Proceeds of Crime Restraining Orders Granted in NSW Supreme Court Case

The court granted restraining orders under the Proceeds of Crime Act 2002 to prevent the disposal of certain property linked to an individual charged with serious criminal offenses. The orders were made without notice to the defendant, as requested by the Proceeds of Crime Authority.

Supreme Court New South Wales

Medium Neutral Citation: The Commissioner of the Australian Federal Police v [NAME] [2013] NSWSC 1357 Hearing dates: 17 September 2013 Decision date: 17 September 2013 Jurisdiction: Common Law Before: Davies J Decision: Restraining Orders 1. Pursuant to section 17(1)(b) of the Proceeds of Crime Act 2002 (Cth), the property specified in the Schedule to these orders must not be disposed of or otherwise dealt with by any person except in the manner and circumstances specified in these orders.

2. Notwithstanding paragraph 3, [COMPANY] (ABN 24 [PHONE]) as registered mortgagee (pursuant to registered mortgage number AF722521) in relation to the property specified in items (a) and (b) of the Schedule, may deal with those items of property in accordance with the terms of the registered mortgage, including continuing to levy interest in accordance with the loan agreements and adjusting the balances of the loan accounts accordingly to account for any payments received. FURTHER ORDERS:

1. Stand the proceedings over to the Registrar's list on Friday 11 October 2013.

2. Liberty to restore on 3 days' notice.

3. Costs reserved Catchwords: CRIMINAL LAW - proceeds of crime - restraining orders - no question of principle Legislation Cited: Proceeds of Crime Act 2002 (Cth) Uniform Civil Procedure Rules Category: Principal judgment Parties: The Commissioner of the Australian Federal Police (Plaintiff) [NAME] (Defendant) Representation: Counsel: [redacted] No appearance (Defendant) Solicitors: [redacted] File Number(s): cc

Judgment 1This is an application under s 17 of the Proceeds of Crime Act 2002 of the Commonwealth seeking restraining orders of the property more particularly dealt with in the schedule to the Summons. The application is supported by an affidavit of [NAME] sworn 16 September 2013. 2Section 17 requires the Court to make an order under the section if a Proceeds of Crime Authority applies for the order, if the person concerned has been charged with or convicted of an indictable offence, if the affidavit requirements in the section have been complied with and if the Court is satisfied that the authorised officer who makes the affidavit holds the suspicions stated in the affidavit on reasonable grounds. 3The applicant is a Proceeds of Crime Authority. I am satisfied from the supporting affidavit that [NAME] is an authorised officer within the meaning of s 338 of the Act. 4The affidavit discloses that the Defendant has been charged with three counts against s 307.11 (1) of the Criminal Code and three counts against s 141.1 (3) of the Criminal Code. Each of these offences is a serious offence as that term is defined in s 338. 5The affidavit further discloses that [NAME] suspects that the Defendant has committed the indictable offences of conspiring to import a commercial quantity of border controlled pre-cursors known as pseudo ephedrine on a number of occasions, and three charges of receiving a bribe, that is, dishonestly asking for a benefit for himself with the intention within the exercise of his duties as a Commonwealth public official would be influenced contrary to s 1.1.13 of the Criminal Code. The affidavit has exhibited a number of Statements of Facts in relation to the alleged commission of the offences. 6I am satisfied that the affidavit requirements have been complied with. 7The suspicion that [NAME] holds is based upon conversations he has had with the persons who prepared those Statements of Facts, and [NAME] reading those facts. 8I am satisfied that [NAME] holds the suspicions that are set out in his affidavit on reasonable grounds. In reaching that view, I have myself perused the statements of facts that form the exhibit to his affidavit. 9The Applicant asks that this application be heard without notice being given to the Defendant. Pursuant to s 26 (4) of the Act the Court is required to consider the application without notice if the responsible authority requests the Court to do so. 10Accordingly, I make orders in terms of paragraphs 1,2,3 and 4 of the draft order and stand the proceedings over to the Registrar's list on Friday 11 October 2013. Liberty to restore on 3 days' notice. Costs reserved.

********** 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: 20 September 2013