NSW Crime Commission v Agius

[2018] NSWSC 1957

Supreme Court

New South Wales

Medium Neutral Citation:

NSW Crime Commission v Agius [2018] NSWSC 1957

Hearing dates:

29 November 2018

Date of orders:

29 November 2018

Decision date:

29 November 2018

Jurisdiction:

Common Law

Before:

McCallum J

Decision:

Grant leave to the Plaintiff to file in court the summons dated 28 November 2018, the statement of facts and circumstances and the affidavit of Katie Elaine Bourne sworn 28 November 2018.

 

I make orders 1 – 9 made in the orders provided by the Commission:

 

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 Craig Anthony Agius, 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 Craig Anthony Agius 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 Craig Anthony Agius in the property specified in Item 1 of Schedule One hereto.

 

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

 

6. The summons filed in these proceedings be listed for directions before the Common Law Registrar at 9am on Monday 25 March 2019.

 

7. Liberty is granted to the Plaintiff and Craig Anthony Agius to apply on three (3) days’ notice.

 

8. The costs of obtaining these orders shall be costs in the cause.

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.

Catchwords:

PROCEEDS OF CRIME – application for restraining orders – ex parte application - consideration of requirement to give notice of application to interested persons

Legislation Cited:

Criminal Assets Recovery Act 1990 (NSW), ss 10A, 12(1)(b)(i)

Category:

Procedural and other rulings

Parties:

NSW Crime Commission (plaintiff)
Craig Anthony Agius (defendant)

Representation:

Counsel:
S Santhikumar (plaintiff)
No appearance by defendant

  Solicitors:
NSW Crime Commission (plaintiff)

File Number(s):

2018/369013

Publication restriction:

None

Judgment ex tempore – revised

1. HER HONOUR: This is an application brought by the New South Wales Crime Commission for a restraining order pursuant to s 10A of the Criminal Assets Recovery Act 1990 (NSW). That section provides that the Commission may apply for such an order ex parte. Section 10A(4) provides that the Supreme Court may, if it thinks fit, require the Commission to give notice of the application to a sufficiently interested person.

2. The affidavit in support of the application addresses reasons for not requiring the Commission to give notice of the application. Although the affidavit establishes that the defendant is presently in custody, having been refused bail following his arrest for the charges that have given rise to the present application, I am persuaded that it is neither necessary nor appropriate to require the Commission to give notice of the application for the reasons identified in the affidavit.

3. Section 10A is otherwise quite prescriptive as to the course to be taken by the Court upon an application being made by the Commission. If the Court is satisfied of the matters listed in the section, the Court must make a restraining order. The conditions listed in the section are clearly satisfied in the present case.

4. The application is supported by an affidavit of Katy Elaine Bourne, who is an authorised officer for the purposes of the Act. Ms Bourne states that she suspects the defendant, Mr Agius, of having engaged in serious crime-related activity based on the matters with which he has been charged, which are drug offences relating to his cultivation of what is alleged to be more than a commercial quantity of a prohibited plant, namely, cannabis.

5. The affidavit states the grounds on which that suspicion is based which, in short, are that Ms Bourne has received a copy of the facts sheet relied upon by police in support of the criminal charges and has ascertained from the author of that statement his belief in the truth of its contents, which she accepts.

6. The facts sheet discloses that police arrested Mr Agius after executing a search warrant at his home during which he appears to have been entirely co-operative in the process of showing police where various drugs, cash and firearms were stored by him and making full admissions as to his commission of the offences.

7. I consider having regard to the matters contained in Ms Bourne's affidavit that there are reasonable grounds for the suspicion to which she deposes.

8. It follows in accordance with the scheme of the Act that I must make order 1 in the Form of Order provided today by the Commission.

9. The Commission also seeks today an order pursuant to s 12(1)(b)(i) of the Criminal Assets Recovery Act for the examination of Mr Agius on oath. I am satisfied that it is appropriate to make that order (order 2).

10. Orders 3 to 9 in the Form of Order handed up are consequential and I make those orders.

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Decision last updated: 16 December 2018