Citation: [2019] NSWSC 1036
Court: Supreme Court of New South Wales
Date: 31 July 2019
Judge(s): Ierace J
Background
The NSW Crime Commission applied on an ex parte basis (without the other party present) for a restraining order under s 10A of the Criminal Assets Recovery Act 1990 (NSW). The application targeted property held by or associated with the defendant, who was suspected of engaging in a serious crime-related activity involving money laundering.
The application was supported by an affidavit from an authorised officer of the Commission. The affidavit set out the officer's suspicion that the defendant had dealt with approximately $245,000 in cash, including depositing funds into a car dealership account to purchase a vehicle, and that those funds were proceeds of crime.
The defendant was not present at the hearing, consistent with the ex parte nature of restraining order applications of this kind.
Legal Issues
- Whether the affidavit from an authorised officer met the requirements of s 10A(5) of the Criminal Assets Recovery Act 1990 (NSW), specifically whether it stated a suspicion of a serious crime-related activity and the grounds for that suspicion
- Whether the court was satisfied that reasonable grounds existed for the suspicion, such that the restraining order was required to be made
Decision
Issue 1: Statutory requirements under s 10A
Section 10A(5) of the Act obliges the court to make a restraining order where an authorised officer's affidavit states a suspicion that a relevant statutory requirement is met and sets out the grounds for that suspicion, provided the court is satisfied that reasonable grounds for the suspicion exist (at [2]). The authorised officer deposed to a suspicion that the defendant had engaged in money laundering by dealing with $245,000 in cash suspected to be proceeds of crime, contrary to s 193C(1) of the Crimes Act 1900 (NSW) (at [3]). That offence carries a maximum penalty of five years' imprisonment and therefore falls within the definition of a "serious criminal offence" under s 6(2)(d) of the Act (at [3]).
Issue 2: Reasonable grounds for suspicion
The grounds for the officer's suspicion included the defendant's declared income to the Australian Tax Office for 2012 to 2014, the absence of tax returns from 2015 to 2018, evidence of significant cash deposits into the defendant's bank accounts between October 2017 and May 2018, and evidence that the defendant made a $245,000 cash payment to purchase a vehicle (at [4]). The vehicle was located during the execution of a search warrant at a property suspected of being a safe house used by members of a criminal syndicate involved in drug supply (at [4]). Ierace J was satisfied that the suspicions were based on reasonable grounds and that the plaintiff had discharged the required onus (at [5]).
Orders Made
- Orders made as sought (restraining order granted)
Key Takeaways
- Under s 10A(5) of the Criminal Assets Recovery Act 1990 (NSW), a court is obliged to make a restraining order once an authorised officer's affidavit states the requisite suspicion and its grounds, and the court is satisfied that reasonable grounds for that suspicion exist (at [2]).
- A cash payment of $245,000 into a vehicle dealership account, combined with evidence of significant cash deposits and a connection to a property suspected of use by a drug syndicate, was sufficient to ground a reasonable suspicion of money laundering for the purposes of the Act (at [3]-[4]).
- The Supreme Court confirmed that money laundering under s 193C(1) of the Crimes Act 1900 (NSW), as an offence punishable by five years' imprisonment, satisfies the definition of a "serious criminal offence" under s 6(2)(d) of the Act (at [3]).
- Discrepancies between a defendant's declared income and unexplained cash activity formed part of the factual basis the court accepted as supporting the reasonable grounds requirement (at [4]).
- Restraining order applications of this kind proceed on an ex parte basis, meaning the defendant is not present, and the court's task is confined to assessing the affidavit material placed before it by the Commission (at [1]-[2]).
Legislation and Cases Referenced
Legislation
- Criminal Assets Recovery Act 1900 (NSW), s 10A
Cases
- Not stated