Citation: [2018] NSWSC 2013
Court: Supreme Court of New South Wales
Date: 20 December 2018
Judge(s): McCallum J
Background
The NSW Crime Commission brought an ex parte application (meaning the respondent was not notified or present) against a named defendant seeking a restraining order over his interests in property under the Criminal Assets Recovery Act 1990 (NSW). The defendant had been arrested on 12 December 2018 following a police investigation into the alleged manufacture of methylamphetamine and related serious criminal activity.
The application was supported by an affidavit from an authorised officer of the Commission, who deposed to his suspicion that the defendant had engaged in several serious criminal offences. Those suspicions were grounded in a detailed Statement of Facts prepared by police following the investigation that led to the defendant's arrest.
A sum of $23,500 in cash, seized during a police search warrant executed on 31 October 2018, formed part of the property the subject of the application.
Legal Issues
- Whether the ex parte application met the conditions required under s 10A of the Criminal Assets Recovery Act 1990 (NSW) to enliven the court's obligation to make a restraining order
- Whether the court should require the Commission to give notice of the application to the defendant or any other interested person
- Whether it was appropriate to order the NSW Trustee and Guardian to take control of the seized cash
Decision
Issue 1: Notice to the defendant
Section 10A(4) of the Criminal Assets Recovery Act gives the court power to require the Commission to notify a person with a sufficient interest in the application. McCallum J was satisfied, on the basis of reasons set out in the supporting affidavit, that requiring notice was neither necessary nor appropriate in the circumstances of this application (at [2]).
Issue 2: Whether the statutory conditions for a restraining order were met
Under s 10A(5), the court must make a restraining order if certain conditions are satisfied. The first condition requires the application to be supported by an affidavit from an authorised officer. The affidavit here was sworn by a person who qualified as an authorised officer under the Act (at [3]-[4]).
The affidavit also had to identify the officer's suspicion that the defendant had engaged in a serious crime related activity and state the grounds for that suspicion. The authorised officer deposed to suspicions that the defendant had committed three offences: knowingly participating in a criminal group, knowingly dealing with proceeds of crime, and manufacturing a prohibited drug in circumstances exposing a child to the process. Each offence constitutes a serious criminal offence within the meaning of the Act (at [5]).
Having read the Statement of Facts herself, McCallum J was satisfied that there were reasonable grounds for those suspicions. She held that the statutory conditions were met and that she was therefore required to make the restraining order (at [9]).
Issue 3: Control of the seized cash
The Commission sought an order for the NSW Trustee and Guardian to take control of the $23,500 in seized cash under s 10B(2) of the Act. McCallum J accepted that placing the funds with the Trustee and Guardian would allow interest to accrue, which would not occur if the cash remained in a police exhibits room, and was satisfied the order was appropriate (at [10]).
Orders Made
- A restraining order under s 10A of the Criminal Assets Recovery Act 1990, preventing the defendant from disposing of or dealing with any interest in his property (excluding interests in property listed in Schedule Three, and subject to registered mortgagee rights)
- An order under s 10B(2) for the NSW Trustee and Guardian to take control of the defendant's interest in the property specified in Schedule One (the seized cash of $23,500)
- An order under s 12(1)(b)(i) for the defendant to be examined on oath before a Registrar concerning his affairs and property interests
- Leave granted to the Commission to obtain examination dates from the Registry
- An order under s 12(1)(c1) requiring the defendant to furnish a sworn statement of property particulars within 21 days of service of the orders
- Liberty to both parties to apply on three days' notice
- The matter listed for directions before the Common Law Registrar on 8 April 2019
- Costs of obtaining the orders to be costs in the cause
- Orders to take effect from the date made, pursuant to UCPR r 36.4(1)(a)
Key Takeaways
- Under s 10A(5) of the Criminal Assets Recovery Act 1990 (NSW), the court's obligation to make a restraining order is not discretionary once the prescribed statutory conditions are satisfied, as McCallum J confirmed in making the order as required by the scheme of the Act (at [9]).
- An authorised officer's affidavit need not establish proof of criminal offending; it must set out the officer's suspicion that the respondent engaged in a serious crime related activity and the grounds for that suspicion, and the court then assesses whether reasonable grounds for the suspicion exist (at [5], [9]).
- Ex parte applications of this kind are common practice for the NSW Crime Commission, and the court retains a power (not an obligation) to require notice to be given to interested persons under s 10A(4), though that power was not exercised here (at [2]).
- A Statement of Facts prepared by police in connection with an arrest can constitute sufficient grounding for an authorised officer's suspicion, particularly where the Commission has confirmed the document was based on information obtained through the relevant investigation (at [6]).
- The practical consideration that seized cash held by the NSW Trustee and Guardian will earn interest, whereas cash in a police exhibits room will not, formed a sufficient basis for the court to order the Trustee and Guardian to take control of the funds (at [10]).
Legislation and Cases Referenced
Legislation
- Criminal Assets Recovery Act 1990 (NSW), s 10A
- Crimes Act 1990 (NSW), s 93T(1A), 193B(2),
- Drug (Misuse & Trafficking) Act 1985 (NSW), s 24(2A)
Cases
- Not stated