In the matter of Creswick

[2022] NSWSC 894

Supreme Court

New South Wales

Medium Neutral Citation:

Application of the Commissioner of the Australian Federal Police; In the matter of Creswick [2022] NSWSC 894

Hearing dates:

17 June 2022

Date of orders:

17 June 2022

Decision date:

17 June 2022

Jurisdiction:

Common Law

Before:

Hamill J

Decision:

The Court makes orders in accordance with the short minutes of order being orders 1 - 34 filed on 17 June 2022.

Catchwords:

CIVIL – confiscation of proceeds of crime – statutory requirements satisfied – no point of principle

Legislation Cited:

Proceeds of Crime Act 2002 (Cth), ss 18, 19, 26(4), 38, 39, 39B, 338

Uniform Civil Procedure Rules 2005 (NSW), rr 6.15, 18.2(2)

Category:

Principal judgment

Parties:

Commissioner of the Australian Federal Police (Plaintiff)
Andrew James Creswick (First Defendant)
Jillian Farac (Second Defendant)
Abbsolute Transport Logistics Pty Ltd (Third Defendant)
CBD Bulk Haul Pty Ltd (Fourth Defendant)

Representation:

Counsel:
R Radic (Plaintiff)

Solicitors:
Australian Federal Police (Plaintiff)

File Number(s):

2022/175017

EX TEMPORE Judgment (REVISED)

1. By summons, filed with leave in court this morning on 17 June 2022, the Commissioner of the Australian Federal Police (“the Commissioner”) seeks a number of orders against the first named defendant, Andrew James Creswick, and three other named defendants pursuant to the Proceeds of Crime Act 2002 (Cth). Specifically, the Commissioner seeks restraining orders pursuant to ss 18 and 19 of the Act, orders directed to third parties who have a registered interest in the relevant property, custody and control orders under s 38 of the Act, ancillary orders relating to the involvement of the official trustee pursuant to s 39, and sworn statement orders also under s 39.

2. Those orders are sought pursuant to the summons, and in addition, the Commissioner reads an affidavit of Brendan Smith, who is a member of the Australian Federal Police and, relevantly and importantly from the point of view of the formalities required under the legislation, an authorised officer as that expression is defined in s 338 of the Act.

3. Annexed to Mr Smith’s affidavit are two volumes of source material, including, I think most significantly, facts sheets and other material directed to what I will call the suspicion upon which this application is founded.

4. That suspicion is that the first defendant, at least, was involved in what can only be described as a massive importation of methylamphetamine. The foundation for that suspicion is well established and, in any event, the reality is that Mr Smith holds it, which is the critical thing for the purposes of the legislation.

5. Sections 18 and 19, respectively, set out the matters upon which the Court must be satisfied, and if it is so satisfied the Court must make the orders sought by the appropriate authority. I don’t propose to go through them in detail, however I do note that the provisions in s 18(1)(c), (d), (e) and (f), and 19(1)(c), (d), (e) and (f) are all satisfied and established by the material relied on by the Commissioner. Accordingly, it is appropriate if not mandatory for me to make the orders sought.

6. Those orders and ancillary orders also are appropriate to be made in the particular circumstances set out in Mr Smith’s affidavit. I indicated to Ms Radic, who appears for the Commissioner, that I was disposed to make those orders once she had taken me through the prerequisites of the Act and the affidavit of the authorised officer.

7. However, I indicated some resistance to making the final orders sought, which are sworn statement orders pursuant to s 39(1) of the Act, requiring Mr Creswick, the first defendant, and Jillian Farac to provide sworn statements to the Commissioner in accordance with paras (a), (b) and (c) of orders 30 and 31 as sought.

8. My resistance arose from the reluctance I had to make ex parte orders compelling people to provide information which potentially could be used against them in relation to extant criminal proceedings. However, Ms Radic points out that, pursuant to s 39B of the Act, either of the people so affected have a right to seek to have that order revoked if they make an application within 14 days of being notified of the orders.

9. The other orders sought clearly need to be made on an ex parte basis in order to prevent any interference with the property, and the concern about that, apart from being obvious, is also set out within the affidavit of Mr Smith and there is evidence which suggests some subterfuge in terms of the dealings with property.

10. I am satisfied that the necessary requirements of the Act are made out, and that the short minutes of order properly reflect the orders that should be made under the Act. Accordingly, I make those orders in accordance with the legislation and in accordance with the short minutes of order, being orders 1 through to 34. Those orders are to be entered forthwith.

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Decision last updated: 04 August 2022