New South Wales Crime Commission v Shaw

[2018] NSWSC 1297

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crime Commission v Shaw [2018] NSWSC 1297

Hearing dates:

22 August 2018

Date of orders:

22 August 2018

Decision date:

22 August 2018

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 21 August, 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 any interest in property (within the meaning of “interest in property” as defined in section 7 of the Criminal Assets Recovery Act 1990) of Dylan John Shaw, including the interest in property in the property specified in Schedule One hereto.

 

2. Pursuant to section 12(1)(b)(i) of the Criminal Assets Recovery Act 1990 Dylan John Shaw 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 10B(2) of the Criminal Assets Recovery Act 1990 the New South Wales Trustee and Guardian shall take control of all the interest of Dylan John Shaw in the property specified in Item 2 of Schedule One hereto.

 

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

 

6.   The balance of the summons be listed for directions before the Common Law Registrar at 9am on Monday 19 November 2018.

 

7.   Liberty is granted to the Plaintiff and Dylan John Shaw to apply on three (3) days’ notice.

 

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

 

9. 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.   2006 Audi B6 sedan with NSW plate number BTP38J and registered in the name of Dylan John Shaw.

 

2.   Cash in the amount of approximately $179,000 seized by police on 26 July 2018 during a search of the vehicle with NSW plate number CDY60U driven by Dylan John Shaw.

 

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:

 

(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:

Crimes Act 1900 (NSW)
Criminal Assets Recovery Act 1990 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Procedural and other rulings

Parties:

New South Wales Crime Commission (Plaintiff)
Dylan John Shaw (Defendant)

Representation:

Counsel:
S Santhikumar (Plaintiff) – Ex parte

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

File Number(s):

2018/257857

Publication restriction:

Nil

Judgment

1. The plaintiff seeks a restraining order under s 10A of the Criminal Assets Recovery Act 1990 (NSW) pending the making of an unexplained wealth order under s 28A and a forfeiture order under s 22 of the Act. The summons is supported by an affidavit of Katy Elaine Bourne, sworn 21 August 2018. Ms Bourne is an authorised officer of the plaintiff.

2. 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 and belief that the defendant has engaged in serious crime related activity, being:

(1) supplying a prohibited drug, being MDA, not less than the commercial quantity, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985;

(2) supplying a prohibited drug, being 4-bromo-2,5-dimethoxyphenethylamine, in an amount not less than the large commercial quantity, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW);

(3) supplying a prohibited drug, being methamphetamine, contrary to s 25(1) of the Drug Misuse and Trafficking Act; and

(4) knowingly dealing with the proceeds of crime contrary to s 193B(2) Crimes Act 1900 (NSW), being an offence punished by imprisonment for five years or more involving money laundering.

4. Each of those offences is a serious criminal offence pursuant to s 6(2)(d) of the Criminal Assets Recovery Act.

5. Ms Bourne bases her suspicion principally on reading the facts sheet found in the COPS database in relation to the defendant. Ms Bourne sought from a person she understood to be the officer-in-charge of the investigation if he was the officer who had prepared the facts sheet, if to the best of his knowledge and belief the contents of the facts sheet were true, and if the facts sheet was prepared based on information obtained by the police as a result of the investigation described in the facts sheet.

6. To each of those questions Detective Senior Constable Peter Heywood answered in the affirmative. He also informed Ms Bourne that the defendant has been charged with the offences referred to and is currently bail refused.

7. I have read the facts sheet. I am satisfied that the suspicion held by Ms Bourne that the offences have been committed are reasonably held.

8. The plaintiff asks that the orders be made without prior notice to the defendant. It does so based on what appears in para 8 of Ms Bourne’s affidavit that she is aware that it is possible for persons to dispose of motor vehicles or backdate forms notifying the RMS of the disposal of a motor vehicle or dispose of assets held interstate very quickly in a way which would attempt to defeat the operation of the Act. Ms Bourne also relies on the serious nature of the offences charged.

9. 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.

10. I note that the plaintiff gives the usual undertaking as to damages.

11. Having considered the matters in the affidavit of Katy Elaine Bourne, sworn 21 August 2018    I make orders in terms of paras 1, 2, 4, 5, 6, 8 and 9 of the order provided to me.

12. I grant the leave and liberty contained in paras 3 and 7.

13. Orders may be entered forthwith.

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Decision last updated: 22 August 2018