Application by the Commissioner of the Australian Federal Police

By summons filed on 2 October 2015, the Commissioner of the Australian Federal Police (the Commissioner) seeks various orders under the Proceeds of Crime Act 2002 (Cth) (the Act), including a restraining order pursuant to s 19; an order for custody and control pursuant to s 38; orders for examination under s 80; and an ancillary order pursuant to s 39(1) that sworn statements be provided.

In support of the summons, the Commissioner, for whom Ms Millington appears, relies on the affidavit of Darren Burtenshaw sworn 1 October 2015. Federal Agent Burtenshaw deposes in paragraph one of his affidavit that he is a member of the Australian Federal Police (AFP).

Two of the persons interested in these orders, Weili Cui and Shushan Li, appeared at today’s hearing by their solicitor, Ms Xu. They did not oppose the orders sought but foreshadowed an application for an exclusion order, which is addressed further below.

On 11 March 2015 Ms Cui was endeavouring to deposit an amount of $200,000 in cash at the World Square branch of the National Australia Bank in Sydney. She was questioned. AFP officers seized the cash as they suspected it to be proceeds of crime. The evidence reveals details of the bank accounts in the names of Ms Cui and other associates as well as declarations made when Ms Cui and others were entering Australia as to the amount of cash they were bringing into Australia. It is not necessary for present purposes to set out this evidence, which is contained in the unchallenged affidavit of Federal Agent Burtenshaw and the exhibit thereto.

The legislative requirements for a restraining order are set out in s 19 of the Act, which provides that a court with proceeds jurisdiction, which includes this Court, must, if certain conditions are fulfilled, make an order that property not be disposed of or otherwise dealt with by any person. The Court's obligation to make an order with respect to serious offences is subject to its satisfaction that an appropriate undertaking has been given: s 21 of the Act.

I note that Ms Millington is instructed to provide the usual undertaking on behalf of the Commonwealth as to costs and damages arising from the restraining order. I regard this as an appropriate undertaking for the purposes of s 21 of the Act.

Section 19 provides:

The conditions the fulfilment of which entitles the Commissioner to an order under s 19(1)(a) or (b) are set out in 19(1)(c), (d), (e) and (f) of the Act. These will be considered in turn.

The Commissioner is a proceeds of crime authority by reason of the definition in s 338 of the Act. Accordingly s 19(1)(c) is fulfilled.

Section 19(1)(d) requires that there be reasonable grounds to suspect that the property is relevantly the proceeds of an indictable offence of the Commonwealth or an instrument of a serious offence. The relevant offences are offences against s 53 of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), and offences contrary to 400.9 of the schedule to the Criminal Code Act 1995 (Cth) (the Criminal Code). Section 400.9 is contained in Part 10.2 of the Criminal Code.

These are both serious offences within the meaning of s 338 of the Act, which relevantly includes:

Having read the affidavit of Federal Agent Burtenshaw, I am satisfied that there are reasonable grounds to suspect that the property referred to in schedule 1 (to the summons and to the minute of order) is the proceeds of an indictable offence, or indictable offences, within the meaning of s 19(1)(d)(i) and (ii).

Section 19(1)(e) of the Act provides that it is a condition of the making of an order that the application is supported by an affidavit of an authorised officer, which states that the authorised officer suspects that the property is proceeds of the offence; or, if the offence to which the order relates is a serious offence, the property is an instrument of the offence; and which includes the grounds on which the authorised officer holds the suspicion.

The definition of authorised officer in 338 of the Act includes an AFP member, if authorised by the Commissioner. The evidence establishes that Commissioner Negus, by authorisation dated 26 August 2013, authorised all AFP members to be authorised officers under the Act. Accordingly, Federal Agent Burtenshaw is an authorised officer.

I am satisfied that the condition in s 19(1)(e) is fulfilled by the affidavit of Federal Agent Burtenshaw affirmed on 1 October 2015. He sets out the basis for his suspicion in paragraphs 11 to 87 of the affidavit, and summarises those grounds in paragraph 88 of the affidavit.

I am also required, by reason of s 19(1)(f), to be satisfied that the authorised officer who made the affidavit holds the suspicion stated in the affidavit on reasonable grounds. I am satisfied that the matters set out in paragraphs 11 to 87 of Federal Agent Burtenshaw’s affidavit and summarised in paragraph 88 of that affidavit provide sufficient basis by way of reasonable grounds for the suspicion to which Federal Agent Burtenshaw deposes.

For the reasons given above, I am persuaded that I am obliged to make an order under s 19(1)(b) of the Act with respect to the cash sum of $199,990 seized by the members of the Australian Federal Police on 11 March 2015 and banked in the AFP Reserve Bank trust account, together with any interest earned on that amount.

The Commissioner, as I have referred to above, also seeks a custody and control order of those funds. I am satisfied that it is appropriate to make an order under s 38 of the Act that the official trustee in bankruptcy is to take custody and control of the property specified in schedule one being that capital sum together with interest.

Having regard to the matters in Federal Agent Burtenshaw’s affidavit, I am also satisfied that it is appropriate to make an examination order under s 180 of the Act which permits the following persons to be examined about the affairs of Weili Cui: Weili Cui; Shushan Li; Bei Jiang; and Junguo Wang. I am also satisfied that it is appropriate to make an order pursuant to s 180 of the Act that those four persons be examined about the affairs of Shushan Li.

The Commissioner also seeks an order pursuant to s 39(1) of the Act which empowers me to make orders ancillary to a restraining order. Ms Millington seeks orders under ss 39(1) (including (ca) and (da)) directing certain persons to give a sworn statement to a specified person within a specified period setting out particulars of or dealings with the property or interests in property and his or her liabilities.

I am satisfied that it is appropriate, having regard to the apparently suspicious provenance of funds available to Ms Cui and Mr Li, that orders under s 39(1) of the Act be made in accordance with the prayers in the summons.

Shushan Li is the sole director of Golden Forest International Pty Ltd and a director of Golden Forest Group Pty Ltd. In all the circumstances, I am satisfied that the dubious provenance of the substantial cash funds makes it desirable to make an order under s 39(1) that Mr Li, in his capacity as the sole director of Golden Forest International Pty Ltd and as a director of Golden Forest Group Pty Ltd, be directed to provide a sworn statement, the details of which are set out in the minute of order provided by Ms Millington on behalf of the Commissioner.

Ms Cui is also a director of Golden Forest Group Pty Ltd. I am satisfied that, for the same reasons, she ought be required pursuant to s 39(1) of the Act to provide to the Commissioner a sworn statement setting out the matters which will be detailed in the orders which I shall shortly make.

Ms Xu has foreshadowed that her clients (Ms Cui and Mr Li) wish to seek an exclusion order under ss 29 and 31 of the Act in respect of the property the subject of the restraining order.

Ms Xu has recently served two affidavits on the Commissioner in support of the proposed application for an exclusion order. However, she acknowledged that her clients were not in a position to proceed with an application for an exclusion order. Further, because of the late notice, the Commissioner would not have been in a position to deal with them today.

It is desirable that directions be made about any application for an exclusion order, having regard to the Commissioner's intention to apply in due course for a forfeiture order pursuant to s 49 of the Act. As there is some doubt as to when the proposed applicants, Ms Cui and Mr Li, will be ready to make such an exclusion order, I propose to allow them until 28 February 2016 to put on any such application, together with any evidence on which they wish to rely in support of that application.

If such an application is filed, it will be given a return date by the Registry. If no such application is filed, this matter will come back before the Common Law Registrar for directions at 9am on 18 May 2016.

For those reasons, and noting the undertaking given by Ms Millington on behalf of the plaintiff, I make orders in terms of paragraphs 1, 2, 3, 4, 5, 6, 7, 8, and 9 of the minute of order as follows: