New South Wales Crime Commission v Sun [2009] NSWSC 6

New South Wales Supreme Court

CITATION : New South Wales Crime Commission v Sun [2009] NSWSC 6

HEARING DATE(S) : 14 January 2009

JUDGMENT DATE : 14 January 2009

JUDGMENT OF : Harrison J

EX TEMPORE JUDGMENT DATE : 14 January 2009

DECISION : Orders pursuant to s 10 Criminal Assets Recovery Act 1990

CATCHWORDS : CRIMINAL ASSETS CONFISCATION - s 10 of the Criminal Assets Recovery Act 1990 – whether plaintiff's evidence disclosed reasonable grounds for a suspicion that the defendant had engaged in a serious crime related activity

LEGISLATION CITED : Criminal Assets Recovery Act 1990

CATEGORY : Principal judgment

CASES CITED : International Finance Trust Company Limited v New South Wales Crime Commission [2008] NSWCA 291 New South Wales Crime Commission v Vu & Tran (Adams J, 23 December 2008, unreported)

PARTIES : New South Wales Crime Commission (Plaintiff) Andrew Sun (Defendant)

FILE NUMBER(S) : SC 10179 of 2009

COUNSEL : P F Singleton (Plaintiff)

SOLICITORS : J M Giorgiutti, Solicitor for New South Wales Crime Commission (Plaintiff)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HARRISON J

14 January 2009

10179 of 2009 New South Wales Crime Commission v Andrew Sun

JUDGMENT – EX TEMPORE 1 HIS HONOUR: These are proceedings commenced by summons filed in court today pursuant to leave granted by me. By its summons, the plaintiff seeks an order pursuant to s 10 of the Criminal Assets Recovery Act 1990 ("the Act") that no person, other than a person or body having a superior title permitting it to do so, is to dispose of or attempt to dispose of, or otherwise to deal with or attempt otherwise to deal with, an interest in property (within the meaning of that expression as defined in s 7 of the Act) of the defendant. Ancillary orders are also sought. 2 In support of that application, the plaintiff relies upon an affidavit of Jonathan Lee Spark sworn 14 January 2009. It goes without saying that I have read that affidavit. For reasons that will become apparent, it is necessary briefly to refer to the matters to which Mr Spark deposes. 3 Mr Spark says, uncontroversially, that he is employed by the plaintiff as the Assistant Director, Financial Investigations, and is an authorised officer within the meaning of that expression in s 4(1) of the Act. That is to say, Mr Spark is a person authorised in writing by the plaintiff generally to act as an authorised officer for the purposes of s 10. 4 Mr Spark has been a financial investigator with the plaintiff since 1997. In that capacity and presumably during that time he has had access via computers to records held by the New South Wales Police Force and other similar information retrieval systems to which he specifically refers in his affidavit. 5 At paragraph 3 of his affidavit Mr Spark gives evidence in the following terms: "I suspect that [the defendant] has engaged in a serious crime-related activity or serious crime-related activities (within the meaning of 'serious crime-related activity' as defined in s 6 of the Act), namely, recklessly deal with the proceeds of crime contrary to s 193B (3) of the Crimes Act 1900 being an offence liable to imprisonment for 5 years or more involving money laundering and thereby falling within the definition of 'serious crime-related offence' as defined in s 6(2)(d) of the Act." 6 In the following paragraph Mr Spark then describes the basis upon which he says he holds that suspicion. He said that on 14 January 2009 he contacted Detective Anthony Volpe of the New South Wales Police Force via the New South Wales Police Force's internal telephone system and had a conversation with Detective Volpe in which the latter agreed to send him by facsimile a Facts Sheet relating to the arrest of the defendant. He received that Facts Sheet the same day and a copy of it is annexed to his affidavit. Mr Spark says that he has had regard to it. 7 Mr Spark continues that on the same day he had a telephone conversation with Detective Daniel Condon, during the course of which Detective Condon informed him that he had been involved in the police investigation into the activities of the defendant described in the Facts Sheet and that Detective Condon had himself assisted in drafting it. Mr Spark asked Detective Condon whether or not to the best of his knowledge and belief the contents of the Facts Sheet were true. Mr Spark says that Detective Condon replied that they were. Mr Spark further enquired of Detective Condon whether the Facts Sheet was prepared on the basis of information obtained by police as a result of the investigation that it describes. Detective Condon also replied "Yes." 8 Mr Spark deposed to a belief which he holds that Detective Condon's responses to the questions that he asked him, including but not limited to the ones I have set out, were true. 9 Mr Spark also said that on 14 January 2009 he conducted a search of the records of the Computerised Operational Policing System and located a record that revealed that on 9 January 2009 the defendant had been charged with the offences described in the Facts Sheet. Mr Spark annexes a copy of that record to his affidavit. 10 In applying for the orders sought by the plaintiff on an ex parte basis, Mr Singleton of counsel, who appeared for the plaintiff, quite properly drew to my attention a recent decision of Adams J in New South Wales Crime Commission v Vu & Tran (23 December 2008, unreported). Mr Singleton frankly conceded that the facts in that case were, for all relevant purposes but allowing for understandable differences, effectively identical with the facts of the present case. More particularly, the application in that case was made upon the basis of an affidavit sworn by Mr Spark in which he deposed to cognate facts and circumstances in a way not dissimilar to the present case. Adams J in that case rejected the plaintiff's application for an order under s 10 for any relief at all. 11 In proceedings before me, Mr Singleton also conceded that if the decision of Adams J were correct, the present application before me must fail. In aid of a submission that the plaintiff is entitled to the relief which it seeks, however, Mr Singleton contended that the decision of Adams J was plainly wrong and that in those circumstances ought not be followed by me in the present case. 12 For some time prior to the decision in International Finance Trust Company Limited v New South Wales Crime Commission [2008] NSWCA 291, applications of the type with which I am now dealing were customarily heard in chambers and were disposed of without reasons being given. Following that decision, it seems clear that such applications must now be made in open court and that reasons for whatever decision is arrived at must be provided. 13 A significant issue arising in that case was the admissibility of evidence tendered in support of the application for an order under s 10 of the Act. The learned President and her Honour Beazley JA came to the view that the evidence in that case was inadmissible and, accordingly, that the plaintiff was not entitled to the relief that it sought. However, they each expressed the view at pars [51] and [56] respectively that, if they were wrong about the admissibility of the evidence in that case, they agreed with the analysis of the Chief Judge at Common Law and with the conclusions that he reached about the reasonableness of the grounds for suspicion held by the equivalent deponent in that case. 14 The Chief Judge at Common Law discussed the sufficiency of the evidence for the deponent's suspicions at pars [117] and following and expressed his conclusions between pars [132] and [135] inclusive as follows: "[132] There can be no doubt that the matters to which Mr Moerman deposed justify the suspicion which he holds. An arrangement by which invoices are created which are utilised to falsely represent that monies have been paid and a business expense can legitimately be claimed for services which have not been rendered suggests at least to the level of suspicion that relevant offences have been committed.