New South Wales Crime Commission v Sun

CASES CITED : International Finance Trust Company Limited v New South Wales Crime Commission [2008] NSWCA 291 New South Wales Crime Commission v Vu & Tran (Adams J, 23 December 2008, unreported)

PARTIES : New South Wales Crime Commission (Plaintiff) Andrew Sun (Defendant)

SOLICITORS : J M Giorgiutti, Solicitor for New South Wales Crime Commission (Plaintiff)

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

10179 of 2009 New South Wales Crime Commission v Andrew Sun

JUDGMENT - EX TEMPORE 1 HIS HONOUR: These are proceedings commenced by summons filed in court today pursuant to leave granted by me. By its summons, the plaintiff seeks an order pursuant to s 10 of the Criminal Assets Recovery Act 1990 ("the Act") that no person, other than a person or body having a superior title permitting it to do so, is to dispose of or attempt to dispose of, or otherwise to deal with or attempt otherwise to deal with, an interest in property (within the meaning of that expression as defined in s 7 of the Act) of the defendant. Ancillary orders are also sought. 2 In support of that application, the plaintiff relies upon an affidavit of Jonathan Lee Spark sworn 14 January 2009. It goes without saying that I have read that affidavit. For reasons that will become apparent, it is necessary briefly to refer to the matters to which Mr Spark deposes. 3 Mr Spark says, uncontroversially, that he is employed by the plaintiff as the Assistant Director, Financial Investigations, and is an authorised officer within the meaning of that expression in s 4(1) of the Act. That is to say, Mr Spark is a person authorised in writing by the plaintiff generally to act as an authorised officer for the purposes of s 10. 4 Mr Spark has been a financial investigator with the plaintiff since 1997. In that capacity and presumably during that time he has had access via computers to records held by the New South Wales Police Force and other similar information retrieval systems to which he specifically refers in his affidavit. 5 At paragraph 3 of his affidavit Mr Spark gives evidence in the following terms: "I suspect that [the defendant] has engaged in a serious crime-related activity or serious crime-related activities (within the meaning of 'serious crime-related activity' as defined in s 6 of the Act), namely, recklessly deal with the proceeds of crime contrary to s 193B (3) of the Crimes Act 1900 being an offence liable to imprisonment for 5 years or more involving money laundering and thereby falling within the definition of 'serious crime-related offence' as defined in s 6(2)(d) of the Act." 6 In the following paragraph Mr Spark then describes the basis upon which he says he holds that suspicion. He said that on 14 January 2009 he contacted Detective Anthony Volpe of the New South Wales Police Force via the New South Wales Police Force's internal telephone system and had a conversation with Detective Volpe in which the latter agreed to send him by facsimile a Facts Sheet relating to the arrest of the defendant. He received that Facts Sheet the same day and a copy of it is annexed to his affidavit. Mr Spark says that he has had regard to it. 7 Mr Spark continues that on the same day he had a telephone conversation with Detective Daniel Condon, during the course of which Detective Condon informed him that he had been involved in the police investigation into the activities of the defendant described in the Facts Sheet and that Detective Condon had himself assisted in drafting it. Mr Spark asked Detective Condon whether or not to the best of his knowledge and belief the contents of the Facts Sheet were true. Mr Spark says that Detective Condon replied that they were. Mr Spark further enquired of Detective Condon whether the Facts Sheet was prepared on the basis of information obtained by police as a result of the investigation that it describes. Detective Condon also replied "Yes." 8 Mr Spark deposed to a belief which he holds that Detective Condon's responses to the questions that he asked him, including but not limited to the ones I have set out, were true. 9 Mr Spark also said that on 14 January 2009 he conducted a search of the records of the Computerised Operational Policing System and located a record that revealed that on 9 January 2009 the defendant had been charged with the offences described in the Facts Sheet. Mr Spark annexes a copy of that record to his affidavit. 10 In applying for the orders sought by the plaintiff on an ex parte basis, Mr Singleton of counsel, who appeared for the plaintiff, quite properly drew to my attention a recent decision of Adams J in New South Wales Crime Commission v Vu & Tran (23 December 2008, unreported). Mr Singleton frankly conceded that the facts in that case were, for all relevant purposes but allowing for understandable differences, effectively identical with the facts of the present case. More particularly, the application in that case was made upon the basis of an affidavit sworn by Mr Spark in which he deposed to cognate facts and circumstances in a way not dissimilar to the present case. Adams J in that case rejected the plaintiff's application for an order under s 10 for any relief at all. 11 In proceedings before me, Mr Singleton also conceded that if the decision of Adams J were correct, the present application before me must fail. In aid of a submission that the plaintiff is entitled to the relief which it seeks, however, Mr Singleton contended that the decision of Adams J was plainly wrong and that in those circumstances ought not be followed by me in the present case. 12 For some time prior to the decision in International Finance Trust Company Limited v New South Wales Crime Commission [2008] NSWCA 291, applications of the type with which I am now dealing were customarily heard in chambers and were disposed of without reasons being given. Following that decision, it seems clear that such applications must now be made in open court and that reasons for whatever decision is arrived at must be provided. 13 A significant issue arising in that case was the admissibility of evidence tendered in support of the application for an order under s 10 of the Act. The learned President and her Honour Beazley JA came to the view that the evidence in that case was inadmissible and, accordingly, that the plaintiff was not entitled to the relief that it sought. However, they each expressed the view at pars [51] and [56] respectively that, if they were wrong about the admissibility of the evidence in that case, they agreed with the analysis of the Chief Judge at Common Law and with the conclusions that he reached about the reasonableness of the grounds for suspicion held by the equivalent deponent in that case. 14 The Chief Judge at Common Law discussed the sufficiency of the evidence for the deponent's suspicions at pars [117] and following and expressed his conclusions between pars [132] and [135] inclusive as follows: "[132] There can be no doubt that the matters to which Mr Moerman deposed justify the suspicion which he holds. An arrangement by which invoices are created which are utilised to falsely represent that monies have been paid and a business expense can legitimately be claimed for services which have not been rendered suggests at least to the level of suspicion that relevant offences have been committed.

[133] The only question is whether, when the evidence before the court is confined to a police officer's account of the findings of a police investigation and primary documentary material has not been tendered, the Court may be satisfied that there are reasonable grounds for the officer's suspicion. It was submitted by the appellants that unless admissible evidence tending to prove the matters upon which the suspicion was based was tendered the application should be dismissed.

[134] I do not accept the submission. As Rockett makes plain there is a significant difference between legislation which requires a judicial officer to be satisfied of a particular state of facts and legislation which requires a judicial officer to be satisfied that there are reasonable grounds for a suspicion held by another. If the judicial officer must be satisfied evidentiary requirements and the obligation to prove matters to the appropriate level will be engaged. When however the judicial officer is called upon to determine whether there are reasonable grounds for another's belief it is necessary to make the relevant determination by examining the matters which that person has considered in forming their belief.

[135] In the present case the foundation for Mr Moerman's belief is the joint investigation. Being an investigation to assist in the enforcement of the law it is appropriate for Mr Moerman to have significant regard to the findings of the investigation. In short it is reasonable for him to rely on those findings in forming his suspicion. It may be that it would have been preferable if his evidence had included a copy of any report, if there be one, of the investigation and that he explicitly deposed to the fact he relied on matters in that report when forming his suspicion. That he has not taken this approach may reflect the fact that no written document exists, although this would be unusual. Although it would be preferable if it had been put into evidence the absence of any written material is not in my opinion fatal to the application. The views expressed by Mr Moerman are plainly his own views formed from his involvement in the investigation of these matters and are no doubt also informed by the views of others. His view is expressed having regard to a body of collected investigative material. When it is appreciated that significant monies are being removed from Australia to New Zealand in response to allegedly false invoices created and then returned a relevant suspicion must be created in the mind of any reasonable person. Because that suspicion is based on the work of the joint investigation it has a substantial foundation and is in my judgment based on reasonable grounds."

15 The plaintiff contends before me that the critical distinction between the present case and the recent decision of Adams J on the one hand and the decision of the Court of Appeal in International Finance (supra) on the other hand is that the decision of the Court of Appeal dealt with evidence contained in an affidavit that was for all relevant intents and purposes wholly, or at least mainly, inadmissible and that the Court of Appeal held that once that material was excluded there was insufficient evidence left to support the suspicions to which the deponent referred. The evidence was excluded by applying the normal rules. 16 The plaintiff contends that, in the proceedings before Adams J and, by analogy, in the proceedings before me, the evidence was and is presently in an admissible form. Mr Singleton has informed me from the Bar table and I accept, as he was counsel for the plaintiff in the proceedings before Adams J, that none of the material in Mr Spark's equivalent affidavit was excluded by his Honour. The plaintiff submits that once Mr Spark's evidence is admitted it becomes clear upon what basis his suspicions are held. The plaintiff contends that all that is required is sufficient evidence reasonably to support that suspicion. In other words, it is unnecessary to prove any facts apart from the fact of receiving the information that induced the formation of a suspicion in the first place. 17 The point upon which the plaintiff presently relies to argue, and hopefully to demonstrate, that the decision of Adams J was wrong is that his Honour appears to have formed the view, and accordingly decided the case upon the basis, that the plaintiff must go as far as to establish by admissible evidence the source of the information otherwise amounting to hearsay evidence. In other words, the plaintiff contends, in contrast to his Honour's view, that the present plaintiff need only establish or prove by admissible evidence how the relevant deponent formed the suspicion that he formed and that it was reasonable for the purposes of s 10 but not that the suspicion is correct. 18 The plaintiff proffers the following analogy. If Mr Spark were to meet and to be told something in the street by, for example, a judge of this Court, that to the knowledge of that judge certain facts and circumstances were true, it would be sufficient for that deponent to rely upon his knowledge of the judge and of his veracity to permit him reasonably to form a suspicion of the matters about which he was required to form such a suspicion. In contrast, a reliance by the deponent upon information given to him by an apparently or probably unreliable stranger otherwise to like effect would not operate in the same way. 19 The plaintiff contends in the circumstances that Adams J, with respect to him, did not have regard to what the President said at par [51] of the International Finance case or what the Chief Judge at Common Law said particularly at par [135].

20 In the present case it is accurate to observe that anything told to Mr Spark either by Detective Volpe or Detective Condon was hearsay and otherwise inadmissible to prove the truth of the facts related by them to Mr Spark. However, consistently with the argument that I have attempted previously to summarise, the plaintiff contends that, even though that evidence may be hearsay, the evidence given by Mr Spark about the views he formed, having regard to that evidence conveyed to him by each of those officers, was itself admissible and, accordingly, sufficient to satisfy the opinions expressed by those members of the Court of Appeal in International Finance at the paragraphs to which I have referred. 21 In my opinion, that submission is correct. As the paragraphs from the judgment of the Chief Judge at Common Law in International Finance make clear, the equivalent deponent in that case was entitled to have significant regard to the findings of the police investigation to the details of which he referred. As his Honour said, it was reasonable for the deponent to rely on those findings in forming his suspicion even (I interpolate) if he was not able from his own first-hand knowledge to verify their accuracy. As his Honour indicated, it maybe that it would have been preferable if the deponent's evidence had included additional material. Despite that preference, his Honour indicated that the absence of such material was not, in his opinion, fatal to the application. 22 It seems to me, having regard to the scheme of the Act, that s 10 attracts attention to the matters that the relevant deponent describes as the grounds upon which his or her suspicion is based. There must be reasonable grounds for any such suspicion. It seems to me that, having regard to Mr Spark's experience and his knowledge of the matters to which he refers, and which he describes in an admissible form, there are or were reasonable grounds for him to form the suspicion in the way that he described. 23 Part of the plaintiff's submission before me included a contention respectfully raised for the purpose of advancing its arguments that the view adopted by Adams J was unduly technical. It is both inappropriate and unnecessary for me to express a view about that. Similarly, it is unnecessary for me to express a view about whether or not the decision reached by Adams J in the case before him was wrong. 24 Undoubtedly the plaintiff's submissions before me have been advanced with the benefit of an appreciation of Adams J's decision on the earlier occasion. For my part, with the benefit of those submissions, it seems to me that applying the decision of the Court of Appeal in International Finance Mr Spark's suspicion has been based on reasonable grounds and that there is admissible evidence of that fact. 25 Counsel for the plaintiff has provided me with a draft form of the orders which are sought by the plaintiff. Accordingly, upon the plaintiff by its counsel giving the usual undertaking as to damages and having regard to the matters deposed to by Jonathan Lee Spark in his affidavit of 14 January 2009, I will make orders 1 to 7 inclusive in a document headed "Order" which I will initial and date this day and place with the papers.

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