Commissioner of the Australian Federal Police v Sha

HIS HONOUR: By a notice of motion filed on 17 April 2020, the plaintiff, being the Commissioner of the Australian Federal Police (“AFP”), sought orders pursuant to s 180 of the Proceeds of Crime Act 2002 (Cth) (“the Act”), to the effect that each of the three defendants be examined in relation to their own affairs and those of the other two defendants. As well, an order was sought that a fourth person be examined in respect of the affairs of each of the three defendants.

The defendants to these proceedings are Sigmund Sha (also known as Xin Sha and Sigmund Xin Sha) (“the first defendant”), Dingzhi Sha (also known as Daniel Sha) (“the second defendant”) and Xi Cai (“the third defendant”). The plaintiff has forwarded to my Chambers by email copied to the legal representatives of the three defendants, short minutes of order, stating that each of the defendants’ consent to those orders being made in respect of the notice of motion. I am also informed that the parties are content for the matter to be dealt with in Chambers. Since the matter is straightforward, I will do so.

I note that the short minutes of order do not include the order sought in the notice of motion in relation to the fourth person. Instead, one of the draft orders provides that “the balance of the notice of motion … be adjourned to 12 February 2021 … for directions”. I accept that this is an available course in relation to that part of the notice of motion.

Section 180 of the Act provides as follows:

On 1 August 2019, on the plaintiff’s application, I made a restraining order in relation to certain property associated with the defendants: Commissioner of the Australian Federal Police v Sha [2019] NSWSC 1048. Accordingly, to the extent that the proposed examinations will concern the same property, the requirement of s 180(1) of the Act is met.

In relation to ss 180(1)(a) to (c), the plaintiff relies upon two affidavits affirmed by Scott Matthews on 30 July 2019 and 17 April 2020, who deposes that he is a member of the AFP and therefore an authorised officer within the definition of that term at s 338 of the Act. The plaintiff has filed a further affidavit of Scott Matthews, affirmed on 17 July 2020. As the plaintiff has not identified it as evidence it relies upon, I disregard it.

Having regard to the content, including the annexures, of Mr Mathews’ two affidavits, I am satisfied that the requirements of ss 180(1)(a), (b) or (c) are satisfied, and so it is appropriate to make the orders in the terms sought.