New South Wales Crime Commission v Chie

[2018] NSWSC 10

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crime Commission v Chie [2018] NSWSC 10

Hearing dates:

12 January 2018

Date of orders:

12 January 2018

Decision date:

12 January 2018

Jurisdiction:

Common Law

Before:

Davies J

Decision:

Non publication order in respect of the whole of the proceedings pursuant to s 8(1)(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW) until close of business on 19 January 2018.

 

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 10 January 2018, 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 Zachary Adam Chie, including the interest in property in the property specified in Schedule One and Schedule Two hereto.

 

2. Pursuant to section 12(1)(b)(i) of the Criminal Assets Recovery Act 1990 Zachary Adam Chie 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 Zachary Adam Chie in the property specified in Schedule Two hereto.

 

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

 

6. Liberty is granted to the Plaintiff and Zachary Adam Chie to apply on three (3) days’ notice.

 

7. The balance of the Summons filed in these proceedings be listed for mention before the Common Law Duty Registrar at 9am on 9 April 2018.

 

8. The costs of obtaining these orders shall 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. 2011 Nissan Navara utility vehicle with New South Wales registration CJK43V and registered in the name of Zachary Adam Chie.

 

2. 2010 Harley Davidson motorcycle with New South Wales registration MAC80 and registered in the name of Zachary Adam Chie.

 

3. 2006 Easy Tow boat trailer with New South Wales registration TC49MK and registered in the name of Zachary Adam Chie.

 

4. 2003 Holden RA Rodeo 4-wheel drive utility vehicle with New South Wales registration BX28TN and registered in the name of Zachary Adam Chie.

 

5. Funds held in Australia and New Zealand Bank account numbered 012827 2502-80252 held in the name of Zachary Adam Chie.

 

6. Funds held in Australia and New Zealand Bank account numbered 012501 4522-64904 held in the name of Zachary Adam Chie.

 

7. Funds held in Australia and New Zealand Bank account numbered 012501 4522-64939 held in the name of Zachary Adam Chie.

 

SCHEDULE TWO

 

1. Cash in the amount of approximately $1,850 seized by New South Wales Police Force on 10 November 2017 during the arrest of Zachary Adam Chie.

 

2. Cash in the amount of approximately $126,550 seized by New South Wales Police Force on 10 November 2017 during a search of a 2011 Nissan Navara utility vehicle with New South Wales registration CJK43V and registered in the name of Zachary Adam Chie.

 

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.

Non publication order in respect of the whole of the proceedings pursuant to s 8(1)(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW) until close of business on 19 January 2018.

Catchwords:

CRIMINAL LAW – proceeds of crime – restraining orders

Legislation Cited:

Court Suppression and Non-publication Orders Act 2010 (NSW)
Crimes Act 1900 (NSW)
Criminal Assets Recovery Act 1990 (NSW)
Drug (Misuse and Trafficking) Act 1985 (NSW)
Uniform Civil Procedure Rules 2005

Category:

Procedural and other rulings

Parties:

New South Wales Crime Commission (Plaintiff)
Zachary Adam Chie (Defendant)

Representation:

Counsel:
S Santhikumar (Plaintiff - ex parte)

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

File Number(s):

2018/10644

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 stating that the officer suspects that the person, whose interest in property is sought to be restrained, has engaged in serious crime-related activity, stating the grounds on which the suspicion referred to therein is based, and the Court considers that there are reasonable grounds for the suspicion.

3. The application is supported by an affidavit of Jonathan Lee Spark sworn 10 January 2018.

4. 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 a prohibited drug of an amount greater than the indictable quantity contrary to s 25(1) of the Drug (Misuse and Trafficking) Act 1985 (NSW), and dealing with property the proceeds of crime value of $100,000 or more involving money laundering contrary to s193C(1) of the Crimes Act 1900 (NSW). Both of those offences are serious criminal offences pursuant to section 6 (2)(b) and (d) of the Act.

5. Mr Spark deposes to the fact that his suspicion is held principally by reading the facts sheet prepared by the police, by an officer of the Commission examining the RMS database and from having inspected the Commission's records that consisted of information provided by the ANZ Bank pursuant to s 51 of the Act.

6. Mr Spark sought confirmation from the officer whom 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 inquiries.

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

8. The plaintiff seeks that 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 dispose of motor vehicles very quickly in an attempt to defeat the operation of the Act.

9. 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.

10. The plaintiff also seeks an order under the Court Suppression and Non-Publication Orders Act 2010 in respect of a non-publication order relating to the proceedings generally to enable its officers to make the appropriate notations on the RMS database concerning the motor vehicles identified in schedule 1 to the summons. I consider it is appropriate that such an order should be made for a period of one week to enable that to happen.

11. On the usual undertaking as to damages having been given by the solicitor for the plaintiff, I make orders in terms of paragraphs 1 to 9 of the draft order provided to me. I further make an order under s 81A of the Court Suppression and Non-Publication Orders Act2010 until close of business on 19 January 2018.

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Decision last updated: 29 January 2018