Commissioner of the Australian Federal Police v Battah

On 19 March 2021, Justice Cavanagh, sitting as the duty judge, dealt with a summons filed by the Commissioner of the Australian Federal Police (“the Commissioner”) seeking a variety of orders under the Proceeds of Crime Act 2002 (Cth). It included a vast array of orders, some facilitative and some substantive, and critically, for present purposes, restraining orders under the Act in respect of property of two defendants who, as I follow it, are husband and wife: the first defendant, Matthew Battah, and the second defendant, Zoe Battah.

His Honour delivered a short ex tempore judgment in which he set out the evidence that led him, and the prosecuting authority, to be of a certain state of mind, that is, having a suspicion relevant to the provisions of the Act justifying the making of the restraining orders and other ancillary orders. Those proceedings unsurprisingly were dealt with ex parte. The relevant orders made were as follows:

Schedule One included:

The background to the matter involved an investigation back in 2014 and 2015, an allegation of the importation of certain prohibited drugs and associated allegations of money laundering and/or dealing with the proceeds of crime.

The first defendant, that is Matthew Battah, has been charged with a variety of offences. I am told, and accept from Ms Lopez who appears on his behalf, that his trial for those offences is listed to be heard next year.

In the early stages of the current (proceeds of crime) proceedings, both defendants were represented by Zahr Partners. On 15 September 2022, that is over a year after Cavanagh J made the restraining orders, there was filed in the court registry a notice of removal of solicitor on behalf of the second defendant, Zoe Battah. Relevantly, Ms Battah, named as the filing party, nominated a specific address in Dubai in the United Arab Emirates.

The Commissioner (or plaintiff) now seeks orders, specifically under s 180 of the Act, for an examination of the second defendant, including an examination in relation to the affairs of herself and the first defendant. To that end, the Commissioner’s lawyers and employees have made attempts to notify her of the current proceedings to see if she wished to be heard against the making of the examination order. There is an affidavit of Ursula Claire Bouzaid affirmed on 27 January 2023 explaining the method of service of a letter upon Ms Battah. The letter is annexed to that affidavit, as is the Australia Post tracking documentation. It is unnecessary to go into detail but the letter explained what had happened up until 29 November 2022, asked the second defendant if there was any opposition to the making of an examination order, asked whether there was any consent to the making of the order, provided a draft consent order to that effect. The balance of the annexed documentation established the delivery of the item on 5 December 2022.

As I have said, Ms Lopez of Zahr Partners appears to protect the interests of her client, the first defendant, and specifically raises concerns about the possible interference with the integrity of the criminal proceedings currently listed in the District Court, and at least initially sought that any order that was made be restricted to an examination in relation to the affairs of the second defendant only and not her client, that is, the first defendant. However, in the course of some discussion between the parties’ representatives and I, it has become clear enough that non-disclosure orders can be made pursuant to s 266A of the Act to prevent the dissemination and disclosure of anything Ms Battah were to say about her husband’s financial affairs, such that Ms Lopez accepts that her client’s interests would be protected even if Ms Battah is asked questions about the affairs of her husband.

All of this presupposes that somehow the examination will in fact take place in spite of the fact that, on its face, it would seem that shortly after a search warrant was executed, Ms Battah left the country and is not showing a great deal of enthusiasm for coming back. She is a suspect in relation to offences of dealing with the proceeds of crime pursuant to the Criminal Code Act 1995 (Cth), potentially money laundering and, perhaps by way of inference although it is not specifically asserted, some involvement in the big drug importation with which her husband currently stands charged.

Returning to s 180 of the Proceeds of Crime Act, I am satisfied that a restraining order is in force and that Ms Battah is a suspect in relation to the restraining order. It might also be thought that she may be a person who claims an interest in the relevant property, but that is not pressed or relied upon. She may also, perhaps, satisfy the criteria of being a spouse or de facto partner of a suspect person. But, again, I do not need to go down that rabbit hole because that is not what is pressed or relied upon by the Commissioner. There is no doubt she is a person who is “a suspect” in relation to the restraining order.

The Court is provided with a discretion by the use of the word “may” in subs (1) of s 180. In the circumstances, based on the evidence that I have seen and the absence of any resistance on the part of Ms Battah, who it would seem has been made aware of these proceedings and was legally represented in the proceedings until 15 September 2022, I am satisfied that orders should be made in the following terms: