Commissioner of the Australian Federal Police v Mulder

Judgment 1HIS HONOUR: This is an application for a forfeiture order pursuant to section 49 of the Proceeds of Crime Act 2002 (Cth) ("the Act"). It concerns funds which were in a bank account that have previously been made the subject of a restraining order. 2An affidavit sworn by Federal Agent Pierre Spano dated 23 November 2012 informs me as follows. 3An account was opened with the Commonwealth Bank of Australia in a false name, Janet Amiria Askin, by the use of a false New Zealand passport. Opening and operating an account in a false name constitutes offences against s 24 of the Financial Transactions Reports Act 1988 (Cth). 4The belief of Federal Agent Spano was that he suspected that a Susan Fisk, whose whereabouts were then unknown, fraudulently obtained a New Zealand passport by assuming the identity of a deceased infant named Janet Amiria Askin and that she used that passport to open and operate the account (and also for international travel). 5The material exhibited to the affidavit includes that a Janet Amiria Askin was born in New Zealand on 9 April 1953 but died some five weeks later on 18 May 1953. That information is derived from New Zealand Births Deaths and Marriages records. 6On 5 February 1986, an application was made for a New Zealand passport in the name of Janet Amiria Askin. It was supported by a birth certificate in that name showing the date of birth of 9 April 1953 as well as two passport photographs. A Mr Horst Baltes certified one of those photographs as being a true likeness of Janet Amiria Askin. The passport was issued in that name on 27 February 1986. 7Documents obtained from the Commonwealth Bank of Australia by the Australian Federal Police showed that the account was opened on 4 April 1990. The false New Zealand passport was used as an identification document. The amount of $162,374.05 stood to the credit of the account as at 2 April 2004. There were subsequent deposits and withdrawals but there had been no activity on the account since 18 October 2007. As at 20 September 2012 the balance of the account was $160,729.25. 8The affidavit includes reference to other matters not presently relevant, but it does include information to the effect that the whereabouts of Janet Amiria Askin was then unknown. It also includes that the deponent believed that the true name of the person who purported to be Janet Amiria Askin was Susan Fisk, a person born in around 1942 in the United States of America. 9An application for a restraining order was made to Simpson J on 26 November 2012. On 27 November 2012, her Honour made orders including a restraining order pursuant to s 19 of the Act and an order pursuant to s 38 that the Official Trustee in Bankruptcy take custody and control of the funds in the account: The Commissioner of the Australian Federal Police [2012] NSWSC 1533. 10Her Honour was concerned amongst other things with a necessary question as to whether Federal Agent Spano had reasonable grounds for his suspicion that the funds standing to the credit of the account were "proceeds of an indictable offence" (s 19(1)(d)(i)). Her Honour referred to Studman v Director of Public Prosecutions (Cth) [2007] NSWCA 285; (2007) 177 A Crim R 34. Her Honour concluded that she was not satisfied that there were reasonable grounds to conclude that the funds in the account were proceeds of crime. However, her Honour was satisfied that there were reasonable grounds for a suspicion that they were an "instrument of serious offence" (s 19(1)(e)(ii)) and accordingly made the orders that were sought. 11Certain matters set out in the legislation about the making of a forfeiture order need be noted. First, an application for such an order may be made by a "proceeds of crime authority": s 59. The Commissioner of the Australian Federal Police is such an authority: definition in the dictionary in s 338. 12The power of the Court to make a forfeiture order relied upon by the Commissioner was that found in s 49: Forfeiture orders--property suspected of being proceeds of indictable offences etc. (1) A court with proceeds jurisdiction must make an order that property specified in the order is forfeited to the Commonwealth if: (a) the responsible authority for a restraining order under section 19 that covers the property applies for an order under this subsection; and (b) the restraining order has been in force for at least 6 months; and (c) the court is satisfied that one or more of the following applies: (i) the property is proceeds of one or more indictable offences; (ii) the property is proceeds of one or more foreign indictable offences; (iii) the property is proceeds of one or more indictable offences of Commonwealth concern; (iv) the property is an instrument of one or more serious offences; and (e) the court is satisfied that the authority has taken reasonable steps to identify and notify persons with an interest in the property. (2) A finding of the court for the purposes of paragraph (1)(c): (a) need not be based on a finding that a particular person committed any offence; and (b) need not be based on a finding as to the commission of a particular offence, and can be based on a finding that some offence or other of a kind referred to in paragraph (1)(c) was committed. (3) Paragraph (1)(c) does not apply if the court is satisfied that: (a) no application has been made under Division 3 of Part 2-1 for the property to be excluded from the restraining order; or (b) any such application that has been made has been withdrawn. (4) Despite subsection (1), the court may refuse to make an order under that subsection relating to property that the court is satisfied: (a) is an instrument of a serious offence other than a terrorism offence; and (b) is not proceeds of an offence; if the court is satisfied that it is not in the public interest to make the order. 13The matters in s 49(1)(a) and (b) are clearly established. The matter in s 49(1)(c) may be disregarded because it does not apply: s 49(3). 14As to the matter in s 49(1)(e), Mr McCarthy, counsel for the plaintiff, has candidly conceded that there may be an issue and that if I was not satisfied that reasonable steps had been taken, I could make directions as to further steps that should be taken. However, having regard to the material in the further affidavit of Federal Agent Spano of 23 September 2013, I am satisfied that this requirement has been satisfied as well. In this regard I have taken particular note of the fact that there has been no activity on the account since October 2007 and that officers of the bank have reported that no-one (apart from the Australian Federal Police) has even made an inquiry about the account. I am satisfied that all reasonable steps to locate the person who is thought to have opened and operated the account have been taken. 15There is a question as to the construction of s 49(4). On one view, it may be that the Court could refrain from determining the issues posed in paragraphs (a) and (b), thereby denying itself a discretionary basis for refusing to make the order. An alternative view is that the Court is required to consider the matters in those paragraphs and then consider whether the discretion is enlivened. 16In my view, based on what was said in Studman and also what I said in Commissioner of the Australian Federal Police v Mulder [2013] NSWSC 993, that it is clearly the case that the funds which stood at credit in the bank account in question were the instrument of a serious offence. Further, there is no basis to think that they were an instrument of a terrorism offence. 17As to the question of whether the funds standing to the credit of the account were "proceeds of an offence", Studman supports the view that they were, whereas the reasoning of Simpson J in The Commissioner for the Australian Federal Police suggests otherwise. 18However, in the circumstances of the present application, I do not need to concern myself with this issue of statutory construction. And it is preferable that I do not express any concluded view because there is no contradictor. If I am satisfied that the funds in the account were the proceeds of an offence, I would not have the discretion in s 49(4) to refrain from making the order. If I was satisfied that they were not the proceeds of an offence, I would then have to consider whether it is not in the public interest to make the order. And there is no basis that I can see for my being satisfied that it is not in the public interest to make the order. Accordingly, whatever view I take of the "proceeds of offence" issue, the result is the same. 19Given my satisfaction of the matters in s 49(1), I propose to make the orders sought.