The Commissioner of Australian Federal Police v Omar

Forfeiture Orders Under Section 49

1. Following the dismissal of a notice of motion seeking exclusion orders, the plaintiff indicated that it would be proceeding to seek forfeiture orders in respect of the property that was the subject of the restraining orders. The plaintiff requested an early hearing date for so much of his application which concerned forfeiture orders in respect of the property that was restrained under s 19. To that end, the Commissioner relies on s 49(3) of the POCA.
2. Section 49 provides: 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2‑1 for the property to be excluded from the restraining order; or (b) any such application that has been made has been withdrawn. Refusal to make a forfeiture order (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.
3. It is noted that the Commissioner seeks to rely on s 49(3)(b) as a basis for not being required to prove on this application the matters specified in s 49(1)(c).
4. The first matter to address in relation to the plaintiff's application is whether the affected parties have been given adequate notice of this application. As stated, the corporate defendants have now been deregistered. In respect of the other parties, the plaintiff read an affidavit of Stephen Davidson affirmed on 16 April 2020 setting out the various efforts made to provide a notice of this application to Ibrahim Omar, Mohammad Omar and the three other persons I mentioned earlier. Based on that affidavit, I am satisfied that on or about 23 March 2020, each of them, as well as the Australian and New Zealand Banking Corporation and the Commonwealth Bank of Australia received copies of the plaintiff's submissions on this application, the evidence in support of the application, as well as notification of the various hearing dates and what was required of them if they wished to participate. None of those persons or entities, save as to Ibrahim Omar, has since given any indication that they wished to be heard on this application.
5. In respect of Ibrahim Omar, he advised the solicitor for the plaintiff recently that he wished to be heard on this application. He did so via an e-mail address associated with his brother Mohammad. To that end, and given the matter was proceeding today by audio-visual means, the Court e-mailed him yesterday requesting his mobile telephone number so that the Court could contact him and he could participate by telephone. No reply was received to that e-mail.
6. This morning counsel for the plaintiff provided to the Court Ibrahim Omar's mobile telephone number. Sustained attempts were made to contact him by telephone from the courtroom, again to no avail. Further, counsel also provided a mobile telephone number associated with Mohammad Omar and an attempt was made to contact him also from the courtroom. That was to no avail. In these circumstances, I considered it appropriate to continue with the Commissioner's application.
7. Further, it follows that in light of these efforts I am satisfied that s 49(1)(e) of the POCA has been met.
8. Second, there is no doubt that each of s 49(1)(a) and (b) of the POCA are satisfied. The plaintiff is the relevant "responsible authority" and the restraining orders under s 19 have been in force for at least six months.
9. Third, to succeed on that application, without having to prove on the balance of probabilities the matters set out in s 49(1)(c), the plaintiff must satisfy the Court that the applications for exclusion orders that I referred to earlier were "withdrawn" within the meaning of s 49(3)(b).
10. The phrase "withdrawn" in s 49(3)(c) is not defined. In The Commissioner of Australian Federal Police v Vo [2015] NSWSC 1523 ("Vo"), Schmidt J held that in applying s 49(3)(b) to a circumstance in which an application for an exclusion order was dismissed by the Court "it is essential to look at the substance" of what occurred "rather than to its form" (at [70]). In that case her Honour concluded (at [63]): "In the face of that definition, it is apparent that an application brought under s 31 to have a motion in which orders under s 29 are sought dismissed, because it is admitted that there is no basis on which they could be made, given evidence which is led, is in reality a withdrawal of the application for the orders sought in the motion."
11. In The Commissioner of Australian Federal Police v Lee [2016] NSWSC 915 at [13], Campbell J characterised the circumstances of Vo as "amounting to a constructive withdrawal".
12. The detailed written submissions lodged by the plaintiff in support of this application refer to these cases and makes submissions at length as to the textual and other reasons that support Schmidt J's construction of s 49(3)(b) in Vo. It suffices to state that on an ex parte application such as this I should follow her Honour's decision unless I am satisfied it is clearly wrong, which I am not.
13. In this case, the circumstances that led to the dismissal of the exclusion applications on 24 February 2020 clearly amount to a form of "constructive withdrawal" that is, as a manner of substance the applications were withdrawn. In The Commissioner of Australian Federal Police v Omar [2020] NSWSC 155, I describe the applicants on the motions seeking exclusion orders as having "capitulated on the eve of the hearing" (at [22]). It follows that s 49(3)(b) has been established.
14. One matter that is not entirely clear concerns the potential application of s 49(4) of the POCA to a matter such as this, namely, whether the Court could be concluded it is satisfied that it is not in the public interests to make the order.
15. On the material, the only possible issue that could affect that is the fact that the two real properties that I referred to earlier are currently the residences, as I understand it, of persons in the Omar family, and that the prospect of them losing their residence during a pandemic is a matter of considerable concern. Nevertheless, at this point, I am not satisfied that s 49(4) can be invoked. To reach the state of satisfaction the Court would have to form a view about the matters referred to in s 49(4)(a) and (b), and that is not required where s 49(3) is invoked. Certainly the Court in this case could not be satisfied that the houses are not "the proceeds of offence".
16. Fourth, s 56 of the POCA obliges the Court in making a forfeiture order to specify the value at the time the order is made of the property, other than money, that is specified in the order. The application concerns four bank accounts, which are clearly not caught by s 56, but also concerns two residences which are. To that end, the plaintiff has tendered a number of valuations conducted of the properties to enable s 56 to be complied with.
17. The plaintiff submitted that the Court should adopt a figure representing the middle of the range suggested by the valuations. However, I note the valuations were conducted at the end of February, and it is accepted that I must attempt to specify a value as at the date of the making of these orders, that is today. Given the events of the last six weeks, in my view, the only appropriate course is to take the lowest valuations that have been proffered.
18. Finally, I note that I raised with the counsel for the plaintiff a concern about an attempt to sell the subject properties and then, in effect, render various persons homeless during a pandemic.
19. One of the orders sought on the application was an order under s 69 (2) of the POCA to the effect of allowing the plaintiff to seek to have the property disposed of immediately, whereas s 69(1) would prevent that occurring during the appeal period. Given that the two properties are residences I will not make that order in respect them. However, I will make it in respect of the bank accounts. Beyond that, I can only, consistent with the POCA, appeal to the good sense of the plaintiff and the Trustee in Bankruptcy about the wisdom of the pursuing an immediate sale in the current market, and the difficulties that would be caused to the residents if that was to require them to be removed from their home while there are pandemic restrictions in place.
20. It follows that subject to the limitation on the order under s 69(2) I will make the orders sought by the Commissioner.

Orders

1. The Court orders that: (1) Pursuant to section 49(1) of the Proceeds of Crime Act 2002 (Cth), the following property be forfeited to the Commonwealth (in each case, which property is presently in the custody and control of the Official Trustee in Bankruptcy pursuant to Orders 34 to 36 made by this Court on 8 August 2016): a. Funds standing to the credit of Australia and New Zealand Banking Group Limited account XXXX-XXXXX held in the name of Samir Omar and Hoda Omar, together with any interest earned on that account; b. Funds standing to the credit of Commonwealth Bank of Australia account XXXXXX XXXXXXXX held in the name of Samir Omar and Hoda Omar, together with any interest earned on that account; c. Funds standing to the credit of Commonwealth Bank of Australia account XXXXXX XXXXXXXX held in the name of Samir A I Omar, together with any interest earned on that account; d. Funds standing to the credit of Commonwealth Bank of Australia account XXXX XXXXXXXX held in the name of S A Omar, together with any interest earned on that account; e. Real Property located at XX XXXXXXX Road, Lakemba, New South Wales being Lot 2 in Deposited Plan 319022; and f. Real Property located at XX XXXXXXX Road, Lakemba, New South Wales being Lot 3 in Deposited Plan 319022, excluding Australia and New Zealand Banking Group Limited's interest in the said property as registered mortgagee. (2) Pursuant to section 69(2) of the Act, the Commonwealth, and persons acting on its behalf, can dispose of, or otherwise deal with, property specified in sub‑paragraphs 1(a) to (d), immediately. (3) For the purposes of section 56 of the Act, at the time of making this order the Court considers the value of: a. the property described at paragraph 1(e) above to be AUD$800,000; and b. the property described at paragraph 1(f) above to be AUD$875,000 (subject to the interest in that property held by Australia and New Zealand Banking Group Limited, as registered mortgagee). (4) The First Defendant and Second Defendant pay the Plaintiff's costs of and incidental to the making of these orders. (5) Liberty to apply on 3 days' notice. (6) Any other or further order.

Amendments 23 April 2020 - File number of proceedings corrected. 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: 23 April 2020