Abedini v Commissioner of the Australian Federal Police [2023] VCC 658

(a) "any sale may be made to Mrs Abedini ... either with the consent of the Australian Federal Police or further order of the Court"; and > > (b) "the net proceeds of sale of the Property be paid in the manner set out in the Orders made on 18 February 2020 by the County Court of Victoria in proceedings under the Proceeds of Crime Act 2002 (Cth) number CI‑14‑5621."[357]

3. The FCC proceedings were settled without adjudication on 6 November 2020, on terms set out in a Deed of Settlement dated October 2020.[358] The Deed of Settlement was between the Trustee, Mr Isfhani and Mrs Abedini. As a result of that settlement, Mrs Abedini asserts that she compromised her claim to be the sole owner of the equitable interest in the Turramurra property, accepting instead, the making of a declaration by the Court that she owns a half share of the Turramurra property.
4. As referred to above, it is submitted on behalf of Mrs Abedini that:

(a) by reason of the content of the declaration, she acquired a half share in the Turramurra Property; and > > (b) by reason of allowing the Trustee to "deal" with the Turramurra property, the Commissioner is now estopped from denying the effect of the Deed of Settlement and the FCC orders, which was the result of such "dealing".

5. A summary of the Commissioner's argument in relation to this point is as follows:

(a) to the extent that the Commissioner is said to be estopped from seeking to have the provisions of the Act lawfully applied, no such estoppel against the Act can apply;[359] > > (b) as referred to above, Ms Duran, for the Commissioner, raised concerns that part of the Trustee's FCC application was in contravention of the first Judge O'Neill Order. In response, she was assured by the Trustee's solicitor that "any proposed sale to Mrs Abedini could only be effected by her exclusion application being determined in her favour or with the consent of the Commissioner" and that the FCC would be informed accordingly;[360] > > (c) an amended application reflecting this correspondence was filed; > > (d) despite this, Ms Duran was not notified of the settlement of the FCC proceedings until 12 November 2020;[361] > > (e) the declaration in the Orders of Judge Street does not reflect the agreement that had been reached by the Commissioner and the solicitor for the Trustee, as to the status of any interest which Mrs Abedini might have in the Turramurra property; > > (f) in light of these matters, to suggest that the Commissioner is estopped from opposing Mrs Abedini's applications because of any representation made on his behalf, is untenable. The representation/s which are said to found any estoppel, have not been articulated. There can be no suggestion that the Commissioner has induced any change in Mrs Abedini's position, nor that she has done anything based on such a representation; > > (g) as at 23 March 2021, Mrs Abedini's solicitor did not even know of the existence of the application for exclusion from the restraining order;[362] > > (h) both the Trustee's and Mrs Abedini's legal representatives failed to abide by the arrangement that resulted in the first Judge O'Neill Order. A deliberate course was planned by Mrs Abedini's solicitors to "get rid of the Trustee first and then deal with the AFP separately" and then "somehow, secure the interest of Ms. Abedini";[363] > > (i) effectively the Commissioner is being asked to acquiesce in an attempted undermining of the proper determination of the issues in these proceedings under the Act, and thereby to abandon any opposition to the Terms of Settlement to which he was not a party, by which he is not bound and of which he had no prior notice. This course is simply inappropriate; > > (j) it is difficult to conceive of any basis on which a Court could grant equitable relief as sought by Mrs Abedini, in those circumstances.

6. Having had regard to the facts of the case and the arguments put by each side, I find that the declaration made by Judge Street, did not create a proprietary interest in the Turramurra property in favour of Mrs Abedini.
7. An examination of the relevant documents reveals that the declaration made by Judge Street was identical in terms to the declaration that was sought in the Amended Application and Amended Statement of Claim in the FCC proceedings. In turn, the content of the orders and declaration sought, was based upon the Trustee's assessment of the interests of the parties as set out in the relevant affidavit material filed in these proceedings, under the Act. That fact is evident from the content of part of the recitals in the Deed of Settlement.[364]
8. It is clear from the chronology of events set out above, together with the content of the documents in the FCC proceedings, that the veracity of the matters contained in Mr Abedini's affidavit (to which the Trustee had regard), was assumed by the Trustee for the purposes of commencing the FCC proceedings. There is no evidence before this Court which satisfies me to the requisite standard, that the Trustee "assumed" that Mrs Abedini owned a half share in the Turramurra property, by reason of the fact that she was an unsecured creditor of Mr Abedini's bankrupt estate. As has previously been referred to, the list of creditors set out in relevant correspondence, does not make any reference to Mrs Abedini as a creditor.[365]
9. No substantive adjudication on the issue of whether Mrs Abedini had an interest in the Turramurra property was undertaken by the Federal Circuit Court. Mrs Abedini is taken to have accepted the Trustee's position in full and final resolution of the FCC proceedings. As was open to the parties, for the purposes of resolving the FCC proceedings, she was given an opportunity to purchase the other half share of the Turramurra property on commercial terms, as agreed in the Deed of Settlement. To date, she has not done so. Further, as set out above, in relevant correspondence, the Trustee accepted that any sale of the Turramurra property ordered by the FCC, would be, inter alia, "subject to ... County Court Orders ...".[366]
10. Paragraph 4 of the first Judge O'Neill Order, makes it clear that after payment of amounts owing to creditors, the remainder of any funds realised by the sale of the Turramurra property, were to be held as restrained funds.[367]
11. In the result, I find that the settlement of the FCC proceedings and the assumptions underlying that settlement, cannot bind this Court. By reason of the existence of the restraining order and the application for exclusion from its operation brought by Mrs Abedini, I am required to adjudicate upon whether or not she has a relevant interest in the property and, if so, whether that interest should be excluded from the operation of the restraining order. The assumptions that were made by the Trustee and Mrs Abedini in the FCC proceedings for the purposes of reaching a commercial settlement, have no bearing on my task.
12. I turn now to the argument concerning whether the Commissioner is estopped from denying the effect of the Deed of Settlement and the FCC orders. Leaving aside the question of whether it is possible to set up an estoppel against the operation of the statutory scheme embodied by the Act,[368] for an estoppel to have arisen in this case, the following must be proven by Mrs Abedini:

(a) that she acted in reliance upon an identifiable representation made by the Commissioner; > > (b) that the Commissioner intended that Mrs Abedini act upon the representation made; and > > (c) that Mrs Abedini would suffer detriment if the assumption induced in her by the Commissioner's representation, was now denied.[369]

13. Beyond asserting that by consenting to the first Judge O'Neill Order, the Commissioner allowed the Trustee to "deal" with the Turramurra property, the substance of any alleged representation made by the Commissioner to Mrs Abedini, has not been identified. There is no evidence which would satisfy me that, either by action or inaction, by words or silence, the Commissioner in any way represented to Mrs Abedini that her "dealings" with the Trustee would result in her being released from the obligation of demonstrating to this Court that her interest (if any) in the Turramurra property, ought be excluded from the operation of the Restraining Order.
14. To the contrary, as can be seen from the matters set out above, on multiple occasions in correspondence with the solicitor for the Trustee, the solicitor for the Commissioner asserted that resolution of the bankruptcy proceedings must be subject to the County Court proceedings under the Act. This proposition was accepted by the solicitor for the Trustee, the result of which was the amendment of both the FCC application and the Statement of Claim. The amendments made it clear that it was anticipated that the outcome of the FCC proceedings would remain subject to the requirements of the first Judge O'Neill Order. The amended documents were the framework against which the FCC proceedings were resolved.
15. Even if an estoppel could be set up against the operation of the Act in this proceeding, there is no evidence before me that Mrs Abedini acted to her detriment in settling the bankruptcy proceedings, based upon any identifiable representation made by the Commissioner.
16. In those circumstances, the argument that an estoppel is raised against the Commissioner, has not been made out.

Does Mrs Abedini have an interest in the property as a tenant or by reason of a right to occupy?

1. It was accepted at the outset by the Commissioner, that Mrs Abedini has some "right, power or privilege in connection with the property", because she is an occupant of the Turramurra property.[370] However, the Commissioner contended that Mrs Abedini's interest in the Turramurra property goes no further than that. Specifically, the Commissioner submitted that any such interest as Mrs Abedini has in the Turramurra property is derived from Mr Abedini, who is the sole beneficial owner of that property.
2. During the hearing, Mrs Abedini submitted that she is the beneficial owner of at least a half of the Turramurra property, by reason of her direct monetary contributions to its purchase and/or the divorce proceedings and/or the agreement reached with the Trustee in bankruptcy. I have set out above my analysis of Mrs Abedini's submissions in this regard and my conclusions in relation to those matters.
3. The submissions made on behalf of Mrs Abedini in relation to this point, were as follows:

(a) by reason of the terms of s338 of the Act, it is clear that the concept of an "interest" in a specified property, is very broad. There is no basis for suggesting that a right, power or privilege in respect of the Turramurra property, should be restricted to proprietary rights; > > (b) Mrs Abedini and her children presently reside in the Turramurra property ("the right to occupy"). They have done so since its acquisition. It is their family home;[371] > > (c) the right to occupy is lawful. There is no suggestion to the contrary; > > (d) the right to occupy continued after the divorce in January 2014; > > (e) the right to occupy continued after the making of the restraining order on 17 November 2014; > > (f) the right to occupy continued after the Trustee in bankruptcy for Mr Abedini "dealt" with the property in November 2020; > > (g) since 2011, Mrs Abedini and her children have paid all relevant outgoings; and > > (h) consequently, the right to occupy (or a tenancy in favour of Mrs Abedini and her two children) should be excluded from restraint as being lawfully acquired.

4. I accept the submission made by Mrs Abedini about the breadth of the definition of the term "interest" as set out in the Act. I also note the concession made by the Commissioner that Mrs Abedini undoubtedly has a relevant interest under the Act, in the form of a right to occupy the Turramurra property.
5. No evidence of any "tenancy" as that term would usually be understood, was put before the Court, by either party.
6. In circumstances where the continuing right to occupy arises by virtue of Mr Abedini's purchase of the Turramurra property as a matrimonial home, I find that Mrs Abedini does have an interest in the Turramurra property under the Act, namely a right to occupy that property. However, I find that such interest as Mrs Abedini has in the property, is derived directly or indirectly from Mr Abedini's purchase of the Turramurra property.

Are the assumptions made by Mr Hicks in his expert report, evidence of a proprietary interest in the property?

1. In the written submissions filed at the conclusion of the case and again during closing submissions, Counsel for Mrs Abedini relied upon a statement made by Mr Hicks in the Hicks Report, where he stated "Homayun and Farina Abedini paid a total of $124,530.55 directly towards the acquisition of property located at 6A Miowera Rd, Turramurra North, New South Wales, 2074".[372]
2. Counsel for Mrs Abedini argued that this constituted evidence upon which the Court could find a direct contribution by Mrs Abedini to a portion of the purchase price of the Turramurra property.
3. Counsel for the Commissioner rejected this argument, saying:

"... if one looks at the letter of instruction to Mr Hicks, he was asked to consider the position of the applicants and that was the terminology. ...

At the time, the applicants were joint applicants under a joint application ... The annexure to Mr Hicks' report sets out what he was asked to do and no distinction was made between the two ... That makes sense at the time because as at 2017 there was no question ...of Mrs Abedini claiming her own individual interest as opposed to that of her husband.

So when the analysis was done, I think it was assumed by those asking Mr Hicks to prepare the report, and Mr Hicks himself that this would be an en globo position. So he's not made any distinction, other than writing out whose account is held in whose name. He's just treated it all as being theirs and he's used Mr and Mrs throughout."[373]

1. Mr Hicks' letter of instruction forms part of Annexure 1 to the Hicks Report.[374] In that letter, Mr Hicks was instructed:

"Mr Homayun Abedini and his wife, Farina Abedini, have applied for an exclusion order in respect of the Property.

... You are instructed to provide a report to assist the Commissioner in the application for forfeiture and in defence of the application for an exclusion order. The report should address the following aspects of Mr and Mrs Abedini's financial affairs for the period from 1 July 2009 to 17 November 2014:

1. Their income and expenditure;
2. Transactions recorded in bank accounts held by them which are unexplained;

1. International fund transfers to and from Australia;
2. Any discrepancies between the total of deposits into bank accounts operated by them and income disclosed in taxation returns filed with the Australian Taxation office; and
3. Application of funds towards the acquisition of real property ... ."[375]
4. Having regard to the content of the letter of instruction, it is clear that the explanation proffered to the Court by Counsel for the Commissioner, is correct.
5. At the time that the Hicks Report was compiled, there was no suggestion of anything other than a joint application for exclusion. Any individual contribution by Mrs Abedini to the acquisition of the Turramurra property was neither requested from nor considered by Mr Hicks. A closer analysis of the Hicks Report sheds further light on Mr Hicks' precise conclusions as to the source of the sum of $124,530.55, which he stated was a direct contribution of funds to the property.
6. The matter is dealt with firstly at paragraph 11.14 of the Hicks Report.[376] Specifically, in paragraph 11.14.2, Mr Hicks includes a table which breaks down the sum of $124,530.55, into two payments. The first payment was in the sum of $121,820.42 and was made on 23 May 2011, for the purpose of providing various settlement funds. The second payment was in the sum of $2,690.13 and was made on 15 June 2011, for the purpose of paying legal fees associated with the purchase of the Turramurra property. The sum of these two transactions totals $124,530.55. In paragraph 11.14.6, Mr Hicks refers the reader to Annexure 19 to the report, which is a diagram which summarises the funds utilised to purchase the Turramurra property.[377] In that diagram, it is clear that the first payment in the sum of $121,820.42, was withdrawn from Mr Abedini's CBA account -2623 in the name of Mr Homayun Abedini, t/as "Green Back International". The Hicks Report sets out the fact that the conveyancing fees in the sum of $2,690.13, came out of the same CBA account -2623, titled "Green Back International". This fact is confirmed by looking at the record of the transaction which is included in the Court Book.[378]
7. In light of the above analysis, the suggestion made on behalf of the applicant that the Court is bound by that the words used by Mr Hicks in the Hicks Report, that there was a "direct contribution to the acquisition of the property by Mr and Mrs Abedini" in the sum of $124,530.55, must fall away.
8. I reject the submission and confirm my conclusion set out above, that Mr Abedini contributed all of the monies for the purchase of the Turramurra property, with the exception of those that were provided by way of a mortgage to ING. I repeat my conclusion that there is nothing in the evidence which satisfies me that Mrs Abedini made any direct financial contribution to the purchase of the Turramurra property.

Should Mrs Abedini's interest in the Turramurra property be excluded from the operation of the Restraining Order?

1. In order for Mrs Abedini's interest in the Turramurra property to be excluded from the operation of the Restraining Order made by Judge Cohen on 17 November 2014, the burden rests on her to demonstrate that her interest:

(a) in the case of a restraining order under s18 of the Act:

(i) is not the proceeds of unlawful activity; and/or

(ii) is not an instrument of any serious offence; or

(b) in the case of a restraining order under s19 of the Act:

(i) is not the proceeds of an indictable offence or an indictable offence of Commonwealth concern; and/or

1. Mr Hicks provided a summary of his expert opinion as to Mr and Mrs Abedini's financial affairs at paragraph 1.1 of the Hicks Report.[379] That summary is as follows:

(a) based upon his review and analysis of the information provided, Homayun and Farina Abedini had a total source of funds and application of funds during the period from 1 July 2009 to 17 November 2014, of approximately AUD 17,396,199.69, plus USD 16,008,609.18 and EUR 5,246,474.56. Tables demonstrating the analysis conducted by Mr Hicks in relation to each of these currencies, is attached to this judgment as Annexure "A";[380] > > (b) Homayun and Farina Abedini transferred $257,645.56 to Farhad Nasre Isfhani during the period from 1 July 2009 to 17 November 2014;[381] > > (c) the total incoming International Funds Transfer Instructions ("IFTI") received in Australia by Homayun and Farina Abedini were AUD 866,596.50, USD 15,997,460.18 and EUR 5,245,727.85, during the period from 1 July 2009 to 17 November 2014. The total IFTI going out of Australia were AUD 350,229.17, USD 15,908,609.18 and EURO 5,241,275.50 during the period from 1 July 2009 to 17 November 2014;[382] > > (d) the total sales declared to the Australian Taxation Office ("ATO") by Homayun Abedini (on Business Activity Statements) during the period from 1 July 2009 to 31 December 2014 were $2,593,567.00. The total net salary and wage income declared to the ATO as being received by Farina Abedini during the period from 1 July 2009 to 17 November 2014 was $24,074.00; > > (e) significant discrepancies exist between the information disclosed to the ATO and the total deposits to the bank accounts of Homayun and Farina Abedini, during the period from 1 July 2009 to 17 November 2014.[383]

2. The following table summarises the information contained at sub-paragraphs (d) and (e) above:

1. Mr Hicks also highlighted the following matters:

(a) the source documentation provided to Mr Hicks indicated that Mr Abedini operated a money remittance business during the reporting period;[384] > > (b) Mr Abedini was authorised to conduct a money remittance business by the Australian Transaction Reports and Analysis Centre ("AUSTRAC") between 11 October 2007 and 24 May 2012;[385] > > (c) Mr Abedini has not complied with his AUSTRAC reporting obligations as a money remitter. A money remitter must lodge a report with AUSTRAC recording all the required details when they receive or send an IFTI to or from a customer. AUSTRAC has no IFTIs with Mr Abedini recorded as the money remitter;[386] > > (d) ATO records indicate that Mr Abedini's main business is described as operating a single café or restaurant by the name of "Orkideh Persian Restaurant" for the financial years ended 2007 and 2014;[387] > > (e) Mr Abedini has not declared any other business, or business taxable income to the ATO (that is, a money remittance business). Generally, a money remittance business charges the customers a commission or fee for the remittance service and this amount is taxable income. Alternatively, a profit can be derived from the difference between the selling exchange rate and the buying exchange rate provided to customers by the money remitter. Mr Abedini has not included any taxable income from his money remittance activity in any of his lodged taxation returns;[388] > > (f) Mrs Abedini lodged an income tax return for the year ended 2014 with the ATO. ATO records indicate that Mrs Abedini was not required to file an income tax return for the financial years ended 2007 to 2013. ATO records also indicate that Mrs Abedini received Commonwealth Government benefits from Centrelink during the financial years ended 2007 to 2010;[389] > > (g) the total opening value of all known savings accounts of Mr and Mrs Abedini at the beginning of the analysis period, was AUD 69,085.57;[390] > > (h) it was assumed that deposits to three particular bank accounts were monies received from clients to be remitted, unless they could be more accurately classified. Those accounts were CBA account -2623 (also known as the "Green Back International" account), NAB account -2324 and NAB account -3373;[391] > > (i) the total of the deposits "not otherwise classified" to the above three accounts during the analysis period, was the sum of AUD 1,436,119.26;[392] > > (j) the total of money remittance sums received as cash during the analysis period, was AUD 87,755. These deposits were identified as cash deposits from AUSTRAC records.[393]

Analysis of the financial position of Mr and Mrs Abedini

1. The Abedinis' declared taxable income between the financial years 2007 and 2014 is summarised in the Hicks Report.[394] The highest income declared by Mr Abedini was $22,509 in the 2011 financial year and $43,289 in the 2014 financial year. Taking into account various losses declared during that period, Mr Abedini's total taxable income over those seven years, was declared to be $57,350.
2. ATO records indicate that it was not necessary for Mrs Abedini to file income tax returns for the years 2007-2013. ATO records also indicate that she received Commonwealth Government benefits during the financial years ending 2007 to 2010. Mrs Abedini's total taxable income declared in financial year 2014 was $30,597.
3. The Commissioner submitted, and I accept, that this amounts to an average joint yearly business income for Mr and Mrs Abedini of $12,670 over those seven years.
4. Mrs Abedini received Commonwealth government benefits from Centrelink during the financial years ending 2007 to 2010.[395]
5. Mrs Abedini's evidence was that she was not working in 2011 when the Turramurra property was to be financed.[396] Mr Abedini was operating the Persian restaurant business and was registered as a money remitter. He could not obtain a loan.
6. The Abedinis' tax summary and Centrelink benefits for the financial years ending 2018 to 2021 appear at CB 826 to 827.[397] No foreign income has been declared at any time. The Commissioner submitted that s6.5 of the Income Tax Assessment Act 1997 ("the Tax Act"), provides that individuals who are Australian residents for taxation purposes are taxed on income they earn anywhere in the world. By reason of this, all foreign income must be declared.
7. The total flow of funds out of the relevant accounts operated by Mr and Mrs Abedini (as identified by Mr Hicks) in the period between 1 July 2009 to 14 November 2014, was AUD 17.396 million. This sum is disproportionately higher than their declared income to the ATO in the same period.[398]
8. The total inflow to the accounts (other than amounts which were allowed as income from the restaurant or money remittance amounts), totalled over AUD 2.36 million in the financial year 2010/2011 alone[399] and over AUD $6.6 million for the total analysis period.
9. Mr Hicks' analysis identified that total withdrawals, cash withdrawals and ATM withdrawals made by Mr and Mrs Abedini from their relevant savings accounts[400] were $1,840,560.99, $292,945.90 and $93,924, respectively.[401] A further $301,851.61 in cheque withdrawals were made. It was submitted by the Commissioner, and I accept, that in light of the known sources of income as analysed, the scale of this cash expenditure is unexplained by the evidence.
10. It was suggested by Mrs Abedini during her evidence, that the source of some of those funds may be income from money remittance activities. However, I note that Mr Hicks made an allowance for that, assuming that the funds paid into identified money-remittance accounts belonging to Mr Abedini or his associated companies, ought be described as money remittance funds, rather than being assessed as "unexplained". Thus, the figures set out above take into account the possibility that certain of the funds analysed, include money remittance funds. I also note that Mr Abedini has never declared income from any money remittance business to the ATO.
11. Mr Abedini was not called to provide any evidence as to the legitimacy of his financial activities. As a result, I am entitled to infer that his evidence would not have assisted Mrs Abedini's case on this point, and I do so.
12. As set out above, during her evidence, Mrs Abedini refused to accept the accuracy of the analysis set out in the Hicks Report, giving evidence such as the following:

"You are not fair at all, ... First of all, that millions definitely is not correct ... Mr Hicks. That report, I don't believe it ... and then the money that we brought, ... sometimes we became our own customer. ... that's how we brought the money and how we survived in Australia. ...";[402]

"I don't know this gentleman but I am sure that number definitely is not right. ... (referring to Mr Hicks' analysis)";[403]

"I believe your forensic accountant's made a mistake. ... there is no way, if somebody has that much money [they] live like us. ... ."[404]

1. Despite this, Mr Hicks was not required to attend for cross-examination.
2. Mrs Abedini was unable to provide any cogent explanation for the disproportionately large amounts flowing through the relevant accounts during the analysis period. As set out above in the summary of her evidence given during cross-examination, on numerous occasions, she said that she had no knowledge of any of Mr Abedini's bank accounts.
3. No serious attempt was made by Mrs Abedini or her legal representatives, to argue that Mr Hicks' analysis of the financial position of Mr and Mrs Abedini in the period 1 July 2009 to 14 November 2014, was incorrect, or that the methodology or calculations used were flawed. No issue was taken with the analysis of the taxation returns lodged by Mr and Mrs Abedini during the relevant period.
4. In those circumstances, I accept without hesitation, the accuracy of the analysis made by Mr Hicks, as to the financial position of Mr and Mrs Abedini in the period 1 July 2009 to 14 November 2014, including his conclusion as to the extent of unexplained funds which passed through the relevant accounts and the analysis made of the taxation returns lodged by each of them, during the relevant period.

An overview of the evidence in relation to Mr Isfhani's dealings with ING Direct in order to obtain a mortgage over the Turramurra property

1. It was submitted by the Commissioner that AFP investigations indicated discrepancies between the figures which Mr Isfhani supplied to ING Direct to procure the loan monies for the purchase of the Turramurra property and his declared income to the ATO, in both his individual and company taxation returns for the entity Discounted Rugs Pty Ltd. A summary of the differences in the figures supplied to ING Direct, compared with what Mr Isfhani declared to the ATO, is set out in the following table:

1. The figures in the table above, are derived from the documents set out at Annexure "PRF-1" to the affidavit of Peter Raymond French,[405] and Schedule "A" to the Statement of David Furmark.[406] The Commissioner also relied upon the loan documentation relating to the purchase of the Turramurra property, which was set as Annexure "A" to the affidavit of Zoran Karanfilovski, sworn 19 May 2017.[407]
2. The Commissioner points to various pieces of information supplied to ING Direct, upon which the loan approval was based, including:

(a) a false declaration as to Mr Isfhani's taxable income;[408] > > (b) a false description of the loan, being for the purchase of an investment property, rather than being owner/occupied by Mr Abedini;[409] > > (c) a false declaration that funds to complete the sale were coming from proceeds of the sale of a commercial property, with no mention that Mr Abedini (who admittedly had a poor credit history) was providing the settlement or any purchase funds;[410] and > > (d) the self-employed financial calculations, which included the false information as to both Mr Isfhani's personal and business income.[411]

3. The Commissioner submitted that such discrepancies indicate that Mr Isfhani obtained a financial advantage, as defined in s192D of the Crimes Act 1900 (NSW), by virtue of the misrepresentations made by, or on behalf of Mr Isfhani, to ING Direct for Mr Abedini's benefit, in contravention of Part IVAA of the Crimes Act 1900 (NSW). The Commissioner submits that it is clear that ING Direct relied upon the false information provided by Mr Isfhani in his application for the $856,000 loan for the Turramurra property.
4. The Commissioner also contends, that in providing the Turramurra property as security for the repayment of the loan obtained by ING Direct, the Turramurra property also became an instrument of obtaining financial advantage by deception and dealing with the proceeds of crime.
5. The term "instrument" is defined in s329(2) of the Act as including "property used in, or in connection with the commission of an offence". It was submitted that without the provision of the Turramurra property as security, it is doubtful that ING Direct would have granted the loan, the Turramurra property thereby became instrumental in the acquisition of the loan funds.[412]
6. In closing addresses, it was submitted on behalf of Mrs Abedini, that there is nothing in the evidence which would satisfy the Court about two essential elements necessary to conclude that a crime has been committed in the manner alleged by the Commissioner, namely, there is no evidence that ING Direct was "deceived" by the information provided to it by Mr Isfhani, nor that any of the information provided by Mr Isfhani was misleading in a "material particular".
7. It was further submitted that in order to accept the submission made by the Commissioner, the Court would have needed evidence from ING Direct as to these matters and none was forthcoming.[413]

1. The Commissioner alleges that Mrs Abedini is unable to satisfy the Court to the requisite standard, that the Turramurra property is neither the proceeds of, nor an instrument of, the following relevant offences, viz:

(a) Money laundering offences, namely, dealing with property worth $100,000 or more that is reasonably suspected of being proceeds of crime, contrary to s400.9(1) of the Criminal Code Act 1995 (Cth) ("the Criminal Code");[414] > > (b) Taxation offences, namely, dishonestly causing a loss to the Commonwealth contrary to s135.1(3) and obtaining a financial advantage by deception contrary to s134.2 of the Criminal Code by reason of failing to make full and proper declarations of income as required by the relevant tax legislation, including in relation to income derived from overseas;[415] > > (c) Financial advantage by misrepresentation/fraud contrary to s192E or s192G of the Crimes Act 1900 (NSW), by virtue of false representations made to the registered mortgagee by Mr Isfhani in the process of procuring the loan funds used to complete the purchase of the restrained property;[416] > > (d) Structuring offences, namely, conducting transactions so as to avoid reporting requirements relating to threshold transactions, in contravention of s142 or s143 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) ("the AML/CTF Act");[417] > > (e) Provision of money remittance services without registration, contrary to s74 and s75B of the AML/CTF Act.[418]

Money Laundering - dealing with money suspected to be proceeds of crime

1. The relevant provisions of s400.9 of the Criminal Code are as follows:

"400.9 Dealing with property reasonably suspected of being proceeds of crime etc.

(a) the person deals with money or other property; and

(b) it is reasonable to suspect that the money or property is proceeds of indictable crime; and

(c) at the time of the dealing, the value of the money and other property is $100,000 or more.

Penalty: Imprisonment for 3 years, or 180 penalty units, or both.

(2) For the purposes of this section, it is taken to be reasonable to suspect that money or other property is proceeds of indictable crime if:

(c) the value of the money and property involved in the conduct is, in the opinion of the trier of fact, grossly out of proportion to the defendant's income and expenditure over a reasonable period within which the conduct occurs; or

(4) Absolute liability applies to paragraphs ... (1)(b) and (c) ...

(5) This section does not apply if the defendant proves that he or she had no reasonable grounds for suspecting that the money or property was derived or realised, directly or indirectly, from some form of unlawful activity."

1. The term "proceeds of indictable crime" is defined in s400.1 of the Criminal Code as follows:

"(a) any money or other property that is wholly or partly derived or realised, directly or indirectly, by any person from the commission of a particular offence against a law of the Commonwealth, a State, a Territory or a foreign country that may be dealt with as an indictable offence (even if it may, in some circumstances, be dealt with as a summary offence); or

(b) any money or other property that is wholly or partly derived or realised, directly or indirectly, by any person from the commission of an offence of a particular kind against a law of the Commonwealth, a State, a Territory or a foreign country that may be dealt with as an indictable offence (even if an offence of that kind may, in some circumstances, be dealt with as a summary offence)."

1. Pursuant to s400.2 of the Criminal Code, a person "deals with money or other property" if the person:

"(a) receives, possesses, conceals or disposes of money or other property;

(b) imports money or other property into Australia;

(c) exports money or other property from Australia; [or]

(d) engages in a banking transaction relating to money or other property."

1. Pursuant to s400.9(5), s400.9 of the Criminal Code does not apply:

"...if the defendant proves that he or she had no reasonable grounds for suspecting that the money or property was derived or realised, directly or indirectly, from some form of unlawful activity.

Note: A defendant bears a legal burden in relation to the matter in subsection (5) (see section 13.4)."

1. Section 13.4 of the Criminal Code provides that:

"A burden of proof that a law imposes on the defendant is a legal burden if and only if the law expressly:

(a) specifies that the burden of proof in relation to the matter in question is a legal burden; or

(b) requires the defendant to prove the matter; or

(c) creates a presumption that the matter exists unless the contrary is proved."

1. Finally, s13.5 of the Criminal Code provides that the legal burden of proof referred to in s400.9 (by reference to s13.4), must be discharged on the balance of probabilities.
2. The Commissioner submitted that the offence, as it applies in the present case, focuses upon the gross disproportion between the value of the income received by Mr and Mrs Abedini and the amounts expended by them over the analysis period, which includes the time at which the Turramurra property was acquired.
3. The offence contemplated by the provisions of s400.9 of the Criminal Code is simply "dealing" with money or other property that is suspected to be the proceeds of crime and that is over $100,000 in value. The Commissioner emphasised that in order to establish an offence under this section, it is not necessary to prove any predicate "crime link" with the suspected "proceeds".
4. The Commissioner submitted that in order to satisfy the term "dealing", it is not necessary for Mrs Abedini personally to have made the transactions in the impugned accounts.
5. As can be seen from s400.9(2), if the trier of fact is of the opinion that the "value of the money and property involved in the conduct is ... grossly out of proportion to the defendant's income and expenditure over a reasonable period", then the requirement to find that it is "reasonable to suspect that the money or property is proceeds of indictable crime", is taken to be satisfied.
6. The only exception to this, found in s400.9(5), is if the relevant person proves "that he or she had no reasonable grounds for suspecting that the money or property was derived or realised, directly or indirectly, from some form of unlawful activity".
7. As to this, the Commissioner submitted that in her evidence to the Court, Mrs Abedini refused to engage with the Hicks Report, beyond saying repeatedly that she did not believe that it was correct. It was noted that Mr Abedini was not called and did not otherwise provide any response that would have assisted Mrs Abedini.
8. It was further submitted that while Mrs Abedini denied having a concern that Mr Abedini might be acting unlawfully,[419] her evidence as to what she did or did not know about Mr Abedini's money remitting activities and use of his accounts generally (including transactions which were possibly money remittance transactions into her own personal accounts from time to time),[420] was so inconsistent, that the Court could not be satisfied as to her true state of knowledge. On most occasions, all Mrs Abedini was prepared to say was that she had no knowledge of Mr Abedini's business activities.[421] She disagreed that this meant that she was in no position to deny any link from the transactions in those accounts, to the Turramurra property.[422]
9. In circumstances where Mr and Mrs Abedini shared (and continue to share) the Turramurra property (if not all of the presumed proceeds of crime that constitute the unexplained funds in the Hicks Report), in the absence of cogent evidence corroborating her account, the Commissioner submitted that it ought not be concluded that Mrs Abedini had no reasonable grounds for suspecting that the money or property was derived or realised, directly or indirectly, from some form of unlawful activity. No such cogent evidence was forthcoming.
10. The Commissioner submitted that to the extent that dealing with monies in contravention of s400.9 are money laundering offences, then dealing with those monies by, for example making mortgage payments on the Turramurra Property, can be a form of using proceeds of crimes to "launder" them. The purchase of the Turramurra property in that sense, would constitute use of that property as an instrument, as well as being derived from, and therefore proceeds of, the s400.9 offence.[423]
11. In his closing address, Counsel for Mrs Abedini accepted in full, the accuracy of the Hicks Report.[424]
12. In response to the arguments made by the Commissioner, it was submitted by Counsel on behalf of Mrs Abedini, that there is no evidence that she committed any crime or otherwise engaged in unlawful activity. It was submitted that the Court ought find that it is unable to be satisfied that Mrs Abedini did "deal" in funds as is required by s400.9. It was submitted that it was open to the Commissioner to put into evidence the bank vouchers evidencing each transaction, which in turn would have provided evidence of the person who dealt with the property. This was not done. It was submitted that there is no evidence that the funds received by Mr Abedini between 2008 and 2011, or at any other time, were from an identifiable or particularised crime.
13. Lastly, the Court was reminded by Counsel for Mrs Abedini that it "must remain conscious of salient principles as to allegations of crime, even to a civil standard". It was submitted, and I accept, that the principles set out in Briginshaw v Briginshaw[425] must be applied to my consideration of this matter. The relevant passage from this judgment is as follows:

"... But reasonable satisfaction is not a state of mind that is attained or established independently of the nature of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters, "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony or indirect inferences. ... ."[426]

1. Leaving aside the submissions made in relation to the principles in Briginshaw, which I accept are apposite, having considered each of the submissions, together with the relevant evidence in relation to this point, I prefer the Commissioner's submissions as set out above. My consideration of this point concerns, first, whether the evidence satisfies me to the requisite standard (which I accept for these purposes, is the Briginshaw standard) that an offence against s400.9 has been committed. In order to decide that, I must reach a state of reasonable satisfaction about whether the elements of that offence have been satisfied.
2. A reading of s400.2 of the Criminal Code demonstrates that "dealing" with the proceeds of crime, includes not only receiving, possessing, concealing, importing into Australia, exporting from Australia or disposing of money or other property, but also engaging in a banking transaction relating to money or other property.
3. The evidence in this case provides me with reasonable satisfaction that both Mr and Mrs Abedini "dealt" with property, as that term is relevantly defined, namely by doing one or more of the following things:

(a) receiving, possessing and disposing of the funds which passed through the various bank accounts under their control during the analysis period covered by the Hicks Report; > > (b) importing money into and exporting money from Australia during the analysis period covered by the Hicks Report; > > (c) engaging in banking transactions including for the purposes of purchasing the Turramurra property, maintaining that property and/or paying the mortgage on it, with those funds.

4. At the time of each instance of "dealing" during the analysis period, the value of the Turramurra property was well in excess of $100,000. On at least one occasion, "dealing" in the form of a banking transaction (namely the payment by Mr Abedini of a portion of the settlement sum[427]), also exceeded $100,000. On Mr Hicks' analysis, the total value of the "dealing" in the form of receiving, possessing and/or disposing of money or other property during the analysis period, was in excess of AUD 17.3 million, Euro 5.2 million and USD 16 million.
5. I have already accepted the veracity of the evidence contained within the Hicks Report. On that basis, and in addition to the matters set out above, I am satisfied to the Briginshaw standard that the value of the money constituting unexplained funds passing through Mr and Mrs Abedini's accounts in the relevant period, is grossly out of proportion to the income and expenses of Mr and Mrs Abedini during the relevant period. In those circumstances, by operation of the legislation, the requirement to find that it is "reasonable to suspect that the money or property is proceeds of crime", is taken to be satisfied.
6. There is no evidence before the Court which proves to the requisite standard, that Mr Abedini had no reasonable grounds for suspecting that the relevant money or property, including those funds used to purchase and maintain the Turramurra property, was derived or realised, directly or indirectly, from some form of unlawful activity.
7. Having regard to the findings I have already made about Mrs Abedini's unreliability as a witness, including particularly:

(a) her willingness to mislead the Court in relation to material matters; > > (b) her unwillingness to concede particular matters until confronted by documentary evidence in relation to them; > > (c) her inability to provide any satisfactory explanation for the highly unusual bank transactions involving the moving of money between her bank account and one or more of her children's accounts; and > > (d) her inability to explain certain deposits of cash into her bank account

I do not accept Mrs Abedini's assertion that she had no reasonable grounds for suspecting that the relevant money or property was derived or realised, directly or indirectly, from some form of unlawful activity. In those circumstance, Mrs Abedini has failed to prove to the requisite standard, the matters set out in s400.9(5) of the Criminal Code.

1. I have already found that such interest as Mrs Abedini has in the Turramurra property, is derived directly or indirectly from Mr Abedini. I have also found that there is no evidence before the Court which proves to the requisite standard that Mr Abedini had no reasonable grounds for suspecting that the relevant money or property, including those funds used to purchase and maintain the Turramurra property, was derived or realised, directly or indirectly, from some form of unlawful activity
2. Taking the evidence as a whole, I am unable to be satisfied to the requisite standard that any interest Mrs Abedini has in the Turramurra property is neither the proceeds of, nor an instrument of an offence against s400.9 of the Criminal Code - an offence which not only constitutes unlawful activity for the purposes of the Act, but also satisfies the definition of an indicatable offence and a serious offence.
3. In those circumstances, I am not required to decide whether or not the Turramurra property is either the proceeds or an instrument of any other of the possible offences which have been proffered by the Commissioner.
4. The result of this analysis is that Mrs Abedini's application for exclusion from the restraining orders made under s18 and s19 of the Act, must be dismissed.

Mrs Abedini's application under section 39 of the Act for ancillary orders to vary the Restraining Order

1. On 15 April 2021, Mrs Abedini made an application pursuant to s39 of the Act, for the following orders and declarations:

"1. A declaration that Farhad Nasre Isfahani (sic) holds the restrained property identified as 6A Miowera Road Turramurra, NSW 2074, Folio Identifier 1/DP660561 (the Turramurra property) on trust in favour of Farina Abedini and Max Donnelly in his capacity as Trustee of the Bankrupt Estate of Homayun Abedini, as tenants in common.

1. 2. The Court notes that the interest of Max Donnelly in the Turramurra property, in his capacity as Trustee of the Bankrupt Estate of Homayun Abedini, is agreed at $405,000.
2. 3. That pursuant to s39 Proceeds of Crime Act 2002 Farina Abedini be permitted to refinance the Turramurra property, for the purpose of:

(a) replacing the existing mortgagee, and > > (b) paying Max Donnelly in his capacity as Trustee of the Bankrupt of Homayun Abedini, the sum of $405,000.

3. 4. An order that upon payment of the sum of $405,000 to Max Donnelly in his capacity as Trustee of the Bankrupt Estate of Homayun Abedini, the Turramurra property be transferred to Farina Abedini.
4. 5. The Court notes that the Turramurra property remains under restraint pending further orders.
5. 6. Such other orders as the Court see fit."[428]
6. In support of her application, Mrs Abedini relied upon matters contained within her affidavit affirmed on 25 July 2021. Those of which are relevant to this application are set out below:

"49. On or about 18 February 2020, orders [were] made by His Honour Judge O'Neill to stay my Exclusion Application pending resolution of the bankrupt estate of Mr Abedini ('the Trustee')...

1. 50. ...
2. 51. About mid-2020, the Trustee of the bankrupt estate of Homayun Abedini applied to the Federal Circuit Court for relief as against Farhad Isfahani (sic) in respect to Homayun Abedini's interest in 6A Miowera Road, Turramurra, NSW. I had to join the proceedings to protect my interest in the property at 6A Miowera Road, Turramurra.
3. 52. About 12 November 2020, I compromised my position in substance and consent orders were reached with the Trustee....
4. 53. The Commissioner of the AFP was not a party to these orders.
5. 54. My understanding of the Federal Circuit Court orders is that if I pay the Trustee the sum of $405,000 then I will have the property transferred to myself.
6. 55. I was mistakenly advised by my previous solicitor, and verily believed, that when the Federal Circuit Court orders were made, the matter in the County Court was resolved and will be finalized if I pay the Trustee.
7. 56. I could not obtain finance to pay the Trustee the settlement sum of $405,000.
8. 57. I attempted to get refinance with all banks but all my applications were rejected due to the fact that the property is in a third party's name (Mr lsfhani) and that there is a court order still remain (sic) on the property title...
9. 58. About February 2021, I attended to Stamford Law to assist me with the refinance process.
10. 59. ...
11. 60. About February 2021, I sourced loan from private lender, and I was successful to obtain approval for loan to satisfy the outstanding mortgage and pay for the Trustee's settlement sum.
12. 61. My solicitor after discussing the matter with the trustee's solicitor become aware that the matter in Victoria was not finalized and is not resolved yet.
13. 62. On 12 March 2021, my solicitor made· contact the Australian Federal Police ('AFP') seeking their consent to refinance the property and have it transferred to my name pending final orders from County Court in Victoria, the request was declined by the AFP. ... ."[429]
14. As set out above, in an affidavit affirmed on 8 April 2022, Mrs Abedini deposed to the fact that she was no longer employed by MSN Projects, as their contract with the government had come to an end.
15. There is no evidence before me which provides any evidence that Mrs Abedini is presently working.
16. The relevant provisions of s39 of the Act have been set out above.
17. It is not in dispute that the provisions of s39(3) and (4)(b) have been satisfied in this case.
18. However, having regard to the findings as to Mrs Abedini's interest in the Turramurra property set out above, namely that such interest is limited to a right to occupy the property, I find that Mrs Abedini is not one of the persons who may, without the leave of the Court, bring an application under s39 of the Act.
19. Mrs Abedini has not applied for the leave of the Court to bring this application. However, given the circumstances in which the need to seek leave has arisen - namely my finding that Mrs Abedini does not have a proprietary interest in any part of the property - for the purposes of bringing finality to this matter, I am prepared to consider the application as if leave had been granted to Mrs Abedini to bring it.
20. Having regard to the submissions made and the relevant evidence before me, I do not consider it appropriate to grant the orders sought by Mrs Abedini, for the following reasons:

(a) first, I have made findings set out above, as to the manner in which the FCC proceedings ought be viewed and the effect of the declaration made by Judge Street in those proceedings. In particular, I have found that no proprietary interest in Mrs Abedini's favour was created by virtue of the orders made in those proceedings; > > (b) second, while I have found that Mrs Abedini has an "interest" in the Turramurra property, as that term is defined in the Act, the provisions of s39 contemplate that an application for ancillary orders will be made either by the responsible authority, or another person or entity who is an owner of the property, which is the subject of the restraining order. A right to occupy does not constitute ownership of the property. In those circumstances, it would not be appropriate to make an order allowing Mrs Abedini to "deal" with a property of which she has no ownership; > > (c) third, the evidence before me indicates that the time within which the contemplated payment to the Trustee was to be made, was originally 28 February 2021 and was subsequently extended to 9 April 2021. There is no evidence before me that the Trustee would presently accept the payment referred to, in exchange for his share in the Turramurra property. Similarly, there is no evidence before me that the amount agreed by the Trustee in February 2021, remains an amount which fairly reflects the value of a half share of the Turramurra property; > > (d) fourth, while the evidence as filed asserted the fact that in July 2021, finance had been arranged and would be forthcoming if the s39 application was granted, there is no evidence that at present, a similar prospect exists. Significantly, at the time of affirming her affidavit on 25 July 2021, Mrs Abedini was employed by MSN Projects. In her affidavit affirmed on 8 April 2022, Mrs Abedini deposed to the fact that this employment had ended. There is no evidence before me to suggest that Mrs Abedini has obtained alternative employment or would otherwise be in a position to service a mortgage of the amount proposed; > > (e) lastly, and most significantly, in considering this matter, I must have regard to the objects of the Act, which I have referred to above. In this regard, I accept the submission made by the Commissioner that to grant the orders sought by Mrs Abedini, would be to undermine the effect of the restraining order, by diluting the value of the Turramurra property. I also accept that such an order would apportion, without true basis and contrary to the findings I have made above, the value of the asserted interests in the property.

21. In those circumstances, Mrs Abedini's application for declarations and orders under s39 of the Act, is refused.

1. The Commissioner's application for forfeiture is made pursuant to both s47 and s49 of the Act.
2. As set out above, to make an order that certain property be forfeited under s47 of the Act, I must be satisfied to the Briginshaw standard, inter alia, that a person whose conduct or suspected conduct formed the basis of the restraining order, engaged in conduct constituting one or more serious offences.
3. It was submitted by the Commissioner and accepted by Counsel for the applicant, that the relevant persons whose conduct formed the basis of the restraining order, includes Mr Abedini.[430]
4. In support of its applications for forfeiture, the Commissioner relied, inter alia, upon the alleged contravention of s400.9 of the Criminal Code.
5. To make an order that certain property be forfeited under s49 of the Act, I must be satisfied of certain things, including either that "the property is proceeds of one or more indictable offences"[431] or that "the property is an instrument of one or more serious offences".[432]
6. In relation to the Commissioner's applications for orders for forfeiture, the Commissioner bears the onus of satisfying the Court to the relevant standard, that the applicable test for forfeiture is satisfied. The Commissioner is not required to prove the commission of any particular offence by any particular person at a particular time or place.
7. It is not in dispute that the pre-conditions in each of s47(1)(a) and (b) and s49(1)(a), (b) and (e) are met in this case.
8. I have made findings above which mean that I am satisfied to the Briginshaw standard, that Mr Abedini committed an offence or offences against s400.9 of the Criminal Code, which offences involved a benefit to him exceeding $10,000.
9. The penalty for a contravention of s400.9 of the Criminal Code includes imprisonment for three years. Thus, the relevant offence or offences against s.400.9 of the Criminal Code, are both indictable and also a serious offences for the purposes of the Act.[433]
10. On that basis, I am satisfied to the requisite standard of each of the following matters:

(a) that a person whose conduct or suspected conduct formed the basis of the restraining order, engaged in conduct constituting a serious offence; and > > (b) that the Turramurra property is proceeds of both an indictable offence and a serious offence, namely an offence against s400.9 of the Criminal Code; and > > (c) that the Turramurra property is an instrument of both an indictable offence and a serious offence, namely an offence against s400.9 of the Criminal Code.

11. I note that the discretion not to make an order for forfeiture in certain circumstances, which appears within s47(4) and s49(4) of the Act, is only enlivened, if, inter alia, I am satisfied that the Turramurra property is not proceeds of an offence. As referred to above, I have reached the conclusion that the Turramurra property is proceeds of an offence. Given this, the discretion is not able to be exercised.
12. In those circumstances, I grant the Commissioner's application for forfeiture of the Turramurra property under s47 of the Act. As I have granted the Commissioner's application for forfeiture under that section, there is no need for me to consider the application for forfeiture made under s49 of the Act. However, for the avoidance of doubt, I note that the provisions for making a forfeiture order under s49 of the Act, are also satisfied. Thus, I would have granted the Commissioner's application for forfeiture under s49, if that had been the only application for forfeiture that had been made.

Mrs Abedini's application for exclusion from forfeiture

1. Under s73 of the Act, a Court that made a forfeiture order must make an order excluding a specified interest in property from forfeiture application for exclusion from forfeiture may be made, if (relevantly to this application):

(a) the forfeiture order specifies property in which the applicant has an interest; and > > (b) if the forfeiture order was made under s47 or s49 of the Act, the Court is satisfied that the applicant's interest is neither: > > > (i) proceeds of unlawful activity; nor > > > > (ii) if the offence on which the order was based is a serious offence, an instrument of any serious offence.

2. For the reasons set out above, Mrs Abedini has not satisfied me to the requisite standard, that the Turramurra property is neither the proceeds of unlawful activity nor an instrument of any serious offence.
3. In those circumstances, Mrs Abedini's application for exclusion from forfeiture must be dismissed.

1. As set out above, under s77(1) of the Act, a compensation order may only be made if:

"(a) a person ... has applied for a compensation order; and

(b) the court is satisfied that the applicant has an *interest in the property specified in the forfeiture order or in the application for the forfeiture order; and

(c) the court is satisfied that a proportion of the value of the applicant's interest was not derived or realised, directly or indirectly, from the commission of any offence; and

(d) the court is satisfied that the applicant's interest is not an instrument of any offence; and

(e) in the case of a court that is hearing or is to hear an application for a forfeiture order - the court makes the forfeiture order."

1. The provisions of s78(1) of the Act specify when an application for a compensation order may be made before a forfeiture order has been made. There was no dispute that the provisions of that section were satisfied in this case.
2. Similarly:

(a) it was not in dispute that Mrs Abedini satisfied the provisions of s77(1)(a) of the Act; and > > (b) as set out above, I have found that Mrs Abedini does have a relevant interest in the Turramurra property, namely a right to occupy that property.

(a) the Turramurra property, which is held on trust for Mr Abedini by Mr Isfhani, is either the proceeds of unlawful activity and/or an instrument of a serious offence; and > > (b) such interest as Mrs Abedini has in the Turramurra property, is directly or indirectly derived from Mr Abedini

I am unable to be satisfied that any proportion of the value of her interest, was not derived or realised, directly or indirectly, from the commission of any offence.

1. In those circumstances, the application for a compensation order must be dismissed.

1. The relevant provisions of s72 of the Act and the definition of the term "dependant", are set out above.
2. As set out above, the relevant objects of the confiscation scheme established under the Act include:[434]

(a) to deprive persons of proceeds of offences and benefits derived from offences against the laws of the Commonwealth; and > > (b) to deprive persons of proceeds of unexplained wealth amounts that the person cannot satisfy a court were not derived or realised, directly or indirectly, from certain offences; > > (c) to punish and deter persons from breaching the laws of the Commonwealth; and > > (d) to enable law enforcement authorities to effectively trace proceeds, benefits and unexplained wealth amounts.

3. The order sought by Mrs Abedini under this section was "a hardship order ... for an amount to be determined by the court to be paid to each of the Applicant's dependants, Paris Abedini (born March 2003) and Parsia Abedini (born August 2004) (Children) to relieve the hardship which will be caused to the Children by the forfeiture of the Property."
4. The evidence in relation to this matter was as follows:

(a) since its purchase in 2011 to the date of her 8 April 2022 affidavit, Mrs Abedini and her children have lived in the Turramurra property;[435] > > (b) Mrs Abedini is an artist, and her home is also her artist's studio and art gallery. If Mrs Abedini loses her home, she will lose her business.[436] Both Paris and Parsia live off their mother's work as an artist.[437] Paris works part time in her mother's art studio. She hopes to keep working on developing her mother's business.[438] All of Paris' and Parsia's livelihood, friendship and connections belong to the area around where they live;[439] > > (c) Parsia Abedini goes to a local school and Paris Abedini attends a nearby university.[440] Parsia is hoping to attend the same university as Paris. Living in the local catchment area for that university will be advantageous to Parsia in calculating his ATAR score;[441] > > (d) Mrs Abedini and her children have suffered from depression, anxiety and stress because of the fear they have of losing the family home. They have required psychological care as a result;[442] > > (e) should the Turramurra property be forfeited, depending upon Mrs Abedini's income, she may need to rely on public housing;[443] > > (f) Mrs Abedini was previously employed, but recently lost her job. That is because the company who employed her had a contract which has now ended.[444] She has earned about $50,000 so far in the 2022 financial year. She has exhausted her savings paying for legal representation in this matter. She is indebted to her current solicitors.[445] She has no retirement savings. She had planned to sell the Turramurra property to fund her retirement when the children leave home;[446] > > (g) while Mrs Abedini has some assets in Iran, she is unable to sell these items and she believes that there are international sanctions in place, which prevent her from selling those items or getting money from Iran;[447] > > (h) Mrs Abedini is employed by and is a director of Upland Sandpiper, a company that trades as a money remittance business. Her ex-husband manages this business, and she receives a director's fee from time to time, which helps with her living expenses;[448] > > (i) Mrs Abedini is now fifty-four years of age. Her physical and mental health is failing. She does not know how long she can continue to work.[449]

5. There are numerous cases which consider the concept of "hardship" in the context of a confiscations regime. As to the discretion to refuse to make a forfeiture order on hardship grounds (noting that the state confiscations regime sets out a test which differs procedurally from that set out in the Act), in Director of Public Prosecutions v Lake,[450] Kirby P (as he then was), stated:

"... In considering hardship, it is necessary to bear in mind that, of necessity, in achieving its objects, the Act will cause a measure of hardship in the deprivation of property. Indeed that is its intention. It is not that kind of hardship, therefore, that can give rise to the relief ... The provision for relief ... must not be so interpreted as to frustrate the achieving of the purpose of Parliament in enacting the exceptional provisions of the Act. Something more than ordinary hardship in the operation of the Act is therefore meant. Otherwise the Act would have, within it, the seeds of its own [in]effectiveness in every case."

1. In Director of Public Prosecutions v Ali (No 2),[451] Hargrave J summarised what he described as the "accepted approach" disclosed by the authorities concerning the hardship discretion in the context of discretionary forfeiture, viz:

"102 ... First, the hardship discretion is only enlivened when something more than ordinary hardship in the operation of the Act is demonstrated. Second, in exercising the discretion, the Court considers the degree of criminality and the circumstances of the offender, including the sentence and pecuniary penalty imposed for the offence. Third, the Court considers whether, in light of the hardship and any other relevant factors, a forfeiture order would be severely disproportionate to the degree of criminality and the circumstances of the offender. Where the property in question is a family home, the circumstances of the family and the effect upon the family will always be relevant and may be decisive; but each case must always depend upon its own facts.

1. 103 The hardship discretion ... where it arises following a civil forfeiture order, arises in the absence of a conviction. Accordingly, there is no proven criminality and no sentence of pecuniary penalty imposed on an offender. In these circumstances, although guidance can be obtained from the discretionary forfeiture cases, the Court must adopt a different starting point as the basis for its consideration of proportionality in the context of hardship. In my view, the starting point is the degree of involvement by the property owner or owners in the commission of the relevant offence. ... ."
2. In Commissioner of the Australian Federal Police v Goldstein (a pseudonym),[452] his Honour Judge Saccardo dealt with a forfeiture application under s49(1) of the Act, together with a related application for relief from hardship, under s72 of the Act.
3. Having considered the submissions put by the parties, his Honour approved the following concepts relevant to the consideration of applications for relief from hardship:

(a) the concept of hardship under the Act must involve a position in which the imposition of a forfeiture order has the effect of depriving an innocent dependent of a benefit (potential or otherwise), the right to which existed prior to, and arose independently of, the alleged criminal activity;[453] > > (b) accordingly, that hardship involves a change to the detriment of a position which pre-existed the commission of the alleged offending;[454] > > (c) such change in the status quo to the detriment could not arise when a forfeiture order is made with respect to the mere proceeds of criminal activity, by reason of the fact that: > > > (i) proceeds of crime come into existence and are generated by the criminal activity; and > > > > (ii) it could not be said that such proceeds provide any benefit which pre-existed the criminal activity or arose independently of that activity;[455] and > > > > (iii) such a finding would result in a position which is contrary to one of the principal objects of the Act, namely "to deprive persons of the benefits derived from offences against the laws of the Commonwealth";[456] > > (d) the situation may be different when the property is also an instrument of crime, and where an innocent dependant derives a benefit from that instrument, which benefit arose independently of that criminal activity;[457] > > (e) in such a case, the issue which then arises for the consideration of the Court, is whether or not any of the property the subject of the proposed forfeiture order, can be identified as being an instrument of the relevant criminal activity and not the proceeds of that activity.[458]

4. Reference was also made by the Commissioner to the case of Meskovski v Director of Public Prosecutions,[459] which considered a hardship application in the context of the Victorian State confiscations regime. It should be noted that under the relevant Victorian law, a Court must find that there is "undue hardship", in order to grant the relief sought.
5. On that basis, it was submitted on behalf of Mrs Abedini, that the failure of the Commonwealth Parliament to include the word "undue" in combination with the word "hardship" in the Act, demonstrates that ordinary hardship flowing from the usual operation of the Act, is enough to give rise to the discretion to grant relief.
6. I do not agree. That submission overlooks the fact that the cases to which I was referred, acknowledge as a fundamental principle, the need to preserve the effectiveness of the confiscations regime. As was observed by Kirby J in DPP v Lake,[460] granting relief from hardship that would ordinarily flow from the operation of such a scheme, would be to frustrate the purpose of the Parliament in enacting the exceptional provisions of the Act. A similar observation was made by Judge Saccardo in Goldstein.[461] It is axiomatic that such an interpretation would render the confiscations regime under the Act, completely ineffective. I reject the submission made on behalf of Mrs Abedini in relation to this matter.
7. I have previously found that the Turramurra property is both proceeds of an indictable offence and an instrument of an indictable offence.
8. Similarly, an analysis of the evidence set out above reveals that there is no part of the Turramurra property which is an instrument of an indictable offence, which is not also the proceeds of that offence.
9. In those circumstances, having regard to the relevant case law, I find that it would be contrary to the purposes of the Act to grant the application for hardship on behalf of the children, despite the fact that I accept that they are innocent dependents of Mr Abedini. To do so would defeat the key purposes of the Act.
10. Even if I am wrong in relation to this conclusion, I make the following observations about the substance of the evidence before the Court in relation to this matter:

(a) earlier in this judgment, I made findings as to the credibility of Mrs Abedini. Those findings are set out in detail above. Given those findings, in the absence of independent and objective evidence of impecuniosity, and taking into account the unchallenged evidence of the vast sums of money which have flowed through both Mr and Mrs Abedini's bank accounts in the period 2009-2014, I am unable to rely on the uncorroborated assertion in Mrs Abedini's affidavit that if the Turramurra property becomes the subject of a forfeiture order, she and/or her children, will become homeless, or that she will lose her business; > > (b) I note once again, that Mr Abedini, who presently lives with his children in the Turramurra property and has particular and relevant knowledge of the matters which form the basis of my considerations in this application, has not given any evidence to the Court about the effect which the making of a forfeiture order would have upon his children. It is open to me to conclude that any evidence which he may have been able to give, would not have assisted the application, and I do so; > > (c) in those circumstances, despite any assertions to the contrary, there is no evidence upon which I could be satisfied to the requisite standard, that if the Turramurra property is the subject of a forfeiture order, either Paris or Parsia will become homeless, or indeed suffer any financial detriment; > > (d) similarly, the Commissioner submitted, and I accept, that there is no evidence before the Court of what sum it is asserted would alleviate such hardship as may exist. In the absence of such evidence, no order for relief against hardship ought be made.

11. In those circumstances, the application for relief from hardship under s72 must be refused.

(a) the application for exclusion from the restraining order brought by Mr Abedini is refused, with costs; > > (b) the application for exclusion from the restraining order brought by Mrs Abedini is refused; > > (c) the application for ancillary orders brought by Mrs Abedini is refused; > > (d) the Commissioner's application for forfeiture is granted; > > (e) the application for exclusion from forfeiture brought by Mrs Abedini is refused; > > (f) the application for compensation brought by Mrs Abedini is refused; > > (g) the application for relief from hardship is refused.

2. I will hear the parties in relation to the question of costs as between the Commissioner and Mrs Abedini.

[5] It should be noted that the second to fourth applications were all brought on 28 October 2019 as part of a single application seeking alternative orders: CB 18

[9] CB 373: Annexure 19 in Exhibit CH1 to the affidavit of Colin Hicks affirmed on 30 June 2017

[10] See Contract of Sale dated 22 February 2011: CB 2293

[11] In this judgment, a reference to a particular bank account will be made by listing the last four numbers of the account and referring to the relevant bank. For instance, this account will be referred to as Westpac account -4084; Evidence of the payment into Westpac account -4084 appears at CB 2287

[12] See extract from Westpac account -0901: CB 2285

[13] See paragraph 76 of the affidavit of Susanne Elise Jones, sworn 14 November 2014: CB 719

[14] See evidence of payment: CB 2350-2356

[16] See Hicks Report: CB 87; see also bank records of this transaction at CB 2358

[17] See summary of monies paid by Mr Abedini to Mr Isfhani: CB 2362-2367; See bank statements for Mr Abedini's Westpac account no -4709: CB 2369-2413

[18] Payment on 10 July 2017 from St George account -7766 (CB 1282); payment on 21 December 2020 from St George account -7766 (CB 1122); payment on 15 March 2021 from St George account -7766 (CB 1085); payment on 29 March 2021 from St George account -7766 (CB 1090); payment on 12 April 2021 from St George account -7766 (CB 1092) and payment on 26 April 2021 from St George account -7766 (CB 1096)

[19] Payment on 28 December 2020 from CBA account in the name of Sydney International Connect -1366 (CB 1318); payment on 8 February 2021 from CBA account in the name of Sydney International Connect -1366 (CB 1315)

[23] Abedini and Anor v Commissioner of The Australian Federal Police (Ruling) [2023] VCC 315

[26] Affidavit of Farina Abedini affirmed 11 June 2019, paragraph 5, CB 1956

[27] Affidavit of Farina Abedini affirmed 11 June 2019, paragraph 6, CB 1956

[28] Affidavit of Farina Abedini affirmed 11 June 2019, paragraph 6, CB 1956

[29] Affidavit of Farina Abedini affirmed 13 February 2020, paragraph 24, CB 2024

[30] Affidavit of Farina Abedini affirmed 13 February 2020, paragraph 12, CB 2021

[31] Affidavit of Farina Abedini affirmed 13 February 2020, paragraph 13, CB 2022

[32] Affidavit of Farina Abedini affirmed 13 February 2020, paragraph 13, CB 2022

[33] Affidavit of Farina Abedini affirmed 13 February 2020, paragraph 19, CB 2023

[34] Affidavit of Farina Abedini affirmed 13 February 2020, paragraph 21, CB 2023

[35] See Transcript ("T") 230-236; see also CB 2023, paragraph 21

[37] Affidavit of Manoucher Saedi affirmed 26 July 2021, CB 2450, paragraph 5

[38] Affidavit of Mohammad Ali Rezadad Yousef Jalai affirmed 26 July 2021, CB 2453, paragraph 5

[39] T234, L21-27; T235, L5-11; see also T326, L15-16

[41] Affidavit of Farina Abedini affirmed 13 February 2020, paragraph 16, CB 2022

[42] Affidavit of Farina Abedini affirmed 25 July 2021, paragraph 10, CB 2030

[44] See exhibit RG-1 to the affidavit of Rita Gilani sworn 7 April 2022, CB 2988

[45] Affidavit of Farina Abedini affirmed 25 July 2021, paragraph 13, CB 2031

[46] Affidavit of Farina Abedini affirmed 25 July 2021, paragraph 21, CB 2034

[47] Affidavit of Farina Abedini affirmed 25 July 2021, paragraph 28, CB 2036

[48] Affidavit of Farina Abedini affirmed 25 July 2021, paragraph 30, CB 2037

[49] Affidavit of Farina Abedini affirmed 25 July 2021, paragraph 32, CB 2038

[50] Affidavit of Farina Abedini affirmed 25 July 2021, paragraph 34, CB 2038

[51] Affidavit of Farina Abedini affirmed 25 July 2021, paragraphs 35 and 36, CB 2038

[52] Affidavit of Farina Abedini affirmed 25 July 2021, paragraphs 39 and 41, CB 2039

[53] Affidavit of Farina Abedini affirmed 25 July 2021, paragraph 41, CB 2039

[54] Affidavit of Farina Abedini affirmed 25 July 2021, paragraph 41, CB 2039-2040

[55] Affidavit of Farina Abedini affirmed 25 July 2021, paragraph 42, CB 2040

[56] Affidavit of Farina Abedini affirmed 25 July 2021, paragraph 51, CB 2042

[57] Affidavit of Farina Abedini affirmed 25 July 2021, paragraph 52, CB 2042

[58] Affidavit of Farina Abedini affirmed 25 July 2021, paragraph 53, CB 2042

[59] Affidavit of Farina Abedini affirmed 25 July 2021, paragraph 54, CB 2042

[60] Affidavit of Farina Abedini affirmed 25 July 2021, paragraph 56 and 57, CB 2042

[61] Affidavit of Farina Abedini affirmed 25 July 2021, paragraph 65, CB 2044

[62] Affidavit of Farina Abedini affirmed 25 July 2021, paragraph 66, CB 2044

[64] Affidavit of Farina Abedini affirmed 8 April 2022, paragraph 8, CB 2939

[65] Affidavit of Farina Abedini affirmed 8 April 2022, paragraph 15, CB 2940

[66] As the hearing progressed, it became clear that the name of this entity is Upland Sandpiper Trading Pty Ltd (ABN 34 622 866 013). Despite the varied nomenclature used in the affidavit material relied upon by Mrs Abedini, this entity will be referred to as "Upland Sandpiper" in this judgment

[67] Affidavit of Farina Abedini affirmed 8 April 2022, paragraph 19, CB 2941

[68] Affidavit of Farina Abedini affirmed 8 April 2022, paragraph 25, CB 2942

[69] Affidavit of Farina Abedini affirmed 20 April 2022, paragraph 2(d), SCB 3336

[70] Affidavit of Farina Abedini affirmed 20 April 2022, paragraph 2(e), SCB 3336

[71] Affidavit of Farina Abedini affirmed 20 April 2022, paragraph 3(b), SCB 3336

[72] Affidavit of Farina Abedini affirmed 21 April 2022, paragraph 4, SCB 3340

[73] Affidavit of Farina Abedini affirmed 21 April 2022, paragraphs 4-8, SCB 3340

[77] SCB 3390; See also Final Tax Invoice in respect of the vehicle purchase, CB 1763

[87] T52, L14-25; the substance of this evidence was repeated at T59, L1-4

[132] T229, L1-6; CB 2040, paragraph 44

[150] Affidavit of Mark Creighton sworn 7 April 2022, paragraph 8, CB 2735

[168] T252, L3-15; see also similar evidence given at T261-262 and T266, L3-9

[172] T254, L17-20; see also T255, L20-25

[173] T255, L26-31; see also similar evidence at T266, L10-14 and T268, L4-6

[220] Affidavit affirmed 25 July 2021, paragraph 46, CB 2040-2041

[225] T301, L11-15; CB 1552 (transaction on 8 April 2019); CB 1557 (transaction on 25 February 2019); CB 1558 (transaction on 11 March 2019)

[249] T315, L18-23; T316, L28-31; CB 1315 and 1318

[281] Affidavit of Anna Maria Duran affirmed 10 May 2021, CB 1926, at paragraph 9

[282] See Exhibit AMD-3 to the affidavit of Anna Maria Duran affirmed 10 May 2021, CB 1938

[284] Affidavit of Anna Maria Duran affirmed 10 May 2021, CB 1926, at paragraph 9

[285] See applicant's closing submissions dated 29 April 2022, paragraphs 26‑27; see also applicant's submissions in reply dated 24 May 2022, paragraph 6, page 2

[286] See applicant's closing submissions, paragraphs 4‑10 and 38‑59

[288] See applicant's closing submissions, paragraphs 28‑37

[289] See applicant's closing submissions, paragraphs 16‑25; see also CB 2626

[290] See applicant's closing submissions, paragraphs 62‑74

[291] Mai v Commissioner of the Australian Federal Police (2020) 62 VR 118 at 128-129, paragraph [28] per Tate, McLeish and Hargrave JJA

[292] The Court's attention was drawn to the fact that this account is in the name of Morteza Abedini Kalhroudy. Mrs Abedini confirmed that this is a name which Mr Abedini uses from time to time

[299] See Mrs Abedini's evidence at T254, L17-20

[302] Calverley v Green [1984] HCA 81; (1984) 155 CLR 242

[303] See Green v Green (1989) 17 NSWLR 343

[305] Ibid at 353 per Gleeson CJ (as his Honour then was), with whom Priestly JA agreed

[306] Affidavit of Michael Creighton sworn 7 April 2022; CB 2733-2735

[307] Affidavit of Rita Gilani sworn 7 April 2022; CB 2983-2991

[311] Affidavit of Farina Abedini affirmed 8 April 2022, paragraph 25, CB 2942; T298

[318] That is in relation to the management of Upland Sandpiper: see T308, L22-30

[319] Affidavit of Farina Abedini affirmed 25 July 2021, paragraph 41, CB 2040

[326] Paragraph 5, affidavit of Max Donnelly sworn 29 January 2020; see also Recital A, CB 2536; paragraph 7, affidavit of Anna Duran affirmed 10 May 2021, CB 1926

[327] Paragraph 6, affidavit of Max Donnelly sworn 29 January 2020; see also Recital B, CB 2563; paragraph 8 affidavit of Anna Duran affirmed 10 May 2021, CB 1926

[328] paragraph 9 affidavit of Anna Duran affirmed 10 May 2021, CB 1926

[329] Affidavit of Anna Duran affirmed 10 May 2021, paragraph 11, CB 1927 and 1934-1935

[330] Affidavit of Anna Duran affirmed 10 May 2021, paragraph 10, CB 1927

[331] See for example discussion at TT701-704

[334] Affidavit of Anna Duran affirmed 10 May 2021, paragraph 12, CB 1927 and 1938

[335] Affidavit of Anna Duran affirmed 10 May 2021, paragraph 12, CB 1927

[336] Affidavit of Anna Duran affirmed 10 May 2021, paragraph 13, CB 1927

[344] See CB 2499-2502; see also Recital D to the Deed of Settlement dated October 2020, CB 2536; Affidavit of Max Donnelly sworn 28 May 2021, paragraph 7, CB 2480

[346] Affidavit of Max Donnelly sworn 29 January 2020, paragraph 12, CB 2472; Recital G to the Deed of Settlement dated October 2020

[358] Affidavit of Max Donnelly sworn 28 May 2021, paragraph 11, CB 2481; see also CB 2608

[359] Jess v McNiven, in the matter of McNiven (No 2) [2022] FCA 446, per Anastassiou J at paragraphs [150]-[156], [178] and [188], in the context of the Bankruptcy Act 1966 (Cth)

[368] For a discussion of which see Jess v McNiven, in the matter of McNiven (No 2) (supra), per Anastassiou J at paragraphs [150]-[156]

[369] Waltons Stores (Interstate) Ltd v Maher (1987) 164 CLR 387 at 413

[370] Mai v Commissioner of the Australian Federal Police (supra) at 128-129, paragraph [28] per Tate, McLeish and Hargrave JJA

[371] CB 2938-2943: Affidavit of Farina Abedini affirmed 8 April 2022; CB 2944-2947: Affidavit of Paris Abedini affirmed 8 April 2022; CB 2948-2950: Affidavit of Parsia Abedini affirmed 8 April 2022

[372] The Hicks Report, paragraph 1.5, CB 35

[382] CB 34, paragraph 1.3; see also Annexure 11 (CB 358), Annexure 12 (CB 359) and Annexure 13 (CB 360) to the Hicks Report

[396] Abedini 2020 affidavit, paragraph [12] at CB 2021

[397] Affidavit of Federal Agent Detective Leading Senior Constable Mark Anthony John Creighton ("Creighton affidavit") sworn 1 September 2021, paragraphs [17]-[20] at CB 826-827, together with supporting Exhibit MAJC-25a (Mrs Abedini) at CB 1703 and Exhibit MAJC-25b (Mr Abedini) at CB 1703

[398] See Annexure "A" to the judgment; CB 358; see also paragraph 11.1.1 of the Hicks Report, CB 73-74

[399] See Annexure "A" to the judgment, in particular, the figures at Hicks Abedini Report Annexure [1851] EngR 614; 11; CB 358

[400] For a list of the relevant account numbers, see Annexure 14 to the Hicks Report, CB 361

[405] This affidavit was sworn on 2 May 2017; see CB 2639-2680

[406] This statement is dated 8 April 2022; see CB 2740-2937

[412] The Commissioner of Australian Federal Police v Vo [2016] NSWSC 711 (per Adams J)

[418] These offences are not serious offences under the Act

[420] T53, L3; T54, L20; T56, L18-20; T62, L2; TT78-80

[421] See for example T284, L11-22; TT285-286

[423] Director of Public Prosecutions (Cth) - Re section19 of the Proceeds of Crime Act 2002; Re Funds in a Bank Account; Re Sunshine Worldwide Holdings Limited and South East Group Limited [2005] NSWSC 117; [2005] 62 NSWLR 400 per Greg James J at paragraph [45]

[424] Transcript 25 May 2022, T46, L17-25

[427] Mr Abedini paid the sum of $121,804.02 toward the settlement sum out of his CBA account -2623

[433] Section 4G Crimes Act 1914 (Cth)

[435] Affidavit of Farina Abedini affirmed 8 April 2022, paragraph 7, CB 2939; affidavit of Paris Abedini affirmed 8 April 2022, paragraph 3, CB 2945; affidavit of Parsia Abedini affirmed 8 April 2022, paragraph 3, CB 2948

[436] Affidavit of Farina Abedini affirmed 8 April 2022, paragraph 8, CB 2939

[437] Affidavit of Paris Abedini affirmed 8 April 2022, paragraph 9, CB 2945; affidavit of Parsia Abedini affirmed 8 April 2022, paragraph 14, paragraph 12, CB 2949

[438] Affidavit of Paris Abedini affirmed 8 April 2022, paragraph 6, CB 2945

[439] Affidavit of Paris Abedini affirmed 8 April 2022, paragraph 7, CB 2945; affidavit of Parsia Abedini affirmed 8 April 2022, paragraph 9, CB 2949

[440] Affidavit of Paris Abedini affirmed 8 April 2022, paragraph 5, CB 2945; affidavit of Parsia Abedini affirmed 8 April 2022, paragraph 5, CB 2949

[441] Affidavit of Farina Abedini affirmed 8 April 2022, paragraphs 9 and 10, CB 2939; affidavit of Parsia Abedini affirmed 8 April 2022, paragraph 7-8, CB 2949

[442] Affidavit of Farina Abedini affirmed 8 April 2022, paragraphs 12, 13 and 22, CB 2940; affidavit of Paris Abedini affirmed 8 April 2022, paragraphs 8-10, CB 2945; affidavit of Parsia Abedini affirmed 8 April 2022, paragraph 11, CB 2949-2950

[443] Affidavit of Farina Abedini affirmed 8 April 2022, paragraphs 14 and 22, CB 2940

[444] Affidavit of Farina Abedini affirmed 8 April 2022, paragraph 15, CB 2940

[445] Affidavit of Farina Abedini affirmed 8 April 2022, paragraphs 16 and 18, CB 2940

[446] Affidavit of Farina Abedini affirmed 8 April 2022, paragraph 21, CB 2941

[447] Affidavit of Farina Abedini affirmed 8 April 2022, paragraphs 24-27, CB 2941-2942

[448] Affidavit of Farina Abedini affirmed 8 April 2022, paragraph 19, CB 2941

[449] Affidavit of Farina Abedini affirmed 8 April 2022, paragraph 20, CB 2941

[450] (1989) 44 A Crim R 63 at 66-67

[451] [2010] VSC 503

[452] [2015] VCC 1425 ("Goldstein")

[456] Ibid at paragraph [60], referring to s5(a) of the Act

[459] [2018] VSCA 293