NSW Crime Commission v Tucker

PARTIES : New South Wales Crime Commission (Plaintiff) Jennifer Christine Tucker (Defendant)

COUNSEL : P Singleton (Plaintiff) Ex parte

SOLICITORS : New South Wales Crime Commission (Plaintiff) Ex parte

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

2009/10475 NEW SOUTH WALES CRIME COMMISSION v JENNIFER CHRISTINE TUCKER

JUDGMENT 1 HER HONOUR: On 23 January 2009 the plaintiff commenced proceedings by filing a summons in Court pursuant to a grant of leave. 2 The relief sought in the summons included an order pursuant to s 10(2) of Criminal Assets Recovery Act 1990 ("the Act") restraining access to, or dealing in, the funds held in nominated bank accounts in the name of the defendant together with a general restraint on the disposition or dealing with other unspecified interests in property to which she is entitled ("the restraining orders"). Ancillary orders pursuant to s 12 of the Act requiring the defendant to furnish a statement verified by oath detailing the full particulars of the nature and extent of any interest in property held by her, together with an order that she be examined on oath concerning her financial affairs were also sought. In addition, pursuant to s 27 of the Act, the summons sought a substantive order requiring the defendant to pay an amount assessed by the Court as the value of proceeds derived from her illegal dealings over the previous six years. 3 In the proceedings before me the plaintiff moved on the summons only to the extent of seeking the restraining orders and the ancillary orders. 4 By way of an opening submission, but before any evidence had been tendered in support of the summons, my attention was drawn to the Court of Appeal decision in International Finance Trust Company Limited & Anor v New South Wales Crime Commission [2008] NSWCA 291 as authority for the approach which the Court is to adopt to an application under s 10 of the Act. I was also referred to a recent decision of Adams J in New South Wales Crime Commission v Vu & Tran (Supreme Court of New South Wales, 23 December 2008, unreported) and a more recent decision of Harrison J in New South Wales Crime Commission v Sun [2009] NSWSC 6 where their Honours both referred to International Finance and the principled approach to applications of this kind as reflected in the judgment of the President at [21]-[24], with whom Beazley JA agreed at [56], and the judgment of McClellan CJ at CL at [132]-[135] who was in agreement with the majority on this aspect. 5 In both cases the Court was asked to make orders of the kind sought in the proceedings before me. In each case it would appear that the application was supported by affidavit evidence of a similar kind to the evidence upon which the plaintiff proposed to rely in the instant proceedings, namely by the deponent to the supporting affidavit relying upon a facts sheet, prepared as a result of a police investigation into the defendant's conduct, to ground the suspicion that the defendant has engaged in a serious crime related activity or activities as defined. 6 In Vu & Tran Adams J refused the application. Although his Honour accepted that having regard to the decision of the Court of Appeal in International Finance it was open to the plaintiff to seek restraining orders on the basis of the deponent's reliance on a police officer's account of the findings of a police investigation, evidence that would otherwise be inadmissible hearsay, his Honour was not satisfied that the plaintiff's application was adequately supported by the evidence tendered before him where the person from whom the deponent acquired the information contained in the facts sheet was not identified. In Sun, after considering the approach taken by Adams J, Harrison J came to a different view as to the relevant principles to be applied in assessing the adequacy of the evidence tendered in support of the application and, after considering the evidence upon which the plaintiff relied in the proceedings, granted the relief sought. Despite the fact that the plaintiff sought to persuade his Honour that Adams J was in error in refusing to make the orders or that his approach to an assessment of the evidence was "unduly technical", his Honour was not satisfied it was either necessary or appropriate for him to make such a finding. 7 Given the differing approaches by Harrison and Adams JJ, coupled with the fact that I was satisfied of the need to ensure that the funds held in the nominated bank accounts were not dissipated over the long weekend, it being 4:45pm on Friday 23 January 2009 when leave was granted to commence the proceedings, I made orders restraining any dealing with the funds in exercise of the Court's inherent power and stood over the further hearing of the summons to 9:30am on Tuesday 27 January 2009.

8 After considering the evidence upon which the plaintiff relied and hearing submissions as to the approach I should take to an assessment of the sufficiency of that evidence by reference to International Finance, on 27 January 2009 I granted the plaintiff the relief sought in the summons. What follows are my reasons for that decision. 9 In support of the application the plaintiff relied upon an affidavit of Jonathan Lee Spark sworn on 23 January 2009 together with a statement of facts and circumstances prepared pursuant to rule 1.23 of the Uniform Civil Procedure Rules 2005.

10 Section 10(3) of the Act provides that the Court must make the restraining orders if it is satisfied of the following matters: 1. The application is supported by an affidavit of an authorised officer;

2. The authorised officer suspects that the defendant has engaged in a serious crime related activity or serious crime related activities as defined in the Act;

3. The affidavit states the grounds upon which the authorised officer's suspicion is based; and

4. The Court is satisfied, having regard to the matters contained in the affidavit, that there are reasonable grounds for that suspicion. 11 I am satisfied that in his capacity as Assistant Director of Financial Investigations within the plaintiff organisation Mr Spark is an authorised officer within the meaning of s 4 of the Act. I note that Mr Spark has been employed in that capacity since 1997 and that since that time he has had access to an internal telephone system maintained by the New South Wales Police Force enabling him to contact police officers directly. 12 I am also satisfied that Mr Spark suspects that the defendant has engaged in a serious crime related activity or activities as defined in s 6 of the Act, in that she has knowingly dealt with the proceeds of crime contrary to s 193B(2) of the Crimes Act 1900, an offence which falls within the definition of serious crime related activity as defined in s 6(2) of the Act. 13 In his affidavit Mr Spark states the grounds upon which his suspicion is based by reference to the following matters of fact: 1. In the course of his employment he has had numerous conversations with Detective Sergeant Lindsay Kerfoot ("Kerfoot") of the New South Wales Police Force.

2. On 22 January 2009 Kerfoot advised him that police intended to arrest the defendant the following day and that a draft facts sheet had been prepared in connection with her arrest.

3. Mr Spark requested that a copy of the draft fact sheet be forwarded to him by facsimile transmission.

4. On the same date he received and had regard to a draft facts sheet under cover of a facsimile transmission bearing the name of Detective Senior Constable Nestorovic ("Nestorovic") as the person who forwarded it.

5. He then telephoned Nestorovic by the internal telephone system and was advised of the following matters which he believed to be true: (i) that Nestorovic prepared the facts sheet on the basis of information obtained by police as a result of the investigation to which the facts sheet refers;

(ii) that Nestorovic was involved in the investigation described in the fact sheet; and

(iii) that to the best of his knowledge and belief the content of the draft facts sheet was true.

14 The facts sheet details an investigation into an armed robbery of the Mondial Jewellery Store in the Queen Victoria Building, George Street, Sydney on 19 January 2008 in the course of which jewellery and diamonds to an estimated value of $1,970,000.00 were stolen. Police believe that the defendant had knowledge of the robbery by reason of her intimate association with those who were responsible for the robbery, in particular her de facto partner. 15 A taskforce comprised of officers of the Robbery and Serious Crime Squad ("the task force") was charged with the task of investigating the robbery. Nestorovic and Kerfoot (both officers of the Robbery and Serious Crime Squad) were named in the facts sheet as officers in charge of the investigation.

16 The facts sheet records that in the course of the investigation the task force established that on 1 February 2008 jewellery stolen from the Mondial store was being offered for sale to the public from residential premises leased to the defendant. Witnesses identified the defendant hosting the sale. She was observed seated inside the dining room of the premises with a calculator, pen and paper offering for sale various items of jewellery from a box displaying stock stickers from the Mondial store. The facts sheet also records that the jewellery offered for sale corresponded with the description and part number of the stolen goods although offered for sale at a third of the cost price. The draft facts also recite that witnesses observed the defendant to turn to a male when purchasers asked questions about the jewellery and he would either nod or shake his head in apparent agreement or disapproval. 17 I am satisfied that Mr Spark's affidavit contains admissible evidence and that it is sufficient to ground the suspicion to which s 10(3) of the Act refers, namely that the defendant has engaged in a serious crime related activity or serious crime related activities as defined in the Act. I am also satisfied that there are reasonable grounds for Mr Spark holding those suspicions given his established professional relationship with Kerfoot and the fact that Kerfoot and Nestorovic were named officers in charge of the investigation into the defendant's activities. Since it was not necessary for Mr Spark to have direct knowledge of the facts to which the facts sheet refers, or to satisfy himself personally of their accuracy, I have had regard to the form and content of the facts sheet as an additional source of evidence which I am satisfied reasonably supports the suspicions he holds. 18 Although I am invited by the plaintiff to accept that the evidence in the present case is identical with the type of evidence relied upon by the plaintiff in Sun and Vu & Tran, and for that reason that I should declare my preference for the approach and analysis of Harrison J and express disagreement with the approach taken by Adams J, I decline to do so. As the President observed in International Finance at [44]-[47], since the operation of the Act has the potential to interfere with the property rights and interests of individuals on both an interim and final basis, the reasonableness of the grounds of suspicion of the authorised officer should be scrutinised and evaluated by the Court on a case by case basis. I was not provided with the affidavit that accompanied the plaintiff's application for orders in either of the cases to which I was referred for comparative purposes and, accordingly, I do not consider that any commentary on their Honours' assessment and evaluation of the evidence tendered before them is warranted. Suffice for me to note that the evidence in the present case (and, it would appear, the evidence tendered before Harrison J in Sun) does not suffer from the defect identified by Adams J in Vu & Tran. Nestorovic was one of a number of named police officers who together comprised the task force that investigated the defendant's criminal activities and the facts sheet was prepared by him on the basis of his shared involvement with those police as distinct from it being simply verified by him without his colleagues being named or identified. For my part, I wish only to add that I would consider it a rare case where a police officer who prepares a facts sheet or other report of an investigation is not in a position to identify, by name, the police officers and/or other third party sources from whom information is gathered such as would have addressed what Adams J regarded as a deficiency in the evidence relied upon by the plaintiff in the case before him. **********

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