These reasons need to be considered with the reasons I gave earlier today in the matter of New South Wales Crime Commission v Camilleri. By summons filed today, supported by affidavit, the New South Wales Crime Commission is seeking an unexplained wealth order, a restraining order and an ancillary order against all of the interests in property known to it of David Stuart Kane.
The property is specified in Sch 1 to the summons which includes a parcel of land at Dural owned in common by Mr Kane and the Camilleris, and four other parcels of land owned either by him alone or by him jointly with persons who, from their names, appear to be members of his family. The affidavits relied upon are two affidavits of Katie Elaine Bourne, the first sworn on 21 October 2015 and the second on 28 October 2015. Ms Bourne is a forensic accountant employed by the New South Wales Crime Commission and is an authorised officer as defined in s 4(1) Criminal Assets Recovery Act 1990 (NSW).
In her capacity as a forensic accountant, she is a financial investigator with the Commission and in her current position since August 2011. The second affidavit corrects some slips or clerical errors in the first affidavit. There remains an omission from paragraph 4 of the first affidavit in as much as in word processing part of paragraph 4(1) has not been printed, but I can infer from the balance that matter relates to criminal activity of Mr Gerard Camilleri as described in the previous matter and I understand what is said in relation to that by reference to the material exhibited to Ms Bourne's first affidavit.
The evidence before me establishes that the police have charged Mr Camilleri with 105 counts of fraud against his former employer and associated money laundering offences. The total amount involved in his defalcations exceeds $2 million. Part of those funds, according to allegations made by the police, based upon admissions he made in a record of interview, were used to fund the purchase of the property at Dural.
New South Wales Crime Commission v Kane [2015] NSWSC 1648 | Case summary | Zoe
From the record of interview, if Mr Camilleri's account is accurate, he and his wife own that property (and this is corroborated by property searches) in common with Mr Kane. Together the former have an interest of 20 per cent of the property and the latter has an interest of 80 per cent of the property. From Ms Bourne's evidence and from my consideration of the material upon which she relies in forming the suspicion referred to in s 10A(5), I understand that Mr Camilleri's version, to summarise it, is that he acquired the property at Dural but entered into a joint venture with Mr Kane, who is a builder apparently, to develop or redevelop that site for re-sale.
The agreement required Mr Kane to undertake the work of redevelopment providing the materials, equipment and labour necessary and in return he received an 80 per cent interest. It is also apparent that since May 2013 Mr Kane and Mr Camilleri had been involved in another business, which seems legitimate so far as the material goes at this stage, in excavation and demolition. As I say, Mr Camilleri admitted to the police that he acquired the property using the funds of which he defrauded his former employer.
FURTHER DISCUSSION BETWEEN HIS HONOUR AND MS MIRANDA
At one time Mr Camilleri lived at the Dural property because he had to sell his former home to raise additional capital for the project.
On the basis of the material provided by the police, including the facts sheet prepared for the court, the record of interview, the statement of the officer in charge that he acquired that information during his investigation, and that he believed the facts narrated to be true, Ms Bourne as an authorised officer formed the suspicion that Mr Kane, the person whose interest in the property is the subject of this application, has acquired serious crime derived property because of the serious crime related activity of Mr Camilleri. This engages part of the requirements of s 10A(5).
The question which remains to be decided is whether, having considered the material in Ms Bourne's affidavit which is the evidence put before the court, there are reasonable grounds for her suspicion.
It is necessary for me to interpolate that the form of the application contained in the summons seeks a restraining order in respect of specified interests of Mr Kane in the five properties contained in the schedule. It also seeks ancillary relief under s 12 requiring him to provide particulars which cover all of his interests in property and to submit to an examination under oath.
These orders are pretty routine in this area of jurisprudence. However, during the course of presentation of the application, I raised with Ms Miranda my concern about the evidence and I explained that whereas I thought there were reasonable grounds for the suspicion of Ms K L Bourne so far as it related to Mr Kane's interest in the Dural property, I was not persuaded on the evidence, as it presently stood, that there were reasonable grounds for her suspicion in relation to the other specified interests.
Moreover given that state of things, I did not think it appropriate that I should make a restraining order in respect of the other interests and grant ancillary relief, ex parte. It seemed to me appropriate to require the Commission to give notice of the application to Mr Kane so that he can appear and adduce such evidence as he felt appropriate at the hearing of the application.
On the other hand, although there was no evidence to suggest that his involvement in the joint venture is anything other than innocent, on the material before me, it is appropriate to make a restraining order ex parte in relation to Mr Kane's the Dural property given the strength of the material presented to me about the serious crime related activities, in particular of Mr Camilleri, and the circumstance that the evidence suggests that funds derived from his serious crime related activity represent the whole of the purchase money for the Dural property.
Doubtless it still remains that Mr Kane, to use the old fashioned expression, may well be a bona fide purchaser without notice of Mr Camilleri's engagement in serious crime related activity. There are reasonable grounds for the suspicion described in s 10A(5)(a)(ii) concerning Mr Kane's interest in the Dural property. The grounds for that suspicion have been fully set out and I, having considered the material for myself, regard those grounds as reasonable.
In these circumstances I am obliged to make the order sought in respect of that interest specified in the Dural property.
However having raised my concerns with Ms Miranda she has applied for an adjournment until tomorrow to enable the Commission to consider its position either to withdraw the balance of the application in relation to the other specified interest in the property on the one hand or, on the other hand, to make further submissions about why I should make those orders according to law and why I should make them without notice to Mr Kane.
I am prepared to accede to that application given the public importance of the operation of this legislation.
The Commission through its solicitor has proffered the usual undertaking as to damages and on the basis of it I make a restraining order in the form of the order handed up but as amended by me. I wish to make it clear that it relates to a restraint of Mr Kane's interest in respect of the Dural property only. I direct the court seal be affixed to it and it may be entered forthwith.
To prevent prejudice to the proper administration of justice, I order that the publication of information tending to reveal the identity of this defendant, Mr Camilleri, and Mrs Camilleri or about the evidence in these proceedings is prohibited until the finalisation of criminal proceedings taken against Mr and Mrs Camilleri. This order does not prevent publication to the parties and their legal representatives.
I stand the balance of the matter over until 29 October 2015 marked not before 11 am.
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Amendments
08 August 2018 - Non Publication orders lifted - matter finalised
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Decision last updated: 08 August 2018