WALKER CRIMINAL LAWYERS
Proceeds of Crime
Proceeds of Crime can be a criminal charge, often when an amount of cash is found upon a criminal involved in a crime with financial gain, such as drug dealing. Proceeds of Crime can also be a civil matter (in NSW, run by the NSW Crime Commission or at the Commonwealth Level, administered by the Australian Federal Police). Civil proceeds of crime legislation is very strong, with matters being decided on the balance of probabilities, often with a reverse onus (that is, the applicant [you] needs to prove that the confiscated assets are not as the result of crime and/or were not used in the commission of the offence). Proving these matters can often be very difficult. As such, if you want to secure the value of your assets, it’s advisable to engage a proceeds of crime barrister, such as Mr Walker.
Whilst acting for the AFP/Commonwealth, I appeared in a forfeiture order application seeking to forfeit approximately worth $220,000 made up of cash consisting of Australian and United States Dollars. Justice Adamson of the Supreme Court, having been satisfied of the prerequisites to making the forfeiture order pursuant to section 49 of the Proceeds of Crime Act 2002 (Cth), made the order sought.
This resulted in the forfeiture of approximately $220,000 to the confiscated assets account, which is an account managed by the Commonwealth to spend on anti-crime prevention measures amongst other things. Please see judgment below:
Supreme Court
New South Wales
- Medium Neutral Citation:
- The Commissioner of the Australian Federal Police [2018] NSWSC 1737
- Hearing dates:
- 13 November 2018
- Decision date:
- 13 November 2018
- Jurisdiction:
- Common Law
- Before:
- Adamson J
- Decision:
- See paragraph [13]
- Catchwords:
- PROCEEDS OF CRIME – application for a forfeiture order – no exclusion application made – notice given to interested parties – orders made as sought
- Legislation Cited:
- Proceeds of Crime Act 2002 (Cth), ss 19, 49, 69, 335, 338
- Category:
- Principal judgment
- Parties:
- The Commissioner of the Australian Federal Police (Plaintiff)
- Representation:
- Counsel:
B Walker (Plaintiff)Solicitors:
Australian Federal Police (Plaintiff) - File Number(s):
- 2018/107958
JUDGMENT – EX TEMPORE
- The Commissioner of the Australian Federal Police (the plaintiff) seeks a forfeiture order pursuant to s 49 of the Proceeds of Crime Act 2002 (Cth) (the Act). Mr Walker, who appears on behalf of the plaintiff, requested that my associate call the names of the following persons outside the courtroom before the matter commenced. Those persons are: Alexander Daniel, Geraint Coles, Douglas Brodie Gray, Lorraine Lewis Wright and Royston Eustace D’Lima. There was no response when those parties’ names were called outside the courtroom.
- Section 49 of the Act relevantly provides that a court with “proceeds jurisdiction” must make an order that property specified in the order is forfeited to the Commonwealth if certain matters set out in the subparagraphs to s 49(1) of the Act are satisfied. This court is a court with proceeds jurisdiction: s 335(2) of the Act.
- The first matter in s 49(1)(a) of the Act is that a responsible authority for a restraining order under s 19 of the Act that covers the property applies for an order under this subsection. The plaintiff is a responsible authority within the meaning of s 338 of the Act and applied for a restraining order under s 19 of the Act. I note that that restraining order was made in respect of the property in schedules 1, 2, 3 and 4 of the summons, which was filed on 6 April 2018. I note that a restraining order in respect of that property was made by Button J on 8 May 2018. Accordingly, I am satisfied that the condition in s 49(1)(a) is satisfied.
- I turn now to s 49(1)(b), namely, that the restraining order has been in force for at least six months. As referred to above, Button J made the restraining order on 8 May 2018 and, accordingly, s 49(1)(b) has been satisfied in the present case.
- Section 49(1)(c) requires the court’s satisfaction of certain matters. However, s 49(3) provides that s 49(1)(c) does not apply if 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. Mr Walker read the affidavit of Katrina Hoyes affirmed on 9 November 2018 and the affidavit of service of Rebecca Anne Hema sworn on 9 November 2018. Having read those affidavits, I am satisfied that the Commissioner has identified five persons who are referred to as the interested parties being those persons whose names my associate called outside the courtroom before the hearing began. No application for an exclusion order has been made by any of those persons.
- I am satisfied that those persons have been given notification both of the making of the restraining order by Button J on 8 May 2018 as well as the plaintiff’s intention to apply for forfeiture orders today, 13 November 2018. As no exclusion applications have been filed, I am satisfied, on the basis of those two affidavits, that they have been notified of those matters and that no substantive response has been received from any of the interested parties to the letters informing them of those matters and of the possibility of seeking an exclusion application.
- Under those circumstances, I am satisfied that no application has been made for an exclusion order by any of those persons and, accordingly, it is not necessary for s 49(1)(c) of the Act to be satisfied.
- Turning now to the remaining subsection, s 49(1)(e) of the Act, I am satisfied, on the basis of the affidavits referred to, that the plaintiff has taken reasonable steps to identify and notify persons with an interest in the property. I note that the relevant property was sums of cash seized by the Australian Federal Police on 13 January 2016 from various locations.
- As I am satisfied as to each of the matters referred to in s 49(1), I am obliged by that section to make an order that the property specified in the order is forfeited to the Commonwealth. Mr Walker has provided me with short minutes of order, which I propose to make. I will make orders in terms of paragraphs 1, 2, 3 and 4 of those short minutes of order.
- In addition, in paragraph 5 of those short minutes, Mr Walker seeks an order pursuant to s 69(2) of the Act that the Commonwealth have leave to dispose of or otherwise deal with the forfeited property immediately. In the circumstances, there would appear to be no reason why the property in question, being amounts of cash, should not be dealt with by the Commonwealth immediately. Accordingly, I am satisfied that it is appropriate to make an order in terms of paragraph 5 of the short minutes of order.
- I also make an order in terms of paragraph 6, namely, that these orders be entered forthwith.
- Accordingly, I will sign that and date the orders and give them to my associate, who will apply the Court’s seal to them.
Orders
- For the reasons given above, I make the following orders:
1. Pursuant to section 49 of the Proceeds of Crime Act 2002 (Cth), the property specified in Schedule One be forfeited to the Commonwealth.
- 2. Pursuant to section 49 of the Proceeds of Crime Act 2002 (Cth), the property specified in Schedule Two be forfeited to the Commonwealth.
3. Pursuant to section 49 of the Proceeds of Crime Act 2002 (Cth), the property specified in Schedule Three be forfeited to the Commonwealth.
4. Pursuant to section 49 of the Proceeds of Crime Act 2002 (Cth), the property specified in Schedule Four be forfeited to the Commonwealth.
5. Pursuant to section 69(2) of the Proceeds of Crime Act 2002 (Cth), the Commonwealth have leave to dispose of, or otherwise deal with, the forfeited property immediately.
6. These orders be entered forthwith.
SCHEDULE ONE
The sum of approximately AUD40,000 cash seized by the Australian Federal Police (AFP) on 13 January 2016 from Bondi Beach in the State of New South Wales and deposited into the AFP Trust Account with the Reserve Bank of Australia, together with any interest earned on that amount.
SCHEDULE TWO
The sum of approximately AUD10,000 cash seized by the AFP on 13 January 2016 from the Ford Focus vehicle bearing NSW registration number and deposited into the RBA Trust Account, together with any interest earned on that amount.
SCHEDULE THREE
The sum of approximately USD51,350 cash seized by the AFP on 13 January 2016 from Bondi Beach in the State of New South Wales and converted by the Commonwealth Bank of Australia to approximately AUD69,375.55, together with any interest earned on that amount.
SCHEDULE FOUR
The sum of approximately AUD98,750 cash seized by the AFP on 13 January 2016 from Zetland in the State of New South Wales and deposited into the AFP Trust Account with the Reserve Bank of Australia, together with any interest earned on that amount.
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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: 14 November 2018
Whilst acting for the AFP/Commonwealth, I appeared in a forfeiture order application seeking to forfeit approximately worth $400,000 made up of cash consisting of Australian Dollars. Justice Davies of the Supreme Court, having been satisfied of the prerequisites to making the forfeiture order pursuant to section 49 of the Proceeds of Crime Act 2002 (Cth), made the order sought.
This resulted in the forfeiture of approximately $400,000 to the confiscated assets account, which is an account managed by the Commonwealth to spend on anti-crime prevention measures amongst other things.
This was a good result for the Commonwealth as His Honour was persuaded to employ section 316 of the Proceeds of Crime Act 2002 (Cth), which allowed the forfeiture order to be made even though the restraining order had only been in place for 2 months and not the requisite 6 months. Please see judgment below:
Supreme Court
New South Wales
- Medium Neutral Citation:
- Application by the Commissioner of the Australian Federal Police [2018] NSWSC 1302
- Hearing dates:
- 22 August 2018
- Date of orders:
- 22 August 2018
- Decision date:
- 22 August 2018
- Jurisdiction:
- Common Law
- Before:
- Davies J
- Decision:
- Pursuant to section 316 of the Proceeds of Crime Act 2002 (Cth), the Court makes the following orders by consent:
1. Pursuant to section 49 of the Proceeds of Crime Act 2002 (Cth) (the Act), the property specified in Schedule One be forfeited to the Commonwealth.
2. Pursuant to section 69(2) of the Act, the Commonwealth have leave to dispose of, or otherwise deal with, the forfeited property immediately.
SCHEDULE ONE
The cash amount of AUD 399,950 seized by the Australian Federal Police on 26 September 2015 (recorded on AFP Property Seizure Record M337410) together with any interest earned on that amount.
- Catchwords:
- CRIME – proceeds of crime – consent order for forfeiture of restrained property – where six month period has not elapsed – where person served with proceedings has made no application in respect of property – whether order can be made without that person’s consent
- Legislation Cited:
- Proceeds of Crime Act 2002 (Cth) ss 49, 69, 316
- Cases Cited:
- Nil
- Texts Cited:
- Nil
- Category:
- Procedural and other rulings
- Parties:
- Commissioner of the Australian Federal Police
Stuart Cole (Interested party) - Representation:
- Counsel:
B Walker (Plaintiff)
H Woolf (Interested party)Solicitors:
Criminal Assets Litigation, Australian Federal Police (Plaintiff)
Nyman Gibson Miralis (Interested party) - File Number(s):
- 2017/251156
- Publication restriction:
- Nil
JUDGMENT
- The plaintiff seeks to forfeit property, which has been restrained by Schmidt J on 28 June 2018. The forfeiture is under s 49 of the Proceeds of Crime Act 2002 (Cth).
- The evidence discloses that there are only two possible interested parties. One of those is Stuart Cole, who is represented today and consents to the forfeiture order being sought by the Commissioner. The other person is Anthony James Haddleton. He is not represented today and has not consented to the orders.
- The evidence discloses that he was served with the summons on 22 August 2017. At the time the Federal Agent who served Mr Haddleton had a conversation with him and told him that the documents pertained to the cash that was seized two years previously from him and Mr Cole. Mr Haddleton is reported to have said that it was not his cash, he was just an Uber driver. The agent said there was information in the paperwork that would let him know where and when he could claim ownership, if he wished to do so. He said, “No thanks”.
- The proceedings have been before the Court on a number of occasions since the return date on 21 September 2017. No claim has been made by Mr Haddleton.
- My attention has been drawn to s 316 of the Act, which enables a consent order to be made specifically in circumstances where a period of six months has not elapsed from the date of the restraining orders. That can be done if everyone whom the Court has reason to believe would be affected by the order has consented to it.
- The evidence tends to show that Mr Haddleton does not consider that he has an interest in the proceeds. He has made no application in respect of the property. Accordingly, I do not have reason to believe that he would be affected by the proposed orders.
- Further, s 49 does not stipulate, as a pre- condition to a forfeiture order, that the restraining order must have been in force for at least six months. Section 49(1) simply requires the Court to make an order if that condition is fulfilled as well as the other matters enumerated in subs (1).
- For those reasons I consider that the consent order put forward by the Commissioner should be made. The orders, therefore, are:
1. Pursuant to s 49 of the Proceeds of Crime Act 2002 (Cth) the property specified in sch 1 to the consent order be forfeited to the Commonwealth.
2. Pursuant to s 69(2) of the Act the Commonwealth have leave to depose of or otherwise deal with the forfeited property immediately.
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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: 22 August 2018
During the holiday season, my client was engaged in “dial a dealer” drug supply transactions around Sydney. Undercover police were targeting this type of drug supply in the inner city area. Unbeknownst to my client, police were watching as he picked up people in his car and dropped them off a short time later. Police followed my client and pulled him over in his car. Police searched his vehicle and during the search located an indictable quantity of cocaine, an indictable quantity of MDMA, a sum of cash and multiple mobile phone with messages potentially relating to drug transactions.
My client was charged with two counts of “supply a prohibited drug” as well as dealing with the proceeds of crime.
During detailed sentencing proceeds at the Downing Centre, submissions were made concerning the objective seriousness of the offending, the harm to the community, my client’s personal circumstances, his reasons for engaging in drug supply, as well as his rehabilitative efforts post arrest.
Ultimately His Honour was satisfied that despite the seriousness of this matter, a custodial sentence of full time imprisonment would not meet the objectives of sentencing, and subsequently my client was released into the community subject to certain conditions.
This was a great result for my client who was potentially facing jail time.
Undercover police were conducting patrols in Kings Cross looking for drug supply activity including the buying and selling of cocaine via the ‘dial a dealer’ modus operandi.
My Client was driving a car making a drug delivery. Undercover police witnessed the drug deal take place and proceeded to stop my client who was driving the car. Upon searching the car, cocaine was found along with an amount of cash.
My Client was subsequently charged with 4 counts of supplying cocaine including cocaine of an indictable amount and dealing with the proceeds of crime.
My Client was arrested, and had to face court. In this stressful situation, my client sought our help. We provided advice to her as to whether to plead guilty or not guilty and on what basis. My Client was greatly relieved when she could see that someone was looking after her interests. My Client pled guilty to the charges and we assisted her in preparing for sentencing.
Upon sentencing, we made submissions to Her Honour regarding the circumstances which led my client to sell cocaine in Sydney. Whilst no excuse for the criminal behaviour, it did provide some context around the offending. We made further submissions concerning the rehabilitative steps my client had taken since being arrested and why it was unlikely that my client would re-offend again. Her Honour was satisfied with our submissions and decided that jail for my client would not achieve the purposes of criminal sentencing. My Client was directed to serve her penalty in the community, and to undertake 200 hours of community service.
A great result for my client who can now continue her rehabilitative steps without having her liberty restricted.
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