The Commissioner of the Australian Federal Police v Cranston and Ors (No 4) [2017] NSWSC 716

Supreme Court New South Wales

Medium Neutral Citation: The Commissioner of the Australian Federal Police v Cranston and Ors (No 4) [2017] NSWSC 716 Hearing dates: 31 May 2017 Date of orders: 31 May 2017 Decision date: 05 June 2017 Jurisdiction: Common Law Before: Fullerton J Decision: Orders made Catchwords: Application for orders under the Proceeds of Crime Act 2002 (Cth) Legislation Cited: Civil Procedure Act 2005 (NSW) Court Suppression and Non-Publication Orders Act 2010 (NSW) Criminal Code Act 1995 (Cth) Proceeds of Crime Act 2002 (Cth) Cases Cited: The Commissioner of the Australian Federal Police v Cranston and Ors [2017] NSWSC 624 The Commissioner of the Australian Federal Police v Cranston and Ors [2017] NSWSC 674 Category: Procedural and other rulings Parties: The Commissioner of the Australian Federal Police (Plaintiff) Adam Michael Cranston and Ors (Defendants 1-58) Representation: Counsel: D Habashy (Plaintiff) Ex parte

Solicitors: Criminal Assets Litigation, Australian Federal Police (Plaintiff) Ex parte File Number(s): 2017/146280

Judgment 1. HER HONOUR: On 16 May 2017 I heard an ex parte application by the Commissioner of the Australian Federal Police ("the Commissioner") for orders under the Proceeds of Crime Act 2002 (Cth) ("the POCA") in respect of the suspected involvement of a large number of people in an organised taxation fraud. 2. The orders sought in the Summons included orders restraining a number of individuals and entities from dealing with the property itemised in the Schedules to the Summons. A number of ancillary orders under the POCA were also sought, as were a number of procedural orders under the Civil Procedure Act 2005 (NSW) and the Court Suppression and Non-Publication Orders Act 2010 (NSW). 3. The orders sought were granted and ordered to be entered forthwith (The Commissioner of the Australian Federal Police v Cranston and Ors [2017] NSWSC 624). 4. On 24 May 2017 I heard a further ex parte application by the Commissioner. The orders sought in the notice of motion included orders restraining a number of individuals and entities from dealing with the property itemised in the Schedules to the notice of motion. A number of custody and control orders and forfeiture orders were also sought under the POCA, as were a number of procedural orders under the Civil Procedure Act 2005 (NSW) and the Court Suppression and Non-Publication Orders Act 2010 (NSW). 5. The orders were granted and ordered to be entered forthwith (The Commissioner of the Australian Federal Police v Cranston and Ors [2017] NSWSC 674). 6. By notice of motion filed instanter on 31 May 2017 pursuant to Rule 6.5 of the Uniform Civil Procedure Rules 2005 (NSW), the Commissioner sought restraining orders under ss 18 and 19 of the POCA, ancillary orders under s 39(1) of the POCA and custody and control orders under s 38 of the POCA against each of the three respondents to the notice of motion and the 19th defendant to the Summons, being respectively, Active Management Solutions Pty Ltd ACN 618 319 083, 004 488 408 Pty Ltd ACN 618 492 596, Glen Saikali, and G & T Holdings Pty Ltd ACN 601 755 202. The 2nd and 50th defendants to the Summons were also nominated in the notice of motion as persons (or entities) affected by the orders sought. The 1st and 9th defendants to the Summons were not nominated on the notice of motion as persons affected by the orders sought but, as indicated in the affidavit of Mr Burtenshaw of 31 May 2017, they are both suspected to have effective control over the property identified in Schedules 2 to 4 (the 9th defendant) and Schedules 5 and 6 (the 1st defendant). 7. It was the Commissioner's case on the motion that the property identified in the Schedules is either (i) the proceeds or instrument of an indictable or serious offence (as defined in s 19 of the Act) committed by one or more of the defendants contrary to s 400.0(1) of Schedule 1 of the Criminal Code Act 1995 (Cth) ("the Criminal Code") and/or an offence contrary to s 135.4(3) of the Criminal Code – the property in Schedules 1 to 6; and/or (ii) property under the effective control of the 2nd defendant within the meaning of s 18(2)(c) of the POCA – the property in Schedule 1; and/or (iii) property under the effective control of the 9th defendant within the meaning of s 18(2)(c) of the POCA – the property in Schedules 2, 3 and 4; and/or (iv) property under the effective control of the 1st defendant within the meaning of s 18(2)(c) of the POCA – the property in Schedules 5 and 6. 8. Procedural orders were sought under ss 71(a) and (b) of the Civil Procedure Act and ss 26(4) and 39(3A) of the POCA. Further, an order was sought pursuant to s 64 of the Civil Procedure Act and Rule 6.24 of the Uniform Civil Procedure Rules for leave to file a second further amended summons and that the first, second and third respondents to the notice of motion be joined as parties to the proceedings. 9. Orders were also sought pursuant to ss 7 and 8 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) that there will be no access granted to any person, including to any defendant to the proceedings commenced by summons, to the non-redacted version of the first affidavit of Mr Burtenshaw sworn 15 May 2017. 10. The affidavit of Mr Burtenshaw sworn on 31 May 2017 was read in support of the notice of motion. A folder of documents was exhibited to the affidavit as Exhibit DJB-2. Mr Burtenshaw is a member of the Australian Federal Police ("the AFP") performing duties in the Criminal Assets Confiscation Taskforce. He is an authorised officer within the meaning of s 338 of the POCA. 11. In his affidavit, Mr Burtenshaw referred to the affidavit sworn by him on 15 May 2017 and its accompanying exhibit, Exhibit DJB-1, and read in support of the orders I made on 16 May 2017. Mr Burtenshaw also referred to and adopted the affidavit of Federal Agent Scott James Murphy, sworn on 24 May 2017, and its accompanying exhibit, Exhibit SJM-1. Mr Murphy's affidavit was read in support of the orders I made on 24 May 2017. Mr Murphy is also a member of the AFP performing duties in the Criminal Assets Confiscation Taskforce and an authorised officer within the meaning of s 338 of the POCA. 12. On 31 May 2017, the orders sought in the notice of motion were made in accordance with short minutes of order signed and dated by me. What follows are my reasons for making those orders. 13. Dealing first with the procedural orders: leave was granted to file and serve the second further amended summons. I was also satisfied that the application for the orders sought under ss 18, 19 and 38 of the POCA should be heard and determined without notice to any of the respondents to the notice of motion (or to any of the 2nd, 19th or 50th defendants to the summons) pursuant to ss 26(4) and 39(3A) of the POCA and in the absence of the public pursuant to s 71 of the Civil Procedure Act. 14. In light of the serious offences the 2nd defendant, among others, is suspected of having committed, and that the property identified in the Schedules to the notice of motion is reasonably suspected by Mr Burtenshaw to be under the effective control of each of the defendants listed above at [7] and susceptible to restraint either for that reason under s 18(3)(b)(i) of the POCA, and/or as the proceeds of one or more of the offences (see s 18(3)(b)(ii)), or both, I was satisfied that the statutory objects in s 5 of the POCA would be potentially frustrated were those individuals notified of the proceedings and the orders sought in advance of the notice of motion being heard. I am also satisfied that the public interest in the Commissioner pursuing the various outcomes provided for in the POCA outweighed the public interest in the otherwise abiding principle of open justice. 15. Dealing with the orders against access to the non-redacted version of Mr Burtenshaw's affidavit of 15 May 2017: I was satisfied, for the reasons set out in my reasons for granting various orders made on return of the Summons that it is in the public interest that the paragraphs in Mr Burtenshaw's affidavit nominated for redaction by the Commissioner be suppressed, both from publication or access, for the reasons I then gave (see The Commissioner of the Australian Federal Police v Cranston and Ors [2017] NSWSC 674 at [14]). 16. Dealing with the substantive orders sought: what follows is a brief summary of the information relied upon by Mr Burtenshaw as grounding the reasonable suspicions he deposes to, namely that the 2nd defendant, among others, has committed a serious offence; that the property in Schedules 1 to 6 is wholly or partly the proceeds of an indictable and/or serious offence or an instrument in the commission of those offences or is property under the effective control of the 2nd defendant (Schedule 1), the 9th defendant (Schedules 2 to 4) and the 1st defendant (Schedules 5 and 6).