New South Wales Crime Commission v Koullias

[2019] NSWSC 141

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crime Commission v Koullias [2019] NSWSC 141

Hearing dates:

20 February 2019

Date of orders:

20 February 2019

Decision date:

20 February 2019

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 19 February 2019, 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 Shanese Koullias, including the interest in property in the property specified in Schedule One hereto.

 

2. Pursuant to section 12(1)(b)(i) of the Criminal Assets Recovery Act 1990 Shanese Koullias shall 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.

 

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 10B(2) of the Criminal Assets Recovery Act 1990 the New South Wales Trustee and Guardian shall take control of all the interest of Shanese Koullias in the property specified in Item 1 of Schedule One hereto.

 

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

 

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

 

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

 

8. These proceedings be listed for mention before the Common Law Registrar at 9:00am on 27 May 2019.

 

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. 2018 Lexus RC350 Coupe with New South Wales registration number DYG94U and registered in the name of Shanese Koullias.

 

2. Commonwealth Bank of Australia account number 258510836332 held in the name of Shanese Koullias.

 

3. Commonwealth Bank of Australia account number 258510836340 held in the name of Shanese Koullias.

 

4. Commonwealth Bank of Australia account number 258510758725 held in the name of Shanese Koullias.

 

5. Commonwealth Bank of Australia account number 258510844391 held in the name of Shanese Koullias.

 

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.

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)
Shanese Koullias (Defendant)

Representation:

Counsel:
A Bishop – Ex parte (Plaintiff)

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

File Number(s):

2019/58110

Judgment

1. The plaintiff seeks a restraining order under s10A of the Criminal Assets Recovery Act 1990 (NSW) pending the making of an unexplained wealth order under s 28A of the Act. The summons is supported by an affidavit of Katie Elaine Bourne sworn 19 February 2019. Ms Bourne is an authorised officer of the plaintiff.

2. Section 10A(5) of the Act requires the Court to make an order if the application is supported by an affidavit of an authorised officer setting out the matters contained in that subsection, and stating the grounds on which the suspicion referred to therein is based, and the Court considers there are reasonable grounds for the suspicion.

3. Ms Bourne deposes to a suspicion that the defendant has engaged in serious criminal related activity or activities, being four counts of supplying prohibited drugs, two such counts being not less than the commercial quantity contrary to s 25(2) of the Drug Misuse and Trafficking Act1985 (NSW), and two counts of supply contrary to s 25(1) of the Drug Misuse and Trafficking Act. Those four offences all fall within the definition of ‘serious criminal offence’ pursuant to s 6(2)(b) of the Criminal Assets Recovery Act.

4. Ms Bourne also deposes to a suspicion that the defendant has committed a serious criminal offence of knowingly participating in a criminal group assisting crime contrary to s 93T(1A) of the Crimes Act 1900 (NSW), being a serious criminal offence pursuant to s 6(2)(g1) of the Criminal Assets Recovery Act.

5. Ms Bourne bases her suspicion principally on reading a facts sheet prepared by the police officers investigating the offences and being responsible for the arrest of the defendant. Ms Bourne sent an email to Detective Senior Constable Luke Bonning who was involved in the investigation of the offences in respect of which the defendant has been charged.

6. She subsequently had a telephone conversation with him where she asked if he was aware of the information contained in the facts sheet, and whether that information was true and correct to the best of his knowledge and belief based on the investigation into the defendant. He answered in the affirmative to those questions. Ms Bourne also asked if the defendant had been charged and what the status of the charges were. Detective Bonning confirmed that she had been charged and was currently bail refused.

7. On the basis of that information Ms Bourne affirmed her belief in the truth of the matters in the fact sheet.

8. I have read the facts sheet, and I am satisfied that Ms Bourne's suspicion and belief is reasonably held. I note the investigations which have been carried out into property owned by the defendant and in respect of which the restraining order is sought.

9. The plaintiff asks that the orders be made without prior notice to the defendant. It does so, having regard to Ms Bourne’s experience in working with the plaintiff, that in the absence of restraining orders it is possible for people to attempt to dispose of motor vehicles or back date forms notifying the RMS of the disposal of those vehicles, and to dispose of funds held in bank accounts very quickly. I am satisfied that the orders should be made without prior notice to the defendant. The defendant in any event has her rights under s10C of the Act.

10. On the usual undertaking as to damages being given by the solicitor for the plaintiff, I make orders in terms of paragraphs 1, 2, 4, 5, 7, 8 and 9 of the draft orders signed by me and dated today. I grant the leave and liberty in paragraphs 3 and 6 of that order.

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Decision last updated: 22 February 2019