Citation: [2017] NSWSC 1369
Court: Supreme Court of New South Wales
Date: 19 September 2017
Judge(s): McCallum J
Background
The New South Wales Crime Commission brought proceedings seeking a restraining order against a defendant in connection with alleged drug supply offences. The application was made ex parte, meaning without notice to the defendant, as permitted under the Criminal Assets Recovery Act 1990 (NSW).
The Commission relied on an affidavit sworn by an authorised officer, Mr Jonathan Spark, who deposed to his suspicion that the defendant had engaged in serious crime-related activity. That activity included ongoing drug supply and discrete drug supply offences under the Drug Misuse and Trafficking Act 1985 (NSW). Mr Spark's suspicion was based on his direct inquiry with the author of a statement of facts prepared following the defendant's recent arrest.
Legal Issues
- Whether notice of the ex parte application should be required to be given to the defendant or any other interested person
- Whether the affidavit of the authorised officer satisfied the statutory requirements under s 10A(5) of the Criminal Assets Recovery Act 1990, such that the court was obliged to make the restraining order
Decision
Issue 1: Whether notice was required
McCallum J accepted Mr Spark's evidence that providing notice of such applications can enable defendants to defeat the Act's purpose by disposing of assets before any order is made (at [2]). Having regard to the serious nature of the alleged criminal activity, the court was satisfied it was neither necessary nor appropriate to require the Commission to give notice of the application to any person (at [3]).
Issue 2: Whether the statutory requirements for a restraining order were met
Section 10A(5) of the Criminal Assets Recovery Act 1990 mandates that the court must make a restraining order once certain matters are established by an authorised officer's affidavit. McCallum J found that Mr Spark's affidavit satisfied those requirements (at [4]-[5]). The affidavit identified a suspicion that the defendant had engaged in serious crime-related activity, namely ongoing and discrete drug supply offences (at [5]).
The court reviewed the underlying fact sheet and was independently satisfied that reasonable grounds existed for Mr Spark's suspicion (at [6]). Because the statutory threshold was met, the court was obliged by the Act's regime to make the restraining order, along with the ancillary relief sought (at [7]).
Orders Made
- Restraining order made (orders one to nine as handed up)
Key Takeaways
- Under s 10A(5) of the Criminal Assets Recovery Act 1990, once an authorised officer's affidavit establishes the prescribed matters, the court must grant a restraining order; it has no residual discretion to refuse (at [4], [7]).
- An ex parte application under s 10A is appropriate where the court accepts evidence that prior notice could allow a defendant to dissipate assets and defeat the Act's operation (at [2]-[3]).
- The court's role on the notice question involves a case-specific assessment, considering both the authorised officer's experience and the circumstances of the particular defendant (at [2]-[3]).
- Reasonable grounds for the authorised officer's suspicion can be established by reference to a fact sheet prepared following the defendant's arrest, provided the court reads and is satisfied by its contents (at [6]).
- Ancillary relief of the kind ordinarily sought in Criminal Assets Recovery Act proceedings may be granted alongside the primary restraining order where the court is satisfied it is appropriate to do so (at [7]).
Legislation and Cases Referenced
Legislation
- Criminal Assets Recovery Act 1990 (NSW),
- ss 10A(4)–(5)
- Drug Misuse and Trafficking Act 1985 (NSW),
- ss 25(1)–(2), 25A(1)
Cases
- Not stated