Supreme Court New South Wales Medium Neutral Citation: New South Wales Crime Commission v Maxwell [2014] NSWSC 1382 Hearing dates: In Chambers Decision date: 25 September 2014 Jurisdiction: Common Law Before: Schmidt J Decision: (1)The orders be served on the other joint tenants of the Wilton and Berridale properties. (2)They have liberty to apply to the Court on 3 days' notice. (3)That a copy of these reasons be served with the orders. Catchwords: CRIMINAL LAW - procedure - restraining orders sought - ex-parte - orders made Legislation Cited: Criminal Assets Recovery Act 1990 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Category: Procedural and other rulings Parties: New South Wales Crime Commission (Plaintiff) Leigh Wayne Maxwell (Defendant) Representation: Solicitors: New South Wales Crime Commission File Number(s): 2014/285269 Publication restriction: None Judgment 1By summons of 23 September 2014, the New South Wales Crime Commission applied ex-parte, seeking restraining orders pursuant to s 10A of the Criminal Assets Recovery Act 1990 (NSW) ('the Act') in relation to the interest in property of the defendant, Leigh Wayne Maxwell. Ancillary orders under s 12(1) of the Act were also sought, as well as orders under s 27. 2The application is supported by an affidavit sworn on 23 September 2014 by Jonathan Lee Spark, the Commission's Director, Financial Investigations and authorised officer under the Act, as well as by a statement of facts and circumstances provided in accordance with Rule 1.26 of the Uniform Civil Procedure Rules 2005 (NSW). I grant leave to file the summons, the affidavit and statement of facts relied on. 3For the reasons which follow, I am satisfied that the orders sought should be made. 4The property in question is identified in a schedule to the summons. It includes one property located at Wilton and another located at Berridale, of which the defendant is a joint tenant, as well as funds held in an account held in ING Direct and a share held in Maxwell Investments (Aust) Pty Ltd. 5Mr Spark deposed that he suspected that Mr Maxwell had engaged in serious crime related activities within the definition of "serious criminal offences" in s 6 of the Act, namely, "supplying a prohibited drug (cannabis) contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). 6Mr Spark gave a detailed explanation of the basis upon which he came to hold this suspicion. It rested on a consideration of a Police Facts Sheet prepared by Detective Piggott of the New South Wales Police Force in relation to Mr Maxell's arrest on 16 June 2014; answers provided to questions he asked of Detective Piggott about the Facts Sheet; information obtained from searches conducted by Crime Commission officers the COPS, ASIC and LPI databases and documents produced to the Commission by ING. 7This material disclosed that Mr Maxwell has been charged with offences under s 25(1) of the Drug Misuse and Trafficking Act after an investigation into the involvement of a co-accused in the supply of drugs. Police surveillance recorded Mr Maxwell and his co-accused discussing cannabis ordered by Mr Maxwell and on later arrest, bags containing cannabis totalling 20 pounds were found in the boot of his car, together with other items of interest, mobile phones and cash. After arrest, Mr Maxwell made admissions to police as to the purchase of the cannabis for some $58,000 and provided a signed witness statement. Further investigations resulted in the discovery of other cannabis and large amounts of cash. 8Mr Spark deposed to his experience that in the absence of a restraining order, it is possible for people to attempt to enter into unregistered mortgages in respect of real estate and to dispose of funds held in bank accounts quickly, in order to defeat the operation of the Act. He also deposed to his view that, given the serious nature of the criminal activity in which Mr Maxwell is apparently involved, that he should not be given notice of this application. That is a course available under the Act, although s 10A(4) permits a different course to be taken, if the Court thinks fit. 9Section 10A(5) requires the making of the orders sought under the Act, if the Court considers that there are reasonable grounds for the suspicions to which Mr Spark has deposed. 10I am satisfied that the material which is relied on well establishes that there are reasonable grounds for the suspicions to which Mr Spark has deposed and that the requirements of s 10A(5) of the Act have been addressed. In that situation the Act requires that the orders sought in relation to the property in question be made. In the circumstances, it is also appropriate to make the ancillary orders sought. 11On the evidence, I am also satisfied that the Commission ought not to be required to give notice of this application and that it should be dealt with ex-parte. In coming to that view, I have had regard to the provisions of s 10C of the Act, which permit an affected person to apply to have a restraining order set aside, as well as the liberty granted in the order to the parties to apply to the Court on three days' notice. 12Given that Mr Maxwell is but one of the joint tenants of the Wilton and Berridale properties, I take the view that the orders which I propose to make should also be served upon the other joint tenants of the two properties and that they, too, should be given liberty to apply to the Court on 3 days' notice. In coming to that view, I have had regard to their rights under s 10C of the Act. Orders 13I accordingly make orders in the terms sought and also order and direct that: (1)The orders be served on the other joint tenants of the Wilton and Berridale properties. (2)They have liberty to apply to the Court on 3 days' notice. (3)That a copy of these reasons be served with the orders. ********** Amendments 14 October 2014 - corrected paragraph numbering Amended paragraphs: 4-13 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: 14 October 2014