New South Wales Crime Commission v Gupta

[2020] NSWSC 247

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crime Commission v Gupta [2020] NSWSC 247

Hearing dates:

12 March 2020

Date of orders:

12 March 2020

Decision date:

12 March 2020

Jurisdiction:

Common Law

Before:

Cavanagh J

Decision:

(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 Prasun Chandra Gupta including the interest in property in the property specified in Schedule One hereto and Schedule Three 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 Karishma Gupta including the interest in property in the property specified in Schedule Two hereto and Schedule Three hereto.

(3) 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 Innovative Flowers & Gifts Pty Ltd A.C.N. 153 428 436 including the interest in property in the property specified in Schedule Four hereto.

(4) Pursuant to sections 12(1)(b) and 12(1)(b1) of the Criminal Assets Recovery Act 1990 Prasun Chandra Gupta shall be examined on oath before a Registrar of the Court concerning:

(a)            his affairs, including the nature and location of any property in which he has an interest

(b)            the affairs of Innovative Flowers & Gifts Pty Ltd A.C.N. 153 428 436, including the nature and location of any property in which Innovative Flowers & Gifts Pty Ltd A.C.N. 153 428 436 has an interest; and

(c)            the affairs of Karishma Gupta, including the nature and location of any property in which Karishma Gupta or Prasun Chandra Gupta has an interest.

(5) Pursuant to sections 12(1)(b) and 12(1)(b1) of the Criminal Assets Recovery Act 1990 Karishma Gupta shall be examined on oath before a Registrar of the Court concerning:

(a)            her affairs, including the nature and location of any property in which she has an interest;

(b)            the affairs of Innovative Flowers & Gifts Pty Ltd A.C.N. 153 428 436, including the nature and location of any property in which Innovative Flowers & Gifts Pty Ltd A.C.N. 153 428 436 has an interest; and

(c)            the affairs of Prasun Chandra Gupta, including the nature and location of any property in which Prasun Chandra Gupta or Karishma Gupta has an interest.

(6)             Leave is granted to the Plaintiff to obtain from the Registry dates for the examinations ordered in Orders 4 and 5 above.

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

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

(9) Pursuant to section 12(1)(c1) of the Criminal Assets Recovery Act 1990 Innovative Flowers & Gifts Pty Ltd A.C.N. 153 428 436 shall furnish to the Plaintiff, within twenty one (21) days after service of a sealed copy of these orders on Innovative Flowers & Gifts Pty Ltd A.C.N. 153 428 436, a statement verified by oath of Innovative Flowers & Gifts Pty Ltd A.C.N. 153 428 436setting out the particulars sought in Schedule Five hereto.

(10)         Liberty is granted to the Plaintiff, Prasun Chandra Gupta, Karishma Gupta and Innovative Flowers & Gifts Pty Ltd A.C.N. 153 428 436  to apply on three (3) days’ notice.

(11)         The costs of obtaining these orders shall be costs in the cause.

Catchwords:

CRIME — Confiscations — Restraining orders

Legislation Cited:

Criminal Assets Recovery Act 1990 (NSW), Pt 4, ss 4, 6, 7, 10A, 10C, 12, 55
Drug Misuse and Trafficking Act 1985 (NSW), s 23

Category:

Principal judgment

Parties:

New South Wales Crime Commission (Plaintiff)
Prasun Chandra Gupta (First Defendant)
Karishma Gupta (Second Defendant)
Innovative Flowers & Gifts Pty Ltd (Third Defendant)

Representation:

Solicitor:
New South Wales Crime Commission (Plaintiff)

File Number(s):

2020/81019

Publication restriction:

Nil

REVISED EX TEMPORE Judgment

1. By summons, which I granted leave to file, the New South Wales Crime Commission has applied ex parte seeking restraining orders under s 10A of the Criminal Assets Recovery Act1990 (NSW) (“the Act”) in relation to any interest in property within the meaning of “interest in property” as defined in s 7 of the Act, of the first defendant, Prasun Chandra Gupta.

2. The Commission also seeks orders pursuant to ss 12(1)(b) and 12(1)(b1) of the Act that the defendants be examined on oath before a Registrar of the Court concerning their affairs as well as relating to the affairs of the third defendant, Innovative Flowers & Gifts Pty Limited.

3. The Commission also seeks ancillary orders requiring that the first and second defendants provide statements verified by oath, setting out the particulars in Schedule Five to the summons. Schedule Five requires the defendant to provide full particulars of the nature and extent of all interests in property, as well as a statement of liabilities. The Commission also seeks ancillary orders.

4. The application was supported by an affidavit of Katie Elaine Bourne sworn 6 March 2020, who is the Commission’s Director Assessments and is an authorised officer within the meaning of “authorised officer” as defined in s 4(1) of the Act and as such is authorised in writing by the Commission to act as an authorised officer for the purposes of s 10A and Pt 4 of the Act.

5. For the following reasons I am satisfied that the orders sought should be made.

6. The property sought to be restrained is identified in Schedules One, Two and Three of the summons. The property includes a box trailer, motor vehicles and land of which the second defendant, is the sole owner. It includes funds held in a Commonwealth Bank account and property defined in Schedule Four, being property at Wollondilly in the name of Innovative Flowers & Gifts Pty Limited as sole owner.

7. Ms Bourne states that she suspects that the first defendant has engaged in a serious crime-related activity or serious crime-related activities within the meaning of “serious crime related activities” defined in s 6 of the Act being:

1. cultivate by enhanced indoor means prohibited plant (namely, cannabis plant) for commercial purpose contrary to s 23(1A) of the Drug Misuse and Trafficking Act1985 (NSW) (“the DMT Act”); and

2. knowingly take part in the supply of a prohibited plant (namely, cannabis plant) contrary to s 23(1) of the DMT Act.

8. Both of these offences fall within the definition of “serious criminal offence” pursuant to s 6(2)(b) of the Act.

9. Further, Ms Bourne suspects that the second defendant has engaged in the same serious crime-related activity or serious crime-related activities. Again, these are those serious offences within the definition in the Act.

10. Ms Bourne then deposes to the information that she has received about both defendants and, in particular, the Police facts sheets for both the first and second defendants. She says that she has inspected the records of the Commission and ascertained that on 21 February 2020, Muqhaddim Javad, a Financial Analyst employed by the Commission, conducted a search of the COPS database and located the COPS records, which she has again inspected. She refers also to inspecting the records of the Commission and noting that Javad has conducted a search of the records of the RMS database in relation to P Gupta and located records that she recognised to be from the LRS and SAI Global databases.

11. She also deposes to her suspicion that Innovative Flowers has engaged in serious crime-related activity or serious crime-related activities namely, cultivate by enhanced indoor means prohibited plant (namely, cannabis plant) for commercial purpose contrary to s 23(1A) of the DMT Act, which is again an offence falling within the definition of “serious criminal offence” pursuant to s 6(2)(b) of the Act.

12. She points to s 55 of the Act, which deals with the state of mind of a body corporate. Suffice to say that the Police facts sheets reveal that both the first and second defendants have been charged with a number of offences under the DMT Act, including possession, cultivation and supply-related offences as revealed by the Police facts sheets. Both the first and second defendants purchased a rural property at Marulan in about 2015 to 2016. Police executed a search warrant on that property. There they located a fenced-off section of a paddock in which 145 cannabis plants were being grown. They then conducted a search of the residence and again located two rooms where 97 cannabis plants were being grown.

13. In the Police facts sheets it is said that the accused made admissions as to the ownership of the property and the contents.

14. Ms Bourne also deposes to her belief and knowledge that in the absence of a restraining order it is possible for people to attempt to dispose of property very quickly in an attempt to defeat the operation of the Act. She refers to her belief that the defendants should not be given notice of the Commission’s application and says that the Commission has not done so, having regard to the nature of the activities in which the defendants are allegedly involved.

15. I accept the reasons identified by Ms Bourne as a proper basis for the application being made ex parte.

16. The Court may under s 10A(4) of the Act, if it thinks fit, require the Commission to give notice of the application but I do not consider that appropriate in the circumstances identified by Ms Bourne.

17. Section 10A(5) requires the making of the orders sought under the Act, if the Court considers there are reasonable grounds for the suspicions to which Ms Bourne has deposed.

18. I am satisfied there are reasonable grounds for the suspicions to which Ms Bourne has deposed and the requirements of s 10A(5) of the Act have been addressed.

19. I conclude it is also appropriate to make the other orders sought. There is no doubt that the conduct of the defendants is serious crime-related activity. I am satisfied that the Commission ought not be required to give notice of the application and that it should be dealt with ex parte.

20. I have regard to the provisions of s 10C of the Act, which permits an affected person to apply to have a restraining order set aside, as well as the liberty granted in proposed order 19 for the defendants to apply on three days’ notice.

21. I grant leave to the Commission to file in Court the summons and the statement of facts and circumstances relied on in the affidavit of Katie Elaine Bourne sworn 6 March 2020.

22. Ms Donnelly has helpfully prepared short minutes of order.

23. I make the orders in the short minutes of order being orders 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 13.

24. I note, as set out in order 12, that the proceedings will be listed for mention before the Common Law Registrar at 9.00am on 8 June 2020, subsequently changed to 15 June 2020.

25. I sign the short minutes of order, date them today’s date and place the short minutes with the papers.

26. I direct that the Commission serve a copy of the judgment and the short minutes of order.

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Decision last updated: 17 March 2020