NSW Crime Commission v Rogers

[2018] NSWSC 1964

Supreme Court

New South Wales

Medium Neutral Citation:

NSW Crime Commission v Rogers [2018] NSWSC 1964

Hearing dates:

30 November 2018

Date of orders:

30 November 2018

Decision date:

30 November 2018

Jurisdiction:

Common Law

Before:

McCallum J

Decision:

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 Rosemary Margaret Rogers, including the interest in property in the property specified in Schedules One and Two hereto.

 

2. 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 the interest in property (within the meaning of “interest in property” as defined in section 7 of the Criminal Assets Recovery Act) of Anthony Thomas Rogers, in the property specified in Schedules One and Three hereto.

 

3 Pursuant to section 12(1)(b)(i) of the Criminal Assets Recovery Act 1990 Rosemary Margaret Rogers 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.

 

4. Pursuant to section 12(1)(b)(i) of the Criminal Assets Recovery Act 1990 Anthony Thomas Rogers 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.

 

5. Leave is granted to the Plaintiff to obtain from the Registry dates for the examinations ordered in Orders 3 and 4 above.

 

6. Pursuant to section 12(1)(c1) of the Criminal Assets Recovery Act 1990 Rosemary Margaret Rogers shall furnish to the Plaintiff, within twenty one (21) days after service of a sealed copy of these orders on Rosemary Margaret Rogers, a statement verified by oath of Rosemary Margaret Rogers setting out the particulars sought in Schedule Four hereto.

 

7. Pursuant to section 12(1)(c1) of the Criminal Assets Recovery Act 1990 Anthony Thomas Rogers shall furnish to the Plaintiff, within twenty one (21) days after service of a sealed copy of these orders on Anthony Thomas Rogers, a statement verified by oath of Anthony Thomas Rogers setting out the particulars sought in Schedule Four hereto.

 

8. Liberty is granted to the Plaintiff, Rosemary Margaret Rogers and Anthony Thomas Rogers to apply on three (3) days’ notice.

 

9. The balance of the summons be listed for directions before the Common Law Registrar at 9.00am on Monday 18 March 2019.

 

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

11. 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), s 10A
Crimes Act 1900 (NSW), s 249B

Category:

Procedural and other rulings

Parties:

NSW Crime Commission (plaintiff)
Rosemary Margaret Rogers (first defendant)
Anthony Thomas Rogers (second defendant)

Representation:

Counsel:
S Vorreiter (solicitor for the plaintiff)
No appearance for the defendants

  Solicitors:
NSW Crime Commission (plaintiff)

File Number(s):

2018/371294

Publication restriction:

None

Judgment ex tempore - revised

1. HER HONOUR: This is an application by the New South Wales Crime Commission for restraining orders pursuant to s 10A of the Criminal Assets Recovery Act 1990 (NSW). That section allows the Commission to make such an application to this Court ex parte. The section makes provision for the Court to require the Commission to give notice of the application to an interested person. However, for reasons which will become apparent, that is neither necessary nor appropriate in the circumstances of the present case.

2. The application relates to the conduct of the first defendant, Rosemary Rogers, who is to be charged with a series of offences of obtaining financial advantage by deception.

3. The second defendant is Anthony Rogers, her husband. In addition to the charges of obtaining a financial advantage by deception, there are charges of obtaining secret compensation contrary to s 249B of the Crimes Act1900 (NSW).

4. The Criminal Assets Recovery Act is prescriptive as to the course available to this Court when the Commission makes an application for a restraining order. The section provides that the Court must make an order if certain conditions are satisfied. It is clear that those conditions are satisfied in the present case and that the order must be made.

5. First, the application is supported by an affidavit sworn by an authorised officer, Ms Casey Bourne, sworn 28 November, 2018, as required by s 10A. Ms Bourne deposes to the fact that she suspects Mrs Rogers of having engaged in the offences to which I have referred. She gives the grounds for that suspicion. I am satisfied that having regard to the matters contained in Ms Bourne's affidavit there are reasonable grounds for that suspicion.

6. The suspicion is based on Ms Bourne's receipt of a copy of a facts sheet from police and her correspondence with the author of that statement. The statement, which is quite detailed, provides cogent evidence which if proved would establish the commission of the offences in question. In short, over a lengthy period of time, it is alleged that Ms Rogers whilst employed as the chief of staff to the CEO of the National Australia Bank received various payments and benefits from the sole director of a goods and services supply company, Human Group Pty Limited.

7. As to the application against Mr Rogers, the facts sheet does not suggest the commission of any offence by him. However, he is suspected of having acquired serious crime derived property within the meaning of the Act as a result of the serious crime related activity that Ms Rogers is alleged to have engaged in. The material establishes the requirements of s 10A and it follows in accordance with the scheme of the Act that I must make the restraining order sought.

8. The Commission also seeks examination orders and I am satisfied that it is appropriate to make those orders.

9. The Commission also seeks ancillary relief which is appropriate.

10. For those reasons, I grant leave to the Commission to file in Court the summons, statement of facts and circumstances and the affidavit of Katy Bourne sworn 28 November.

11. I make orders 1 to 11 in the form of the order provided by the Commission, as follows:

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 Rosemary Margaret Rogers, including the interest in property in the property specified in Schedules One and Two hereto.

2. 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 the interest in property (within the meaning of “interest in property” as defined in section 7 of the Criminal Assets Recovery Act) of Anthony Thomas Rogers, in the property specified in Schedules One and Three hereto.

3. Pursuant to section 12(1)(b)(i) of the Criminal Assets Recovery Act 1990 Rosemary Margaret Rogers 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.

4. Pursuant to section 12(1)(b)(i) of the Criminal Assets Recovery Act 1990 Anthony Thomas Rogers 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.

5. Leave is granted to the Plaintiff to obtain from the Registry dates for the examinations ordered in Orders 3 and 4 above.

6. Pursuant to section 12(1)(c1) of the Criminal Assets Recovery Act 1990 Rosemary Margaret Rogers shall furnish to the Plaintiff, within twenty one (21) days after service of a sealed copy of these orders on Rosemary Margaret Rogers, a statement verified by oath of Rosemary Margaret Rogers setting out the particulars sought in Schedule Four hereto.

7. Pursuant to section 12(1)(c1) of the Criminal Assets Recovery Act 1990 Anthony Thomas Rogers shall furnish to the Plaintiff, within twenty one (21) days after service of a sealed copy of these orders on Anthony Thomas Rogers, a statement verified by oath of Anthony Thomas Rogers setting out the particulars sought in Schedule Four hereto.

8. Liberty is granted to the Plaintiff, Rosemary Margaret Rogers and Anthony Thomas Rogers to apply on three (3) days’ notice.

9. The balance of the summons be listed for directions before the Common Law Registrar at 9.00am on Monday 18 March 2019.

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

11. 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.

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Decision last updated: 16 December 2018