Supreme Court New South Wales Medium Neutral Citation: New South Wales Crime Commission v Jamie Dunn [2017] NSWSC 97 Hearing dates: 16 February 2017 Date of orders: 16 February 2017 Decision date: 16 February 2017 Jurisdiction: Common Law Before: Davies J Decision: Upon the Plaintiff giving the usual undertaking as to damages (the giving of which by its solicitor being noted) and Considering that, having had regard to the matters contained in the affidavit of Katie Elaine Bourne sworn 16 February 2017, there are reasonable grounds for the suspicion stated therein. The Court orders: 1. Pursuant to section 10A of the Criminal Assets Recovery Act 1990 no person (other than any registered mortgagee dealing with its right to do so under the registered mortgage) is to dispose of, or attempt to dispose of, or otherwise deal with or attempt to otherwise deal with any interest in property (within the meaning of "interest in property" as defined in section 7 of the Criminal Assets Recovery Act 1990) of Jamie Bryan Dunn, including the interest in property in the property specified in Schedules One and Two hereto. 2. Pursuant to section 10A of the Criminal Assets Recovery Act 1990 no person (other than any registered mortgagee dealing with its right to do so under the registered mortgage) is to dispose of, or attempt to dispose of, or otherwise deal with or attempt to otherwise deal with any interest in property (within the meaning of "interest in property" as defined in section 7 of the Criminal Assets Recovery Act 1990) of Bruce Alexander Dunn, including the interest in property in the property specified in Schedules One and Three hereto. 3. An order pursuant to section 10B(2) of the Criminal Assets Recovery Act 1990 that the New South Wales Trustee and Guardian take control of all the interest of Jamie Bryan Dunn and Bruce Alexander Dunn in the property specified in Schedule One hereto. 4. Pursuant to section 12(1)(b)(i) of the Criminal Assets Recovery Act 1990 Jamie Bryan Dunn be examined on oath before a Registrar of the Court concerning his affairs, including the nature and location of any property in which he has an interest. 5. Pursuant to section 12(1)(b)(i) of the Criminal Assets Recovery Act 1990 Bruce Alexander Dunn be examined on oath before a Registrar of the Court concerning his affairs, including the nature and location of any property in which he has an interest. 6. Leave is granted to the Plaintiff to obtain from the Registry dates for the examinations ordered in Orders 4 and 5 above. 7. Pursuant to section 12(1)(c1) of the Criminal Assets Recovery Act 1990 Jamie Bryan Dunn furnish to the Plaintiff, within twenty one (21) days after service of a sealed copy of these orders on Jamie Bryan Dunn, a statement verified by oath of Jamie Bryan Dunn setting out the particulars sought in Schedule Four hereto. 8. Pursuant to section 12(1)(c1) of the Criminal Assets Recovery Act 1990 Bruce Alexander Dunn furnish to the Plaintiff, within twenty one (21) days after service of a sealed copy of these orders on Bruce Alexander Dunn, a statement verified by oath of Bruce Alexander Dunn setting out the particulars sought in Schedule Four hereto. 9. Liberty is granted to the Plaintiff, Jamie Bryan Dunn and Bruce Alexander Dunn to apply on three (3) days' notice. 10. This matter be listed for directions before the Common Law Registrar at 9am on Monday 15 May 2017. 11. The costs of obtaining these orders be costs in the cause. 12. Pursuant to Rule 36.4(1)(a) of the Uniform Civil Procedure Rules 2005 these orders are to take effect as of the date hereof. SCHEDULE ONE Cash in the sum of approximately $244,817 seized by members of the NSW Police Force during the execution of a search warrant on premises at 7R Joira Road, Dubbo, New South Wales on 8 February 2017. SCHEDULE TWO 1. A Holden utility motor vehicle registration plate number BMQ52P registered in the name of Jamie Bryan Dunn. 2. A boat trailer registration plate number E64529 registered in the name of Jamie Bryan Dunn. 3. A 6.04 metre white fibreglass Camero ski boat registration number XT696N and HIN: AUWWA105325EV2 registered in the name of Jamie Bryan Dunn. SCHEDULE THREE 1. The whole property described as Lot 83 in Deposited Plan 563287 also known as 7R Joira Road, Dubbo in the State of New South Wales, 2830 and registered in the name of Bruce Alexander Dunn and in the name of Margaret Anne Dunn as joint tenants. 2. The whole property described as Lot 152 in Deposited Plan 841764 also known as 7A-7B Rosella Street, Dubbo in the State of New South Wales, 2830 and registered in the name of Bruce Alexander Dunn and in the name of Margaret Anne Dunn as joint tenants. 3. The whole property described as Lot 56 in Deposited Plan 755113 also known as 80 Warrah Street, Peak Hill in the State of New South Wales, 2869 and registered in the name of Bruce Alexander Dunn and in the name of Ross James Dunn and in the name of Neil Andrew Dunn as joint tenants. 4. A box trailer registration plate number N50786 registered in the name of Bruce Alexander Dunn. 5. A tipper trailer registration plate number X85051 registered in the name of Bruce Alexander Dunn. 6. A Holden utility motor vehicle registration plate number YFV431 registered in the name of Bruce Alexander Dunn. 7. A Kenworth prime mover motor vehicle registration plate number BX81DK registered in the name of Bruce Alexander Dunn. 8. A dolly trailer registration plate number TC46QQ registered in the name of Bruce Alexander Dunn. 9. A bulk carrier trailer registration plate number TA07NU registered in the name of Bruce Alexander Dunn. 10. A tipper trailer registration plate number Z34893 registered in the name of Bruce Alexander Dunn. 11. A Western Star prime mover registration plate number CF50MN registered in the name of Bruce Alexander Dunn. 12. A box trailer registration plate number CN8240 registered in the name of Bruce Alexander Dunn. 13. A Toyota Landcruiser motor vehicle registration plate number AW00NK registered in the name of Bruce Alexander Dunn. 14. A dolly trailer registration plate number H08141 registered in the name of Bruce Alexander Dunn. 15. A Ford utility motor vehicle registration plate number BD1011 registered in the name of Bruce Alexander Dunn. 16. A Hockney trailer registration plate number X41065 registered in the name of Bruce Alexander Dunn. 17. Funds in Commonwealth Bank of Australia Award Saver account 253410343458 in the names of Bruce Alexander Dunn and Margaret Anne Dunn. 18. Funds in Commonwealth Bank of Australia Gold Saver account 267610147715 in the names of Bruce Alexander Dunn and Margaret Anne Dunn. 19. Funds in Commonwealth Bank of Australia Complete Access account 267610220505 in the names of Bruce Alexander Dunn and Margaret Anne Dunn. 20. Funds in Commonwealth Bank of Australia Complete Access account 267610238254 in the names of Bruce Alexander Dunn and Margaret Anne Dunn. 21. Funds in Commonwealth Bank of Australia Complete Access account 267628008705 in the names of Bruce Alexander Dunn and Margaret Anne Dunn. 22. Funds in Commonwealth Bank of Australia Smart Access account 267610239847 in the names of Bruce Alexander Dunn and Margaret Anne Dunn. 23. Funds in Commonwealth Bank of Australia Streamline Account 267628008692 in the names of Bruce Alexander Dunn and Margaret Anne Dunn. SCHEDULE FOUR 1. Provide full particulars of the nature and extent of all your interests in property (within the meaning of "interest in property" as defined in section 7 of the Criminal Assets Recovery Act 1990), including in relation to each item of property: (a) a full description of your interest in the property, including the nature of that interest and, where possible, the estimated value, or in the case of bank accounts or deposits - the estimated balance, of that interest; (b) the location of the interest; (c) the name of the person or institution in whose custody title documents in respect of the interest are believed to be; (d) the approximate date of acquisition of the interest; (e) the source of funds used to acquire the interest. 2. Provide full particulars of your liabilities on both a capital and recurring basis, including, in relation to each liability: (a) a full description of the liability including the nature of that liability and the amount of that liability; (b) the name of the person or institution to which the liability is owed. Orders to be entered forthwith. Catchwords: CRIMINAL LAW – proceeds of crime – restraining orders 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) Jamie Bryan Dunn (First Defendant) Bruce Alexander Dunn (Second Defendant) Representation: Counsel: S Vorreiter (Plaintiff - ex parte) Solicitors: Legal Unit, New South Wales Crime Commission (Plaintiff) File Number(s): 2017/49960 Judgment 1. The plaintiff seeks a restraining order under s 10A of the Criminal Assets Recovery Act 1990 (NSW) pending the making of a forfeiture order under s 22 of the Act and an unexplained wealth order pursuant to s 28A of the Act. 2. Section 10A(5) of the Act says that the Court must make a restraining order if the application is supported by an affidavit of an authorised officer stating that the officer suspects that the person whose interest in property is sought to be restrained has engaged in serious crime related activity, stating the grounds on which the suspicion referred to therein is based, and the court considers that there are reasonable grounds for the suspicion. 3. The application is supported by an affidavit of Katie Elaine Bourne sworn 16 February 2017. Ms Bourne, who is an authorised officer, deposes to a suspicion that the defendants have engaged in serious crime related activity or activities. In the case of the first defendant, the offences are cultivating a prohibited plant of a greater than a commercial quantity and knowingly dealing with the proceeds of crime. Those offences are contrary to s 23 of the Drug Misuse and Trafficking Act 1985 (NSW) and s 193B of the Crimes Act 1900 (NSW) respectively. 4. In the case of the second defendant, the offence is knowingly dealing with the proceeds of crime. Both the drug offences and dealing with the proceeds of crime offence are serious criminal offences pursuant to s 6(2)(d) of the Criminal Assets Recovery Act. 5. Ms Bourne deposes to the fact that her suspicion is held principally by reading the facts sheets prepared by the police after the arrest of the defendants. In relation to the first defendant, Ms Bourne sought from the officer she believed had prepared the facts sheet, confirmation that he had done so, that the facts sheet was true to the best of his knowledge and belief and that the facts sheet was prepared on information obtained by police as a result of their investigation. The officer concerned replied in the affirmative to those questions adding that the facts sheet was prepared by him in conjunction with another officer. 6. When he replied to Ms Bourne he also said this in his email: Currently detectives are in the process of charging Jamie Dunn's father, Bruce Dunn, at Dubbo Police Station. These charges relate to firearms and dealing with the proceeds of crime offences identified through a search warrant at the property referred to the day before the email was sent. The officer concerned attached the facts sheets both for Bruce Dunn and for Jamie Dunn. 1. I am satisfied, therefore, that Ms Bourne's suspicion as to the commission of serious crime related activities by Bruce Dunn is reasonably held. 2. Ms Bourne also annexes the results of searches carried out by persons in her office from such places as the LPI and the RMS. I am satisfied from an examination of those searches that her suspicion that the defendants own the property shown in that material is reasonably held. 3. I am also satisfied from reading the facts sheets concerning both Jamie and Bruce Dunn that her suspicion that the offences have been committed is reasonably held. 4. The plaintiff seeks that the orders be made without prior notice to the defendants. It does so based on what Ms Bourne says in paragraph 12 of her affidavit, that through her experience with the plaintiff, she is aware that in the absence of a restraining order it is possible for people to attempt to enter into unregistered mortgages of real estate and to dispose of motor vehicles very quickly and to backdate the motor vehicle transfer forms in an attempt to defeat the operation of the Act. 5. I am satisfied that the orders should be made without prior notice to the defendants. The defendants have their rights under s 10C of the Act to seek a review. 6. I note the usual undertaking as to damages is given by the solicitor for the plaintiff. On that basis I make orders in terms of paras 1-5, 7, 8, 11 and 12 of the draft order. I grant the leave and liberty in paras 6 and 9. 7. The matter is stood over for directions before the common law registrar at 9am on Monday 15 May 2017. 8. These orders may be entered forthwith. ********** 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: 20 February 2017