Background
John Benedict Brooks pleaded guilty in March 2025 to three federal offences involving child abuse material — transmitting, accessing, and possessing such material via a carriage service, contrary to ss 474.22(1) and 474.22A(1) of the Criminal Code (Cth) — and received a 2-year aggregate sentence with immediate release on a recognizance order. The offending occurred between June 2022 and June 2023 at his sole-occupancy residential property in Cooma, New South Wales, which he had owned since 1993. A search warrant executed in June 2023 recovered 212 files of child abuse material from devices within the home.
The Commissioner of the Australian Federal Police (AFP) commenced proceedings in March 2025 seeking a restraining order and, ultimately, forfeiture of the Cooma property under the Proceeds of Crime Act 2002 (Cth) (POCA). Following a consent order allowing the property to be sold and debts discharged, the net sale proceeds (the “Subject Property”) were held by the Official Trustee in Bankruptcy pending the outcome of these proceedings. The extension of the restraining period had reached its statutory maximum under s 93(1) of the POCA, making the resolution of the exclusion application time-critical.
Brooks filed a Notice of Motion in April 2025 seeking an exclusion order under s 94 of the POCA. That section requires a court to exclude property from automatic forfeiture under s 92 if the applicant proves, on the balance of probabilities, that his interest in the property was neither proceeds of unlawful activity nor an instrument of unlawful activity, and that the interest was lawfully acquired. The only live issue was whether the Cooma property was an “instrument of unlawful activity” — defined under s 329(2) of the POCA as property used in, or in connection with, the commission of an offence.
The Court’s Holding
Campbell J granted the exclusion order, holding that Brooks had discharged his onus of proving on the balance of probabilities that the Cooma property was not an instrument of unlawful activity. Applying the spectrum of use articulated in Chalmers v The Queen [2011] VSCA 436 and the High Court’s broad but bounded formulation of “use” in Commissioner of the Australian Federal Police v Hart (2018) 262 CLR 76, his Honour found that the Cooma property was, in substance, merely the passive location at which the offences occurred. The security and privacy features relied upon by the Commissioner — including external CCTV cameras, fencing, locked gates, and a doorbell camera — were held to be ubiquitous attributes of ordinary residential property in modern Australia, not features specifically enlisted for the purpose of the offending.
His Honour distinguished the present facts from cases where real property was found to be an instrument of crime. In Cini v Commissioner of the Australian Federal Police [2016] VSCA 227, offenders made a conscious decision to relocate drugs to their home, exploiting its secure fencing and lockup garage to safeguard the contraband — actively enlisting the property’s features for the unlawful purpose. In Director of Public Prosecutions (WA) v White [2010] WASCA 47, a property was effectively fortified to detain and ultimately kill a victim. Neither analogy applied here. Brooks’s offending was committed on a desktop computer connected to the internet — a configuration available at virtually any residential premises in Australia — and no unique feature of the Cooma property made a sufficiently significant contribution to the offending.
The court also rejected the Commissioner’s reliance on United States of America v Larry Richard Hull 606 F 3d 525 (8th Cir, 2010), a case involving forfeiture of real property used for distribution of child abuse material. While acknowledging that foreign decisions may carry logical or analogical relevance, Campbell J held that the American court’s statutory interpretation could not displace the binding Australian authority on the meaning of “instrument,” and that similar facts do not constitute precedent. The exclusion order was mandatory once the s 94(1) conditions were satisfied; no discretion existed to refuse it. A 28-day stay was granted to allow the AFP to consider an appeal.
Key Takeaways
- Under s 94 of the POCA, an applicant bears the onus of proving on the balance of probabilities that restrained property is neither proceeds nor an instrument of unlawful activity; if that onus is discharged, exclusion from forfeiture is mandatory — the court has no residual discretion to refuse relief.
- The “instrument” test requires proof that the property was used in, or in connection with, the commission of an offence in a sufficiently significant way; the relevant spectrum runs from property that is a fundamental aspect of the offending at one end to property that is merely a passive location at the other, and ubiquitous residential security features (fencing, CCTV, locked gates) do not cross that threshold.
- The automatic forfeiture mechanism under s 92 POCA — which operates without any further court order once the restraining period expires — creates acute time pressure: the statutory maximum extension under s 93(1) had been reached, making this the final opportunity to obtain an exclusion order before the proceeds were forfeited to the Commonwealth.
- Foreign judgments on cognate legislation (here, US Eighth Circuit authority) carry only persuasive weight and, where binding Australian authority addresses the same interpretive question, that foreign reasoning will ordinarily be accorded low persuasive value.
- The Briginshaw principle does not assist an applicant bearing an affirmative civil onus — it cannot be deployed to lower the threshold of proof the applicant must meet, only to inform the exactness of proof required in light of the gravity of the allegation against a party who does not bear the onus.
Why It Matters
This decision is the first in Australia to apply the POCA “instrument of unlawful activity” test in the context of child abuse material offences committed online from a private residence. It confirms that the mere fact that a home afforded an offender privacy and a hardwired internet connection does not, without more, make it an instrument of the offending — and that security features common to most modern Australian dwellings will not satisfy the test. Prosecutors seeking forfeiture of residential property in internet-based offending cases will need to identify features of the property that go beyond ordinary residential amenity and that were specifically enlisted in aid of the offending.
The judgment also highlights the structural tension within Part 2-3 of the POCA between the automatic forfeiture mechanism (s 92) and a prosecutor-initiated forfeiture application (s 48). Under s 48, the Commissioner bears the onus and has a discretionary safety valve under s 48(3); under s 94, the property owner bears the onus and no discretion exists. Campbell J noted, without deciding, questions about whether the Commissioner could revive her s 48 application following Brooks’s success — a point likely to arise in any appeal and with broader significance for POCA practice.