On 22 December 2017, McCallum J delivered her reasons for dismissing the exclusion application of Weili Cui under the Proceeds of Crime Act 2002 (POCA).
Facts
In that case, Ms Cui had attended her bank and sought to deposit $200,000 cash into her account. At that same time, an officer of the AFP was attending to his personal banking and observed Ms Cui attempting to make the deposit. He then approached her, questioned her and seized the cash. Subsequently, a restraining order was made under section 19 of the POCA over the cash. After the cash was seized, Ms Cui and her husband were separately interviewed by AFP officers. They gave different versions of the provenance of the cash in their interviews. In support of the application for exclusion, they conceded that they had lied to AFP officers in the interview and gave a different account as to the origin of the cash.
Reasons
McCallum J observed (at [5]) that in Commissioner of the Australian Federal Police v Lordianto [2017] NSWSC 1196, Simpson J explained at [23] that there are potentially two routes to an exclusion order under s 29:
The first is for the owner of the property to prove that the property was never tainted property. (It is to be borne in mind that a restraining order is made on the basis of reasonable suspicion that the property is tainted. A restraining order made on the basis of reasonable suspicion does not represent a finding that the property in question is or was either proceeds or an instrument of an offence.) The second route is for the owner of the property to prove, in accordance with s 330(4), that the property has ceased to be tainted.
Most of her Honour’s reasons concern an analysis of the evidence given in support of the exclusion application, which (as noted above), differed from the explanation that had earlier been given to the AFP in the course of the interviews. McCallum J concluded (at [57]):
In my assessment, the applicants’ evidence in the proceedings is so unsatisfactory that it is impossible to know where the truth lies. In circumstances where they bear the onus of proof, that is fatal to the success of the application. In particular, as already noted, I think it is quite possible that the cash was brought into Australia in the manner described by Mr Li in his interview with police at the Bank or by some other, unknown person. The applicants could have called “Kenny” to prove otherwise. I am satisfied that the failure to call Kenny gives rise to an inference that his evidence would not have assisted the applicants on this issue.
Lessons
Having regard to the fact that an applicant for an exclusion order bears the onus of proof and the initial evidential onus, it is critical that they are believed about the matters they are obliged to prove. Hence, great case must be taken in the preparation of affidavits and, insofar as possible, all supporting documents must be collated, (where relevant, translated) and exhibited. Further, it is important to consider carefully which witnesses are required to be called to avoid an adverse inference under Jones v Dunkel.
Copy of decision
A copy of the decision is available here.
