Supreme Court New South Wales Medium Neutral Citation: New South Wales Crime Commission v Cooper [2017] NSWSC 700 Hearing dates: In chambers Date of orders: 02 June 2017 Decision date: 02 June 2017 Jurisdiction: Common Law Before: Schmidt J Decision: Orders made in the terms sought, as well as ordering that the Commission serve a copy of this judgment on Mr Cooper. Catchwords: CRIMINAL LAW - procedure - restraining orders sought - ex-parte - orders made Legislation Cited: Criminal Assets Recovery Act 1990 (NSW) Drug Misuse Act 1986 (Qld) 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) Aaron Mark Cooper (Defendant) Representation: Solicitors: R Katrib, New South Wales Crime Commission (Plaintiff) File Number(s): 2017/00165936 Publication restriction: No Judgment 1. By summons which I grant leave to file, 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, Aaron Mark Cooper. Other orders under ss 12(1), 10B, 22, and 28A of that Act were also sought, as well as an order under s 101 of the Civil Procedure Act 2005 (NSW). The orders pressed were for restraining orders under s 10A, as well as orders under ss 10B and 12(1). 2. The application was supported by an affidavit sworn on 31 May 2017 by Jonathan Lee Spark, the Commission's Executive Director (Financial Investigations) 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 Lidsdale and Meadow Flat registered in the name of Mr Cooper, as well as a vessel and boat trailer registered in his name and funds held in Westpac accounts in his name. Cash seized by police in March on execution of a search warrant and in April from a vehicle then occupied by Mr Cooper, is also the subject of an application for orders. 5. Mr Spark deposed that he suspected that Mr Cooper had engaged in serious crime related activities within the definition of a "serious crime related activity" in s 6 of the Criminal Assets Recovery Act, namely, supply of a dangerous drug contrary to s 6 of the Drug Misuse Act 1986 (Qld). This offence, if it had been committed in New South Wales, would have been an offence under s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW), failing within the definition of "serious crime related activity" in s 6 of the Criminal Assets Recovery Act and a "serious criminal offence" under s 6(2)(b) of that Act. 6. Mr Spark there also gave a detailed explanation of the basis upon which he came to hold that suspicion. It rested on a consideration of documents obtained by employees of the Commission, including a Facts Sheet obtained by Detective Senior Constable Aaron Kendall from the Queensland Police Force in relation to Mr Cooper; questions which were then posed to the Detective Senior Constable and responses which he gave; and information he provided in relation to the charges laid against Mr Cooper. 7. Mr Spark also had regard to information obtained as the result of searches conducted of the COPS, LPI, Veda, and RMS databases in relation to the property of Mr Cooper and information provided by Westpac and the Queensland Crime and Corruption Commission. 8. The Facts Sheet revealed that as the result of a NSW Police Force strikeforce investigation into a large commercial scale clandestine laboratory in NSW, in which certain persons were identified to be manufacturing prohibited drugs, methylamphetamine, it was established that runners were delivering large quantities of the drug to the Gold Coast on a regular basis. Investigators established that 2 kg of the drug was to be delivered to Southport. In April 2017, Mr Cooper was stopped and searched and $191,000 cash and 2 kg of the drug were found. The cash is held by Queensland Police. During a later search of his bedroom a handgun, for which he had no license was found. In May 2017, $83,700 cash was seized by NSW Police during execution of a search warrant at premises associated with Mr Cooper. 9. Mr Spark deposed to his experience that in the absence of a restraining order, it is possible for people to enter into unregistered mortgages in relation to real estate very quickly and to dispose of motor vehicles or vessels, or to backdate forms notifying the RMS of disposal of such vehicles or vessels, and to dispose of funds held in bank accounts very quickly, thereby attention to defeat the operation of the Act. 10. He also deposed to his view that, given the serious nature of the criminal activity in which Mr Cooper 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. 11. 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 Mr Spark has deposed. 12. In this case, I am satisfied that the material 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. 13. In the circumstances, I have concluded that it is also appropriate to make the other orders sought. 14. I have reached those conclusions after consideration of the material relied on, including what was disclosed in the Facts Sheet, as to which Mr Spark deposed that he believed in the truth of its contents. 15. All of these matters, I am satisfied, provide 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 to Mr Cooper 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 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. Orders 1. Accordingly, I make orders in the terms sought, as well as ordering that the Commission serve a copy of this judgment on Mr Cooper. ********** 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: 27 July 2017