Commissioner of Australian Federal Police [2013] NSWSC 1351

Supreme Court New South Wales

Medium Neutral Citation: Commissioner of Australian Federal Police [2013] NSWSC 1351 Hearing dates: 12 September 2013 Decision date: 12 September 2013 Jurisdiction: Common Law Before: Beech-Jones J Decision: Restraining order made. Catchwords: PROCEEDS OF CRIME - no question of principle. Legislation Cited: - Criminal Code Act 1995 (Cth) - Proceeds of Crime Act 2002 (Cth) Category: Interlocutory applications Parties: Commissioner of the Australian Federal Police (Plaintiff) Representation: Counsel: P.M. McCarthy (Sol) (Plaintiff) Solicitors: Proceeds of Crime Litigation, Australian Federal Police (Plaintiff) File Number(s): 2013/226772

Ex Tempore Judgment 1This is an application for a restraining order under s 19(1)(b)of the Proceeds of Crime Act 2002 (Cth) (the "Act") and a custody control order under s 38 of the Act. 2The brief background to the application is as follows. On 14 March 2013 a number of federal agents arrested four persons concerning their alleged involvement for an offence contrary to s 400.9 of the Criminal Code Act 1995 (Cth) which is colloquially described as "money laundering". At the time of their arrest, those agents seized the sum of $529,350 which had been deposited at a cash transfer business known as "Credit Investment Pty Ltd". In the events that have transpired, those four persons have not been charged. It seems that on the day before their arrest, that is, 13 March 2013, there are reasonable grounds for believing that they procured the transfer by Credit Investment to China of a total of $670,000 in cash. The manner in which they did so appeared to involve three of them depositing separate amounts while under the direction and control of a fourth, namely Xia Di Zheng (Zheng). On the day they were arrested, they had returned to Credit Investment. One of them was observed to be carrying a blue freezer bag containing the cash that was seized and to hand that to Credit Investment for transfer. 3Other material provided in an affidavit from an agent sworn in support of the application, reveals that none of them appear to have the means to possess or earn lawfully this amount of cash. It appears that three of them were unlawful citizens without visas and were effectively performing a task on behalf of Zheng. Zheng states that he was performing the transactions for some unidentified "boss" but denies that he was the principal or the owner of the cash. 4Section 19 (1)(b) obliges a Court with proceeds jurisdiction - which this Court is - to make an order that property must not be disposed of or otherwise dealt with except in circumstances specified in the order, if four conditions are satisfied. 5The first is that a "proceeds of crime authority" applies to the order. The Commissioner is such an authority. 6The second is that there are reasonable grounds to suspect that the property is either the proceeds of, inter alia, an "indictable offence" or an instrument of a "serious offence". An offence under s 400.9 is, at the very least, an indictable offence. The description that I have already given confirms that there are reasonable grounds for that suspicion. 7The third requirement is that the application for an order is supported by an affidavit of an authorised officer stating that that officer suspects that the property is either the proceeds of the offence or an instrument of the offence, and includes the grounds upon which the authorising officer holds the suspicion. This requirement has clearly been satisfied by the affidavit provided in support of the application. 8The fourth condition is satisfied if the Court considers that the authorised officer (who made the affidavit) holds the suspicion stated in the affidavit on reasonable grounds. The above recitation of the facts is derived from the material set out in the officer's affidavit and clearly supports the conclusion that the suspicions, as stated in the affidavit, have reasonable grounds. 9Accordingly it will be appropriate to make the order under s 19(1)(b) in relation to the cash that has been seized. Further, the order under s 38 requiring the Official Trustee to take custody and control of the property, is clearly appropriate. The only other substantive order sought is under s 39(1)(e) which involves the Reserve Bank of Australia doing all the things necessary to give custody and control of the cash that was seized to the actual trustee. Again, that order is clearly appropriate. 10I note that Mr Zheng has been notified that this order was proposed to be made but did not wish to be heard in opposition. The Commissioner has also proffered an undertaking as to damages (see s 21 of the Act). 11Accordingly, upon the provision of the usual undertaking as to damages by the plaintiff, I make orders 1, 2 and 3 in the Short Minutes. I also make orders 4, 5 and 6 in the orders as initialled by me and placed with the papers.