New South Wales Crime Commission v Walshe

[2023] NSWSC 639

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crime Commission v Walshe [2023] NSWSC 639

Hearing dates:

7 June 2023

Date of orders:

7 June 2023

Decision date:

07 June 2023

Jurisdiction:

Common Law

Before:

Walton J

Decision:

(1) An order pursuant to s 10A of the Criminal Assets Recovery Act 1990 that 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 s 7 of the Criminal Assets Recovery Act 1990) of Conor Jack Walshe, including the interest in property in the property specified in Schedule One and Schedule Two hereto.

(2) An order pursuant to s 12(1)(b)(i) of the Criminal Assets Recovery Act 1990 that Conor Jack Walshe 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) An order pursuant to s 12(1)(b1) of the Criminal Assets Recovery Act 1990 that Amy Kimberley Craike be examined on oath before a Registrar of the Court concerning her affairs, including the nature and location of any property in which she or Conor Jack Walshe has an interest.

(4) An order that leave be granted to the Plaintiff to obtain from the Registry dates for the examinations sought in Prayers 2 and 3 above.

(5) An order pursuant to s 10B(2) of the Criminal Assets Recovery Act 1990 that the New South Wales Trustee and Guardian take control of all the interest of Conor Jack Walshe in the property specified in Schedule Two hereto.

(6) An order pursuant to s 12(1)(c1) of the Criminal Assets Recovery Act 1990 that Conor Jack Walshe furnish to the Plaintiff, within twenty-one (21) days after service of a sealed copy of these orders on Conor Jack Walshe, a statement verified by oath of Conor Jack Walshe setting out the particulars sought in Schedule Three hereto.

(7) Liberty is granted to the Plaintiff and Conor Jack Walshe to apply on three (3) days’ notice.

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

(9) These proceedings be listed for mention before the Common Law Registrar at 9:00am on 4 September 2023.

(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.

SCHEDULE ONE

(1) The whole of the property described as Lot 11 in Deposited Plan 9069 at West Ballina, Local Government Area Ballina, Parish of Ballina, County of Rous, also known as 8 Buchanan Street, Ballina NSW 2795 and registered in the name of Conor Walshe and Amy Kimberley Craike as joint tenants.

(2) The whole of the property described as Title Reference: 20836019, Registered Owner: Dealing No. 721682923 12/05/2022, Conor Jack Walshe and Amy Kimberley Craike as joint tenants, Estate and Land: Estate in Fee Simple, Lot 53 in Registered Plan 716387 at Local Government Area Cairns.

(3) The whole of the property described as Title Reference: 21058145, Registered Owner: Dealing No. 71348311 16/12/2021, Conor Jack Walshe and Amy Kimberley Craike as joint tenants, Estate and Land: Estate in Fee Simple, Lot 205 in Registered Plan 731463, Local Government Area Cairns.

SCHEDULE TWO

Cash in the approximate amount of $14,300 seized by members of the NSW Police Force on 8 March 2023 during the execution of a search warrant at 8 Buchanan Street, Ballina NSW 2478, being the residence of Conor Jack Walshe.

SCHEDULE THREE

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

Legislation Cited:

Uniform Civil Procedure Rules 2005 (NSW)

Drug Misuse and Trafficking Act 1985 (NSW)

Category:

Principal judgment

Parties:

New South Wales Crime Commission (Plaintiff)
Conor Jack Walshe (Defendant)

Representation:

Counsel:
S Askew (Plaintiff)

Solicitors:
NSW Crime Commission (Plaintiff)

File Number(s):

2023/182147

JUDGMENT

1. Pursuant to s 10A of the Criminal Assets Recovery Act 1990 (NSW), the New South Wales Crime Commission ("the Commission") made an application for a restraining order in respect of all the interests in property of Conor Walsh (the defendant).

2. In support of the application, the Commission relied upon the affidavit of Jiansong Wen of 7 June 2023.

3. For the purposes of today's proceedings, the Commission filed Short Minutes of Order indicating that the Commission does not seek all of the relief claimed under the summons but rather the particular class of order to which I have referred, together with the related orders, such as orders under s 12 of the Act.

4. I agree with the Statement of Facts and Circumstances produced pursuant to r 1.2(6) of the Uniform Civil Procedure Rules 2005 (NSW), that Mr Wen's affidavit establishes that he is an authorised officer for the purpose of the Act.

5. I suspect that the defendant engaged in serious crime-related activity, namely, supply prohibited drug (cocaine) of an amount not less than a commercial quantity contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (“DMT Act”) and supply prohibited drug (cocaine) in an amount greater than the indictable quantity applicable to that drug, contrary to s 25(1) of the DMT Act, and further, that Mr Wen gives grounds for the suspicions he holds.

6. I note in that respect that Mr Wen was provided with, and accepted, a police facts sheet that describes the suspected suspicious criminal activity in which Mr Wen's suspects the defendant to have engaged in, and that Mr Wen has ascertained that the defendant has been charged with the offences described in the facts sheet.

7. I consider that there are, in all the circumstances on, the material presently before the Court, reasonable grounds for Mr Wen's suspicion that the defendant has engaged in serious crime-related activity, and that in accordance with the matters established by the affidavit that the necessary preconditions for the making of an order under s 10A of the Act have been established in the present case.

8. So too, in my view, have the facts and circumstances established by that evidence provided sufficient basis for the making of the related orders contained within the proposed Short Minutes of Order.

9. I make the orders contained within the Short Minutes of Order provided by the Commission which shall in their execution bear today's date.

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Decision last updated: 15 June 2023