New South Wales Crime Commission v Lightfoot

[2019] NSWSC 823

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crime Commission v Lightfoot [2019] NSWSC 823

Hearing dates:

3 July 2019

Date of orders:

03 July 2019

Decision date:

03 July 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 27 June 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 Richard Troy Lightfoot, including the interest in property in the property specified in Schedule One and Schedule Two hereto.

 

2. Pursuant to section 10B(2) of the Criminal Assets Recovery Act 1990 the New South Wales Trustee and Guardian take control of all the interests of Richard Troy Lightfoot in the property specified in Schedule One hereto.

 

3. Pursuant to section 12(1)(b)(i) of the Criminal Assets Recovery Act 1990 Richard Troy Lightfoot 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.   Leave is granted to the Plaintiff to obtain from the Registry dates for the examination ordered in Order 3.

 

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

 

6.   Liberty is granted to the Plaintiff and Richard Troy Lightfoot to apply on three (3) days’ notice.

 

7.   This matter be listed for directions before the Common Law Registrar at 9am on Monday 30 September 2019.

 

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.   Cash in the approximate amount of $101,000 seized by members of the New South Wales Police from Richard Troy Lightfoot’s motor vehicle bearing registration plate number BPL81C on 4 June 2019.

 

2.   Cash in the approximate amount of $2,600 seized by members of the News South Wales Police on 4 June 2019 from Richard Troy Lightfoot’s residence at 13 Spilstead Place, Beacon Hill, NSW 2100 pursuant to a search warrant.

 

SCHEDULE TWO

 

1.   Funds held in Commonwealth of Australian Banking Corporation Goalsaver account number 215510537463 in the name of Richard Troy Lightfoot.
2.   Funds held in Commonwealth of Australian Banking Corporation SmartAccess account number 229500711748 in the name of Richard Troy Lightfoot.

 

3.   Funds held in Commonwealth of Australian Banking Corporation Business Account number 225110221143 in the name of Richard Troy Lightfoot trading as All Aspect Lawn and Garden Care.

 

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.

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)
Richard Troy Lightfoot (Defendant)

Representation:

Counsel:
P Donnelly – Ex parte (Plaintiff)

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

File Number(s):

2019/205746

Judgment

1. The plaintiff seeks a restraining order under s 10A of the Criminal Assets Recovery Act 1990 (NSW) pending the making of a forfeiture order under s 22 of the Act and an unexplained wealth order pursuant to s 28A of the Act. The summons is supported by an affidavit of Katie Elaine Bourne sworn 27 June 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 crime related activities. Those activities are:

(1) Knowingly dealing with the proceeds of crime contrary to s 193B(2) of the Crimes Act 1900 (NSW) being an offence involving money laundering, punishable by imprisonment for five years or more. That offence is a serious criminal offence pursuant to s 6(2)(d) of the Criminal Assets Recovery Act.

(2) Supplying a prohibited drug, being cocaine not less than the large commercial quantity, contrary to section 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) .

(3) Supplying a prohibited drug being MDMA not less than the large commercial quantity contrary to s 25(2) of the Drug Misuse and Trafficking Act. The offences in items 2 and 3 are serious criminal offences pursuant to section 6(2)(b) of the Criminal Assets Recovery Act.

4. Ms Bourne bases her suspicion principally on reading the Facts Sheet prepared by the New South Wales Police in preparation for the defendant's appearance in Court. Ms Bourne forwarded an email to an officer believed to be involved in the investigation of the offence and asked him if he was the officer that drafted the Facts Sheet or if he was aware of the contents of that sheet, whether to the best of his knowledge and belief the contents of the Facts Sheet were true, and if the Facts Sheet was prepared on information obtained by police as a result of the investigation described in the Facts Sheet. The officer answered in the affirmative to those questions. Ms Bourne also asked in relation to the present status of the charges against the defendant. The officer responded that the matters were before the Court and the defendant had been released on conditional bail.

5. I have read the Facts Sheet and I am satisfied that the suspicion held by Ms Bourne that the offences have been committed is reasonably held.

6. The plaintiff also seeks an order that the New South Wales Trustee and Guardian take control of the interests of the defendant in the property identified in schedule 1 to the summons, being two amounts of cash seized by the police from a motor vehicle belonging to the defendant and from the defendant's residence pursuant to a search warrant. Ms Bourne seeks that the money be transferred to the Trustee and Guardian so that the money can earn interest pending the outcome of the proceedings. I am satisfied that such an order should be made.

7. The plaintiff also seeks an order that the orders be made without prior notice to the defendant. It does so based on Ms Bourne's experience at the Commission of the ease with which unregistered mortgages may be entered into in relation to property, and the ease with which property may be quickly disposed of in an attempt to defeat the operation of the Act.

8. I am satisfied that in the circumstances it is appropriate that order should be made without prior notice to the defendant. The defendant has his rights under section 10C of the Act to review the orders.

9. I note the usual undertaking as to damages given by the solicitor for the plaintiff. On that basis I make orders in terms at paragraphs 1, 2, 3, 5, 8 and 9 of the Draft Order provided to me. I grant the leave and liberty in paragraphs 4 and 6. The matter is stood over for directions before the Common Law Registrar at 9:00am on 30 September 2019.

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Decision last updated: 03 July 2019