Supreme Court New South Wales Medium Neutral Citation: New South Wales Crime Commission v Namoa [2013] NSWSC 904 Hearing dates: 8 July 2013 Decision date: 08 July 2013 Jurisdiction: Common Law Before: Schmidt J Decision: Orders sought made. Catchwords: CRIMINAL ASSETS - ex parte application - orders sought under s 31D of the Criminal Assets Recovery Act 1990 - orders granted Legislation Cited: Civil Procedure Act 2005 Crimes Act 1900 Criminal Assets Recovery Act 1990 Cases Cited: New South Wales Crime Commission v Jason Lee [2012] NSWCA 276 New South Wales Crime Commission v Choi [2012] NSWCC 658. Category: Procedural and other rulings Parties: New South Wales Crime Commission (Plaintiff) Fetaiaki Namoa (Defendant) Representation: Solicitors: Ms E Goh New South Wales Crime Commission (Plaintiff) No appearance (Defendant) File Number(s): 2013/63601 Publication restriction: None EXTEMPORE Judgment 1By summons filed on 1 March 2013, the plaintiff, the New South Wales Crime Commission, sought orders under s 28A of the Criminal Assets Recovery Act 1990 in respect of the defendant, Mr Namoa, as well as orders under s 31D(1)(a) and (c) of that Act. Orders under s 101 of the Civil Procedure Act 2005 for interest were also sought, as well as orders for costs. 2The summons was accompanied by a statement of facts and circumstances signed on 25 February 2013 by the plaintiff's solicitor, Ms Bishop. Annexed to that statement was a New South Wales police facts sheet which indicated that Mr Namoa had been the subject of a police investigation as the result of which he had been arrested on 20 February 2013. He was then found to be in possession of a very large sum of Australian currency, which was seized. That was then estimated to amount to something between $500,000 and one million dollars. 3The proceedings came before the Registrar in March, when orders were made requiring the application be served on Mr Namoa. There was today no appearance again by Mr Namoa, who it has been revealed is presently in custody. 4Today the Crime Commission presses for orders to be made pursuant to s 31D(1), requiring Mr Namoa to be examined on oath before a Registrar. That application is supported by a number of affidavits. 5An affidavit of service sworn by Sergeant Brendan Donnellan on 5 March 2013 attests that the sergeant served a sealed copy of the summons and statement of facts on Mr Namoa at the Silverwater Correctional Centre on 5 March 2013. An affidavit sworn by Mr Spark, the director financial investigations of the New South Wales Crime Commission attests that various correspondence and an affidavit which Mr Spark swore on 6 June have also been served on Mr Namoa. 6In the circumstances the Crime Commission sought to have the hearing proceed ex-parte. I am satisfied that a basis for that application has been established. 7Mr Spark deposed in his June affidavit as to various investigations which have been conducted as to the circumstances in which the application presently before the Court came to be made and pressed. Mr Spark deposed to his belief as to the truth of the contents of a New South Wales police force facts sheet prepared by Detective Candace Williams which was annexed to his affidavit and the basis of that belief. Also annexed to the affidavit is a court attendance notice which reveals that Mr Namoa has been charged with offences under s 193B of the Crimes Act 1900 of knowingly deal with proceeds of crime; under s 193B(3) of the Crimes Act of recklessly deal with proceeds of crime; and under s 527C(1)(a) of the Crimes Act of unlawfully obtained goods personal custody. 8Searches of the COPS database in relation to Mr Namoa indicates that the amount of currency seized by police in February 2013, when Mr Namoa was arrested, amounts to approximately one million dollars. It is in those circumstances that the Crime Commission presses for orders under s 31D of the Criminal Assets Recovery Act which provides that the Court may, on application of the Commission, make orders for the examination of a person on oath. 9Section 31D provides for the orders sought to be made when an application for a confiscation order is made. A confiscation order is defined in s 4 of the Criminal Assets Recovery Act to mean an assets forfeiture order, proceeds assessment order, or unexplained wealth order. It is the latter order under s 28A of the Act which the Commission seeks in these proceedings. 10It is settled that the fact that criminal charges are outstanding is not of itself a basis upon which an application for examination orders will be refused (see New South Wales Crime Commission v Jason Lee [2012] NSWCA 276). I also note that in the event of questions and answers given at an examination being considered to prejudice a criminal trial there are protections available under s 13A of the Criminal Assets Recovery Act as to self-incrimination (see Lee and New South Wales Crime Commission v Choi [2012] NSWCC 658). 11In all of the circumstances, on the material on which the applicant Crime Commission relies, I am satisfied that the orders sought should be made in the terms proposed. I order accordingly. ********** Amendments 30 October 2013 - Error on Coversheet Amended paragraphs: Coversheet amended DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 08 July 2013