NSW Crime Commission v Hauville

[2018] NSWSC 1965

Supreme Court

New South Wales

Medium Neutral Citation:

NSW Crime Commission v Hauville [2018] NSWSC 1965

Hearing dates:

29 November 2018

Date of orders:

29 November 2018

Decision date:

29 November 2018

Jurisdiction:

Common Law

Before:

McCallum J

Decision:

I grant leave to the plaintiff to file in court the Summons, Statement of Facts and Circumstances and the affidavit of Jonathan Lee Spark sworn 27 November 2018.

 

I make orders 1 – 9 in the orders handed up:

 

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 James Robert Hauville, 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 James Robert Hauville 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 James Robert Hauville 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 James Robert Hauville shall furnish to the Plaintiff, within twenty one (21) days after service of a sealed copy of these orders on James Robert Hauville, a statement verified by oath of James Robert Hauville 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 James Robert Hauville 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

Legislation Cited:

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

Category:

Procedural and other rulings

Parties:

NSW Crime Commission (plaintiff)
James Robert Hauville (defendant)

Representation:

Counsel:
S Santhikumar (plaintiff)
No appearance by defendant

  Solicitors:
NSW Crime Commission (plaintiff)

File Number(s):

2018/368995

Publication restriction:

None

Judgment ex tempore – revised

1. HER HONOUR: Before the Court is an application by the New South Wales Crime Commission against Mr James Hauville seeking a restraining order pursuant to s 10A of the Criminal Assets Recovery Act 1990 (NSW).

2. The section allows the Commission to make an application ex parte, subject to the Court's discretion to require the Commission to give notice of the application to any person with a sufficient interest. The circumstances of the present case as deposed to in the supporting affidavit persuade me that it is neither necessary nor appropriate to give notice of the application to Mr Hauville, the defendant. Another potentially interested person disclosed in the affidavit is his wife, but I do not think it is necessary or appropriate to require the Commission at this stage to give notice of the application to her, having regard to the matters deposed to at paragraph 12 of the supporting affidavit.

3. The Act provides the Court must make a restraining order sought by the Commission under s 10A if certain conditions are satisfied. It is clear that those conditions are satisfied in the present case. In particular, the application is supported by the affidavit of Jonathan Lee Spark, sworn 27 November 2018. Mr Spark is an authorised officer for the purposes of the legislation.

4. Mr Spark's affidavit deposes to his suspicion that the defendant has engaged in serious crime related activity, namely, drug offences and knowingly dealing with proceeds of crime. The specific offences are listed in the statement of facts and circumstances filed with the application.

5. Mr Spark's affidavit gives the ground for his suspicions, which in short are based on his having received the police fact sheet relied upon in support of the criminal charges and ascertaining through an exchange with the author of the statement that it may be relied upon as true and correct to the best of the knowledge of the relevant police officers.

6. The fact sheet makes plain there are reasonable grounds for the suspicion deposed to by Mr Spark. In particular, the fact sheet sets out the circumstances of a relatively straightforward execution of a search warrant at Mr Hauville's home during which Mr Hauville cooperated with police in showing them where various drugs and cash were to be found.

7. Mr Hauville's criminal proceedings have come before the Court for mention only. It is not clear whether he will plead guilty to the offences but, in any event, the fact sheet provides an adequate basis for Mr Spark's suspicions. It follows in accordance with the scheme of the Act that I am required to make the restraining order sought.

8. The Commission also seeks an examination order pursuant to s 12(1)(b)(i) of the Criminal Assets Recovery Act. I am satisfied it is appropriate to make that order together with the consequential orders sought in paragraphs 3‑9 in the form of order provided by the Commission.

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Decision last updated: 16 December 2018