Director of Public Prosecutions v Wayne Cleveland [2010] NSWSC 67

New South Wales Supreme Court

CITATION : Director of Public Prosecutions v Wayne Cleveland [2010] NSWSC 67

HEARING DATE(S) : 25 January 2010 JURISDICTION : Common Law

JUDGMENT OF : McDougall J at 1

EX TEMPORE JUDGMENT DATE : 25 January 2010

DECISION : Restraining orders made. Ancillary orders including orders for examination under s 180, should not be made until the time within which Mr Cleveland may apply to revoke the restraining orders has expired.

CATCHWORDS : CRIMINAL LAW - ex parte application for restraining orders against disposition of property - The Proceeds of Crime Act 2002 (Cth) s 18 - defendant charged with conspiracy to import commercial quantity of heroin - whether reasonable grounds for suspicion that defendant has committed a serious offence - property mortgaged to bank - restraining order granted but exception given to bank. - CRIMINAL LAW - ex parte application for examination orders relating to restraining orders - The Proceeds of Crime Act 2002 (Cth) s 180 - ancillary orders not granted.

LEGISLATION CITED : The Proceeds of Crime Act 2002 (Cth)

CATEGORY : Procedural and other rulings

PARTIES : Director of Public Prosecutions (Plaintiff) Wayne Dennis John Cleveland (Defendant)

FILE NUMBER(S) : SC 2010/21997

COUNSEL : C Lawrence (Solicitor)

SOLICITORS : Department of Public Prosecutions

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

McDOUGALL J

25 January 2010 (ex tempore – revised 25 January 2010)

2010/21997 DIRECTOR OF PUBLIC PROSECUTIONS v WAYNE DENNIS JOHN CLEVELAND JUDGMENT

1 HIS HONOUR: This is an application for restraining orders under section 18 of The Proceeds of Crime Act 2002 (Cth) (the Act) and for ancillary orders. The orders are sought ex parte. The application is supported by an affidavit of an "authorised officer" of the Australian Federal Police. 2 Section 18 of the Act requires a court having jurisdiction under it to order that property not be disposed of, or not be disposed of except in specified ways, if the DPP for the Commonwealth (DPP) applies for the order; if there are reasonable grounds to suspect, relevantly, that the person against whom the order is sought has committed a "serious offence", and if that suspicion is held on reasonable grounds. 3 In this case, the defendant, Mr Cleveland, has been charged with two counts of conspiracy to import a commercial quantity of a border controlled drug, namely heroin. Each of those offences is a "serious offence" for the purposes of s 18. 4 Mr Cleveland, together with his mother and his stepfather, are registered as proprietors of two parcels of land. One of those parcels of land is relevantly unencumbered. The other is mortgaged to the Commonwealth Bank of Australia. To the extent that it is relevant, it may be noted that the stepfather has been charged as a co-accused in the conspiracies. 5 In addition, the affidavit discloses that Mr Cleveland is, or may be, a person having an interest in two sums of currency that were found on a search of his residence. 6 The affidavit is based on a statement of facts prepared by the investigating Australian Federal Police officer, in conjunction with other agents involved in the investigation. There is no need to go to the statement of facts in detail. It sets out, in great detail, numerous communications between Mr Cleveland and others relating to matters described in a rather clumsy code. The code references are clearly capable of being taken as references either to border controlled substances in general, or, in particular, to cocaine. In this context it may be noted that, after the last of those communications, the conspiracy was (according to the statement of facts) executed in that one of the conspirators imported a substantial quantity of cocaine into Australia on an airlines flight and another of the conspirators collected the cocaine from the aeroplane. 7 The communications to which I have referred are clearly capable of showing that Mr Cleveland either orchestrated or was, at the least, involved in the nurturing and execution of that conspiracy. 8 In the circumstances, I am satisfied on the basis of the affidavit not only that the deponent does hold the suspicion to which s 18 refers, but also that there are reasonable grounds for him to hold that suspicion. 9 In the circumstances, and noting that the Commonwealth by the DPP gives the usual undertaking as to damages (failure to give it may justify refusing to make a restraining order - see s 21 of the Act), I am satisfied that some relief should be granted. 10 In this context, I note that, among other things, if the orders sought are made, Mr Cleveland has the right to rely under s 42 of the Act to have them revoked in circumstances where (as here) the application is made ex parte. 11 However, the orders sought are in terms orders restraining "any person" from dealing with Mr Cleveland's interest in the specified property. As I have said, one of the parcels of real estate is mortgaged to the Commonwealth Bank of Australia. Ms Lawrence, who appeared for the applicant (the DPP), said that in accordance with the DPP's usual practice, notice of the orders (if made) would be given to all parties, including the bank. 12 The difficulty is that an order in the terms sought, in respect of a particular property that is mortgaged, would prevent the bank from exercising its rights as mortgagee, should it feel the need to do so. The bank would be required to move the Court for leave to take such action as it might be empowered to take under the terms of the mortgage. In circumstances where there is not the slightest basis for thinking that the bank's mortgage, or its interest as mortgagee, have anything to do with the conspiracy, I have great difficulty in seeing why the bank should be put in that position. I do not think that it is a sufficient answer to say that the bank will be notified and can take its own course thereafter: at least in circumstances where, as I have said, there is no reason for thinking that the bank is in any way whatsoever connected with the events that give rise to this application. 13 Accordingly, I think, pursuant to s 18 (1) (b) of the Act, the relief in respect of the property that is mortgaged should be moulded to give effect to the bank's rights. 14 The other question relates to the ancillary orders that are sought. They are orders that various people, including Mr Cleveland, be examined about certain matters. The people who are sought to be examined include Mr Cleveland's partner, his stepfather (who is a co-accused as I have said), his mother and, someone who I think is a real estate agent. None of those persons, apart from Mr Cleveland, are parties to the proceedings. 15 There is no doubt that the Act empowers examination orders of the kind sought: see s 180. However, as is apparent from the terms of s 180, the examination is in effect in aid of, or ancillary to, the restraining order. That follows from the fact that an examination order can only be made if a restraining order is in force, and that an examination order ceases to have effect if the restraining order to which it relates ceases to have effect. See, respectively, sub-ss (1) and (2) of s 180. 16 Given that the application for the restraining orders is made ex parte, and given, as I have said, that Mr Cleveland has the right to apply for revocation of those orders, it is my view that ancillary orders should not be made, including orders for examination under s 180, at least until the time within which Mr Cleveland may apply to revoke the restraining orders has expired. 17 For those reasons, I make the following orders: