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. Orders 18Upon the Plaintiff giving the usual undertaking as to damages (the giving of which by its solicitor being noted) and; Considering that, having had regard to the matters contained in the affidavit of Jonathan Lee Spark sworn 1 September 2014, there are reasonable grounds for the suspicion stated therein The Court orders: 1. Pursuant to section 10A of the Criminal Assets Recovery Act 1990 no person (other than any registered mortgagee dealing with its right to do so under the registered mortgage) is to dispose of, or attempt to dispose of, or otherwise deal with or attempt to otherwise deal with any interest in property (within the meaning of "interest in property" as defined in section 7 of the Criminal Assets Recovery Act 1990) of Joshua Paul Battah, including the interest in property in the property specified in Schedules One and Two hereto. 2. Pursuant to section 12(1)(b)(i) of the Criminal Assets Recovery Act 1990 Joshua Paul Battah shall be examined on oath before a Registrar of the Court concerning his affairs, including the nature and location of any property in which he has an interest. 3. Leave is granted to the Plaintiff to obtain from the Registry dates for the examination ordered in Order 2 above. 4. Pursuant to section 10B(2) of the Criminal Assets Recovery Act 1990 the New South Wales Trustee and Guardian shall take control of all the interest of Joshua Paul Battah in the property specified in Schedule Two hereto. 5. Pursuant to section 12(1)(c1) of the Criminal Assets Recovery Act 1990 Joshua Paul Battah shall furnish to the Plaintiff, within twenty one (21) days after service of a sealed copy of these orders on Joshua Paul Battah, a statement verified by oath of Joshua Paul Battah setting out the particulars sought in Schedule Three hereto. 6. Liberty is granted to the Plaintiff and Joshua Paul Battah to apply on three (3) days' notice. 7. The costs of obtaining these orders shall be costs in the cause. 8. Pursuant to Rule 36.4(1)(a) of the Uniform Civil Procedure Rules 2005 these orders are to take effect as of the date hereof. SCHEDULE ONE 1. The whole of the property described as Lot 1367 in Deposited Plan 259473 at Erskine Park, County of Cumberland, Parish of Melville, also known as 7 Kingfisher Way, St Clair, New South Wales and registered in the names of Daniel Eli Battah, Joshua Paul Battah and Matthew John Battah as tenants in common in equal shares. 2. The whole of the property described as Lot 81 in Community Plan DP270417 at Luddenham, Parish of Claremont, County of Cumberland also known as 36 Twin Creeks Drive, Luddenham, New South Wales and registered in the names of Daniel Eli Battah as tenant in common as to 4/6 shares, Joshua Paul Battah as tenant in common as to 1/6 share and Matthew John Battah as tenant in common as to 1/6 share. 3. The whole of the property described as Lot 134 in Deposited Plan 757061 in the Parish of Langdale, County of Westmoreland (formerly known as portion 134) also known as 247 Purdons Lane, O'Connell, New South Wales and registered in the names of Daniel Eli Battah, Joshua Paul Battah and Matthew John Battah as tenants in common in equal shares. 4. The whole of the property described as Lot 3 in Deposited Plan 18966 in the Parish of Mulgoa, County of Cumberland, also known as 36 Doonmore Street, Penrith, New South Wales and registered in the names of Daniel Eli Battah and Joshua Paul Battah as tenants in common in equal shares. 5. The whole of the property described as Lot K in Deposited Plan 30611 in the Parish of Mulgoa, County of Cumberland also known as 130 Parker Street, Kingswood, New South Wales and registered in the names of Daniel Eli Battah and Joshua Paul Battah as tenants in common in equal shares. 6. The whole of the property described as Lot 3 in Strata Plan 64871, Parish of Melville, County of Cumberland also known as 3/9-11 Gallipolli Street, St Marys, New South Wales and registered in the names of Daniel Eli Battah, Joshua Paul Battah and Matthew John Battah as tenants in common in equal shares. 7. The whole of the property described at Lot 16 in Deposited Plan 24395 in the Parish of Wallarah, County of Northumberland also known as 28 Tenth Avenue, Budgewoi, New South Wales and registered in the names of Joshua Paul Battah and Matthew John Battah as tenants in common in equal shares. 8. 2011 Harley Davidson FXS Series Motorcycle, registration number QCD03 and registered in the name of Joshua Paul Battah. 9. 2005 Toyota Corolla, registration number AH84FL and registered in the name of Joshua Paul Battah. SCHEDULE TWO The amount of approximately $131,710 cash seized by police during the execution of a search warrant on premises at 7 Kingfisher Way, St Clair, New South Wales on 28 August 2014. SCHEDULE THREE 1. Provide full particulars of the nature and extent of all your interests in property (within the meaning of "interest in property" as defined in section 7 of the Criminal Assets Recovery Act 1990), including in relation to each item of property: (a) a full description of your interest in the property, including the nature of that interest and, where possible, the estimated value, or in the case of bank accounts or deposits - the estimated balance, of that interest; (b) the location of the interest; (c) the name of the person or institution in whose custody title documents in respect of the interest are believed to be; (d) the approximate date of acquisition of the interest; (e) the source of funds used to acquire the interest. 2. Provide full particulars of your liabilities on both a capital and recurring basis, including, in relation to each liability: (a) a full description of the liability including the nature of that liability and the amount of that liability; (b) the name of the person or institution to which the liability is owed. 3. Provide full particulars of the source of the monies specified in Schedule Two above. ********** 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: 15 September 2014