New South Wales Crime Commission v Hindmarsh [2015] NSWSC 691

Supreme Court New South Wales

Medium Neutral Citation: New South Wales Crime Commission v Hindmarsh [2015] NSWSC 691 Hearing dates: 21 May 2015 Date of orders: 21 May 2015 Decision date: 21 May 2015 Jurisdiction: Common Law Before: Wilson J Decision: Orders made as per the Short Minutes of Order Catchwords: PROCEEDS OF CRIME – no question of principle Legislation Cited: Criminal Assets Recovery Act 1990 Category: Procedural and other rulings Parties: New South Wales Crime Commission (Plaintiff) Bradley James Hindmarsh (Defendant) Representation: Solicitors: Ms R Katrib (Plaintiff) Ex parte File Number(s): 2015/00150282

Ex tempore Judgment 1. HER HONOUR: By Summons filed in the registry yesterday, 20 May 2015 the plaintiff, the New South Wales Crime Commission, seeks orders pursuant to s.10A of the Criminal Assets Recovery Act 1990 ("the Act") to restrain any person from dealing in an interest in property, the property being listed in Schedule 1 to the Summons. 2. The owner of the property is the defendant, Bradley James Hindmarsh. Mr Hindmarsh is not before the Court or represented before the Court today. Section 10A provides for applications of this nature to be heard ex parte and this current application has proceeded in that way. 3. The application is supported by an affidavit of Jonathan Lee Spark sworn 20 May 2015. Mr Spark is the Director of Financial Investigations with the New South Wales Crime Commission and he is an authorised officer within the meaning of subsection 4(1) of the Criminal Assets Recovery Act 1900. 4. He has made a number of enquiries relevant to criminal proceedings against the defendant and has satisfied himself that the defendant has been charged by the New South Wales Police Force with an offence of cultivating prohibited plants in an amount or quantity not less than the commercial quantity specified for cannabis plants. 5. Annexed to and relied upon by Mr Spark in his affidavit of 20 May is a statement of facts which the New South Wales Police allege against the defendant. Those facts refer to a police operation which was conducted on 26 March 2015 at premises in Wellington Street, Riverstone. The premises are of a commercial nature, a warehouse. On entering the warehouse, police officers found a hydroponic setup which had apparently been established for the cultivation of cannabis. The warehouse was fitted with false walls, heat lamps, and a self watering system. 6. Mr Hindmarsh was contacted by the police and attended the location. He had a conversation at the warehouse with the investigating officers which was audio-visually recorded. Mr Hindmarsh, after caution, is said to have made admissions to the cultivation of the cannabis which police located within the Wellington Street premises. He told the police that he had been concerned with the cultivation of the prohibited plants for a period of some two months and his procedure had been to plant, tend, nurture, and harvest the plants. His practice and intention was to sell the cannabis to other persons or, alternatively, to give it to other persons as a donation. 7. There were some 396 plants located at the warehouse. They are said to have an estimated street value, if sold, of $1.4 million. The offence of cultivating prohibited plants in not less than a commercial quantity for that plant is a serious criminal offence pursuant to s 6(2)(d) of the Act. 8. Having read this evidentiary material and, particularly, Mr Spark's affidavit and the statement of facts prepared by the arresting officers with the New South Wales Police, I am satisfied that the evidentiary basis for the orders sought by the Commission is made out. Mr Spark says he has a suspicion and it would appear to me that that suspicion is reasonably held. 9. On the evidence, the defendant is a resident of New South Wales and the property which the Commission seeks to restrain is property located within the jurisdiction. 10. I am satisfied of those matters upon which I am obliged to be satisfied in the Act and, accordingly, I propose to make the orders that the Commission seeks in its summons. Of the prayers in the summons filed on behalf of the plaintiff, the plaintiff today seeks orders 1-8 inclusive and 11 and I make each of those orders as per the Short Minutes of Order. 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: 02 June 2015