Australian Federal Police v AD [2015] NSWSC 1655

Supreme Court New South Wales

Medium Neutral Citation: Australian Federal Police v AD [2015] NSWSC 1655 Hearing dates: 28 October 2015 Date of orders: 28 October 2015 Decision date: 28 October 2015 Jurisdiction: Common Law Before: Campbell J Decision: See [9] and [10] Catchwords: CIVIL – proceeds of crime – application for forfeiture order Legislation Cited: Criminal Code Act 1995 (Cth); Proceeds of Crime Act 2002 (Cth) Category: Consequential orders (other than Costs) Parties: The Commissioner of the Australian Federal Police (Plaintiff) AD (Defendant) Representation: Counsel: Ms A. Jessep (Plaintiff) No appearance (Defendant) File Number(s): 2012/108692

EX TEMPORE JUDGMENT (REVISED) 1. I am dealing with an application by the Commissioner of the Australian Federal Police for declarations of forfeiture under s 95 of the Proceeds of Crime Act 2002 (Cth) in respect of property the subject of previous restraining orders made by this Court in which the first defendant, or entities associated with him, have an interest. The property in respect of which this relief is sought is set out in the schedule to the notice of motion and in the schedule to the form of order handed up by Ms Jessep, solicitor, who appears for the Commissioner. 2. No person has appeared in opposition to the relief sought. Restraining orders have been made under s 18 of the Act on the following dates: 5 April 2012, 26 April 2012, 27 April 2012, 4 May 2012, 13 May 2013 and 21 November 2013. 3. As explained in the affidavit of Penelope Jane Kelton sworn on 19 October 2015, AD was convicted of offences of conspiring to defraud the Commonwealth and serious money-laundering offences under the Criminal Code Act 1995 (Cth), by a jury on 23 December 2014 and sentenced by Beech-Jones J to a term of imprisonment of seven years on 20 March 2015. The date of sentence stands as the date of conviction under the Act. 4. Under s 95 of the Act, the Court is empowered to make a restraining order that that particular property has been forfeited if the responsible authority, in this case the Commissioner, applies for that declaration and, the Court is satisfied that the property is forfeited under the Act. 5. Section 92 provides that property is forfeited to the Commonwealth if a person is convicted of a serious offence and at the end of the period of six months from the date of conviction, which is calculated in accordance with s 92(3), the property is covered by a restraining order against the convicted person that relates to that offence. 6. Prima facie, accordingly, the Commonwealth is entitled to relief sought. I say prima facie because before forfeiture, s 92A requires the Commissioner to take reasonable steps to give notice to any person who has or claims or whom the authority reasonably believes may have, an interest in the property. The notice provisions are set out in s 92A(1)(a)-(c), and I am satisfied by the affidavit of Ms Kelton, and also by the affidavits of service filed in Court today and read in support of the application, that notice has been duly given. 7. Of the persons given notice in accordance with s 92A, AD and his former wife have made application for an exclusion order under s 73 of the Act in respect of some property only, which has the effect, in respect of that property, of extending what I will call the forfeiture period for a further period of three months, which in this case will be to 19 December 2015. 8. I am satisfied that the forfeiture order which the Commissioner seeks excludes the property the subject AD's and his former wife's application. Those matters relate to items 1, 2, 3, 4, 9(a), 9(b), 11, 13, 14 and 28 in the table to the s 92A notice. 9. For these reasons and by force of the provisions of the Act, to which I have referred, I am satisfied that the Commissioner is entitled to the order sought. I make a declaration in the form of the minute of order handed up by Ms Jessep and signed by me and dated today. 10. I direct that the Court seal be affixed to the form of order and that the order may be entered forthwith. I order that the directions hearings fixed for 5 November 2015 and 7 December 2015 are vacated. I confirm the directions hearing date of 8 December 2015.