NSW Crime Commission v Ilic

[2018] NSWSC 1966

Supreme Court

New South Wales

Medium Neutral Citation:

NSW Crime Commission v Ilic [2018] NSWSC 1966

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 and Statement of Facts and Circumstances dated 29 November 2018 and the affidavit of Katie Elaine Bourne sworn 28 November 2018.

 

Make orders 1- 9 in the short minutes of order handed up:

  

The Court orders:

 

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 Branimir Ilic, 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 Branimir Ilic 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 Branimir Ilic in the property specified in Schedule One hereto.

 

5. Pursuant to section 12(1)(c1) of the Criminal Assets Recovery Act 1990 Branimir Ilic shall furnish to the Plaintiff, within twenty one (21) days after service of a sealed copy of these orders on Branimir Ilic, a statement verified by oath of Branimir Ilic 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 18 March 2019.

 

7.   Liberty is granted to the Plaintiff and Branimir Ilic 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(4), 12(1)(b)(i)
Crimes Act 1900 (NSW), s 193C(1)

Category:

Procedural and other rulings

Parties:

NSW Crime Commission (plaintiff)
Branimir Ilic (defendant)

Representation:

Counsel:
S Santhikumar (plaintiff)
No appearance by defendant

  Solicitors:
NSW Crime Commission (plaintiff)

File Number(s):

2018/369068

Publication restriction:

None

Judgment ex tempore – revised

1. HER HONOUR: Before the Court is an application by the New South Wales Crime Commission for a restraining order against Branimir Ilic. The Criminal Assets Recovery Act 1990 (NSW) permits the Commission to make such an application ex-parte but also makes provision in s 10A(4) of the Act for the Court to require the Commission to give notice to a sufficiently interested person. For reasons to which I will come, I do not think it is either necessary or appropriate to require the Commission to give such notice.

2. Section 10A is prescriptive as to the circumstances in which a restraining order is to be made. The section provides that the Court must make an order if certain matters are established by the affidavit relied upon in support of the order.

3. The present application is supported by an affidavit of Katy Elaine Bourne sworn 27 November 2018. Ms Bourne is an authorised officer within the meaning of the Act. Her affidavit deposes to her suspicion that the defendant has engaged in a serious crime related activity, namely, dealing with property suspected of being the proceeds of crime contrary to s 193C(1) of the Crimes Act 1900 (NSW). The basis for her suspicion is her receipt of the Facts Sheet relied upon by police when the defendant was charged with that offence, and her communications with a person associated with the preparation of that Facts Sheet. Ms Bourne deposes to believing in the truth of the information provided to her by that officer.

4. In short, the Facts Sheet establishes that Mr Ilic had the misfortune to be pulled over by traffic police while travelling from Melbourne to Sydney in a rental car with over a million dollars in cash in the car. He would not tell police the name of the person who gave him the cash or the person to whom it was to be delivered, but did confirm that he was driving from Melbourne to Sydney for the purpose of meeting an undisclosed person who was to take possession of the cash. There is plainly a reasonable basis in those circumstances for the suspicion that the cash represents the proceeds of crime.

5. I am satisfied having regard to the matters contained in Ms Bourne's affidavit that there are reasonable grounds for her suspicion deposed to in the affidavit. It follows in accordance with the scheme of the Act that I must make the restraining order sought.

6. The Commission also seeks an examination order pursuant to s 12(1)(b)(i) of the Criminal Assets Recovery Act, and I am satisfied that it is appropriate to make that order.

7. The unusual circumstances of the case, and in particular the lack of information available to police as to the source of the cash, also informed the decision to which I referred earlier not to require the Commission to give notice of the application to any person.

8. Orders 3 to 9 in the form of order provided by the Commission are consequential and I am satisfied that it is appropriate to make those orders.

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Decision last updated: 16 December 2018