Supreme Court New South Wales Medium Neutral Citation: The Commissioner of the Australian Federal Police [2016] NSWSC 1524 Hearing dates: 27 October 2016 Date of orders: 28 October 2016 Decision date: 28 October 2016 Jurisdiction: Common Law Before: Schmidt J Decision: Orders made Catchwords: CRIMINAL LAW – proceeds of crime – forfeiture orders – orders made Legislation Cited: Criminal Code Act 1995 (Cth) Proceeds of Crime Act 2002 (Cth) Cases Cited: Commissioner of the Australian Federal Police (Supreme Court (NSW), Hall J, 13 April 2016, unrep) Application by the Commissioner of the Australian Federal Police dated 10 February 2016 [2016] NSWSC 56 Category: Procedural and other rulings Parties: The Commissioner of the Australian Federal Police (Plaintiff) Representation: Solicitors: J Millington (Plaintiff) File Number(s): 2015/372027 Publication restriction: None Judgment 1. The Commissioner of the Australian Federal Police seeks forfeiture and other orders under s 49 of the Proceeds of Crime Act 2002 (Cth) in respect of cash the subject of orders made earlier in these proceedings under that Act. 2. In February 2016 Davies J made orders under ss 19 and 38 of the Proceeds of Crime Act in relation to the cash, in which two interested persons were identified, Christopher Patino and Benjamin James Faulkner. They had been convicted of offences under s 400.9.1 of the Schedule to the Criminal Code Act 1995 (Cth), of dealing with money or property reasonably suspected to be the proceeds of crime having a value of $100,000 or more; s 307.5.1 of the Schedule, of being in possession of a commercial quantity of an unlawfully imported border controlled drug; and under s 307.1 of the Schedule, of importing or exporting a commercial quantity of a border controlled drug. (see Application by the Commissioner of the Australian Federal Police dated 10 February 2016 [2016] NSWSC 56). 3. In April 2016 Hall J made further consent restraining orders, as well as a custody and control order (see Commissioner of the Australian Federal Police (Supreme Court (NSW), 13 April 2016, unrep). The application for forfeiture orders was adjourned. 4. At the hearing on 27 October, forfeiture orders were sought in respect of cash seized by the Australian Federal Police in November 2011 namely, $AUD138,450 seized at Cabramatta and $AUD320.00 seized at Wetherill Park, plus interest earned thereon. 5. I am satisfied that all of the requirements for the making of the forfeiture orders sought have been satisfied. 6. Firstly, all of the restraining orders made in these proceedings have now been in force for at least 6 months (s 49(1)(b)). 7. The other requirements of s 49 were addressed in an affidavit sworn by Mr Paterson, a special member of the Australian Federal Police, who deposed to the basis of his belief that the cash the subject of the forfeiture application was the proceeds of one or more indictable offences (s 49(1)(c)). 8. On that evidence it is apparent that the money the subject of the application was seized as the result of an investigation commenced in October 2011 into the importation of cocaine and methamphetamine, which resulted in large quantities of those drugs being located in a tractor grapple bucket which arrived at Sydney International Airport. The ensuing investigation into the consignment resulted in the identification and arrest of Mr Patino and Mr Faulkner in November 2011. A search of a residence at Cabramatta, where both Mr Patino and Mr Faulkner had resided, resulted in seizure of various items, including large bundles of cash, while search of a warehouse at Wetherill Park located the cash totalling $320.00. Mr Patino and Mr Faulkner later entered pleas of guilty to the various offences for which they were sentenced. 9. Mr Paterson's belief rested on these matters and on the absence of any lawful explanation for the seized cash, which, he believed, had been derived from the unlawful importation and sale of border controlled drugs and was used or intended to be used in connection with such importation. 10. Mr Paterson also described the steps which were pursued to identify and notify persons with an interest in the proceedings, of the various orders being pursued. On 25 January 2016, Mr Patino advised that he had no objections to the orders and that he had no interest in the money the subject of this application. He has not responded since served with notice of the restraining orders earlier made in the proceedings. 11. Mr Faulkner was represented at the February hearing before Davies J, when an application for exclusion in respect of $3,000 of the seized cash was foreshadowed. In April he consented to restraining orders in respect of that $3,000. He was later given advice of the forfeiture application, but has also not appeared to oppose it. 12. On the evidence no other person with an interest in the cash the subject of the proceedings have been identified, or advised the Australian Federal Police of any interest in that cash. Nor has any application under s 49(3) been made in these proceedings, in respect of any part of that cash, for its exclusion from the forfeiture order sought. 13. Accordingly, s 49(3) takes effect, with the result that the Court need not be satisfied of the matters specified in s 49(1)(c). In all of those circumstances, I am satisfied that the Court's power to make the forfeiture order sought must now be exercised. Orders 1. Accordingly, I order that: Forfeiture Orders 1 Pursuant to Section 49 of the Proceeds of Crime Act 2002 (Cth) (Act), the property specified in Schedule One is forfeited to the Commonwealth. 2 Pursuant to Section 49 of the Act, the property specified in Schedule Two is forfeited to the Commonwealth. Other Orders 3 Pursuant to section 69(2) of the Act, the Plaintiff and the Commonwealth have leave to deal with the forfeited property immediately. 4 Any orders be entered forthwith. SCHEDULE ONE The total cash sum of AUD$138,450.00 seized by members of the Australian Federal Police on 4 November 2011 at X/X XXXXXX Street, Cabramatta NSW and deposited into the AFP Trust Account with the Reserve Bank of Australia on 30 May 2014, together with any interest earned on that amount. SCHEDULE TWO The cash sum of AUD$320.00 seized by members of the Australian Federal Police on 4 November 2011 at XX-XX XXXXXX Road, Wetherill Park, NSW and deposited into the AFP Trust Account with the Reserve Bank of Australia on 30 May 2014, together with any interest earned on that amount. ********** 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: 31 October 2016