New South Wales Crime Commission v De Jonk

[2016] NSWSC 1668

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crime Commission v De Jonk [2016] NSWSC 1668

Hearing dates:

23 November 2016

Date of orders:

23 November 2016

Decision date:

23 November 2016

Jurisdiction:

Common Law

Before:

Davies J

Decision:

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 Benjamin Anthony De Jonk (the Defendant), including the interest in property specified in Schedule One hereto.

 

2. Pursuant to section 12(1)(b)(i) of the Criminal Assets Recovery Act 1990 the Defendant 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 [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 the Defendant in the property specified in Items 1 and 2 of Schedule One hereto.

 

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

 

6.   Liberty is granted to the Plaintiff and the Defendant to apply on three (3) days' notice.

 

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

 

8. 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.

 

9.   The balance of the Summons filed in these proceedings will be listed for further mention on 20 March 2017.

 

SCHEDULE ONE

 

1.   The amount of approximately $137,500 cash seized by police on 6 March 2015 during the execution of a search warrant at 14 Neville Street, Willoughby, New South Wales.

 

2.   Luxury watches and jewellery seized by police on 6 March 2015 during the execution of a search warrant on premises at 14 Neville Street, Willoughby, described as follows:

 (a)   Item X0001049566 - Black faced Aviator watch.
(b)   Item X0001049567 - Tag Huer (sic) Carrera watch.
(c)   Item X0001049568 - Hublot rose gold watch.
(d)   Item X0001049569 - Silver faced Audemars Piguet watch.
(e)   Item X0001049570 - Black Bulgari watch.
(f)   Item X0001049571 - Longines watch.
(g)   Item X0001049572 - Brown Bulgari watch.
(h)   Item X0001049573 - Black Hublot watch.
(i)   Item X0001049574 - Bulgari gold coloured ring.
(j)   Item X0001049575 - Bulgari gold coloured ring.
(k)   Item X0001049576 - Silver coloured ring with diamonds.
(l)   Item X0001049578 - Display case containing 16 watches.
(m)   Item X0001049579 - Louis Vuitton watch.

3.   The whole of the property described as Lot 34 in Deposited Plan 4151, Local Government Area Willoughby, Parish of Willoughby, County of Cumberland, also known as 30 Ann Street, Willoughby East 2068, registered in the names of Benjamin Anthony De Jonk and Jessica Elizabeth De Jonk as joint tenants.

 

4.   2014 Mercedes ML63 AMG with NSW Plate Number BSD95K and registered in the name of ACN 139558688 Pty Ltd.

 

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)

Category:

Procedural and other rulings

Parties:

New South Wales Crime Commission (Plaintiff)
Anthony Benjamin De Jonk (Defendant)

Representation:

Counsel:
I Temby QC (Plaintiff)
Ex parte

  Solicitors:
NSW Crime Commission (Plaintiff)
Ex parte

File Number(s):

2016/350718

Judgment

1. This is an application for orders under Criminal Assets Recovery Act 1990 (NSW). Section 10A enables an application to be made ex parte for a restraining order which remains in force whilst, as here, there is an application pending for an unexplained wealth order under s 28A of the Act.

2. The application is supported by an affidavit of Katie Elaine Bourne sworn 22 November 2016. In that affidavit Ms Bourne, who is an authorised officer as defined in s 4(1) of the Act, deposes to her suspicion that the Defendant has engaged in serious crime-related activity or serious crime-related activities, namely, dealing with the proceeds of crime being reckless as to whether it is the proceeds of crime contrary to s 193B(3) of the Crimes Act 1900 (NSW). That is a serious criminal offence under s 6(2)(d) of the Act being an offence punishable by imprisonment for five years or more.

3. Although the Defendant has not been charged with any offence at the present time, Ms Bourne sets out in some detail in her affidavit the material facts which causes her to hold the suspicion to which I have referred. It is not necessary to detail all of that information. Her suspicion is justified by the material which relates the Defendant to two persons in particular, Email Badalyan and Vahe (Wayne) Geokjian. Those persons are known to be involved in the importation and distribution of drugs. The information also discloses the handing over of large sums of money by the Defendant to a number of persons for the purpose of that money being remitted overseas.

4. I am satisfied that the material upon which Ms Bourne relies justifies the reasonable suspicion held by her that the Defendant has engaged in a serious crime related activity involving dealing with the proceeds of crime.

5. Section 10A(5) of the Act requires the Court to make a restraining order if the Court is satisfied that there are reasonable grounds for the authorised officer’s suspicion. As I have indicated, there are such reasonable grounds.

6. Section 10A(4) enables notice to be given to a defendant before an order is made if the Court thinks fit. In the light of the evidence contained in Ms Bourne’s affidavit concerning the speed with which persons are able to alienate property in their possession, and noting the nature of the offence involved, I do not consider that the Defendant should be given notice of this application before the order is made. The Defendant in any event has the rights of review set out in s 10C of the Act.

7. I note the usual undertaking as to damages is given by Senior Counsel for the Plaintiff.

8. I make orders in terms of paragraphs 1, 2, 4, 5 and 8 of the order provided. I grant the leave and liberty contained in paragraphs 3 and 6. I order that the costs should be costs in the cause. The balance of the summons is stood over for mention to 20 March 2017 before the Registrar. These orders may be entered forthwith.

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Decision last updated: 01 December 2016