New South Wales Crime Commission v Embradora

[2019] NSWSC 139

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crime Commission v Embradora [2019] NSWSC 139

Hearing dates:

20 February 2019

Date of orders:

20 February 2019

Decision date:

20 February 2019

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 Katie Elaine Bourne sworn 19 February 2019, 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 Gian Carlo Embradora, 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 Gian Carlo Embradora 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 Gian Carlo Embradora in the property specified in Schedule One hereto.

 

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

 

6. Liberty is granted to the Plaintiff and Gian Carlo Embradora to apply on three (3) days’ notice.

 

7. The balance of the summons be listed for mention before the Common Law Duty Registrar at 9am, on Monday 20 May 2019.

 

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

 

Cash in the amount of approximately $219,850 seized by members of the NSW Police Force on 13 April 2018 from premises at 18 Swift Street, Riverstone, NSW.

 

SCHEDULE TWO

 

A 2010 VW Golf motor vehicle with registration plate NBL66H registered in the name of Gian Carlo Embradora.

 

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:

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 (Plaintiff)
Gian Carlo Embradora (Defendant)

Representation:

Counsel:
A Bishop – Ex parte (Plaintiff)

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

File Number(s):

2019/58099

Judgment

1. The plaintiff seeks a restraining order under s10A of the Criminal Assets Recovery Act 1990 (NSW) pending the making of a forfeiture order under s 22 of the Act and an unexplained wealth order under s 28A of the Act.

2. The summons is supported by an affidavit of Katie Elaine Bourne sworn 19 February 2019. Ms Bourne is an authorised officer of the plaintiff.

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 there are reasonable grounds for the suspicion.

4. Ms Bourne deposes to a suspicion that the defendant has engaged in serious crime related activity or activities being the supply of not less than the commercial quantity of cocaine, and the supply of not less than the commercial quantity of methylamphetamine, both contrary to s 25(2) of the Drug Misuse and Traffic Act 1985 (NSW), and the supply of not less than the indictable quantity of GHB contrary to s 25(1) of the Drug Misuse and Traffic Act. These offences are serious criminal offences pursuant to ss 6(2)(b) and 6(3) of the Act.   

5. Ms Bourne bases her suspicion principally on reading a facts sheet prepared by the New South Wales police. She sent an email on 10 December 2018 to detective Senior Constable Michael Eames who is an officer involved in the investigation of the offences committed by the defendant. Ms Bourne asked detective Eames if he was the officer that drafted the facts sheet, if the contents of the facts sheet were true to the best of his knowledge and belief, and if it was prepared based on information obtained by police as a result of the investigation. Detective Eames answered in the affirmative to all of those questions.   Ms Bourne also asked detective Eames if the defendant was to be charged with the offences. At the present time, the information Ms Bourne has is that the police are endeavouring to locate the defendant in order to charge him, but his present whereabouts are unknown.

6. I have read the facts sheet and I am satisfied that the suspicion held by Ms Bourne is reasonably held.

7. The plaintiff asks that the orders be made without prior notice to the defendant, particularly because he has not yet been arrested, and Ms Bourne is aware that further interests in property owned by the defendant may be identified subsequent to the restraining order being made.

8. I am satisfied in the circumstances that the defendant has not yet been arrested, that the present application should be made without giving notice or attempting to give notice to the defendant. The defendant has his rights under s 10C of the Act to review these orders.

9. I note the undertaking from the solicitor for the plaintiff. On that basis I make orders in terms of paragraphs 1, 2, 4, 5, 7, 8 and 9 of the draft orders signed by me and dated today. I grant the liberty and leave in paragraphs 3 and 6 of that order.

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Decision last updated: 22 February 2019