New South Wales Crime Commission v Waters

[2019] NSWSC 824

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crime Commission v Waters [2019] NSWSC 824

Hearing dates:

3 July 2019

Date of orders:

03 July 2019

Decision date:

03 July 2019

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 2 July 2019, there are reasonable grounds for the suspicion 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 and other than dealing with the accounts specified in Items 3 and 4 of Schedule One hereto in the ordinary and proper course of the business of Superior Pool Care) 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 Aaron Macaulay Waters, including the interests in property in the property specified in Schedules One and Two hereto.

 

2. Pursuant to section 12(1)(b)(i) of the Criminal Assets Recovery Act 1990 Aaron Macaulay Waters 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 interests of Aaron Macaulay Waters in the property specified in Schedule Two hereto.

 

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

 

6.   Liberty is granted to the Plaintiff and Aaron Macaulay Waters to apply on three (3) days’ notice.

 

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

 

8.   These proceedings be listed for mention before the Common Law Registrar at 9:00am on Monday, 30 September 2019.

 

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.   Funds held in the Commonwealth Bank of Australia bank account number 269223262958 in the name of Aaron M Waters.

 

2.   Funds held in the Commonwealth Bank of Australia bank account number 214110068958 in the name of Aaron M Waters.

 

3.   Funds held in the Commonwealth Bank of Australia bank account number 220810249777 in the name of Aaron M Waters trading as Superior Pool Care.

 

4.   Funds held in the Commonwealth Bank of Australia bank account number 220810249769 in the name of Aaron M Waters trading as Superior Pool Care.

 

5.   2014 Toyota Hilux 4 motor vehicle with New South Wales registration number CTD34K and registered in the name of Aaron Macaulay Waters.

 

6.   2017 Toyota Hilux 4 motor vehicle with New South Wales registration number 08SPC and registered in the name of Aaron Macaulay Waters.

 

7.   2018 Land Rover RR Vela motor vehicle with New South Wales registration number NBZ3OU and registered in the name of Aaron Macaulay Waters.

 

SCHEDULE TWO

 

1.   Cash in the approximate amount of $104,350 seized by New South Wales Police on 10 May 2019 during the execution of a search warrant at garage number 53 located at 35-36 East Esplanade, Manly, New South Wales 2095.

 

2.   Rolex watch seized by New South Wales Police on 10 May 2019 during the execution of a search warrant at 62 Veterans Parade, Collaroy Plateau, New South Wales, 2097.

 

3.   Two Breitling watches seized by New South Wales Police on 10 May 2019 during the execution of a search warrant at 62 Veterans Parade, Collaroy Plateau, New South Wales, 2097.

 

4.   Audemars Piguet watch seized by New South Wales Police on 10 May 2019 during the execution of a search warrant at 62 Veterans Parade, Collaroy Plateau, New South Wales, 2097.

 

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 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:

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

Category:

Procedural and other rulings

Parties:

New South Wales Crime Commission (Plaintiff)
Aaron Macaulay Waters (Defendant)

Representation:

Counsel:
P Donnelly – Ex parte (Plaintiff)

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

File Number(s):

2019/205770

Judgment

1. The plaintiff seeks a restraining order under s 10A of the Criminal Assets Recovery Act 1990 (NSW) pending the making of a forfeiture order under s 22 of the Act and an unexplained wealth order pursuant to s 28A of the Act. The summons is supported by an affidavit of Katie Elaine Bourne sworn 2 July 2019. 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 that the defendant has engaged in serious crime related activities as follows:

(1) Supplying a prohibited drug, being cocaine, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW).

(2) Supplying a prohibited drug, being MDMA, not less than the large commercial quantity contrary to s 25(2) of the Drug Misuse and Trafficking Act.

(3) Dealing with property suspected of being the proceeds of crime contrary to s 193(c)(1) of the Crimes Act 1900 (NSW), being an offence punishable by imprisonment for five years involving money laundering.

4. The first two of these offences are serious offences pursuant to s 6(2)(b) of the Criminal Assets Recovery Act and the third offence is a serious criminal offence pursuant to s 6(2)(d) of that Act.

5. Ms Bourne bases her suspicion principally on reading the Facts Sheet prepared by the New South Wales Police in preparation for the defendant's appearance in Court on the charges to which I have referred. Ms Bourne forwarded an email to an officer believed to have been involved in the investigation to ask if he was the officer that drafted the Facts Sheet or if he was aware of the contents of it, whether 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 police as a result of the investigation described in the Facts Sheet.

6. The officer who had prepared the Facts Sheet was on leave at the time but Ms Bourne received a reply from Detective Senior Constable Ratcliff who said to the best of his knowledge that the contents of the Facts Sheet were true and were based wholly on the investigation. Ms Bourne also asked what the status of the matter before the Court was, and was informed that the matter was to be forwarded to the District Court and adjourned for case conferencing with the DPP. No pleas had been entered at the time that information was provided to Ms Bourne.

7. I have read the Facts Sheet and the other documents attached to Ms Bourne's affidavit. I am satisfied that the suspicion held by her that the offences have been committed is reasonably held.          

8. The plaintiff also seeks an order that the New South Wales Trustee and Guardian take control of the defendant's interests in property specified in schedule 2 to the summons. Those items of property are cash exceeding $100,000 and four valuable watches seized by the police during the execution of a search warrant at premises occupied by the defendant.

9. The basis for the transfer of the property is that the cash will earn interest with the Trustee and Guardian, and that if the watches are returned at this stage to the defendant they may be disposed of in an attempt to avoid the provisions of the Act. I am satisfied that that order should be made.

10. The plaintiff also seeks that the orders be made without prior notice to the defendant. It does so based on Ms Bourne's experience at the Commission of the ease with which motor vehicles may be disposed of quickly or forms backdated notifying the RMS of disposal of the motor vehicle, and of the disposal of funds held in bank accounts very quickly.

11. 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 s10C of the Act for a review of these orders.

12. I note the usual undertaking as to damages given by the solicitor for the plaintiff. On that basis I make orders in terms of paragraphs 1, 2, 4, 5, 7 and 9 of the Draft Order. I grant the leave and liberty referred to in paragraphs 3 and 6. The proceedings are listed for mention before the Common Law Registrar at 9am on 30 September 2019.

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Decision last updated: 03 July 2019