The Commissioner of the Australian Federal Police [2014] NSWSC 1345

Supreme Court New South Wales

Medium Neutral Citation: The Commissioner of the Australian Federal Police [2014] NSWSC 1345 Hearing dates: 23 September 2014 Decision date: 01 October 2014 Jurisdiction: Common Law Before: Schmidt J Decision: Orders sought made. Catchwords: CRIMINAL LAW - ex parte application - orders sought under ss 19 and 83 of the Proceeds of Crime Act 2002 (Cth) - orders granted Legislation Cited: Proceeds of Crime Act 2002 (Cth) Criminal Code (Cth) Category: Procedural and other rulings Parties: The Commissioner of the Australian Federal Police (Plaintiff) Representation: Solicitors: Mr S Le Poidevin Proceeds of Crime Litigation, Australian Federal Police File Number(s): 2014/245504 Publication restriction: None

Judgment 1By summons filed on 21 August 2014, the Commissioner of the Australian Federal Police, a proceeds of crime authority under s 338 of the Proceeds of Crime Act 2002 (Cth), applied ex-parte, seeking restraining orders under s 19 of the Act in relation four sums of money totalling some $AUD145,960 seized by Australian Federal Police ("AFP") during the execution of search warrants in March 2014. Orders under s 38 that the money be taken into the custody of the Official Trustee in Bankruptcy were also sought. 2The application was supported by an affidavit sworn on 20 August 2014 by Katrina Hoyes, a member of the Australian Federal Police and an authorised officer under the Act. 3The orders sought were made on 23 September 2014. These are the reasons why I was satisfied that the orders should be made. 4Section 26 of the Act deals with the notice which must be given of applications such as this. The application must proceed ex parte if sought by the authority (s 26(4)). 5This Court is a court with "proceeds jurisdiction" to make the order sought under s 19 of the Act, the alleged offences having occurred in this State and the property the subject of the orders being located here (see s 335). Section 19 requires the making of restraining and other orders, upon satisfaction that an authorised officer who provides an affidavit supporting the application holds suspicions of the kind specified on reasonable grounds. 6This application was supported by the affidavit sworn by Ms Hoyes as to her suspicions that the cash the subject of the application was the proceeds of an indictable and/or serious offence, namely money with a value exceeding $AUD100,000, reasonably suspected of being proceeds of crime, an offence under s 400.9(1) of the Schedule to the Criminal Code (Cth). 7Ms Hoyes explained the basis for her suspicions to be, in summary that Mr Clark was selling drugs through a network of five others, earning up to $4,000 per week through those activities; he had both resources, knowledge and equipment to produce illicit drugs for sale; that the cash seized exceeded his legitimate earning capacity as a personal trainer; and that it was suspected of being the proceeds and/or instruments of serious offences. 8She deposed that her suspicions rested on information provided by Federal Agent Wilson, the designated case officer in the investigation of Mr Lee Clark and others in a document entitled "Facts for Court," dated 20 May, as well as other documents and statements referred to in her affidavit. 9This material disclosed that Mr Clark was arrested and charged after conversations 10with others involved which were recorded under a surveillance device warrant. In March 2014, he was recorded as having discussed the supply and manufacture of methamphetamine and cocaine with various others. Mr Clark was also the subject of physical surveillance. He was later arrested and charged in relation to trafficking marketable quantities of controlled drugs. A search warrant was executed at his residence and cash suspected of being proceeds of crime, as well as various drug paraphernalia, was seized, as well as records and other materials. Further cash was found in his car and a search of a garage unit located other drug manufacture and supply paraphernalia and records. More cash was found in a safety deposit box, which was also identified to belong to Mr Clark. 11On the basis of Ms Hoyes' affidavits, I was satisfied both that she holds the suspicions to which she deposed and that there were reasonable grounds for those suspicions to be held. In the result I was satisfied that the orders sought had to be made, as s 19 requires, together with examination orders under s 38.