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Supreme Court 12 August 2013

NSW Crime Commission v White

[2013] NSWSC 1090

HomicideFraud & dishonesty
CRIMINAL LAW

Citation: NSW Crime Commission v White [2013] NSWSC 1090
Court: Supreme Court of New South Wales
Date: 12 August 2013
Judge(s): Adamson J

Background

The NSW Crime Commission applied to the Supreme Court for a suite of orders under the Criminal Assets Recovery Act 1990 (CARA) targeting the property interests of a man who had been convicted of murder following a jury trial. The defendant had been convicted of murdering Saaid Peter Zaiter on 16 December 2008, contrary to s 18(1)(a) of the Crimes Act 1900, and was in custody in New South Wales at the time of the application.

The Commission brought the application on the same day as filing the summons. With the exception of the assets forfeiture order, all orders were sought on an ex parte basis, meaning the defendant was not present or notified before the Court considered the application.

The property in question included a BMW motor vehicle and real property interests in Victoria. The Commission's case rested on an affidavit from an authorised officer, Jonathan Lee Spark, who set out his suspicion that the defendant's property was serious crime derived property connected to the murder.

  • Whether the affidavit of the authorised officer satisfied the statutory requirements under s 10A(5) of CARA, such that the Court was obliged to make a restraining order.
  • Whether there were reasonable grounds for the authorised officer's suspicion that the defendant had engaged in serious crime related activity and that his property was serious crime derived.
  • Whether the defendant should have been notified of the ex parte application before orders were made.
  • Whether the defendant's custody in New South Wales satisfied the domicile requirement under s 10A(3) of CARA.

Decision

Adamson J found that the Spark affidavit met the requirements of s 10A(5) of CARA. The affidavit identified the authorised officer's suspicion that the defendant had engaged in serious crime related activity, specifically murder, and set out the grounds for that suspicion, including reference to the sentencing judgment from the murder trial and a police report prepared by Detective Sergeant Gorman.

The Court was satisfied there were reasonable grounds for Mr Spark's suspicion. Her Honour applied the standard articulated by the High Court in George v Rockett (1990) 170 CLR 104, which draws a distinction between suspicion and belief. A suspicion requires some factual basis, but the facts need not be sufficient to ground a belief. Given the defendant's conviction after a jury trial, the Court noted there could be no doubt the murder occurred.

On notification, Adamson J declined to require the Commission to notify the defendant before making the orders. Although a person in custody has fewer opportunities to dispose of assets than one at liberty, the Court accepted Mr Spark's evidence that cash and motor vehicles can be disposed of quickly in ways that would defeat the purposes of CARA. The Court also confirmed that the defendant's custody in New South Wales satisfied the domicile requirement under s 10A(3), entitling the Commission to make the application.

The ancillary orders (examination on oath, statement of affairs, and NSW Trustee and Guardian control) were characterised as measures to ensure the Commission could ascertain the full extent of the defendant's property interests, in anticipation of a future assets forfeiture application under s 22 of CARA.

Orders Made

  • Restraining order (s 10A): No person, other than a registered mortgagee acting under the registered mortgage, is to dispose of or otherwise deal with any interest in property held by the defendant, including the property specified in Schedule One.
  • Examination on oath (s 12(1)(b)(i)): The defendant is to be examined on oath before a Registrar of the Court concerning his affairs, including the nature and location of his property interests. Leave granted to the Commission to obtain examination dates from the Registry.
  • NSW Trustee and Guardian control (s 10B(2)): The NSW Trustee and Guardian is to take control of all the defendant's interests in the Schedule One property.
  • Statement of affairs (s 12(1)(c1)): The defendant is to furnish to the Commission, within 21 days of service of the sealed orders, a sworn statement setting out full particulars of his property as specified in Schedule Two.
  • Liberty to apply: Both parties granted liberty to apply on three days' notice.
  • Costs: Costs of obtaining the orders are costs in the cause.
  • Effective date: Orders to take effect as of the date made (12 August 2013).

Key Takeaways

  • Under s 10A(5) of CARA, the Supreme Court is obliged to make a restraining order once a valid authorised officer affidavit is filed and the Court is satisfied there are reasonable grounds for the suspicion stated in it. The statutory threshold is suspicion, not belief, following the standard in George v Rockett.
  • A prior conviction after jury trial provides a firm factual foundation for an authorised officer's suspicion that a defendant engaged in serious crime related activity, removing any real doubt about whether the underlying conduct occurred.
  • Custody in New South Wales satisfies the domicile requirement in s 10A(3) of CARA, entitling the Commission to bring an application even where the relevant property is located in another state.
  • The ex parte procedure under s 10A permits the Court to dispense with notification to the defendant where there is evidence that assets, including cash and vehicles, could be rapidly disposed of to defeat the operation of CARA, even when the defendant is in custody.
  • Ancillary orders for examination on oath and a sworn statement of affairs under s 12 are designed to support a subsequent assets forfeiture application under s 22, rather than being ends in themselves.

Legislation and Cases Referenced

Legislation:
- Criminal Assets Recovery Act 1990 (NSW), ss 7, 10A, 10B, 12, 22
- Crimes Act 1900 (NSW), s 18(1)
- Uniform Civil Procedure Rules 2005 (NSW), r 36.4(1)(a), r 1.26

Cases:
- George v Rockett [1990] HCA 26; (1990) 170 CLR 104
- R v White [2012] NSWSC 1573 (sentencing judgment relied upon in support of the application)