Commissioner of the Australian Federal Police v Dickson

1. [1]

   On 22 December 2014 Anthony James Dickson was found guilty by a jury of two offences against the Criminal Code 1995 (Cth). The first offence was contrary to s 135.4(5) that he did conspire to dishonestly cause a loss to the Commonwealth knowing or believing there was a substantial risk of the loss occurring. The other offence was contrary to s 400.3(1) of the Code, that he conspired to deal with property of a value of one million dollars or more believing it to be the proceeds of crime. The offences were said to have been committed between November 2005 and December 2011. They involved the offender making false depreciation claims in tax returns amounting to hundreds of millions of dollars.

2. [2]

   On 5 April 2012, prior to the offender’s trial, the Commissioner of the Australian Federal Police had commenced proceedings against the offender and others arising out of the offences under the Proceeds of Crime Act 2002 (Cth). Restraining orders were made under s 18 of the Act against the offender and his ex-wife Dagmar Maxianova (together referred to as the Applicants).

3. [3]

   Following the offender’s conviction his property which was restrained in these proceedings would automatically forfeit to the Commonwealth in six months unless an extension order were made or property was excluded from the forfeiture. Sections 92, 331(1)(a) and 333(a) have the effect that the date of conviction for forfeiture purposes is the date the offender was sentenced, notwithstanding he had actually been convicted on 22 December 2014. The date of the offender’s sentence was 20 March 2015: R v Anthony James Dickson [2015] NSWSC 268.

4. [4]

   On 10 August 2015 the Applicants by Notice of Motion sought an extension of the forfeiture period under s 93(1) of the Act and orders pursuant to s 94(1) excluding the property in Items 1 - 4, 9a, 9b, 11, 13, 14 and 28 of a s 92A Notice issued by the Commissioner dated 29 June 2015.

5. [5]

   On 25 August 2015 by consent McCallum J ordered that there be an extension of the automatic forfeiture date to 20 December 2015.

6. [6]

   On 1 December 2015 each of the Applicants filed Notices of Motion in these proceedings again seeking orders pursuant to s 93(1) of the Act extending time and seeking orders pursuant to s 94(1) that the same property included in a s 93(4) Notice issued by the Commissioner dated 11 September 2015 be excluded from forfeiture. On 8 December 2015 Schmidt J by consent extended the automatic forfeiture date for those items to 19 May 2016 so the applications could be heard before that time.

7. [7]

   Section 94 relevantly provides:

8. [8]

   On 18 December 2015 each of the Applicants filed a Notice of Motion which sought discovery of documents and records in the control or possession of the Commissioner in relation to each of the Items sought to be excluded from forfeiture by the Applicants. This judgment concerns those motions. Mr Dickson’s Notice of Motion also sought orders (prayers 3, 5 and 10) that the Commissioner disclose to Mr Dickson the whereabouts of Items 1, 2 and 11 and matters associated with those Items which are two motor vehicles and a yacht. Those prayers were abandoned at the hearing of these Motions.

9. [9]

   It is necessary to set out the precise terms of the discovery sought in the Motions. Mr Dickson’s Motion asks for orders in these terms:

10. [10]

    Ms Maxianova seeks orders in these terms:

11. [11]

    Each Motion was supported by a relevantly identical affidavit from the Applicants’ solicitor Stephen Tully affirmed 17 December 2015. The Commissioner read an affidavit of Alana Claire Jessep sworn 3 December 2015. That affidavit in turn referred to portions of three affidavits of Adam Thomas Sandon sworn 26 April 2012, 27 April 2012 and 13 May 2013. Those affidavits had been sworn in support of applications for restraining orders under s 18 of the Act.

12. [12]

    Mr Tully’s affidavits referred to the seizure by the AFP of numerous documents from Mr Dickson’s control during the course of the criminal investigation. Mr Tully disputed the assertions of Ms Jessep in her affidavit and in correspondence annexed to the two affidavits that he, Mr Tully, had most of the material in respect of which discovery was sought.

13. [13]

    Mr Tully gave oral evidence where he said that his firm had acted for Mr Dickson in the criminal proceedings. At some point his firm ceased to act and when he did so he forwarded all of the material he had to Mr Dickson’s de facto partner. The solicitor came back into the criminal proceedings in relation to Mr Dickson’s appeal in August 2015 but did not come back into the present proceedings until December 2015. A Notice of Appointment of Solicitor was filed by him on 4 December 2015. The solicitor said further that on his instructions Mr Dickson did not have the material now sought and he, the solicitor, was not able under the grant of Legal Aid he had obtained for the present proceedings to locate and go through what he said were the 150 large boxes of material from the criminal trial that had earlier been forwarded to Mr Dickson’s de facto.

14. [14]

    Mr Tully said further in his affidavit that without discovery of all the documents in the possession of the Commissioner the Applicants were prejudiced in the prosecution of their Motions to exclude the specified items from forfeiture.

15. [15]

    There was evidence that six boxes of documents taken from the Applicants’ home in Northbridge have been returned to the Applicants but the documents needed by the Applicants are said not to be found in those boxes.

16. [16]

    On 15 December 2015 the solicitor for the Commissioner wrote to the Applicants’ solicitors enclosing the following documents:

17. [17]

    In their submissions the Applicants pointed to the fact that the Commissioner must act as a model litigant under the Legal Services Directions 2005 (Cth). The submissions reiterated the need of the Applicants to have the documents so that they are not prejudiced in the prosecution of their exclusion Motions. The Applicants submitted further that they are not seeking discovery of all documents seized by the Commissioner but only those in the categories specified in the Notices of Motion. Those documents were submitted to be relevant to facts in issue in the proceedings, namely, whether the Applicants’ interest in the items was lawfully acquired.

18. [18]

    In answer to any argument by the Commissioner that the provision of discovery would be oppressive, the Applicants drew attention to the fact that, as they assert, the Commissioner was able to provide the Australian Tax Office with an account of or copy of all documents that had been seized by the AFP and a copy of some 12,000 pages of those documents to the Applicants, presumably during the trial.

19. [19]

    Ms Jessep’s affidavit deals with the property in each of the relevant Items. The affidavit either identifies specifically when each Item of property was purchased or does so by reference to Mr Sandon’s affidavits. In that regard the time and extent of the offending should be noted. The indictment alleged that the offending occurred between 15 November 2005 and 2 December 2011. The sentencing judgment made specific reference at [17] and [27] to tax returns commencing with the tax year ending 30 June 2007. Beech-Jones J accepted that the amount to which Mr Dickson profited from the offences was $19,616,996.37 – see at [95] of the judgment.

20. [20]

    The key test for the purposes of discovery is that documents are to be relevant to a fact in issue: Part 21.1(2), r 21.2(3) and (4) UCPR. A document

21. [21]

    In the present case the fact in issue is whether the assets in question and the funds in accounts can be shown by the Applicants to fall outside the provisions of s 329 of the Act; that is to say, the asset is not wholly or partly derived or realised, whether directly or indirectly, from the commission of the offences.

22. [22]

    I will now deal with each of the items in respect of which discovery is sought.

Item 1 (Notice of Motion paragraph 2)

1. [23]

   This was a Rolls Royce Phantom purchased on 11 December 2008. It was purchased outright with no registered security interests. Mr Dickson gave evidence that the vehicle was purchased from the trade-in of another car and with $300,000 as part of his remuneration from his employment contract with Rand Stone Consulting.

2. [24]

   The documents sought by Mr Dickson in relation to this item are documents in relation to the purchase, the registration and insurance details together with bank transaction details that presumably show the payment of the purchase price.

3. [25]

   The significant fact relating to this Item (and with others later discussed) is that it was purchased during the period of the commission of the offences. Further, Beech-Jones J concluded that the evidence Mr Dickson gave concerning his arrangements with Rand Stone and HFAC Harmony Biotechnology Private Equity Partnership, to whom Rand Stone was a consultant, was false (see at [39] to [42]). Whether or not Mr Dickson wishes to contend that this conclusion was wrong (and, if he does, it seems likely he would have to contend that the jury’s verdict was wrong (see para [42])), the documents sought in paragraph 2 of the Notice of Motion do not throw any light on the source of funds used to purchase the vehicle. The documents or classes of documents itemised in paragraph 2 are entirely neutral in that they simply evidence the purchase of the vehicle without providing any evidence of the source of funds to do so.

4. [26]

   It is no answer that the vehicle was acquired partly by using another vehicle as a trade-in because s 329 of the Act includes in the definition of proceeds of an offence if:

5. [27]

   Simply put, the documents or classes of documents sought in paragraph 2 do not go to a fact in issue because the fact in issue is the source of the purchase price of the property.

Item 2 (Notice of Motion paragraph 4)

1. [28]

   This is a Riviera 4400 sports yacht.

2. [29]

   This was acquired on 22 March 2012. Mr Dickson says again that it was financed by his employer Rand Stone Consulting.

3. [30]

   The documents sought are relevantly identical to those sought in respect of the Rolls Royce. What I have said in relation to Item 1 applies equally to these documents.

Item 3 (Notice of Motion paragraph 6)

1. [31]

   This Item is the sale proceeds derived from the interest of Prima Ultima Pty Ltd in the Morningside Shopping Centre. The interest of Prima Ultima was acquired on 5 June 2009 for $10.35 million. Prima Ultima was incorporated on 24 April 2009 and was the trustee for the Primo Ultimo Trust which was also created on that day. This falls in the middle of the period of the offending when it is clear substantial money had been made from the offending.

2. [32]

   The documents sought in paragraph 6 are documents related to the purchase and sale of the property, as well as documents of account relating to the sale of the asset and the administration of the asset both before and after the restraining orders were made under s 18 of the Act.

3. [33]

   As with the earlier Items, the documents sought do not concern the fact in issue which is the source of the funds used to purchase the property.

Item 4 (Notice of Motion paragraph 7)

1. [34]

   This was a property in Collingwood Drive, Redbank, Queensland purchased by a company called Bristol Wattle Properties Pty Ltd. The evidence in Mr Sandon’s affidavit was to the effect that the money to enable Bristol Wattle Properties to purchase the Collingwood Drive property came from Prima Ultima and the equity it held in the Morningside Shopping Centre.

2. [35]

   The documents sought are chiefly documents associated with the purchase of the asset and also documents concerning the administration of that asset prior to the s 18 orders. In that way the same considerations apply as with the earlier Items.

Items 9a and 9b (Notice of Motion paragraph 8; Ms Maxianova’s Motion paragraph 2)

1. [36]

   These items are the only items where documents are sought by Ms Maxianova. They are also sought by Mr Dickson. They relate to the interest of Ms Maxianova and Dampier Finance FX Strategies Ltd in the Northbridge property where Mr Dickson was living and where the six boxes of documents were seized. The property was purchased in Ms Maxianova’s name on 2 March 2005. The purchase price was $4.6 million with $3.3 million being transferred to her from a Hong Kong bank account in the name of Intrepid Finance International Ltd.

2. [37]

   The documents sought in paragraph 2 of Ms Maxianova’s Notice of Motion and paragraph 8 of Mr Dickson’s Notice of Motion are all documents related to the purchase of the property except for documents concerning the administration of the asset prior to the s 18 orders.

3. [38]

   It may be accepted that this asset was purchased prior to relevant dates relating to the commission of offences by Mr Dickson. It may also be accepted for present purposes that any tainted funds received by Intrepid Finance related to periods subsequent to the purchase and apparently unconnected with it. Those matters are favourable to the Applicants in relation to this Item as far as their attempt to exclude it from the forfeiture provisions is concerned. However, the documents sought in respect of these Items, on the face of the description of them, tend only to support what the Plaintiff already acknowledges, that the property was bought prior to the offending and with funds unrelated to the offending. The Plaintiff relies instead on the fact that the mortgage on the property in favour of Dampier Finance was a sham and that Ms Maxianova provided few or no funds based on her disclosed income. There seems also to be some peripheral reliance on the fact that tainted funds went to the Intrepid Finance account subsequently.

4. [39]

   The documents sought by the Applicants do not address those matters and do not otherwise go to the fact in issue which is the source of the funds to purchase the property to the extent that that source is not already acknowledged by the Plaintiff in paragraph 58 of Ms Jessep’s affidavit.

Item 11 (Notice of Motion paragraph 9)

1. [40]

   This item is a Rolls Royce Ghost. It was purchased on 21 March 2011. The car was purchased in the name of Sydney City Prestige Wholesale Pty Ltd. It may be noted, however, that it is Mr Dickson who seeks the exclusion of this asset from the forfeiture. There is evidence both from the registration plate and where the vehicle is located to suggest that it is an assert of Mr Dickson’s reasonably suspected of having been purchased with tainted funds.

2. [41]

   The documents sought mirror those sought in respect of Item 1 being the other Rolls Royce. My comments in relation to Item 1 apply to this item also.

Items 13, 14 and 28 (Notice of Motion paragraph 11)

1. [42]

   These Items are funds held in various bank accounts. Items 13 and 14 relate to accounts of Dampier Finance FX Solutions Ltd with the Bank of New Zealand. There were three accounts with funds as at 29 February 2012 totalling almost $2 million. Item 28 concerns funds held with the Abu Dhabi Commercial Bank in the United Arab Emirates.

2. [43]

   The documents sought are documents relating to the setting up of the accounts, bank statements for the accounts and any deed or other documents concerning the administration of the accounts prior to the s 18 orders.

3. [44]

   None of the documents sought is relevant to a fact in issue. The description of the documents does not suggest that they would disclose the source of the funds in a way which would enable the Applicants to show that the funds were not tainted. All of the documents seized in relation to the Abu Dhabi bank are included in Exhibit AS3 to the affidavit of Adam Thomas Sandon sworn 13 May 2013. I asked counsel for the Applicants whether he was seeking as part of discovery copies of affidavits already filed and served in the proceedings (see paragraph 10 of Mr Tully’s affidavits) and he said that he was not. In any event, the earliest of the Abu Dhabi bank documents is dated 2009, a date well after the offending commenced.

4. [45]

   As with all of the other Items there is no affidavit from Mr Dickson which expresses any belief about the existence of documents in the Commissioner’s possession that would tend to show that the funds or the assets concerned were lawfully acquired. Counsel for the Applicants said that the difficulty in that regard is that Mr Dickson is incarcerated and there is no ability for him to be preparing affidavits because he does not have access to documents and he cannot remember with precision what he believes he had done in the past.

5. [46]

   There are two possible responses to this. First, it would always be open to Mr Dickson on an interlocutory application such as this for his solicitor to swear an affidavit on information and belief about the existence of the documents in respect of which discovery is sought. That has not been done. This was despite his counsel submitting

6. [47]

   Secondly, if Mr Dickson has no recollection of the existence of documents which may assist his exclusion application, his attempts to obtain discovery by reference to very general categories of documents put forward suggests that the exercise is a fishing expedition.

7. [48]

   In Pavlavi v Radio 2UE Sydney Pty Ltd [2011] NSWCA 264 Allsop P (with whom Macfarlan JA agreed) said at [101]:

8. [49]

   The documents or classes of documents identified by the Applicants do not, on the evidence, go to a fact in issue in the application under s 94. Nothing is identified to suggest that the Commissioner has any document in his possession beyond the material in affidavits filed on his behalf that goes to a fact in issue. Although it is not apparent on the evidence how the bank records referred to in the Notice of Motion are relevant to the s 94 application the Applicants have available other court processes to obtain that material.

9. [50]

   Accordingly, I make the following orders:

   1. (1)

      The Notices of Motion by the First and Fourth Defendants filed 18 December 2015 are dismissed.

   2. (2)

      The First and Fourth Defendants are to pay the Plaintiff’s costs.