New South Wales Crime Commission v Foster

[2024] NSWSC 111

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crime Commission v Foster [2024] NSWSC 111

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 affirmed 13 February 2024, there are reasonable grounds for the suspicions 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 Shannon Foster, including the interest in property in the property specified in Schedule One, Schedule Two and Schedule Three hereto.

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

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

5. 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 Shannon Foster in the property specified in Schedule Two hereto.

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

7. Liberty is granted to the Plaintiff and Shannon Foster to apply on three (3) days’ notice.

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

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

10. 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

The whole of the property described as Lot 10 in Deposited Plan 751361, Local Government Area Clarence Valley, Parish of Chapman, County of Clarence and Lot 1 in Deposited Plan 1159831, Local Government Area Clarence Valley, Parish of Chapman, County of Clarence, Locality of Fortis Creek, collectively also known as 310 Greberts Road, Whiteman Creek NSW 2460 and registered in the name of Shannon Foster as sole owner.

SCHEDULE TWO

2015 Holden VFP/13 with NSW registration DB75LF and registered in the name of Shannon Foster.

SCHEDULE THREE

1. 2019 Stonegate HT 85-HD Box Trailer with NSW registration TG43MO and registered in the name Shannon Foster.

2. 2001 Nissan Y61 Wagon with NSW registration CW66FJ and registered in the name Shannon Foster.

SCHEDULE FOUR

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) ss 4, 6, 10A, 10B, 10C, 22, 27, 28A

Drug Misuse and Trafficking Act 1985 (NSW) ss 23, 25

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

New South Wales Crime Commission (Plaintiff)
Shannon Foster (Defendant)

Representation:

Counsel:
S Askew - Ex parte (Plaintiff)

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

File Number(s):

2024/57788

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, a 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 suspicion that the defendant has engaged in serious crime related activity, namely, knowingly taking part in the cultivation of a large commercial quantity of prohibited plants being cannabis contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW), and two counts of supplying a prohibited drug being cannabis leaf and MDMA contrary to s 25(1) of the Drug Misuse and Trafficking Act. These offences are serious criminal offences within the meaning of s 6 of the Criminal Assets Recovery Act.

5. Mr Wen made contact with Senior Constable Lindsay Elphick who he understood was a police officer involved in the investigation of the defendant. Mr Wen sought a copy of the facts sheet in relation to the charges against the defendant, and he sought information from Constable Elphick that he was the officer who drafted the facts sheet or was aware of the contents of it, whether the contents of it were true, and whether the facts sheet was prepared as a result of the investigation described in the facts sheet. Senior Constable Elphick provided affirmative answers to all of Mr Wen's enquiries.

6. I have read the facts sheet annexed to Mr Wen's affidavit, and as a result, I am satisfied that the suspicion held by him that the offences have been committed is reasonably held.

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

8. The plaintiff asks that the orders sought be made without prior notice to the defendant, and 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 the orders.

9. One of the items seized by the police in the course of their investigation was a Holden motor vehicle. The plaintiff seeks an order that the NSW Trustee and Guardian should take control of the motor vehicle because the plaintiff has no facilities for the long-term storage of vehicles, and Mr Wen is concerned that if the motor vehicle is returned to the defendant, it may be concealed or disposed of, contrary to any restraining order that is made.

10. In the circumstances, I consider it is appropriate that an order be made pursuant to s 10B of the Act that control of the motor vehicle be given to the NSW Trustee and Guardian.

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Decision last updated: 15 February 2024