Citation: New South Wales Crime Commission v Co [2014] NSWSC 999
Court: Supreme Court of New South Wales
Date: 24 July 2014
Judge(s): Hamill J (as Duty Judge)
Background
The NSW Crime Commission applied to the Supreme Court for a restraining order under s 10A of the Criminal Assets Recovery Act 1990 (NSW) against a defendant who had been charged with drug supply offences. Police had executed a search warrant at the defendant's premises, locating approximately 30 kilograms of cannabis and around $104,000 in cash. Surveillance footage had earlier captured two men entering and leaving the premises in circumstances consistent with a significant drug transaction.
The application was initially brought before Hamill J in chambers. His Honour directed that it be dealt with in open court, noting that suppression or non-publication orders could adequately protect any ongoing investigation if needed.
In addition to the restraining order, the Commission sought ancillary orders under s 12 of the Act, including a compulsory examination of the defendant before the Registrar and a requirement that the defendant provide a sworn statement of his property interests.
Legal Issues
- Whether the restraining order application should be dealt with in chambers or in open court
- Whether brief reasons should be given when making restraining orders under s 10A
- Whether notice of the restraining order application should be given to the defendant before it was made
- Whether the ancillary orders under s 12 should be made ex parte at the same time as the restraining order
Decision
Hamill J held that applications of this kind are more appropriately dealt with in open court, with suppression or non-publication orders available as a safeguard where needed. His Honour also reaffirmed the view, expressed in a related decision delivered the same day, that at least brief reasons should be given in cases of this kind, notwithstanding contrary approaches taken by some members of the court.
On the question of notice, Hamill J was satisfied that the defendant should not be notified of the restraining order application before it was made. The ease with which the relevant property could be disposed of, if the defendant became aware of the proceedings, was sufficient to justify proceeding without notice under s 10A(1).
The restraining order itself was granted on the basis that the affidavit of the authorised officer, Jonathan Lee Sparks, established reasonable grounds for the suspicion required under s 10A(5). Once that statutory threshold was met, Hamill J noted the Act required the order to be made. The Commission's undertaking as to damages and costs meant the discretionary power to refuse under s 10A(7) did not arise.
However, Hamill J declined to make the ancillary orders ex parte. His Honour reasoned that there was no particular urgency attached to those orders and that the defendant was entitled to be on notice before they were made, so that he could make submissions given that he faced pending criminal charges.
Orders Made
- Restraining order made in accordance with the Commission's amended proposed orders
- Orders 5, 6, and 7 of the proposed orders also made
- Ancillary orders under s 12 (compulsory examination and sworn property statement) refused at this stage, to be sought on notice at a later time
Key Takeaways
- Restraining order applications under s 10A of the Criminal Assets Recovery Act 1990 are more appropriately heard in open court, with non-publication or suppression orders available to protect investigations where necessary, rather than being dealt with in chambers.
- Under s 10A(5), once an authorised officer's affidavit establishes reasonable grounds for the relevant suspicion, the court must grant the restraining order; no discretion to refuse arises unless the Commission fails to provide an undertaking as to damages and costs.
- Hamill J confirmed, consistent with his approach in New South Wales Crime Commission v Pham [2014] NSWSC 998, that there is no urgency requiring ancillary orders under s 12 to be made at the same time as the restraining order.
- A defendant facing criminal charges has an interest in receiving notice before ancillary orders such as compulsory examination orders are made, so that submissions can be put to the court.
- The approach of declining to make ancillary orders ex parte was consistent with the earlier decision of McDougall J in New South Wales Crime Commission v Martin [2013] NSWSC 15.
Legislation and Cases Referenced
Legislation:
- Criminal Assets Recovery Act 1990 (NSW), ss 4, 10A, 12
- Drugs (Misuse and Trafficking) Act 1985 (NSW)
Cases:
- International Finance Trust Company Limited v New South Wales Crime Commission [2008] NSWCA 291
- New South Wales Crime Commission v Martin [2013] NSWSC 15
- New South Wales Crime Commission v Meads [2010] NSWSC 1145
- New South Wales Crime Commission v Pham [2014] NSWSC 998
- New South Wales Crime Commission v Richards [2010] NSWSC 1399
- New South Wales Crime Commission v Younan [2012] NSWSC 13