Supreme Court New South Wales Medium Neutral Citation: NSW Crime Commission v Burns [2013] NSWSC 1355 Hearing dates: 13 September 2013 Decision date: 13 September 2013 Jurisdiction: Common Law Before: Beech-Jones J Decision: Restraining order made. Catchwords: PROCEEDS OF CRIME - no question of principle. Legislation Cited: Criminal Assets Recovery Act 1990 Category: Interlocutory applications Parties: NSW Crime Commission (Plaintiff) Beric Andrew Burns (Defendant) Representation: Counsel: Ms R. Katrib (Plaintiff) Ex parte (Defendant) Solicitors: NSW Crime Commission (Plaintiff) File Number(s): 2013/279459 EX TEMPORE Judgment 1This is an application under inter alia s 10A of the Criminal Assets Recovery Act 1990 for a restraining order in respect of property of the defendant, Beric Andrew Burns. Under s 10A(5), the Court is obliged to make such an order if the application is supported by an affidavit from an authorised officer which records various suspicions and the Court considers that, having regard to the matters contained in any such affidavit, there are reasonable grounds for any such suspicion. 2In this case, the relevant affidavit has been sworn by Jonathan Lee Spark, the Director of Financial Investigations employed by the Crime Commission. Mr Spark's affidavit records his suspicion that the defendant has engaged in a serious crime-related activity or activities, namely, the supply of a prohibited drug, heroin, and in particular of an amount greater than the large commercial quantity of that drug contrary to s 25(2) of the Drug Misuse and Trafficking Act 1995. 3Mr Spark's affidavit annexes the police facts concerning the charges that have been laid against Mr Burns to that effect and also an email exchange with the officer-in-charge identifying the source of the information in the police facts. Those facts suggest a sustained system of dealing heroin at a street level over a significant period of time. At the end of the period of surveillance by the police, very large amounts of cash were seized which appears to relate to that dealing and, in particular, to relate to Mr Burns. 4Accordingly, I am satisfied the affidavit records the necessary suspicions referred to in 10A(5)(a) and establishes that there are reasonable grounds for those suspicions. 5I note that the Crime Commission offers the usual undertaking as to damages. I also consider that it is not necessary that notice be given to Mr Burns. In view of the nature of the allegation against him, the significant potential for property to be moved to frustrate the application is obvious. 6In addition, an order is sought under s 12(1)(c)(i) to the effect of requiring Mr Burns to provide information to the Commission or to the New South Wales Trustee and Guardian in a statement setting out particulars of his property and dealings with that property. The material attached to Mr Spark's affidavit makes that order appropriate. I note that s 13 of the Act deals with questions of privilege. 7Accordingly, I note that the Commission by its solicitor offers the usual undertaking as to damages, in support of proposed orders 1 and 4. On that basis I make orders 1 and 4. I also make orders 2, 3, 5 and 6. I make order 7 with the substitution of one day's notice for three days' notice. I make order 8. ********** 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: 26 September 2013