New South Wales Crime Commission v White (No 2)

[2015] NSWSC 762

Supreme Court

New South Wales

Medium Neutral Citation:	New South Wales Crime Commission v White (No 2) [2015] NSWSC 762
Hearing dates:	15 June 2015
Date of orders:	15 June 2015
Decision date:	15 June 2015
Jurisdiction:	Common Law
Before:	Campbell J
Decision:	(1) Pursuant to rule 13.1 UCPR judgment be given for the plaintiff on its claim for an order pursuant to s 22 Criminal Assets Recovery Act that the interests in property of Rodney Boyd White (the defendant) in the property specified in the Schedule hereto (being interests in property of a person, namely the defendant, suspected by Jonathan Lee Spark, an authorised officer for the purposes of the Act, of having engaged in serious crime related activity) be forfeited to, and vest in, the Crown. (2)  The defendant pay the costs of this application. (3) Leave is granted to the defendant pursuant to s 25(4)(a) and 26(4)(a) of the Act to make application for exclusion orders on or before 15 December 2015 or such other date as the Court shall specify.
Catchwords:	PROCEDURE – civil – summary disposal – summary judgment – application for forfeiture order
Legislation Cited:	Criminal Assets Recovery Act 1990 (NSW); Uniform Civil Procedure Rules 2005 (NSW)
Category:	Consequential orders (other than Costs)
Parties:	New South Wales Crime Commission (Plaintiff) Rodney Boyd White (Defendant)
Representation:	Counsel: Ian Temby QC together with Ellen Goh (Crime Commission) Defendant in person Solicitors: Crime Commission
File Number(s):	2014/00204099

EX TEMPORE JUDGMENT (REVISED)

1. The New South Wales Crime Commission seeks summary judgment under r 13.1 of the Uniform Civil Procedure Rules 2005 (NSW) on its application for a forfeiture order under s 22 Criminal Assets Recovery Act 1990 (NSW) (“the Act”).

2. The order under s 22 is sought in its amended summons filed on 13 August 2013, at [6]. It moves on an application filed on 8 August 2014 and upon the affidavits of Jonathan Lee Spark sworn on 12 August 2013 and 7 August 2014 which were read without objection from Mr White who is self-represented and appears by audio visual link from Wellington Correctional Centre today.

3. The test for summary judgment is not in doubt. It is a matter of settled principle that a court will not make an order for summary judgment on a plaintiff’s claim unless the outcome after a trial can be predicted with a sufficient degree of certainty to make it clear that there is no issue to be tried in respect of the relief sought.

4. Moreover, certain requirements are required to be observed by force of r 13.1. The first is that there is evidence, of the facts upon which the claim is based and there is evidence in this case given by a responsible officer of the plaintiff, that the defendant has no defence to the claim which is the subject of the application for summary judgment.

5. The legal right asserted by the Commission may be found, as I have said, in s 22 Criminal Assets Recovery Act and ss (2) of that provision is in the following terms:

(2) The Supreme Court must make an assets forfeiture order in respect of an interest in property...[I omit certain words]... if the Court finds it to be more probable than not that the person whose suspected serious crime related activity, or serious crime related activities, formed the basis of the application for the assets forfeiture order, was at any time not more than 6 years before the making of the application engaged in

(a)... [I omit those words] ...

(b) a serious crime related activity involving an offence punishable by imprisonment for 5 years or more.

6. On the evidence before me, it is not disputed that Mr White was convicted of the crime of murder by the verdict of a jury on 30 April 2012 and that he was sentenced to imprisonment for thirty two years by RA Hulme J on 14 December 2012.

7. A serious crime related activity is defined by s 6 of the Act in terms which, as I have said, include an offence that is punishable by imprisonment for five years or more and involves, so far as is presently relevant, violence. The crime of murder would be the exemplar of such a crime.

8. It is not an ingredient of the plaintiff’s cause of action under s 22 that it is established that the property, the subject of the application is, in fact, the proceeds of crime. It is sufficient that it show for summary judgment that there is no triable issue about the matters referred to in s 22(2) and that the defendant has an interest in the property.

9. The overall scheme of the Act is that once those matters are proved then it falls to the defendant to show under either s 25 or 26 of the Act that certain interests that he or she holds in specified property is not illegally acquired property. The form of the orders sought in this case expressly preserves Mr White’s statutory right to apply for an exclusion order in respect of some or all of the interests in property sought to be made the subject of a forfeiture order by summary judgment.

10. I am satisfied that there is evidence of the facts upon which the claim of the plaintiff is made and I am also satisfied that, as required by the rules, Mr Spark has sworn as to his belief that the defendant has no defence, in [14] of his affidavit of 7 August 2014. The grounds of that belief are also fully set out in the contents of [12] and [13] of the same affidavit deposing to the necessary facts to engage s 22 of the Act.

11. Mr White has expressed his belief that given the opportunity he can make out grounds for an exclusion order in respect of some if not all of the interests in property the subject of this application. However, he has not pointed to any matter which, if accepted after a trial, would disentitle the plaintiff to the forfeiture order, per se.

12. He has made mention of the fact that the notice of intention to appeal was filed after his conviction and sentence, but it has not advanced into a notice of appeal in the Court of Criminal Appeal and is still subject to his consideration. However that may be, I am not of the view that this consideration amounts to facts from which I would infer there is a triable issue about the relief sought in s 22. Whilst it stands, the conviction and sentence are of full legal effect and are not subject to challenge in any other court except the Court of Criminal Appeal.

13. Having fully considered everything Mr White has said, I am not satisfied that there is a triable issue about the plaintiff’s entitlement to a forfeiture order. Accordingly, I am persuaded, by application of the high standard the law imposes in such matters, that the plaintiff has made good its case for summary judgment.

14. Because Mr White is self-represented, I will read the orders I am asked to pronounce and which I accept should be pronounced in full.

15. I order that

1. Pursuant to rule 13.1 UCPR judgment be given for the plaintiff on its claim for an order pursuant to s 22 Criminal Assets Recovery Act that the interests in property of Rodney Boyd White (the defendant) in the property specified in the Schedule hereto (being interests in property of a person, namely the defendant, suspected by Jonathan Lee Spark, an authorised officer for the purposes of the Act, of having engaged in serious crime related activity) be forfeited to, and vest in, the Crown.

2. The defendant pay the costs of this application.

3. Leave is granted to the defendant pursuant to sections 25(4)(a) and 26(4)(a) of the Act to make application for exclusion orders on or before 15 December 2015 or such other date as the Court shall specify.

SCHEDULE

1. 2003 BMW 320CI, expired registration number WXB328 and registered in the name of RIZ Nominees Pty Ltd.

2. Jewellery seized by Victorian Police during the execution of a search warrant at Lot 25A Kamerooka Drive, Kamerooka, Victoria and lodged under Surry Hills LAC Exhibit number D780252.

3. Cash in the amount of approximately $3,500 seized by Victorian Police from the person of Rodney Boyd White at the time of his arrest on 18 August 2009 and banked with the Victorian Police under Exhibit item ID EMU158972001.

4. Funds held by the New South Wales Trustee and Guardian representing:

1. Monies held in National Australia Bank Limited account in the name of Frank Laffan, representing the deposit paid by Rodney Boyd White in relation to the purchase of Allotment 6, Robinson Street, Heathcote, Victoria.

2. Monies held in the trust account of Ellinghaus Weill, Lawyers and Consultants representing deposit monies paid by Rodney Boyd White in relation to the purchase of Lot 25A Kamerooka Drive, Kamerooka, Victoria.

3. Monies held in the trust account of Ken Lee Solicitors being the proceeds of the sale of the cabin previously owned by Rodney Boyd White at site 136, Tweed Heritage Caravan Park, Chinderah, New South Wales.

**********

Decision last updated: 16 June 2015