New South Wales Crime Commission v Zaitony
[2013] NSWSC 613
•15 May 2013
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: New South Wales Crime Commission v Zaitony [2013] NSWSC 613 Hearing dates: 15 May 2013 Decision date: 15 May 2013 Jurisdiction: Common Law Before: Beech-Jones J Decision: Restraining order made.
Catchwords: Proceeds of crime - restraining order - no question of principle. Legislation Cited: - Criminal Assets Recovery Act 1990
- Drug Misuse and Trafficking Act 1985Category: Interlocutory applications Parties: New South Wales Crime Commission (Plaintiff)
Charlie Zaitony (Defendant)Representation: Counsel:
Ms E. Goh (Sol) (Plaintiff)
Ex parte (Defendant)
Solicitors:
New South Wales Crime Commission (Plaintiff)
Ex parte (Defendant)
File Number(s): 2013/152608
Ex tempore Judgment
The NSW Crime Commission applies ex parte for a number of orders under the Criminal Assets Recovery Act 1990 including, pursuant to s 10A, a restraining order in respect of all of the interests in property of the defendant, Charley Zaitony.
Subsection 10A(2) specifies that the application may be made ex parte. However, this is qualified by s 10A(4) which enables the Court, if it considers it appropriate, to require the Commission to give notice to the affected person. Mr Zaitony is not in Australia and there is good reason to believe that he has absconded the jurisdiction to avoid charges. In those circumstances, I do not consider that notice is required.
Section 10A(5) provides that the Court must make a restraining order if the various criteria are established. In this case, one of those criteria is that the application is supported by an affidavit of an authorised officer stating they suspect that the person whose interests are the subject of the application has engaged in serious crime related activity or activities, or that the person whose interests are the subject of the application has acquired serious crime derived property because of any such activity of the person or another person, and the grounds upon which that suspicion is based are stated in the affidavit.
In this regard, the Commission relies upon an affidavit sworn in support of the application by Jonathan Lee Spark dated 15 May 2013. The affidavit establishes that Mr Spark is an authorised officer for the purposes of the Act and suspects the defendant of having engaged in a serious crime related activity, namely the supply of a prohibited drug contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985. The prohibited drug suspected of being supplied is cocaine. The affidavit sets out the grounds for Mr Spark's submissions. This criterion has been satisfied.
Further, the Commission must also satisfy the Court that, having regard to the matters contained in Mr Spark's affidavit, there are reasonable grounds for the suspicion that he holds. In this regard, Mr Spark has attached a set of police facts concerning the defendant and a co-accused, which includes verbatim extracts of a conversation between them recorded pursuant to a Surveillance Devices Warrant. Having regard to that material, I am satisfied that the suspicions stated by Mr Spark are held on reasonable grounds. It follows that I will make the restraining order.
The other two substantive orders sought by the Commission are an order under s 12(1) of the Act that he be examined on oath, and an order under s 12(1)(c)(i) that he be directed to supply a statement verified by oath setting out the particulars of all of his interests in property.
Section 12 makes it clear that these orders can be made at the time the Court makes a restraining order. Subject to the question of their enforceability, as that would appear to be dependant upon Mr Zaitony returning to the jurisdiction, I consider that these orders should be made. If Mr Zaitony does return, whether voluntary or involuntary, it would be appropriate that they be enforced at that time. Accordingly, I will make orders 1 to 7 in the orders that will be signed by me and dated today.
I note the terms of the order involve the proffer of the usual undertaking as to damages.
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Amendments
24 May 2013 - Amended paragraphs: Cover sheer - name of solicitor amended to "New South Wales Crime Commission"
Decision last updated: 27 May 2013
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