New South Wales Crime Commission v Savas Yucel (also known as Savas Guven)

[2019] NSWSC 138

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crime Commission v Savas Yucel (also known as Savas Guven) [2019] NSWSC 138

Hearing dates:

21 February 2019

Date of orders:

21 February 2019

Decision date:

21 February 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 Jonathan Lee Spark sworn 19 February 2019, there are reasonable grounds for the suspicions 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 the interest in property (within the meaning of “interest in property” as defined in section 7 of the Criminal Assets Recovery Act 1990) of Savas Yucel (also known as Savas Guven) in the property specified in Schedule One hereto.

 

2. Leave is granted to the Plaintiff to amend its Summons filed 6 October 2017 to seek a declaration that Savas Yucel (also known as Savas Guven) has effective control (within the meaning of “effective control” as defined in section 8 and 7 (3) of the Criminal Assets Recovery Act 1990) of the interest in property (within the meaning of “interest in property” as defined in section 7 of the Criminal Assets Recovery Act 1990) in the property specified in Schedule One hereto.

 

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

 

4. 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 8 in Deposited Plan 939729 at Mascot, Local Government Area of Bayside, Parish of Botany, County of Cumberland, also known as 6 John Street, Mascot, New South Wales 2020 and registered in the name of Bibil Pty Ltd.

Catchwords:

CRIMINAL LAW – proceeds of crime – restraining orders – notice of motion seeking to restrain additional property – where property in the name of a company but effectively in the control of the defendant - additional criminality by defendant

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)
Savas Yucel (also known as Savas Guven)
(Defendant)

Representation:

Counsel:
A Bishop – Ex parte (Plaintiff)

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

File Number(s):

2017/301943

Judgment

1. On 6 October 2017, Lonergan J made orders including a restraining order pursuant to s10A of the Criminal Assets Recovery Act 1990 (NSW) in respect of the interest in property of the defendant in properties owned by him at Kingsford. Subject to the variation to one restraining order made as a result of consent orders on 31 July 2018, the restraining order remains in force and is limited to the defendant's interest in properties at Kingsford owned by the defendant.

2. The plaintiff now moves by motion for a restraining order in respect of a property owned by a company Bibil Pty Ltd at Mascot, and seeks in that regard to amend the summons to seek a declaration that the defendant has effective control of the property.

3. The notice of motion is supported by an affidavit of Jonathan Lee Spark sworn 19 February 2019. Mr Spark is an authorised officer of the plaintiff.

4. 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 therein is based, and the Court considers that there are reasonable grounds for the suspicion.

5. Mr Spark, in his earlier affidavit relied on in support of the summons, held a suspicion that the defendant had engaged in serious crime related activity, being armed robberies. Mr Spark deposes to the fact that he continues to hold the suspicion based on the materials set out in his earlier affidavit.

6. He also deposes to the fact that he suspects that the defendant has engaged in further serious crime related activity, being (a) the participation in a criminal group contrary to s 93T(1) of the Crimes Act 1900 (NSW) which is an offence falling within the definition of "serious criminal offence" pursuant to s 6(2)(g1) of the Criminal Assets Recovery Act, and (b) knowingly dealing with the proceeds of crime contrary to s 193B(1) of the Crimes Act, which is an offence punishable by imprisonment for five years involving money laundering, and so falling within the definition of "serious criminal offence" pursuant to s6(2)(d) of the Criminal Assets Recovery Act.

7. Mr Spark deposes to holding the suspicion principally on the grounds of having read the facts sheet in relation to the two offences to which I have made reference.

8. Mr Spark sent an email to Detective Bernard Underwood who is the officer-in-charge of the investigation into the offences charged against the defendant. Mr Spark sought from Detective Underwood, answers to the following questions: (1), whether the detective drafted the facts sheet; (2), whether to the best of his knowledge and belief the contents of the facts sheets were true; and (3), whether the facts sheet was prepared based on information obtained by police as a result of the investigation described in that facts sheet. Detective Underwood answered in the affirmative to those questions.

9. I have read the lengthy facts sheet which Mr Spark also read. I am satisfied from reading that material that the suspicion Mr Spark has is reasonably held.

10. As indicated earlier, the property in respect of which the restraining order is sought, is a property at Mascot. That property is owned by Bibil Pty Ltd. Mr Spark is of the opinion that the defendant is the effective controller of that land, and that arises because of a series of shareholdings in five companies including Bibil Pty Ltd.

11. The defendant is the sole shareholder of a company which in turn is the sole shareholder of another company, and each then is a sole shareholder of the succeeding company with the final company in the chain being Bibil Pty Ltd. In those circumstances, I am satisfied that Mr Spark's view that the land is effectively controlled by the defendant is a reasonably held view.

12. The plaintiff seeks that the present order be made without notice to the defendant. It does so based on Mr Spark's belief, as a result of his employment with the plaintiff, that in the absence of a restraining order, it is possible for people to attempt to dispose of their interests in property very quickly, particularly by the granting of unregistered mortgages, which may defeat the operation of the Act.

13. Mr Spark also makes reference in that regard to the seriousness of the offending which is now charged against the defendant, as well as the earlier charges on which the earlier restraining orders were obtained. I am satisfied that notice should not be given to the defendant before the making of the orders sought in the notice of motion. The defendant has rights under s10C of the Act to seek a review of the present orders.

**********

Decision last updated: 22 February 2019