New South Wales Crime Commission v Richards

[2016] NSWSC 838

Supreme Court

New South Wales

Medium Neutral Citation:	New South Wales Crime Commission v Richards [2016] NSWSC 838
Hearing dates:	13 May 2016
Date of orders:	13 May 2016
Decision date:	13 May 2016
Jurisdiction:	Common Law
Before:	Adamson J
Decision:	See paragraph 19
Catchwords:	CRIMINAL LAW – ex parte – application for criminal assets restraining order
Legislation Cited:	Criminal Assets Recovery Act 1990 (NSW), ss 4, 6, 7, 10A, 12, 28A Drug Misuse and Trafficking Act 1985 (NSW), s 25 Uniform Civil Procedure Rules 2005 (NSW), r 1.26
Cases Cited:	George v Rockett [1990] HCA 25; 170 CLR 104
Category:	Procedural and other rulings
Parties:	New South Wales Crime Commission (Plaintiff) Scott James Richards (Defendant)
Representation:	Counsel: A Bishop (Solicitor) (Plaintiff)   Solicitors: New South Wales Crime Commission (Plaintiff)
File Number(s):	2016/149681

Judgment

Introduction

1. By summons filed on 13 May 2016, the plaintiff seeks various orders under the Criminal Assets Recovery Act 1990 (NSW) (the Act). All references to statutory provisions in these reasons are references to the Act unless otherwise stated.

2. The summons sought an order pursuant to s 10A restraining dealings with any interest in property, including certain property described in Schedule One to the summons; orders pursuant to s 12(1)(b)(i) authorising the examination of the defendant concerning his financial affairs; an order pursuant to s 12(1)(c1) requiring the defendant to furnish to the plaintiff within 21 days a statement verified on oath setting out full particulars of all his property as set out in Schedule Two to the summons; and an order pursuant to s 28A that the defendant pay to the Treasurer an amount assessed by the Court as the value of the proceeds of his unexplained wealth (the unexplained wealth order).

3. The orders sought in the summons, apart from the unexplained wealth order, were sought ex parte on the day of filing the summons, 13 May 2016.

The evidence in support of the application

4. In support of its application the plaintiff relied on the following documents:

Affidavit of Jonathan Lee Spark sworn 10 May 2016; and

Statement of Facts and Circumstances relied on in an application for a restraining order and an unexplained wealth order pursuant to r 1.26 of the Uniform Civil Procedure Rules 2005 (NSW) dated 10 May 2016 (Statement of Facts and Circumstances).

Relevant statutory provisions

5. Section 10A relevantly provides:

“10A Proceedings for restraining orders

(1)   Application for order

The Commission may apply to the Supreme Court, ex parte, for a restraining order in respect of specified interests, a specified class of interests, or all the interests, in property of any person (including interests acquired after the making of the order).

…

(3)   The Commission may only apply for a restraining order that relates to interests in property derived from external serious crime related activity if the person who has the interests is domiciled in New South Wales or the property is situated in New South Wales.

(4)   Notice to affected person of application

Despite the application for a restraining order being made ex parte, the Supreme Court may, if it thinks fit, require the Commission to give notice of the application to a person who the Court has reason to believe has a sufficient interest in the application. A person who is required to be notified is entitled to appear and adduce evidence at the hearing of the application.

(5)   Determination of applications

The Supreme Court must make a restraining order if the application for the order is supported by an affidavit of an authorised officer stating that:

(a)   in the case of an application in respect of an interest referred to in subsection (1) - the authorised officer suspects that:

(i)   the person whose interest is the subject of the application has engaged in a serious crime related activity or serious crime related activities…

and stating the grounds on which that suspicion is based …

and the Court considers that, having regard to the matters contained in any such affidavit and any evidence adduced under subsection (4), there are reasonable grounds for any such suspicion.”

6. The plaintiff’s application for an order under s 10A was made ex parte, as it is entitled to do under s 10A(1). I considered the documents relied upon in support of the application in chambers.

Consideration

7. The plaintiff’s application is supported by the affidavit of Jonathan Lee Spark sworn 10 May 2016. Mr Spark, who is an authorised officer of the plaintiff within the meaning of s 4(1), deposes to his suspicion that the defendant has engaged in serious crime-related activity or crime-related activities (as defined by s 6), namely the supply of a prohibited drug (amphetamine) contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW), which falls within the definition of “serious criminal offence” pursuant to s 6(2)(b).

8. Mr Spark sets out the grounds for his suspicion in [4] of his affidavit. He obtained a copy of the District Court file relating to the defendant (2008/12093) which contained documents that showed that:

1. on 5 August 2008 the defendant pleaded guilty to: two offences of supply prohibited drug (28.5g amphetamine; and 700 amphetamine-based pills); and

2. on 8 September 2008 he was sentenced to a term of imprisonment for these offences of one year and eight months with a non-parole period of one year.

9. Mr Spark also deposed to investigations he has caused to be made into the defendant’s property interests as a result of which he has ascertained that the defendant is the registered proprietor of the properties in items 1 and 2 of Schedule One to the summons, located in Mosman and Redhead respectively, both of which are located in New South Wales. Mr Spark has also ascertained that the defendant is the registered owner of the Toyota utility (item 3 of Schedule One) and a motorcycle (item 4 of Schedule One).

10. Section 10A(5) provides, in substance, that I am obliged to make the order sought if the application is supported by an affidavit of an authorised officer stating that the officer suspects that the defendant has engaged in a crime related activity and setting out the grounds for the suspicion and I consider that, having regard to the matters contained in the affidavit, there are reasonable grounds for any such suspicion.

11. In all the circumstances I am satisfied that Mr Spark’s affidavit meets the requirements of s 10A(5) as to the matters which he suspects.

12. I am also satisfied, having regard to Mr Spark’s affidavit, that there are reasonable grounds for his suspicion. I have been guided by what the High Court said in George v Rockett [1990] HCA 26; 170 CLR 104 at [14].

13. I do not consider that it would be appropriate to require the plaintiff to notify the defendant of the application under s 10A(4) in light of Mr Spark’s evidence. I accept Mr Spark’s evidence as to the speed with which real estate can be encumbered and motor vehicles transferred (or notifications of disposal backdated), which tends to have the effect of defeating the operation of the Act and restraining orders made under it. Moreover, Mr Spark has inspected records of electronic payments made by the defendant to persons in the United States who may be associated with prohibited drug supply. This is an additional reason for not requiring the plaintiff to notify the defendant of the application.

14. The defendant is domiciled in New South Wales and the real property is situated in New South Wales. Accordingly, the Commission is entitled to make this application for a restraining order: s 10A(3).

15. The orders, other than the restraining order, are designed to ensure that the plaintiff is apprised of the full extent of the defendant’s property interests. These orders are, accordingly, ancillary to the restraining order which, in terms, restrains dealing with any interest the defendant may have in property as defined by s 7. The Statement of Facts and Circumstances states that the plaintiff also seeks, in its summons, an unexplained wealth order.

16. In all the circumstances, I consider it to be appropriate to make the orders.

17. I note the undertaking given by the solicitor for the plaintiff, being the usual undertaking as to damages.

18. On the basis of that undertaking I make orders in terms of the draft minute of order provided to me by the plaintiff, as set out below.

Orders

19. I make the following 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 Scott James Richards, including the interest in property in the property specified in Schedule One hereto, except as provided by Orders 2, 3 and 4 below.

2. Pursuant to section 12(1) of the Criminal Assets Recovery Act 1990 the restraining order be varied to allow Scott James Richards or any other person (“the vendor”) to deal with the interest of Scott James Richards in the property specified in Item1 of Schedule One hereto (“the Mosman property”) for the purpose of either completing the sale of the Mosman property or selling the Mosman property at a price agreed in writing by the Plaintiff (“the sale of the Mosman property”).

3. Pursuant to section 12(1) of the Criminal Assets Recovery Act 1990 the proceeds received from the sale of the Mosman property may be applied to pay the following:

1. the amount necessary to discharge any registered mortgage secured over the Mosman property;

2. reasonable legal and conveyancing costs on the sale of the Mosman property;

3. any reasonable agent’s commission on the sale of the Mosman property;

4. any fee payable to a registered valuer for a valuation of the Mosman property;

5. any rates or other adjustments or monies reasonably payable under any Agreement for Sale; and

6. any other expenses incurred with the consent in writing of the Plaintiff, the giving of such consent to be in the absolute discretion of the Plaintiff.

4. An order pursuant to section 10B(2) of the Criminal Assets Recovery Act 1990, that the net proceeds of the sale of the Mosman property (after the payment of monies mentioned in Order 3 above) shall be paid, by bank cheque, to the NSW Trustee and Guardian, to be held by it until further order.

5. Pursuant to section 12(1)(b)(i) of the Criminal Assets Recovery Act 1990 Scott James Richards 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.

6. Leave is granted to the Plaintiff to obtain from the Registry dates for the examination ordered in Order 5 above.

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

8. Liberty is granted to the Plaintiff and Scott James Richards to apply on three (3) days’ notice.

9. The costs of obtaining these orders shall be costs in the cause.

10. 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 41 of section A in Deposited Plan 2509 in the Parish of Willoughby, County of Cumberland, also known as 13 Rangers Avenue, Mosman, New South Wales and registered in the name of Scott James Richards.

2. The whole of the property described as Lots 1 and 2 in Deposited Plan 258486 at Redhead in the Parish of Kahibah, County of Northumberland, also known as 40-42 Kalaroo Road, Redhead, New South Wales and registered in the name of Scott James Richards.

3. 2013 Toyota utility, registration BWA39U and registered in the name of Scott James Richards.

4. 2014 Kymco CK125T motorcycle, registration AIU87 and registered in the name of Scott James Richards.

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:

1. 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;

2. the location of the interest;

3. the name of the person or institution in whose custody title documents in respect of the interest are believed to be;

4. the approximate date of acquisition of the interest;

5. 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:

1. a full description of the liability including the nature of that liability and the amount of that liability;

2. the name of the person or institution to which the liability is owed.

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Decision last updated: 21 June 2016