New South Wales Crime Commission v McDonald

[2023] NSWSC 627

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

New South Wales Crime Commission v McDonald [2023] NSWSC 627

Hearing dates:

7 June 2023

Date of orders:

7 June 2023

Decision date:

07 June 2023

Jurisdiction:

Common Law

Before:

Walton J

Decision:

(1) Pursuant to s 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 s 7 of the Criminal Assets Recovery Act 1990 (NSW)) of Matthew Robert McDonald, including the interest in property in the property specified in Schedule One hereto.

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

(5) Liberty is granted to the Plaintiff and Matthew Robert McDonald to apply on three (3) days’ notice.

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

(7) These proceedings be listed for mention before the Common Law Registrar at 9:00am on 4 September 2023.

(8) Pursuant to r 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 property described as Lot 2663 in Deposited Plan 581252 at Armidale Road, Local Government Area Kempsey, Parish of Yarravel, County of Dudley, also known as 414 Armidale Road, Yarravel NSW 2440 and registered in the name of Matthew Robert McDonald 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 s 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 PROCEDURE – Criminal Assets Recovery Act 1990 (NSW) – proceeds of crime - restraining order – ancillary orders – ex parte - orders made

Legislation Cited:

Crimes Act 1900 (NSW)

Criminal Assets Recovery Act 1990 (NSW), s 10A

Drug Misuse and Trafficking Act 1985 (NSW), s 25

Uniform Civil Procedure Rules 2005 (NSW), r 1.26

Category:

Principal judgment

Parties:

New South Wales Crime Commission (Plaintiff)
Matthew Robert McDonald (Defendant)

Representation:

Counsel:
S Askew (Plaintiff)

Solicitors:
NSW Crime Commission (Plaintiff)

File Number(s):

2023/182082

JUDGMENT

1. Pursuant to s 10A of the Criminal Assets Recovery Act 1990 (NSW) (“the Act”), the New South Wales Crime Commission (“the Commission”) applied for a restraining order in respect of all of the interests in property of Matthew Robert MacDonald (“the defendant”). The Commission sought some related orders in Short Minutes of Order filed in Court earlier today but not the entirety of the matters sought in the Summons filed in Court.

2. For the purposes of the application so described, the Commission relied upon the affidavit in support of Ms Katie Elaine Bourne of 31 May 2023. I concluded that the affidavit in question establishes that Ms Bourne is an authorised officer for the purposes of the Act and suspects the defendant of having engaged in serious crime related activity, namely:

1. Supply of prohibited drug (cannabis) contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (“the DMT Act”);

2. Cultivate a prohibited plant (cannabis plant) contrary to s 23(1)(a) of the DMT Act; and

3. Deal with property reasonably suspected of being the proceeds of crime contrary to s 193C(1) of the Crimes Act 1900 (NSW).

3. I note that Ms Bourne gives grounds for her suspicions.

4. The facts and circumstances upon which the Commission relied in its application for the restraining order and those established by the evidence before the Court are as follows:

1. Ms Bourne suspects the defendant of having engaged in serious crime related activity.

2. Ms Bourne has been provided with and accepted a New South Wales police facts sheet that is described as the suspected serious criminal activity in which Ms Bourne suspected the defendant of to have engaged.

3. Ms Bourne has ascertained that the defendant has been charged with the offences specified in the facts sheet.

5. Having regard to the evidence before the Court and the facts and circumstances relied upon by the Commissioner pursuant to r 1.26 of the Uniform Civil Procedure Rules 2005 (NSW), I consider that there are reasonable grounds for Ms Bourne's suspicion that the defendant has engaged in serious crime related activity.

6. In all the circumstances it is appropriate to grant the orders sought by the Commissioner in the Short Minutes of Order filed in these proceedings.

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Amendments

15 June 2023 - Name spelling correction

Decision last updated: 15 June 2023