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The Federal Court dismissed a judicial review of a forfeiture decision, finding no procedural unfairness and holding the applicants failed to prove a lawful source for the seized USD 30,600.
PacNet failed to set aside an ex parte interim preservation order under the Civil Forfeiture Act, and the Director’s application to continue it was granted.
The Federal Court dismissed judicial review and upheld forfeiture of seized currency, finding the applicant had not provided verifiable evidence of lawful origin.
The appeal was dismissed because the application judge gave cogent reasons, permissibly accepted the uncontradicted opinion of Sergeant Hawkes and rejected the appellant’s explanation, and those factual findings were supported by the record such that no reversible error warranted re‑weighing the evidence.
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The application judge correctly applied the Civil Remedies Act two-step test, reasonably found on a balance of probabilities that the cash was proceeds/instrument of unlawful activity based on the totality of the evidence, and the appellant failed to discharge the onus to show legitimate ownership or entitlement to relief under the interests of justice; appeal dismissed.
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The Federal Court dismissed judicial review of a ministerial forfeiture decision under the Proceeds of Crime Act, holding the delegate reasonably refused to return seized currency.
On the facts the application judge did not err: the property was offence-related and a fortified drug property, the s.19.1(3) proportionality factors (nature and gravity of the offences, circumstances of commission, and appellant's criminal record) supported full forfeiture, valuation and SPMD damage were not determinative, and appellate deference to findings of fact was appropriate — therefore the full forfeiture order is upheld.
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Subsection 29(1) must be read in its textual, contextual and purposive context together with the scheme of the Act and Criminal Code provisions; where the Minister is satisfied that an ascertainable portion of seized funds is not proceeds of crime the Minister may grant relief from forfeiture in respect of that portion, and the Minister’s contrary interpretation was unreasonable.
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The Federal Court dismissed judicial review of a forfeiture decision under PCMLTFA s. 29, finding the applicant had not shown the seized cash came from legitimate sources.
Kienapple did not apply because the fraud and using forged documents offences involve different legal elements; although the trial judge erred in considering Law Society disciplinary materials and in treating failure to make restitution as aggravating, the 3.5 year sentence was nonetheless fit given breach of trust, prior dishonesty and gravity of the fraud; trial judge erred in refusing a fine in lieu under s.462.37(3) by failing to base refusal on the statutory test and by considering sentencing adequacy and ability to pay; Crown proved only $10,700 was under the appellant's control on a ba…
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