Commissioner of the Australian Federal Police v Fernandez [2018] NSWCA 198

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Commissioner of the Australian Federal Police v Fernandez [2018] NSWCA 198 Hearing dates: 22, 23 March 2018 Decision date: 11 September 2018 Before: Beazley P and Payne JA at [1]; McColl JA at [89] Decision: (1) Appeal allowed.

(2) Set aside orders 1 and 2 made by the primary judge on 7 September 2017 and in lieu thereof make the following orders:

(a) Pursuant to the Proceeds of Crime Act 2002 (Cth), s 49, the following property is forfeited to the Commonwealth:

(i) The respondent's rights to demand payment from the Commonwealth Bank of Australia of the funds standing to the credit (including any interest earned thereon) in savings account number xxx9650 in the name of Rommy Fernandez;

(ii) The respondent's rights to demand payment from the Commonwealth Bank of Australia of the funds standing to the credit (including any interest earned thereon) in savings account number xxx9669 in the name of Rommy Fernandez;

(b) The notice of motion filed by the respondent on 30 June 2016 is dismissed;

(c) The respondent to pay the Commissioner's costs of the trial before the primary judge;

(d) The respondent to pay the Commissioner's costs of the appeal. Catchwords: CRIME – proceeds of crime – whether primary judge erred in declining to make forfeiture orders in respect of respondent's interests in bank accounts in his name – whether respondent's interests in the bank accounts were "proceeds" of an offence within the meaning of Proceeds of Crime Act 2002 (Cth) – whether respondent bore the onus of proving that Proceeds of Crime Act, s 49(4) was satisfied – whether primary judge erred in finding that it was not in the public interest to make forfeiture orders Legislation Cited: Acts Interpretation Act 1901 (Cth), s 15AA Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), s 142 Criminal Code (Cth), s 400.9 Proceeds of Crime Act 2002 (Cth), ss 15B, 29, 49, 317, 329, 330, 338 Cases Cited: CIC Insurance Ltd v Bankstown Football Club Ltd (1997) 187 CLR 384; [1997] HCA 2 Collector of Customs v Agfa-Gevaert Ltd (1996) 186 CLR 389; [1996] HCA 36 Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280; [1993] FCA 456 Commissioner of the Australian Federal Police v Fitzroy All Pty Ltd (2015) 299 FLR 439; [2015] WASC 320 Commissioner of the Australian Federal Police v Hart (2018) 351 ALR 1; [2018] HCA 1 Commissioner of the Australian Federal Police v Kalimuthu (No 3) [2017] WASC 108 Commissioner of the Australian Federal Police v Pham [2015] NSWSC 1383 Commissioner of the Australian Federal Police v Tjongosutiono (2018) 329 FLR 103; [2018] NSWSC 48 Courtenay Investments Ltd v Director of Public Prosecutions (Cth) [2012] WASCA 121 Croton v The Queen (1967) 117 CLR 326; [1967] HCA 48 Director of Public Prosecutions (Vic) v Le (2007) 232 CLR 562; [2007] HCA 52 N Joachimson v Swiss Bank Corporation [1921] 3 KB 110 National Australia Bank Ltd v Norman (2009) 180 FCR 243; [2009] FCAFC 152 O'Sullivan v Farrer (1989) 168 CLR 210; [1989] HCA 61 Parsons v The Queen (1999) 195 CLR 619; [1999] HCA 1 R v Brown [1996] AC 543 Re Sutherland; French Caledonia Travel Service Pty Ltd (in liq) (2003) 59 NSWLR 361; [2003] NSWSC 1008 Russell v Scott (1936) 55 CLR 440; [1936] HCA 34 Taylor v The Owners – Strata Plan No 11564 (2014) 253 CLR 531; [2014] HCA 9 Yanner v Eaton (1999) 201 CLR 351; [1999] HCA 53 Texts Cited: Mark Hapgood QC (ed), Paget's Law of Banking (13th ed, 2007, LexisNexis) Category: Principal judgment Parties: Commissioner of the Australian Federal Police (Appellant) Rommy Fernandez (Respondent) Representation: Counsel: A R Moses SC; L T Livingston; D Tang (Appellant) M J McCarthy (Respondent)