Application by the Commissioner of the Australian Federal Police

[2018] NSWSC 1302

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

1. 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).

2. 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.

3. 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".

4. 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.

5. 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.

6. 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.

7. 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).

8. 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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