Commissioner of the Australian Federal Police; in re the application of Cui [2017] NSWSC 1817

Commissioner of the Australian Federal Police; in re the application of Cui [2017] NSWSC 1817

The applicants failed to discharge the onus of proof that the seized cash was not proceeds of an indictable offence or an instrument of a serious offence, given the suspicious circumstances, conflicting accounts, and lack of satisfactory evidence as to the lawful origin of the funds. The application for exclusion from the restraining order must be dismissed.

Parties
Plaintiff/respondent: Commissioner of the Australian Federal Police; First Applicant: Weili Cui; Second Applicant: Shushan Li
Jurisdiction
Australia
Judgment Date
22 December 2017
Procedural Posture
Application for Exclusion Order Under Proceeds of Crime Legislation / Determination of Exclusion Application at First Instance
Outcome
Application for exclusion orders dismissed; costs ordered against applicants.
Legal Topics
Exclusion From Restraining Order, Proceeds of Crime Act Interpretation, Burden of Proof—proceeds of Crime, Money Laundering, Currency Exchange
Criminal Law Proceeds of Crime Exclusion From Restraining Order Proceeds of Crime Act Interpretation Burden of Proof—proceeds of Crime Money Laundering Currency Exchange

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Parties

Commissioner of the Australian Federal Police

Plaintiff/respondent

Weili Cui

First Applicant

Shushan Li

Second Applicant

Procedural Posture

Application for Exclusion Order Under Proceeds of Crime Legislation / Determination of Exclusion Application at First Instance

Legal Issues

  1. 1 Whether the applicants discharged the onus of proving that the seized cash was neither proceeds of an indictable offence nor an instrument of any serious offence
  2. 2 Application and interpretation of s 29(2), s 317, and s 330(4)(a) of the Proceeds of Crime Act 2002 (Cth)
  3. 3 Whether the applicants' receipt of cash aroused reasonable suspicion that it was proceeds or instrument of crime

Ratio Decidendi

The applicants failed to discharge the onus of proof that the seized cash was not proceeds of an indictable offence or an instrument of a serious offence, given the suspicious circumstances, conflicting accounts, and lack of satisfactory evidence as to the lawful origin of the funds. The application for exclusion from the restraining order must be dismissed.

Court Disposition

Application for exclusion orders dismissed; costs ordered against applicants.

Orders

  • The applicants' application to have the seized cash excluded from the restraining order made by Adamson J on 1 December 2015 is dismissed.
  • Applicants to pay the Commissioner's costs of the application.