Application of the New South Wales Crime Commission

[2024] NSWSC 796

Supreme Court

New South Wales

Medium Neutral Citation:

Application of the New South Wales Crime Commission [2024] NSWSC 796

Hearing dates:

20 June 2024

Date of orders:

20 June 2024

Decision date:

20 June 2024

Jurisdiction:

Common Law

Before:

Davies J

Decision:

(1) Pursuant to section 33(2) of the Criminal Assets Recovery Act 1990 ("the Act"), the Proper Officer of John Stonham and Co Lawyers A.B.N. 69 490 937 684 at 110 Queen Street, Campbelltown NSW 2560 produce to the person named in Schedule One hereto at the time and place specified in Schedule Two hereto in respect of any original document, duplicate or copy document, in the possession or control of the Proper Officer of John Stonham and Co Lawyers A.B.N. 69 490 937 684 at 110 Queen Street, Campbelltown NSW 2560 including the documents described in Schedule Four hereto, relevant to:

(a) identifying, locating or quantifying any interest in property (within the meaning of "interest in property" as defined in section 7 of the Act) of the person named in Schedule Three hereto; and

(b) identifying or locating any document necessary for the transfer of an interest in property (within the meaning of "interest in property" as defined in section 7 of the Act) of the person named in Schedule Three hereto.

SCHEDULE ONE

Name of authorised officer: Lee Clough

SCHEDULE TWO

Time:   Between 9 am and 4 pm

Date:   on or before 18 July 2024

Place:   453-463 Kent Street, Sydney

SCHEDULE THREE

Name of person:   David Wayne Anderson

Date of birth:   8 July 1981

Address of person:   140 The Grand Circuit, Orangeville, NSW 2570

Name of person:   Lisa- Ann Anderson, also known as Lisa Crooks, Lisa- Ann Taylor   

Date of birth:   27 April 1987

Address of person:   140 The Grand Circuit, Orangeville, NSW 2570

SCHEDULE FOUR

Conveyancing documents relating to:

1. The persons mentioned in Schedule Three; and

2. The purchase 9 Russell Street, Oran Park NSW 2570 (title reference 2217/1205513) by Lisa-Ann Anderson with settlement occurring on or around 12 December 2016.

Including but not limited to:

Identification documents;

(a) Copies of contracts for sale;

(b) Copies of settlement adjustment sheets and cheque directions;

(c) Copies of cheques or other records of payments made by, or on behalf of, the purchaser;

(d) Copies of trust accounting records relating to transactions made by, or on behalf of the purchaser;

(e) Copies of applications or other forms completed by, or on behalf of, the purchaser;

(f) Testamentary documents, powers of Attorney and documents relating to trusts; and

(g) Notes, correspondence and working papers.

In this Schedule “document” means any record of information and includes:

(a) anything on which there is writing; or

(b) anything on which there are marks, figures, symbols or perforations having a meaning for persons qualified to interpret them; or

(c) anything from which sounds, images, or writings can be produced with or without the aid of anything else (e.g. video and audio tapes and computer disks); or

(d) a map, plan, drawing or photograph.

Catchwords:

CRIMINAL LAW – proceeds of crime – production of documents – where proper officer suspects defendant engaged in serious crime – suspicion reasonably held – production order made

Legislation Cited:

Crime Commission Act 2012 (NSW) s 29

Crimes Act 1900 (NSW) s 193B

Criminal Assets Recovery Act 1990 (NSW) ss 4, 6, 33

Drug Misuse and Trafficking Act 1985 (NSW) s 25

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

New South Wales Crime Commission (Plaintiff)

Representation:

Counsel:
G Akle – ex parte (Plaintiff)

Solicitors:
New South Wales Crime Commission (Plaintiff)

File Number(s):

2024/227227

Publication restriction:

Nil

EX TEMPORE JUDGMENT

1. The plaintiff seeks an order pursuant to s 33(2) of the Criminal Assets Recovery Act1990 (NSW) (“the Act”) that the proper officer of John Stonham & Co Lawyers in Campbelltown produce documents which may be described as property-tracking documents.

2. Section 33 of the Act provides that if an authorised officer has reasonable grounds for suspecting that a person has possession or control of a property- tracking document, the authorised officer may lay before the Supreme Court an information on oath setting out those grounds and applying to the Court ex parte for a production order against the person suspected of having possession or control of the document or documents.

3. A property-tracking documents is defined in s 4 of the Act as meaning a document, including a document in digital or electronic form, relevant to determining, identifying or locating, inter alia, an interest in property of a person who might reasonably be suspected of engaging in a serious crime related activity.

4. The proper officer concerned is Lee Clough, who has sworn an affidavit on 19 June 2024 saying, first, that he suspects that David Wayne Anderson has engaged in serious crime related activity, being the supply of various prohibited drugs contrary to s 25(1) and (2) of the Drug Misuse and Trafficking Act 1985 (NSW) and also an offence of knowingly dealing with proceeds of crime contrary to s 193B(2) of the Crimes Act 1900 (NSW), being an offence involving money laundering and punishable by imprisonment for 15 years.

5. All of the drug offences and the offence contrary to s 193B(2) are serious criminal offences pursuant to s 6(2) of the Criminal Assets Recovery Act.

6. Mr Clough also suspects that the solicitor concerned is likely to have documents which indicate that Mr Anderson has an interest in a property in Russell Street, Oran Park, being a property owned by his wife.

7. Mr Clough’s suspicion is generally informed by a police facts sheet prepared when charges were laid against Mr Anderson for the offending.

8. The suspicion is also based on research that has been conducted showing the ownership of the Russell Street property and the fact that John Stonham & Co appear to have been the solicitors engaged when the property was purchased.

9. The plaintiff forwarded a notice to attend and produce documents dated 21 December 2023 pursuant to s 29 of the Crime Commission Act 2012 (NSW) to John Stonham & Co Lawyers seeking the production of the documents now sought in the summons to be produced. Despite subsequent emails being sent to that firm, there has been no compliance with that notice. It is in those circumstances that the present application is made.

10. I am satisfied from reading the affidavit of Mr Clough and the various documents annexed to that affidavit that the suspicions held by Mr Clough in relation to the commission of the serious crime related activity and the likely presence of the documents now sought to be produced are reasonably held suspicions.

11. Accordingly, the orders sought should be made.

12. I make an order in terms of the draft order provided to me, which I have signed and dated today.

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Decision last updated: 27 June 2024