The Commissioner of the Australian Federal Police v Revell-Reade & Ors

1. [1]

   On 20 March 2019 the Court made an order for the registration of a foreign confiscation order, pursuant to section 34A of the Mutual Assistance in Criminal Matters Act 1987 (Cth) (“the Mutual Assistance Act”). Reasons were reserved until today.

The Evidence

1. [2]

   Two volumes of documentary evidence were before the Court, filed on behalf of the Commissioner, and by Ms Andrea Young, the first respondent. Ms Young is the only respondent to take an active interest in the application in this jurisdiction. Broadly, the evidence read on behalf of the Commissioner went to establish the details of the order made in the United Kingdom which was sought to be registered in New South Wales, and the relevant foreign law, together with evidence necessary to satisfy the terms of s 34A of the Mutual Assistance Act. Ms Young read and tendered evidence supportive of a claim she wishes to advance of ownership of some of the property currently restrained.

Factual Background

1. [3]

   On 17 October 2012, the High Court of Justice of England and Wales made orders to restrain assets belonging to the defendant, Mr Revell-Reade, some of which are located in Australia. On 18 March 2014, the Commissioner brought proceedings in this Court to register the restraining orders under s 34A of the Mutual Assistance Act. These orders were registered in Australia by an order made by Davies J.

2. [4]

   Subsequently, on 4 June 2014, Mr Revell-Reade was convicted of conspiracy to defraud and sentenced to a term of imprisonment in the United Kingdom. He remains in custody and has taken no active part in these proceedings.

3. [5]

   On 12 October 2015, further restraining orders were made in the United Kingdom against the defendant’s assets, and these were registered in this Court on 21 June 2016. The registration for the original 2012 restraining orders was cancelled, pursuant to s 34G(3) of the Mutual Assistance Act.

4. [6]

   A “Confiscation Order” was subsequently made by his Honour Judge Gledhill QC in the Southwark Crown Court on 19 April 2016 under s 6 of the Proceeds of Crime Act 2002 (UK). This ordered Mr Revell-Reade to pay the sum of £10,751,000.00. The Schedule to this order identified the defendant’s assets, some of which are located in Australia (Items 2-5, 9).

5. [7]

   This order was amended by Judge Gledhill QC on 10 April 2017 to reduce the amount payable to £7,535,802.67.

6. [8]

   On 12 April 2017, an authorised delegate of the Commonwealth Attorney-General, Mr Stephen Bouwhuis, authorised the Commissioner to apply to this Court to register the confiscation order.

7. [9]

   On 20 April 2018, the Commissioner filed a Notice of Motion seeking to register the confiscation order. The motion was served on Mr Revell-Reade; his wife Ms Young, who has an interest in some of the identified property; and on the second respondent in the proceedings, Oz Propertycorp, the owner of the defendant’s Darling Point residence prior to its sale, and “the surplus proceeds being restrained”. At this point, the Commissioner was only authorised to apply for registration in relation to the order for £10,751,000.00, but the authorisation was later amended to authorise the application for registration of the revised order, as at 10 April 2017.

The Relevant UK Law

1. [10]

   Under s 6 of the Proceeds of Crime Act 2002 (UK), a confiscation order may be made by the Crown Court where a defendant has been convicted of an offence in the Crown Court, is committed for sentence, or his or her matter is committed to the Crown Court “with a view to a confiscation order being considered”. The prosecution must request the order to be made or the court must believe it is appropriate to do so. The court must then decide whether the defendant has a criminal lifestyle, and if so, whether he or she has benefitted from his or her general criminal conduct and or whether he or she has benefitted from his or her particular criminal conduct. If a benefit can be established, the court must decide the recoverable amount and make a confiscation order that requires the defendant to pay that amount.

2. [11]

   The Relevant Australian Law

3. [12]

   The Mutual Assistance Act is intended to “facilitate international cooperation” in order to recover property in Australia through the registration and enforcement of foreign orders.

4. [13]

   Section 34A functions to ensure that foreign orders, where authorised, are registered in Australia except where it would be contrary to the interests of justice to do so. Specifically, Section 34A(1) provides that:

5. [14]

   For the purposes of s 34A(1), the Commissioner of the Australian Federal Police is a proceeds of crime authority and this Court has the relevant proceeds jurisdiction, both pursuant to s 3(1) of the Act.

6. [15]

   Relevantly, pursuant to s 3(1), a foreign order includes “foreign forfeiture order”, “a foreign pecuniary penalty order” or “a foreign restraining order”, where a “foreign forfeiture order” is

7. [16]

   a “foreign pecuniary penalty order” is

8. [17]

   and a “foreign restraining order” is

9. [18]

   A confiscation order of the sort made against the defendant in the United Kingdom may be characterised as a “foreign pecuniary penalty order” for the purposes of the Mutual Assistance Act, and thus is registrable in this Court.

The Question of Ms Young’s Interests

1. [19]

   The material contained within Volume Two of the Court Book filed jointly by the parties goes to the question of Ms Young’s interest in some of the items of property the subject of the restraining order, and storage fees she has incurred relevant to the property.

2. [20]

   Whilst it will be important should the point be reached where it is necessary for Ms Young to establish an interest in the property that takes priority over the charge in favour of the Commonwealth, it is not relevant to the question of registration.

3. [21]

   Should Ms Young be unable to negotiate with the Commissioner for the release to her of property over which she claims ownership, proof of that ownership, and the costs incurred in storing it pursuant to the restraint of the assets, will be significant. That point has not been reached.

Consideration

1. [22]

   Having considered the evidence, and the relevant UK and local law, I am satisfied that this Court has “proceeds jurisdiction”, and that a “proceeds of crime authority” has made an authorised application for registration of a foreign order under Subdivision A of Division 2 of Part VI of the Mutual Assistance Act. There is no reason to conclude that it would be contrary to the interests of justice to register the order and, accordingly, it must be registered pursuant to s 34A of that Act.