New South Wales Crime Commission v Gibbs [2014] NSWSC 1383

Supreme Court New South Wales

Medium Neutral Citation: New South Wales Crime Commission v Gibbs [2014] NSWSC 1383 Hearing dates: In chambers Decision date: 26 September 2014 Jurisdiction: Common Law Before: Schmidt J Decision: Orders made in terms sought. Catchwords: CRIMINAL LAW - Criminal Assets Recovery Act 1990 - restraining orders sought - granted Legislation Cited: Crimes Act 1900 (NSW) Criminal Assets Recovery Act 1990 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Electricity Supply Act 1995 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Category: Procedural and other rulings Parties: New South Crime Commission (Plaintiff) Steven Allan Gibbs (Defendant) Representation: Solicitors: Ms E Goh New South Wales Crime Commission File Number(s): 2014/285251 Publication restriction: None

Judgment 1By summons filed on 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) in relation to the interest in property of the defendant, Stephen Allan Gibbs. Ancillary orders under s 12(1) of the Act were also sought, as well as orders under s 27 and other orders. 2The application is supported by an affidavit sworn on 25 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 Rooty Hill, a motor cycle and funds held in an account with Newcastle Permanent Building Society. 5Mr Spark deposed that he suspected that Mr Gibbs 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 sativa plant), contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) and knowingly taking part in the cultivation of a prohibited drug (cannabis sativa plant), contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act. 6Mr Spark provided 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 Senior Constable Salvador of the New South Wales Police Force in relation to Mr Gibbs' arrest on 16 June 2014; answers provided to questions he asked of Senior Constable Salvador about the Facts Sheet; information obtained from searches conducted by Crime Commission officers the COPS, RMS and LPI databases and documents produced to the Commission by Newcastle Permanent. 7This material disclosed that Mr Gibbs has been charged with offences under the Drug Misuse and Trafficking Act 1985 after an investigation into the cultivation of cannabis sativa plants. Police surveillance resulted in Mr Gibbs' arrest in June 2014 at the Rooty Hill property which had been converted for the purpose of growing cannabis sativa plants by enhanced means, using hydroponic cultivation. Three hundred and forty seven plants at various growing stages, with a value estimated to be of $1,735,000, were found in the property. 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 motor vehicles and 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 Gibbs 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 other 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.