New South Wales Crime Commission v John [2016] NSWSC 1762

Supreme Court New South Wales

Medium Neutral Citation: New South Wales Crime Commission v John [2016] NSWSC 1762 Hearing dates: 8 December 2016 Date of orders: 09 December 2016 Decision date: 09 December 2016 Jurisdiction: Common Law Before: Schmidt J Decision: Orders sought made. Catchwords: CRIMINAL LAW - procedure - restraining orders sought - ex-parte - orders made Legislation Cited: Crimes Act 1900 (NSW) 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) Matthew Bruce George John (also known as Mathew Bruce George John (Defendant) Representation: Solicitors: Mr S Vorreiter New South Wales Crime Commission (Plaintiff) File Number(s): 2016/369444 Publication restriction: None

Judgment 1. By summons which I granted leave to file yesterday, the New South Wales Crime Commission applied ex parte, seeking restraining orders under s 10A of the Criminal Assets Recovery Act 1990 (NSW) in relation to the interest in certain property of the defendant, Mathew Bruce George John. Other orders under ss 10B, 12(1), 22 and 28A of the Act were also there sought. 2. The application was supported by an affidavit sworn on 27 October 2016 by Katie Elaine Bourne, the Commission's Director, Assessments and an 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). 3. For the reasons which follow, I am satisfied that the orders sought should be made. 4. The property sought to be restrained is identified in a schedule to the summons as real property located at Cromer, registered in Mathew Bruce George John's name; real property located at Fairlight, registered in his name as to 17/100 share and as to 83/100 share in the name of another person; cash of approximately $19,615 and $177,890 seized on execution of search warrants; vehicles registered in Mathew Bruce George John's name; as well as funds held in his name in Commonwealth Bank accounts. 5. Ms Bourne deposed that she suspected that Mathew Bruce George John had engaged in serious crime related activity or activities within the definition of a "serious crime related activity" in s 6 of the Criminal Assets Recovery Act, namely, supply prohibited plant (cannabis) contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW) and deal with property of greater value than $100,000 suspected of being proceeds of crime contrary to s 193C of the Crimes Act 1900 (NSW). 6. Ms Bourne also gave a detailed explanation of the basis upon which she came to hold that suspicion. It rested on a consideration of documents obtained by employees of the Commission, including NSW Police Force Facts Sheets relating to the arrest and charging of Mathew Bruce George John; questions which Ms Bourne posed to Sergeant Matthew Lehman, the officer overseeing the investigations described in the Facts Sheets and the responses which he gave; as well as searches conducted of the records held in the COPS database; information obtained as the result of searches conducted of the LPI, Veda and RMS databases in relation to Mathew Bruce George John's property; and information provided by the CBA as to bank accounts held in that name. 7. Ms Bourne deposed to her experience through her employment with the Commission, that in the absence of a restraining order, it is possible for people to attempt to quickly dispose of funds held in bank accounts, as well as motor vehicles, and to enter into unregistered mortgages in relation to real estate, thereby attempting to defeat the operation of the Act. 8. She also deposed to her view that, given the serious nature of the criminal activity in which Mathew Bruce George John is apparently involved, notice should not be given of this application. 9. That is a course available under the Act, although s 10A(4) permits a different course to be taken, if the Court thinks fit. 10. Section 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 Ms Bourne has deposed. 11. In this case, I am satisfied that the material relied on well establishes that there are reasonable grounds for the suspicions to which Ms Bourne 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, I have concluded that it was also appropriate to make the other orders sought. 12. I have reached those conclusions on a consideration of the material relied on, including what was disclosed in the Facts Sheet, as to which Ms Bourne deposed that she believed in the truth of its contents. 13. That document indicated Mathew Bruce George John came to police attention, was arrested and charged following surveillance conducted at his home as to drug supply. On arrest, he was found to be in possession of vegetable matter believed to be cannabis as well as white powder believed to be cocaine and a white crystal substance believed to be methamphetamine. 14. On later search of his residence, 3.875kg of cannabis was located, as well as the $19,615 cash. On later search of the residence $177,890 cash secreted in a wall cavity was found and seized. 15. All of these matters, I am satisfied, provided a proper basis for the making of the orders sought. 16. On 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 had regard to the provisions of s 10C of the Act, which permits 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.