New South Wales Crime Commission v Roach

[2018] NSWSC 2052

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crime Commission v Roach [2018] NSWSC 2052

Hearing dates:

12 September 2018

Date of orders:

12 September 2018

Decision date:

12 September 2018

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

(1) Pursuant to s 10A of the Criminal Assets Recovery Act 1990 (NSW) (“the Act”) 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 Act of Adrian Peter Ronald Roach, including the interest in property in the property specified in Schedule One and Schedule Two.

 

(2) Pursuant to s 12(1)(b)(i) of the Act Adrian Peter Ronald Roach 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) Pursuant to s 12(1)(b1) of the Act Monique Cam shall be examined on oath before a Registrar of the Court concerning the affairs of Monique Cam, including the nature and location of any property in which Monique Cam or Adrian Peter Ronald Roach 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 s 10B(2) of the Act the New South Wales Trustee and Guardian shall take control of all the interest of Adrian Peter Ronald Roach in the property specified in Schedule Two.

 

(6) Pursuant to s 12(1)(c1) of the Act Adrian Peter Ronald Roach shall furnish to the Plaintiff, within twenty one (21) days after service of a sealed copy of these orders on Adrian Peter Ronald Roach, a statement verified by oath of Adrian Peter Ronald Roach setting out the particulars sought in Schedule Three.

 

(7)   Liberty is granted to the Plaintiff and Adrian Peter Ronald Roach to apply on three (3) days’ notice.

 

(8)   The balance of the Summons filed in these proceedings be listed for Mention before the Common Law Duty Registrar at 9am on 4 February 2019.

 

(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 (NSW) these orders are to take effect as of the date hereof.

Catchwords:

CRIMINAL ASSETS – restraining order – ancillary orders for examination etc. – reasonable suspicion – orders granted

Legislation Cited:

Criminal Assets Recovery Act 1990 (NSW)
Crimes Act 1900 (NSW), s 193B

Category:

Procedural and other rulings

Parties:

New South Wales Crime Commission (Plaintiff)
Adrian Peter Ronald Roach (Defendant)

Representation:

Solicitors:
S Santhikumar (Plaintiff)
Ex Parte (Defendant)

File Number(s):

2018/280249

EX TEMPORE Judgment

1. HIS HONOUR: The Court has before it an application by Summons, filed today in Court, seeking orders under the Criminal Assets Recovery Act 1990 (NSW) (hereinafter “the Act”). By that Summons, the New South Wales Crime Commission (hereinafter “the Commission”) applies for a restraining order in respect of all of the interests in property of the defendant, Adrian Peter Ronald Roach.

2. For the purposes of the application and the restraining order, the Commission relies upon an Affidavit, also filed today, sworn in support of the application on 11 September 2018, being the Affidavit of Katie Elaine Bourne. The Affidavit 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, knowingly deal with proceeds of crime intending to conceal contrary to s 193B of the Crimes Act 1900 (NSW) (hereinafter “the offence”).

3. The Affidavit also gives the grounds for Ms Bourne’s said suspicions. The facts and circumstances on which the Commission relies in its application for a restraining order are that:

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

2. Ms Bourne has been provided with and accepts a police facts sheet that describes the suspected serious criminal activity in which Ms Bourne suspects the defendant to have engaged (hereinafter “the facts sheet”).

3. Ms Bourne has ascertained that the defendant has been charged with the offences described in the facts sheet. There are 44 offences with which the defendant has been charged, and at least one of them includes the offence to which the Court has already referred.

4. There are reasonable grounds for Ms Bourne’s suspicion that the defendant has engaged in serious crime related activity, namely, the offence.

4. The Commission by its Summons is also seeking, in respect of the defendant, an assets forfeiture order pursuant to s 22 of the Act and an unexplained wealth order pursuant to s 28A of the Act. Neither the assets forfeiture order nor the unexplained wealth order are sought today.

5. Nevertheless, the facts and circumstances upon which the Commission will rely in seeking the said orders, that is under s 22 and s 28A of the Act, are the same as those in respect of the assets forfeiture order, namely:

the facts and circumstances described in the facts sheet; the property described in Schedule Two of the Summons, being the seized cash, an interest in property of the defendant; the fact that the defendant has engaged in serious crime related activity, namely, the offence; and an available inference relating to serious crime use property, because the seized cash is an interest in property of the defendant who has engaged in serious crime related activity.

6. The defendant’s activities resulted in the seized cash becoming serious crime use property and the seized cash is serious crime use property, because it was used and obtained in connection with serious crime related activities, namely, the offence. .

7. In relation to the unexplained wealth order, the Commission relies upon: the facts and circumstances described in the facts sheet; the results of pending investigations by the Commission, including a financial analysis of the affairs of the defendant; the evidence obtained pursuant to any examination of the defendant and a person associated with the defendant pursuant to s 12 of the Act; and, lastly, the evidence obtained as a result of any statement of affairs provided by the defendant pursuant to s 12 of the Act.

8. It is to be noted that the defendant is said to be a self-employed electrician and claims to earn $1500 per fortnight of which $350 is spent in rent per week. Nevertheless, a search of the premises located Australian currency comprising $138,950 in $50 notes; assorted power tools and other equipment; and a number of mobile phones and communication devices.

9. In those circumstances, the Court considers that the facts and circumstances upon which the Commission relies are facts and circumstances that are reasonably based and the Court accepts the suspicion expressed by Ms Bourne in her Affidavit. As a consequence, the Court will make the orders under s 10A of the Act, together with the ancillary orders for examination and the like.

10. For the foregoing reasons, the Court makes an order under s 10A for an examination on oath under s 12(1)(b)of the defendant; an order that under s 12(1)(b)(i) Ms Monique Cam be examined; and an order that the defendant furnish a statement, verified on oath, setting out the particulars sought in Schedule Three to the orders which are essentially the nature and extent of all of the defendant’s interests in property.

11. I make the orders sought and provided to the Court in the minute of order signed and dated by me.

12. Those orders may be taken out forthwith.

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Decision last updated: 09 April 2019