NSW Crime Commission v Christopher Mihelic
[2015] NSWSC 166
•05 March 2015
Supreme Court
New South Wales
- Amendment notes
Medium Neutral Citation: NSW Crime Commission v Christopher Mihelic [2015] NSWSC 166 Hearing dates: 5 March 2015 Date of orders: 05 March 2015 Decision date: 05 March 2015 Jurisdiction: Common Law Before: Wilson J Decision: Application granted – see [12] for orders
Catchwords: CRIMINAL LAW – confiscation of proceeds of crime – question of reasonable suspicion - restraining orders made ex parte Legislation Cited: Criminal Assets Recovery Act 1990 Category: Procedural and other rulings Parties: NSW Crime Commission (plaintiff)
Christopher Mihelic (defendant)Representation: Solicitors: Ms. E Goh (plaintiff)
File Number(s): 2015/66433 Publication restriction: None
Judgment
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This is an application brought by summons by the NSW Crime Commission (“the Commission”) seeking orders pursuant to s.10A of the Criminal Assets Recovery Act 1990 (“the Act”) to restrain any person from dealing in an interest in property, the property being that listed in three schedules to the summons. The owner of the property is Christopher Mihelic.
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Section 10A provides for such applications to be heard ex parte, and this application proceeded in the absence of Mr. Mihelic.
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The application is supported by an affidavit of Katie Elaine Bourne, a forensic accountant employed by the Commission, of 3 March 2015. Ms. Bourne, who is an authorised officer within the meaning of s.4(1) of the Act, deposes that, having had access to material produced as a consequence of the investigation conducted by the NSW Police into Mr. Mihelic, and to financial information relating to the defendant, she suspects Mr. Mihelic of involvement in serious crime related activities as defined by s.6, being the commission of offences of supplying a prohibited drug (s.25(1) of the Drugs Misuse and Trafficking Act 1985), and supplying commercial and large commercial quantities of a prohibited drug (s.25(2) of the same Act).
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Each of these offences is a serious criminal offence as provided by s.6(2)(d) of the Act.
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Ms. Bourne formed the suspicions she holds after having corresponded with the police officer in charge of the investigation into Mr. Mihelic’s drug related activity, and having seen charge details and a statement of facts against Mr. Mihelic. Copies of relevant documentation forms part of the evidence before the Court.
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Having read the evidentiary material I am satisfied that the suspicions held by Ms. Bourne are reasonably held.
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Section 10A(5) of the Act requires the Court to make a restraining order if the Court concludes that the suspicion held by the authorised officer is reasonably held.
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I am also satisfied that the defendant is a resident of New South Wales, and that the property in respect of which the restraining order is sought is located in New South Wales.
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There is an issue as to whether notice is to be given to the defendant before the Court makes an order (s.10A(4)), but the evidence before the Court, which I accept, is that property of the nature listed in the schedules can be rapidly disposed of by those inclined to do so. In all of the circumstances, it is appropriate to make the order prior to notice being given to the defendant.
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The plaintiff is given leave to file in court the summons and supporting material.
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I note the undertaking given by the Commission in the usual terms.
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Upon the Plaintiff giving the usual undertaking as to damages (the giving of which by its solicitor is noted) and considering that, having had regard to the matters contained in the affidavit of Katie Elaine Bourne sworn 3 March 2015, there are reasonable grounds for the suspicions stated therein.
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The Court orders:
(i)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 Christopher Mihelic, including his interest in property in the property specified in Schedule One hereto and Schedule Two hereto.
(ii)Pursuant to subparagraph 12 (1) (b) (i) of the Criminal Assets Recovery Act 1990 Christopher Mihelic 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.
(iii)Pursuant to subparagraph 12 (1) (b) (ii) of the Criminal Assets Recovery Act 1990 Sonya Mihelic shall be examined on oath before a Registrar of the Court concerning the affairs of Christopher Mihelic, including the nature and location of any property in which Christopher Mihelic has an interest.
(iv)Leave is granted to the Plaintiff to obtain from the Registry dates for the examinations ordered in Orders 2 and 3 above.
(v)Pursuant to paragraph 12 (1) (c1) of the Criminal Assets Recovery Act 1990 Christopher Mihelic shall furnish to the Plaintiff, within twenty one (21) days after service of a sealed copy of these orders on Christopher Mihelic, a statement verified by oath or affirmation of Christopher Mihelic setting out the particulars sought in Schedule Three hereto.
(vi)Liberty is granted to the Plaintiff and Christopher Mihelic to apply on three (3) days’ notice.
SCHEDULE ONE
The whole of the property described as Lot 19 in Strata Plan 2817, Local Government Area of Rockdale also known as Unit 8/69-71 Alfred Street, Ramsgate, New South Wales and registered in the names of Christopher Mihelic and Sonya Mihelic as joint tenants.
SCHEDULE TWO
1.Funds held in Australia and New Zealand Bank account numbered 01 2402 2694 21107 in the name of Christopher Mihelic.
2.Funds held in Australia and New Zealand Bank account numbered 01 2402 4386 83395 in the name of Christopher Mihelic and Sonya Mihelic.
3.Funds held in Australia and New Zealand Bank account numbered 01 2310 5804 58703 in the name of Christopher Mihelic.
4.Funds held in Australia and New Zealand Bank account numbered 01 2402 9059 45703 in the name of Christopher Mihelic.
SCHEDULE THREE
1. Provide full particulars of the nature and extent of all your interests in property (within the meaning of "interest in property" as defined in section 7 of the Criminal Assets Recovery Act 1990), including in relation to each item of property:
(a) a full description of your interest in the property, including the nature of that interest and, where possible, the estimated value (or in the case of bank accounts or deposits — the estimated balance) of that interest;
(b) the location of the interest;
(c) the name of the person or institution in whose custody title documents in respect of the interest are believed to be;
(d) the date or approximate date of acquisition of the interest; and
(e) the source of funds used to acquire the interest.
2. Provide full particulars of your liabilities on both a capital and recurring basis, including, in relation to each liability:
(a) a full description of the liability including the nature of that liability and the amount of that liability;
(b) the name of the person or institution to whom or to which the liability is owed.
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Amendments
09 March 2015 - Form of orders amended
Decision last updated: 09 March 2015
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