New South Wales Crime Commission v Nye

[2016] NSWSC 300

Supreme Court

New South Wales

Medium Neutral Citation:	New South Wales Crime Commission v Nye [2016] NSWSC 300
Hearing dates:	16 March 2016
Date of orders:	16 March 2016
Decision date:	16 March 2016
Jurisdiction:	Common Law
Before:	Schmidt J
Decision:	Orders sought made.
Catchwords:	CRIMINAL LAW - procedure - restraining orders sought - ex-parte - orders made
Legislation Cited:	Criminal Assets Recovery Act 1990 (NSW) Criminal Assets Amendment Act 2009 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited:	NSW Crime Commission v Sarikaya [2010] NSWSC 692 International Finance Trust Co Ltd v New South Wales Crime Commission [2008] NSWCA 291; (2008) 189 A Crim R 559 International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319
Category:	Principal judgment
Parties:	New South Wales Crime Commission (Plaintiff) Dylan Michael Nye (Defendant)
Representation:	Solicitors: Ms E Goh New South Wales Crime Commission (Plaintiff)
File Number(s):	2016/82717
Publication restriction:	No

Judgment

1. By summons of 16 March 2016, which I grant leave to file, the New South Wales Crime Commission applied ex parte, seeking restraining orders under s 10A of the Criminal Assets Recovery Act1990 (NSW) (‘the Act’) in relation to the interest of the defendant, Dylan Michael Nye, in a property located at Bella Vista identified in a schedule to the summons. Orders under ss 12(1) and 27 of the Act were also sought.

2. For the reasons which follow, I am satisfied that the orders sought should be made.

3. The application is supported by an affidavit sworn on 11 March 2016 by Jonathan Lee Spark, the Commission’s Director, Financial Investigations and an authorised officer under the Act, as well as by a statement of facts and circumstances provided in accordance with Rule 1.26 of the Uniform Civil Procedure Rules 2005 (NSW).

4. Mr Spark deposed that he suspected that Mr Nye had engaged in serious crime related activities within the definition of “serious criminal offences” in s 6 of the Act, namely:

"supply prohibited drug (methylamphetamine) of an amount greater than the large commercial quantity of that drug contrary to section 25(2) of the Drug Misuse and Trafficking Act 1985."

5. Mr Spark gave a detailed explanation of the basis upon which he came to hold this suspicion. His suspicions rested on a consideration of a Police Facts Sheet provided by Sergeant Clavel of the New South Wales Police Force; answers provided to questions he asked of the Sergeant as to the Facts Sheet; and information later provided as the result of searches conducted of the COPs database and the LPI database, which disclosed that the property is registered in the name of Mr Nye as joint with another identified person.

6. The material disclosed that Mr Nye has been charged with possession and supply offences. He was arrested after a police search of his vehicle revealed more than a kilo of a crystalline substance hidden under the carpet. More of the substance was found on further search of the vehicle. It is alleged that the substance is methylamphetamine, with a total weight of over 2 kilograms and a street value of $2 million.

7. Mr Spark deposed to his experience, that in the absence of a restraining order, it is possible for people to quickly enter into unregistered mortgages in respect of real estate, in order to attempt to defeat the operation of the Act. He also deposed as to his view that, given the serious nature of the criminal activity in which Mr Nye is apparently involved, notice of this application should not be given to him, a course available under the Act. Section 10A(4) permits a different course to be taken, if the Court thinks fit.

8. Section 10A(5) requires the making of the orders sought under the Act, if the Court considers that there are reasonable grounds for the suspicions to which Mr Spark has deposed. The basis for such a suspicion was considered in International Finance Trust Co Ltd v New South Wales Crime Commission [2008] NSWCA 291; (2008) 189 A Crim R 559 at [23] per Allsop P. As explained by Davies J in NSW Crime Commission v Sarikaya [2010] NSWSC 692, while the High Court’s judgment in International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319 led to the amendment of the Act by the Criminal Assets Recovery Amendment Act 2009 (NSW), it did not affect the binding force of what the Court of Appeal had earlier said in relation to what is required to establish the suspicion with which s 10A deals.

9. I am satisfied that the material relied on well establishes that there are reasonable grounds for the suspicions to which Mr Spark deposed in his affidavit and that the requirements of s 10A(5) of the Act have been addressed. In that situation the Act requires that the orders sought in relation to the property in question be made. In the circumstances, it is also appropriate to make the ancillary orders sought.

10. I am also satisfied that the Commissioner ought not to be required to give notice of this application and that it should be dealt with ex parte. In coming to that view, I have had regard to the provisions of s 10C of the Act, which permit an affected person to apply to have a restraining order set aside.

Orders

11. I accordingly make the orders in the terms sought and also direct that a copy of this judgment be served with the orders.

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Decision last updated: 21 March 2016