Commissioner of the Australian Federal Police v Fernandez

(2018) 100 NSWLR 610; [2018] NSWCA 198

NSW Court of Appeal

View on CaseLaw

Built by Barristers,
For Australian Law.

See how it works

Interrogate

Catchwords

1. Criminal Law
2. › Proceeds of crime
3. › Forfeiture orders
4. › Property suspected of being proceeds of indictable offences
5. › Whether interests in bank accounts were 'proceeds' of an offence
6. › Whether right to demand payment from bank was 'partly derived' from commission of offence
7. › Proceeds of Crime Act 2002 (Cth), ss 49, 329, 330, 338
1. Criminal Law
2. › Proceeds of crime
3. › Forfeiture orders
4. › Discretion to refuse forfeiture
5. › Whether property was instrument but not proceeds of offence
6. › Whether public interest criterion in s 49(4) was engaged
7. › Onus of proof under s 317
8. › Proceeds of Crime Act 2002 (Cth), ss 49(4), 317
1. Banking and Finance
2. › Banker and customer
3. › Nature of bank account
4. › Chose in action
5. › Whether deposits into existing account create new property or alter existing chose in action
6. › Interaction with proceeds of crime legislation
1. Statutes
2. › Interpretation
3. › Purposive construction
4. › Context including mischief to be remedied
5. › Whether traditional characterisation of banker-customer relationship governs construction of proceeds of crime legislation
6. › Acts Interpretation Act 1901 (Cth), s 15AA

Quick Take

A bank account holder's right to demand payment of the credit balance is 'proceeds' of an offence under the Proceeds of Crime Act 2002 (Cth), s 329, where structured deposits have been made into the account, even where the account was opened before any criminal activity and the account holder is an innocent victim — the s 49(4) public interest discretion to refuse forfeiture does not arise.