NSW Crime Commission v Christopher Mihelic

This is an application brought by summons by the NSW Crime Commission (“the Commission”) seeking orders pursuant to s.10A of the Criminal Assets Recovery Act 1990 (“the Act”) to restrain any person from dealing in an interest in property, the property being that listed in three schedules to the summons. The owner of the property is Christopher Mihelic.

Section 10A provides for such applications to be heard ex parte, and this application proceeded in the absence of Mr. Mihelic.

The application is supported by an affidavit of Katie Elaine Bourne, a forensic accountant employed by the Commission, of 3 March 2015. Ms. Bourne, who is an authorised officer within the meaning of s.4(1) of the Act, deposes that, having had access to material produced as a consequence of the investigation conducted by the NSW Police into Mr. Mihelic, and to financial information relating to the defendant, she suspects Mr. Mihelic of involvement in serious crime related activities as defined by s.6, being the commission of offences of supplying a prohibited drug (s.25(1) of the Drugs Misuse and Trafficking Act 1985), and supplying commercial and large commercial quantities of a prohibited drug (s.25(2) of the same Act).

Each of these offences is a serious criminal offence as provided by s.6(2)(d) of the Act.

Ms. Bourne formed the suspicions she holds after having corresponded with the police officer in charge of the investigation into Mr. Mihelic’s drug related activity, and having seen charge details and a statement of facts against Mr. Mihelic. Copies of relevant documentation forms part of the evidence before the Court.

Having read the evidentiary material I am satisfied that the suspicions held by Ms. Bourne are reasonably held.

Section 10A(5) of the Act requires the Court to make a restraining order if the Court concludes that the suspicion held by the authorised officer is reasonably held.

I am also satisfied that the defendant is a resident of New South Wales, and that the property in respect of which the restraining order is sought is located in New South Wales.

There is an issue as to whether notice is to be given to the defendant before the Court makes an order (s.10A(4)), but the evidence before the Court, which I accept, is that property of the nature listed in the schedules can be rapidly disposed of by those inclined to do so. In all of the circumstances, it is appropriate to make the order prior to notice being given to the defendant.

The plaintiff is given leave to file in court the summons and supporting material.

I note the undertaking given by the Commission in the usual terms.

Upon the Plaintiff giving the usual undertaking as to damages (the giving of which by its solicitor is noted) and considering that, having had regard to the matters contained in the affidavit of Katie Elaine Bourne sworn 3 March 2015, there are reasonable grounds for the suspicions stated therein.

The Court orders: