NSW Crime Commission v Fatos Rama [2017] NSWSC 1396

Supreme Court New South Wales

Medium Neutral Citation: NSW Crime Commission v Fatos Rama [2017] NSWSC 1396 Hearing dates: 18, 25 May 2017; 2 June 2017 Date of orders: 13 October 2017 Decision date: 13 October 2017 Jurisdiction: Common Law Before: Lonergan J Decision: See paragraph [19]. Catchwords: CRIMINAL LAW – ex parte – application for criminal assets restraining order – unexplained wealth order Legislation Cited: Crimes Act 1990 (NSW) Criminal Assets Recovery Act 1990 (NSW) ss 10A, 28A, 28B, 31D Criminal Assets Recovery Regulation 2017 (NSW) cl 5(2) Uniform Civil Procedure Rules 2005 (NSW) Category: Procedural and other rulings Parties: NSW Crime Commission (Plaintiff) Fatos Rama (Defendant) Representation: Solicitors: New South Wales Crime Commission (Plaintiff) File Number(s): 2013/243935 Publication restriction: Nil

Judgment 1. A summons was filed by the Plaintiff on 9 August 2013 seeking certain orders in relation to a cash sum of approximately $180,000 which was seized by police on 29 April 2010 secreted in a clothes dryer in the laundry of an apartment at Rosebery ('the Premises'). The seizure took place pursuant to a search warrant that was executed at the Premises. At the time the search warrant was executed, the police had reliable information that those premises were associated with the Defendant. 2. The summons sought an order pursuant to s 28A of the Criminal Assets Recovery Act 1990 ('the Act') for repayment of the value of the unexplained wealth as well as examination on oath before a Registrar of the Court pursuant to section 31D(1)(a)(i) of the Act and other ancillary orders. 3. The Defendant was never able to be served with the summons. The Court record indicates multiple dates for return of the summons between November 2013 and 2 June 2017. There were 18 occasions where the matter was mentioned before the Court and on each occasion there was no appearance by the Defendant. 4. The application was adjusted to request default judgment (UCPR r 13.1) and orders pursuant to s 10A of the Act , an unexplained wealth order, and orders pursuant to sections 28A and 28B of the Act that the unexplained wealth (now assessed at $178,900 cash) be paid to the Treasurer for management by the New South Wales Trustee and Guardian. 5. In support of the orders, the following affidavit evidence was tendered on 2 June 2017: 1. Statement of Facts dated 8 August 2013. 2. Affidavit of Service of Jonathan Lee Spark sworn 28 April 2017. 3. Affidavit of Jonathan Lee Spark sworn 18 May 2017 annexing the COPS report connecting the Defendant with the premises at which the cash was found and annexing a certificate of conviction for a break and enter offence in 2005. 4. Affidavit of Marc Beckinsale sworn 17 July 2017 attaching photographs of the location at which the cash was found on execution of the search warrant as well as a copy of his statement and formal documents regarding the property seized. 5. Affidavit of Sally Gray sworn 15 July 2017 annexing officer Gray's statement regarding execution of the search warrant and what was found. 1. The affidavit of Spark sworn 28 April 2017 set out the various attempts to locate the Defendant and the advertisement placed by the Plaintiff in the Sydney Morning Herald on 4 April 2017 giving notice of the application. Pursuant to the requirements of cl 5(2) of the Criminal Assets Recovery Regulation 2017 (NSW), it was submitted that this was sufficient service for the purposes of the Act. 2. On 25 May 2017, Ms Katrib appeared for the Plaintiff and provided written submissions which outlined the legislative scheme and the basis upon which the Plaintiff sought the various orders. 3. At that time I was of the view that there was insufficient detail in the affidavit evidence connecting the Defendant to the cash found in the premises. 4. The affidavits evidenced the necessary jurisdiction for the order based on a reasonable suspicion held on the part of Mr Spark that the person against whom the order was sought had, at a time before the making of the application for the order, either engaged in a serious crime related activity or activities or acquired serious crime derived property. 5. The crime identified does not have to be a crime that led to the unexplained wealth. In this case the crime identified was a break and enter and commit serious indictable offence contrary to s 112(1) of the Crimes Act, a charge to which the Defendant pleaded guilty and was sentenced to 12 months imprisonment in 2007. 6. The evidence connecting the Defendant with the premises at which the cash was found and at the time the cash was found was not sufficiently persuasive, so I adjourned the application part heard to allow for further evidence to be filed setting out in more detail the connections of the Defendant with the Premises contemporaneous to the time the cash was found. 7. On 2 June, the application resumed and further affidavits were tendered: 1. Affidavit of Jonathan Lee Spark sworn 1 June 2017 which exhibited records from the police, photographic evidence of the execution of the search warrant, records of the ATO and records from the Commonwealth Bank, all showing connections between the Defendant and the Premises relevant to 29 April 2017. 2. Affidavit of Peter Robinson sworn 1 June 2017 in which he deposed to the information with which he had been provided, including surveillance and telephone intercept product, connecting the Defendant with a Toyota Hiace van found at the Premises on the day of the execution of the search warrant parked in the parking space allocated to the Premises. 3. Affidavit of Peter Robinson sworn 2 June 2017 which attaches a photograph of the Hiace vehicle registered to the Defendant and evidence of its location in the parking space associated with the premises on 29 April 2010 as well as an extract from a residential tenancy agreement dated August 2008 or 2009 which names the Defendant and another person as tenants of the Premises. 1. When the initial Summons was filed, the Facts Sheet filed with it provided details of an interstate investigation involving the Defendant and others being involved in the business of supplying methamphetamine. However the Plaintiff did not need to rely on that activity for the purposes of the application before me. The Defendant's plea of guilty to the break and enter offence enlivens the authority under the Act to make the orders sought. 2. The further affidavit material tendered on 2 June, and in particular the exhibits to the affidavit of Jonathan Lee Spark evidence a contemporaneous connection of the Defendant to the Premises at the time the cash was located. Also persuasive were the contemporaneous records regarding the registration of the Hiace van located at the premises and the Defendant's driver's licence also being registered to that address. 3. As submitted by Ms Katrib, a restraining order pursuant to s 10A must be made if the application for the order is supported by an affidavit of an authorised officer stating that the Defendant has engaged in a serious crime related activity or activities and stating the grounds on which that suspicion is based (s 10A(5)(i)). The Plaintiff relied upon the affidavit of Jonathan Lee Spark sworn 18 May 2017 in that regard and I accept that there are reasonable grounds for the suspicion held and that he is an "authorised officer" as defined in the Act. 4. Section 28B provides that current or previous wealth of the Defendant assessed pursuant to s 28B(4) is the total of the value of all interest in property of the Defendant, whether actual or subject to his effective control, plus interest in property that he has at any time expended, consumed or disposed of plus services, advantages or benefits. I find that the cash at the Premises fits this criteria. 5. There was no evidence that the interest of the Defendant in the seized cash was not illegally acquired property or the proceeds of an illegal activity. The onus was on the Defendant to prove on the balance of probabilities that this was the case and at no time did the Defendant appear to do so. 6. The Commission sought ancillary orders pursuant to s 10B(2) and 28C(11) of the Act that the New South Wales Trustee and Guardian take control of the seized cash. I see no reason not to make those ancillary orders. 7. Accordingly, I order that: 1. Pursuant to section 10A of the Criminal Assets Recovery Act 1990 no person is to dispose of, or attempt to dispose of, or otherwise deal with or attempt to otherwise deal with the interest in property (within the meaning of "interest in property" as defined in section 7 of the Criminal Assets Recovery Act 1990) of the Defendant in the interest in property specified in the Schedule hereto. 2. Pursuant to rule 13.1 of the Uniform Civil Procedure Rules 2005 judgment be given to the Plaintiff on its claim for an order pursuant to s 28A of the Criminal Assets Recovery Act 1990 that Fatos Rama, the Defendant, pay to the Treasurer an amount assessed by the Court as the value of the unexplained wealth of the Defendant. 3. Pursuant to sections 28A and 28B of the Criminal Assets Recovery Act 1990, the Defendant pay to the Treasurer the amount of $178,900, being the value of the unexplained wealth of the Defendant. 4. Pursuant to sections 10B(2) and 28C(11) of the Criminal Assets Recovery Act 1990, the New South Wales Trustee and Guardian take control of the interest in property of the Defendant in the property specified in the Schedule hereto. 5. The Defendant pay the costs of this application.