persons is self evident. 14Sub-section 180(1) grants to the Court a discretion to make an order for a person's examination if a restraining order is in force. Sub-section 180(1) does not identify any requisite connection between the person and the property the subject of the restraining order, but it can include a person whose property it is, or a person who has or claims an interest in the property, a person who is a suspect in relation to the restraining order or the spouse or de facto partner of a person referred to in those two instances. 15Mr Huang is clearly a suspect in relation to the restraining order. Ms Liu is apparently his spouse. There may be some doubt about whether Mr Kasimov could be described as a person who has claimed an interest in the property the subject of the restraining order, however, he would clearly answer the description of being a suspect and otherwise has a sufficient connection to the transaction to warrant the order being made. 16The question arises as to the notice to be given to the persons and the making of that order. Sub-section 182(2) obliges the Court to consider the application without notice if the relevant authority requests the Court to do so and that request has been made. 17However, it does seem to me that there must be some scope for a person who has been the subject of an order under s 180 to be able to be heard before the Court as to why an order that has been made should be revoked. 18I have raised this with the solicitor for the Commissioner. I queried whether the appropriate course was to join those persons as parties to the proceedings so that their standing to apply, inter alia, to set aside the s 180 order would be beyond doubt. 19There are some significant questions about the operation of the Act and the directions given to Courts that they must consider matters on an ex parte basis, and the interrelated questions of if and when persons should get notice of orders made against them. However, it is not appropriate to decide those matters at this point. 20Instead, I think the appropriate course is to direct the Commissioner to serve the proposed summons, along with the orders, upon the persons affected, together with a letter advising those persons that if they wish to be joined as party to the proceedings, or wish to apply to set aside the orders including the orders under s 180 of the Act, then they should file a notice of motion to that effect. 21Accordingly, upon the plaintiff giving the usual undertakings as to damages on behalf of the Commonwealth of Australia, I will make orders 1 to 9 in the short minutes of order that are initialled by me and placed with the papers. 22I will further order that the plaintiff serve a copy of the summons, the affidavit in support, the proposed orders and a covering letter advising them if they wish to be joined as a party to the proceedings, or wish to apply to have the orders made, varied or set aside, then they should do so by notice of motion filed in the proceedings.