NSW Crime Commission v Young

[2024] NSWSC 1255

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

NSW Crime Commission v Young [2024] NSWSC 1255

Hearing dates:

31 July 2024

Date of orders:

31 July 2024

Decision date:

31 July 2024

Jurisdiction:

Common Law

Before:

Garling J

Decision:

1. Notice of Motion filed 26.7.24 be, and hereby is, dismissed.

2. Order the applicants (Mr Young and Ms Waugh) to pay the costs of NSW Crime Commission of the Notice of Motion filed 26.7.24.

3. Direct that examination listed for today and tomorrow are to continue.

Catchwords:

CRIME – Confiscations – Restraining order – Unexplained wealth order – Order for examination under oath – Motion brought by the defendant seeking a permanent stay of the proceedings – Motion dismissed.

Legislation Cited:

Criminal Assets Recovery Act 1990

Cases Cited:

Not Applicable

Texts Cited:

Not Applicable

Category:

Procedural rulings

Parties:

NSW Crime Commission (P)
Shaun Young (D)

Representation:

Counsel:
Ms Barros Goncalves (P)
Self Represented (D)

Solicitors:
Confiscations, NSW Crime Commission (P)

File Number(s):

23/246377

Publication restriction:

Not Applicable

EX TEMPORE JUDGMENT

1. These proceedings were commenced by the NSW Crime Commission, (“the Commission”) on 2 August 2023 against Mr Sean Anthony Young as the defendant. The proceedings commenced by Summons on that day sought a series of orders pursuant to the Criminal Assets Recovery Act 1990 (“the Act”).

2. By way of final relief, the Summons sought an order which can be referred to in shorthand as an “Unexplained Wealth Order pursuant to s 28A of the Act”. That order sought that the defendant, Mr Young, pay to the Treasurer an amount to be assessed by the Court. As well, the Summons sought an interlocutory order pursuant to s 10A of the Act, which had the effect of precluding any person disposing of or attempting to dispose of or otherwise dealing with any interest in property of Mr Young within the statutory definition contained in s 7 of the Act, including any interest in the property specified in the schedule to the Summons.

3. That property was described as amounting to cash totalling a little over $1.65 million, casino chips in an amount of approximately $178,000, and funds held in a nominated casino account in an amount of about $200,000.

4. That restraining order was made on 21 September 2023, and remains in place.

5. The Summons also sought that each of Mr Young (the defendant), Ms Keisha Waugh and Mr Leo Lewin be examined on oath pursuant to ss 12.1(b)(i) and (ii) of the Act.

6. On 21 September 2023, Campbell J dealt with the interlocutory orders sought in the Summons. He made restraining orders under s 10A of the Act because he was satisfied that there were reasonable grounds for the requisite suspicion that the defendant, Mr Young, had engaged in a serious crime‑related activity within the meaning of the Act. He also made an order for the examination upon oath of Mr Young.

7. The day before that hearing, Mr Young filed an application by way of Notice of Motion supported by an affidavit to which he deposed, seeking orders which were, in effect, for a permanent stay of the Commission's substantive proceedings.

8. On 1 November 2023, Mr Young's application was dismissed by Wright J.

9. After a series of interlocutory hearings before the Registrar and McNaughton J, on 22 April 2024, the Commission sought orders for the examination on oath of Ms Waugh concerning her affairs, including the nature and location of any property in which she or the defendant had an interest. Button J made those orders on that day.

10. The orders were acted upon by a Deputy Registrar of the Court who, on 14 June 2024, issued orders for the examination of Ms Waugh today, 31 July 2024, and examination of Mr Young tomorrow, 1 August 2024.

11. On 26 July 2024, the defendant and Ms Waugh filed a Notice of Motion. It contained in 28 numbered paragraphs, various prayers for relief, assertions of law and fact, and, as well, argument.

12. The Notice of Motion has been listed urgently before me as the Duty Judge. It was not accompanied by any affidavit and neither of the applicants, Mr Young and Ms Waugh, have sought to put any evidence other than the contents of the Notice of Motion and two attached documents that are described in this way:

“Securities listed by statement for deposit into court without order in virtue of the Trustee Act [RSBC] 1996 Chapter 464".

13. The documents are in substance reproduced copies of two birth certificates, one in respect of the defendant, Mr Young, being a New South Wales birth certificate, and the other in respect of Ms Waugh, being a Victorian birth certificate.

14. Given that Ms Waugh's examination pursuant to the order of Button J is due to take place today, and that Mr Young's examination is to take place tomorrow, the substance and effect of the orders sought by the defendant Mr Young, and Ms Waugh, are to be found in paragraphs 2 and 3 of the Notice of Motion. They are in effect in identical terms. I will quote order 3, which relates to Mr Young. It says:

“The plaintiffs are seeking a discretionary order to stay execution of an order of the Court made on 21 September 2023 in case number 2023/246377 concerning the attendance of Shaun Anthony Young before a registrar of the Court in Sydney at 11am on Thursday 1 August 2024 and at any adjourned dates thereof for examination 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."

15. A similar stay of execution of the relevant order is sought by Ms Waugh insofar as it is directed to her. Of course, there will be some minor differences, because her examination was fixed to take place today.

16. I invited Mr Young and Ms Waugh, although there was no affidavit setting out any matter of fact or relevant circumstance, to tell me what their submissions were, and the basis of any order sought to stay the execution of the examination order against each of them.

17. I confess that I found significant difficulty following the logic and content of the submissions of Ms Waugh and Mr Young. Insofar as I could understand them, and assisted by the contents of the numerous paragraphs of the Notice of Motion, it seems to me that in reliance on Canadian legislation described as the “Law and Equity Act” and described as the “Trustee Act”, it is argued that in some way the Court ought look upon the defendants from an equitable perspective, that is to say, that they are trustees of a trust or, alternatively, they are, in relation to a trust, in a position of a cestuis que trust or in some other way obliged by an equitable security with respect to the property that may be the subject of the examination orders, and that viewed through the prism of the application and the principles of equity, they ought not be required to attend the examination and provide answers to questions which they may be asked.

18. It may be, although this was not immediately apparent, that the defendants also rely upon the fact that any such trust is governed by the laws of British Columbia, being a province of the Commonwealth of Canada, and that, accordingly, the International Convention on the Law as applicable to Trust Rules and their recognition, pursuant to legislation entitled the “International Trusts Act”, applies and extends to New South Wales.

19. I have read carefully prior to coming into, and since being in Court, the contents of the entire Notice of Motion. I have to say that it is simply gibberish sprinkled with pseudo-legal words and expressions and provides no basis at all known to law to recognise any right in accordance with laws and principles of equity or any statute binding in New South Wales to substantiate the assertions made, nor to stay or set aside the examination orders.

20. Examination Orders made under the Act are made specifically because the Court is empowered by the Act to make those orders. The Parliament has, by passing legislation which is well within its power, determined that assets can, and should be, the subject of restraint and forfeiture to the Crown where the relevant officer has reasonable grounds for a suspicion that the property subject of the orders is within the statutory meaning the proceeds of crime. Where a restraining order has been made, the Parliament has provided as an adjunct to that order, and for the purposes of either its enforcement, its extension or its reduction, that individuals may be examined on oath as a consequence of an order made by the Court.

21. The Court has exercised the power to make examination orders, first in respect of Mr Young by Campbell J on 21 September 2023, and then on 22 April 2024 by Button J in respect of Ms Waugh. Their Honours were entitled by the legislation to each make the Orders which they did. The material placed before them was sufficient to satisfy them that those Orders should be made. No appeal has been brought against the making of those Orders, nor has leave to appeal been sought with respect to making those Orders. All that has happened is that once the time has arrived for the examinations to occur, the defendants have sought to stay the Orders.

22. A stay of such orders is a form of relief which is not granted lightly in circumstances where the orders have been lawfully made and no appeal has been brought to set them aside. Nor has there been any timely application within the rules to either of the Judges making the orders to reconsider the orders and set them aside. And as is obvious, the time within which either an appeal or an application to the Judge to set aside the orders, which is permitted by the rules, has long since expired.

23. The fact is this, the orders were lawfully and properly made; no basis has been shown on the material before me for a stay of the orders; no basis has been shown to set them aside; and no basis has been shown to stay the proceedings generally.

24. Whether or not in due course at a final hearing an Unexplained Wealth Order is made of the kind sought in the amended Summons, will be a matter to be determined at any such hearing. But the fact is, the defendants are under a legal obligation to attend the examinations which have been fixed in accordance with the orders of the Court which were properly made, and no basis has been shown to set aside those orders.

Orders

25. I make the following orders:

1. Notice of Motion filed 26 July 2024 be, and hereby is, dismissed.

2. Order the applicants, Mr Young and Ms Waugh, to pay the costs of the New South Wales Crime Commission of the Notice of Motion filed 26 July 2024.

3. Direct that examination listed for today and tomorrow are to continue.

**********

Amendments

09 October 2024 - Typographical error on coversheet.

10 October 2024 - Typographical error on coversheet.

Decision last updated: 10 October 2024