New South Wales Crime Commission v Cohen [2018] NSWSC 215

Supreme Court New South Wales

Medium Neutral Citation: New South Wales Crime Commission v Cohen [2018] NSWSC 215 Hearing dates: On the papers Date of orders: 26 February 2018 Decision date: 26 February 2018 Jurisdiction: Common Law Before: Schmidt J Decision: Orders in terms 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) Aharon Cohen (Defendant) Representation: Solicitors: New South Wales Crime Commission (Plaintiff) File Number(s): 2018/63336 Publication restriction: Nil

Judgment 1. By summons which I granted 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, Aharon Cohen. Other orders under ss 12(1) and 28A of the Act were also sought. The orders pressed were for restraining orders under s 10A and 12(1). 2. The application was supported by an affidavit sworn on 20 February 2018 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 r 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 schedules to the summons as real property located at Bateau Bay, Tumbi Umbi and Gosford, registered in the name of Mr Cohen and Kylie Elizabeth Cohen as joint tenants; real property located at Avoca, registered in the name of Mr Cohen and Gregory John Sloane as tenants in common in equal shares; as well as a boat and boat trailer registered in Mr Cohen's name; and various shares held by Mr Cohen. 5. Ms Bourne deposed that she suspected that Mr Cohen had engaged in serious crime related activity within the definition of a "serious crime related activity" in s 6 of the Criminal Assets Recovery Act, namely, supplying prohibited drugs, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW). 6. Ms Bourne there also gave a detailed explanation of the basis upon which she came to hold those suspicions. They rested on a consideration of documents obtained by employees of the Commission, including a Facts Sheet received from Senor Constable Samson; questions which Ms Bourne posed to the Senior Constable and responses which he gave; as well as searches conducted of the records held in the COPS database, which showed that on 7 February 2018, Mr Cohen had been charged with the offence specified in the Facts Sheet, which was annexed to the affidavit. 7. Ms Bourne also had regard to information obtained as the result of searches conducted of the LRS, SAI, ASIC and RMS databases in relation to the property of Mr Cohen, as well as information provided by the RMS in relation to requests made of it. 8. Ms Bourne deposed to her experience that in the absence of a restraining order, it is possible for people to attempt to enter into unregistered mortgages in relation to real estate very quickly; to dispose of motor vehicles or backdate forms notifying the RMS of disposal of such vehicles; and to dispose of shares very quickly, in order to defeat the operation of the Act. 9. She also deposed to her view that, given the serious nature of the criminal activity in which Mr Cohen is apparently involved, that notice should not be given 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. 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. 12. In the circumstances, I have concluded that it was also appropriate to make the other orders sought. 13. I have reached those conclusions after 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. 14. That document revealed that Mr Cohen has been charged with a number of drug supply offences of the drug known as "MDA" in commercial and large commercial quantities, having become the subject of a strike force investigation, during which various evidence was gathered, which established his involvement in ongoing drug supply and later led to him being charged with eight offences dating back to June 2017. 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 Cohen, Ms Cohen or Mr Sloane and that it should be dealt with ex-parte. 17. 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.