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Supreme Court 29 November 2018

NSW Crime Commission v Agius

[2018] NSWSC 1957

DrugsFraud & dishonesty
PROCEEDS OF CRIME APPLICATION FOR RESTRAINING ORDERS EX PARTE APPLICATION

Citation: [2018] NSWSC 1957
Court: Supreme Court of New South Wales
Date: 29 November 2018
Judge(s): McCallum J

Background

The NSW Crime Commission brought an urgent, ex parte application (meaning without notice to the other party) for a restraining order over the assets of a man alleged to have cultivated cannabis in excess of a commercial quantity. The defendant was in custody at the time of the application, having been refused bail following his arrest on drug-related charges. Police had executed a search warrant at his home, during which he had reportedly cooperated fully, showing police where drugs, cash and firearms were stored and making full admissions.

The application was supported by an affidavit from an authorised officer under the Criminal Assets Recovery Act 1990 (NSW), who deposed to her suspicion that the defendant had engaged in serious crime-related activity. That suspicion was grounded in her review of the police facts sheet and her confirmation with its author that its contents were believed to be true.

Legal Issues

  • Whether the Court should require the Crime Commission to give notice of the ex parte application to the defendant or other interested persons
  • Whether the statutory conditions under s 10A of the Criminal Assets Recovery Act 1990 were satisfied so as to require the Court to make a restraining order
  • Whether an order for the examination of the defendant on oath under s 12(1)(b)(i) of the Act was appropriate

Decision

Issue 1: Notice of the application

Section 10A(4) of the Act gives the Court a discretion to require the Commission to give notice of an ex parte application to a sufficiently interested person. The affidavit in support addressed reasons why notice should not be required. Although the defendant was in custody, McCallum J was persuaded that it was neither necessary nor appropriate to require notice to be given, for the reasons identified in the affidavit (at [2]).

Issue 2: Restraining order under s 10A

Section 10A is prescriptive: once the listed conditions are satisfied, the Court must make a restraining order. McCallum J found that the authorised officer's affidavit established reasonable grounds for her suspicion that the defendant had engaged in serious crime-related activity, based on the drug charges he faced and the contents of the police facts sheet (at [3]-[7]). All statutory conditions were clearly satisfied, and the Court was therefore required to make the restraining order (at [8]).

Issue 3: Examination order under s 12(1)(b)(i)

The Commission also sought an order for the defendant to be examined on oath before a Registrar concerning his affairs, including the nature and location of his property. McCallum J was satisfied it was appropriate to make that order (at [9]).

Orders Made

  • Order 1: Restraining order under s 10A prohibiting any person (other than a registered mortgagee acting within its rights) from disposing of or otherwise dealing with any interest in property of the defendant, including property specified in Schedules One and Two.
  • Order 2: The defendant to 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.
  • Order 3: Leave granted to the Commission to obtain examination dates from the Registry.
  • Order 4: The NSW Trustee and Guardian to take control of the defendant's interest in the property specified in Item 1 of Schedule One.
  • Order 5: The defendant to furnish a sworn statement of his financial particulars to the Commission within 21 days of service of the orders.
  • Order 6: The summons listed for directions before the Common Law Registrar on 25 March 2019.
  • Order 7: Liberty to apply on three days' notice.
  • Order 8: Costs of obtaining the orders to be costs in the cause.
  • Order 9: Orders to take effect from the date made.

Key Takeaways

  • Under s 10A of the Criminal Assets Recovery Act 1990, once the prescribed statutory conditions are satisfied, the Supreme Court has no residual discretion: it must make a restraining order (at [3], [8]).
  • The court's discretion under s 10A(4) to require notice of an ex parte application is not automatically triggered by the fact that a defendant is in custody; the Commission's affidavit addressing reasons against notice can suffice to persuade the Court that notice is neither necessary nor appropriate (at [2]).
  • An authorised officer's suspicion of serious crime-related activity can be grounded in a police facts sheet, provided the officer has confirmed with the author of that document their belief in its truth (at [5], [7]).
  • Section 12(1)(b)(i) of the Act provides a mechanism for examining a defendant on oath about their affairs and the location of their property, and such an order may be made at the same time as a restraining order (at [9]).
  • Restraining orders of this kind extend to all property interests of the defendant, with the NSW Trustee and Guardian empowered to take control of specified property under s 10B(2).

Legislation and Cases Referenced

Legislation
- Criminal Assets Recovery Act 1990 (NSW), ss 10A, 12(1)(b)(i)

Cases
- Not stated