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Significant Judgments

The following are decisions in some of the matters I have argued.

Commissioner of the AFP v Ganesh Kalimuthu & Anor (No 3) [2017] WASC 108. The decision established what is meant by each of the elements in s 330(4)(a) Proceeds of Crime Act 2002 (the section that protects innocent third parties from forfeiture). I have written more about the decision here.

The Queen v Li (unreported, District Court, 1 December 2016)
I argued that a registered money remitter had no case to answer on a charge of money laundering under s 400.9 of the Criminal Code (Cth). The prosecution sought to make out liability through reliance on a deeming provision (s 400.9(2)) coupled with alleged contraventions by my client of the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) (“AMLCTF Act”). Sweeney DCJ accepted my argument that the prosecution had misconstrued the effect of relevant sections of the AMCLTF. The charge was consequently dismissed without the jury being asked to return a verdict.

Commissioner of the AFP v Kalimuthu [2015] WASC 376. This decision established that there were issues (of fairness) with the practice the AFP had adopted in applying on an ex parte basis to restrain funds that were already the subject of freezing orders under s 15B Proceeds of Crime Act 2002 (Cth). The Court accepted my argument (on behalf of the respondents) that the AFP should at the ex parte restraining order application, have disclosed the fact that they could have (but had not) applied to extend a freezing order that was already in place. That would have allowed the Supreme Court to program the restraining order application to be heard on notice to my clients. The Court held the AFP’s failure was a material non-disclosure. This aspect of the decision is arguably relevant to the question of whether a restraining order should be granted ex parte over physical property that has already been seized by Police. See generally [29]-[35], in particular [34].

May v State of Western Australia [2015] WASC 24. I acted for an Inspector appointed under the Animal Welfare Act 2002 (WA). We successfully resisted an injunction application. The plaintiff had been seeking to stop the Inspector from proceeding with a civil forfeiture application in the Magistrates Court.

Commissioner of the AFP v Ruzehaji (No 3) [2014] SADC 62. The decision considers the circumstances in which a person against whom criminal charges are pending may be compulsorily examined on oath about the conduct that gives rise to those charges, and when such an examination should be stayed pending determination of the criminal charges. To that end the decision considers both X7 v Australian Crime Commission [2013] HCA 29 and Lee v New South Wales Crime Commission [2013] HCA 39. See also my article in Brief magazine on that topic. Separately the decision also considers 1) the means by which an ex parte restraining order made under the Proceeds of Crime Act 2002 (Cth) may be set aside, and 2) the scope of s 180 of that Act (which provides for examination of defendants and third parties). I argued the matter before the Chief Judge of the South Australian District Court together with Mr Arthur Moses SC of the Sydney bar.

Commissioner of the AFP v Sayed [2014] WADC 37. The decision considers the proper approach to quantification of a Pecuniary Penalty Order under the Proceeds of Crime Act 2002 (Cth).

Commissioner of the AFP v Courtenay Investments Ltd [No 2] [2014] WASC 55. The judgment considers a novel point of statutory interpretation about the use that can be made of criminal trial transcript in civil confiscation proceedings. It is a decision of the Honourable Justice Edelman, in a Commercial and Managed Cases list matter. I argued the matter with Ms Wendy Abraham QC of the Sydney bar.

Ex Parte the Commissioner of the AFP [2012] WASC 252. I persuaded the Chief Justice that an application for an ex parte property restraining order fell within what his Honour had previously described as a “rare and exceptional circumstance”; see his judgment at the appellate level in DPP v Kamal (below) at [100].

Courtenay Investments Limited v DPP (Cth) [2012] WASCA 121. The Court of Appeal dismissed an ‘abuse of process’ complaint brought against my client.

DPP v Kamal (2011) 248 FLR 64; (2011) 206 A Crim R 397; [2011] WASCA 55. I argued the matter together with Mr S Gageler SC (the then Solicitor-General for the Commonwealth and now Justice of the High Court of Australia) and Ms G Braddock SC (now District Court Judge). The Court of Appeal ruled that the provisions of the Proceeds of Crime Act 2002 (Cth) that provided for property to be frozen on an ex parte basis did not infringe the Kable principle.

Ex Parte the Commonwealth DPP [2010] WASC 277 (Goldfinger No 1). A decision of the Honourable Justice Allanson to restrain (ie freeze) approximately $20m worth of gold and silver bullion under the Proceeds of Crime Act 2002 (Cth) on the basis that it was the proceeds of offences in the United States. For more information on the matter see the article in Brief magazine.

Smith v R (2007) 35 WAR 201; (2007) 213 FLR 12; (2007) 175 A Crim R 528; [2007] WASCA 163. The decision considers the principles applicable to the joinder of criminal charges and the joinder of defendants. I argued the matter with Mr Stephen Hall SC (now the Honourable Justice Hall).

Lappan v Hughes [2003] WASCA 173 cited at [s 23.12] of Criminal Law WA. The decision established that the general defences found in Chapter 5 of the Criminal Code (WA) do not apply to prosecutions under the Dog Act 1976 (WA). I led the argument for the appellant prosecutor (a ranger employed by the City of Bunbury).

Bandaid Tyres Australia Pty Ltd v Williams [2002] WASC 306. An application for an Anton Piller order (search order).

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