New South Wales Crime Commission v Pettit

[2019] NSWSC 675

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crime Commission v Pettit [2019] NSWSC 675

Hearing dates:

6 June 2019

Date of orders:

06 June 2019

Decision date:

06 June 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 3 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 Maxwell Harrie Pettit, including the interests in property in the property specified in Schedules One and Two hereto.

 

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

 

5.   Liberty is granted to the Plaintiff and Maxwell Harrie Pettit 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 Monday, 2 September 2019.

 

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 2 in Deposited Plan 609162, Local Government Area of Tweed, Parish of Chillingham, County of Rous, also known as 434 Hopkins Creek Road, Hopkins Creek, New South Wales 2484 and registered in the name of Maxwell Harrie Pettit as sole owner.

 

SCHEDULE TWO

 

1.   2015 Toyota Hilux motor vehicle with New South Wales registration CE68UK and registered in the name of Maxwell Harrie Pettit.

 

2.   Funds held in the Commonwealth Bank of Australia bank account number 258050153660 in the name of Maxwell Harrie Pettit.

 

3.   Funds held in the Commonwealth Bank of Australia bank account number 258010064540 in the name of Maxwell Harrie Pettit.

  

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:

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)
Maxwell Harrie Pettit (Defendant)

Representation:

Counsel:
P Donnelly – Ex parte (Plaintiff)

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

File Number(s):

2019/177123

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 the making of an unexplained wealth order under s 28A of the Act.

2. The summons is supported by an affidavit of Katie Elaine Bourne sworn 3 June 2019. Ms Bourne is an authorised officer of the plaintiff. 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 the cultivation of not less than the commercial quantity of a prohibited plant contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW), which is an offence falling within the definition of a serious criminal offence under s 6(2)(b) of the Criminal Assets Recovery Act. Ms Bourne bases her suspicion, principally, upon reading the facts sheet prepared by the police in preparation for the charging of the defendant.

4. Ms Bourne forwarded an email to a Senior Constable Brett Crossan, identified on the court attendance notice as the officer-in-charge of the investigation. She asked him if he was the officer who provided the facts sheet or was he aware of the contents of it. She asked him if, to the best of his knowledge and belief, the contents of the facts sheet were true. She asked him if it was prepared based on information obtained by the police as a result of the investigation described in the facts sheet. She also asked for the status of the defendant subsequent to his arrest and charging.

5. Senior Constable Crossan answered in the affirmative to his knowledge of the preparation of the facts sheet, the truth of those matters and that it was prepared from the investigation into the offence. The present status of the defendant is that he is refused bail and the matter is next before the Court for mention on 19 June 2019.

6. I have read the facts sheet and the other information annexed to Ms Bourne’s affidavit. I am satisfied that the suspicion relied on by her that the offence has been committed is held.

7. The plaintiff asks that the orders be made without prior notice to the defendant. She does so based on what appears in paragraph 8 of her affidavit concerning the ability of defendants to defeat the operation of the Act by entering into real estate transactions involving equitable mortgages quickly, and to dispose of funds in bank accounts and motor vehicle including the backdating on forms informing the RMS of the disposal of a motor vehicle.

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 his rights under s 10C of the Act to review these orders.

9. I note the usual undertaking as to damages is given by the solicitor for the plaintiff. On that basis, I make orders in terms of paragraphs 1, 2, 4, 6 and 8 of the orders signed by me.

10. I grant the liberty and leave in paragraphs 3 and 5 and the proceedings are stood over for mention before the Common Law Registrar at 9:00am on Monday 2 September 2019.

**********

Decision last updated: 07 June 2019