Submissions
35Counsel for Mr Mulder referred to a number of cases as authority for the proposition that it is a question of fact for me to determine whether the property is an instrument of crime. As I indicated at the hearing, I accept that as being uncontroversial.
36For Mr Mulder it was argued that because the funds were only placed in the account after it had been opened, it could not be said that they were themselves used in connection with the offence. Accordingly, pursuant to s 329(2), they were not an "instrument of the offence". But the reasoning in Studman was not in any way dependent upon whether the money standing to credit in the bank account was that which had been deposited upon opening the account or credited subsequently.
37Counsel for Mr Mulder sought to distinguish Studman, submitting that this had already occurred in another case. This was a reference to Caruana v DPP (Vic) [2011] VSC 658. In that case the property in question had been lawfully acquired and had been deposited to a legitimate bank account. The only reason exclusion was refused was because the money was required to satisfy an order made by a sentencing court in criminal proceedings for the payment of compensation. There was no disagreement or criticism of the reasoning in Studman. It may be that confusion arose from the following, at [89] - [90], of Caruana:
In Studman, the appellant deposited legitimately acquired funds in a bank account that he opened in a false name. Section 24(1) of the Financial Transaction Reports Act 1988 (Cth) made it an offence to open an account in a false name. The New South Wales Court of Appeal held that the appellant's right to deal with the monies in the account was derived directly from the commission of that offence.
In my opinion, neither Jeffrey nor Studman has any application to the facts of this case. In both of those cases, the appellant engaged in the impugned transactions and also committed the relevant offences, and this infected the transactions with illegality.
The "relevant offences" refers to the opening of the accounts, not the means by which the funds were originally acquired.
38The point of distinction sought to be made in the present case was that in Studman, the offences giving rise to the restraining order involved the theft from, and defrauding of, the Commonwealth of $365,000. In the present case there was "a lack of [a] foundational crime" (T14.39). I do not see this as a point of distinction at all. It was no part of the reasoning that money in the bank account, or that which was used to acquire the shares, was derived from the offences that gave rise to the making of the restraining order. Indeed, McClellan CJ at CL specifically said (at [41]), "the fact that the money which the appellant deposited may have been lawfully acquired by him is not to the point".
39It was asserted in the submissions for Mr Mulder that in Studman a pecuniary penalty order was available. For that reason alone, an exclusion order under s 29 could not be made: 29(4). Attention was invited to the judgment of McClellan CJ at CL at [7] where his Honour referred to the provisions of s 29(4). It was submitted that it was unnecessary for the Court in Studman to decide the point because the appeal was futile, but that if it had been necessary, it would have concluded that no exclusion was possible for that reason. In the present case there could be no pecuniary penalty order and so that was said to be another point of distinction between the two cases.
40The problem with that submission is that the reference by his Honour at [7] to s 29(4) was only relevant to his later observation (at [34]) that a submission that s 29(4) did not preclude the court from making an order excluding property from the restraining order had been abandoned. The appellant then confined himself to seeking an exclusion order under s 94.
41I was referred to authority for the proposition that legislation such as the PoC Act "requires a strict construction respecting fundamental property rights". I accept that proposition. The point was addressed by McClellan CJ at CL in Studman at [35]. Counsel stressed this point in the context of submitting that Mr Mulder was not "a drug dealer or a person accumulating profits", but rather had "accumulated zero profits from the crime" (T14.48). There was, however, no statutory interpretation issue raised; no point was developed as to how any relevant provision of the PoC Act was ambiguous or uncertain and so should be construed in a manner favourable to Mr Mulder.
42It was also submitted to be relevant that Mr Mulder had been convicted and sentenced for his crime and had served a term of imprisonment. Thus, it was submitted that this case does not serve any of the "principal objects" of the PoC Act as listed in s 5. It is arguable, however, that construing the legislation and deciding the case in the manner for which the AFP contends would serve the objects listed in (a) and (c) of s 5: depriving persons of, inter alia, the instruments of offences and punishing and deterring persons from breaching, inter alia, Commonwealth laws.
43A claim was made that Mr Mulder's brother had an "interest" in relation to a portion of the property and so that portion should be "excised". This argument was based upon the fact that the ANZ Term Deposit account was in the brother's name. The problem with this is that there is no evidence that the brother had an interest (as defined in s 338). The evidence is simply that Mr Mulder deposited money into the ANZ Access Advantage account and then moved it to the term deposit accounts. I am not persuaded that falsely opening a bank account in someone else's name gives that other person an interest.
44Counsel urged that there should be a finding of fact akin to that made by O'Keefe J in DPP (NSW) v King [2000] NSWSC 394; (2000) 49 NSWLR 727. That case involved a question as to whether a boat, upon which it was alleged certain sexual offences had occurred, was not "used ... in connection with, the commission of" such offences. That was part of the definition of "tainted property" in the confiscation of proceeds of crime legislation there being considered which employed the same terminology as used in the definition of "instrument of an offence" in s 329(2) of the PoC Act.
45O'Keefe J reviewed a number of authorities dealing with such a question and concluded (at [33]):
However, the over-arching principle that in my opinion can be extracted from the cases in relation to that part of the statutory definition of tainted property presently under consideration is that some activity connected with the relevant crime must have involved the utilisation or employment of the property with the aim or purpose of committing or furthering the commission of the crime in question.
46His Honour concluded (at [36]) that the boat had not been used in connection with the sexual offences alleged. It was no more than the place where the alleged offences took place. As counsel for the AFP submitted, cases dealing with property that was the physical location at which an offence was committed are not analogous to the present case and do not assist in making a finding of fact as to whether the property in question was "an instrument of an offence".
47For the AFP it was submitted, in effect, that the fundamental flaw in the arguments advanced on behalf of Mr Mulder was a failure to recognise that the property in question is not money, or funds in an account, but a bundle of rights and obligations acquired or derived through the commission of a serious offence; the opening of the ANZ Access Advantage account in a false name. Those rights and obligations arose from the time of opening the account and continued through to the time when there was the transfer of funds to the term deposit accounts. I accept that characterisation of the submissions for Mr Mulder.