Application by the Commissioner of the Australian Federal Police [2015] NSWSC 1799

Supreme Court New South Wales

Medium Neutral Citation: Application by the Commissioner of the Australian Federal Police [2015] NSWSC 1799 Hearing dates: 30 November 2015 Decision date: 30 November 2015 Jurisdiction: Common Law Before: Adamson J Decision: See paragraph 16 Catchwords: CRIMINAL LAW – proceeds of crime – ex parte application for restraining order – reasonable grounds to suspect that property is the proceeds of an indictable offence Legislation Cited: Anti-Money Laundering and Counter-Terrorism Financing Act 2006, s 142 Criminal Code (Cth), Pt 10.2, s 400.9 Proceeds of Crime Act 1987 (Cth), s 81 Proceeds of Crime Act 2002 (Cth), ss 19, 332, 338 Category: Principal judgment Parties: The Commissioner of the Australian Federal Police (Plaintiff) Representation: Counsel: J Millington (solicitor)(Plaintiff)

Solicitors: File Number(s): 2015/352254

Judgment (EX TEMPORE – REVISED)

Introduction 1. By summons filed in Court today, the Commissioner of the Australian Federal Police (the Commissioner), seeks orders pursuant to s 19 of the Proceeds of Crime Act 2002 (Cth) (the Act). In support of the summons, the Commissioner relies on the affidavit of Scott Michael Mathews affirmed 30 November 2015. Federal Agent Mathews deposes in paragraph 1 of his affidavit that he is a member of the Australian Federal Police (AFP).

Legislative requirements

Section 19 of the Act 1. Section 19 of the Act provides that a Court with proceeds jurisdiction (which includes this Court) must, if certain conditions are fulfilled, make an order that property not be deposed of or otherwise dealt with by any person. The Court's obligation to make an order with respect to serious offences is subject to its satisfaction that an appropriate undertaking has been given: s 21 (addressed below). 2. Section 19 provides: "Restraining orders—property suspected of being proceeds of indictable offences etc. When a restraining order must be made (1) A court with *proceeds jurisdiction must order that: (a) property must not be disposed of or otherwise dealt with by any person; or (b) property must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in the order; if: (c) a *proceeds of crime authority applies for the order; and (d) there are reasonable grounds to suspect that the property is: (i) the *proceeds of a *terrorism offence or any other *indictable offence, a *foreign indictable offence or an *indictable offence of Commonwealth concern (whether or not the identity of the person who committed the offence is known); or (ii) an *instrument of a *serious offence; and (e) the application for the order is supported by an affidavit of an *authorised officer stating that the authorised officer suspects that: (i) in any case—the property is proceeds of the offence; or (ii) if the offence to which the order relates is a serious offence—the property is an *instrument of the offence; and including the grounds on which the authorised officer holds the suspicion; and (f) the court is satisfied that the *authorised officer who made the affidavit holds the suspicion stated in the affidavit on reasonable grounds. Property that a restraining order may cover (2) The order must specify, as property that must not be disposed of or otherwise dealt with, the property specified in the application for the order, to the extent that the court is satisfied that there are reasonable grounds to suspect that that property is: (a) in any case—*proceeds of the offence; or (b) if the offence to which the order relates is a *serious offence—an *instrument of the offence. Refusal to make a restraining order (3) Despite subsection (1), the court may refuse to make a *restraining order in relation to an *indictable offence that is not a *serious offence if the court is satisfied that it is not in the public interest to make the order. Note: A court can also refuse to make a restraining order if the Commonwealth refuses to give an undertaking: see section 21. Restraining order need not be based on commission of a particular offence (4) The reasonable grounds referred to in paragraph (1)(d) need not be based on a finding as to the commission of a particular offence. Risk of property being disposed of etc. (5) The court must make a *restraining order even if there is no risk of the property being disposed of or otherwise dealt with." 1. The conditions, the fulfilment of which entitle the Commission to an order under s 19(1)(a) or (b) are set out in s 19(1)(c) – (f) of the Act. These will be considered in turn.