NSW Crime Commission v Nehme

By summons filed on 30 September 2016, the plaintiff seeks various orders under the Criminal Assets Recovery Act 1990 (NSW) (the Act). All references to statutory provisions in these reasons are references to the Act unless otherwise stated.

The summons sought an order pursuant to s 10A restraining dealings with any interest in property, including certain property described in Schedule One to the summons; orders pursuant to s 12(1)(b)(i) authorising the examination of the defendant concerning her financial affairs, including the nature and location of any property in which she has an interest; an order pursuant to s 12(1)(c1) requiring the defendant to furnish to the plaintiff within 21 days a statement verified on oath setting out full particulars of all her property as set out in Schedule Two to the summons; and an order pursuant to s 28A that the defendant pay to the Treasurer an amount assessed by the Court as the value of the proceeds of her unexplained wealth (the unexplained wealth order).

The orders sought in the summons, apart from the unexplained wealth order, were sought ex parte on the day of filing the summons, 30 September 2016.

In support of its application the plaintiff relied on the following documents:

Section 10A relevantly provides:

The plaintiff’s application for an order under s 10A was made ex parte, as it is entitled to do under s 10A(1). I considered the documents relied upon in support of the application in chambers.

The plaintiff’s application is supported by the affidavit of Jonathan Lee Spark sworn 29 September 2016. Mr Spark, who is an authorised officer of the plaintiff within the meaning of s 4(1) of the Act, deposes to his suspicion that the defendant has engaged in serious crime-related activity or crime-related activities (as defined by s 6), namely dishonestly obtain financial advantage by deception contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW), which falls within the definition of “serious criminal offence” pursuant to s 6(2)(d) of the Act.

Mr Spark sets out the grounds for his suspicion in [4] of his affidavit. He deposed to communications with Detective Senior Constable Graham Baxter regarding the Facts Sheet and questions Mr Spark posed to Detective Baxter. Detective Baxter confirmed in an email to Mr Spark that he drafted the Facts Sheet and that it was, to the best of his knowledge and belief, true. Detective Baxter confirmed that the defendant was charged and that her legal representative had indicated at a hearing in the Local Court that a plea of guilty was likely. I note that the Director of Public Prosecutions has elected to have the matter proceed on indictment in the District Court.

Mr Spark inspected the plaintiff’s records which confirmed that the COPS data base had been inspected by one of the plaintiff’s officers and revealed that the defendant was charged on 24 February 2016 with offences specified in the Facts Sheet.

Mr Spark also deposed to investigations he has caused to be made into the defendant’s property interests as a result of which he has ascertained that the defendant is the registered owner of the property described in Schedule One to the summons, being a houseboat known as “Dream On”. Mr Spark deposed to his knowledge of the potential for persons who own such chattels to dispose of them in the absence of a restraining order.

Section 10A(5) provides, in substance, that I am obliged to make the order sought if the application is supported by an affidavit of an authorised officer stating that the officer suspects that the defendant has engaged in a crime-related activity and setting out the grounds for the suspicion. I consider that, having regard to the matters contained in the affidavit, there are reasonable grounds for any such suspicion.

In all the circumstances I am satisfied that Mr Spark’s affidavit meets the requirements of s 10A(5) as to the matters which he suspects.

I am also satisfied, having regard to Mr Spark’s affidavit, that there are reasonable grounds for his suspicion. I have been guided by what the High Court said in George v Rockett [1990] HCA 26; 170 CLR 104 at [14].

I do not consider that it would be appropriate to require the plaintiff to notify the defendant of the application under s 10A(4) in light of Mr Spark’s evidence. I accept Mr Spark’s evidence as to the speed with which marine vessels can be transferred (or notifications of disposal backdated). Such transfers have the effect of defeating the operation of the Act and restraining orders made under it.

The defendant is domiciled in New South Wales and the boat is situated in New South Wales. Accordingly, the Commission is entitled to make this application for a restraining order: s 10A(3).

The orders, other than the restraining order, are designed to ensure that the plaintiff is apprised of the full extent of the defendant’s property interests. These orders are, accordingly, ancillary to the restraining order which, in terms, restrains dealing with any interest the defendant may have in property as defined by s 7. The Statement of Facts and Circumstances states that the plaintiff also seeks, in its summons, an unexplained wealth order.

In all the circumstances, I consider it to be appropriate to make the orders.

I note the undertaking given by the solicitor for the plaintiff, being the usual undertaking as to damages.

On the basis of that undertaking I make orders in terms of the draft minute of order provided to me by the plaintiff, as set out below.

Upon the Plaintiff giving the usual undertaking as to damages (the giving of which by its solicitor being noted), I make the following orders: