New South Wales Crime Commission v Calligas

[2024] NSWSC 109

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crime Commission v Calligas [2024] NSWSC 109

Hearing dates:

14 February 2024

Date of orders:

14 February 2024

Decision date:

14 February 2024

Jurisdiction:

Common Law

Before:

Davies J

Decision:

Upon the Plaintiff giving the usual undertaking as to damages (the giving of which by its solicitor being noted) and

Considering that, having had regard to the matters contained in the affidavit of Jiansong Wen sworn 13 February 2024, there are reasonable grounds for the suspicion stated therein:

The Court orders:

1. Pursuant to section 10A of the Criminal Assets Recovery Act 1990 no person (other than any registered mortgagee dealing with its right to do so under the registered mortgage) is to dispose of, or attempt to dispose of, or otherwise deal with or attempt to otherwise deal with any interest in property (within the meaning of “interest in property” as defined in section 7 of the Criminal Assets Recovery Act 1990) of Anastasios Calligas, including the interest in property in the property specified in Schedule One and Two hereto.

2. Pursuant to section 12(1)(b)(i) of the Criminal Assets Recovery Act 1990 Anastasios Calligas shall be examined on oath before a Registrar of the Court concerning his affairs, including the nature and location of any property in which he has an interest.

3. Leave is granted to the Plaintiff to obtain from the Registry dates for the examination ordered in Order 2 above.

4. Pursuant to section 10B(2) of the Criminal Assets Recovery Act 1990 the New South Wales Trustee and Guardian shall take control of all the interest of Anastasios Calligas in the property specified in Schedule One hereto.

5. Pursuant to section 12(1)(c1) of the Criminal Assets Recovery Act 1990 Anastasios Calligas shall furnish to the Plaintiff, within twenty one (21) days after service of a sealed copy of these orders on Anastasios Calligas, a statement verified by oath of Anastasios Calligas setting out the particulars sought in Schedule Three hereto.

6. Liberty is granted to the Plaintiff and Anastasios Calligas to apply on three (3) days’ notice.

7. The costs of obtaining these orders shall be costs in the cause.

8. These proceedings be listed for mention before the Common Law Registrar at 9:00am on 13 May 2024.

9. Pursuant to Rule 36.4(1)(a) of the Uniform Civil Procedure Rules 2005 these orders are to take effect as of the date hereof.

SCHEDULE ONE

Cash in the approximate amount of $6,500.00 seized by New South Wales Police Force on 28 June 2023 on execution of a search warrant at the premises at 38 Ellerslie Road, Bexley North NSW 2207.

SCHEDULE TWO

The whole of the property described as Title Reference: 51091052, Registered Owner Daling No: 718039328 23/05/2017 Anastasios Calligas, Estate and Land Estate in Fee Simple Lot 45 in Survey Plan 286307 in Local Government Area Ipswich.

SCHEDULE THREE

1. Provide full particulars of the nature and extent of all your interests in property (within the meaning of "interest in property" as defined in section 7 of the Criminal Assets Recovery Act 1990), including in relation to each item of property:

(a) a full description of your interest in the property, including the nature of that interest and, where possible, the estimated value, or in the case of bank accounts or deposits - the estimated balance, of that interest;

(b) the location of the interest;

(c) the name of the person or institution in whose custody title documents in respect of the interest are believed to be;

(d) the approximate date of acquisition of the interest;

(e) the source of funds used to acquire the interest.

2. Provide full particulars of your liabilities on both a capital and recurring basis, including, in relation to each liability:

(a) a full description of the liability including the nature of that liability and the amount of that liability;

(b) the name of the person or institution to which the liability is owed.

Catchwords:

CRIMINAL LAW – proceeds of crime – restraining orders

Legislation Cited:

Crimes Act 1900 (NSW) ss 93T, 193B

Criminal Assets Recovery Act 1990 (NSW) ss 4, 6, 10A, 10B, 10C, 22, 27, 28A

Drug Misuse and Trafficking Act 1985 (NSW)

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

New South Wales Crime Commission (Plaintiff)
Anastasios Calligas (Defendant)

Representation:

Counsel:
S Askew - Ex parte (Plaintiff)

Solicitors:
Legal Unit, New South Wales Crime Commission (Plaintiff)

File Number(s):

2024/57784

Publication restriction:

Nil

Judgment

1. The plaintiff seeks a restraining order under s 10A of the Criminal Assets Recovery Act 1990 (NSW) pending the making of forfeiture orders pursuant to s 22 of the Act, proceeds assessment orders pursuant to s 27, and unexplained wealth orders pursuant to s 28A.

2. The summons is supported by an affidavit of Jiansong Wen sworn 13 February 2024. Mr Wen is an authorised officer of the plaintiff as defined in s 4(1) of the Act.

3. Section 10A(5) of the Act requires the Court to make an order if the application is supported by an affidavit of an authorised officer setting out the matters contained in that subsection and stating the grounds on which the suspicion referred to therein is based, and the Court considers that there are reasonable grounds for the suspicion.

4. Mr Wen deposes to having a suspicion that the defendant has engaged in serious crime related activity. Six of the offences involve the supply of prohibited drugs in variable quantities from indictable to large commercial quantities as defined in the Drug Misuse and Trafficking Act 1985 (NSW). Those drugs are methamphetamine, cocaine, MDMA, and 1,4-Butanediol. All of these offences are serious criminal offences for the purpose of s 6(2) of the Criminal Assets Recovery Act.

5. Mr Wen also deposes to having suspicion of other crime related activity being, first, an offence of knowingly dealing with the proceeds of crime contrary to s 193B of the Crimes Act 1900 (NSW) involving money laundering and punishable by imprisonment for five years. That offence is a serious criminal offence under para 6(2)(d) of the Criminal Assets Recovery Act. Secondly, Mr Wen has a suspicion that the defendant has participated in a criminal group contrary to s 93T(1) of the Crimes Act. That is also a serious criminal offence within para G(3) of subs 6(2) of the Criminal Assets Recovery Act.

6. Mr Wen bases his suspicion on receipt of a facts sheet from Senior Constable Clinton Parsons of the NSW Police Force, and additional information provided by Senior Constable Parsons to Mr Wen.

7. I have read the facts sheet provided to Mr Wen, and I am satisfied that the suspicion held by him that all of the offences have been committed is reasonably held.

8. In his affidavit, Mr Wen also deposes to searches having been carried out by him and other members of the plaintiff to ascertain the ownership of real and personal property of the defendant.

9. The plaintiff asks that the orders sought be made without prior notice to the defendant, and it does so on the basis of Mr Wen's knowledge about the way property may be disposed of at short notice. I am satisfied in the circumstances that it is appropriate that orders should be made without prior notice to the defendant. The defendant has his rights under s 10C of the act to review those orders.

10. The property seized at the execution of a search warrant at the defendant's premises was cash in an amount of approximately $6,500. The plaintiff seeks an order pursuant to s 10B(2) of the act that the NSW Trustee & Guardian should take control of the interests of the defendant in that cash. It does so because the cash, if invested by the NSW Trustee & Guardian, will accrue interest. I consider it is appropriate that such an order should be made.

11. On the usual undertaking as to damages given by the plaintiff, I make orders in terms of paras 1, 2, 4, 5, 7 and 9 of the orders signed by me. I grant the leave and liberty in paras 3 and 6. The proceedings are stood over before the Common Law registrar on 13 May 2024.

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Decision last updated: 15 February 2024