Commissioner of the Australian Federal Police v Nguyen

Judgment - ex tempore 1HER HONOUR: These are proceedings under the Proceeds of Crime Act 2002. The proceedings were commenced by the Commissioner of the Australian Federal Police on 21 December 2012 when restraining orders were made ex parte. Upon service of the originating process on the defendants, they moved the Court for an order pursuant to s 5(2)(b)(iii) of the Jurisdiction of Courts (Cross-Vesting) Act 1987 to have the proceedings transferred to the Supreme Court of Queensland. This judgment determines that application. 2The motion was referred to me as duty judge. In that context, I should record that I proceeded to hear the motion over the opposition of the Commissioner, who submitted that it should rather have been referred to the list clerk for a special fixture. Upon enquiry of counsel for the Commissioner, I ascertained that he considered there was no evidence the Commissioner would wish to adduce on the application and that he (counsel) was ready to argue the matter. Accordingly, given the short estimate for the hearing (approximately one hour), I considered it appropriate to proceed to hear the motion as referred by the registrar. 3The circumstances in which the application is made are as follows. The second defendant is a Vietnamese national who lives in Vietnam. The first defendant is his son, who is presently aged 17. The Commissioner's application arose from the detection by AUSTRAC of numerous deposits of less than $10,000 into four bank accounts held in the names of one or other of the defendants. The structure of the deposits gave rise to a suspicion on the part of an authorised officer within the meaning of the Proceeds of Crime Act (Special Member Dominico Rositano) that there may have been committed by some person unknown an offence or offences against the Anti-Money Laundering and Counter-Terrorism Financing Act 2006. Section 142(1) of that Act provides: Conducting transactions so as to avoid reporting requirements relating to threshold transactions (1) A person (the first person) commits an offence if: (a) the first person is, or causes another person to become, a party to 2 or more nonreportable transactions; and (b) having regard to: (i) the manner and form in which the transactions were conducted, including the matters to which subsection (3) applies; and (ii) any explanation made by the first person as to the manner or form in which the transactions were conducted; it would be reasonable to conclude that the first person conducted, or caused the transactions to be conducted, in that manner or form for the sole or dominant purpose of ensuring, or attempting to ensure, that the money or property involved in the transactions was transferred in a manner and form that would not give rise to a threshold transaction that would have been required to have been reported under section 43. Penalty: Imprisonment for 5 years or 300 penalty units, or both. 4Special Member Rositano swore an affidavit in support of the application deposing to the grounds for his suspicion as to the commission of offences against that section or alternatively against s 400.9(1) of the Criminal Code. The Court evidently being satisfied in the terms of s 19 of the Act, the making of a restraining order in respect of the funds held in the four accounts was mandated by the Act. Significantly for present purposes, the Act has been construed as enabling such an order to be made without identifying any particular offender (see s 19(4) of the Act) and that was the position in the present case. 5So far as the affidavit of Special Member Rositano reveals, the evidence available to the Commissioner at this stage of the investigation is based principally, if not solely, on bank records and information pertaining to those records obtained from the relevant bank. 6The basis for the application to have the proceedings transferred to the Supreme Court of Queensland relates primarily to the interests of the first defendant who, as I have already indicated, is a child. He defends the proceedings through a tutor, a solicitor based in Brisbane. The application was supported by an affidavit by the second defendant deposing to the impact of the commencement of the proceedings on the first defendant. He is a student who has come from Vietnam to Australia on a student visa to attend high school in Brisbane at John Paul College, Daisy Hill. Whilst in Queensland, he resides with an Australian family as part of a "home stay" arrangement. 7Both defendants were in Vietnam when notification of the present proceedings was received by them. The second defendant has deposed to the fact that his son, the first defendant, became very anxious about the proceedings and concerned that he would not be allowed to return to Australia to complete his high school education. Separately, the second defendant states that neither of the defendants has good English and that they have rested heavily in the defence of the proceedings on interpreters to gain an understanding of the allegations against them. The contents of the affidavit were not opposed or contested on behalf of the Commissioner. 8The application is opposed by the Commissioner on two grounds. First, it was submitted, perhaps curiously out of the mouth of the Commissioner, that Queensland Supreme Court does not have "proceeds jurisdiction" within the meaning of the Proceeds of Crime Act in respect of the present matter. In the alternative, it was submitted that, even if that Court does have proceeds jurisdiction under the Act, it is in any event not in the interests of justice for the proceedings to be transferred to that Court. 9As to the first contention, I accept that it would not be in the interests of justice for this Court to transfer proceedings to a Court that did not have proceeds jurisdiction within the meaning of the Act. That issue falls to be determined in accordance with s 335 of the Act, which relevantly provides: 335 Proceeds jurisdiction (1) Whether a court has proceeds jurisdiction for an order, other than a *preliminary unexplained wealth order or an *unexplained wealth order, depends on the circumstances of the offence or offences to which the order would relate. General rules (2) If all or part of the conduct constituting an offence to which the order would relate: (a) occurred in a particular State or Territory; or (b) is reasonably suspected of having occurred in that State or Territory; the courts that have proceeds jurisdiction for the order are those with jurisdiction to deal with criminal matters on indictment in that State or Territory. (3) If all of the conduct constituting an offence to which the order would relate: (a) occurred outside *Australia; or (b) is reasonably suspected of having occurred outside *Australia; the courts that have proceeds jurisdiction for the order are those of any State or Territory with jurisdiction to deal with criminal matters on indictment. Offender not identified (4) If: (a) the order would, if made, be: (i) a *restraining order under section 19 that relates to an offence committed by a person whose identity is not known and that is not based on a finding as to the commission of a particular offence; or (ii) a *forfeiture order under section 49 that is not based on a finding that a particular person committed any offence and that is not based on a finding as to the commission of a particular offence; and (b) the property to which the order would relate is located in a particular State or Territory; despite subsections (2) and (3), the courts that have proceeds jurisdiction for the order are those with jurisdiction to deal with criminal matters on indictment in that State or Territory. (5) If: (a) the order would, if made, be: (i) a *restraining order under section 19 that relates to an offence committed by a person whose identity is not known and that is not based on a finding as to the commission of a particular offence; or (ii) a *forfeiture order under section 49 that is not based on a finding that a particular person committed any offence and that is not based on a finding as to the commission of a particular offence; and (b) the property to which the order would relate is located outside *Australia; despite subsections (2) and (3), the courts that have proceeds jurisdiction for the order are those of any State or Territory with jurisdiction to deal with criminal matters on indictment. 10It was submitted on behalf of the defendants that the Queensland Supreme Court has proceeds jurisdiction because all of the conduct constituting the offence to which the orders would relate occurred outside Australia and, accordingly, that, in accordance with subs 335(3), any court within Australia that has jurisdiction to deal with criminal matters on indictment would have proceeds jurisdiction in the present proceedings. There was, however, a measure of tension between that submission and a separate submission relied upon on behalf of the defendants relating to conduct constituting the offence which occurred in the State of Queensland, namely, the fact that the four bank accounts into which each of the deposits was allegedly made were opened by one or other of the defendants in the State of Queensland. I do not accept that all of the conduct constituting the offence to which any orders under the Act would relate occurred outside Australia. 11In my view it is clear enough, however, that the Queensland Supreme Court has proceeds jurisdiction on the basis of subs 335(2). Some of the submissions on behalf of the Commissioner appeared to proceed on the untested premise that the Act creates a binary system of jurisdiction in which the courts of either one State or another, but not both, has proceeds jurisdiction in any particular matter. That is not the position according to a plain reading of the section. The section provides that if all or part of the conduct constituting an offence to which the order would relate either occurred in a State or is reasonably suspected of having occurred in a State, the courts that have jurisdiction to deal with criminal matters in that State have proceeds jurisdiction within the meaning of the Act. It follows that in a case where parts of the conduct constituting an offence occurred in several states across the country, the courts of each of those States would have proceeds jurisdiction. 12That broad interpretation of the section is consistent with the objects of the Act, which reveal a clear intention on part of Parliament that the Act should have broad reach in providing a system for depriving offenders against laws of the Commonwealth of the proceeds of their offending and further providing for the confiscation and forfeiture of such assets. As I have already observed, in my view it was a curious position for the Commissioner to find himself in to be arguing for a narrower reach of the Act than seems to me to arise on a plain reading of s 335. 13It was common ground that the relevant accounts were opened in Queensland. Contrary to the submissions put on behalf of the Commissioner, I do not have any difficulty accepting that the opening of the accounts is part of the conduct constituting the offence to which the order would relate. The Commissioner noted that opening an account is not an element of an offence under s 142 but that is not the test. Nothing in the text of the Act suggests that proceeds jurisdiction should be so narrowly construed as to require that one of the elements of the offence occurred in the relevant State before the courts of that State could have proceeds jurisdiction. 14It follows, in my view, that it would be open to this Court to transfer the proceedings to the Supreme Court of Queensland, subject to the defendants satisfying the test under the cross-vesting legislation. 15The principles to be applied in determining that issue were summarised by me in a decision relied upon by the defendants in Reid v Wright [2012] NSWSC 1149 at [5] to [13]. Importantly for present purposes, and contrary to a submission put on behalf of the Commissioner (in fairness, in the circumstances to which I have already referred of his feeling a bit rushed on in the hearing of the application), no particular significance attends the plaintiff's choice of forum. The task for the Court is to consider all of the circumstances brought forward in respect of the application to determine whether one court or another is more appropriate. As stated by Brereton J in Valceski v Valceski [2007] NSWSC 440 at [70], if one court is more appropriate than the other, however so slightly, a transfer to the more appropriate court is mandatory. 16Turning to the interests of justice and the matters relied upon by the parties in that respect, as already stated, the defendants relied principally upon the interests of the first defendant, who is a child. I accept without equivocation that that is a strong consideration. In particular, I note that the Commissioner in his written submissions foreshadows that, wherever the proceedings are heard, the next steps in the proceedings may include an application by the Commissioner for examination of each of the defendants under ss 32 and 180 of the Act. 17In my view, the prospect of bringing an anxious 17 year old student from the city in which he is currently receiving his education, which is not the city of his home and upbringing, for the purpose of being examined in proceedings such as the present is a difficult one. 18Against that, the Commissioner submitted that, since the majority of the relevant conduct took place in New South Wales, the Court can infer that the majority of the evidence is available in this State. The basis for that submission appears to be the fact that the bank records on the strength of which the proceedings were commenced record a series of deposits described as "cash deposits" which include references to particular branches of the Commonwealth Bank. 19Mr Peters, who appeared for the defendants, stated from the bar table (although there was no evidence to support it) that the true position is that deposits were transferred from various accounts into the defendants' bank accounts using the internet and that that occurred in Vietnam. It was implicit, if not explicit, in his submissions that no person at any point attended any of the individual branches referred to in the bank statements to deposit cash. 20Whether or not that is the case will have to be determined at a future point, if that becomes an important question of fact in any subsequent proceedings. It is impossible for me at this stage to discern the reliability of the proposition put forward. I would note, however, that it was clear from the way in which the application was conducted on behalf of the defendants and the fact that they have put on an application to exclude property from the restraining order that the fate of the present proceedings is unlikely to turn on the identity or conduct of individual persons attending various branches of banks in the state of New South Wales. Rather, it would appear likely that the majority of the evidence the Commissioner would seek to rely upon in the proceedings will be the combination of bank records, which can be produced anywhere; perhaps some expert evidence of a relevant employee of the bank to explain the appearance of those records, which again could be given by a person from any State; and the examination of the defendants, which they would prefer happen in the State of Queensland. 21All of those considerations, and in particular the force of the interests of the first defendant as a child, lead me to the conclusion that the Supreme Court of Queensland is, on balance, the more appropriate court to determine the proceedings. It follows that I must make the order sought. 22For those reasons I make order 1 in the notice of motion filed by the defendants on 13 February 2013. 23I make no orders as to costs.