New South Wales Crime Commission v Whalley

[2019] NSWSC 673

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crime Commission v Whalley [2019] NSWSC 673

Hearing dates:

6 June 2019

Date of orders:

06 June 2019

Decision date:

06 June 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 31 May 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) 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 Crawford Whalley, including the interest in property in the property specified in Schedule One hereto and Schedule Two hereto.

 

2. Pursuant to section 12(1)(b)(i) of the Criminal Assets Recovery Act 1990 James Crawford Whalley 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 interest of James Crawford Whalley in the property specified in Schedule Two hereto.

 

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

 

6.   Liberty is granted to the Plaintiff and James Crawford Whalley 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 26 August 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
The whole of the property described as Lot 9 on Plan 15544 (Register Number 9/P15544) in the State of Western Australia, with registered proprietor James Crawford Whalley of 45 Blue Gum Way, Julimar.

 

SCHEDULE TWO
Approximately $947,330 in cash seized by NSW Police Force on 10 May 2019 during a vehicle search of a Toyota Landcruiser with Western Australian registration number 1GU989 driven by James Crawford Whalley.

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:

Crimes Act 1900 (NSW)
Criminal Assets Recovery Act 1990 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Category:

Procedural and other rulings

Parties:

New South Wales Crime Commission (Plaintiff)
James Crawford Whalley (Defendant)

Representation:

Counsel:
P Donnelly – Ex parte (Plaintiff)

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

File Number(s):

2019/177099

Judgment

1. The plaintiff seeks a restraining order under s 10A of the Criminal Assets Recovery Act 1990 (NSW) pending the making of an unexplained wealth order under s 28A of the Act and a forfeiture order under s 22 of the Act.

2. The summons is supported by an affidavit of Katie Elaine Bourne sworn 31 May 2019. Ms Bourne is an authorised officer of the plaintiff. 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 activity being dealing with property suspected to be the proceeds of crime, the value of such property being $100,000 or more, contrary to s193C(1) of the Crimes Act 1900 (NSW). That is an offence punishable by imprisonment for five years involving money laundering and thereby falls within the definition of serious criminal offence pursuant to para 6(2)(d) of the Criminal Assets Recovery Act.

4. Ms Bourne bases her suspicion principally on reading the facts sheet prepared by the police in preparation for the appearance in court of the defendant. Ms Bourne sent an e-mail to Detective Senior Constable Ally Chambers who she was aware was involved in the investigation of the defendant. She asked him if he was the officer who drafted the facts sheet or if he was aware of the contents of the facts sheet, if to the best of his knowledge and belief the contents of the facts sheet were true and if it was prepared on information obtained by the police as a result of the investigation described in the facts sheet. To each of those questions Detective Senior Constable Chambers answered in the affirmative.

5. Ms Bourne also sought to understand what the status of the defendant was. Detective Chambers informed her that the defendant was at that time to be before Broken Hill Local Court on 28 May but that no plea had been entered at that stage.

6. 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 offence has been committed is reasonably held.

7. The plaintiff seeks an order that the NSW Trustee and Guardian take control of the defendant's interest in the property identified in Item 2 of the schedule to her affidavit being cash seized by the police during a vehicle search of a vehicle being driven by the defendant. She does so for the reasons set out in para 7 of her affidavit. I am satisfied that such an order should be made.

8. 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 the operation of the act may be defeated by the speedy entry into unregistered mortgages of real estate.

9. 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 to review the orders.

10. I note the usual undertaking given by the solicitor for the plaintiff. On that basis I make orders in terms of paras one, two, four, five, seven and nine of the order signed by me. I grant the leave and liberty in paras three and six. The proceedings are listed for mention before the Common Law Registrar at 9.00am on 26 August 2019.

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Decision last updated: 07 June 2019