Commissioner of the Australian Federal Police v Tjongosutiono

Discussion

1. Section 330(4) draws attention to four elements that call for consideration with respect to the restrained property in applications such as the present. The elements, with respect to the restrained property, are that it was: 1. relevantly acquired (acquisition test), 2. by a third party (third party test), 3. for sufficient consideration (sufficient consideration test), and 4. in circumstances that would not arouse suspicion that the property was proceeds or an instrument of an offence.
2. Recent cases decided by the High Court have clarified how these elements are to be identified in circumstances similar to those in this case. However, in this context, the Commissioner correctly emphasised what the High Court recently said in Lordianto v Commissioner of the Australian Federal Police (2019) 266 CLR 237; [2019] HCA 39 at [8]: "[8] As these reasons will show, the issues in these appeals require consideration of four issues affecting the construction and application of s 330(4)(a) - what is the 'property' restrained by the order which a person seeks to have excluded from that order; how is the reference to 'a third party' to be understood; did the applicant for an exclusion order acquire the property 'for sufficient consideration'; and was the property acquired in circumstances that would not arouse a 'reasonable suspicion' that the property was proceeds of an offence or an instrument of an offence. As these reasons will also show, none of these issues can be considered in isolation. Section 330(4)(a) must be construed and applied as a whole and in light of the operation of the POCA as a whole."

Mr Tjongosutiono's evidence

1. Mr Tjongosutiono relied on two affidavits sworn on 19 March 2016 and 13 November 2020. His evidence about the transfer of funds to his Westpac account was given at paragraphs [41]-[56] of his 19 March 2016 affidavit as follows: "Dealing with Wisman: the process 41. I set out above … why I first used Wisman's services, and the benefit of doing so compared to transferring the funds through a bank in Indonesia. 42. I detail below the process involved in dealing with Wisman from the placement of the order through to receipt of the funds. I do so as I have read the Affidavit of Federal Agent Roberts sworn 8 October 2015 which contends that there were irregularities in the way in [which] those transactions were conducted. I reject those assertions. First step - placement of the order 43. As a first step, I telephone Andy. I only ever spoke with Andy. My work as a stockbroker is very busy and is usually conducted almost exclusively over the telephone. My conversations with Andy are generally along the following lines: Me: 'Andy, I need [say, AUD50,000] today, can you do that?' Andy: 'OK, the rate for that today is [the rate] - are you happy with that?' Me: 'Yes, that's ok, thanks' Andy: 'OK, well, please send [the amount] to my [CIMB/BCA] account and I will transfer the money to your account'. 44. As far as I am aware, Andy maintained two accounts for his business; one at CIMB and another at BCA. When Andy and I had agreed to an exchange rate for a deal, Andy would ask me to deposit the funds into one of those two accounts. That suited me as I also banked with CIMB and there was no charge for inter-bank transfers. 45. I would attend my local CIMB branch to make those transfers to Andy as opposed to using internet banking, for the following reasons: a. I have not registered for CIMB online banking service but prefer to use the printed bank book; b. I do not feel comfortable using the online system to transfer money to third parties; c. There is a CIMB branch office conveniently located near my office. It is a small branch. When I attend the branch to make the transfers to Wisman, if I needed to transfer in excess of IDR500,000,000.00 (ie AUD50,000.00), I would often have to make numerous transfers of lower amounts as the branch's policy limit [sic] each transaction to a maximum of IDR500,000,000.00, otherwise I have to wait at the branch for over one hour for the bank's head office to approve the transaction. I usually would make multiple transfers (when required) as I am busy at work and do not have the time to wait at the bank. For example, if I needed to transfer the equivalent of AUD200,000, I might make four transfers of AUD50,000 rather than waiting for the approval. 46. Appearing at pages 15 to 26 of JT-1 is a copy of my CIMB account statement for account ending #115, #185 and #189. The references in the bank statements to 'Dari' is Indonesian for 'from' and the reference to 'Ke' is Indonesian for 'to'. Appearing at pages 27 to 32 of JT-1 are copies of transactions made by my employer to Wisman from my commission payments under my instruction. Second step - confirmation of the transfer to Wisman 47. Once the transfer had been completed, as a next step I would telephone Andy to let him know that I had made the transfer. On that second call, Andy and I would have a brief conversation to confirm the deposit in words to the effect: Me: 'Andy, the money has just been deposited'. Andy: 'OK, thanks. Which of your accounts would you like your money to be sent to?' Me: 'Please send it to [account number]'. Andy: 'OK, [account number]. Well, that should take [days] to transfer'. Me: 'OK, thanks for your help, I will check then'. 48. Each time, Andy made sure to confirm the account number for my account; the destination account. In about 2013, I had two accounts with Westpac and I opened another account in 2014 (until May 2015 when I received notice that they were going to close my Westpac accounts, as detailed in paragraph 85 below): a. an 'e-Saver'; b. a 'Choice'; and c. a 'Reward Saver' (opened 2014). 49. The difference between the accounts as mentioned in paragraph 48(a)-(b) was that the 'e-Saver' account accrued more interest than the 'Choice' account which was more of an everyday transaction account. In 2014, I opened another account (Reward Saver) upon the advice of Westpac as that offered an even higher rate than the other two. I recall that one of the first occasions that I used Wisman for a transfer of funds to Australia, I provided Andy with the account numbers. Since then, I would normally only confirm with Andy the final 3 digits of the account I wanted my money to be transferred to. I would choose between the accounts randomly, and transfer between the accounts online at a later stage. Third step - confirmation of the transfer from Wisman to me 50. As set out above at paragraph 47, Andy would generally tell me that the funds would be available in my account in between 3 - 7 days. In my experience with Wisman, if the amount of the transfer was at or below the equivalent of AUD20,000.00, Andy would usually tell me that the transfer would take a few days. If, on the other hand, the transfer was AUD50,000.00 or more, I would normally be told that the transfer would take up to 7 days. Fourth step - confirmation of the receipt of the funds from Wisman 51. Once I had let Andy know that the funds were being transferred to him, I would generally not hear from him again until our next transaction. There was no need to do so. I would check my Westpac accounts online only after the time that Andy had suggested. I did not see any point in checking prior to that time. 52. When I did check the account, I would only check the 'home screen' which displays the balance. From that page, I knew immediately whether or not the deposit had or had not been made. I cannot recall an occasion when the money was not transferred within the time period specified by Andy. 53. Appearing at page 33 of JT-1 is a copy of a screen shot taken by my solicitor on 7 March 2016 of the Westpac home screen. 54. As my Westpac accounts were not my day-to-day accounts but investment accounts, I was generally aware of their balances at any given time. Unlike my day-to-day accounts, my Westpac accounts were dormant other than for the occasional deposits for investment purposes. To illustrate the point, if, for example, I knew my Westpac account had a balance of AUD100,000 and a deposit was 'inbound' of AUD50,000, I would simply check the account balance on the home screen to ensure that after the time nominated by Andy the balance was AUD150,000. Based on the Affidavit of Mr Roberts, I am now aware of the 'structuring' activity into my accounts - at no stage was I aware that funds were being deposited in an incremental way. 55. All that I was aware of was the balance of the accounts. I was only concerned to know that the money had been transferred. As I have mentioned, I would check the balance on the home screen only. The home screen does not display any detail of the transactions. From time to time I might also use the transfer function to send funds deposited by Wisman into my 'Choice' account into 'e-Saver' account. I did this as I wanted to take advantage of the higher interest rate paid by the bank in the 'e-Saver' account. The transfer page similarly does not display any detail of the account other than the balance. Appearing at page 34 of JT-1 is a screenshot of the 'transfer page' of my Westpac accounts taken by my solicitors on 7 March 2016. Fifth step - Wisman receipt 56. In the period between the placement of the order with Andy and the later receipt of the funds, Andy would send me receipt in respect of the transfer. It was on Wisman's letterhead, always in the same form and included the date, the amount of the transfer and the exchange rate. Appearing at pages 35 to 85 of JT-1 is a copy of the Wisman receipts."
2. Mr Tjongosutiono was cross-examined on his evidence. Some of this is referred to later in these reasons.

Discernment

1. It is convenient to deal with this application by reference to the so-called tests that appear from the terms of s 330(4)(a) of the Act.

The acquisition test

1. The decision of the High Court in Lordianto confirmed that an amount of money standing to the credit of a bank account could be an "acquisition" of property for the purposes of s 330(4)(a) of the Act. For example: "[67] … The appellants did not contend that they had an interest in, or sought to exclude, the cash that had been deposited to the credit of the Australian accounts through the cuckoo smurfing. The appellants did not acquire the cash or deposit that cash. The banks acquired the benefit of those deposits. Following each deposit to the credit of their bank accounts, the appellants acquired from the relevant bank an interest, in the sense of a 'right' or 'power' within the meaning of the word 'interest', in connection with their respective choses in action. It was because that interest in the restrained property (the choses in action) was said to be acquired in the circumstances specified in s 330(4)(a) that the appellants in each case made applications for exclusion orders of their property."

Conclusion

1. The facts in the present case are not relevantly different. Subject to the consideration of s 330(4)(a) as a whole, the Commissioner did not dispute that the acquisition test was satisfied.

The third party test

1. Consideration of who is or may be a third party for the purposes of s 330(4)(a) was given by the High Court in Lordianto commencing at [93] and [94] in these terms: "[93] Section 330(4) is a provision which identifies when property ceases to be proceeds, or an instrument, of an offence. Property only ceases to be proceeds or an instrument, under s 330(4)(a), if it is acquired by a third party for sufficient consideration without that party knowing, and in circumstances that would not arouse a reasonable suspicion, that the property was proceeds, or an instrument, of an offence. A 'third party' is a person who satisfies s 330(4)(a). [94] That the phrase 'third party' is no more than a descriptor of a person who satisfies s 330(4)(a) is reinforced by the fact that the alternative constructions proffered were contrary to the scheme of the POCA, or unworkable, or both. First, the appellants' contention that 'third party' refers to someone who is not a party to, and is not criminally responsible for, the criminal offence or offences in question and who satisfies the other requirements of s 330(4)(a) finds no basis in the text of the provision."

Conclusion

1. Although I must confess to some difficulties with that analysis of who is or might be a third party for the purposes of the provision, I do not understand it to be an issue in these proceedings that Mr Tjongosutiono met the description of a third party for present purposes.

The sufficient consideration test

1. In Lordianto, the High Court considered the question of whether an applicant had acquired property for sufficient consideration: "[69] Having identified the property and determined that the property is proceeds, or an instrument, of an offence, the next step is to determine whether the applicant for the exclusion order acquired that property for sufficient consideration. That necessarily directs attention to the circumstances in which the property was acquired by the applicant as well as the balance of s 330(4)(a) - whether the applicant did not know, and in circumstances that would not have aroused a reasonable suspicion, that the property was proceeds, or an instrument, of an offence. In its terms, the test is objective. [70] As seen earlier, 'an acquisition or disposal of property is for sufficient consideration if it is for a consideration that is sufficient and that reflects the value of the property, having regard solely to commercial considerations'. Aspects of that definition should be noted: the consideration must be sufficient and reflect the value of the property and, in assessing both of those matters, the court is to have regard solely to commercial considerations. [71] That inquiry, and analysis, are self-evidently not undertaken in some vacuum divorced from the circumstances in which the applicant acquired the property. As the text of s 330(4)(a) indicates, the focus must be upon what the applicant paid to acquire the property and in what circumstances. The objective inquiry is directed at identifying what the applicant acquired and how, what were the form and amount of the consideration the applicant provided, and when and how that consideration was provided. That list is not exhaustive. It cannot be exhaustive: the analysis of whether the acquisition by the applicant was for sufficient consideration forms part of an assessment of whether the circumstances of that acquisition (which must at least include the facts and matters just identified) would not have aroused a reasonable suspicion that the property was proceeds, or an instrument, of an offence."
2. The Commissioner contended that although Mr Tjongosutiono alleges that he provided funds to a money changer in Indonesia, he has failed to prove that the funds deposited into his eSaver account were in consideration for the funds so provided and he has failed to prove the terms of any contract with the money changer. When examined pursuant to s 180 of the Act, Mr Tjongosutiono accepted that he did not know whether the money given to the money changer was the money that was deposited into his account. The Commissioner submitted that the evidence does not otherwise demonstrate or establish a connection between the funds allegedly provided to the money changer and the funds deposited into his eSaver account. The "surprising" concession made by the Commissioner in Gwe v Commissioner of the Australian Federal Police [2020] NSWCA 247 at [53] was not made here. The Commissioner submitted that the "absence of detailed evidence from [Mr Tjongosutiono] setting out and documenting all of the amounts transmitted to the money lenders in Indonesia and detailing a broad equivalence, after allowing for fees and exchange rate erosion, with the amounts deposited into the Westpac accounts" meant that he had failed to discharge his onus of proving that the acquisition was in consideration of the funds outlaid.
3. The Commissioner submitted further that Mr Tjongosutiono's evidence did not demonstrate, "let alone establish", a connection between the funds allegedly provided to the money remitter and the funds received into the eSaver account. The Commissioner contended that an "absence of probative evidence in this regard points to a failure by [Mr Tjongosutiono] to discharge his onus of proving that the acquisition was in consideration for the funds outlaid". The Commissioner drew attention in this context to what was said by Bell P in Gwe at [52]-[54]: "[52] It was accepted by the Commissioner that, at least for the purposes of the appeal, all of the moneys that found their way into the Westpac accounts and the Zetland Properties derived from payments made by the Applicants to the two Indonesian money lenders, to whom reference has already been made. This was said to be reflected in the unchallenged finding by the primary judge at [135] that: 'In the circumstances of this case, the defendants/applicants transferred money to money-changers. From that money was deducted a commission for the service of "transferring" the money. The money was to have been transferred into the Westpac accounts and, ultimately, was.' It was also clarified in the following portion of the transcript in the course of the hearing of the appeal: 'BATHURST CJ: Why don't we proceed then on the basis that the primary judge apparently found that there was consideration but, incorrectly, that it was temporally defective, if I can put it on that basis, and this case really turns and falls on reasonable suspicion and nothing else in the absence of a notice of contention? MOSES: Yours Honours would be surprised to hear that I absolutely agree with what your Honour has said. We say we win on that ground in any event, but your Honour is pushing on an open door with me on that. BATHURST CJ: I want to be precise about this. You don't wish to contend that the moneys that went into the accounts were other than having a causal connection with the moneys paid by Mr Walker's clients to the moneychangers in Indonesia? MOSES: Your Honours can proceed on that basis and Mr Walker is absolutely correct as to the battleground in respect of the way in which this appeal has been prepared by the parties and to be conducted by the parties.' [53] This concession might be thought to have been surprising given the apparent absence of detailed evidence from Ms Hoang at first instance setting out and documenting all of the amounts transmitted to the money lenders in Indonesia and detailing a broad equivalence, after allowing for fees and exchange rate erosion, with the amounts deposited into the Westpac accounts. It is not for this Court, however, to second-guess the making of concessions by Commonwealth entities represented by experienced counsel and to proceed, in the absence of a Notice of Contention and in light of the concession, other than on the basis that consideration had been furnished for all of the property that was the subject of the freezing orders. [54] This concession, together with the concession in relation to the consideration issue (see [14] above), meant that what had been the principal issue before the primary judge was the sole issue in this Court, namely, the question whether the frozen property was acquired by the Applicants in circumstances that would not arouse a reasonable suspicion that the property was proceeds of an offence."
4. It is perhaps unsurprising that the same benign, not to say benevolent, approach did not find a place in the present proceedings.
5. It was submitted by Mr Tjongosutiono that his evidence was sufficient to establish that he was not a volunteer with respect to the property sought to be excluded. He submitted that the evidence established that he paid valuable consideration at the time of instructing Wisman to transfer the funds to Australia. The consideration was not in the form of cash or any physical payment in the conventional sense of the word: it took the form of a financial benefit that was received by the remitter from transferring the funds making use of the differences in exchange rates. Mr Tjongosutiono emphasised the discussion in the High Court in Lordianto at [70]-[71], and also at [78] and [82] as follows: "[78] Once the property in a bank account is properly identified and it is recognised that the value credited to another account is not the property that was deposited, many of the submissions about what was necessary in order for an applicant for an exclusion order to demonstrate that they have provided 'sufficient consideration' for the acquisition of an interest in connection with their chose in action in a bank account must be rejected. … [82] Thus, as Buss P recognised in Kalimuthu, the consideration must be by way of exchange but may not be direct. It may be sufficient if the applicant for an exclusion order can demonstrate that there was a connection, or series of connections, between the provision of the consideration by them and the acquisition of the property by them that they seek to have excluded. What the necessary connection or connections might be is as varied as the nature of property itself."
6. Mr Tjongosutiono contended that I should accept that in the course of the transfer of funds to Wisman, some part of those funds was taken as exchange funds amounting to consideration for the transfer.

Conclusion

1. I am satisfied that Mr Tjongosutiono has demonstrated that he provided valuable consideration in the form of the price levied by Andy for the provision of services in remitting the money provided to him by Mr Tjongosutiono to his Westpac account.

The reasonable suspicion test

1. By far the most controversial aspect of the s 330(4)(a) calculus in the present case is the issue of whether the property in question was acquired in circumstances that would not arouse suspicion that it was the proceeds or an instrument of an offence. That in turn gives rise to the question of what precisely are the circumstances to which regard must be had in deciding that issue. By reason of the fact that Mr Tjongosutiono, by his counsel, uncontroversially conceded what might flow from an actual knowledge that structured deposits were made to his account, the focus of the present inquiry became whether Mr Tjongosutiono knew in fact that such deposits had been made or whether the circumstances that were known to him would not arouse a reasonable suspicion that the property was the proceeds or an instrument of an offence.
2. It is important before proceeding to record the details of the concession to which I have just referred. At the end of the first day I asked Mr Chapman a series of questions, as the following extract from the transcript reveals: "HIS HONOUR: Thank you. Mr Chapman, just out of interest, I know the evidence to which cross-examination is being directed at this stage goes to the question of whether or not the applicant either, in any fashion, checked his accounts so he would realise that sums of less than $10,001 had gone into his account in a 19 month period. His evidence will be, I did not know that, I did not see it, and so forth. I was just re-reading your submissions and Mr Walker's submissions. Just so that I understand it, will it be your proposition that a reasonable stockbroker of his age in 2013 who did read the statements, for example, and saw multiple deposits of less than $10,001 going into his account over a 19 month period would not reasonably have been suspicious? CHAPMAN: Your Honour, I think the evidence is that he didn't read the statements. HIS HONOUR: I understand that, that's your first proposition. CHAPMAN: Yes. HIS HONOUR: But at a threshold level, on an evidentiary basis, he couldn't have been suspicious because he didn't know what was happening. CHAPMAN: Correct. HIS HONOUR: My question to you was - I will put it a different way. Will it be your evidence [sic, submission] that a reasonable person in his position with his background [who] had read those statements in the 19 month period during that time, that they ought reasonably to have been suspicious for the purposes of the section that there might have been a problem? CHAPMAN: Sorry, your Honour, I might be misunderstanding your Honour, I don't want to give your Honour a-- HIS HONOUR: I don't want you to tell me anything that you want to take on notice. CHAPMAN: No. HIS HONOUR: But, just to be blunt about it. CHAPMAN: Yes. HIS HONOUR: I don't have a view about this, these are complicated matters and I couldn't possibly have a final view on anything, but if, as a matter of fact, I came to a view or some judge in my position came to a view that your client had in fact observed there to be these multiple sub-$10,000 deposits going into his account in the 19 month period, what would your submission be about what suspicion that might reasonably have raised in him, as a stockbroker at that time? Would it be that those facts would not support a contention that he should have been suspicious or…? CHAPMAN: I don't think, your Honour, I don't think that that would be able to be supported, I don't think, as a matter of reality, if there was a finding about - yes. HIS HONOUR: The only reason I ask you those questions, I want fully to understand the burden of your submissions about that, so you might need to take instructions on this to confirm it. I don't want to catch anyone by surprise but are we, in fact, dealing with an issue of fact. That is to say, he either did or didn't know what was in his account because he didn't check or he didn't see the statements and the like, it's a factual question, is it?"
3. Despite the inelegance of my questions, Mr Walker SC clarified the situation from Mr Tjongosutiono's perspective at the beginning of the second day. The following portion of the transcript makes this plain: "WALKER: Your Honour, can I just answer some matters that you'd put to my learned junior yesterday on transcript 73, 74. HIS HONOUR: Yes. WALKER: The short answer is yes, by which I mean there won't be resistance to the course that factually, you can see echoed in the Lordianto approach. HIS HONOUR: Yes. Very well. Thank you, Mr Walker."
4. I have referred to the concession as uncontroversial. It is clear in any event that Mr Tjongosutiono's own evidence supports that description: "Q. But do you agree, looking at that bank statement, that these deposits under $10,000 at various bank branches in Sydney is very unusual? A. INTERPRETER: Yes. Q. Do you accept, having looked at the bank statements, that this is how all of the deposits into the account were done, small cash deposits under $10,000; you've looked at the statement, do you agree with that? A. INTERPRETER: Yes. Q. As an experienced stockbroker, do you accept that this manner of depositing money into a bank account was something that was very suspicious? A. INTERPRETER: Yes."

The 'home screen' issue

1. Mr Tjongosutiono's evidence is that in the relevant period between 2013 and 2015 he transferred money from Indonesia to his Westpac account in Sydney using the services of a money changer. The amounts transferred were always sums larger than $10,000 and it is not in issue that his instructions were ever to transfer the money in the approximately 123 smaller amounts representing the structured deposits.
2. Mr Tjongosutiono said that he regularly checked his account balances using the Westpac online banking platform on his computer. It is accepted that when a customer logs on to this facility on a computer, using the customer identification number and dedicated password, the home page displays the customer's account or accounts, if more than one. The account name, such as Westpac eSaver, and the account number and BSB details are also displayed, along with the balance of the account current at the time of logging on. It is common ground that the individual transactions on any of the accounts are not displayed on this page and that the Westpac online banking function displayed on a computer screen permitting the transfer of funds between accounts or paying third parties also does not display these balances. Accordingly, it is possible for a customer to check the balances of any accounts without at the same time being presented with a view of the debits and credits or any other specific activities on those accounts. Mr Tjongosutiono's evidence was that the way that he checked to see if an anticipated deposit in a particular amount had been made to his account in accordance with his instructions to the money changer was merely to view the current balance of the relevant account and to verify that it had been increased by the sum representing the expected deposit.
3. Consideration of a similar approach was given by the Court of Appeal in Gwe at [75]: "[75] Whilst it may not be usual or a particularly prudent practice, it was not 'inherently incredible' that Ms Hoang only consulted the balance of her accounts as disclosed on her hard copy and electronic bank statements. Ms Hoang did not speak English and, on her evidence, her interest was solely in knowing that the total amounts she had provided to the money changers had been transmitted. No other evidence was led to contradict her evidence given in the s 180 examination and her affidavit that she did not know of the individual deposits, cf. Masterton Homes Pty Ltd v Palm Assets Pty Ltd (2009) 261 ALR 382; [2009] NSWCA 234 at [105]."
4. In Gwe, Ms Hoang, who corresponded to Mr Tjongosutiono in this case, was not cross-examined on her evidence that she never checked, and accordingly had no knowledge of, the individual transactions on her account. It is a point of sharp distinction with this case, in which Mr Tjongosutiono was challenged at some considerable length upon his denials that he ever looked beyond the home page. Some of that cross-examination was as follows: "Q. See, what I want to suggest to you, Mr Tjongosutiono, is that you are suggesting, or you are saying that you did not look at the transactions in your account in the period 2013 to 2015, other than looking at the home page; correct? As to the balance. Is that what you're saying? A. INTERPRETER: Correct. Q. See, what I want to suggest to you, sir, is that you're lying when you say that, because you are attempting to cover up the fact that you actually did look at the transactions going in, in order to keep on top of what Andy was transferring to you. Do you accept that? A. INTERPRETER: No. … Q. And what you'll see there as you go through it, Mr Tjongosutiono, is that there were numerous deposits into this account, capped deposits of under $10,000 at various bank branches in Sydney. Do you see that? A. WITNESS: Yeah. A. INTERPRETER: Yes. Yes, I see it now. Q. Yes. Well, when you say you 'see it now', you've seen this bank account previously, haven't you, sir? The statement, before? A. INTERPRETER: So, after this case, then I've seen it, because it was given to me from my - by my solicitor. Q. When was the first time you say you saw this statement, with all these deposits in there? A. INTERPRETER: So, after the proceedings. … Q. You say in paragraph 51, this is your first affidavit, that you only check your Westpac account online after the time Andy told you that you should expect a deposit, is that what you say in paragraph 51 of your affidavit, sir? A. INTERPRETER: Yes, to check the balance. Q. That evidence is not true, do you accept that? A. INTERPRETER: No. … Q. No, no. You've told the judge, in your affidavit of 13 November 2020, if you go to tab 13 of volume 1, page 283, at paragraph 6, this is what you said; 'On the occasions that I would log in, my purpose for doing so would vary. I cannot recall, I cannot now recall the purpose for each of the log ins by reference to specific occasions in the Westpac data, though doing the best that I can, I describe below two of the main purposes for accessing my bank account online.' Do you see that? A. INTERPRETER: Correct, so, when I logged in, it could've been to check the balance, it could've been to transfer or to do something else. Q. Or it could have been to check the transactions in the e-saver account to see whether money was being deposited into it by Andy? A. INTERPRETER: So, I usually checked at the time when he said to. Q. You usually checked? A. INTERPRETER: Yes, at the time that he had said. Q. What do you mean, you usually checked? A. INTERPRETER: So, like Andy said, the money will go in in three days, so after three days I checked. Q. What did you check? A. INTERPRETER: The balance on the home screen. Q. But you were logging in every day? A. INTERPRETER: Logging in every day doesn't mean that I was checking the balance, I could have been making a transfer from one account to another account in Westpac. … HIS HONOUR: Can I ask you, in October 2013, did you receive Westpac eSaver statements electronically, or were they mailed to you in hard copy? A. INTERPRETER: As I remember, I never received one. Q. Electronically, or by hard copy? A. INTERPRETER: No, never. … Q. You see, what the bank statements show, Mr Tjongosutiono, is that over a 19 month period, between 2013 and 2015, there were over 215 transactions into your bank account and you say that you never looked at the bank statements beyond the balance on the home page, is that correct? A. INTERPRETER: Correct. Q. You see, isn't it false, sir, for you to suggest that to the court that you never looked at any transactions on the account statements for the Westpac e-saver account for a 19 month period, do you agree that you're lying when you say that? A. INTERPRETER: I really never saw, I only ever looked at the home screen. Q. You are a sophisticated businessman, correct? A. WITNESS: Yes. Q. A stockbroker? A. WITNESS: Yeah. … Q. I will put this question, is the reason why you are saying that you never looked at the transactions in the account statements is because you don't want to admit that when you looked at them you saw suspicious deposits going into the account? A. INTERPRETER: At that time, I didn't have time to examine every transaction because it was an account for investment property so that I only ever looked at the balance after the time that Wiseman had said and I never imagined that something like this would happen to me in Australia because I thought Australia was a safe country and that's why I didn't feel like I needed to check. Q. But Mr Tjongosutiono, it wasn't Australia that did this to you, it was Andy, your friend? A. INTERPRETER: I don't know, I'm sorry."
5. Mr Tjongosutiono submitted that, as with Ms Hoang in Gwe, it was not "inherently incredible" to say that he never checked any aspect of his account beyond the fluctuating balance. He maintained that his application had to be considered in the light of the evidence, including his cross-examination, and not by reference to what might be considered to be orthodox or usual practice. In this case there is evidence that a week after the first sign of trouble concerning his accounts with Westpac, on 12 May 2015 when his daughter brought his attention to the bank's letter notifying him that his accounts were to be closed, he flew to Australia to confront the bank in person. Mr Tjongosutiono submitted that, apart from those events, there is no evidence at all to suggest, much less establish, that he was made aware at any stage prior to 5 May 2015 of any irregularity affecting his accounts.
6. The Commissioner made the following submissions on the home screen issue.
7. On his own evidence, Mr Tjongosutiono intermittently transferred funds totalling $2,807,617 over the course of an 18 month period commencing in September 2013. He said that he deliberately chose to use a money remitter to take advantage of a more competitive currency exchange rate and lower fees. Mr Tjongosutiono's evidence at the s 180 examination was that he had previously used the same money remitter to transfer money to Singapore in 2009 and 2011, partly for the purpose of funding his purchase of a property there valued at SGD2,400,000. Mr Tjongosutiono accepted that he consciously transferred such funds without declaring that income to the Indonesian authorities and only later made a declaration to them because he had been "caught" in Australia.
8. Mr Tjongosutiono confirmed at his examination that he knew that each time he arrived in Australia he was required to declare whether he was bringing into Australia more than $10,000 in cash. His evidence was that on no occasion did he ever do so. The 35 incoming and outgoing passenger cards completed by Mr Tjongosutiono when he arrived in, or departed from, Australia between 2010 and 2018 record that on each occasion he declared that he was not bringing into, or taking out of, Australia $10,000 or more in Australian foreign currency equivalent.
9. At his examination, Mr Tjongosutiono confirmed that he has English proficiency and that he worked in a "professional" industry in which, as a "senior equities trader", he provided information to clients to assist in stock market trading. He accepted at his examination that he was "very careful" to make sure that the money transferred to Australia was properly received. Moreover, it was his usual practice to check his bank accounts to make sure payments such as bonuses and commissions were properly received.
10. The Commissioner contended that the totality of the evidence demonstrates that Mr Tjongosutiono, alike with the unsuccessful applicants in Lordianto, was "financially sophisticated and used to transferring large sums of money across national borders, as well as dealing with currency controls and a myriad of national disclosure requirements". Moreover he was aware of the advantageous rate offered by the remitters.
11. Mr Tjongosutiono said that he would check the home screen of his account only "after the time that Andy had suggested". However, his evidence does not establish that he knew when in fact such funds would arrive. At its highest, his evidence was that he was given an estimate that it would generally be between three and five days and normally would take up to seven days or a few days. The Commissioner submitted that the uncertainty, variability and length of that estimated range (and the value of funds transferred) support an inference that Mr Tjongosutiono had reason to, and did, check the eSaver account balance more frequently than he asserted and that he continued checking, on a daily (or otherwise regular) basis, until the whole amount had arrived in his account. This inference is said to be reinforced by the irregularity of the pattern of receipt of the structured deposits revealed by the eSaver account statements.
12. The eSaver account statements further reveal that on at least two occasions the account was accessed prior to receipt of the full amounts said to have been remitted from Indonesia. By way of example, on Mr Tjongosutiono's evidence, he had arranged for the remittal of the sum of $92,250 on 4 October 2013. The eSaver account statements record that a funds transfer was made through online banking on 8 October 2013. This demonstrates that Mr Tjongosutiono accessed his eSaver account online on or around that date. As at that date, the balance of the eSaver account was $77,050.05, or noticeably lower than the amount he had allegedly remitted on 4 October 2013. This discrepancy would have caused a reasonable person to review the deposits that had been made to that date by going beyond the home page to view the transactions list, which in turn would have revealed the structured deposits that had been made. It is objectively likely that Mr Tjongosutiono did so. At a minimum, the discrepancy in the account balance would have put Mr Tjongosutiono on notice that the funds being remitted from Indonesia were not being remitted in a lump sum.
13. On the following day, another online banking funds transfer was made to the eSaver account. According to Mr Tjongosutiono's evidence, he had since 4 October 2013 arranged for the remittal of a further $325,000 (being a total transfer of $417,750, including the earlier sum). However, as at 9 October 2013, the balance of his eSaver account was only $219,050.05. When he accessed that account on 9 October 2013, the unexpectedly low balance would have caused him to check the transactions list. That, in turn, would have revealed that structured deposits had been made into his account.
14. Further, Westpac's Internet Protocol logs in respect of the eSaver account from 1 June 2014 to 30 June 2015 recorded a very large number of log-ins to the internet banking account, both with and without transactions being conducted. This is said to be consistent with the objective probabilities and the apparent logic of events, namely that Mr Tjongosutiono was closely monitoring his eSaver account.
15. Mr Tjongosutiono was at least aware that the very large sums he provided to the money remitter were not leading to deposits in corresponding amounts, but rather to a number of deposits of considerably smaller amounts, with no cogent explanation for why that might be so. Mr Tjongosutiono's position in this respect is not materially different from the High Court's description of the state of mind of one of Mr Ganesh in Lordianto: namely that Mr Ganesh knew that the very large sums he provided to his associate, for delivery to the money remitter, were not leading to deposits in corresponding amounts, but rather to a number of deposits of considerably smaller amounts, and that he did not establish a cogent explanation for why that might be so. The High Court held that as a result Mr Ganesh failed to discharge the onus he bore of establishing that he acquired the property for sufficient consideration and in circumstances that would not have aroused a reasonable suspicion that the property was proceeds or an instrument of an offence.

Money changer never confronted or called to give evidence

1. The Commissioner maintained that Mr Tjongosutiono's credit suffered from the available inference that he conspicuously failed properly or indeed at all to confront "Andy", his money changer, with the fact that his bank account had been used as the destination for hundreds of structured deposits of less than $10,000 in the period, and in total amounts, precisely corresponding to his dealings with Andy. Mr Tjongosutiono's evidence about this was as follows: "Q. Did you ever ask Andy, after you say you looked at this statement, the transactions on the statement, did you ever ask Andy why the money had been deposited into your account in this way? A. INTERPRETER: No. Q. Is the reason you never asked him is because you knew? A. INTERPRETER: I don't know. There's no point in asking for me, because it's already happened. Q. Is the reason why you didn't ask him was because you knew? A. INTERPRETER: I didn't know. … Q. But the fact is, Mr Tjongosutiono, even after Westpac closed your bank account, your evidence is that you never asked Andy about any of these structured deposits into your account, correct? A. INTERPRETER: That's correct. … Q. After Westpac closed your account, did you ask Andy as to whether he had those moneys deposited into your account on 19 August 2014? A. INTERPRETER: No. I didn't ask. … Q. Did you ask Andy as to whether he made those deposits into your eSaver account after Westpac had closed the accounts? A. INTERPRETER: No. Q. And sitting here today, you still don't know who deposited those amounts of money into your account? A. INTERPRETER: No. All I know is that I did the money in Indonesian rupiah to Wiseman, and they would transfer the money into my Westpac account. Q. But you haven't spoken to Andy, have you, to ask him whether he arranged to have those amounts on 21 August 2014, placed into your account; correct? A. INTERPRETER: Correct. I only see today that there's some deposits like this. Q. Your evidence was, was it not, Mr Tjongosutiono, that after Westpac closed your account, you did not ask Andy any questions in relation to what had happened with money being placed into your account, because you did not want anybody in Indonesia to know your problems in Australia. Do you recall that evidence that you gave at the examination before the Administrative Appeals Tribunal examiner? A. WITNESS: Yeah. A. INTERPRETER: Yes. … Q. Let's stay with that then, after this case started and you found out about these irregularities in your bank account, the eSaver account, your evidence is that you never asked Andy what he did with the money that you gave to him, correct? A. INTERPRETER: That's correct, because I didn't see any point to ask Andy because he wouldn't be able to solve it anyway. I thought it's better if I solve the problem through my lawyers. … Q. You never asked Andy whether he was responsible for the irregular deposits into the eSaver account? A. INTERPRETER: No. Q. You never asked him whether the money that was going into your account, being the green entries on each of the pages in the spreadsheet was the money that you gave him? A. INTERPRETER: No. Q. And the reason you never asked him is because you knew about these irregular transactions because you had seen them when you were accessing your account during the period 2013 to 2015, that's correct, isn't it, sir? A. INTERPRETER: No, because I still didn't see the point of asking him because he wouldn't be able to solve the problem here anyway. Q. Mr Tjongosutiono, don't you think it would have been important for you to find out whether the money that was going into your bank account was actually from Wiseman or whether there were criminals who were actually putting money into your account? HIS HONOUR: Just before you answer that, do you mean after the event, because his evidence so far is that he didn't look at transactions? MOSES: No, that is after the event, your Honour. HIS HONOUR: You need to make that clear. MOSES: Yes, I will, your Honour, thank you. Q. After these proceedings had commenced in this court, did you not think it was important to ask Andy whether the irregular deposits that were going into your account were from Wiseman so that you could explain where that money was coming from? A. INTERPRETER: No, I only wanted to deal with people who could resolve my problem."
2. The Commissioner also drew attention to the following evidence given by Mr Tjongosutiono: "Q. Did you ask your lawyers to contact Andy? A. INTERPRETER: No. Q. Did you ask Andy to give evidence in this case? A. INTERPRETER: No."
3. The Commissioner submitted that the failure to call Andy gave rise to an adverse inference, that nothing that Andy could have said would have assisted his case. However, presumably according to Mr Tjongosutiono, he had been defrauded by Andy. It is entirely unsurprising in those circumstances that he would not have attempted to obtain assistance from someone who was definitively not in his camp. It does not seem to me that the Commissioner can both rely upon Mr Tjongosutiono's failure to confront and interrogate Andy after problems arose following the revelation of the curious deposits into his account and at the same time criticise him for not approaching him to give evidence in support of his application.

Conclusion

1. I am not satisfied that Mr Tjongosutiono has established that he acquired the relevant property in circumstances that would not arouse a reasonable suspicion that the property was proceeds of an offence or an instrument of an offence.
2. In order to succeed, Mr Tjongosutiono must satisfy me both that he did not know that structured deposits were being made to his Westpac account and that a person in his position without that knowledge would not have had a reasonable suspicion that the deposits into his account were proceeds of an offence or an instrument of an offence. The fact that Mr Tjongosutiono says that he never looked at his accounts beyond checking the balances, and that he was unaware of the structured deposits, does not mean that the objective circumstances can be disregarded, although a finding adverse to Mr Tjongosutiono on the first issue obviates the need to make a finding on the second issue: see, for example, Lordianto at [69].
3. I am not satisfied that Mr Tjongosutiono was not aware that scores of deposits in amounts of less than $10,000 were being made to his Westpac eSaver account in the 19 month period between September 2013 and March 2015. It follows that I reject his evidence that he did not, during that entire period when utilising his Westpac online banking facility, ever go beyond the information displayed on the home screen or examine the details of a single transaction in that account during that time. In particular, I reject the following evidence, and evidence to like effect, as untruthful: "Q. Do you accept, because you don't know, you can't remember what you did back in 2014, as an example, that it's possible that you may have gone into the Westpac eSaver account to look at transactions? A. INTERPRETER: I never checked the transactions, I only go to the home screen. Q. Mr Tjongosutiono, what I want to put to you and suggest to you is that the reason you're saying that is because you don't want to admit that you actually looked at the transactions in your eSaver account because it would have demonstrated to you that there were irregular deposits that were being placed into your eSaver account? A. INTERPRETER: I never looked at the details of the transactions, I just look at my home screen so I didn't know about these small transactions of smaller than 10,000. HIS HONO)UR: So do you say that in 19 or so months, between September 2013 and March 2015, you never once, on a single occasion, ever looked at that part of the bank details that would have shown you a transaction? A. Yes. MOSES: What I suggest to you, Mr Tjongosutiono, is what you've just said there is a lie because what you're trying to do is cover up the fact that you did look at the accounts of the Westpac eSaver account during that period; what do you say about that? A. INTERPRETER: First of all, I never saw, I never looked and, second, I'm a Catholic, I'm afraid to lie."
4. While I accept that the Court of Appeal in Gwe at [75] was not satisfied that it was inherently incredible that Ms Hoang had not ventured beyond the home screen in that case, I am unable to reach a similar conclusion in the particular circumstances of this one. My reasons for forming that view are as follows.
5. First, the sheer number of times that Mr Tjongosutiono logged in to his eSaver account favours the conclusion I have come to. I accept immediately that the electronic evidence of Mr Tjongosutiono's log in activities does not distinguish between whether he had access to only the home screen and account balances on the one hand and whether he had access to more detailed account activity information including transactions, such as deposits to his account, on the other hand. However, it is in my opinion implausible that a person engaged in relatively significant international forex transfers would never once have been concerned or interested to inspect the transactional details of that account.
6. In this respect, I consider that the following evidence given by Mr Tjongosutiono in cross-examination should be noted: "Q. Can you give the court any explanation as to why the deposits were made in this way into the e-saver account? A. INTERPRETER: I can't give an answer because I didn't know at that time there were transfers like this. Q. You were concerned, were you not, to monitor that the money that you gave to Andy was going into your account, correct? A. INTERPRETER: Yes. Q. That is why you frequently logged into your online banking to check the account to make sure that the money was going in? A. INTERPRETER: When I logged in, it doesn't - didn't mean that I was check - always checking the balance. I could have logged in to transfer money from A to B in Westpac, or also, to check my home loan. Q. The fact is, sir, do you accept, that you don't know now, sitting here, what you did when you logged into that account during the period 2013 to 2015? Do you accept that? A. WITNESS: Yeah. A. INTERPRETER: Yes."
7. A number of things emerge from that evidence. Mr Tjongosutiono accepts that he was concerned to monitor the money that he gave to Andy and that he expected would be going into his account. However, it is clear both from the form of his answer - "I could have" - and from his frank concession that he did not have a recollection of the reason why he logged into his account on any one of the myriad occasions that he did so, that Mr Tjongosutiono is in effect asking me to accept his evidence as establishing that he never looked past the home page when that request is based on no more than his assumption that he did not do so. Put in context, Mr Tjongosutiono bears the onus of establishing that he never checked the transactional details of his account but offers evidence that rises no higher than self-serving speculation.
8. Secondly, it is inherent in Mr Tjongosutiono's position that the changing balance of his account provided a sufficiently accurate reflection for his purposes of the deposits that he instructed Andy to make. His proposition does not apparently take account of the changing balance arising from direct debits to his account from fees and charges or the credit of interest on balances from time to time.
9. Thirdly, I reject as entirely improbable that Mr Tjongosutiono never received a bank statement of any kind, whether electronically or in hard copy, during the whole of the period in question. He bears the onus on the present application. I reject his denial that Westpac never furnished him with bank statements in any format in the ordinary course of its administration of the relevant account. It would not, for example, have been possible for Mr Tjongosutiono to account for interest earned for income tax purposes without reference to bank statements or deducting costs such as bank fees and charges.
10. Fourthly, it is undisputed that at no stage did Mr Tjongosutiono ever seek an explanation from Andy as to what happened to the money. It does seem to me to be extraordinary that some immediate inquiry would not have been directed to Andy or his employer when Mr Tjongosutiono was first confronted with the unfolding disaster. Even by the time his interests had been forfeited, Mr Tjongosutiono appears lamely to have refrained from approaching Andy directly and proclaiming what one might have expected to be furious indignation with the actions of the very person who on his version must have been complicit in the events that defrauded him. It is remarkable that a sophisticated businessman would not have been interested to find out at some stage why his account had been used in this way, entirely contrary either to his instructions or expectations.
11. Fifthly, Mr Tjongosutiono was forced by Westpac to take his business elsewhere when the bank indicated that his accounts were to be closed. As N Adams J noted at [210], he did so without ever obtaining an explanation as to why the bank no longer wished him to bank with them. He gave the following evidence in the present application: "Q. Westpac wrote to you in May 2015, saying that you must no longer bank with them; correct? A. INTERPRETER: Yes, correct. Q. And that must have been strange to you, because you had deposited millions of dollars with them; correct? A. INTERPRETER: Yes, correct. Q. And in paragraphs 85 to 91-- HIS HONOUR: I'm sorry, could I just-- MOSES: I'm sorry, your Honour. I apologise. HIS HONOUR: The form of your question leads me not to understand whether it was strange to him, or whether he agreed he deposited large sums of money with them. MOSES: No, your Honour's right. I'll correct that. Q. When you read the letter from Westpac, were you-- HIS HONOUR: Did you find it strange they closed your account? A. INTERPRETER: Yes. MOSES: And they did not give you an explanation as to why they wanted you to no longer bank with them; correct? A. INTERPRETER: Yeah."
12. I adopt with respect the comments of N Adams J on this issue at [201] as follows: "…It is a somewhat extraordinary proposition that [Mr Tjongosutiono] transferred well in excess of $2 million from his Westpac accounts to the CBA without even contemplating the possibility that there was some problem with his bank records. Moreover, the inference to be drawn from [his] evidence is that not even in those circumstances did he ever look at any of his bank records (beyond the home screen on his computer) to see if any explanation could be found in them for the bank's position."
13. Sixthly, I am unable to discard the force of the Lordianto analogue, most helpfully recorded at [111] of the High Court's decision: "[111] As Beazley P and Payne JA stated, Mr Lordianto and Ms Koernia 'were financially sophisticated and used to transferring large sums of money across national borders, as well as dealing with currency controls and a myriad of national disclosure requirements'. Moreover, they were aware of the advantageous rate offered by the remitters and the almost 400 cash deposits of amounts under $10,000 into their nominated Australian bank accounts. Thus, they did not discharge the onus they bore of establishing that they acquired the property, the 'interests' in connection with their respective choses in action against the Australian banks, for sufficient consideration and in circumstances that would not have aroused a reasonable suspicion that that property was proceeds or an instrument of an offence. As their Honours stated, 'the conclusion that there were abundant circumstances here that would arouse a reasonable suspicion that the interests in property were proceeds of an offence or an instrument of an offence was inevitable'…"
14. I cannot meaningfully distinguish Mr Tjongosutiono from the financially sophisticated participants to whom the High Court was there referring. As N Adams J noted at [203] of her reasons for judgment, Mr Tjongosutiono is a sophisticated bank customer who was earning, at least at the time of the subject transfers, a not insignificant income from his endeavours as a stockbroker who had been involved with overseas property investment from as early as 2009 and in Australia since 2013. I do not accept in such circumstances that Mr Tjongosutiono would not have been concerned or interested to review the details of transactions on his Westpac account in order to verify that the instructions given to Andy had been followed.
15. In summary, I am not satisfied that Mr Tjongosutiono limited his relevant online banking activity or inquiries to the inspection only of his Westpac home page or home screen. I am satisfied that in the 19 month period between 2013 and 2015, during the course of which in excess of $1M was deposited into his account in amounts of less than $10,000, he knew or became aware of that. I am not satisfied that Mr Tjongosutiono has discharged the onus that he bears to establish that he did not know. I am accordingly not satisfied that Mr Tjongosutiono acquired the relevant property in circumstances that would not arouse a reasonable suspicion that it was proceeds of an offence or an instrument of an offence.

Decision

1. Mr Tjongosutiono's notice of motion filed on 19 October 2018 is dismissed with costs.

Amendments 17 December 2020 - Amendment to representation DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 17 December 2020