New South Wales Crime Commission v Strickland

[2018] NSWSC 251

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crime Commission v Strickland [2018] NSWSC 251

Hearing dates:

27 February 2018

Date of orders:

27 February 2018

Decision date:

27 February 2018

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

(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 James Alexander Strickland, including the interest in property in the property specified in Schedule One and Schedule Two hereto.

 

(2) Pursuant to section 12(1)(b)(i) of the Criminal Assets Recovery Act 1990 James Alexander Strickland 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 section 12(1)(b1) of the Criminal Assets Recovery Act 1990 Belynda Pobjoy shall be examined on oath before a Registrar of the Court concerning the affairs of Belynda Pobjoy, including the nature and location of any property in which Belynda Pobjoy or James Alexander Strickland 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 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 James Alexander Strickland in the property specified in Schedule Two hereto.

 

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

 

(7)   The balance of the summons be listed for directions before the Common Law Registrar at 9am on Monday 28 May 2018.

 

(8)   Liberty is granted to the Plaintiff and James Alexander Strickland to apply on three (3) days’ notice.

 

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

 (11)   Non-publication of judgment for a period of two weeks from date of decision.

Catchwords:

CONFISCATION OF ASSETS – Criminal Assets Recovery Act 1990 – jurisdictional gateway satisfied – reasonable suspicion – retraining orders made

Legislation Cited:

Crimes Act 1900, s 193C(1)
Criminal Assets Recovery Act 1990
Drug Misuse and Trafficking Act 1985, s 25(2)

Category:

Consequential orders (other than Costs)

Parties:

NSW Crime Commission (Plaintiff)
James Alexander Strickland (Defendant)

Representation:

Solicitors:
New South Wales Crime Commission (Plaintiff)
Ex parte (Defendant)

File Number(s):

2018/00067977

Publication restriction:

Non-publication of judgment for a period of two weeks from date of decision.

Ex Tempore Judgment

1. HIS HONOUR: Leave is granted to file in Court the Summons in relation to the matter of James Alexander Strickland of 26 February 2018 and rely on it instanter. Leave is also granted to file in Court and rely upon the affidavit of Katie Elaine Bourne sworn 26 February 2018 in support of the Summons.

2. I am grateful to the plaintiff, the New South Wales Crime Commission (“the Commission”), for the provision of material before Court. The Commission applies by Summons for orders pursuant to s 10A of the Criminal Assets Recovery Act 1990 (“the Act”), for a restraining order in respect of all the interest in property of the defendant, James Alexander Strickland.

3. For the purposes of the restraining order, the Commission relies on the affidavit sworn in support by Katie Elaine Bourne, sworn 26 February 2018.

4. That affidavit establishes, and it is the knowledge of the Court, that Ms Bourne is an authorised officer as defined by and for the purposes of the Act, and that she suspects that the defendant has engaged in serious crime related activity, namely, the supply of a prohibited drug, methylamphetamine, of an amount not less than a commercial quantity applicable to that drug, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985, being an offence falling within the definition of “serious criminal offence” pursuant to s 6(2)(b) of the Act. The affidavit further establishes that Ms Bourne also suspects that the defendant has dealt with property being the proceeds of crime of an amount not less than $100,000 contrary to s 193C(1) the Crimes Act 1900, being an offence punishable by imprisonment for five years involving money laundering and thus falling within the definition of “serious criminal offence” pursuant to s 6(2)(d) of the Act. The money laundering and drug supply are collectively referred to as the offences. The affidavit provides further details of the offences and also gives the grounds for Ms Bourne's said suspicions.

5. Part of those grounds is the fact that the defendant has been charged, and the Court has before it a court attendance notices in relation to the drug offence so-called; the offence of direct activities of a criminal group (which is less relevant for the purpose of this application); and the money laundering offence, which is also relevant to this matter.

6. The Court also has before it the facts sheet provided by the police upon which Ms Bourne relies for part of the suspicion relating to the engagement in the serious crime related activities, namely, the offences to which I have earlier referred.

7. Ms Bourne attests that she has been provided with and accepts the police facts sheet, and, for good reason, has a reasonable basis for the suspicions which she also attests to. Ms Bourne has ascertained that the defendant has been charged, as already noted, and that there are reasonable grounds for her suspicion.

8. The Commission by its Summons also seeks an assets forfeiture order pursuant to the provisions of s 22 of the Act, and an unexplained wealth order pursuant to s 28A of the Act, but not at this juncture.

9. The facts and circumstances upon which the Commission will rely in seeking the orders against the defendant are in relation to the assets forfeiture order and the unexplained wealth order are probably unnecessary for me to recite, but are recited in the affidavit or are obvious therefrom.

10. In respect of all of the matters, the Court is of the view that the suspicion of Ms Bourne is reasonably based, and the jurisdictional basis for the making of the orders has been made out.

11. In those circumstances, the Court will make the order handed to the Court, initialled and dated on each substantive page, and signed at the back thereof. That order may be entered forthwith.

12. And further, for the reasons associated with a necessity to protect the interests that have just been restrained, the Court makes a non-publication order of the order and the transcript of these proceedings beyond the parties to the proceedings for a period of two weeks from today.

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Decision last updated: 15 March 2018