New South Wales Crime Commission v Galloway

[2017] NSWSC 14

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crime Commission v Galloway [2017] NSWSC 14

Hearing dates:

27 January 2017

Date of orders:

27 January 2017

Decision date:

27 January 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 Jonathan Lee Spark sworn 20 January 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 Ken Galloway, including the interest in property in the property specified in Schedule One hereto.

 

2. 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 Ken Galloway in the property specified in item 2 of the Schedule One hereto.

 

3. Pursuant to section 12(1)(b)(i) of the Criminal Assets Recovery Act 1990 Ken Galloway 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.

 

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

 

5. Leave is granted to the Plaintiff to obtain from the Registry dates for the examination ordered in Order 2 above.

 

6. Liberty is granted to the Plaintiff and Ken Galloway to apply on three (3) days’ notice.

 

7. This matter be listed for directions before the Common Law Registrar at 9am on Monday 3 April 2017.

8. The costs of obtaining these orders 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. The whole of the property described as Lot 2 in Deposited Plan 702342 also known as 35 Wallaby Drive, Gum Scrub in the State of New South Wales, 2441 and registered in the name of Ken Galloway as sole owner.

 

2. Cash in the sum of approximately $24,000 seized from Ken Galloway on 13 December 2016.

 

3. The whole of the property described as Lot 1 in Deposited Plan 45900 also known as 35 Wallaby Drive, Gum Scrub in the State of New South Wales, 2441 and registered in the name of Ken Galloway as sole owner.

 

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:

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

Representation:

Counsel:
S Vorreiter – Ex parte (Plaintiff)

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

File Number(s):

2017/27429

Judgment

1. This is an application for a restraining order under s 10A of the Criminal Assets Recovery Act 1990 (NSW). The proceedings are ultimately proceedings for an order pursuant to s 28A of that Act that the Defendant pay to the Treasurer an amount assessed by the Court as the value of the unexplained wealth of the Defendant.

2. The section provides that the Court must make a restraining order if the application is supported by an affidavit of an authorised officer setting out the matters that are contained in s 10A(5) and stating the grounds on which the suspicion referred to in that subsection is based if the Court considers that there are reasonable grounds for that suspicion.

3. The application is supported by an affidavit of Jonathan Lee Spark sworn 20 January 2017 who is an authorised officer of the Plaintiff. Mr Spark deposes to the fact that he suspects that the Defendant has engaged in a serious crime related activity or activities as defined in s 6 of the Act, being the offences of cultivating a prohibited plant, being cannabis, contrary to s 23(1)(a) of the Drug Misuse and Trafficking Act 1985 (NSW) and supplying a prohibited drug, being cannabis resin, contrary to s 25(1) of that Act. Those offences fall within the definition of serious crime related activity in section 6 of the Criminal Assets Recovery Act.

4. Mr Spark holds the suspicion based principally on reading the facts sheet prepared by the investigating police in the matter. He deposes to having spoken to the supervising officer and asked him if he was familiar with the contents of the facts sheet, and that he believed to the best of his knowledge and belief that the contents of the facts sheet were true. The supervising officer provided affirmative answers to Mr Spark’s enquiries.

5. I have read that facts sheet and I am satisfied that Mr Spark's suspicion that the offences referred to have been committed is reasonably held on the basis of the material in that facts sheet.

6. The Plaintiff seeks that these orders be made without giving prior notice to the Defendant. That request is based upon what Mr Spark says in his affidavit, that by reason of his lengthy experience working with the Commission he is aware how quickly it is for people to enter into unregistered mortgages in relation to real estate and dispose of funds held in bank accounts in a way that attempts to defeat the operation of the Act.

7. I consider that the orders should be made without prior notice to the Defendant. The Defendant, in any event, has the right under s 10C of the Act for a review of the orders made.

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Decision last updated: 31 January 2017