13 December 2021


International Cases

Commissioner of the Australian Federal Police v. Fu

Australia

14.06.2019

Criminal

Applicant in any proceedings under the Proceeds of Crime Act bears onus of proving matters necessary to establish grounds for making the order applied for

Present is an application by the Commissioner of the Australian Federal Police pursuant to Section 49 of the Proceeds of Crime Act, 2002 for the court to make a forfeiture order to forfeit real property restrained by a restraining order made by McGrath J on 9 December 2016.

The Commissioner applies as a 'responsible authority' within the meaning of that term in Section 338 of the Act as a 'proceeds of crime authority' within the meaning of that term in Section 338. Section 317 of the Act, provides that, the Applicant in any proceedings under the Act bears the onus of proving the matters necessary to establish the grounds for making the order applied for, and that (subject to Section 52 and Section 119 not being relevant to this matter) any question of fact to be decided by the court on an application is to be decided on the balance of probabilities.

Section 49(1) imposes an obligation on the Court to make a forfeiture order in the event that the four conditions in Section 49(1) are satisfied. The Court is only released from that obligation, if the court is satisfied of the matters specified in Section 49(4). If the pre-conditions specified in Section 49(4) are met, the discretion conferred by Section 49(4) is only enlivened, if the Court is satisfied that, it is not in the public interest to make a forfeiture order.

Present Court also satisfied that, the condition in Section 49(1)(e) has been satisfied and that the authority has taken reasonable steps to identify and notify the persons with an interest in the property. An 'interest' in relation to property or thing is defined in Section 338 of the Act to mean a legal or equitable estate or interest in the property or thing or a right, power or privilege in connection with the property or thing, whether present or future and whether vested or contingent.

There are three identified persons who have an interest in the restrained property. These are the Westpac Banking Corporation, who hold a registered mortgage over the restrained property, the tenants of the property and the respondent who is the registered proprietor of the restrained property. Respondent has notice of the restraining order and these proceedings. On 2 May 2017, Mr Victor Lo of Forbes Kirby Lawyers entered a memorandum of appearance for the respondent.

On 5 June 2018, delegates of the Commissioner inquired of Mr Lo by email whether the respondent would bring an application to exclude property from the restraining orders under the Act. No response was received from Mr Lo.4. On 18 January 2019, a second email was sent to Mr Lo on behalf of the Commissioner to again inquire whether the respondent intended to bring an application to exclude property from the restraining orders. No response was received from the respondent's solicitors.

Each of the relevant conditions specified in Section 49(1) of the Act have been made out and there is no basis for the court to refuse the order sought and, specifically, no basis on which the court could consider whether the public interest warrants such an order not being made, pursuant to Section 49(4) of the Act.

Tags : Forfeiture order Proceeds Conditions

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