Application of the New South Wales Crime Commission; In the matter of Samaco Enterprises Pty Ltd

[2022] NSWSC 1472

Supreme Court

New South Wales

Medium Neutral Citation:

Application of the New South Wales Crime Commission; In the matter of Samaco Enterprises Pty Ltd [2022] NSWSC 1472

Hearing dates:

13 October 2022

Date of orders:

13 October 2022

Decision date:

13 October 2022

Jurisdiction:

Common Law

Before:

Hamill J

Decision:

(1) Restraining orders and ancillary orders made pursuant to the Criminal Assets Recovery Act 1990 (NSW)

(2) Costs in the cause

Catchwords:

PROCEEDS OF CRIME – restraining order – ex parte – reasonable grounds for suspecting property to be proceeds of crime – order for examination of defendants – usual misgivings

Legislation Cited:

Criminal Assets Recovery Act 1990 (NSW), s 10A

Category:

Principal judgment

Parties:

New South Wales Crime Commission (Plaintiff)
Samaco Enterprises Pty Ltd (Defendant)

Representation:

Counsel:
S Askew (Plaintiff)

File Number(s):

2022/304516

ex tempore JUDGMENT

1. This is the matter of the New South Wales Crime Commission (“Crime Commission”) and Samaco Enterprises Pty Ltd (“Samaco Enterprises”). It also affects three named people being Mr Damion Flower, Mr To’oto’o Junior Mafiti and Ms Valentina Trpeski, in that it seeks ancillary orders in respect of those three people. The primary order sought is pursuant to s 10A of the Criminal Assets Recovery Act 1990 (NSW).

2. The application was made in closed court and ex parte in circumstances where taking a different course, namely putting the defendant and those three people on notice of the application or otherwise allowing information about the application to get out, had the potential, at least for certain people, either those three or others, to take actions to dispose of the property in such a way that the orders sought by the Crime Commission would be rendered nugatory or adversely affected in some way. Accordingly, I ordered the Court be closed before the application was heard and as contemplated by s 10A, allowed the application to proceed on an ex parte basis.

3. The principal order sought is in the nature of a restraining order under s 10A and ancillary orders are sought for the examination of those three people that I have named. The summons is supported by a statement of facts and circumstances and the affidavit of Jonathan Lee Spark, along with an exhibit JLS 1. The affidavit exhibits certificates of conviction for both Mr Flower and Mr Mafiti and, along with those certificates of conviction, agreed statements of facts in respect of them both. These materials show that the two gentlemen have been sentenced for their involvement in the importation of a commercial quantity of a border-controlled drug and it was a very significant quantity of cocaine. The circumstances are set out in little detail in the statement of facts. The fact of those convictions plainly allows Mr Spark to form the belief, being an authorised officer under the Act, that those two people were involved in serious crime activity.

4. The evidence otherwise goes to the connection between those two people and the legal title holders of the relevant property. The evidence also shows connections going back many years between Mr Mafiti and Ms Trpeski and, in turn, Ms Trpeski’s legal interest and title in Samaco Enterprises, who is the defendant with the legal title of the relevant property. I am satisfied pursuant to s 10A(5) of the relevant matters required to be established which include that: Samaco Enterprises, whose interest is the subject of the application, has acquired serious crime derived property because of the activities of another person or people. I am satisfied based on the material in the exhibit and the evidence of Mr Spark that Mr Spark suspects the interest in the relevant property is serious crime derived property.

5. For those reasons it is appropriate to make the orders for restraint of the property. I propose to do that.

6. There has been some discussion as to the ancillary orders sought. The fact that both Mr Mafiti and Mr Flower’s criminal proceedings have come to an end means that my usual misgivings about making examination orders in the absence of those to whom they are directed to and those individuals not having the opportunity to make submissions do not arise.

7. I am somewhat concerned about making orders against Ms Trpeski, who it seems has not been subject to any criminal proceedings and who potentially could be exposed by compulsory examination to be forced to abandon her right against self incrimination. I propose nevertheless to make the orders in respect of each of those people and in the case of each, particularly Ms Trpeski, to make it provisional on them having the right to contest the orders and have them revoked at a later stage.

8. Accordingly, I make the orders sought in the summons. Order 9 is for costs, and I take that it is not pressed at this stage. I make the orders in accordance with the orders provided by the Crime Commission. However, order 3 will become order 3(a) and there will be an order 3(b) in these terms:

3(b) Leave is granted to the persons named in order 2 to seek to have the examination order revoked.

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Decision last updated: 27 October 2022