New South Wales Crime Commission v Acharya

[2017] NSWSC 443

Supreme Court

New South Wales

Medium Neutral Citation:	New South Wales Crime Commission v Acharya [2017] NSWSC 443
Hearing dates:	On the papers
Date of orders:	20 April 2017
Decision date:	20 April 2017
Jurisdiction:	Common Law
Before:	Schmidt J
Decision:	Orders made in terms sought.
Catchwords:	CRIMINAL LAW - procedure - restraining orders sought - ex-parte - orders made
Legislation Cited:	Crimes Act 1900 (NSW) Criminal Assets Recovery Act 1990 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Category:	Procedural and other rulings
Parties:	New South Wales Crime Commission (Plaintiff) Shyam Acharya (also known as Sarang Chitale) (Defendant)
Representation:	Solicitors: A Bishop, New South Wales Crime Commission
File Number(s):	2017/118115
Publication restriction:	No

Judgment

1. By summons which I granted leave to file, the New South Wales Crime Commission applied ex-parte, seeking restraining orders under s 10A of the Criminal Assets Recovery Act1990 (NSW) in relation to the interest in certain property of the defendant, Shyam Acharya, also known as Sarang Chitale.

2. Other orders under ss 12(1), and 28A of the Act were also there sought. The orders pressed were for restraining orders under s 10A, as well as orders under ss 10B and 12(1) and orders for substituted service under rule 10.14 of the Uniform Civil Procedure Rules 2005 (NSW).

3. The application was supported by an affidavit sworn on 19 April 2017 by Katie Elaine Bourne, the Commission’s Director, Assessments and an authorised officer under the Act, as well as by a statement of facts and circumstances provided in accordance with rule 1.26 of the Uniform Civil Procedure Rules 2005 (NSW).

4. For the reasons which follow, I am satisfied that the orders sought should be made.

5. The property sought to be restrained is identified in a schedule to the Summons as real property located at North Ryde, and Townsville registered in the name of Sarang Prakash Chitale and Pratibha Tokachichu, understood to be Shyam Acharya’s spouse, as joint tenants; as well as funds held in Commonwealth Bank accounts in the name Sarang Chitale.

6. Ms Bourne deposed that she suspected that Shyam Acharya had engaged in “serious crime related activity” as defined in s 6 of the Criminal Assets Recovery Act, namely, obtaining financial advantage by knowingly asking a false or misleading statement contrary to the former s 178BB of the Crimes Act1900 (NSW); using a false instrument with intent, contrary to s 300 of the Crimes Act; dealing with identification information contrary to s 182J of the Crimes Act and using false documents to obtain financial advantage, contrary to s 254 of the Crimes Act.

7. Ms Bourne there also gave a detailed explanation of the basis upon which she came to hold that suspicion. That rested on a consideration of:

1. Documents provided by Mr Fletcher, the Chief Executive Officer of the Australian Health Practitioner Regulation Agency, which had commenced criminal proceedings against Shyam Acharya, alleging that he had assumed the identity of Dr Sarang Prakash Chitale. They included a statement provided for the purpose of that prosecution by Dr Sarang Prakash Chitale;

2. Documents provided by detective Constable Berenger in relation to the investigation of the alleged fraud offences, including applications for search warrants;

3. Documents provided by the Registrar of the Criminal Registry at the Downing Centre Local Court, including a court attendance notice, statement of facts and record of Shyam Acharya’s conviction;

4. Documents obtained by employees of the Commission, including searches conducted of the records held in the Equifax and LPI databases and records provided by the CBA;

5. NSWPF search warrant information, a statement of an Australian Border Force supervisor and information provided by the Operational intelligence unit of the Australian Border Force, which suggests that Shyam Acharya last departed Australia on 26 January 2016, although he may have returned briefly on a false passport in February 2012.

8. Ms Bourne deposed to her experience that in the absence of a restraining order, it is possible for people to attempt to enter into unregistered mortgages in relation to real estate and to withdraw funds from bank accounts very quickly, in order to defeat the operation of the Act.

9. She also deposed to her view that, given the serious nature of the criminal activity in which Shyam Acharya is apparently involved, that notice should not be given of this application. That is a course available under the Act, although s 10A(4) permits a different course to be taken, if the Court thinks fit.

10. Section 10A(5) requires the making of the orders sought under the Act, if the Court considers that there are reasonable grounds for the suspicions to which Ms Bourne has deposed.

11. In this case, I am satisfied that the material relied on well establishes that there are reasonable grounds for the suspicions to which Ms Bourne has deposed and that the requirements of s 10A(5) of the Act have been addressed. In that situation, the Act requires that the orders sought in relation to the property in question be made.

12. In the circumstances, I have concluded that it is also appropriate to make the other orders sought, including the order for substituted service upon Pratibha Tokachichu, now residing at an address known to her solicitor.

13. On the evidence, I am also satisfied that the Commission ought not to be required to give notice of this application and that it should be dealt with ex-parte. In coming to that view, I have regard to the provisions of s 10C of the Act, which permits an affected person to apply to have a restraining order set aside, as well as the liberty granted in the order to the parties to apply to the Court on three days’ notice.

Orders

14. Accordingly, I make orders in the terms sought, as well as ordering that the Commission serve a copy of this judgment on Shyam Acharya and Pratibha Tokachichu.

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Decision last updated: 26 April 2017