New South Wales Crime Commission v Oncu

[2019] NSWSC 1540

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crime Commission v Oncu [2019] NSWSC 1540

Hearing dates:

7 November 2019

Date of orders:

07 November 2019

Decision date:

07 November 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 6 November 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 Alev Rojda Oncu, 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 Alev Rojda Oncu 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. Pursuant to section 12(1)(b1) of the Criminal Assets Recovery Act 1990 Ali Afsin Cevik shall be examined on oath before a Registrar of the Court concerning the affairs of Ali Afsin Cevik, including the nature and location of any property in which Ali Afsin Cevik or Alev Rojda Oncu has an interest.

 

4.   Leave is granted to the Plaintiff to obtain from the Registry dates for the examinations ordered in Orders 2 and 3 above.

 

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

 

6.   Liberty is granted to the Plaintiff and Alev Rojda Oncu 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 24 February 2020.

 

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.   The whole of the property described as Lot 24 in Deposited Plan 206488, Local Government Area Blacktown, Parish of Prospect County of Cumberland, also known as 48 Joseph Street, Blacktown New South Wales 2148 and registered in the name of Alev Rojda Oncu as sole owner.

 

2.   The whole of the property described as Lot 109 in Deposited Plan 29828, at Blacktown, Local Government Area Blacktown, Parish of Prospect County of Cumberland, also known as 37 Craiglea Street, Blacktown New South Wales 2148 and registered in the name of Alev Rojda Oncu as sole owner.

 

3.   2015 BMW 228i Coupe with New South Wales registration number CYG62Y and registered in the name of Alev Rojda Oncu.

 

4.   Funds held in the Commonwealth Bank of Australia account number 233910569340 in the name of Alev Rojda Oncu.

 

5.   Funds held in the Commonwealth Bank of Australia account number 258910879200 in the name of Alev Rojda Oncu.

 

6.   Funds in the Westpac Banking Group account number 032070 543197 in the name of Alev Rojda Oncu.

 

7.   Funds in the Westpac Banking Group account number 95026935 in the name of Alev Rojda Oncu.

 

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)
Uniform Civil Procedure Rules 2005 (NSW)

Category:

Procedural and other rulings

Parties:

New South Wales Crime Commission (Plaintiff)
Alev Rojda Oncu (Defendant)

Representation:

Counsel:
S Santhikumar – Ex parte (Plaintiff)

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

File Number(s):

2019/349743

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 s. 27 and 28A of that Act. The summons is supported by an affidavit of Katie Elaine Bourne, sworn 6 November 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 activity, being tampering with evidence with intent to mislead a judicial tribunal contrary to s. 317A of the Crimes Act 1900, an offence punishable by imprisonment for five years involving perverting the course of justice. That is an offence which falls within the definition of “serious criminal offence” in s. 6(2)(d) of the Criminal Assets Recovery Act. The other crime related activity asserted is being an accessory after the fact to murder, contrary to s. 349(1) of the Crimes Act, which is a serious criminal offence, pursuant to s. 6(2)(d) of the Criminal Assets Recovery Act.

4. Ms Bourne bases her suspicion, principally, on reading the Facts Sheet prepared by the police in preparation for the appearance in court of the defendant. Ms Bourne sent an email to the officer involved in the investigation, asking him if he was the officer who drafted the facts, whether, to the best of his knowledge and belief, the contents of the facts were true and if they were prepared based on the investigation conducted, as part of Strike Force Naradhun. Detective Senior Constable Douglas Battye responded to Miss Bourne's email and provided affirmative answers to Ms Bourne's questions.

5. I have read the Statement of Facts and I am satisfied that Ms Bourne's suspicion is reasonably based, on the assumption that those facts are true.

6. The plaintiff seeks an order that Ali Asfin Cevik, the spouse of the defendant, be examined on oath concerning his knowledge of the affairs of the defendant. I am satisfied on the evidence that such an order is appropriate.

7. The plaintiff seeks that the orders he 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 can be entered into in relation to real estate, the speed with which motor vehicles might be disposed of, or relevant forms being backdated, and the ability to dispose of funds held in bank accounts very quickly.

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

9. I note the usual undertaking as to damages given by the solicitor for the plaintiff.

10. On that basis, I make orders in terms of paragraphs 1, 2, 3, 5, 7 and 9 of the draft order provided to me.

11. I grant the leave and liberty referred to in paragraphs 4 and 6.

12. I stand the proceedings over for mention before the Common Law Registrar at 9am on 24 February 2020.

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Decision last updated: 08 November 2019