Citation: NSW Crime Commission v Pearce [2018] NSWSC 2014
Court: Supreme Court of New South Wales
Date: 18 December 2018
Judge(s): McCallum J
Background
The NSW Crime Commission brought an ex parte application under the Criminal Assets Recovery Act 1990 (NSW) for a restraining order over the property interests of the defendant. The application drew on two separate investigative strands: historical matters for which the defendant had already been sentenced, and anticipated future charges arising from an ongoing investigation expected to result in charges within days of the hearing.
The historical matters involved the defendant's conviction and sentencing for supplying anabolic or androgenic steroidal agents, an offence under s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). The forthcoming charges related to allegations of importing prohibited drugs through the post, supplying cocaine, MDMA, steroids, and a chemical compound known as 1,4-Butanediol.
The application was supported by an affidavit from an authorised officer, Ms Katie Bourne, who deposed to her suspicion that the defendant had engaged in serious crime-related activity. Because the application was made ex parte (without notice to the defendant), the court also considered whether it was appropriate to dispense with the requirement to notify interested parties.
Legal Issues
- Whether the court was required to give notice to the defendant or other interested persons before making the restraining order on an ex parte basis
- Whether the statutory conditions in s 10A(5) of the Criminal Assets Recovery Act 1990 were satisfied, so as to require the court to make the restraining order
- Whether the draft fact sheet supporting the anticipated future charges provided adequate grounds for the authorised officer's suspicion of serious crime-related activity
- Whether, in the absence of adequate information regarding the forthcoming charges, the historical matters alone could sustain the making of the order
Decision
McCallum J dispensed with the requirement to give prior notice to the defendant. Her Honour accepted Ms Bourne's evidence that notification carried a real risk of asset dissipation, making it neither necessary nor appropriate to require prior notice in the circumstances.
The court then turned to whether the conditions under s 10A(5) were met. Her Honour noted that the Criminal Assets Recovery Act is highly prescriptive: once the statutory conditions are satisfied, the court must make the restraining order. The conditions were clearly satisfied in relation to the historical matters. Ms Bourne was an authorised officer, she deposed to a suspicion of serious crime-related activity, she identified the grounds for that suspicion, and the defendant's prior sentencing for drug supply provided a plain reasonable basis for the suspicion.
The analysis of the draft fact sheet for the anticipated future charges revealed significant deficiencies. The document was expressly styled as an incomplete draft and contained several evidentiary gaps: it did not explain how police knew the defendant had arranged deliveries to associated addresses; it incorrectly framed importing 1,4-Butanediol as an offence when importing that substance is lawful; it asserted surveillance-based knowledge of drugs kept at the defendant's home without any supporting detail; and it alleged various supplies without identifying the basis for police knowledge of the substances involved. Her Honour observed that, had the application rested on the draft fact sheet alone, there may have been a real doubt as to whether reasonable grounds existed for Ms Bourne's suspicion.
Despite those concerns about the forthcoming charges, the historical matters independently satisfied all of the statutory conditions. Given the prescriptive terms of the legislation, the court was required to make the restraining order and did so. Ancillary orders of the kind customarily sought in such proceedings were also made.
Orders Made
- Leave granted to the Commission to file in court the summons, statement of facts and circumstances, and the affidavit of Ms Katie Elaine Bourne sworn 18 December 2018
- Orders 1 to 8 in the form handed up by the solicitor for the Commission (including the restraining order over the defendant's property interests) were made and sealed by the court
Key Takeaways
- Under s 10A(5) of the Criminal Assets Recovery Act 1990, the Supreme Court has no discretion to refuse a restraining order once the prescribed statutory conditions are met; the court must make the order.
- An ex parte restraining order may be made without prior notice to interested parties where the court accepts evidence that notification carries a real risk of asset dissipation.
- Where an application relies on two separate investigative bases, satisfaction of the statutory conditions on one basis alone is sufficient to require the making of the order, even if the supporting material for the other basis is inadequate.
- A draft fact sheet asserting police knowledge of drug quantities and supplies, without any explanation of how that knowledge was obtained, may be insufficient on its own to establish reasonable grounds for an authorised officer's suspicion.
- The Criminal Assets Recovery Act 1990 operates in a highly prescriptive manner, leaving the court with limited room to exercise discretion once its conditions are fulfilled.
Legislation and Cases Referenced
Legislation:
- Criminal Assets Recovery Act 1990 (NSW), s 10A (including s 10A(4) and s 10A(5))
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1) and Schedule 1
Cases cited: No cases were cited in the judgment.