31 May 2013


From Commissioner of the Australian Federal Police v Mulder [2013] NSWSC 621, featuring identity offences -
The applicant and his identical twin brother were born in 1949. They arrived in Australia in 1970. In 1977, the applicant was granted Australian citizenship, as was his brother in 1983. 
In 2003, the brother of the defendant left Australia and has not since returned. 
Between 2003 and 2011, it is alleged that the defendant assumed the identity of his twin brother, obtained various documents supportive of that identity, and carried out financial transactions in the name of his brother. 
On 2 February 2011, the defendant was arrested and charged with, in short, a number of offences related to obtaining and using a passport that had not been issued to him, and nine counts of receiving a designated service using a false customer name. 
On 4 February 2011, orders were obtained by the Commissioner restraining any dealings with money in two bank accounts, one with NAB and one with ANZ. An examination order was also obtained against the defendant on the same date. Those orders were obtained pursuant to ss 18 and 180 of the Proceeds of Crime Act 2002 (Cth) ("the Act"). 
On 28 March 2012, the defendant was convicted in the Local Court of five offences of receiving a designated service using a false customer name, along with a number of offences relating to passports. 
On 10 May 2012, the defendant was sentenced to imprisonment for 6 months. He lodged an appeal to the District Court of New South Wales. 
On 19 July 2012, the defendant was served with a notice by the Commissioner that the money in the restrained accounts would be automatically forfeited on 9 November 2012. That notice was served pursuant to s 92A of the Act. 
On 22 August 2012, the defendant was released from prison. 
On 10 September 2012, the defendant left Australia and travelled to China. 
On the same date, it is alleged that a person telephoned the ANZ bank, and represented himself to be the twin brother of the defendant. In fact, it is alleged, that person was the defendant. That allegation is founded, in short, on voice identification evidence from a police officer, combined with circumstantial evidence said to derive from a number of things said by the caller. 
On 19 October 2012, the defendant filed a motion seeking an extension of the period at the end of which the restraining order would automatically become a forfeiture order, and also exclusion from that forfeiture order. 
On 26 October 2012, Johnson J extended the period for which the restrained property would be forfeited to 9 April 2013. Subsequently, the period was further extended to 9 August 2013. 
On 4 January 2013, the applicant returned to Australia from China. He was arrested and charged with one count of giving false information to the ANZ Bank, founded on the phone call said to have occurred on 10 September 2012. That offence was brought pursuant to s 136 of the Anti-Money Laundering and Counter Terrorism Financing Act 2006 (Cth).