New South Wales Crime Commission v Gao

[2017] NSWSC 959

Supreme Court

New South Wales

Medium Neutral Citation:	New South Wales Crime Commission v Gao [2017] NSWSC 959
Hearing dates:	30 June 2017
Date of orders:	30 June 2017
Decision date:	18 July 2017
Jurisdiction:	Common Law
Before:	Walton J
Decision:	On the evidence before the Court, the Commission has established that a restraining order should be made under s 10A and ancillary orders be made under s 12(1) of the Act. I order accordingly.
Catchwords:	CRIMINAL PROCEDURE – Criminal Assets Recovery Act 1990 (NSW) – proceeds of crime - restraining orders – ancillary orders – ex parte - orders made
Legislation Cited:	Criminal Assets Recovery Act 1990 (NSW) Crimes Act 1900 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Category:	Principal judgment
Parties:	New South Wales Crime Commission (Plaintiff) Ting Gao (Defendant)
Representation:	Solicitors: New South Wales Crime Commission (Plaintiff)
File Number(s):	2017/00196211

Judgment

1. This matter concerns an application for orders by the New South Wales Crime Commission (“the Commission”) pursuant to ss 10A, 10B(2) and 12(1) of the Criminal Assets Recovery Act 1990 (NSW) ("the Act").

2. Section 10A of the Act enables an application to be made ex parte for a restraining order. Section 10B(2) of the Act enables this Court when making a restraining order, if it considers that the circumstances so require, order the NSW Trustee and Guardian to take control of some or all of the interests in property that are interests to which the restraining order applies. Section 12 permits the Court, when making a restraining order, to make any ancillary orders that the Court considers appropriate. These orders may include, as sought in the present matter, an order for the examination under oath of the owner of an interest in property that is subject to the restraining order.

3. The application is supported by a statement of facts and circumstances pursuant to r 1.26 of the Uniform Civil Procedure Rules2005 and an affidavit of Katie Elaine Bourne sworn on 30 June 2017. Ms Bourne, a financial investigator with the Commission, deposed that she is an authorised officer as defined in s 4(1) of the Act and suspected that the defendant, Ting Gao, had engaged in a serious criminal related activity, namely, knowingly take part in the supply of a prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act1985 (NSW) ("DMT Act"), manufacture prohibited drug not less than the large commercial quantity of that drug contrary to s 24(2) of the DMT Act and participate in criminal group and contribute to criminal activity contrary to s 93T(1) of the Crimes Act1900 (NSW). It was deposed, and I accept, that the offences so described constitute serious criminal offences pursuant to ss 6(2)(b) and 6(2)(g1) of the Act.

4. The grounds upon which Ms Bourne held her suspicion are set out in her affidavit. In particular, she was provided with and accepted a police fact sheet that described the suspected serious criminal activity. The police fact sheet described that the cash and real property was an available interest that related to the serious crime use of another property. Further, the police fact sheet, a court attendance notice and bank statements were ascertained to be truthful by Ms Bourne.

5. It follows that the first two requirements of s 10A(5) of the Act are met in the present matter. The relevant authorised officer suspected that the defendant whose interest was the subject of the application has engaged in a serious crime related activity and her affidavit stated the grounds upon which the suspicion was based.

6. There are three further requirements of the provisions of s 10A of the Act which required attention before an order may be made.

1. First, the Court is required to be satisfied pursuant to s 10A(3) of the Act that the defendant is domiciled in New South Wales and that the property in respect of which the restraining order is sought is situated in New South Wales. On the affidavit of Ms Bourne, I am satisfied that this criteria has been met in the present case.

2. Secondly, s 10A(4) of the Act enables notice to be given the defendant, if the Court thinks fit to, before an order is made. In light of Ms Bourne's evidence I do not consider such notice should be given having regard to the capacity of persons to enter into unregistered mortgages in relation to real estate, to quote Ms Bourne, "very quickly" and thereby attempting to defeat the operation of the Act.

3. The final requirement is the Court must be satisfied that there are reasonable grounds for the suspicion held by the authorised officer. In that respect, I have considered the police fact sheet together with Ms Bourne's evidence and I am satisfied there are reasonable grounds for the suspicion deposed by Ms Bourne. The defendant was arrested at an address that was printed as the supplementary address details for the property address of 96-102 Belmore Street, Ryde. A sum of $113,000 was seized at the address in which the defendant was arrested.

7. As earlier mentioned, by s 12(1) of the Act, the Court may, when making a restraining order, make any ancillary orders that the court considers appropriate.

8. By s 12(1)(b)(i) of the Act the Court may order the examination on oath of the owner of an interest in the property, that is the subject of a restraining order, as to the affairs of the owner including the nature and location of any property in which the owner has an interest.

9. By s 12(1)(c1) the Court may make an order an order directing a person who is or was the owner of an interest in property that is subject to the restraining order or, if the owner is or was a body corporate, a director of the body corporate specified by the Court, to furnish to the Commission or NSW Trustee and Guardian, within a period specified in the order, a statement, verified by the oath of the person making the statement, setting out such particulars of the property, or dealings with the property, in which the owner has or had an interest as the Court thinks proper. That examination may be conducted by, inter alia, an officer of the court prescribed by the rules of the Court. In the present matter, the orders sought by the Commission proposed that the defendant be examined on oath before the Registrar of the Court. That order is permissible under the Act.

10. On the evidence before the Court, the Commission has established that a restraining order should be made under s 10A and ancillary orders be made under ss 10B(2) and 12(1) of the Act. I order accordingly.

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Decision last updated: 18 July 2017