DPP v STUDMAN [2005] NSWSC 824

DPP v STUDMAN [2005] NSWSC 824

Mr Studman failed to satisfy the requirements for relief under either s94 or s31. The ANZ bank account opened and operated as Michael Simpson was created and used in breach of the Financial Transaction Reports Act, and the account was used in connection with the offence of operating an account in a false name. The shares held in the name Michael Simpson were similarly derived from the illegality of using a false name. Accordingly, the restrained property was not shown to be neither proceeds of unlawful activity nor an instrument of unlawful activity, and the relevant interests were not lawfully acquired. A pecuniary penalty order could also be made because Mr Studman had been convicted of...

Jurisdiction
Australia
Judgment Date
18 August 2005
Procedural Posture
Proceedings Under the Proceeds of Crime Act 2002 (c'th) Concerning Restrained Property / Hearing of Mr Studman's Notice of Motion Dated 8 April 2005 Seeking Transfer or Exclusion of Restrained Property
Outcome
The Notice of Motion dated 8 April 2005 is dismissed.
Legal Topics
['restraining Orders' 'exclusion of Property From Forfeiture' 'proceeds of Unlawful Activity' 'instrument of Unlawful Activity' 'false Name Bank and Securities Accounts' 'pecuniary Penalty Orders']
['criminal Law' 'proceeds of Crime' 'taxation' 'financial Transaction Reporting'] ['restraining Orders' 'exclusion of Property From Forfeiture' 'proceeds of Unlawful Activity' 'instrument of Unlawful Activity' 'false Name Bank and Securities Accounts' 'pecuniary Penalty Orders']

Case Brief

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Procedural Posture

Proceedings Under the Proceeds of Crime Act 2002 (c'th) Concerning Restrained Property / Hearing of Mr Studman's Notice of Motion Dated 8 April 2005 Seeking Transfer or Exclusion of Restrained Property

Legal Issues

  1. 1 ["Whether the restrained bank account and shares should be excluded from forfeiture under s94 of the Proceeds of Crime Act 2002 (C'th)." "Whether the restrained property should be excluded from the restraining order under s31 of the Proceeds of Crime Act 2002 (C'th)." 'Whether the bank account and shares were proceeds of unlawful activity or instruments of unlawful activity because they were opened, operated or held in the name Michael Simpson.' 'Whether a pecuniary penalty order could be made against Mr Studman.' 'Whether alleged gambling losses or asserted loss of superannuation benefits prevented or reduced any pecuniary penalty order.']

Ratio Decidendi

Mr Studman failed to satisfy the requirements for relief under either s94 or s31. The ANZ bank account opened and operated as Michael Simpson was created and used in breach of the Financial Transaction Reports Act, and the account was used in connection with the offence of operating an account in a false name. The shares held in the name Michael Simpson were similarly derived from the illegality of using a false name. Accordingly, the restrained property was not shown to be neither proceeds of unlawful activity nor an instrument of unlawful activity, and the relevant interests were not lawfully acquired. A pecuniary penalty order could also be made because Mr Studman had been convicted of...

Court Disposition

The Notice of Motion dated 8 April 2005 is dismissed.

Orders

  • ['The Notice of Motion dated 8 April 2005 is dismissed.']