New South Wales Crime Commission v Fox and Lynch

[2017] NSWSC 83

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crime Commission v Fox and Lynch [2017] NSWSC 83

Hearing dates:

14 February 2017

Date of orders:

14 February 2017

Decision date:

14 February 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 Katie Elaine Bourne sworn 8 February 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 Karajay Fox, including the interest in property in the property specified in Schedule One hereto.

 

2. 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 Lincoln Christopher Lynch, including the interest in property in the property specified in Schedule One hereto.

 

3. 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 Karajay Fox and Lincoln Christopher Lynch in the property specified in Schedule One hereto.

 

4. Pursuant to section 12(1)(b)(i) of the Criminal Assets Recovery Act 1990 Karajay Fox be examined on oath before a Registrar of the Court concerning her affairs, including the nature and location of any property in which she has an interest.

 

5. Pursuant to section 12(1)(b)(i) of the Criminal Assets Recovery Act 1990 Lincoln Christopher Lynch 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.

 

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

 

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

 

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

 

9. Liberty is granted to the Plaintiff, Karajay Fox and Lincoln Christopher Lynch to apply on three (3) days’ notice.

 

10. This matter be listed for directions before the Common Law Registrar at 9am on Monday 8 May 2017.
11. The costs of obtaining these orders be costs in the cause.

 

12. 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 sum of approximately $120,000 seized by members of the NSW Police Force during the execution of a search warrant on premises at 4702/91-95 Liverpool Street, Sydney on 25 January 2017.

  

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 (Plaintiff)
Karajay Fox (First Defendant)
Lincoln Christopher Lynch (Second Defendant)

Representation:

Counsel:
R Katrib (Plaintiff - ex parte)

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

File Number(s):

2017/47292

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

2. The application is supported by an affidavit of Katie Elaine Bourne sworn 10 February 2017. Ms Bourne, who is an authorised officer, deposes to a suspicion that the Defendants are engaged in serious crime-related activity or activities, being the supply of not less than the large commercial quantity of methyl amphetamine 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.

3. Ms Bourne deposes to the fact that her suspicion is held principally by reading the facts sheet prepared by the police after the arrest of the Defendants. Ms Bourne sought confirmation from the officer, who she believed prepared the facts sheets, of 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.

4. Ms Bourne has also had regard to the searches conducted by a financial analyst of the Commission in relation to the charging of the Defendants and the property found in their possession. I have read the facts sheet and I am satisfied that Ms Bourne's suspicion that those offences that have been committed, is reasonably held.

5. The Plaintiff seeks that the orders be made without prior notice to the Defendants. It does so based on what Ms Bourne says in paragraph 7 of her affidavit that she is aware from her experience that, in the absence of a restraining order, it is possible for people to dispose of property very quickly, including entry into unregistered mortgages and the backdating of motor vehicle transfer forms in an attempt to defeat the operation of the Act.

6. I am satisfied that the orders should be made without prior notice to the Defendants. They have their rights under s 10C of the Act to seek a review of those orders.  

7. I note that the usual undertaking as to damages is given by the solicitor for the Plaintiff. On that basis, I make orders in terms of paragraphs 1-5, 7 and 8, and 11 and 12 of the draft order. I grant the leave and liberty contained in paragraphs 6 and 9. I stand the matter over for directions before the Common Law Registrar at 9 am on Monday, 8 May 2017. These orders may be entered forthwith.

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Decision last updated: 15 February 2017