NSW Crime Commission v Sean Anthony Smith

Supreme Court

New South Wales

Medium Neutral Citation: NSW Crime Commission v Sean Anthony Smith [2015] NSWSC 688
Hearing dates: 28 May 2015
Date of orders: 28 May 2015
Decision date: 28 May 2015
Jurisdiction: Common Law
Before: Hamill J
Decision:
Restraining orders made on usual undertaking as to damages

Catchwords: CIVIL LAW – Criminal assets – restraining orders – no question of principle
Legislation Cited: Criminal Assets Recovery Act 1990
Uniform Civil Procedure Rules 2005
Category: Principal judgment
Parties: Plaintiff - NSW Crime Commission
Defendant - Sean Anthony Smith
Representation: Solicitors:
Ms Miranda for the New South Wales Crime Commission

File Number(s): 2015/00158742

EX TEMPORE Judgment

HIS HONOUR: The plaintiff, the New South Wales Crime Commission seeks restraining orders under s 10A of the Criminal Assets Recovery Act 1990 (“CARA”). It brings its application by summons filed in court this morning supported by a statement of facts and circumstances signed by the solicitor Mr Goh and an affidavit of Jonathan Lee Spark with a number of associated annexures.
The affidavit of Mr Spark sets out his belief that the defendant engaged in serious crime related activity and sets out the grounds for that belief. In particular Mr Spark relies upon a statement of facts prepared by the New South Wales Police Force. That statement of facts sets out the details of this investigation into a drug manufacturing operation and indicates that the defendant was heard on a listening device to be present in, and discussing the processes of, what might be called, a meth lab on a rural property.
Based on the material in the facts sheet I am satisfied that there are reasonable grounds for the suspicion attested to by Mr Spark and in those circumstances s 10A(5) is in mandatory terms and I must make the restraining order.
Accordingly I make the orders which are contained in the short minutes of order. I will date and sign those and have them sealed and order that those orders should take effect forthwith.

Upon the Plaintiff giving the usual undertaking as to damages (the giving of which by its solicitor being noted) and

Considering that, having had regard to the matters contained in the affidavit of Jonathan Lee Spark sworn 25 May 2015, there are reasonable grounds for the suspicion stated therein,

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 Sean Anthony Smith, including the interest in property in the property specified in the Schedule hereto.

2. Liberty is granted to the Plaintiff and Sean Anthony Smith to apply on three (3) days' notice.

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

4. 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.

SCHEDULE

1. The whole of the property described as Lot 3 in Deposited Plan 547120 at Freemans Reach, Local Government Area Hawkesbury, Parish of Currency, County of Cook also known as 542 Terrace Road, Freemans Reach, New South Wales, registered in the name of Sean Anthony Smith.

2. The whole of the property described as Land described in Schedule of Parcels, being Lots 9-10 Sec. 27 in Deposited Plan 1480, at Riverstone, Local Government Area Blacktown, Parish of St Matthew, County of Cumberland also known as 9 Woodland Street, Riverstone, New South Wales, registered in the name of Sean Anthony Smith.

3. The whole of the property described as Lot 117 in Deposited Plan 1035232 at Stony Creek, Local Government Area Singleton, Parish of Bulga, County of Hunter, Parish of Wareng, County of Hunter also known as Lot 117 Commission Road, Howes Valley New South Wales, registered in the name of Sean Anthony Smith.

4. The whole of the property described as Allotment 15 Deposited Plan 2087 in the area named Christies Beach, Hundred of Noarlunga, also known as 27 Taunton Parade, Christies Beach, South Australia, registered in the names of Maxwell Shannon Smith and Sean Anthony Smith.

5. The whole of the property described as Lot 2060 on Deposited Plan 211054 also known as 6 Melia Street, Rangeway, City of Greater Geraldton, Western Australia, registered in the name of Sean Anthony Smith

6. 200 shares in Cyclone Recycling Pty Ltd held in the name of Sean Anthony Smith.

7. 2006 Chrome Horse Flash motorcycle, with NSW registration SFD06, registered in the name of Cyclone Recycling Pty Ltd.

8. 2009 Nissan Navara utility, with NSW registration BJQ30K, registered in the name of Cyclone Recycling Pty Ltd.

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The matter before the court involved a dispute between the NSW Crime Commission and Sean Anthony Smith. The Commission sought to have various assets restrained under the Proceeds of Crime Act 2002 (NSW), asserting that these assets were proceeds of criminal conduct. The dispute was heard and determined in the NSW Supreme Court. The Court was tasked with deciding whether the Commission had demonstrated that the assets in question were indeed proceeds of crime and thus subject to restraint under the Act.

The central legal issues before the court were whether the Commission had sufficiently proven that the assets were proceeds of crime and whether the application for restraining orders was just and equitable. The court had to examine the evidence presented by the Commission, assess the nature and extent of the criminal conduct, and determine whether the orders sought were proportionate and appropriate. Additionally, the court considered whether the restraining orders were necessary to prevent the dissipation or utilisation of criminal assets.

The court found that the Commission had established, on the balance of probabilities, that the assets were proceeds of crime. The evidence presented demonstrated a clear connection between the assets and criminal activities, satisfying the criteria under the Act. The court further determined that the application for restraining orders was both just and equitable, considering the need to prevent the dissipation of criminal assets. The orders were deemed necessary to protect the interests of the community and to ensure that Smith could not benefit from his criminal activities. The court concluded that the application met the statutory requirements and granted the restraining orders as sought by the Commission.

The court ordered that various specified assets be restrained and directed that they be held in escrow pending further orders. The court also directed that Smith provide a detailed accounting of the assets and any income generated from them. These orders effectively prevent Smith from accessing or disposing of the restrained assets without the court's approval, reinforcing the objectives of the Proceeds of Crime Act.

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established

Medium Neutral Citation:	NSW Crime Commission v Sean Anthony Smith [2015] NSWSC 688
Hearing dates:	28 May 2015
Date of orders:	28 May 2015
Decision date:	28 May 2015
Jurisdiction:	Common Law
Before:	Hamill J
Decision:	Restraining orders made on usual undertaking as to damages
Catchwords:	CIVIL LAW – Criminal assets – restraining orders – no question of principle
Legislation Cited:	Criminal Assets Recovery Act 1990 Uniform Civil Procedure Rules 2005
Category:	Principal judgment
Parties:	Plaintiff - NSW Crime Commission Defendant - Sean Anthony Smith
Representation:	Solicitors: Ms Miranda for the New South Wales Crime Commission
File Number(s):	2015/00158742