New South Wales Crime Commission v Smith

[2025] NSWSC 664

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crime Commission v Smith [2025] NSWSC 664

Hearing dates:

25 June 2025

Date of orders:

25 June 2025

Decision date:

25 June 2025

Jurisdiction:

Common Law

Before:

Elkaim AJ

Decision:

1. Pursuant to s 12(1)(b)(ii) of the Criminal Assets Recovery Act 1990 (NSW) that John Glasheen be examined on oath before a Registrar of the Court concerning the affairs of Sean Anthony Smith including the nature and location of any property in which Sean Anthony Smith has an interest.

2. Leave is granted to the plaintiff to obtain from the Registry dates for the examination sought in Order 1 above.

3. Costs of this notice of motion are to be costs in the cause

Catchwords:

CRIME — Confiscations — Restraining order — Ancillary order for examination of third-party regarding defendant's property — s 12(1)(b)(ii) Criminal Assets Recovery Act 1990 (NSW)

Legislation Cited:

Confiscation of Proceeds of Crimes Act 1989 (NSW)

Criminal Assets Recovery Act 1990 (NSW), ss 10A, 12(1)(b)(i), 12(1)(b)(ii)

Cases Cited:

New South Wales Crime Commission v Murchie [2000] NSWSC 591

NSW Crime Commission v Sean Anthony Smith [2015] NSWSC 688

Category:

Procedural rulings

Parties:

New South Wales Crime Commission (Plaintiff)
Sean Anthony Smith (Defendant)

Representation:

Counsel:
M Pruscino (Plaintiff)

Solicitors:
New South Wales Crime Commission (Plaintiff)
Galloways Solicitors & Attorneys (Defendants)

File Number(s):

2015/158742

Publication restriction:

No

ex-tempore JUDGMENT - revised

1. These proceedings were commenced on 28 May 2015 with the filing of a summons by the New South Wales Crime Commission as plaintiff and Mr Sean Anthony Smith as defendant.

2. The summons was heard on the same day by Hamill J, who made a number of orders pursuant to s 10A of the Criminal Assets Recovery Act 1990 (NSW) (Crime Commission v Sean Anthony Smith [2015] NSWSC 688). At the core of the orders was the belief “that the defendant engaged in serious crime related activity” connected to illicit drugs.

3. On 11 December 2018, the plaintiff filed an amended summons seeking orders under the Confiscation of Proceeds of Crimes Act 1989 (NSW).

4. On 5 February 2020, a Registrar made orders under s 12(1)(b)(i) of the Criminal Assets Recovery Act for the examination of the defendant.

5. The defendant was examined on 18 February 2020. In the course of the examination, the defendant made statements concerning a Mr John Glasheen.

6. Mr Glasheen had already been spoken to by Mr Nigel Robinson, an employee of the New South Wales Crime Commission, on 10 May 2016. In the course of that conversation Mr Glasheen said that, inter alia, he was a former friend of the defendant’s family, and that he had borrowed $120,000 in cash from the defendant over a period of two years. He said that he paid the loan back, together with interest, also over two years. The total amount paid back including the interest was $135,000.

7. When the defendant was examined on 18 February 2020, he said, in respect of the loan described by Mr Glasheen, that he had not made a loan to Mr Glasheen and he had not, or at least did not recall, receiving $135,000 from Mr Glasheen.

8. Mr Robinson inspected documents that had been provided by the ANZ Bank on 17 June 2016, which revealed that between 5 July 2013 and 7 April 2015 Mr Glasheen made 11 separate payments to the defendant totalling $135,000.

9. Clearly there is an inconsistency between what Mr Glasheen told Mr Robinson and what the defendant said during his examination.

10. Because of this, and other inconsistencies the plaintiff filed a notice of motion on 12 February 2025, seeking an order that Mr Glasheen be “examined on oath before a Registrar of the Court concerning the affairs of Sean Anthony Smith including the nature and location of any property in which Sean Anthony Smith has an interest.”

11. The motion is supported by an affidavit of Mr Robinson dated 11 February 2025.

12. The order sought is sanctioned by s 12(1)(b)(ii) of the Criminal Assets Recovery Act.

13. The attitude of Mr Glasheen and the defendant, both of whom have been served with the notice of motion is not completely clear. However, Mr Smith’s legal representative was present in court on 2 June 2025 when the hearing date was set. Mr Glasheen actually came to court earlier today and spoke to the plaintiff’s lawyers but did not stay for the hearing.

14. The scope of the orders sought by the plaintiff goes beyond the loan mentioned above. However, the conversation with Mr Glasheen in May 2016 and the examination of the defendant in February 2020 revealed dealings concerning a number of companies including Big Dog Deals Pty Ltd, and Vidcall Australia Pty Ltd.

15. In addition, Mr Robinson states in his affidavit at [13]:

“I believe that John Glasheen (‘Mr Glasheen’) has knowledge of the affairs of Mr Smith, including the nature and location of property Mr Smith has an interest in.”

16. I note that the defendant has not complied with an order made on 28 May 2015, that he furnish particulars of his property dealings, making the examination of Mr Glasheen all the more relevant.

17. Later in his affidavit, Mr Robinson sets out the basis for his belief which is derived from his conversation with Mr Glasheen, the examination of the defendant, the ANZ records, and various searches of ASIC databases.

18. I think the plaintiff has established a proper basis for the order for the examination of Mr Glasheen to be made. I am further satisfied that the matters about which Mr Glasheen is to be examined fall within the parameters stated in New South Wales Crime Commission v Murchie [2000] NSWSC 591 from paragraph 62.

19. Accordingly, I make the following Orders:

1. Pursuant to s 12(1)(b)(ii) of the Criminal Assets Recovery Act 1990 (NSW) that John Glasheen be examined on oath before a Registrar of the Court concerning the affairs of Sean Anthony Smith including the nature and location of any property in which Sean Anthony Smith has an interest.

2. Leave is granted to the plaintiff to obtain from the Registry dates for the examination sought in Order 1 above.

3. Costs of this notice of motion are to be costs in the cause.

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