Supreme Court New South Wales Medium Neutral Citation: The Commissioner of the Australian Federal Police [2016] NSWSC 1327 Hearing dates: 19 September 2016 Date of orders: 19 September 2016 Decision date: 19 September 2016 Jurisdiction: Common Law Before: Beech-Jones J Decision: Upon the plaintiff providing, on behalf of the Commonwealth, the usual undertaking as to damages the Court orders that: 1 Pursuant to rule 6.15 of the Uniform Civil Procedure Rules (NSW), this summons is made returnable immediately. 2 Pursuant to section 26(4) of the Proceeds of Crime Act 2002 (Cth) ("the Act") this summons be considered without notice. 3 Pursuant to section 19 of the Act, the property specified in the Schedule to this summons must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders. 4 Pursuant to section 38 of the Act, the Official Trustee in Bankruptcy (Official Trustee) is to take custody and control of the property specified in the Schedule to this summons. 5 Proceedings be listed for directions before the Common Law Registrar at 9am on 28 November 2016. SCHEDULE Funds standing to the credit of Commonwealth Bank of Australia Goal Saver account no. XXXXXX XXXXXXXX, held in the name of 'AHMAD NAJMUDDIN BIN MOHD WAN'. Catchwords: PROCEEDS OF CRIME – restraining order – ex parte application – orders made in terms of short minutes of order Legislation Cited: Anti-Money Laundering and Counter Terrorism Financial Act 2006 (Cth) Criminal Code (Cth) Proceeds of Crime Act 2002 (Cth) Cases Cited: Commissioner of the Australian Federal Police v Duc Pham [2015] NSWSC 1383 Category: Procedural and other rulings Parties: The Commissioner of the Australian Federal Police (Plaintiff) Representation: Solicitors: Mr T McLaughlin Criminal Assets Litigation, Australian Federal Police File Number(s): 2016/280267 Publication restriction: Nil EXTEMPORE Judgment 1. HIS HONOUR: This is an ex-parte application for a restraining order in respect of some funds standing to the credit of the owner of a bank account at the Commonwealth Bank of Australia. 2. The application is made under the Proceeds of Crime Act 2002 (Cth) (the "Act") by the Commissioner of the Australian Federal Police. The application is made without giving notice to the owner of the account. Section 26(4) of the Act requires the Court to consider an application without notice having been given if the responsible authority requests the Court to do so. Such a request has been made. 3. Section 19(1) of the Act obliges the Court to make a restraining order if four conditions are satisfied. 4. The first is that a proceeds of crime authority applies for the order. There is no doubt that criteria is satisfied. 5. The second is that there are reasonable grounds to suspect that the property is the proceeds of a terrorism offence, any other indictable offence, a foreign indictable offence or an indictable offence of Commonwealth concern or an instrument of serious offence. I will return to consider this criteria shortly. 6. The third criteria is the application for the order is supported by an affidavit of an authorised officer stating that the authorised officer suspects that the property is proceeds of the offence, or if the offence to which the order relates is a serious offence, the property is an instrument of the offence and includes the grounds on which the authorised officer holds the suspicion. This criteria is clearly satisfied. On the application the Court received and read an affidavit of James Albert Cutler sworn 19 September 2016 which states those matters. 7. The fourth criteria which must be satisfied is that the authorised officer who made the affidavit holds the suspicion stated in the affidavit on reasonable grounds. I will consider this criteria together with the second criteria. 8. In his affidavit, Mr Cutler states that he is currently performing duties in the Criminal Assets Confiscation Task Force of the Sydney office of the Australian Federal Police. In the course of those he has identified the relevant bank account which is at the Commonwealth Bank. The bank account was opened on 18 July 2011 by a person who holds a Malaysian passport. Since that time there have been a number of cash deposits into that account. Mr Cutler's analysis reveals that overall there had been cash deposits totalling $311,670 since 4 December 2012. Most significantly, there have been cash deposits totalling $260,770 in amounts below the reporting threshold of $10,000 with the vast majority of those cash deposits being made since 25 July 2016. Most suspiciously, there have been multiple cash deposits below the reporting threshold in locations throughout the country, specifically in New South Wales, Queensland, Victoria, Western Australia and Tasmania. 9. The clear inference that is capable of being drawn from that information is that there have been multiple cash deposits made across the country below the relevant reporting threshold as part of some coordinated action to avoid the requirements of the Anti-Money Laundering and Counter Terrorism Financial Act 2006 (Cth). 10. Mr Cutler's analysis also reveals that the account holder is, as I have stated, a Malaysian national and the holder of a Malaysian passport who was not present in Australia when many of the cash deposits to the accounts were made. The account holder last left Australia on 19 July 2016 and has not returned. He has entered Australia on nine occasions since 12 October 2001 on a tourist visa. On at least three of those occasions he has declared to customs officials that he was carrying very large amounts of cash. The current status of the account is that the Commonwealth Bank is at least suspicious of the manner of its use and has placed some form of temporary halt on it being used pending closure. 11. In Commissioner of the Australian Federal Police v Duc Pham [2015] NSWSC 1383 ("Pham") at [10] to [23], I explained the interrelationship between the requirements for a forfeiture order under s 49 and the circumstance that money standing in a bank account may have been deposited in a manner contrary to s 142 of the Anti-Money Laundering and Counter Terrorism Financing Act 2006, ie deposited in a way so that the transactions were not reportable. In Pham at [37] I concluded that: "As I stated earlier, the essence of the contravention of s 142(1) was the causing of the banks to become a party to two or more non-reportable "transactions", specifically the deposits of less than $10,000 that occurred in the manner I stated earlier. In my view, when the criminality is understood in those terms it follows that the amount standing in a bank account as a consequence of the giving effect to the non-reportable transactions referred to in s 142(1) is clearly property that is either wholly or partly realised or derived, whether directly or indirectly, from the commission of that offence." 1. Otherwise in this case, in my view, the circumstances in which the deposits were apparently made would indicate that the money standing in that account is likely to represent the proceeds of an offence under s 400.9(1) of the Criminal Code (Cth). 2. Accordingly, I consider that the second and fourth criteria for the making of a restraining order under s 19 are established. 3. The only other substantive order sought in the proposed short minutes is an order under s 38 of the Act for the Official Trustee in Bankruptcy taking custody and control of the property specified in the orders, specifically the amount standing in the bank account. That order is clearly appropriate. 4. Accordingly, the Court will make orders in accordance with the short minutes of order that I will initial and date today and place with the papers. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 22 September 2016