Commissioner of the Australian Federal Police v Pratten [2017] NSWSC 927

Supreme Court New South Wales

Medium Neutral Citation: Commissioner of the Australian Federal Police v Pratten [2017] NSWSC 927 Hearing dates: 10 July 2017 Decision date: 14 July 2017 Jurisdiction: Common Law Before: R A Hulme J Decision: 1. The applications by the First to Sixth Defendants for Orders 1 and 2 in the notice of motion filed on 28 October 2016 are dismissed. 2. The application by the First Defendant for Orders 1 and 2 in the notice of motion filed on 4 April 2017 is dismissed. 3. The First Defendant is to pay the Plaintiff's costs of proceedings in relation to both motions. Catchwords: PROCEEDS OF CRIME – application for exclusion from forfeiture – s 94 of the Proceeds of Crime Act 2002 (Cth) – only property subject to automatic forfeiture can be subject of exclusion application – property being shares - onus of proof on the applicant – s 94(1)(f) – likely that the applicant had $1 and $10 available to him from legitimate source – probable that shares lawfully acquired – s 94(1)(e) – bare assertion that shareholding not used for any unlawful activity inadequate – question not whether company acted unlawfully, but whether share in that company used as an instrument to achieve unlawful benefit – satisfaction of s 330(2) not exhaustive of ways property becomes instrument of crime – not satisfied that interest in companies not used as instrument of crime – application dismissed PROCEEDS OF CRIME – applications for exclusion from forfeiture – s 29 of the Proceeds of Crime Act 2002 (Cth) – operation of s 29(4) – exclusion impermissible because a pecuniary penalty order could be made – question of whether a pecuniary penalty order will be made irrelevant – applications dismissed PRACTICE AND PROCEDURE – adjournment application – applicant seeking to give evidence in person – evidence sought to be given on matters arising from documentary evidence served on applicant over a month before hearing – applicant conceded ample time to prepare – no effort made to determine nature and extent of evidence to be given – further adjournment unlikely to allow respondent to respond – proximate deadline being date of automatic forfeiture – adjournment contrary to objects of case management – application refused Legislation Cited: Civil Procedure Act 2005 (NSW) s 57(1) Crimes (Administration of Sentences) Act 1999 (NSW) s 77 Criminal Code (Cth) s 134.2(1) Evidence Act 1995 (NSW) s 91 Proceeds of Crime Act 2002 (Cth) Cases Cited: Director of Public Prosecutions (Cth) v Pratten (No 2) [2017] NSWCCA 42 Milne v The Queen [2014] HCA 4; 252 CLR 149 R v Pratten (No 25) [2016] NSWSC 539 Category: Principal judgment Parties: Commissioner of the Australian Federal Police (Plaintiff) Timothy Charles Pratten (First defendant) Representation: Counsel: Mr D A McLure SC with Mr D Tynan (Plaintiff/Respondent)) Mr I McLachlan (Defendant/Applicant)