New South Wales Crime Commission v White [2015] NSWSC 1349

Supreme Court New South Wales

Medium Neutral Citation: New South Wales Crime Commission v White [2015] NSWSC 1349 Hearing dates: 8 September 2015 Date of orders: 08 September 2015 Decision date: 08 September 2015 Jurisdiction: Common Law Before: Wilson J – Duty Judge Decision: 1. Pursuant to section 10A of the Criminal Assets Recovery Act 1990 (except as provided in Orders 2, 3 and 4 below) 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 otherwise to deal with any interest in property (within the meaning of "interest in property" as defined in s 7 of the Criminal Assets Recovery Act 1990) of John Charles White, including his interest in the property specified in Schedule One and Schedule Two hereto ("the restraining order"). 2. Pursuant to s 12(1) of the Criminal Assets Recovery Act 1990 the restraining order be varied to allow John Charles White or any other person ("the vendor") to deal with the interest of John Charles White in the property specified in Item One of Schedule Two hereto ("the Whyalla property") for the purpose either of completing the sale of the Whyalla property or of selling the Whyalla property at a price agreed in writing by the Plaintiff ("the sale of the Whyalla property"). 3. Pursuant to s 12(1) of the Criminal Assets Recovery Act 1990 the proceeds received from the sale of the Whyalla property may be applied to pay the following: a) the amount necessary to discharge any registered mortgage secured over the Whyalla property; b) reasonable legal and conveyancing costs on the sale of the Whyalla property; c) any reasonable agent's commission on the sale of the Whyalla property; d) any fee payable to a registered valuer for a valuation of the Whyalla property; e) any rates or other adjustments or monies reasonably payable under any Agreement for Sale; and f) any other expenses incurred with the consent in writing of the Plaintiff, the giving of such consent to be in the absolute discretion of the Plaintiff. 4. Pursuant to s 10B(2) of the Criminal Assets Recovery Act 1990, the net proceeds of the sale of the Whyalla property (after the payment of monies mentioned in Prayer 3 above) shall be paid, by bank cheque, to the NSW Trustee and Guardian, to be held by it until further order. 5. Pursuant to s 12(1)(b)(i) of the Criminal Assets Recovery Act 1990 John Charles 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. 6. Leave is granted to the Plaintiff to obtain from the Registry dates for the examination ordered in Order 5 above. 7. Pursuant to s 10B(2) of the Criminal Assets Recovery Act 1990 the New South Wales Trustee and Guardian shall take control of all the interest of John Charles White in the property specified in Item Two of Schedule Two hereto. 8. Pursuant to s 12(1)(c1) of the Criminal Assets Recovery Act 1990 John Charles White shall furnish to the Plaintiff, within twenty one (21) days after service of a sealed copy of these orders on John Charles White, a statement verified by oath or affirmation of John Charles White setting out the particulars sought in Schedule Three hereto. 9. Liberty is granted to the Plaintiff and John Charles White to apply on three (3) days' notice. 10. The costs of obtaining these orders shall be costs in the cause. 11. Pursuant to r 36.4(1)(a) of the Uniform Civil Procedure Rules 2005 these orders are to take effect as of the date hereof. Catchwords: CIVIL PROCEDURE – civil – Criminal Assets Recovery Act 1990 – restraining order Legislation Cited: Criminal Assets Recovery Act 1990 Drug Misuse and Trafficking Act 1985 Uniform Civil Procedure Rules 2005 Category: Procedural and other rulings Parties: New South Wales Crime Commission (Plaintiff) John Charles White (Defendant) Representation: Ms E Goh (NSW Crime Comission) Ex parte File Number(s): 2015/263371 Publication restriction: None

EX TEMPORE Judgment 1. By summons filed with the leave of the Court this morning the New South Wales Crime Commission, the plaintiff, seeks orders against the defendant, John Charles White, pursuant to s 10A of the Criminal Assets Recovery Act 1990 ("the Act"). Those orders are sought with respect to a number of items of property which are set out in two schedules to the summons. The Commission has filed a Statement of Facts and Circumstances in accordance with r 1.26 of the Uniform Civil Procedure Rules 2005, and tendered and relied upon an affidavit of Jonathan Lee Spark sworn 7 September 2015. 2. In his affidavit Mr Spark refers to and exhibits a number of documents which are annexed to his affidavit. 3. Section 10A of the Act provides for applications such as this to be heard ex parte and the application is being heard and dealt with in the absence of Mr White. 4. In his affidavit of 7 September 2015 Mr Spark deposes that he is an authorised officer within the meaning of s 4(1) of the Act. He is a person authorised in writing by the Commission to act as an authorised officer for the purposes of s 10A and Pt 4 of the Act. 5. Mr Spark has had access to material produced as a consequence of a Crime Commission and New South Wales Police investigation into the defendant, Mr White, and Mr Spark has become aware of information upon the basis of which he concludes that there is a reasonable basis to suspect, and he holds such a suspicion, that Mr White is involved in serious crime related activities as defined by s 6 of the Act. 6. Those serious crime related activities are the supply of prohibited drugs being cannabis in an amount which is not less than the large commercial quantity specified for that prohibited drug. Such an offence falls within s 25 of the Drug Misuse and Trafficking Act 1985. I am satisfied that it is a serious criminal offence pursuant to s 6(2)(b) of the Act. 7. Mr Spark has made a number of inquiries of the New South Wales Police and obtained information as to the alleged activities of Mr White. Mr White has been the subject of an investigation by New South Wales Police involving both physical and electronic surveillance of a number of persons. Mr White's conduct was monitored and it was established that he is the owner of a private aircraft. Police investigations established, and Mr Spark believes and suspects, that Mr White has been involved in the transport of large quantities of prohibited drugs into the State using the aircraft of which he is the proprietor. 8. During August 2015, investigators discovered that the defendant was engaged in the planning of and negotiation for an arrangement for moving a large amount of prohibited drugs across the border from South Australia into New South Wales, with the defendant using his private aircraft (which is known as a Sting single engine aircraft) to transport a significant quantity of two particular drugs. 9. Some 100 pounds of cannabis was to be moved from South Australia to the north west of New South Wales, together with a significant quantity of a particular drug called trifluoromethylphenylpiperazine. A further quantity of methylamphetamine was also part of the consignment from South Australia to Deniliquin. The defendant was to be paid a fee of some $25,000 for his role in the transportation of the drug. 10. Surveillance of various persons involved in this criminal plan captured images of persons loading the defendant's aircraft with the drugs, subsequent to which the defendant flew his aircraft out of South Australia and into New South Wales. He was arrested on landing in this State. His aircraft was searched and the drugs to which I have referred were discovered and seized. 11. The defendant is said to have made a number of admissions to the New South Wales Police upon his arrest. Those admissions had been recorded electronically. 12. Trafficking drugs, particularly in such large quantities and with multiple types of drugs, are very serious offences and are likely, to result in a substantial gaol penalty should a conviction ultimately be recorded. 13. Section 10A(5) of the Act requires the Court to make a restraining order if the Court concludes that the suspicion held by the authorised officer, Mr Spark, is reasonably held. I am satisfied on the evidence provided that the suspicion to which Mr Spark deposes is reasonably held and that the relief claimed by the plaintiff ought to be granted. 14. Accordingly I am prepared to make the orders which the plaintiff seeks.

Orders 1. Upon the Plaintiff giving the usual undertaking as to damages (the giving of which by its solicitor is noted) and considering that, having had regard to the matters contained in the affidavit of Jonathan Lee Spark sworn 7 September 2015, there are reasonable grounds for the suspicions stated therein, the Court orders: 1. Pursuant to section 10A of the Criminal Assets Recovery Act 1990 (except as provided in Orders 2, 3 and 4 below) 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 otherwise to deal with any interest in property (within the meaning of "interest in property" as defined in s 7 of the Criminal Assets Recovery Act 1990) of John Charles White, including his interest in the property specified in Schedule One and Schedule Two hereto ("the restraining order"). 2. Pursuant to s 12(1) of the Criminal Assets Recovery Act 1990 the restraining order be varied to allow John Charles White or any other person ("the vendor") to deal with the interest of John Charles White in the property specified in Item One of Schedule Two hereto ("the Whyalla property") for the purpose either of completing the sale of the Whyalla property or of selling the Whyalla property at a price agreed in writing by the Plaintiff ("the sale of the Whyalla property"). 3. Pursuant to s 12(1) of the Criminal Assets Recovery Act 1990 the proceeds received from the sale of the Whyalla property may be applied to pay the following: 1. the amount necessary to discharge any registered mortgage secured over the Whyalla property; 2. reasonable legal and conveyancing costs on the sale of the Whyalla property; 3. any reasonable agent's commission on the sale of the Whyalla property; 4. any fee payable to a registered valuer for a valuation of the Whyalla property; 5. any rates or other adjustments or monies reasonably payable under any Agreement for Sale; and 6. any other expenses incurred with the consent in writing of the Plaintiff, the giving of such consent to be in the absolute discretion of the Plaintiff. 1. Pursuant to s 10B(2) of the Criminal Assets Recovery Act 1990, the net proceeds of the sale of the Whyalla property (after the payment of monies mentioned in Prayer 3 above) shall be paid, by bank cheque, to the NSW Trustee and Guardian, to be held by it until further order. 2. Pursuant to s 12(1)(b)(i) of the Criminal Assets Recovery Act 1990 John Charles 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 5 above. 4. Pursuant to s 10B(2) of the Criminal Assets Recovery Act 1990 the New South Wales Trustee and Guardian shall take control of all the interest of John Charles White in the property specified in Item Two of Schedule Two hereto. 5. Pursuant to s 12(1)(c1) of the Criminal Assets Recovery Act 1990 John Charles White shall furnish to the Plaintiff, within twenty one (21) days after service of a sealed copy of these orders on John Charles White, a statement verified by oath or affirmation of John Charles White setting out the particulars sought in Schedule Three hereto. 6. Liberty is granted to the Plaintiff and John Charles White to apply on three (3) days' notice. 7. The costs of obtaining these orders shall be costs in the cause. 8. Pursuant to r 36.4(1)(a) of the Uniform Civil Procedure Rules 2005 these orders are to take effect as of the date hereof.

SCHEDULE ONE 1. Funds held in Australia and New Zealand Bank account numbered 01 5350 4074 71402 and held in the name of John Charles White. 2. Funds held in Australia and New Zealand Bank account numbered 01 2012 4970 77395 and held in the name of John Charles White. 3. Funds held in Australia and New Zealand Bank account numbered 01 4506 53599 52331 and held in the name of John Charles White. 4. Funds held in Australia and New Zealand Bank account numbered 01 5350 5930 51224 and held in the name of John Charles White. 5. Funds held in Australia and New Zealand Bank account numbered 01 4141 9092 16495 and held in the name of John Charles White. 6. Funds held in St George Bank account numbered 055096708 held in the name of John Charles White. 7. Funds held in St George Bank account numbered 474630688 held in the name of John Charles White. 8. Funds held in St George Bank account numbered 028 0045957640 held in the name of John Charles White. 9. 100 Class A shares in Dacela Nominees Pty Ltd CAN 084 756 605.

SCHEDULE TWO 1. All of the interests in property of Dacela Nominees Pty Ltd ACN 084 756 605 including: 2. The whole of the property described as Allotment 1459 Town of Whyalla in the area named Whyalla Playford, Hundred of Randell and also known as 36 Peters Street, Whyalla Playford, South Australia 5600. 3. 2003 Sting aircraft with serial number TLUSA101914 and registration VH SDV. 4. Funds held in Australia and New Zealand Bank account numbered 01 4506 4913-46806. 5. 2008 Jaguar Sedan with registration SEA34L.

SCHEDULE THREE 1. Provide full particulars of the nature and extent of all your interests in property (within the meaning of "interest in property" as defined in s 7 of the Criminal Assets Recovery Act 1990), including in relation to each item of property: 1. a full description of your interest in the property, including the nature of that interest and, where possible, the estimated value (or in the case of bank accounts or deposits — the estimated balance) of that interest; 2. the location of the interest; 3. the name of the person or institution in whose custody title documents in respect of the interest are believed to be; 4. the date or approximate date of acquisition of the interest; and 5. the source of funds used to acquire the interest. 1. Provide full particulars of your liabilities on both a capital and recurring basis, including, in relation to each liability: 1. a full description of the liability including the nature of that liability and the amount of that liability; 2. the name of the person or institution to whom or to which the liability is owed.

******** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 14 September 2015