New South Wales Crime Commission v Gregory Dunn

[2017] NSWSC 98

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crime Commission v Gregory Dunn [2017] NSWSC 98

Hearing dates:

16 February 2017

Date of orders:

16 February 2017

Decision date:

16 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 16 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 Gregory Joseph Dunn, 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 Gregory Joseph Dunn 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 12(1)(c1) of the Criminal Assets Recovery Act 1990 Gregory Joseph Dunn furnish to the Plaintiff, within twenty one (21) days after service of a sealed copy of these orders on Gregory Joseph Dunn, a statement verified by oath of Gregory Joseph Dunn setting out the particulars sought in Schedule Three hereto.

 

5. Liberty is granted to the Plaintiff and Gregory Joseph Dunn to apply on three (3) days’ notice.

 

6. This matter be listed for directions before the Common Law Registrar at 9am on Monday 15 May 2017.

 

7. The costs of obtaining these orders be costs in the cause.

 

8. 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 property described as Lot 5 in Deposited Plan 211808 also known as 6 Depot Road, Dubbo in the State of New South Wales, 2830 and registered in the name of Gregory Joseph Dunn as sole owner.

 

2. The whole property described as Lot 1001 in Deposited Plan 882156 also known as 11 Huntingdale Close, Dubbo in the State of New South Wales, 2830 and registered in the name of Gregory Joseph Dunn as sole owner.

 

3. A Holden Commodore motor vehicle registration plate number BWF45D registered in the name of Gregory Joseph Dunn.

 

4. A Nissan N15 motor vehicle registration plate number VUP320 registered in the name of Gregory Joseph Dunn.

 

5. A Isuzu N5 NPR motor vehicle registration plate number BD54ZR registered in the name of Gregory Joseph Dunn.

 

6. A Honda motor cycle registration plate number RMA12 registered in the name of Gregory Joseph Dunn.

 

7. A boat trailer registration plate number V81621 registered in the name of Gregory Joseph Dunn.

 

8. A 3.46 metre aluminium De Havilland Runabout vessel registration number ABH625N and HIN: AUWWA048463ER7 registered in the name of Gregory Joseph Dunn.

 

9. One fully paid ordinary share in PSRJ Pty Limited ACN: 113 705 650.

 

SCHEDULE TWO

 

All of the interests in property of PSRJ Pty Limited including:

 

1. The whole property described as Lot 14 in Deposited Plan 1141171 also known as 5 Moon Close, Dubbo in the State of New South Wales, 2830 and registered in the name of PSRJ Pty Limited as sole owner.

 

2. Funds held in Bank of Queensland business account number 20691235 in the name of PSRJ Pty Limited.

 

3. Funds held in Bank of Queensland business account number 21846163 in the name of PSRJ Pty Limited.

 

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.

 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 (Plaintiff)
Gregory Joseph Dunn (Defendant)

Representation:

Counsel:
S Vorreiter (Plaintiff - ex parte)

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

File Number(s):

2017/49940

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.

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

3. The application is supported by an affidavit of Katie Elaine Bourne sworn 16 February 2017. Ms Bourne, who is an authorised officer, deposes to a suspicion that the defendant has engaged in serious crime related activity or activities being the commission of the offences of cultivating a prohibited plant of greater than the commercial quantity and supplying a prohibited plant not less than the commercial quantity contrary to ss 23 and 25 respectively of the Drug Misuse and Trafficking Act 1985 (NSW). Those offences fall within the definition of serious criminal offences under s 6(2)(b) of the Criminal Assets Recovery Act.

4. Ms Bourne deposes to the fact that her suspicion is held principally by reading the facts sheet prepared by a police officer after the arrest of the defendant. Ms Bourne sought confirmation from the officer whom she believed prepared the facts sheet of: the fact that the officer had done so, the facts sheet was true to the best of the officer’s knowledge and belief and 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 adding that the facts sheet was prepared in conjunction with another officer.

5. Ms Bourne also provides evidence from various sources including the LPI data base and the RMS data base that justifies her suspicion that the property that is sought to be restrained is property belonging to the defendant.

6. I have read the facts sheet and the other material annexed to Ms Bourne’s affidavit. I am satisfied that her suspicion that the offences have been committed and that the defendant is the owner of the property is reasonably held.

7. The plaintiff seeks that the orders be made without prior notice to the defendant. It does so based on what Ms Bourne says in para 10 of her affidavit that, through her experience with the plaintiff, she is aware that in the absence of a restraining order, it is possible for people to attempt to enter into unregistered mortgages of real estate and dispose of motor vehicles very quickly or to back date motor vehicle transfer forms all in an attempt to defeat the operation of the Act.

8. I am satisfied that the orders should, therefore, be made without prior notice to the defendant. The defendant has rights under s 10C of the Act to seek a review of these orders.

9. I note the usual undertaking as to damages is given by the solicitor for the plaintiff. On that basis I make orders in terms of paras 1, 2, 4, 7 and 8 of the draft order provided. I grant the leave and liberty in paras 3 and 5. The matter is stood over for directions before the common law registrar at 9am on Monday 15 May 2017.

10. These orders may be entered forthwith.

**********

Decision last updated: 20 February 2017