New South Wales Crime Commission v Camilleri [2015] NSWSC 1627

Supreme Court New South Wales

Medium Neutral Citation: New South Wales Crime Commission v Camilleri [2015] NSWSC 1627 Hearing dates: 28 October 2015 Date of orders: 28 October 2015 Decision date: 28 October 2015 Jurisdiction: Common Law Before: Campbell J Decision: See [15] and [16] Catchwords: CIVIL – making of ex parte orders – where defendant has engaged in serious crime activities – Criminal Assets Recovery Act 1900 Legislation Cited: Criminal Assets Recovery Act 1990 (NSW) Category: Consequential orders (other than Costs) Parties: New South Wales Crime Commission (Plaintiff) Gerard Camilleri (First Defendant) Lauren Camilleri (Second Defendant) Representation: Counsel: Ms A. Miranda (Crime Commission) No appearance (First and Second Defendant)

Solicitors: New South Wales Crime Commission (Plaintiff) File Number(s): 2015/316248 Publication restriction: Non Publication orders

EX TEMPORE JUDGMENT (REVISED) 1. By summons filed in court today, the New South Wales Crime Commission commences proceedings against the first and second defendant seeking by way of principal relief unexplained wealth orders against each of them under the provisions of s 28A of the Criminal Assets Recovery Act 1990 (NSW). 2. The Commission, ex parte, also seeks a restraining order under s 10A in respect of the interest in the property specified in the schedules to the summons of each of them. 3. The Commission moves on the affidavit of Jonathan Lee Spark, an authorised officer within the meaning of s 4 of the Act, sworn on 15 October 2015. 4. I accept his evidence, in [10] and [11] of the affidavit, that it is possible to enter into unregistered dealings in real estate and to dispose of personal property expeditiously and that given the evidence about the serious nature of the criminal activity in which the defendants may have engaged, there may be a motive to discard assets. For that reason I think it appropriate to proceed ex parte, notwithstanding the provisions of s 10A(4). 5. For the purpose of s 10A(5), I am satisfied, as I have said, that the application made is supported by an affidavit of an authorised officer. 6. From the contents of his affidavit, I find that Mr Spark suspects in respect of each person that he and she has engaged in a serious crime related activity or activities. 7. Mr Spark sets out the grounds of his suspicion which is largely based upon material provided to him in each case by the New South Wales Police Force, including a very detailed statement of facts, prepared for use in court in each case and the electronically recorded record of interview of the first defendant concerning the matters. I note in passing that the second defendant exercised her right to silence. 8. The New South Wales Police have instituted, by way of court attendance notice, criminal prosecutions against each defendant. In the case of the first defendant, there are 105 counts relating to fraud and money laundering offences, each case carrying a maximum penalty of more than five years and in respect of the second defendant there are 45 counts of the same type. The matter will not be before the Downing Centre Local Court until 24 November 2015, which perhaps is another reason for proceeding ex parte. 9. The Police facts, without going through them in any great detail, indicate that the first defendant was a trusted employee of a large construction company for a number of years between 28 May 2001 and 1 November 2013. Investigations after his redundancy revealed irregularities in his management of the company's account to a total value of $2,108,083.40. A painstaking investigation demonstrates that, by sometimes tortuous route, each of the defalcations was processed through various accounts ending up in accounts controlled either by the first defendant or the second defendant and finding its way to assets acquired by them. 10. During the course of his long interview with the Police, the first defendant made significant admissions, although he made statements that tended to be exculpatory of the second defendant, his wife. 11. The officer in charge has provided information to Mr Spark that the facts as recited in the statement of facts have come to him through his investigation; that they are the facts which the Police rely upon to bring the charges; and that he believes the facts to be true. Mr Spark swears that he genuinely holds the suspicion referred to in s 10A(5)(a)(i) in each case. 12. Having reviewed the material for myself, which I have summarised, I am satisfied that his suspicion is based upon reasonable grounds and in the circumstances I am bound by the provisions of s 10A to make the restraining order sought which I will make in due course. 13. The Commission also seeks ancillary orders in accordance with s 12 of the Act. Those orders include requiring each of the defendants to provide a verified statement setting out the particulars of their interests in property referred to in schedule 3 of the form of order; that they submit to an examination under oath before a Registrar of this court about their own interests in property and the affairs of the other, including the nature and location of any property. The "other" being their spouse, and these latter orders are authorised by s 12(1)(b)(ii). 14. It seems to me, given the complexity of the financial arrangements and the long period of time over which the defalcations took place, it is appropriate that the further coercive investigative tools provided by law be employed to ascertain the full extent of the interests in property that may be available for recoupment under the provisions of the Act. 15. The plaintiff gives the usual undertaking as to damages which is noted and upon that undertaking and having regard to, as I have said, the evidence I have summarised, I make orders in accordance with the form of order handed up by Ms Miranda, signed by me and dated today. 16. I will make an additional order to prevent prejudice to the proper administration of justice. I order that the publication of information tending to reveal the identity of the defendants or about the evidence in these proceedings is prohibited until the finalisation of the criminal proceedings taken against each defendant. This order does not prevent publication to the parties and their legal representatives. 17. I direct that the court seal may be affixed to the form of order and that the orders may be entered forthwith.