New South Wales Crime Commission v Williams

[2014] NSWSC 1046

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crime Commission v Williams [2014] NSWSC 1046

Hearing dates:

4 August 2014

Decision date:

04 August 2014

Jurisdiction:

Common Law

Before:

Adamson J

Decision:

(1)Order that upon the setting aside of the Freezing Notice made on 7 December 2012 and confirmed on 17 April 2013 in Local Court of New South Wales proceedings 2012/391745, pursuant to section 10A of the Criminal Assets Recovery Act 1990 (NSW) 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 Guy Bevan Williams (also known as Guye Beven Williams), including the interest in property in the property specified in the Schedule hereto.

(2)Order that the costs of this Notice of Motion be costs in the cause.

(3)Order pursuant to Rule 36.4(3) of the Uniform Civil Procedure Rules 2005 (NSW) that these orders are to take effect as of the date hereof.

Catchwords:

CRIMINAL LAW - application for criminal assets restraining order - reasonable grounds for suspicion that the defendant has been engaged in serious crime-related activity or crime-related activities

Legislation Cited:

Criminal Assets Recovery Act 1990 (NSW), ss 4, 6, 10A, 51
Drug Misuse and Trafficking Act 1985 (NSW), s 25
Uniform Civil Procedure Rules 2005, r 36.4

Category:

Procedural and other rulings

Parties:

New South Wales Crime Commission (Plaintiff)
Guy Bevan Williams (Defendant)

Representation:

Counsel:
Solicitors:

File Number(s):

2013/63602

Publication restriction:

Nil

Judgment

Introduction

1. By notice of motion filed in court on 4 August 2012 the plaintiff seeks various orders including an order pursuant to s 10A of the Criminal Assets Recovery Act 1990 (NSW) (the Act) that upon the setting aside of a freezing notice made on 7 December 2012 and confirmed on 17 April 2013 in proceedings 391745 of 2012 no person is to deal with the defendant's property. The order sought is to restrain dealings with any interest in the defendant's property set out in the Schedule to the notice of motion, which included shares held in a particular broking account and cash held in a Macquarie Bank Limited bank account.

Evidence

1. In support of its application the plaintiff relied on an affidavit of Jonathan Lee Spark sworn 25 July 2014.

1. Section 10A of the Act makes provision for these orders and imposes certain requirements before they may be granted. The plaintiff made its application today for an order under s 10A ex parte, as it is entitled to do under s 10A(1).

1. Mr Spark, who is an authorised officer of the plaintiff within the meaning of s 4(1) of the Act, deposes to his suspicion that the defendant had been engaged in serious crime-related activity or crime-related activities, being the supply of a prohibited drug (heroin, in an amount greater than or equal to a commercial quantity) contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (the drug offence). The drug offence falls within the definition of serious criminal offence pursuant to s 6(2)(b) of the Act, because s 6(3) provides that offences under s 25 of the Drug Misuse and Trafficking Act are drug trafficking offences.

1. On 11 February 2014 at Parramatta District Court the defendant was convicted of the drug offence. He was sentenced to a term of imprisonment of six years and six months that commenced on 5 December 2012 and is due to expire on 4 June 2019.

1. Section 10A(5) of the Act provides in substance that I am obliged to make the orders sought if the application is supported by an affidavit of an authorised officer stating that the officer suspects the defendant has engaged in a crime-related activity and setting out the grounds for the suspicion.

1. Documents provided by Macquarie Equities Limited to the plaintiff on 13 May 2013 indicate that the defendant holds shares in a Macquarie Equities Limited portfolio account (the broking account) that are itemised in the Schedule to the notice of motion.

1. On 21 July 2014 Macquarie Group provided the following information to the plaintiff pursuant to s 51 of the Act that:

(1)   As at 18 July 2014 the holdings balance of the broking account was $302,061.94.

(2)   The defendant holds the account specified in Item 2 of the Schedule (the Macquarie bank account) and, as at 18 July 2014 the balance of the Macquarie bank account was $40,136.95.

1. I consider that having regard to the matters contained in the affidavit there are reasonable grounds for such suspicion. In all the circumstances I am satisfied that Mr Spark's affidavit meets the requirements of s 10A(5) as to the matters which he suspects. I am also satisfied, having regard to the material in Mr Spark's affidavit, that there are reasonable grounds for Mr Spark's suspicion.

1. I do not consider that it would be appropriate to require the plaintiff to notify the defendant of the application under s 10A(4) of the Act. I accept Mr Spark's evidence as to the speed at which people can attempt to dispose of funds held in bank accounts or dispose of shares, thereby attempting to defeat the operation of the Act.

1. The defendant's assets that are listed in the Schedule to the notice of motion are currently the subject of the freezing notice referred to above. By email dated 22 July 2014 Mr Rees of the Director of Public Prosecutions has informed the plaintiff that the Director intends to set aside the freezing notice "in the near future".

Conclusion

1. In all the circumstances I consider it is appropriate to make the orders sought by the plaintiff in that matter. I note the undertaking given by the solicitor for the plaintiff, being the usual undertaking as to damages. On the basis of that undertaking I make orders in terms of paragraphs 1 to 3 of the draft minute of order provided to me by the plaintiff.

Orders

1. I make the following orders:

(1) Order that upon the setting aside of the Freezing Notice made on 7 December 2012 and confirmed on 17 April 2013 in Local Court of New South Wales proceedings 2012/391745, pursuant to section 10A of the Criminal Assets Recovery Act 1990 (NSW) 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 Guy Bevan Williams (also known as Guye Beven Williams), including the interest in property in the property specified in the Schedule hereto.

(2)   Order that the costs of this Notice of Motion be costs in the cause.

(3) Order pursuant to Rule 36.4(3) of the Uniform Civil Procedure Rules 2005 (NSW) that these orders are to take effect as of the date hereof.

**********

Decision last updated: 04 August 2014