Hu v Commissioner of the Australian Federal Police

[2023] VSCA 32

Victorian Court of Appeal

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Interrogate

Catchwords

1. Proceeds of Crime
2. › Restraining orders
3. › Exclusion from forfeiture
4. › Application under s 94
5. › Whether applicant established property not proceeds or instrument of offence
6. › Whether applicant established lack of knowledge under s 330(4)(a)
7. › Whether circumstances would not arouse reasonable suspicion
8. › Proceeds of Crime Act 2002 (Cth), ss 94, 330(4)(a)
1. Proceeds of Crime
2. › Compensation orders
3. › Proportion of value not derived from offence
4. › Whether bank account balance divisible for purposes of s 94A
5. › Whether chose in action constituted by bank account balance severable
6. › Proceeds of Crime Act 2002 (Cth), s 94A
1. Appeal
2. › Standard of appellate review
3. › Appeal from findings of fact
4. › Whether trial judge's findings against the weight of evidence
5. › Whether appellate court should set aside findings based on credibility
6. › Principles in Warren v Coombes and Fox v Percy
1. Practice and Procedure
2. › Adequacy of reasons
3. › Whether trial judge gave adequate reasons
4. › Whether judge addressed correct legal questions

Quick Take

Section 94A(1)(d) of the Proceeds of Crime Act 2002 (Cth) requires the court to be satisfied that 'a proportion of the value' of the applicant's interest was not derived from the commission of any offence; it does not require that the interest itself be severable or that individual deposits constitute separate items of property. A bank account balance that includes both tainted and untainted funds may be the subject of a compensation order under s 94A to the extent of the untainted proportion. The rule in Clayton's Case applies to determine the untainted proportion where debits have reduced the balance.