New South Wales Crime Commission v Calvert

[2017] NSWSC 13

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crime Commission v Calvert [2017] NSWSC 13

Hearing dates:

27 January 2017

Date of orders:

27 January 2017

Decision date:

27 January 2017

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 Jonathan Lee Spark sworn 12 January 2017, 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 Arthur Calvert, including the interest in property in the property specified in Schedule One hereto.

 

2. An order pursuant to section 10B(2) of the Criminal Assets Recovery Act 1990 that the New South Wales Trustee and Guardian take control of all the interest of Calvert in the property specified in item 2 of Schedule One hereto.

 

3. Pursuant to section 12(1)(b)(i) of the Criminal Assets Recovery Act 1990 Arthur Calvert 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.

 

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

 

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

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

 

7. This matter be listed for directions before the Common Law Registrar at 9am on Monday 3 April 2017.

 

8. The costs of obtaining these orders be costs in the cause.

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

 

1. The whole of the property described as Lot 40 in Deposited Plan 262729 also known as 3 Jaf Place, Blairmount in the State of New South Wales, 2559 and registered in the name of Arthur Calvert and in the name of Lynn Calvert as joint tenants.

 

2. Cash in the sum of approximately $65,000 seized from Arthur Calvert on 11 December 2016.

 

3. A F100 Ford motor vehicle registration plate number BS49GN registered in the name of Arthur Calvert.

 

4. A Ford passenger car registration plate number CZM25Y registered in the name of Arthur Calvert.

 

SCHEDULE TWO

 

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.

 Orders to be entered forthwith.

Catchwords:

CRIMINAL LAW – proceeds of crime – restraining orders

Legislation Cited:

Crimes Act 1900 (NSW)
Criminal Assets Recovery Act 1990 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Category:

Procedural and other rulings

Parties:

New South Wales Crime Commission

Representation:

Counsel:
S Vorreiter – Ex parte (Plaintiff)

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

File Number(s):

2017/27418

Judgment

1. The Plaintiff seeks a restraining order under s 10A of the Criminal Assets Recovery Act 1990 (NSW) pending the making of an assessment in relation to an unexplained wealth order under s 28A of that Act.

2. Section 10A(5) of the Act says that the Court must make a restraining order if the application is supported by an affidavit of an authorised officer setting out the matters in that subsection and stating the grounds on which the suspicion referred to therein is held if the Court considers that the suspicion is reasonably held.

3. The application is supported by an affidavit of Jonathan Lee Spark sworn 12 January 2017. Mr Spark, who is an authorised officer, deposes to a suspicion that the Defendant is engaged in serious crime related activity or activities, being the commission of the offences of supplying prohibited drugs greater than a large commercial quantity contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) and knowingly dealing with the proceeds of crime contrary to s 193B(2) of the Crimes Act 1900 (NSW). Those offences fall within the definition of serious criminal offence under s 6(2)(b) of the Criminal Assets Recovery Act.

4. Mr Spark deposes to the fact that his suspicion is held principally by reading the facts sheet prepared by the police after the arrest of the Defendant. He sought confirmation from the officer who he believed prepared the facts sheet the fact that the officer had done so, that the facts sheet was true to the best of his knowledge and belief, and that the facts sheet was prepared on information obtained by police as a result of the investigation. The officer replied in the affirmative to those enquiries.

5. I have read the facts sheet and I am satisfied that Mr Spark's suspicion that those offences have been committed is reasonably held.

6. The Plaintiff seeks that the orders be made without prior notice to the Defendant. It does so based on what Mr Spark says in paragraph 9 of his affidavit, that through his long experience with the Plaintiff he is aware that in the absence of a restraining order it is possible for people to attempt to enter into unregistered mortgages of real estate very quickly and dispose of motor vehicles very quickly in an attempt to defeat the operation of the Act.

7. I am satisfied that the orders should be made without prior notice to the Defendant. The Defendant has rights under s 10C of the Act to seek a review of these orders.

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Decision last updated: 31 January 2017