New South Wales Crime Commission v Oz [2019] NSWSC 232

Supreme Court New South Wales

Medium Neutral Citation: New South Wales Crime Commission v Oz [2019] NSWSC 232 Hearing dates: On the papers Date of orders: 08 March 2019 Decision date: 08 March 2019 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) Mehmet Akif Oz (Defendant) Representation: Solicitors: New South Wales Crime Commission (Plaintiff) File Number(s): 2019/75458 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, Mehmet Akif Oz. Other orders under ss 10B, 12(1), 22 and 28A of the Act were also sought, as well as orders under s 101 of the Civil Procedure Act 2005 (NSW). 2. The orders pressed were for restraining orders under s 10A, as well as orders under ss 10B and 12(1). 3. The application was supported by an affidavit sworn on 4 March 2019 by Katie Elaine Bourne, the Commission's Director (Assessments) and an authorised officer under the Criminal Assets Recovery 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). 4. For the reasons which follow, I am satisfied that the orders sought should be made. 5. The property sought to be restrained is identified in a schedule to the summons as cash of $130,000 seized on search of premises at Elizabeth Bay and $3,300 seized from Mr Oz. 6. Ms Bourne deposed that she suspected that Mr Oz 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: 1. supplying a prohibited drug, cannabis, in an amount greater than the indictable quantity, contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW); 2. dealing with property suspected of being proceeds of crime of value greater than $100,00 contrary to s 193C(1) of the Crimes Act 1900 (NSW) 1. 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 a facts sheet which was annexed to the affidavit and answers provided by the officer in charge Detective Senior Constable Woods, to questions which Ms Bourne asked; as well as searches conducted of the records held in the COPS database, which showed that Mr Oz had been charged with the offences specified in the facts sheet. 2. Ms Bourne deposed to her experience that in the absence of a restraining order, it is possible for people to attempt to dispose of interest in property very quickly, in order to attempt to defeat the operation of the Act. She was also aware that other interests in property may be identified after a restraining order is made, including bank account funds, property registered in the names of others and interests in property held outside the State. 3. Ms Bourne also deposed to her view that, given these matters and the serious nature of the criminal activity in which Mr Oz 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. 4. 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. 5. 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. 6. In the circumstances, I have concluded that it was also appropriate to make the other orders sought. 7. 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. 8. That document revealed that on execution of a search warrant at apartments Mr Oz rented, a large amount of cannabis, as well as 7 mobile phones, a set of scales and ledgers were located as well as $130,000 cash in a study nook and $3,300 cash inside his jacket. He told police everything in the apartment was his. 9. All of these matters, I am satisfied, provide a proper basis for the making of the orders sought. 10. On the evidence, I am also satisfied that the Commission ought not to be required to give notice of this application to Mr Oz and that it should be dealt with ex-parte. 11. 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.