Citation: [2017] NSWSC 1370
Court: Supreme Court of New South Wales
Date: 19 September 2017
Judge(s): McCallum J
Background
The New South Wales Crime Commission applied to the Supreme Court for a restraining order under s 10A of the Criminal Assets Recovery Act 1990 (NSW). The defendant was alleged to have engaged in serious crime-related activity, specifically the supply of a commercial quantity of methamphetamine. Police had approached the defendant in his car at a known drug location in Auburn, and he subsequently faced charges arising from that encounter.
The application was brought ex parte, meaning the defendant was not notified or present. The Commission relied on an affidavit sworn by one of its officers, Mr Jonathan Spark, who had reviewed a statement of facts prepared in support of the charge and had communicated directly with its author.
Legal Issues
- Whether the Commission should be required to give notice of the ex parte application to the defendant under s 10A(4) of the Criminal Assets Recovery Act 1990 (NSW)
- Whether the supporting affidavit satisfied the statutory requirements under s 10A(5), obliging the Court to make the restraining order
Decision
Issue 1: Notice to the defendant
Section 10A(4) of the Act permits the Court to require the Commission to give notice of an ex parte application to any person with a sufficient interest, but does not compel it to do so. McCallum J accepted Mr Spark's evidence that, having regard to his extensive experience and the serious nature of the alleged conduct, notice was neither necessary nor appropriate in the circumstances (at [2]).
Issue 2: Whether the statutory requirements for a restraining order were met
Under s 10A(5), the Court must make a restraining order if the supporting affidavit establishes the specified matters. Mr Spark's affidavit deposed to his suspicion that the defendant had engaged in serious crime-related activity, namely commercial methamphetamine supply, and set out the grounds for that suspicion, including his direct email communication with the author of the relevant statement of facts (at [3]-[4]).
McCallum J read the statement of facts and was satisfied it presented a relatively straightforward case against the defendant. The Court found reasonable grounds for Mr Spark's suspicion and, the statutory threshold being met, was required by the scheme of the legislation to make the restraining order. Ancillary relief was also granted as appropriate for the advancement of the proceedings (at [5]-[6]).
Orders Made
- Restraining orders made (orders one to eight as provided by the Commission)
Key Takeaways
- Under s 10A(5) of the Criminal Assets Recovery Act 1990 (NSW), the Supreme Court must grant a restraining order once the supporting affidavit satisfies the statutory requirements, leaving no residual discretion to refuse (at [3], [6]).
- A sworn affidavit deposing to a Commission officer's suspicion of serious crime-related activity, together with grounds grounded in a statement of facts and direct communication with its author, was sufficient to meet the s 10A(5) threshold (at [3]-[4]).
- Section 10A(4) confers a discretion, not an obligation, on the Court to require notice to be given to an interested person in an ex parte application; that discretion was exercised against requiring notice on the strength of the officer's evidence about the seriousness of the alleged conduct (at [1]-[2]).
- Ancillary orders of the kind commonly sought alongside restraining order applications were granted as appropriate to advance the proceedings (at [6]).
- The decision raises no novel question of principle; it applies the established statutory scheme of the Criminal Assets Recovery Act 1990 (NSW) to the facts presented.
Legislation and Cases Referenced
Legislation
- Criminal Assets Recovery Act 1990 (NSW),
- ss 10A(4)–(5)
Cases
- Not stated