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Legislation Cited: Criminal Code (Cth), ss 474.22(1), 474.22A(1)
Proceeds of Crime Act 2002 (Cth), ss 17, 38, 45, 48, 92, 93, 94, 315, 330

Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336
Chalmers v The Queen (2011) 37 VR 464; [2011] VSCA 436
Cini v Commissioner of the Australian Federal Police (2016) 312 FLR 432; [2016] VSCA 227
Commissioner of the Australian Federal Police v Hart (2018) 262 CLR 76; [2018] HCA 1
Director of Public Prosecutions v George (2008) 102 SASR 246; [2008] SASC 330
Henderson v Queensland (2014) 255 CLR 1; [2014] HCA 52
Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34
R v Brooks [2025] NSWDC 354
R v Porte [2015] NSWCCA 174
United States of America v Larry Richard Hull 606 F 3d 525 (8th Cir, 2010)

Category: Principal judgment

Parties: Commissioner of the Australian Federal Police (Plaintiff/Respondent)
John Benedict Brooks (Defendant/Applicant)

Representation: Counsel:
A Moses SC / W Liu (Plaintiff/Respondent)
A Berger KC / J Sabharwal (Defendant/Applicant)
Solicitors:
Criminal Assets Litigation, Australian Federal Police (Plaintiff/Respondent)
M O’Brien (Defendant/Applicant)

File Number(s): 2025/87359

Publication restriction: Nil.

JUDGMENT

1. HIS HONOUR: This judgment concerns a Notice of Motion filed by Mr Brooks on 23 April 2025 seeking an order under s 94 of the Proceeds of Crime Act 2002 (Cth) (“POCA”) to exclude his interest in certain property from forfeiture to the Commonwealth. The Commissioner of the Australian Federal Police (“the Commissioner”) opposes that application.

2. For the reasons that follow, I will grant the relief sought in the Notice of Motion and make orders to that effect excluding the property the subject of the application from forfeiture under s 92 of the POCA. The Commissioner asked, if I was against her on the Motion, that I should stay my order for 28 days after the delivery of reasons to enable consideration to be given to an appeal. I have acceded to that request.

Background

3. It is necessary to set out the factual and procedural background to these proceedings in order to properly frame this claim for relief. I pause here to note that the criminal offending which underpins this dispute is serious, and I have chosen to only set out the detail insofar as strictly relevant to the determination of the legal issues in dispute.

Factual Background

4. On 6 June 2023, officers of the Australian Federal Police executed a search warrant at a residential property in Cooma (“the Cooma Property”), of which Mr Brooks was the registered proprietor and sole occupant. The search warrant uncovered 212 files that fall within the statutory description of child abuse material. Those files were recovered from a series of devices within the Cooma Property. I will not go into their content, save as to say they contained images of sexual abuse of children assessed in a range up to Category 4 of the Child Exploitation Tracking System scale (see R v Porte [2015] NSWCCA 174).

5. Mr Brooks was charged with three offences:

6. Using a carriage service to transmit child abuse material contrary to s 474.22(1) of the Criminal Code (Cth) (“Transmission Offence”);

7. Using a carriage service to access child abuse material contrary to the same section (“Access Offence”); and

8. Using a carriage service to possess or control child abuse material contrary to s 474.22A(1) of the Criminal Code (Cth) (“Possession Offence”).

9. Mr Brooks pleaded guilty to each of these offences and was dealt with by the District Court of NSW on 28 March 2025: R v Brooks [2025] NSWDC 354. The sentencing judge, Sutherland SC DCJ, imposed an aggregate sentence of 2 years imprisonment, directing that Mr Brooks be released immediately upon entering into a recognizance release order, as he did.

Procedural Background

7. On 5 March 2025, the Commissioner commenced these proceedings by Summons, seeking urgent ex parte relief by way of a restraining order under s 17 of the POCA against the Cooma Property. That relief was granted by my colleague Weinstein J on the same day. Relevantly, prayer 9 of the Summons seeks a forfeiture order under s 48(2) of the POCA, and determination of that relief remains outstanding.

8. The matter then came before me for variation of the above orders by consent on 2 April 2025. The substance of those variations was to allow for the sale of the Cooma Property and the discharge of debts secured by it, with the balance of the proceeds of sale paid to the Official Trustee in Bankruptcy. That sale duly occurred. It is the net proceeds of the sale which is the property subject to this application (“the Subject Property”). For completeness, if the Cooma Property was an instrument of unlawful activity, by force of s 330(3) of the POCA, the Subject Property will also have that character.

9. On 23 April 2025, Mr Brooks filed this motion seeking exclusion of the Subject Property from forfeiture under s 94 of the POCA. The motion has been case managed by the Registrar in the interim, subject to various other steps being taken in the proceedings.

10. On 29 July 2025, my colleague Rigg J made orders, again by consent, which relevantly:

11. Ordered Mr Brooks to be examined in relation to his affairs under s 180 of the POCA; and

12. Made an extension order under s 93 of the POCA, extending time before the Subject Property is forfeited until 28 June 2026.

No further extension of time is legally permissible: POCA s 93(1).

11. This motion was set down before me for determination and heard on 9 June 2026. By s 94(6) of the POCA, an exclusion application may not be heard until the Commissioner has been given a reasonable opportunity to conduct examinations. The examination of Mr Brooks took place on 1 October 2025.

12. The Subject Property, by virtue of the orders originally made by Weinstein J and varied by me, remains under the control of the Official Trustee as a consequence of the extant restraining order under s 17 of the POCA.

Statutory Framework and the Present Exercise

13. Section 92 of the POCA operates to the effect that, at the completion of the restraining period, the Subject Property will be forfeited to the Commonwealth unless an exclusion order is made beforehand. This occurs automatically by dint of s 92 without further order. In the case at hand, this would occur at the expiration of the extended period provided for in the orders of Rigg J. Where no exclusion order is made prior to expiration of the restraining period, restrained property is forfeit to the Commonwealth.

14. Section 92 operates differently from a forfeiture order under s 48 of the POCA. That provision requires the Commissioner to bring an application in which she bears the onus. As I have said, by Prayer 9 of her Summons, the Commissioner sought such an order, but did not press it at hearing, although she purports to reserve her right to do so, were Mr Brooks to succeed, as he has, on this application. Whether the Commissioner is entitled to take this stance was not the subject of argument before me and I will say no more about it.

15. Section 48 provides:

(1) A court with *proceeds jurisdiction must make an order that property specified in the order is forfeited to the Commonwealth if:

(a) a *proceeds of crime authority applies for the order; and

(b) a person has been convicted of one or more *indictable offences; and

(c) the court is satisfied that the property to be specified in the order is *proceeds of one or more of the offences.

(2) A court with *proceeds jurisdiction may make an order that property specified in the order is forfeited to the Commonwealth if:

(a) a *proceeds of crime authority applies for the order; and

(b) a person has been convicted of one or more *indictable offences; and

(c) subsection (1) does not apply; and

(d) the court is satisfied that the property to be specified in the order is an *instrument of one or more of the offences.

(3) In considering whether it is appropriate to make an order under subsection (2) in respect of particular property, the court may have regard to:

(a) any hardship that may reasonably be expected to be caused to any person by the operation of the order; and

(b) the use that is ordinarily made, or was intended to be made, of the property to be specified in the order; and

(c) the gravity of the offence or offences concerned.

16. Section 94 is in the following terms:

(1) The court that made a *restraining order referred to in paragraph 92(1)(b) must make an order excluding particular property from forfeiture under this Part if:

(a) a person (the applicant) has applied for an order under this section; and

(b) the court is satisfied that the applicant has an *interest in property covered by the restraining order; and

(d) a person has been convicted of a *serious offence to which the restraining order relates; and

(e) the court is satisfied that the applicant’s interest in the property is neither *proceeds of *unlawful activity nor an *instrument of unlawful activity; and

(f) the court is satisfied that the applicant’s interest in the property was lawfully acquired.

…

17. The critical differences between relief from forfeiture under ss 48(3) and 94 respectively are threefold:

18. The proceeds of crime authority has the burden of proof under s 48, whereas the offender has the burden under s 94;

19. Orders made under s 48(2) are discretionary (s 48(3)), whereas an exclusion order under s 94 may not be made unless the applicant establishes the s 94(1) conditions on the balance of probabilities.

20. Orders for forfeiture under s 48 provide that the property must be proceeds or an instrument related to one of “the offences”; whereas s 94 requires the applicant to affirmatively prove that the restrained interest in property is neither proceeds nor an instrument of “unlawful activit**y” generally (my emphasis).

21. The combined effect of these differences makes a forfeiture application by the Commissioner under s 48 a far more attractive alternative for the offender than seeking an order under s 94.

22. I accept the Commissioner’s submission that it is that Mr Brooks’ s 94 application that I am to decide. Mr Brooks has sought the exclusion of the Subject Property and the legislative provisions applicable to those orders must be applied.

23. The essential operation of Part 2-3 (of which s 94 forms part) is to facilitate automatic forfeiture of restrained property to the Commonwealth upon conviction of a sufficiently serious offence. No further order is required to be sought or made once the property is restrained. The property having been restrained, typically (but not always) while charges are pending, no further application or order is required for the forfeiture to have effect. It is for the owner of the restrained property to agitate for exclusion. Part 2-2 (of which s 48 forms part) has a different intention and operation. It is not an automatic provision but requires the Commissioner to take active steps to obtain forfeiture, subject to the s 48(3) discretion.

Meaning of “Instrument” and Applicable Principles

21. Given the centrality of its definition to the present dispute, it is important to set out the statutory definition, informed by case law, of “instrument of unlawful activity”. Instrument is defined by s 329(2) of the POCA:

(2) Property is an instrument of an offence if:

(a) the property is used in, or in connection with, the commission of an offence; or

(b) the property is intended to be used in, or in connection with, the commission of an offence;

whether the property is situated within or outside *Australia.

22. The “use” aspect of the definition was discussed by the High Court in Commissioner of the Australian Federal Police v Hart (2018) 262 CLR 76; [2018] HCA 1 (“Hart”). The plurality (Kiefel CJ, Bell, Gageler and Edelman JJ) held at [10]:

“Satisfaction of the use condition requires proof by an applicant on the balance of probabilities that the thing forfeited was not used in, or in connection with, an act or omission that constituted a relevant offence, and that no legal or equitable estate or interest in that thing and no right, power or privilege in connection with that thing was used in, or in connection with, an act or omission that constituted a relevant offence. Consistently with the construction of equivalent language adopted by the Full Court of the Supreme Court of South Australia in Director of Public Prosecutions v George, use in or in connection with an act or omission that constituted a relevant offence is a broad conception involving practical considerations which do not readily admit of detailed exposition in the abstract. The conception requires neither a causal link between the property and the offence nor that the property was necessary for the commission of the offence or made a unique contribution to the commission of the offence. Implicit in the expression of the condition is that the use can be by any person. Implicit also is that the degree of use need not be proportionate to the forfeiture that has occurred.” (My emphasis; citations omitted).

23. As their Honours’ reasoning makes clear, the test is broad and requires no causal link to be established between the property and the offence. That is not to say, however, that the term is to be given such a wide ambit as to deprive it of its ordinary meaning. I will say more about the decision in Director of Public Prosecutions v George (2008) 102 SASR 246; [2008] SASC 330 (“George”) (see below [27]).

24. The Victorian Court of Appeal considered these provisions in the context of real property used for the storage of large quantities of methamphetamine in Cini v Commissioner of the Australian Federal Police (2016) 312 FLR 432; [2016] VSCA 227 (“Cini”). The Court (Priest, Santamaria and Kaye JJA) were careful to caution against the application of judicial gloss: Cini at [48]. Their Honours did confirm, however, that (at [53]):

“Whether in a given case there is a connection between the use of the property and the commission of an offence will be a question of fact and degree. Based on the authorities which deal with cognate legislation, however, it is clear that it is not necessary that there be a “substantial” connection, or that it be established that the crime could not have been committed without using the property…”

25. The reference to “authorities which deal with cognate legislation” included Chalmers v The Queen (2011) 37 VR 464; [2011] VSCA 436 (“Chalmers”). In Chalmers the Court (Maxwell P, Redlich JA and Kyrou AJA) was concerned (in part) with the provisions of the Confiscation Act 1997 (Vic), which contains similar statutory language to the POCA.

26. Their Honours discussed a spectrum for the use of real property in connection with offences. At one end are such cases where the property itself is a fundamental aspect of the offending. At the other are cases where the land is “merely the passive location” of the offending: Chalmers (at [89]-[90]). Their Honours concluded (at [91]):

“There will, of course, be cases along this spectrum where the question whether the requisite connection exists (between the use of the property and the commission of the offence) will be a matter of difficulty. Those cases will require a close examination of the nature of the property, its precise use, the nature of the offence that was committed and the manner, if any, in which the property was used in connection with the commission of the offence. The more passive the use of the property and the more incidental its role, the less likely it is that the requisite connection will be found to exist.” (My emphasis.)

27. Similarly, the term “instrument” within the cognate South Australian legislation was the subject of consideration in George, referred to be the High Court in Hart ([22] above). In that case, Doyle CJ confirmed that it is not open to imply that there is a requirement that the connection be ‘substantial’: George at [62]. The learned Chief Justice went on to say (at [65]):

“… I consider that the definition [of instrument] refers to a use of property that facilitates, assists or contributes to the commission of the offence. That is a starting point, not a conclusion. The use of the property must be sufficiently significant (I realise this is question begging) to warrant a conclusion (especially where the property is the place where the offence is committed) that the property is used in connection with the commission of the offence. This invites attention to the role that the property plays in the commission of the offence, to the extent to which the property is so used, and to how much of the property, or what part of it, is used. I doubt whether one can usefully go any further than that.” (My emphasis).

28. What these authorities make clear is that “use” in the relevant sense may be a question of wide ambit, but not so wide that the mere passive use of real property will be sufficient to cause it to be enlivened for the purpose of the forfeiture provisions of POCA. I will apply this line of authority bearing in mind the need to avoid the application of any undue judicial gloss to the plain statutory language.

29. As to the standard of proof on the application, the principles are well settled. In Henderson v Queensland (2014) 255 CLR 1; [2014] HCA 52 (“Henderson”), the High Court was concerned with the provisions of the cognate Queensland legislation. The person claiming an interest in the property affected by that legislation bore the onus of proof, as here. Section 68(2)(b) of the Queensland legislation provided that an exclusion order from forfeiture could not be made unless the Court was satisfied that “it is more probable than not that the property to which the application relates is not illegally acquired property”. French CJ observed at [15]:

“The placement of the burden of proof is uncompromising and unable to be ameliorated by any “conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct”.

30. Bell J observed at [28]:

“It may be accepted that the fact that a witness is disbelieved does not prove the opposite of that which is asserted. However, this is not to say that the primary judge was precluded from drawing any inference from the fact that the father’s account of the provenance of the jewellery was false. In some circumstances, a court may infer from the telling of a false story that the truth would harm the witness’s interests. It was not a question of making a finding that Mr Henderson’s father came into possession of the jewellery as the result of criminal activity. Mr Henderson bore the onus and it would have been open to the primary judge to consider the fact that the father gave a false account of the provenance of the jewellery as a circumstance telling against satisfaction that it was discharged.” (Footnotes omitted)

Her Honour pointed out (at [31]) that it would be “wrong to approach the determination of an exclusion application under [the Queensland Act] upon a presumption that individuals ordinarily did not engage in criminal activity. Such a presumption is inconsistent with the allocation of the burden of proof …”.

31. Her Honour also said (at [33]):

“Mr Henderson was required to prove a negative. It was necessary for Mr Henderson to point to evidence of facts and circumstances supporting the conclusion that, according to the course of common experience, it was probable that the jewellery was not illegally acquired property. Discharge of the onus was not a mechanical exercise; it required that the primary judge be actually persuaded as a matter of probability that the jewellery was not illegally acquired property.”

Here, Mr Brooks must actually persuade me on the balance of probabilities that the Subject Property was not an instrument of an offence.

32. Proceedings under the POCA are civil proceedings: s 315. In Hart, the plurality, while observing that the applicant for exclusion from forfeiture bears the onus, said (at [7]):

“Proof of those conditions is proof in a State or Territory court invested with jurisdiction under s 314 of the POCA in a matter arising under the POCA and in a proceeding which by force of s 315 is civil to which the Commonwealth is a necessary party. It is proof in an adversarial proceeding conducted in accordance with the civil procedure of that court, including such procedure as exists in that court for the definition of issues between parties. The primary judge and the Court of Appeal were correct in taking the view that, where an application for orders under s 102 proceeds on pleadings, an applicant need not negative possibilities which the Commonwealth does not raise in its defence”. (Footnotes omitted)

Application and Case for the Parties

33. Turning to the application of the law to these proceedings, there are five elements which Mr Brooks must establish to succeed. If they are established, exclusion is mandatory, which is to say I have no discretion to refuse that relief.

34. Mr Brooks has applied by motion for exclusion. There is no issue that Mr Brooks has an interest in the Subject Property, or that the offences for which he has been convicted are “serious offences” within the meaning of the POCA. There is also no issue that his interest was lawfully acquired. I consider that the criteria under s 94(1)(a), (b), (d) and (f) have been established. What remains in issue, as I have adverted to above, is the test under (e) – the relevant part of which is: am I actually satisfied as a matter of probability that Mr Brooks’ interest in the property is not an instrument of unlawful activity?

35. Neither party referred to any case law in this country concerning the application of these provisions in a similar factual context. That is to say, where real property was said to be linked to offences of the type committed by Mr Brooks, namely, transmitting, possessing and accessing child abuse material. Various approaches were urged upon me by reference to the authorities relating to cognate legislation as well as a decision from the United States of America.

36. The decisions of Cini and Director of Public Prosecutions (WA) v White (2010) 41 WAR 249; [2010] WASCA 47 (“White”) both concerned the forfeiture of real property as an instrument of other offending and I will make reference to their facts below.

37. I interpolate here that there was no suggestion on behalf of the Commissioner that Mr Brooks committed some unlawful activity, other than that constituting the index offending involving use of the Subject Property. While it is for Mr Brooks to discharge the onus on this application, I do not consider that requires him to disprove that other unlawful activity took place where no such suggestion arises from the evidence: Hart at [7]. The relevant unlawful conduct, therefore, is the offending described (at [5] above) as the Transmission Offence, Access Offence and Possession Offence.

Mr Brooks’ Submissions

38. Mr Brooks’ ultimate submission is the Cooma Property was “merely the passive location at which [the offences] were committed”: Brooks Written Submissions (“BWS”) [33]. No feature of the Cooma Property specifically aided Mr Brooks in the commission of the offences. Indeed, access to the internet is readily available, or at least generally able to be arranged, at almost all residential premises throughout the Commonwealth of Australia. It was accepted that the Cooma Property did afford Mr Brooks a degree of privacy and security, but these considerations were not sufficient to engage to make the Cooma Property an “instrument”.

The Commissioner’s Submissions

39. The Commissioner urged upon me the approach adopted by the United States Court of Appeals for the Eighth Circuit in United States of America v Larry Richard Hull 606 F 3d 525 (8th Cir, 2010) (“Hull”). The case concerned an application for forfeiture of real property owned by Mr Hull, on which he had committed several offences related to the distribution of child abuse material. There is some overlap in language between the POCA and the relevant statute under consideration in Hull.

40. I would make some observations about the Commissioner’s reliance upon Hull. I accept that, as the High Court has observed, foreign judgments may be of assistance to a court insofar as they have logical or analogical relevance: Momcilovic v The Queen (2011) 245 CLR 1; [2011] HCA 34 at [18] (French CJ). Of course, that is the high-water mark, so to speak, of its capability to influence my reasoning. I would not discard the reasoning of the learned Judges of foreign courts in a common law jurisdiction out of hand, but nor will I slavishly impose their interpretation of statute, apparently cognate or not, onto legislation enacted by the Parliament of the Commonwealth.

41. The logical or analogical relevance in Hull is, to my mind, entirely factual. I do not think that the exegesis on the meaning of the word “instrument” under the applicable American legislation can be more persuasive than the Australian authorities to which I have referred and by which I am bound. I consider Hull’s relevance to be low and therefore its persuasive value to be just as low. Similar facts do not a precedent make.

42. The Commissioner referred to those Australian authorities involving the forfeiture of real property under cognate legislation. In Cini, the offending consisted of the importation of border-controlled substances by a father and son. The drugs had been intercepted by federal law enforcement authorities and an inert substance substituted. After the offenders recovered what they thought were the drugs at their factory, they made a conscious decision to relocate them to their home “to safeguard them against possible theft”: Cini at [54]. In making this decision, they had regard to features of the home which made it a preferred location: Cini at [55]. Those features included secure fencing with a locked gate, a lockup garage and the availability of secure storage containers within the garage. The move better enabled the offenders to store the “drugs” securely and control access to them. The Victorian Court of Appeal held that by these means the offenders had turned the property to their advantage or enlisted it for their unlawful purpose: Cini at [55]; see Chalmers at [81].

43. The Commissioner pointed out that in White, the expression “property is crime-used” was defined, in part, in substantially the same terms as an “instrument of unlawful activity” in POCA. The question of confiscation in White, like Chalmers, arose in the context of a murder case. The victim had been lured to the offender’s property which had been “effectively fortified”: White at [37] (McLure P). The property had high fences and gates, which, at the direction of the offender, were locked after the victim’s arrival for the purpose of detaining him so he would be available when the offender returned later armed with a firearm to confront him. When the offender produced the weapon, the victim attempted to flee by clambering over the fence, which impeded his flight. As a result of non-fatal gunshot wounds inflicted while he climbed the fence during his escape, the victim fell from the fence, landing outside the property, where the fatal gunshot was fired. The Western Australian Court of Appeal found that the real property was used in connection with the commission of a confiscation offence.

44. In support of her contention that the Cooma Property was an instrument of unlawful activity, the Commissioner points to six main features:

45. Mr Brooks lived alone at the Cooma Property.

46. The Cooma Property, in particular the layout of the house and the manner in which Mr Brooks selected the room in which he committed the offences, provided him with the privacy and security necessary for the commission of the offences.

47. Mr Brooks installed security cameras on the Cooma Property, as well as a doorbell camera, providing him advance warning of the approach of any visitors.

48. The exterior cameras could be monitored on a screen in the loungeroom allowing him to evade detection on the approach of visitors.

49. The offences were committed on a desktop computer, which depended on a hardwired connection to the internet to commit the offences.

50. The use of the external USB plugged into the desktop computer, which contained a software program designed to preserve anonymity, tends to support the conclusion that the offences were exclusively committed on the desktop computer.

51. Fundamentally, the Commissioner submits that Mr Brooks “used or employed the unique features” of the Cooma Property in his commission of the relevant offences.

Evidence on the Motion

46. The applicant’s case consisted of three affidavits of Mr Brooks (22 April 2025, 4 September 2025 and 19 November 2025). Mr Brooks was subject to brief cross-examination.

47. The Commissioner read the two affidavits of Mr Ryan James Bull, Special Member of the Federal Police, affirmed 5 March 2025 and 20 March 2026 respectively. Exhibits RJB-1, 2 and 3, containing relevant annexures, were also admitted into evidence. Further, the affidavit of Mr Erico Kusnandar, Special Member of the Federal Police, sworn 23 March 2026 was read, and Exhibit EK-1 was tendered. The Commissioner also tendered the transcript of the examination under s 180 of the POCA, which was in evidence as Exhibit 1. I also had regard to the recording of the walkthrough of the Cooma Property, taken on the day of the execution of the search warrant forming part of Exhibit RJB-1, an additional copy of which was marked as MFI 3.

48. Contrary to what was said at the hearing, I do not think that this is a case that requires detailed factual findings. The underlying facts themselves were largely not in issue between the parties, rather, each party sought to characterise them differently in aid of their case.

Admission of the Brooks April Affidavit

49. During the hearing of this matter, Mr Brooks also sought to read his affidavit of 28 April 2026 (“Brooks April Affidavit”). The Commissioner objected on the basis of a lack of relevance. I rejected that affidavit and reserved my reasons to be given with the substantive judgment, which I now provide.

50. The Brooks April Affidavit only went to the personal consequences for him of failing on this application. The Commissioner rightly pointed out that there was no room for the exercise of discretion in relation to this application. The affidavit may have been relevant to s 48(3) considerations, but it was simply not relevant to any matter in issue between the parties for the purpose of s 94 of the POCA.

51. Mr Brooks relied upon Dixon J’s judgment in Briginshaw v Briginshaw (1938) 60 CLR 336 (“Briginshaw”) to suggest that the consequences of his failure on the application will inform the exactness of proof required.

52. Mr Brooks is the applicant on the motion. As I have already observed, he must discharge the onus. Mr Brooks seeks to wield Briginshaw as a sword; but that is not its effect. It can in no way make it easier for him to discharge his affirmative onus to establish that the Cooma Property is not an instrument of unlawful activity. I therefore rejected the Brooks April Affidavit.

Consideration

53. Mr Brooks invites me to find that the Cooma Property was merely the passive location at which the offences occurred, thereby satisfying the s 94(1)(e) condition that it was not an instrument of an offence. I remind myself that he bears the onus of establishing that the Cooma Property was not an instrument of unlawful activity.

54. In this regard, by reference to considerations like those referred to by Bell J in Henderson (see: [30]-[31] above), the Commissioner argued that I would not accept aspects of Mr Brooks’ evidence and accordingly conclude that he had not discharged his onus of disproving that the Cooma Property was an instrument of unlawful activity. Although there were aspects of Mr Brooks’ evidence, both before me and by reference to the transcript of the s 180 examination, that I found to be unpersuasive, my view of the matter is that questions of proof in this case turn upon objective facts relating to the condition of the property including the installation of security measures, and when that occurred in relation to the period of offending.

55. At the risk of oversimplifying matters, the arguments on behalf of the Commissioner largely reduced themselves to the proposition that Mr Brooks utilised the privacy and security his home afforded him to commit the index offences. While accepting that over the years that Mr Brooks had owned and occupied his home, certain enhancements had been made to the security a person’s home normally affords, it has to be borne in mind that security and privacy are, together with shelter, inherent and foundational attributes of a person’s home. Fittings, such as curtains, locks on doors, doorbell cameras and gates and fencing are all attributes of residential property which, if not universal, are so ubiquitous as to be regarded as the normal features of a dwelling in modern Australia. In my opinion, even external CCTV cameras that may be monitored from within fall into this category.

56. It is critical to take cognisance of the important consideration that the relevant offending occurred during the period between 27 June 2022 and 6 June 2023. It is not in dispute that, as at the time of his offending, Mr Brooks had owned the subject dwelling since 29 March 1993, a period of 30 years. He had purchased the home out of his share of the net proceeds of the sale of his former matrimonial dwelling following his divorce. That former home had been lawfully purchased from the proceeds of a successful action for damages for personal injury suffered in the course of his employment in 1986. Mr Brooks was not in occupation of the Cooma Property between 1995 and 2001, when he was living elsewhere. He resumed occupation in 2001 and remained there as the sole occupant until its sale in 2025. The home was connected to the internet in or about 2007. The HP desktop computer used for the offending was purchased from a retail store on 21 July 2021, together with related accessories. It was purchased as a replacement for or update of those previously used in the home. Mr Brooks was the sole user of this computer. The doorbell camera was purchased and installed at the same time.

57. External security cameras were a gift from Mr Brooks’ son and were installed sometime between 2010 and 2015. Those cameras stopped working in early 2019 and were replaced in July 2019. Two cameras were installed in the loungeroom of the premises. Mr Brooks cannot recall when this occurred. A monitor for the external cameras was installed in the loungeroom of the Cooma Property. Mr Brooks said that he rarely used the monitor and it was not normally turned on: Brooks November Affidavit [14].

58. The dwelling was a three-bedroom house. Mr Brooks utilised one bedroom as his own, a second bedroom on the street frontage for use as a storeroom, and a third bedroom at the rear of the premises was used as a study or home office. The offending computer was installed, connected to the internet and used in this room. It was not possible to view the monitor for the external security cameras from this location, even assuming the monitor was turned on.

59. From the walkthrough video of the execution of the search warrant, I noticed that the Cooma Property was fenced on all four boundaries with a Colourbond fence. I did not regard the fence as particularly high, and it did not seem to me to provide any particular screening, for privacy or security, of the dwelling itself. The driveway gate in the fence was, on this occasion anyway, open, and a vehicle was parked in the opening.

60. Mr Brooks said that he normally left his front door and its external flyscreen door (referred to, in my view, inappropriately, as a ‘security door’) unlocked. It was put to me that I should not accept this evidence given the other security measures in place, including the external cameras and the doorbell camera. However, I did not regard this as inherently improbable, in terms of a residential property in a small country town, where people are often less security obsessed than city dwellers. For the same reason, I did not regard the installation of external security cameras as inconsistent with Mr Brooks assertion about leaving his doors unlocked. I was inclined to accept his evidence that the loungeroom monitor was generally turned off. I accepted his evidence that his front door was, at least often, left unlocked.

61. So far as the active state of the cameras is concerned, Mr Brooks denied on his s 180 examination and in evidence before me that he had seen investigating police approaching on the day of the search warrant on the monitor for the external cameras, notwithstanding saying as much to police more than once on that day. I do not accept his evidence that he was merely joking or being supercilious. However, it does not follow from this that the opposite is true. I do not accept he was monitoring the approach of visitors welcome or otherwise when the police arrived. That would be inconsistent with the consideration that his computer was open when the police entered and there was no apparent attempt to shut it down as one may have expected if alerted to the approach of police. His evidence on this topic may have been inconsistent with his contemporaneous statement, but I do not regard his denial as being critical to the determination of the single question in issue in this case, even giving full weight to the considerations referred to by Bell J in Henderson (see [30]-[31] above).

62. It is apparent to me that Mr Brooks did not give the obvious answer to the question about why he installed the external security cameras when asked. Clearly, they were installed for security, or that is at least the obvious intent one would infer. His response that he had an interest in “gadgets” and having been given them, chose to install them. The Commissioner emphasised that he had replaced them when they failed, and I was asked to accept that his failure to give a clear account should weigh against him on the question of whether he had discharged his onus. While I was surprised that Mr Brooks did not give the obvious answer to a question about his reason for installing the cameras, again, I did not find his failure to give that account significant in the overall scheme of things. There was no challenge to the evidence about when the cameras were initially installed and later replaced, which both were some significant time before the period of offending. Homeowners may install security measures, as I have indicated already, and not diligently utilise them. This, I think, is commonplace.

63. From the walkthrough video, the Cooma Property was somewhat unkempt and did not have the appearance of being “fortified”. I did not regard the location of the “study” as being of any particular moment and I record that the curtains were open during the walkthrough.

64. I am satisfied on the balance of probabilities that the dwelling was the mere passive location of the commission of the offences. I am of the view that none of the measures described for the security of the Cooma Property were specifically turned to Mr Brooks’ advantage or enlisted to his purpose in committing the offences such that it can be said that the property has been used in, or in connection with, the commission of the offences: Chalmers at [81].

65. In coming to these conclusions, I rely upon the dictum in Cini which confirms that the question is one of fact and degree. This can be helpfully understood in light of Doyle CJ’s remarks in George. In resolving the question, the factors that the learned Chief Justice had regard to, namely, the role of the property, the extent to which the property is used, and how much of the property is used, are of great import and favour Mr Brooks position in this case.

66. Fundamentally, I agree with Mr Brooks submission that there was no feature of the Cooma Property which aided the commission of the offences beyond what any other dwelling would afford. Access to the internet in Australia is so ubiquitous that it can hardly be said to be a significant feature of any property, and I did not understand the Commissioner to argue to the contrary. I will now turn to some of the specific matters relied upon by the Commissioner.

67. Pointing to the use of a desktop computer is somewhat, with respect, of a red herring. While I accept, as a practical matter, that this was the only equipment used in the commission of the offences, I have difficulty seeing how this is relevant to a determination of how the Cooma Property, as opposed to the computer, was used. The Commissioner points to the ethernet (wired, as opposed to wireless) connection within the house as being used to commit the offences, and the desktop computer being the only device so connected in the Cooma Property. With respect, neither of these are actually features of the Cooma Property. The computer is an appliance, and how it connects to the internet does not affect its functionality in any meaningful sense here. The fact that Mr Brooks’ internet connection was established through the somewhat antiquated means of a telephone line (itself an appliance) does not mean that a feature of the Cooma Property itself was used in the commission of the offence. The internet connection had been established in this manner since 2007 (when such mode of connection was far more common) and maintained since.

68. A stronger argument on behalf of the Commissioner is that the privacy afforded by the use of the Cooma Property rises to the level of “use” requisite for it to become an instrument within the meaning of the POCA. The problem I have, however, is that privacy is an inherent feature of a home. Indeed, it is one of the very reasons why a person may purchase a home for himself at all. There is nothing special about the Cooma Property in this respect for Mr Brooks to turn to his advantage. It was an ordinary home in all aspects, which had the entirely passive quality of providing privacy.

69. The security apparatus said to enhance the privacy of the Cooma Property consisted of a set of security cameras and a doorbell camera. As I have said, the security cameras were able to be monitored from a device in the living room. There was no evidence that they were, or indeed were capable of, being monitored from another location, particularly, the study which was the location of the offending. While the offending was occurring, therefore, the advanced warning of approach which security cameras might otherwise provide was of no value as they simply could not be monitored from that location.

70. The doorbell camera (which I interpolate here is a common device) was apparently capable of being monitored via an application which could be downloaded onto a mobile telephone. There is nothing in the evidence to suggest that Mr Brooks did so. One would have expected Police responsible for executing a search warrant in the investigation of child abuse material offending involving the internet to have seized and examined his phone. The Commissioner carries no legal onus, but had the application been downloaded onto Mr Brooks’ mobile phone, one might have expected a reference to it in the evidence. The doorbell camera merely shows who is immediately at the door when the bell is rung. Its utility as an early warning device is therefore limited, given the person seeking entry to the home is already at the threshold at the time.

71. The extent to which, and how much, the Cooma Property was used is also a relevant question. Its primary purpose has always been as a dwelling for Mr Brooks, rather than as a place from which to commit the offending. Of course, as the authorities make clear, that is not a determinative factor but is one which was included by Doyle CJ in his Honour’s calculus: George at [65]. In the 32 years of Mr Brooks’ ownership of the Cooma Property, any use related to the offending in spatial and temporal terms is miniscule compared to the extent of its full use for its ordinary purposes.

72. For these reasons, I am satisfied that the Cooma Property, and thus the Subject Property, is not an instrument of unlawful activity. I will grant Mr Brooks relief under s 94 of POCA.

Orders and Stay

73. As I have adverted to above, the Commissioner requested that if I was against her on the motion, then the order be stayed while she considered her position in relation to an appeal. Mr Brooks did not oppose this application.

74. I have canvassed the statutory regime and its operation above, and I will not repeat its effect. The utility of a stay in this case is obvious.

75. I therefore order as follows:

76. The Subject Property is excluded from forfeiture pursuant to s 94 of the Proceeds of Crime Act 2002 (Cth)

77. Order 1 is stayed for all purposes, including s 45(3) of the Proceeds of Crime Act 2002 (Cth), until 28 days from the date of this judgment in order for the Plaintiff have an opportunity to consider the reasons in respect of any appeal that may be made.

78. Each party is to pay its own costs.

Further, with the agreement of counsel, the Court notes:

4. For the duration of the stay referred to in Order 2, the Subject Property will remain in the custody and control of the Official Trustee in Bankruptcy pursuant to s 38 of the Proceeds of Crime Act 2002 (Cth), in accordance with the orders made by me on 2 April 2025.
5. The Plaintiff accepts that if Order 1 is not set aside by the Court of Appeal, the property will not be subject to forfeiture pursuant to s 92 of the Proceeds of Crime Act 2002 (Cth).

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Amendments

19 June 2026

1. General formatting corrections;
2. Paragraph 3 - the word underpins spelt correctly;
3. Paragraph 11 - the word application spelt correctly.