Supreme Court New South Wales Medium Neutral Citation: New South Wales Crime Commission v Cruz (aka Cruz-Lopez) [2018] NSWSC 9 Hearing dates: 12 January 2018 Date of orders: 12 January 2018 Decision date: 12 January 2018 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 Jonathan Lee Spark sworn 10 January 2018, 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 Stephen Isidro Cruz, including the interest in property in the property specified in Schedule One hereto. 2. Pursuant to section 12(1)(b)(i) of the Criminal Assets Recovery Act 1990 Stephen Isidro Cruz shall 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. 3. Leave is granted to the Plaintiff to obtain from the Registry dates for the examination ordered in Order 2 above. 4. Pursuant to section 10B(2) of the Criminal Assets Recovery Act 1990 the New South Wales Trustee and Guardian shall take control of all the interest of Stephen Isidro Cruz in the property specified in Item 2 of Schedule One hereto. 5. Pursuant to section 12(1)(c1) of the Criminal Assets Recovery Act 1990 Stephen Isidro Cruz shall furnish to the Plaintiff, within twenty one (21) days after service of a sealed copy of these orders on Stephen Isidro Cruz, a statement verified by oath of Stephen Isidro Cruz setting out the particulars sought in Schedule Two hereto. 6. Liberty is granted to the Plaintiff and Stephen Isidro Cruz to apply on three (3) days' notice. 7. The balance of the Summons filed in these proceedings be listed for mention before the Common Law Duty Registrar at 9am on 9 April 2018. 8. The costs of obtaining these orders shall be costs in the cause. 9. 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 1. Toyota Corolla with New South Wales registration DDN34W and registered in the name of Stephen Isidro Cruz-Lopez. 2. Cash in the amount of approximately $143,650 seized by New South Wales Police Force on 21 November 2017 during the execution of a search warrant on black Toyota Corolla with New South Wales registration DDN34W and registered in the name of Stephen Isidro Cruz-Lopez. SCHEDULE TWO 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. Non publication order in respect of the whole of the proceedings pursuant to s 8(1)(a) of the Court Suppression and Non-publication Orders Act 2010 (NSW) until close of business on 19 January 2018. Catchwords: CRIMINAL LAW – proceeds of crime – restraining orders Legislation Cited: Court Suppression and Non-publication Orders Act 2010 (NSW) Crimes Act 1900 (NSW) Criminal Assets Recovery Act 1990 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Category: Procedural and other rulings Parties: New South Wales Crime Commission (Plaintiff) Stephen Isidro Cruz (also known as Stephen Isidro Cruz-Lopez) (Defendant) Representation: Counsel: S Santhikumar (Plaintiff - ex parte) Solicitors: Legal Unit, New South Wales Crime Commission (Plaintiff) File Number(s): 2018/10664 Judgment 1. The plaintiff seeks a restraining order under s 10A of the Criminal Assets Recovery Act 1990 (NSW) pending the making of an assessment in relation to an unexplained wealth order under s 28A of that Act. 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. 2. The application is supported by an affidavit of Jonathan Lee Spark sworn 10 January 2018. Mr Spark, who is an authorised officer, deposes to a suspicion that the defendant is engaged in serious crime-related activity or activities being the offence of dealing with property proceeds of crime where the value of the property is $100,000 or more involving money laundering contrary to s 193C(1) of the Crimes Act 1900 (NSW). That offence falls within the definition of "serious criminal offence" pursuant to paragraph 6(2)(d) of the Criminal Assets Recovery Act. 3. Mr Spark deposes to the fact that his suspicion is held principally by reading the facts sheet prepared by the police after the arrest of the defendant. 4. He sought confirmation from the officer whom he believed prepared the facts sheet the fact that the officer had done so, that the fact sheet was true to the best of his knowledge and belief, and that the fact sheet was prepared on information obtained by police as a result of the investigation. The officer replied in the affirmative to those inquiries. 5. I have read the facts sheet and I am satisfied that Mr Spark's suspicion that that offence has been committed is reasonably held. 6. The plaintiff seeks that the orders be made without prior notice to the defendant. It does so based on what Mr Spark says in paragraph 10 of his affidavit that through long experience with the plaintiff he is aware that, in the absence of a restraining order, it is possible for people to attempt to dispose of motor vehicles very quickly in an attempt to defeat the operation of the Act. 7. I am satisfied that the orders should be made without prior notice to the defendant. The defendant has rights under s 10C of the Act to seek a review of these orders. 8. On the usual undertaking as to damages having been given by the solicitor for the plaintiff, I make orders in terms of paragraphs 1 to 9 of the order signed by me. 9. In addition, I make a non-publication order pursuant to s 8(1)(a) of the Court Suppression and Non-Publication Orders Act 2010 until close of business on 19 January 2018. ********** 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: 29 January 2018