NSW Crime Commission v Battah [2014] NSWSC 1262

Supreme Court New South Wales

Medium Neutral Citation: NSW Crime Commission v Battah [2014] NSWSC 1262 Hearing dates: 1 September 2014 (in chambers) Decision date: 01 September 2014 Jurisdiction: Common Law Before: Adamson J Decision: See paragraph 18 Catchwords: CRIMINAL LAW - application for criminal assets restraining order Legislation Cited: Criminal Assets Recovery Act 1990 (NSW), ss 4, 6, 10A, 10B, 12, 27, Drug Misuse and Trafficking Act 1985 (NSW), s 25 Uniform Civil Procedure Rules 2005 (NSW), r 1.26 Cases Cited: George v Rockett [1990] HCA 26; 170 CLR 104 Category: Interlocutory applications Parties: New South Wales Crime Commission (Plaintiff) Joshua Paul Battah (Defendant) Representation: Counsel: E Goh (Plaintiff) Solicitors: New South Wales Crime Commission (Plaintiff) File Number(s): 2014/256505

Judgment 1By summons filed on 1 September 2014, the plaintiff seeks various orders, including an order pursuant to s 10A of the Criminal Assets Recovery Act 1990 (NSW) (the Act) restraining dealings with any interest in property, including certain property described in Schedules One and Two to the summons; an order pursuant to s 12(1)(b)(i) of the Act authorising the examination of the defendant concerning his financial affairs; an order pursuant to s 12(1)(c1) of the Act requiring the defendant to furnish to the plaintiff within 21 days a statement verified on oath setting out full particulars of all his property; an order pursuant to s 10B(2) of the Act that the New South Wales Trustee and Guardian take control of all of the defendant's interests in the property specified in Schedule Two to the summons; and a proceeds assessment order pursuant to s 27 of the Act that the defendant pay to the Treasurer an amount assessed by the Court as the value of the proceeds of the defendant's illegal activities within the period of six years before the filing of the application. 2The orders sought in the summons, apart from the proceeds assessment order under s 27 of the Act referred to above, were sought ex parte on the day of filing the summons, 1 September 2014. 3In support of its application the plaintiff relied on the following documents: (1)Affidavit of Jonathan Lee Spark sworn 1 September 2014; and (2)Statement of Facts and Circumstances relied on in an application for a restraining order and an assets forfeiture order pursuant to r 1.26 of the Uniform Civil Procedure Rules 2005 (NSW) dated 1 September 2014 (Statement of Facts and Circumstances). 4Section 10A of the Act relevantly provides: "10A Proceedings for restraining orders (1) Application for order The Commission may apply to the Supreme Court, ex parte, for a restraining order in respect of specified interests, a specified class of interests, or all the interests, in property of any person (including interests acquired after the making of the order). ... (3) The Commission may only apply for a restraining order that relates to interests in property derived from external serious crime related activity if the person who has the interests is domiciled in New South Wales or the property is situated in New South Wales. (4) Notice to affected person of application Despite the application for a restraining order being made ex parte, the Supreme Court may, if it thinks fit, require the Commission to give notice of the application to a person who the Court has reason to believe has a sufficient interest in the application. A person who is required to be notified is entitled to appear and adduce evidence at the hearing of the application. (5) Determination of applications The Supreme Court must make a restraining order if the application for the order is supported by an affidavit of an authorised officer stating that: (a) in the case of an application in respect of an interest referred to in subsection (1) - the authorised officer suspects that: (i) the person whose interest is the subject of the application has engaged in a serious crime related activity or serious crime related activities... and stating the grounds on which that suspicion is based ... and the Court considers that, having regard to the matters contained in any such affidavit and any evidence adduced under subsection (4), there are reasonable grounds for any such suspicion." 5The plaintiff's application for an order under s 10A was made ex parte, as it is entitled to do under s 10A(1). I considered the documents relied upon in support of the application in chambers. 6The plaintiff's application is supported by the affidavit of Jonathan Lee Spark sworn 1 September 2014. Mr Spark, who is an authorised officer of the plaintiff within the meaning of s 4(1) of the Act, deposes to his suspicion that the defendant has engaged in serious crime-related activity or crime-related activities, being: supplying a prohibited drug (amphetamine) of an amount greater than the commercial quantity of that drug contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (the DMTA) and two counts of supplying prohibited drugs (amphetamine and heroin) contrary to s 25(1) of the DMTA. These are serious criminal offences within the meaning of s 6(2)(b) of the Act because s 6(3) provides that offences under s 25 of the DMTA are "drug trafficking offences". Mr Spark deposes that the defendant was charged with the offences described in the Facts Sheet on 28 August 2014.. 7Mr Spark sets out the grounds for his suspicion in the first-mentioned [4] of his affidavit. The deponent has annexed correspondence between Ms Gyenge, an Intelligence Analyst employed by the plaintiff, and Mr Burton, Intelligence Manager, Gangs Squad of the NSW Police. He has also annexed correspondence with Detective Gavin Wood, the supervisor of Detective Edwards, the officer in charge of the investigation who had prepared the facts sheet. Detective Gavin Wood informed Mr Spark that he was familiar with the contents of the facts sheet and that the facts set out are, to the best of his knowledge and belief, true. 8Mr Spark also deposed in his affidavit to investigations he has made into the defendant's property interests. 9Section 10A(5) provides, in substance, that I am obliged to make the order sought if the application is supported by an affidavit of an authorised officer stating that the officer suspects that the defendant has engaged in a crime related activity and setting out the grounds for the suspicion and I consider that, having regard to the matters contained in the affidavit, there are reasonable grounds for any such suspicion. 10In all the circumstances I am satisfied that Mr Spark's affidavit meets the requirements of s 10A(5) as to the matters which he suspects. 11I am also satisfied, having regard to Mr Spark's affidavit, that there are reasonable grounds for his suspicion. I have been guided by what the High Court said in George v Rockett [1990] HCA 26; 170 CLR 104 at [14]. 12I do not consider that it would be appropriate to require the plaintiff to notify the defendant of the application under s 10A(4) in light of Mr Spark's evidence. I accept Mr Spark's evidence as to the speed with which cash and motor vehicles can be disposed of, or real estate encumbered, which tends to have the effect of defeating the operation of the Act and restraining orders made under it. 13The defendant is domiciled in New South Wales and the real property is situated in New South Wales. Accordingly, the Commission is entitled to make this application for a restraining order: s 10A(3). 14The orders, other than the restraining order, are designed to ensure that the plaintiff is apprised of the full extent of the defendant's property interests. These orders are, accordingly, ancillary to the restraining order which, in terms, restrains dealing with any interest the defendant may have in property as defined by s 7 of the Act. The Statement of Facts and Circumstances states that the plaintiff also seeks, in its summons, a proceeds assessment order pursuant to s 27 of the Act. 15In all the circumstances, I consider it to be appropriate to make the orders. 16I note the undertaking given by the solicitor for the plaintiff, being the usual undertaking as to damages. 17On the basis of that undertaking I make orders in terms of paragraphs 1 to 8 of the draft minute of order provided to me by the plaintiff.