Commissioner of the Australian Federal Police v HartCommonwealth of Australia v Yak 3 Investments Pty LtdCommonwealth of Australia v Flying Fighters Pty LtdCitation:[2018] HCA 1Before:Kiefel CJ, Bell, Gageler, Gordon, Edelman JJDate:07 Feb 2018Case Number:B21/2017, B22/2017, B23/2017Read more

Commissioner of the Australian Federal Police v HartCommonwealth of Australia v Yak 3 Investments Pty LtdCommonwealth of Australia v Flying Fighters Pty LtdCitation:[2018] HCA 1Before:Kiefel CJ, Bell, Gageler, Gordon, Edelman JJDate:07 Feb 2018Case Number:B21/2017, B22/2017, B23/2017Read more

The Court held that property is excluded from recovery under s 102(3)(a) if it was used in, or in connection with, any unlawful activity or derived from such activity, regardless of the degree of use or derivation. The applicants bear the burden of proving lawful acquisition and that all consideration paid was lawful. Effective control is determined as at the date of the restraining order.

Parties
Respondent: Commonwealth of Australia; Applicants: Companies associated with convicted person; Interested Party: Convicted person
Jurisdiction
Australia
Judgment Date
07 February 2018
Procedural Posture
Criminal Forfeiture / Judgment
Outcome
Applications dismissed
Legal Topics
Forfeiture of Property, Effective Control, Unlawful Activity, Lawful Acquisition, Pecuniary Penalty Orders
Criminal Law Proceeds of Crime Forfeiture of Property Effective Control Unlawful Activity Lawful Acquisition Pecuniary Penalty Orders

Case Brief

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Parties

Commonwealth of Australia

Respondent

Companies associated with convicted person

Applicants

Convicted person

Interested Party

Procedural Posture

Criminal Forfeiture / Judgment

Legal Issues

  1. 1 Whether forfeited property was used in, or in connection with, any unlawful activity within s 102(3)(a) of the Proceeds of Crime Act 2002 (Cth)
  2. 2 Whether 'use' requires necessity or unique contribution to unlawful activity
  3. 3 Whether degree of use must be proportionate to forfeiture

Ratio Decidendi

The Court held that property is excluded from recovery under s 102(3)(a) if it was used in, or in connection with, any unlawful activity or derived from such activity, regardless of the degree of use or derivation. The applicants bear the burden of proving lawful acquisition and that all consideration paid was lawful. Effective control is determined as at the date of the restraining order.

Court Disposition

Applications dismissed

Orders

  • Forfeited property not recoverable by applicants under s 102 of the Proceeds of Crime Act 2002 (Cth)
  • Property available to satisfy pecuniary penalty order against convicted person