COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE [2025] SASC 201

Applicant: COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE Counsel: MR D BILLINGTON SC - Solicitor: AUSTRALIAN FEDERAL POLICE Respondents: DFC AND FMC Counsel: MR W MICKAN - Solicitor: PATSOURIS & ASSOCIATES Hearing Date/s: 29/09/2025 File No/s: CIV-21-005623 B SUPREME COURT OF SOUTH AUSTRALIA (Civil: Application) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court in which it was generated. COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE v DFC & ANOR (No 2) [2025] SASC 201 Reasons for Ruling of the Honourable Chief Justice Kourakis (ex tempore) 29 September 2025 CRIMINAL LAW - PROCEDURE - CONFISCATION OF PROCEEDS OF CRIME AND RELATED MATTERS - FORFEITURE OR CONFISCATION CRIMINAL LAW - PROCEDURE - CONFISCATION OF PROCEEDS OF CRIME AND RELATED MATTERS - FORFEITURE OR CONFISCATION - DISCRETION TO MAKE ORDER The Commissioner of the Australian Federal Police, the applicant, seeks an order under the Proceeds of Crime Act 2002 (Cth) s 39(1)(ca), ancillary to the original restraining order made on 4 June 2021. The order sought requires DFC, the first respondent, to provide sworn statements to an agent of the applicant detailing interests in property and all liabilities. The respondents oppose the application. Held, granting in part the interlocutory application (FDN 19): 1. The order sought is appropriate in the circumstances; 2. The respondents have not established any particular circumstances that would prevent the making of the order; 3. The order only applies to assets with a value exceeding $5,000. Proceeds of Crime Act 2002 (Cth) ss 6, 7, 39, referred to. Commissioner of the Australian Federal Police v D C & Anor [2025] SASC 9, discussed. -- 1 of 7 -- -- 2 of 7 -- COMMISSIONER OF THE AUSTRALIAN FEDERAL POLICE v DFC & ANOR (No 2) [2025] SASC 201 1 KOURAKIS CJ (ex tempore): On 4 June 2021, the Commissioner of the Australian Federal Police (‘the Commissioner’) instituted this action seeking a variety of restraining, custody, ancillary and forfeiture orders (FDN 1) pursuant to the Proceeds of Crime Act 2002 (Cth) (the ‘POC Act’). Restraining orders have been made in respect of real property, bank accounts, and cryptocurrency assets. 2 In aid of the application, the Commissioner sought examination orders in respect of the first and second respondents (FDN 19). However, the respondents sought a stay of the proceedings until after disposition of criminal proceedings brought against the first respondent in this State and in the United States of America (FDN 13). I dismissed that application on 7 February 2025 (FDN 85) because the respondents had failed to identify any prejudice to those criminal proceedings, and the first respondent’s position in them, arising out of the particular circumstances of the action and its relationship to the criminal proceedings. 3 I summarised those reasons in paragraph [12] of the judgment delivered on 7 February 2025:1 [12] The prejudice on which the first respondent relies is no more than the circumstance that there are related extant criminal charges. The first respondent has failed to identify any prejudice over and above the systemic or general disclosure prejudice which arises whenever POC Act proceedings are brought when related criminal proceedings are pending. Additionally, the Commissioner has offered to consent to orders pursuant to 266A and cl 18 of Schedule 1 of the POC Act prohibiting disclosure of any information, obtained in the course of the POC Act proceeding or through any of the compulsory processes of the POC Act, to any investigative or prosecuting criminal justice agency, domestic or foreign. An order prohibiting such disclosure has been made in respect of affidavits already filed in these proceedings by the respondents. The Commissioner has also offered not to oppose any applications which the respondents might make for hearings to proceed in closed courts and for suppression orders. Moreover, the Commissioner has established standard operating procedures which effectively guard against the risk of leakage of that material. 4 I described the scheme of the POC Act in paragraphs [2] to [4] of my reasons as follows:2 [2] The scheme of the POC Act is explained by s 6 of that Act. Chapter 2 of the POC Act enacts processes by which confiscation of the proceeds of crime can occur and Chapter 3 enacts ways in which Commonwealth law enforcement agencies can obtain information relevant to those processes. Section 7 of the POC Act sets out the confiscation processes, which includes: 1 Commissioner of the Australian Federal Police v D C & Anor [2025] SASC 9, 3 [12]. 2 Commissioner of the Australian Federal Police v D C & Anor [2025] SASC 9, 1 [2]-[4]. -- 3 of 7 -- [2025] SASC 201 Kourakis CJ 2 • freezing orders limiting transactions involving accounts of financial institutions; • restraining orders prohibiting the disposal of or dealing with property; • forfeiture orders forfeiting property to the Commonwealth. [3] Section 8 explains that the information gathering processes include: • examining a person about their affairs; • making production orders requiring people to produce property tracking documents; • requiring financial institutions to provide information relating to accounts; • requiring financial institutions to provide information about transactions, ‘monitoring orders’; • searching for and seizing potential material. [4] Part 3.1 of the POC Act provides for applications to be made for examination orders of persons who may have an interest in property which is subject to a restraining order. A person who wishes to have property excluded from a restraining or forfeiture order must give notice of the grounds on which the exclusion is sought, and may be compulsorily examined in respect of the application. 5 Subsequent to the dismissal of the stay application, orders for the examination of both respondents were made by consent pursuant to s 180 of the POC Act (FDN 88). The Commissioner now presses the making of an order pursuant to s 39(1)(ca) of the POC Act. That order is opposed by the respondents. 6 The relevant parts of s 39 of the POC Act provides: 39 Ancillary orders (1) The court that made a restraining order, or any other court that could have made the restraining order, may make any ancillary orders that the court considers appropriate and, without limiting the generality of this, the court may make any one or more of the following orders: (a) an order varying the property covered by the restraining order; (b) an order varying a condition to which the restraining order is subject; (c) an order relating to an undertaking required under section 21; (ca) an order directing the suspect in relation to the restraining order to give a sworn statement to a specified person, within a specified period, setting out all of his or her interests in property, and his or her liabilities; (d) an order directing the owner or a previous owner of the property (including, if the owner or previous owner is a body corporate, a specified director of the -- 4 of 7 -- [2025] SASC 201 Kourakis CJ 3 body corporate) to give a sworn statement to a specified person, within a specified period, setting out particulars of, or dealings with, the property; (da) if the court is satisfied that there are reasonable grounds to suspect that a person (other than the owner or a previous owner) has information relevant to identifying, locating or quantifying the property—an order directing the person to give a sworn statement to a specified person, within a specified period, setting out particulars of, or dealings with, the property; (e) if the Official Trustee is ordered under section 38 to take custody and control of property: (i) an order regulating the manner in which the Official Trustee may exercise its powers or perform its duties under the restraining order; or (ii) an order determining any question relating to the property, including a question relating to the liabilities of the owner or the exercise of powers or the performance of duties of the Official Trustee; or (iii) an order directing any person to do anything necessary or convenient to enable the Official Trustee to take custody and control of the property; (f) an order giving directions about the operation of the restraining order and any one or more of the following: (i) a forfeiture order that covers the same property as the restraining order; (ii) a pecuniary penalty order or a literary proceeds order that relates to the same offence as the restraining order; (g) an order requiring a person whose property is covered by a restraining order, or who has effective control of property covered by a restraining order, to do anything necessary or convenient to bring the property within the jurisdiction. 7 Section 39(1) confers a discretion to make the orders – the word “may” is used – and the discretion is to be exercised for the purpose of making orders which are appropriate. 8 The respondents contend that the discretion is open textured, in the sense that it is a broad discretion, and emphasise the use of the word “may”. However, s 39(1) empowers the Court to make a number of different ancillary orders to the making of a restraining order. Too much should not be made of the conferral of a broad discretion because its purpose is to allow for a selection from the range of orders specified in subsection (1). As we shall see, the nature of the orders which may be made and their relationship to the objects of the POC Act may generally require the order to be made. 9 The respondents also relied substantially on the protean nature, or at least wide meaning, that might be attached to the word “appropriate”. They note that it is not expressly defined. The context of s 39 of the POC Act fills in that ellipsis. -- 5 of 7 -- [2025] SASC 201 Kourakis CJ 4 10 Ancillary orders are made on the making of a restraining order. The making of a restraining order is the first substantive step which may result in a forfeiture order of property suspected to be the proceeds of crime. 11 In that context, “appropriate” means appropriate to effectuate the scheme of the POC Act. Orders will be appropriate to the extent that they allow the identification of other proceeds of crime that are not already the subject of the application for a restraining order. It is notorious, and it is plainly the mischief to which the POC Act is directed, that proceeds of crime are commonly concealed from law enforcement authorities. We have come a long way from the buried chest of treasure on a remote island. The means of concealing the proceeds of crime are now much more sophisticated and whether there are additional proceeds, where they are, and how they are controlled or possessed, will generally be within the knowledge of the suspect. 12 The scheme of the POC Act is to require disclosure of that knowledge by the suspect. It does so by abrogating the privilege against self-incrimination and allowing the Court to make examination orders. The purpose of the ancillary order provided for in s 39(1)(ca) of the POC Act is to require the identification of other property which might be the proceeds of crime so that it might also be included in a restraining order. 13 Importantly, the POC Act also provides for the oral examination of suspects. An examination can be ordered after a restraining order has been made. It is plainly a purpose of the ancillary order specified in subparagraph (ca) to make that examination more effective. 14 I accept paragraphs [10] to [13] of the written submissions of the Commissioner (FDN 90), save for this: I would not distinguish between the primary and secondary purposes outlined in paragraph [10] of the submissions. For the reasons I have just given, all of the purposes identified in paragraph [10] are calculated to fully effectuate the provisions of the POC Act, and therefore are orders which are, generally speaking, likely to be appropriate. 15 The respondents contend that there may be countervailing considerations to the making of the orders, even though the orders, on their face, might be well adapted to giving effect to the other provisions of the POC Act. I accept that as a general proposition. The respondents contend in particular that the risk that making a sworn statement as to assets might incriminate the suspect, in this case, the respondents. I accept that there may be occasions on which that might be both a relevant and weighty consideration. However, that is not likely to often be the case, for a number of reasons. Firstly, if there is a substantial risk that the suspect’s trial might be unfairly prejudiced, a stay of the POC Act proceedings might be obtained. However, as I earlier observed, the respondents’ application for a stay has been refused. The limited grounds on which a stay might be ordered under the provisions of the POC Act means that, as a general proposition, the risk of self-incrimination will not carry much weight once a stay has been refused. -- 6 of 7 -- [2025] SASC 201 Kourakis CJ 5 16 Nonetheless, I accept that there might be special circumstances which will call for some limitation on an order made pursuant to s 39(1)(ca) of the POC Act. An example of a consideration which may weigh against making an order is the risk of self-incrimination of possible offending which has nothing to do with the possession of the restrained assets. However, no such circumstances have been established in this case. Again, the respondents rely on what might be described as general, inchoate or systemic risks. The respondents have not established any particular circumstances in this case which call for restraint in the making, or for a modification, of any order made pursuant to s 39 of the POC Act. 17 For the reasons above, I make the order pursuant to s 39(1)(ca) of the POC Act sought by the applicant, save that it will apply only to assets exceeding $5,000. In making that order, I note the undertaking proffered in the applicant’s submissions to restrict the circulation and publication of the sworn statements consistently with the undertaking that was given in opposition to the stay. In particular, the applicant has offered to modify order 10, made on 27 February 2025. I amend that order in accordance with paragraph [16] of the applicant’s submissions. -- 7 of 7 --