New South Wales Crime Commission v Vanderburg

[2022] NSWSC 1569

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crime Commission v Vanderburg [2022] NSWSC 1569

Hearing dates:

16 November 2022

Date of orders:

16 November 2022

Decision date:

16 November 2022

Jurisdiction:

Common Law

Before:

Walton J

Decision:

On the evidence before the Court, the Commission has established a proper basis for the making of the short minutes of order filed in Court, seeking the partial relief under the Summons, upon the usual undertaking as to damages, given by the Commission. The Court orders accordingly.

Catchwords:

CRIMINAL PROCEDURE – Criminal Assets Recovery Act 1990 (NSW) – proceeds of crime - restraining orders – ancillary orders – ex parte - orders made

Legislation Cited:

Criminal Assets Recovery Act 1990 (NSW)

Crimes Act 1900 (NSW)

Drug Misuse and Trafficking Act 1985 (NSW)

Uniform Civil Procedure Rules 2005 (NSW)

Category:

Principal judgment

Parties:

New South Wales Crime Commission (Plaintiff)
Nathan Owen Vanderburg (Defendant)

Representation:

Solicitors:
New South Wales Crime Commission (Plaintiff)

File Number(s):

2022/00345278

Judgment

1. This matter concerns a summons by the New South Wales Crime Commission (“the Commission”) filed in Court today. The Commission sought and was granted that the matter be dealt with ex parte and instanter. By the summons, the Commission sought, inter alia, orders pursuant to ss 10A and 12(1) of the Criminal Assets Recovery Act 1990 (NSW) ("the Act") against the defendant, Nathan Owen Vanderburg (“the defendant”).

2. Section 10A of the Act enables an application to be made ex parte for a restraining order. Section 10B(2) of the Act enables this Court when making a restraining order, if it considers that the circumstances so require, order the NSW Trustee and Guardian to take control of some or all of the interests in property that are interests to which the restraining order applies. Section 12 permits the Court, when making a restraining order, to make any ancillary orders that the Court considers appropriate. These orders may include, as sought in the present matter, an order for the examination under oath of the owner of an interest in property that is subject to the restraining order or the spouse or de facto partner of the owner of an interest in property that is the subject of a restraining order.

3. The application is supported by a statement of facts and circumstances pursuant to r 1.26 of the Uniform Civil Procedure Rules2005 and an affidavit of Jiansong Wen affirmed on 10 November 2022.

4. Mr Wen, the Acting Director (Assessments) with the Commission, deposed that she is an authorised officer as defined in s 4(1) of the Act and suspected that the defendant had engaged in a serious crime related activity, namely, supply prohibited drug (cocaine) contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 ("the DMT Act"); supply prohibited drug (cocaine) of an amount not less than the large commercial quantity contrary to s 25(2) of the DMT Act, being offences falling within the definition of "serious criminal offence" pursuant to s 6(2)(b) of the Act and dealing with property suspected of being proceeds of crime contrary to s 193C(1) of the Crimes Act 1900, being an offence punishable by imprisonment for 5 years, involving money laundering and thus falling within the definition of "serious criminal offence" pursuant to paragraph 6(2)(d) of the Act.

5. The deponent relied upon a number of grounds for those suspicions as follows:

1. The receipt of a NSW Police Force Facts Sheet from the officer in charge of the investigation into the defendant and further information provided in response to questions raised by Mr Wen.

2. The belief of the deponent as to the truth of the information provided by NSW Police, including the Facts Sheet.

3. Records from COPS showing that the defendant was charged with the offences specified in the Facts Sheet.

6. It follows in my view that the commission has made good its application for a restraining order for the following reasons:

1. Mr Wen suspects the defendant of having engaged in serious crime related activity (namely the offences).

2. Mr Wen has been provided with, and accepts, a police Facts Sheet that describes the suspected serious criminal activity in which Mr Wen suspects the defendant to have engaged ("the Facts Sheet").

3. Mr Wen has ascertained that the defendant has been charged with the offences described in the Facts Sheet.

4. There are reasonable grounds for Mr Wen's suspicion that the defendant has engaged in serious crime related activity (namely the offences).

7. I observe, in so concluding, that the affidavit in support satisfies the formal requirements of s 10A(5) of the Act in this matter.

8. There are three further requirements of the provisions of s 10A of the Act which required attention before an order may be made.

1. First, the Court is required to be satisfied pursuant to s 10A(3) of the Act that the defendant is domiciled in New South Wales and that the property in respect of which the restraining order is sought is situated in New South Wales. On the affidavit of Mr Wen, I am satisfied that this criteria has been met in the present case.

2. Secondly, s 10A(4) of the Act enables notice to be given the defendant, if the Court thinks fit to, before an order is made. In light of Mr Wen’s evidence, I do not consider such notice should be given having regard to the prospects for the quick disposal of a motor vehicle or backdating forms notifying TfNSW of the disposal of a motor vehicle. There is also the prospect of the ready disposition of assets held in bank accounts, and the prospects of expeditiously registering interests in property in the names of other people and interests in property held outside the state of New South Wales.

3. I consider that there is a proper basis for Mr Wen’s assessment, that the defendant has an interest in property referred to in Schedule 2 of the Summons.

9. As earlier mentioned, by s 12(1) of the Act, the Court may, when making a restraining order, make any ancillary orders that the court considers appropriate.

10. By s 12(1)(b)(i) of the Act the Court may order the examination on oath of the owner of an interest in the property, that is the subject of a restraining order, as to the affairs of the owner including the nature and location of any property in which the owner has an interest. There is a proper basis to make such an order in this matter.

11. On the evidence before the Court, the Commission has established a proper basis for the making of the short minutes of order filed in Court, seeking the partial relief under the Summons, upon the usual undertaking as to damages, given by the Commission.

12. The Court orders accordingly.

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Decision last updated: 17 November 2022