NSW Crime Commission v Nehme

[2016] NSWSC 1410

Supreme Court

New South Wales

Medium Neutral Citation:	NSW Crime Commission v Nehme [2016] NSWSC 1410
Hearing dates:	30 September 2016
Date of orders:	30 September 2016
Decision date:	30 September 2016
Jurisdiction:	Common Law
Before:	Adamson J
Decision:	See paragraph [20]
Catchwords:	CRIMINAL LAW – ex parte – application for criminal assets restraining order
Legislation Cited:	Crimes Act 1990 (NSW), s 192E Criminal Assets Recovery Act 1990 (NSW), ss 7, 10A, 12
Cases Cited:	George v Rockett [1990] HCA 25; 170 CLR 104
Category:	Procedural and other rulings
Parties:	New South Wales Crime Commission (Plaintiff) Susan Nehme (Defendant)
Representation:	Counsel: A Bishop (solicitor) (Plaintiff)   Solicitors: New South Wales Crime Commission (Plaintiff)
File Number(s):	2016/292604

Judgment

Introduction

1. By summons filed on 30 September 2016, the plaintiff seeks various orders under the Criminal Assets Recovery Act 1990 (NSW) (the Act). All references to statutory provisions in these reasons are references to the Act unless otherwise stated.

2. The summons sought an order pursuant to s 10A restraining dealings with any interest in property, including certain property described in Schedule One to the summons; orders pursuant to s 12(1)(b)(i) authorising the examination of the defendant concerning her financial affairs, including the nature and location of any property in which she has an interest; an order pursuant to s 12(1)(c1) requiring the defendant to furnish to the plaintiff within 21 days a statement verified on oath setting out full particulars of all her property as set out in Schedule Two to the summons; and an order pursuant to s 28A that the defendant pay to the Treasurer an amount assessed by the Court as the value of the proceeds of her unexplained wealth (the unexplained wealth order).

3. The orders sought in the summons, apart from the unexplained wealth order, were sought ex parte on the day of filing the summons, 30 September 2016.

The evidence in support of the application

4. In support of its application the plaintiff relied on the following documents:

Affidavit of Jonathan Lee Spark sworn 29 September 2016; and

Statement of Facts and Circumstances relied on in an application for a restraining order and an unexplained wealth order pursuant to r 1.26 of the Uniform Civil Procedure Rules 2005 (NSW) dated 29 September 2016 (Statement of Facts and Circumstances).

Relevant statutory provisions

5. Section 10A relevantly provides:

“10A Proceedings for restraining orders

(1)   Application for order

The Commission may apply to the Supreme Court, ex parte, for a restraining order in respect of specified interests, a specified class of interests, or all the interests, in property of any person (including interests acquired after the making of the order).

…

(3)   The Commission may only apply for a restraining order that relates to interests in property derived from external serious crime related activity if the person who has the interests is domiciled in New South Wales or the property is situated in New South Wales.

(4)   Notice to affected person of application

Despite the application for a restraining order being made ex parte, the Supreme Court may, if it thinks fit, require the Commission to give notice of the application to a person who the Court has reason to believe has a sufficient interest in the application. A person who is required to be notified is entitled to appear and adduce evidence at the hearing of the application.

(5)   Determination of applications

The Supreme Court must make a restraining order if the application for the order is supported by an affidavit of an authorised officer stating that:

(a)   in the case of an application in respect of an interest referred to in subsection (1) - the authorised officer suspects that:

(i)   the person whose interest is the subject of the application has engaged in a serious crime related activity or serious crime related activities…

and stating the grounds on which that suspicion is based …

and the Court considers that, having regard to the matters contained in any such affidavit and any evidence adduced under subsection (4), there are reasonable grounds for any such suspicion.”

6. The plaintiff’s application for an order under s 10A was made ex parte, as it is entitled to do under s 10A(1). I considered the documents relied upon in support of the application in chambers.

Consideration

7. The plaintiff’s application is supported by the affidavit of Jonathan Lee Spark sworn 29 September 2016. Mr Spark, who is an authorised officer of the plaintiff within the meaning of s 4(1) of the Act, deposes to his suspicion that the defendant has engaged in serious crime-related activity or crime-related activities (as defined by s 6), namely dishonestly obtain financial advantage by deception contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW), which falls within the definition of “serious criminal offence” pursuant to s 6(2)(d) of the Act.

8. Mr Spark sets out the grounds for his suspicion in [4] of his affidavit. He deposed to communications with Detective Senior Constable Graham Baxter regarding the Facts Sheet and questions Mr Spark posed to Detective Baxter. Detective Baxter confirmed in an email to Mr Spark that he drafted the Facts Sheet and that it was, to the best of his knowledge and belief, true. Detective Baxter confirmed that the defendant was charged and that her legal representative had indicated at a hearing in the Local Court that a plea of guilty was likely. I note that the Director of Public Prosecutions has elected to have the matter proceed on indictment in the District Court.

9. Mr Spark inspected the plaintiff’s records which confirmed that the COPS data base had been inspected by one of the plaintiff’s officers and revealed that the defendant was charged on 24 February 2016 with offences specified in the Facts Sheet.

10. Mr Spark also deposed to investigations he has caused to be made into the defendant’s property interests as a result of which he has ascertained that the defendant is the registered owner of the property described in Schedule One to the summons, being a houseboat known as “Dream On”. Mr Spark deposed to his knowledge of the potential for persons who own such chattels to dispose of them in the absence of a restraining order.

11. Section 10A(5) provides, in substance, that I am obliged to make the order sought if the application is supported by an affidavit of an authorised officer stating that the officer suspects that the defendant has engaged in a crime-related activity and setting out the grounds for the suspicion. I consider that, having regard to the matters contained in the affidavit, there are reasonable grounds for any such suspicion.

12. In all the circumstances I am satisfied that Mr Spark’s affidavit meets the requirements of s 10A(5) as to the matters which he suspects.

13. I am also satisfied, having regard to Mr Spark’s affidavit, that there are reasonable grounds for his suspicion. I have been guided by what the High Court said in George v Rockett [1990] HCA 26; 170 CLR 104 at [14].

14. I do not consider that it would be appropriate to require the plaintiff to notify the defendant of the application under s 10A(4) in light of Mr Spark’s evidence. I accept Mr Spark’s evidence as to the speed with which marine vessels can be transferred (or notifications of disposal backdated). Such transfers have the effect of defeating the operation of the Act and restraining orders made under it.

15. The defendant is domiciled in New South Wales and the boat is situated in New South Wales. Accordingly, the Commission is entitled to make this application for a restraining order: s 10A(3).

16. The orders, other than the restraining order, are designed to ensure that the plaintiff is apprised of the full extent of the defendant’s property interests. These orders are, accordingly, ancillary to the restraining order which, in terms, restrains dealing with any interest the defendant may have in property as defined by s 7. The Statement of Facts and Circumstances states that the plaintiff also seeks, in its summons, an unexplained wealth order.

17. In all the circumstances, I consider it to be appropriate to make the orders.

18. I note the undertaking given by the solicitor for the plaintiff, being the usual undertaking as to damages.

19. On the basis of that undertaking I make orders in terms of the draft minute of order provided to me by the plaintiff, as set out below.

Orders

20. Upon the Plaintiff giving the usual undertaking as to damages (the giving of which by its solicitor being noted), I make the following 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 Susan Nehme, including the interest in property in the property specified in Schedule One hereto.

2. Pursuant to section 12(1)(b)(i) of the Criminal Assets Recovery Act 1990 Susan Nehme shall be examined on oath before a Registrar of the Court concerning her affairs, including the nature and location of any property in which she 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 12(1)(c1) of the Criminal Assets Recovery Act 1990 Susan Nehme shall furnish to the Plaintiff, within twenty one (21) days after service of a sealed copy of these orders on Susan Nehme, a statement verified by oath of Susan Nehme setting out the particulars sought in Schedule One hereto.

5. Liberty is granted to the Plaintiff and Susan Nehme to apply on three (3) days’ notice.

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

7. 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.

8. The balance of the Summons be listed for mention before the Common Law Duty Judge on 30 January 2017.

SCHEDULE ONE

The vessel described as “Dream On” with registration AFT798N being a 12.0 metre Cat – powered “Excel” vessel with HIN AUEWS07018A808 registered in the name of Susan Nehme.

SCHEDULE TWO

9. 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:

1. 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;

2. the location of the interest;

3. the name of the person or institution in whose custody title documents in respect of the interest are believed to be;

4. the approximate date of acquisition of the interest;

5. the source of funds used to acquire the interest.

10. Provide full particulars of your liabilities on both a capital and recurring basis, including, in relation to each liability:

1. a full description of the liability including the nature of that liability and the amount of that liability;

2. the name of the person or institution to which the liability is owed.

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Decision last updated: 05 October 2016