NSW Crime Commission v White

Judgment 1By summons filed on 12 August 2013, the plaintiff seeks various orders, including an order pursuant to s 10A of the Criminal Assets Recovery Act 1990 (the Act) restraining dealings with any interest in property, including certain property described in Schedule One to the summons; an order pursuant to s 12(1)(b)(i) of the Act authorising the examination of the defendant concerning his financial affairs; an order pursuant to s 12(1)(c1) of the Act requiring the defendant to furnish to the plaintiff within 21 days a statement verified on oath setting out full particulars of all his property; an order pursuant to s 10B(2) of the Act that the New South Wales Trustee and Guardian take control of all of the defendant's interests in the property specified in Schedule One to the summons; and an assets forfeiture order pursuant to s 22 of the Act. 2The orders sought in the summons, apart from the assets forfeiture order referred to above, were sought ex parte on the day of filing the summons, 12 August 2013. 3In support of its application the plaintiff relied on the following documents: (1)Affidavit of Jonathan Lee Spark sworn 12 August 2013; and (2)Statement of Facts and Circumstances relied on in an application for a restraining order and an assets forfeiture order pursuant to UCPR 1.26 (Statement of Facts and Circumstances). 4Section 10A of the Act relevantly provides: "10A Proceedings for restraining orders (1) Application for orderThe Commission may apply to the Supreme Court, ex parte, for a restraining order in respect of specified interests, a specified class of interests, or all the interests, in property of any person (including interests acquired after the making of the order). ... (3) The Commission may only apply for a restraining order that relates to interests in property derived from external serious crime related activity if the person who has the interests is domiciled in New South Wales or the property is situated in New South Wales. (4) Notice to affected person of applicationDespite the application for a restraining order being made ex parte, the Supreme Court may, if it thinks fit, require the Commission to give notice of the application to a person who the Court has reason to believe has a sufficient interest in the application. A person who is required to be notified is entitled to appear and adduce evidence at the hearing of the application. (5) Determination of applicationsThe Supreme Court must make a restraining order if the application for the order is supported by an affidavit of an authorised officer stating that: (a) in the case of an application in respect of an interest referred to in subsection (1) - the authorised officer suspects that: (i) the person whose interest is the subject of the application has engaged in a serious crime related activity or serious crime related activities... and stating the grounds on which that suspicion is based ... and the Court considers that, having regard to the matters contained in any such affidavit and any evidence adduced under subsection (4), there are reasonable grounds for any such suspicion." 5The plaintiff's application for an order under s 10A was made ex parte, as it is entitled to do under s 10A(1). I considered the documents relied upon in support of the application in chambers. 6The plaintiff's application is supported by the affidavit of Jonathan Lee Spark sworn 12 August 2013. Mr Spark, who is an authorised officer of the plaintiff within the meaning of s 4(1) of the Act, deposes to his suspicion that the defendant has engaged in serious crime-related activity or crime-related activities, being the murder of Saaid Peter Zaiter on 16 December 2008 contrary to s 18(1)(a) of the Crimes Act 1900. This is a serious criminal offence within the meaning of s 6(2)(d) of the Act because it involves homicide. 7Mr Spark sets out the grounds for his suspicion in [4] - [17] of his affidavit. The deponent has annexed his correspondence with Detective Sergeant Virginia Gorman to which is attached the sentencing judgment in respect of the defendant following his conviction for murder after a trial by jury (R v White [2012] NSWSC 1573) in which the relevant facts relating to the commission of the offence are set out. A document prepared by Detective Sergeant Gorman which sets out facts relating to the commission of the offence and the property set out in Schedule One of the summons (the White report) is also attached. Mr Spark deposed that the facts set out in the sentencing judgement and the White report are, to the best of his knowledge and belief, true. 8Mr Spark also deposed in his affidavit to inquiries he caused to be made as to the ownership of a BMW motor vehicle formerly registered in Victoria in the name of Riz Nominees Pty Limited, the ownership of which he suspected had been transferred to the defendant. He also attached witness statements relating to the purchase of property at Heathcote and Kamarooka in Victoria by the defendant and relevant documents relating to these transactions. 9Section 10A(5) provides, in substance, that I am obliged to make the order sought if the application is supported by an affidavit of an authorised officer stating that the officer suspects that the defendant has engaged in a crime related activity and setting out the grounds for the suspicion and I consider that, having regard to the matters contained in the affidavit, there are reasonable grounds for any such suspicion. 10In all the circumstances I am satisfied that Mr Spark's affidavit meets the requirements of s 10A(5) as to the matters which he suspects. 11I am also satisfied, having regard to Mr Spark's affidavit that there are reasonable grounds for his suspicion. There can be no doubt that the defendant murdered Mr Zaiter since he was convicted after trial by jury. In determining whether there are reasonable grounds for Mr Spark's suspicion either that the defendant has acquired serious crime derived property because of the activity or the interest is serious crime derived property, I have been guided by what the High Court said in George v Rockett [1990] HCA 26; 170 CLR 104. The Court (Mason CJ, Brennan, Deane, Dawson, Toohey and Gaudron JJ) said, at [14]: "Suspicion, as Lord Devlin said in Hussien v Chong Fook Kam (1970) AC 942, at p 948, 'in its ordinary meaning is a state of conjecture or surmise where proof is lacking: "I suspect but I cannot prove.''' The facts which can reasonably ground a suspicion may be quite insufficient reasonably to ground a belief, yet some factual basis for the suspicion must be shown. In Queensland Bacon Pty Ltd v Rees [1966] HCA 21; (1966) 115 CLR 266, a question was raised as to whether a payee had reason to suspect that the payer, a debtor, 'was unable to pay (its) debts as they became due' as that phrase was used in s.95(4) of the Bankruptcy Act 1924 (Cth). Kitto J. said (at p 303): 'A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to "a slight opinion, but without sufficient evidence", as Chambers's Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. The notion which "reason to suspect" expresses in sub-s.(4) is, I think, of something which in all the circumstances would create in the mind of a reasonable person in the position of the payee an actual apprehension or fear that the situation of the payer is in actual fact that which the sub-section describes - a mistrust of the payer's ability to pay his debts as they become due and of the effect which acceptance of the payment would have as between the payee and the other creditors.'" 12I do not consider that it would be appropriate to require the plaintiff to notify the defendant of the application under s 10A(4) in light of Mr Spark's evidence. Although it may be more difficult for the defendant to dispose of assets while he is in custody than were he at liberty, I accept Mr Spark's evidence as to the speed with which cash and motor vehicles can be disposed of which have the effect of defeating the operation of the Act and restraining orders made under it. 13Since the defendant is in custody in New South Wales he is domiciled in New South Wales. Accordingly, the Commission is entitled to make this application for a restraining order: s 10A(3). 14The orders, other than the restraining order, are designed to ensure that the plaintiff is apprised of the full extent of the defendant's property interests. These orders are, accordingly, ancillary to the restraining order which, in terms, restrains dealing with any interest the defendant may have in property as defined by s 7 of the Act. The Statement of Facts and Circumstances states that the plaintiff also seeks, in its summons, an assets forfeiture order pursuant to s 22 of the Act. The plaintiff states that it intends to rely on the evidence obtained in the course of an examination of the defendant and statement of affairs provided pursuant to s 12 of the Act in support of its application for the assets forfeiture order. 15In all the circumstances, I consider it to be appropriate to make the orders. 16I note the undertaking given by the solicitor for the plaintiff, being the usual undertaking as to damages. 17On the basis of that undertaking, I make orders in terms of paragraphs 1 to 8 of the draft minute of order provided to me by the plaintiff which are as follows: 1.Pursuant to section 10A of the Criminal Assets Recovery Act 1990 (the Act) no person (other than any registered mortgagee dealing with its right to do so under the registered mortgage) is to dispose of, or attempt to dispose of, or otherwise deal with or attempt to otherwise deal with all of the interest in property (within the meaning of "interest in property" as defined in section 7 of the Act) of Rodney Boyd White, including in the property specified in Schedule One hereto. 2.Pursuant to section 12(1)(b)(i) of the Act Rodney Boyd White shall be examined on oath before a Registrar of the Court concerning his affairs, including the nature and location of any property in which he has an interest. 3.Leave is granted to the Plaintiff to obtain from the Registry dates for the examination ordered in Order 2 above. 4.Pursuant to section 10B(2) of the Act the New South Wales Trustee and Guardian shall take control of all the interests of Rodney Boyd White in the property specified in Schedule One hereto. 5.Pursuant to section 12(1)(c1) of the Act Rodney Boyd White shall furnish to the Plaintiff, within twenty one (21) days after service of a sealed copy of these orders on Rodney Boyd White, a statement verified by oath of Rodney Boyd White setting out the particulars sought in Schedule Two hereto. 6.Liberty is granted to the Plaintiff and Rodney Boyd White to apply on three (3) days' notice. 7.The costs of obtaining these orders shall be costs in the cause. 8.Pursuant to Rule 36.4(1)(a) of the Uniform Civil Procedure Rules 2005 these orders are to take effect as of the date hereof.