NSW Crime Commission v Pearce

[2018] NSWSC 2014

Supreme Court

New South Wales

Medium Neutral Citation:

NSW Crime Commission v Pearce [2018] NSWSC 2014

Hearing dates:

18 December 2018

Decision date:

18 December 2018

Before:

McCallum J

Decision:

Grant leave to the Crime Commission to file in court the summons, statement of facts and circumstances relied on and the affidavit of Katie Elaine Bourne, sworn 18 December 2018.

I make orders 1 – 8 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 Matthew Shane Pearce, 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 Matthew Shane Pearce 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 12(1)(c1) of the Criminal Assets Recovery Act 1990 Matthew Shane Pearce shall furnish to the Plaintiff, within twenty one (21) days after service of a sealed copy of these orders on Matthew Shane Pearce, a statement verified by oath of Matthew Shane Pearce setting out the particulars sought in Schedule Two hereto.

 

5. The summons filed in these proceedings be listed for directions before the Common Law Registrar at 9am on Monday 18 March 2019.

 

6. Liberty is granted to the Plaintiff and Matthew Shane Pearce to apply on three (3) days’ notice.

 

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

8. 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 – application based on both past convictions and future charges – absence of adequate information in respect of future charges – requirement to make orders where conditions of statute satisfied

Legislation Cited:

Criminal Assets Recovery Act 1990 (NSW), s 10A
Drug Misuse and Trafficking Act 1985 (NSW), s 25(1), Schedule 1

Category:

Procedural and other rulings

Parties:

NSW Crime Commission (plaintiff)
Matthew Shane Pearce (defendant)

Representation:

Counsel:
S Santhikumar (plaintiff)
No appearance by defendant

  Solicitors:
NSW Crime Commission (plaintiff)

File Number(s):

2018/389305

Publication restriction:

None

Judgment ex tempore – revised

1. HER HONOUR: This is an application brought by the New South Wales Crime Commission for orders including a restraining order in respect of the interests in property of the defendant, Matthew Shane Pearce.

2. The application is brought under the Criminal Assets Recovery Act 1990 (NSW). Section 10A of that Act provides that the Commission may apply to this court for a restraining order ex parte. Section 10A(4) provides that, despite the making of an application ex parte, the Court may, if it thinks fit, require the Commission to give notice to a sufficiently interested person.

3. In the circumstances of this case, for the reasons identified in the affidavit in support of the application, I am satisfied that it is neither necessary nor appropriate to require that to occur. In particular, I accept the evidence of Ms Bourne in her affidavit sworn 18 December 2018 that notice of the order carries of a risk of dissipation of assets.

4. The Criminal Assets Recovery Act is highly prescriptive as to the course to be taken by the Court when an application for a restraining order is made. Section 10A(5) provides that the Court must make a restraining order if certain conditions are satisfied.

5. In the present case the material before the court indicates that the Commission proceeds on the strength of a suspicion that the defendant has engaged in a serious crime related activity or activities based on two entirely separate investigations. The first relates to charges for which the defendant has already been dealt with. The Commission would not, on the strength of those matters alone, have brought these proceedings. The second relates to charges expected to be laid against the defendant this week, based on an ongoing investigation.

6. The requirements of s 10A(5) are clearly met in respect of the past matters. In particular, the application is supported by an affidavit sworn by an authorised officer for the purposes of the act, namely, Ms Katie Bourne. Secondly, the affidavit establishes that Ms Bourne suspects the defendant of having engaged in serious crime related activity, namely, the supply of prohibited drugs contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). Thirdly, the affidavit gives the grounds for Ms Bourne’s suspicions. In each case (that is, in respect of both the past matters and the forthcoming charges), Ms Bourne’s suspicion is based on her having been provided with and accepting information concerning the past matters and the future matters.

7. The final requirement of the section is that there are grounds for the suspicion. In the case of the past matters, the defendant having been dealt with for those matters, there is plainly a reasonable basis for the suspicion that he has engaged in those offences. The offences fall within the suspicion deposed to by Ms Bourne in that the defendant was sentenced for charges of supply of anabolic or androgenic steroidal agents, contrary to s 25(1) of the Drug Misuse and Trafficking Act.

8. The question whether there are reasonable grounds for Ms Bourne’s suspicions concerning the forthcoming charges is more difficult. In respect of those matters, Ms Bourne has been provided with a document which on its face is described as an incomplete draft. As a fact sheet to support criminal charges, it is deficient in a number of respects. I say that without intending any criticism of the author since, as already noted, it is styled as a draft. But is clear enough that, if it were the final fact sheet, it would be inadequate in a number of respects.

9. The document appears to make allegations that the defendant has imported different drugs through the post by having them delivered to various names and addresses associated with him: see par 3 of the fact sheet. However, the fact sheet provides no material by reference to which one can assess the strength of the assertion that it was Pearce who arranged for those parcels to be delivered to those persons.

10. Next, pars 4 and 5 set out facts intended to support allegations of the supply of 50 litres of 1,4-Butanediol. That is not a prohibited import and it is not illegal to possess that chemical but it is listed on schedule 1 of the Drug Misuse and Trafficking Act and it is accordingly an offence to sell or purchase it.

11. The fact sheet asserts that the defendant and another person were observed “conspiring to import” that substance. However, it is not an offence to import it. Separately, the fact sheet asserts that the substance was supplied (evidently by the defendant and another person together) to a third person but there is nothing in the fact sheet to indicate how police know the substance supplied was 1,4-Butanediol.

12. The next allegation of supply of a prohibited drug in the draft fact sheet relates to quantities of cocaine, MDMA and steroids allegedly kept by the defendant at his home, but again there is no detail as to how police are aware that that is the case, the fact sheet stating only “police surveillance has identified Pearce keeping large quantities” of those drugs in his kitchen pantry.

13. The fact sheet further asserts that the defendant supplied to another person 8 ounces of cocaine and that, at his direction, 40 litres of 1,4-Butanediol was supplied to another person: see par 14 of the fact sheet. Again, however, there is no information on the strength of which it can be assessed or understood how police know those were the substances provided.

14. Finally, paragraph 17 of the fact sheet refers to police monitoring and recording the defendant supplying 15 grams of cocaine and 130 tablets of Dainabol to another person. Those substances were seized but have not yet been analysed.

15. In the result, had the application been based only on the draft fact sheet for the forthcoming matters, there may have been a real doubt as to whether it could be ascertained that there were reasonable grounds for Ms Bourne’s suspicion that the defendant has committed offences contrary to s 25(1) of the Drug Misuse and Trafficking Act. However, as I have already noted, Ms Bourne’s suspicion is also founded on the historical matters as to which it is clear that there are reasonable grounds.

16. In the circumstances, having regard to the prescriptive terms of the legislation, I must make the restraining order sought.

17. The Commission also seeks ancillary orders of the kind usually sought in these proceedings and I am satisfied that it is appropriate to make those orders. For those reasons, I grant leave to the Commission to file in Court the summons, statement of facts and circumstances relied on and the affidavit of Katie Elaine Bourne, sworn 18 December 2018.

18. I make orders 1 to 8 in the form of order handed up by the solicitor for the Commission dated today and affix the Court seal to the order.

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Decision last updated: 12 February 2019