Application of the New South Wales Crime Commission; In the matter of Nossiter [2022] NSWSC 1471

Supreme Court New South Wales

Medium Neutral Citation: Application of the New South Wales Crime Commission; In the matter of Nossiter [2022] NSWSC 1471 Hearing dates: 13 October 2022 Date of orders: 13 October 2022 Decision date: 13 October 2022 Jurisdiction: Common Law Before: Hamill J Decision: (1) Restraining orders and ancillary orders made pursuant to the Criminal Assets Recovery Act 1990 (NSW) (2) Costs in the cause Catchwords: PROCEEDS OF CRIME – restraining order – ex parte – reasonable grounds for suspecting property to be proceeds of crime– serious crime-related activity – supply of prohibited drugs – refusal of order for examination of defendant Legislation Cited: Criminal Assets Recovery Act 1990 (NSW), s 10A Category: Principal judgment Parties: New South Wales Crime Commission (Plaintiff) Benjamin Howard Anthony Nossiter (Defendant) Representation: Counsel: S Askew (Plaintiff) File Number(s): 2022/304526

EX TEMPORE JUDGMENT (REVISED) 1. The New South Wales Crime Commission ("Crime Commission") brings proceedings by summons against the defendant, Benjamin Howard Anthony Nossiter, seeking a number of orders under the Criminal Assets Recovery Act 1990 (NSW). 2. In support of the application the Crime Commission relies on a statement of facts and circumstances and the affidavit of Mr Ryan James Bull, which in turn annexes a body or volume of documents said to establish reasonable grounds for the suspicion Mr Bull says he has. I accept he has the suspicion that the defendant was engaged in serious crime-related activity, specifically the supply of prohibited drugs. Indeed, Mr Benjamn Nossiter stands charged with a series of offences, set out in several Court Attendance Notices. Exhibited before me are those notices, a New South Wales Police fact sheet and some of the evidence upon which the prosecution in the criminal proceedings will rely on, including a series of messages which have every hallmark of being code. 3. When I say code, I mean messages deceptively purporting to be negotiations and discussions about the sale of motor cars. The prosecution in the criminal proceedings hopes to prove the code is: cars are references to drugs and the sale prices refer to quantities of cash. The fact sheet also demonstrates the exchange of reasonably substantial sums of money and searches locating telephones, with what might be thought to be highly incriminating evidence against Mr Nossiter. There is also evidence derived from the Australian Federal Police concerning the importation of chemicals in large quantities, known to be involved in the manufacture of drugs the prosecution in the criminal proceedings will say Mr Nossiter was supplying. 4. The summons seeks orders for restraint of certain property, and it is alleged Mr Bull suspects there to be an interest in that property caught by the provision in s 10A of the Act. The Crime Commission also seeks ancillary orders, in particular for the examination on oath of Mr Nossiter and another person, along with verified statements by Mr Nossiter. In the usual interchange between myself and the helpful representative of the Crime Commission, the ancillary orders were not pressed. I take the view that such orders do not need to be made at the time of the making of the restraining order, which I am satisfied should be made ex parte. The Act allows the application for the examination order and verified statement order to be made at any time after the application is made or at the same time. The Crime Commission, realistically, has not pressed for those orders today. 5. I am satisfied of the matters set out in s 10A(5): Mr Bull is an authorised officer, he suspects that a person, or Mr Nossiter, is involved in serious crime-related activity, and that the property subject to the summons is serious crime-derived property. Insofar as it is necessary for me to do so, I am satisfied there are reasonable grounds for those suspicions. 6. Accordingly, I make orders in accordance with orders 1, 5, 7, 8, 9 and 10 of the Crime Commission's draft orders. I do not make orders 2, 3, 4 and 6. The final order, order 10, is that the orders are to take effect forthwith.