New South Wales Crime Commission v Russell

[2018] NSWSC 1719

Supreme Court

New South Wales

Medium Neutral Citation:	New South Wales Crime Commission v Russell [2018] NSWSC 1719
Hearing dates:	07 August 2018
Date of orders:	07 August 2018
Decision date:	07 August 2018
Jurisdiction:	Common Law
Before:	Rothman J
Decision:	The Court makes orders in accordance with the Consent Orders initialled, signed and sealed on 7 August 2018.
Catchwords:	CRIMINAL ASSETS – serious criminal offence suspected – defendant charged with conspiracy to supply prohibited drugs contrary to s 26 of the Drug Misuse and Trafficking Act 1985 – suspicion of authorised officer reasonably based – defendant charged with index offence – interim restraining order under s 10A of the Criminal Assets Recovery Act 1990 and ancillary orders sought and granted.
Legislation Cited:	Criminal Assets Recovery Act 1990, ss 10A, 12, 28A Drug Misuse and Trafficking Act 1985, s 26
Category:	Consequential orders (other than Costs)
Parties:	New South Wales Crime Commission (Plaintiff) Levi John Russell (Defendant)
Representation:	Solicitors: New South Wales Crime Commission (Plaintiff) Ex parte (Defendant)
File Number(s):	2018/243001

Ex Tempore Judgment

1. HIS HONOUR: Before the Court is an application by the NSW Crimes Commission, hereinafter "the Commission" for orders under the Criminal Assets Recovery Act1990, hereinafter "the Act". Final orders are sought but in the proceedings before the Court at the moment, certain interlocutory orders are sought being orders under: s 10A, a restraining order; s 12(1)(b), ancillary orders relating to examination; 12(1)(c)(i), an order in relation to furnishing or warranting that all of the property has been identified; and under s 10B(2), an order, also ancillary and interlocutory, providing that the property seized be the subject of control of the New South Wales Trustee and Guardian.

2. As earlier stated, the Commission applies for a restraining order in respect of all of the interests of property of Levi John Russell. For the purposes of the application, the Commission relies upon the affidavit sworn by Katie Elaine Bourne on 7 August 2018. That affidavit establishes that Ms Bourne is an authorised officer for the purposes of the Act and that she suspects Mr Russell of having engaged in serious crime-related activity, namely conspiracy to take part in the supply of a prohibited drug contrary to s 26 of the Drug Misuse and Trafficking Act 1985, being an offence falling under the definition of "serious criminal offence" pursuant to the Act.

3. It also gives the grounds for Ms Bourne's said suspicions, including a full police facts document. The facts and circumstances upon which the Commission relies in its application for a restraining order are first, that Ms Bourne suspects Mr Russell of having engaged in serious crime-related activity, namely the offence. Secondly, that Ms Bourne has been provided with and accepts a police facts sheet that describes the suspected serious criminal activity in which Ms Bourne suspects Mr Russell has engaged. The Court has read the facts sheet and the nature of the material in that fact sheet, including a summary of some of the evidence obtained by surveillance devices, is compelling.

4. Thirdly, Ms Bourne has ascertained that Mr Russell has been charged with the offences described in the facts sheet and, fourthly, there are reasonable grounds for Ms Bourne's suspicion that Mr Russell has engaged in serious crime-related activity, namely the offence.

5. The Commission, by its Summons, is also seeking in respect of Mr Russell an unexplained wealth order, pursuant to s 28A of the Act. The Commission relies upon the following in relation to the unexplained wealth order, that is the facts and circumstances described in the facts sheet to which reference has already been made, the result of pending investigations by the Commission, including a financial analysis of the affairs of Mr Russell, the evidence obtained pursuant to any examination of Mr Russell pursuant to s 12 of the Act and the evidence obtained as a result of any statement of affairs being a warrant as to interests in property provided by Mr Russell pursuant to s 12 of the Act.

6. For the foregoing reasons, it seems to the Court as presently constituted, that the requirements for the making of an order under s 10A, and the other orders of an ancillary or dependent nature, have been made out. The Court makes the orders provided to the Court in draft and initialled, dated and signed by the Court. Those orders may be entered forthwith.

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Decision last updated: 12 November 2018