New South Wales Crime Commission v Bath
[2018] NSWSC 1350
•19 July 2018
Supreme Court
New South Wales
Medium Neutral Citation: New South Wales Crime Commission v Bath [2018] NSWSC 1350 Hearing dates: 19 July 2018 Date of orders: 19 July 2018 Decision date: 19 July 2018 Jurisdiction: Common Law Before: Schmidt J Decision: Orders made in the terms sought, as well as ordering that the Commission serve a copy of this judgment on Ms Bath.
Catchwords: CRIMINAL LAW – procedure – restraining orders sought – ex-parte – orders made Legislation Cited: Civil Procedure Act 2005 (NSW)
Crimes Act 1900 (NSW)
Criminal Assets Recovery Act 1990 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)Category: Principal judgment Parties: New South Wales Crime Commission (Plaintiff)
Ashleigh Mikaela Bath (Defendant)Representation: Solicitors:
New South Wales Crime Commission (Plaintiff)
File Number(s): 2018/222022 Publication restriction: Nil
Judgment
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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, Ashleigh Mikaela Bath, by which it gave an undertaking as to damages. Other orders under ss 10B(2), 12(1), 22 and 28A of the Act were also sought, as well as orders for interest under s 101 of the Civil Procedure Act 2005 (NSW).
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Orders under ss 10A, 10B(2) and 12(1) were pressed.
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The application was supported by an affidavit sworn on 12 July 2018 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 r 1.26 of the Uniform Civil Procedure Rules 2005 (NSW).
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For the reasons which follow, I am satisfied that the orders sought should be made.
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The property sought to be restrained is identified in a schedule to the summons to be cash in the amount of $286,365, seized by police from a vehicle being driven by Ms Bath on 31 May 2018.
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Ms Bourne deposed that she suspected that Ms Bath had engaged in serious crime related activity within the definition of a “serious crime related activity” in s 6 of the Criminal Assets Recovery Act, namely, dealing with the proceeds of crime contrary to s 193C(1) of the Crimes Act1900 (NSW), involving money laundering.
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In the affidavit Ms Bourne gave a detailed explanation of the basis upon which she came to hold this suspicion. It rested on a consideration of documents obtained by employees of the Commission, including a Facts Sheet received from Sergeant Gary Chetcuti, the officer in charge of the police investigation into Ms Bath; questions which Ms Bourne asked the Sergeant about the Facts Sheet and responses which he gave; as well as searches conducted of the records held in the COPS database, which showed that on 31 May 2018, Ms Bath had been charged with the offence specified in the Facts Sheet, which was annexed to the affidavit.
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Ms Bourne deposed to her experience that in the absence of a restraining order, it is possible for people very quickly to attempt to dispose of assets, including those held outside New South Wales, in order to defeat the operation of the Act.
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She also deposed to her view that, given the serious nature of the criminal activity in which Ms Bath is apparently involved, that notice should not be given to her 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.
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Section 10A(5) requires the Court to make the orders sought under the Act, if it considers that there are reasonable grounds for the suspicions which Ms Bourne has deposed she holds.
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On Ms Bourne’s affidavit, I am satisfied that the Commission has established that there are reasonable grounds for the suspicions which Ms Bourne clearly holds 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 seized cash be made. In those circumstances, I have also concluded that it is appropriate to make the other orders the Commission seeks.
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I have reached those conclusions having considered Ms Bourne’s affidavit and the attached materials on which she formed her suspicions, including what was disclosed in the Facts Sheet Sergeant Chetcuti provided her, as to which Ms Bourne deposed that she believed in the truth of the information he had provided.
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That document revealed that Ms Bath was stopped by police on 31 May 2018 for a random breath test, while driving a car which she admitted owning. She had been observed departing premises where occupants were suspected of drug supply and her nervous behaviour when stopped gave rise to the suspicions that her vehicle might have contained prohibited drugs.
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Ms Bath made admissions about having a large amount of cash in the vehicle, which was located on search, inside her handbag tied into bundles, where a small amount of a then unknown drug was also found. Other such bundles of cash were found in a cooler bag containing two laptop type bags. A third laptop bag was found to contain envelopes containing sums of under $10,000, with bank BSB and account numbers, seemingly for the purpose of deposit to avoid regulatory cash deposit thresholds.
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Other envelopes found contained deposit slips which had been date and time stamped, but no cash. It became apparent that Ms Bath had deposited this cash before she was stopped by police.
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Ms Bath made admissions about her knowledge of the cash and gave an account as to how it had come into her possession from an unknown male, who had instructed her to attend the Commonwealth Bank to deposit the money.
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The cash when counted at the Police Station where Ms Bath was charged with the s 193C(1) offence and an offence of possess prohibited drug under s 10(1) of the Drug Misuse and Trafficking Act 1985 (NSW), amounted to $286,365. There she provided further information, which police considered to be implausible.
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All of this evidence, I am satisfied, provides a proper basis for the making of all of the orders which the Commission sought, at this stage of the proceedings. On that evidence, I am also satisfied that the Commission ought not to be required to give notice of this application to Ms Bath and that it should be dealt with ex-parte.
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In coming to that view, I have had 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
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Accordingly, I make orders in the terms sought, as well as ordering that the Commission serve a copy of this judgment on Ms Bath.
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Decision last updated: 31 August 2018
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