STUDMAN v COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS [2007] NSWCA 285

STUDMAN v COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS [2007] NSWCA 285

The appeal was futile because no extension order had been made, the restrained property had been forfeited to the Commonwealth by operation of ss 91 and 92(3) of the Proceeds of Crime Act 2002 (Cth), and no order excluding property from forfeiture could now have practical effect. In any event, the bank account choses in action were derived directly from offences committed by opening and operating accounts in a false name, the shares were acquired using funds in accounts opened in breach of the Financial Transaction Reports Act 1988 (Cth), and the property was both proceeds and instruments of unlawful activity and was not lawfully acquired for the purposes of s 94.

Jurisdiction
Australia
Judgment Date
17 October 2007
Procedural Posture
Appeal From Dismissal of Notice of Motion Seeking Orders Under the Proceeds of Crime Act 2002 (cth) Concerning Restrained Property / Court of Appeal; Leave to Appeal Revoked Because the Appeal Was Futile and Out of Time
Outcome
Leave to appeal revoked; appellant ordered to pay the respondent's costs.
Legal Topics
['restraining Orders' 'forfeiture of Property' 'exclusion From Forfeiture' 'proceeds of Unlawful Activity' 'instrument of Unlawful Activity' 'false Name Bank Accounts' 'futility of Appeal']
['criminal Law' 'proceeds of Crime' 'confiscation and Forfeiture' 'appellate Procedure'] ['restraining Orders' 'forfeiture of Property' 'exclusion From Forfeiture' 'proceeds of Unlawful Activity' 'instrument of Unlawful Activity' 'false Name Bank Accounts' 'futility of Appeal']

Case Brief

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Procedural Posture

Appeal From Dismissal of Notice of Motion Seeking Orders Under the Proceeds of Crime Act 2002 (cth) Concerning Restrained Property / Court of Appeal; Leave to Appeal Revoked Because the Appeal Was Futile and Out of Time

Legal Issues

  1. 1 ['Whether the appeal was futile because the restrained property had already been forfeited to the Commonwealth under ss 91 and 92 of the Proceeds of Crime Act 2002 (Cth).' 'Whether the bank account rights and shares were proceeds of unlawful activity for the purposes of s 94(1)(e) of the Proceeds of Crime Act 2002 (Cth).' 'Whether the bank account rights and shares were instruments of unlawful activity for the purposes of s 94(1)(e) of the Proceeds of Crime Act 2002 (Cth).' "Whether the appellant's interest in the property was lawfully acquired for the purposes of s 94(1)(f) of the Proceeds of Crime Act 2002 (Cth)."]

Ratio Decidendi

The appeal was futile because no extension order had been made, the restrained property had been forfeited to the Commonwealth by operation of ss 91 and 92(3) of the Proceeds of Crime Act 2002 (Cth), and no order excluding property from forfeiture could now have practical effect. In any event, the bank account choses in action were derived directly from offences committed by opening and operating accounts in a false name, the shares were acquired using funds in accounts opened in breach of the Financial Transaction Reports Act 1988 (Cth), and the property was both proceeds and instruments of unlawful activity and was not lawfully acquired for the purposes of s 94.

Court Disposition

Leave to appeal revoked; appellant ordered to pay the respondent's costs.

Orders

  • ['Leave to appeal revoked.' "Appellant to pay the respondent's costs."]