New South Wales Crime Commission v Loiero

[2017] NSWSC 365

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crime Commission v Loiero [2017] NSWSC 365

Hearing dates:

6 April 2017

Date of orders:

06 April 2017

Decision date:

06 April 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 4 April 2017, there are reasonable grounds for the suspicions 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 Mario Anthony Loiero (also known as Antonio Leara), 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 Mario Anthony Loiero (also known as Antonio Leara) shall 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 Mario Anthony Loiero (also known as Antonio Leara) shall furnish to the Plaintiff, within twenty one (21) days after service of a sealed copy of these orders on Mario Anthony Loiero (also known as Antonio Leara), a statement verified by oath of Mario Anthony Loiero (also known as Antonio Leara) setting out the particulars sought in Schedule Two hereto.

 

5. These proceedings be listed for mention before the Common Law Registrar on Monday, 10 July 2017 at 9.00 am.

 

6. Liberty is granted to the Plaintiff and Mario Anthony Loiero (also known as Antonio Leara) to apply on three (3) days’ notice.

 

7. The costs of obtaining these orders shall 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

 

The whole of the property described as Lot 34 in Deposited Plan 756879, Parish of Curragurra, County of Wellington, also known as 1016 Bundalah Road, Euchareena in New South Wales 2866 and registered in the name of Antonio Leara as sole owner.

 

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.

 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)
Mario Anthony Loiero (also known as Antonio Leara) (Defendant)

Representation:

Counsel:
R Katrib (Plaintiff - ex parte)

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

File Number(s):

2017/105225

Judgment

1. The plaintiff seeks a restraining order under section 10A of the Criminal Assets Recovery Act 1990 (NSW) pending the making of orders pursuant to sections 22 and 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 interests in the property is sought to be restrained has engaged in serious crime-related activity, stating the ground 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 4 April 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 drug contrary to section 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW) and supplying a prohibited drug contrary to section 25(1) of that Act. Those offences fall within the definition of “serious criminal offence” under section 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 fact sheet prepared by the police after the arrest of the defendant and from an e-mail exchange she had with a police officer as well as a search of the record of the COPS data base in relation to the defendant showing that he was charged with the offences specified in the fact sheet.

5. Ms Bourne sought confirmation from the officer whom she believed prepared the fact sheet that the officer had done so, that the fact sheet was true to the best of the officer's knowledge and belief and was prepared on information obtained by police as a result of the investigation. The officer replied in the affirmative to those questions.

6. I have read the fact sheet and I am satisfied that Ms Bourne has inspected the records of the Commission and has ascertained that property believed to be owned by the defendant is in fact owned by him, notwithstanding that the name of the registered proprietor is a name similar to, but not identical with the defendant. I am satisfied that Ms Bourne's belief in that regard is reasonably held by reason of what appears in the e-mail from the police officer and a further e-mail that came from that officer concerning the circumstances of the purchase of that land.

7. The plaintiff seeks that the order be made without prior notice to the defendant. It does so based on what Ms Bourne says in paragraph 8 of her affidavit that 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 very quickly thereby attempting to defeat the operation of the Act.

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

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Decision last updated: 10 April 2017