Citation: New South Wales Crime Commission v Pham [2014] NSWSC 998
Court: Supreme Court of New South Wales
Date: 24 July 2014
Judge(s): Hamill J (as Duty Judge)
Background
The NSW Crime Commission applied under s 10A of the Criminal Assets Recovery Act 1990 (NSW) for a restraining order over the defendant's property, including specified real estate. The defendant was at the time charged with an offence qualifying as a drug trafficking offence under the Act. Evidence before the court included a supporting affidavit from a Commission officer, a police facts sheet, and emails from investigating officers describing the discovery of a hydroponic cannabis cultivation system, cash found at the defendant's home, and further cannabis plants at a third premises linked to the defendant by fingerprint evidence.
The application was initially brought to the judge in chambers the day before the hearing. Hamill J declined to deal with it there, directing instead that it be listed in open court the following morning. The Commission proceeded on an ex parte basis (meaning without notifying the defendant), relying on evidence that the property could be quickly disposed of if the defendant learned of the application.
In addition to the restraining order, the Commission sought ancillary orders under s 12 of the Act requiring the defendant to submit to examination on oath and to provide a sworn statement of assets.
Legal Issues
- Whether ex parte applications of this kind should be dealt with in chambers or in open court
- Whether the court is required to give reasons when making a restraining order under s 10A
- Whether the statutory threshold for granting a restraining order was satisfied on the evidence
- Whether ancillary orders (examination and asset disclosure) should be made at the same time as the ex parte restraining order
Decision
Chambers versus open court: Hamill J held that applications of this nature are more appropriately dealt with in open court rather than in chambers. His Honour noted that if confidentiality or privacy concerns arise, separate orders can be made to address them, including closing the court. This did not prevent the Commission from proceeding without notice to the defendant.
Obligation to give reasons: There was a divergence of authority on this point following legislative amendments made after the Court of Appeal's 2008 decision in International Finance Trust. Hamill J preferred the approach taken by McCallum J in Richards and Davies J in Younan, concluding that reasons remain required. Following the guidance in International Finance Trust, his Honour confirmed that reasons need not be elaborate and may be stated concisely.
The restraining order: Hamill J found reasonable grounds for the Commission officer's suspicion that the defendant engaged in serious crime-related activity and that the relevant property derived from that activity. Because s 10A is drafted in mandatory terms (the court "must" make the order once that threshold is met), the restraining order was granted. The Commission's undertaking as to damages and costs also meant the court's discretionary power to refuse under s 10A(7) did not arise.
Ancillary orders refused: Hamill J declined to make the examination and asset-disclosure orders at this ex parte stage. The urgency justifying the restraining order without notice did not apply with equal force to the ancillary orders. The Commission had conceded that any examination was unlikely to occur in the near future and that it could apply for those orders at any time. Consistent with McDougall J's approach in Martin, his Honour held the defendant should have notice of, and an opportunity to be heard on, any application for ancillary orders of this kind.
Orders Made
- Restraining order granted over the defendant's interests in property, including the real estate specified in Schedule 1 (Orders 1, 5, 6 and 7 made)
- Ancillary orders for examination on oath and sworn asset disclosure statement refused at the ex parte stage (Orders 3 and 4 not made)
- The Commission's undertaking as to damages and costs noted
Key Takeaways
- Ex parte applications under s 10A of the Criminal Assets Recovery Act 1990 should be heard in open court rather than in chambers, with separate confidentiality or suppression orders available if required.
- Hamill J confirmed, aligning with Richards and Younan, that the court must give reasons when making a restraining order, even after the post-2008 legislative amendments, though those reasons may be stated with economy.
- Once a court finds reasonable grounds for the requisite suspicion under s 10A, the obligation to grant a restraining order is mandatory, not discretionary.
- A Commission undertaking as to damages and costs removes the basis for exercising the discretion to refuse under s 10A(7).
- Under s 12, the court has power to make ancillary orders at the same time as a restraining order, but that power is discretionary. Where the urgency that justifies ex parte restraint does not equally attend the ancillary relief, the defendant should receive notice and an opportunity to be heard before those orders are made.
Legislation and Cases Referenced
Legislation
- Criminal Assets Recovery Act 1990 (NSW), ss 5, 6, 10, 10A, 12
Cases
- International Finance Trust Company Limited v New South Wales Crime Commission [2008] NSWCA 291
- New South Wales Crime Commission v Meads [2010] NSWSC 1145
- New South Wales Crime Commission v Richards [2010] NSWSC 1399
- New South Wales Crime Commission v Younan [2012] NSWSC 13
- New South Wales Crime Commission v Peter Geoffrey Martin [2013] NSWSC 15