Restraining Order Issued for Suspected Serious Criminal Activity

The court granted a restraining order and an unexplained wealth order under the Criminal Assets Recovery Act 1990 based on the suspicion of the defendant engaging in serious criminal activity, namely obtaining a financial advantage by deception.

Supreme Court New South Wales

Medium Neutral Citation: New South Wales Crime Commission v [NAME] [2018] NSWSC 1723 Hearing dates: 07 August 2018 Date of orders: 07 August 2018 Decision date: 07 August 2018 Jurisdiction: Common Law Before: Rothman J Decision: [ADDRESS] makes orders in accordance with the Consent Orders initialled, signed and sealed on 7 August 2018. Catchwords: CRIMINAL ASSETS – serious criminal offence suspected – defendant charged with obtaining financial advantage by deception – suspicion of authorised officer reasonably based – defendant charged with index offence – interim restraining order under s 10A of the Criminal Assets Recovery Act 1990 and ancillary orders sought and granted. Legislation Cited: Criminal Assets Recovery Act 1990 (NSW), ss 10A, 10B, 12, 28A Crimes Act 1900 (NSW), s 192E Criminal Code Act 1995 (Cth), s 134.2 Category: Consequential orders (other than Costs) Parties: New South Wales Crime Commission (Plaintiff) [NAME] (Defendant) Representation: Solicitors: [redacted] Ex parte (Defendant) File Number(s): 2018/242992

Ex Tempore Judgment 1. HIS HONOUR: Before the Court is an application for orders pursuant to s 10A of the Criminal Assets Recovery Act 1990 (NSW), hereinafter "the Act", by which the New South Wales Crime Commission, hereinafter "the Commission" applies for a restraining order in respect of all the interests in property of the defendant [NAME].

2. The plaintiff, the Commission, relies upon the affidavit sworn in support of the application, being the affidavit of [NAME] sworn 7 August 2018. That affidavit establishes that [NAME] is an authorised officer for the purposes of the Act, and that she suspects [NAME] in having engaged in serious crime-related activity, namely obtaining a financial advantage by deception either or both from the Commonwealth and/or otherwise, contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW) and also contrary to s 134.2 of the Criminal Code Act 1995 (Cth), and gives the grounds for [NAME]'s said suspicions.

3. The facts and circumstances on which the Commission relies in its application for a restraining order are the fact of the suspicion held by [NAME], that she suspects [NAME] of having engaged in serious crime-related activity, namely the offence. [NAME] has been provided with and accepts a draft Police Facts Sheet that describes the suspected serious criminal activity in which [NAME] suspects [NAME] to have engaged. I have read that fact sheet. [NAME] has ascertained that [NAME] will be charged with the offences described in the facts sheet. 4. [NAME] has been provided with and accepts documents from the New South Wales Police which include documents and statements from [NAME] in relation to [NAME]'s history of receiving rental subsidies. [NAME] has had regard to Land and Registry Services records regarding [NAME]'s property ownership.

5. There are reasonable grounds for [NAME]'s suspicion that [NAME] has engaged in serious crime-related activity, namely the offence under s 192E of the Crimes Act.

6. The Commission, by its Summons, is also seeking in respect of [NAME] an unexplained wealth order pursuant to s 28A of the Act. The Commission provides the facts and circumstances upon which it relies for the seeking of that unexplained wealth order. It is unnecessary to recite those facts and circumstances at this point in time. 7. [ADDRESS] is satisfied that the requirements of the Criminal Assets Recovery Act for the making of an order, being a restraining order under s 10A of the Act have been satisfied. [ADDRESS] is also satisfied that the requirements for the making of an order under s 12(1) of the Act are appropriate to allow the completion of the sale of the [NAME] property which is mentioned in the affidavit of [NAME] to which earlier reference has been made. 8. [ADDRESS] is also satisfied that it is appropriate, if not required, that the remaining property to which mention is made in the Schedule, pursuant to the terms of s 10B of the Act, be paid by bank cheque to the [NAME] to be held until further order. 9. [ADDRESS] also orders pursuant to s 12(1)(b) that the defendant be examined on oath before a Registrar of Court including concerning the nature and location of her assets, and that pursuant to subsection (c)(i) of s 12(1) that the defendant, [NAME], furnish the plaintiff within 21 days after service of these orders, a statement verified on oath setting out the particulars of the nature and extent of her property; the full description of her property, including the nature and interest and estimated value; the location of the interest; the name of the person or institution in whose custody title deeds in respect of the interest are believed to be; the approximate date of the acquisition of the interest; and the source of funds used to acquire the interest.

10. The aforesaid material will include the provision of full particulars of liabilities on both a capital and recurring basis, including a full description of the liability and the name of the person or institution to which it is owed.

11. On the basis of the foregoing, the Court makes the orders handed to the Court, dated, initialled and signed today's date, being: Orders under s 10A restraining the use of the property described; Orders under s 12 of the Act, restraining the dealing with the property as a result of the sale of the [NAME] property: Orders under s 12(1) that the proceeds after those matters, relating to the discharge of any registered mortgage and reasonable costs associated with the sale, be paid to the [NAME] by bank cheque; and the Orders under s 12(1)(b) as to the nature of interest and liabilities.

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