New South Wales Crime Commission v Young

[2023] NSWSC 1376

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crime Commission v Young [2023] NSWSC 1376

Hearing dates:

21 September 2023

Date of orders:

21 September 2023

Decision date:

21 September 2023

Jurisdiction:

Common Law

Before:

Campbell J

Decision:

Restraining order made in accordance with short minute of order. Examination orders against third parties that were not served with notice are not made.

Catchwords:

CRIME — confiscations — application for examination — application for restraining order — acquitted by jury in relation to a charge but there remain reasonable grounds for suspicion on the civil standard — application for examination of third parties not served rejected

Legislation Cited:

Crimes Act 1900 (NSW) ss 59, 93T, 193C

Criminal Assets Recovery Act 1990 (NSW) ss 4, 6, 10A, 12,13, 13A, 28A

Category:

Procedural rulings

Parties:

New South Wales Crime Commission (Plaintiff)
Shaun Anthony Young (Defendant)

Representation:

Solicitors:
New South Wales Crime Commission, Legal (Plaintiff)
No appearance (Defendant)

File Number(s):

2023/00246377

ex tempore JUDGMENT (revised)

1. By summons filed on 2 August 2023, the New South Wales Crime Commission, which I will refer to as the Commission, is seeking relief against the defendant, Shaun Anthony Young, under the provisions of the Criminal Assets Recovery Act 1990 (NSW).

2. By way of final relief, the Commission seeks an assessment order under the provisions of s 28A of the Act and by way of interim relief, a restraining order under s 10A, together with ancillary relief, including an order for the compulsory examination of Mr Young on oath or affirmation before a registrar of the Court in accordance with the provisions of s 12(1)(b)(i). The case is a little out of the ordinary in some respects, which I will refer to in the course of these reasons.

3. The Court is fully empowered under s 10A(1) to proceed with the Commission's application on an ex parte basis unless, under s 10A(4), it forms the view that notice should be given to a person who appears to have an interest in the property before the order is made. Because of the somewhat unusual circumstances of this case, a decision was apparently made by the Commission to serve the summons and supporting documentation upon the defendant prior to moving the Court for orders and, indeed, as recently as Monday of this week, Mr Young appeared before Dhanji J in response to the summons by Mr Condon of Senior Counsel, instructed by Mr Mohomed Abbas, solicitor.

4. When this matter was called for mention at the commencement of the list this morning, Mr Ahmed, solicitor, who is employed by Mr Abbas, did me the courtesy of informing me that his firm no longer acted for Mr Young in relation to these proceedings brought by the Commission. He told me that the firm's instructions were terminated yesterday. The firm remains instructed in what I will call the companion proceedings brought by Mr Young against the State of New South Wales and other state instrumentalities, being proceedings number 2023/00012849 in this Court. Those proceedings have been on foot for a little while and it is uncertain to me whether it was the bringing and maintaining of those proceedings which prompted the commencement of the Commission's proceedings. But it is unhelpful for me to speculate in that regard or even relevant to do so.

5. Mr Ahmed informed me, in answer to my question, that when the matter was before Dhanji J on Monday, although represented by senior counsel and instructing solicitors, Mr Young was not present at Court. However, I am well satisfied, given his appearance by counsel and solicitor on Monday, that he is aware of this adjourned hearing date in relation to the Commission's application for a restraining order.

6. I am also aware, from having considered the transcript before Dhanji J, that senior counsel, with respect, quite properly made certain statements in relation to the Commission being in a position to satisfy the preconditions prescribed in s 10A for the making of a restraining order. The only issue seemed to be about the other ancillary relief. I am satisfied it is appropriate for me to proceed with the matter. I am satisfied that the Court has power to proceed ex parte in any event, but I am also well satisfied that Mr Young has had reasonable notice of the Commission's application and the basis upon which it would be advanced. I am well satisfied that he knew, and had reasonable notice, that the proceedings would be dealt with today.

7. I should observe - and nothing turns on this - that the only reason they were not dealt with by Dhanji J on Monday was because an application was made on behalf of Mr Young for Dhanji J to recuse himself. The basis of that application was that his Honour, when at the Bar, had appeared for Mr Young, on a Supreme Court bail application in relation to money laundering criminal proceedings which are relevant to the grounds upon which the Commission moves. Quite properly, his Honour recused himself, if I may say so, with respect. In any event, I am satisfied that there is no want of procedural fairness in me dealing with the matter today.

8. The Commission moves on the affidavit of Ryan James Bull affirmed on 2 August 2023. I am satisfied from the contents of the affidavit that Mr Bull, who is the acting director of forensic accountancy in the Commission's Financial Investigation Division, is an authorised officer within the meaning of s 4 of the Act and that he is expressly authorised in writing by the Commission to act as an authorised officer for the purposes of s 10A and Part 4 of the Act.

9. From his affidavit, I am satisfied that Mr Bull suspects that Mr Young has engaged in serious crime-related activities as defined in s 6 of the Act. Those activities involve three allegations of criminal offence. The first relates to a conviction for assault occasioning actual bodily harm contrary to s 59 Crimes Act 1900 (NSW), which is a serious indictable offence, being an offence punishable by five years’ imprisonment or more; and also a conviction for participating in a criminal group, contrary to s 93T Crimes Act. That is an offence which falls within s 6(2) (g)(iii) of the Act.

10. Perhaps more controversial is Mr Bull's suspicion that Mr Young has engaged in the serious criminal activity of dealing with property suspected of being the proceeds of crime contrary to s 193C Crimes Act. I say that because Mr Young stood trial in the District Court Newcastle before his Honour Judge Whitford and a jury commencing on 2 March 2022 on that very charge and the subject matter of that charge in fact related to the property which is defined in schedule 1 to the summons. It is also the property that Mr Young seeks to recover by way of the companion proceedings. It is common ground that Mr Young was acquitted of that charge by the jury's verdict. In that regard, it is proper to point out that the definition of "serious crime-related activity" in s 6 of the Act extends to criminal conduct even if the person, whose interest in property is the subject of the application, has been tried and acquitted of that charge: see s 6(1)(b).

11. It is also a matter of interest in the particular circumstances of this case that the property referred to in schedule 1 of the summons, and as I have said which is the property Mr Young is seeking to recover in the companion proceedings, was the subject of previous proceedings under the Act which proceedings were finalised on 16 April 2018 by the making of a forfeiture order under s 22 of the Act. Mr Young was not a party to those proceedings.

12. Returning to Mr Bull's affidavit, I am satisfied that he has fully set out the grounds for his suspicions in paragraphs 10 and 11 of his affidavit. The question which arises for my determination under s 10A(5), is whether I am satisfied that there are reasonable grounds for Mr Bull's suspicion. Certainly, in relation to the two offences of which Mr Young has been convicted, there can hardly be any question about whether there are reasonable grounds for Mr Bull's suspicion. And in that regard he has annexed to his affidavit a certificate of conviction from the District Court Newcastle in relation to the s 93T offence and a certificate of conviction of the Local Court sitting at Newcastle in relation to the s 59(1) offence.

13. So far as the money laundering or s 193C offence is concerned, Mr Bull has had regard to the records of the Office of the Director of Public Prosecutions in relation to the trial, including the indictment, the Crown Case Statement and the transcript of the proceedings.

14. While it may seem unusual that a judge could form the opinion that there are reasonable grounds for a suspicion that a person has committed or engaged in activity of a criminal nature of which they have been acquitted, the provisions of the Act allow, by necessary implication, that conclusion given that s 6, which defines "serious crime-related activity", contemplates that very outcome. And as Ms O'Kane submitted earlier today, it is not unusual in civil proceedings that a person, on the balance of probabilities, may have been found to engage in criminal activity of which they had already been acquitted by a jury, bound to apply the stringent criminal standard of proof of beyond reasonable doubt.

15. Having considered for myself the material attached to Mr Bull's affidavit, I am satisfied that there was a strong factual basis for bringing the prosecution against Mr Young. I do not, by that expression, call into question the verdict of the jury, but I am satisfied that there is a strong basis for believing that he was the person who provided the funds to the other persons under whose control the funds were at the time they were seized by police in October 2021.

16. There is no doubt that, at the trial, a specific defence provided by the legislation, that is to say by way of summary, of reasonable and honest belief was run on behalf of Mr Young and, undoubtedly, the jury were not satisfied beyond reasonable doubt that the Crown had excluded that belief. However, it seems to me, looking at the matter from the point of view of these civil proceedings, that the material attached to Mr Bull's affidavit does, I repeat, provide reasonable grounds for the suspicion he has expressed.

17. Having come to that conclusion and noting that the Commission has proffered the usual undertaking as to damages, I am bound by law to make the restraining order sought, and I will do so in due course.

18. The Commission is making an application for ancillary orders under s 12 of the Act specifically for the examination of Mr Young on oath concerning his interests in property and also an order under s 12(1)(c1) that he provide a statement on oath setting out particulars of his interest in property. Once again, I am satisfied that Mr Young knew that these orders were being sought against him; that he could have appeared today to put forward any argument against those orders being made, but he has chosen not to do so and, in the circumstances, I am satisfied that it is appropriate to make the orders for his provision of the required statement of particulars on oath in accordance with schedule 2 of the summons and also for his examination before a registrar of the Court about his affairs, including the nature and location of any property in which he has an interest, and I will make those orders in due course.

19. The Commission also seeks orders for examination of other persons about Mr Young's interest in property. Those persons are a Mr Leo Lewin and Ms Keisha Waugh. Mr Lewin is an associate of Mr Young who gave evidence in Mr Young's case at his trial to the substantial effect that he had loaned the $2 million in cash to Mr Young and that formed the basis of Mr Young's defence; clearly, the jury was not satisfied beyond reasonable doubt that Mr Lewin's evidence was not true.

20. Ms Keisha Waugh is Mr Young's de facto partner and, on the Crown case against Mr Young, it was said that Ms Waugh was in a certain motor vehicle at the time the sum of $2 million was handed over to a co-accused, Mr Koh, who pleaded guilty to the money laundering charges. He was the person in whose immediate control the money was at the time of the police raid at his hotel room at Star Casino.

21. Neither Mr Lewin nor Ms Waugh have notice of this application. It may be Ms Waugh knows something about it, being Mr Young's partner. However, they have not been served with any process informing them that the Court would be considering the Commission's application.

22. Sections 13 and 13A of the Act are relevant in this regard because s 13 abrogates legal professional privilege or another legal obligation of non-disclosure. However, the compulsorily disclosed information cannot be used against the person in any civil or criminal proceedings except for a prosecution for giving or providing false or misleading information. It can also be used in proceedings under the Act.

23. Section 13A abrogates the privilege against self-incrimination but information compulsorily extracted in the course of the examination cannot be used against the person providing the information except on a prosecution for giving false evidence to the Court in the course of the examination. And those matters do provide some protection to these persons.

24. It is not said against either Mr Lewin or Ms Waugh that either of them have committed or been involved in any serious crime-related activity, however, obviously being subject to a compulsory examination is a stressful thing and obviously questions may be asked which will require them to divulge information which might otherwise have been the subject of a relevant privilege.

25. There is force in what Ms O'Kane says about it, that is to say, if I refuse to make the orders today, a motion will be filed seeking them at a later time and, in all probability, the Court will make the orders even over any objection of Mr Lewin and Ms Waugh. However, it seems to me that the processes of the Court are important. It is no mere going through the motions to give a person, who is not said to have committed any criminal activity, notice of an order sought against them and the opportunity to be heard in relation to whether or not the Court should make the order. On that basis, I will decline to make the orders sought against Mr Lewin and Ms Waugh today. My refusal today does not preclude the Commission from making separate applications which should be served upon Mr Lewin and Ms Waugh, by way of notice of motion, in these proceedings.

26. For those somewhat longer than usual reasons, I propose to make orders in accordance with the short minutes of order handed up by Ms O'Kane, signed by me and dated today, and the orders may be entered forthwith.

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Decision last updated: 14 November 2023