Citation: [2019] NSWSC 1037
Court: Supreme Court of NSW
Date: 31 July 2019
Judge(s): Ierace J
Background
The NSW Crime Commission applied to the Supreme Court on an ex parte basis (that is, without the other party present) for a restraining order over property belonging to the defendant. The application was brought under s 10A of the Criminal Assets Recovery Act 1990 (NSW) and was supported by an affidavit sworn by an authorised officer of the Commission.
The affidavit was sworn on 26 July 2019, the same date as the summons, and set out the officer's suspicions that the defendant had engaged in several serious crime-related activities. The grounds for those suspicions were drawn from the contents of a number of emails annexed to the affidavit.
The defendant did not appear, as is typical in ex parte applications of this kind. The court was required to assess the application on the materials before it.
Legal Issues
- Whether the affidavit filed by the Crime Commission's authorised officer satisfied the statutory requirements under s 10A(5) of the Criminal Assets Recovery Act 1990 (NSW) for the making of a restraining order
- Whether there were reasonable grounds for the authorised officer's stated suspicions that the defendant had engaged in serious crime-related activities
Decision
Issue 1: Statutory threshold under s 10A(5)
Section 10A(5) of the Act requires the court to make a restraining order where an authorised officer's affidavit states a suspicion that at least one of the prescribed statutory criteria is met and sets out the grounds for that suspicion, and where the court is satisfied that reasonable grounds for the suspicion exist (at [2]). The authorised officer, Ms Bourne, deposed to suspicions that the defendant had committed three separate offences: dishonestly obtaining a financial advantage contrary to s 192E of the Crimes Act 1900 (NSW); participating in a criminal group contrary to s 93T of the Crimes Act; and knowingly dealing with proceeds of crime contrary to s 193B(2) of the Crimes Act (at [3]).
Each of these offences fell within the definition of "serious criminal offence" under s 6 of the Act, either as offences punishable by five years imprisonment involving fraud or money laundering, or as participation in a criminal group (at [3]).
Issue 2: Reasonable grounds for suspicion
Ierace J reviewed the emails annexed to Ms Bourne's affidavit, which formed the evidentiary basis for her suspicions. His Honour was satisfied that those suspicions rested on reasonable grounds (at [4]). On that basis, the court found that the plaintiff had discharged its onus and that the restraining orders were appropriately made (at [4]).
Orders Made
- Orders made as sought.
Key Takeaways
- Under s 10A(5) of the Criminal Assets Recovery Act 1990 (NSW), a court must grant a restraining order once an authorised officer's affidavit states the required suspicion and its grounds, and the court is satisfied reasonable grounds exist for that suspicion (at [2]).
- The Supreme Court confirmed that dishonestly obtaining a financial advantage (s 192E Crimes Act), participating in a criminal group (s 93T Crimes Act), and knowingly dealing with proceeds of crime (s 193B(2) Crimes Act) each qualify as "serious criminal offences" for the purposes of the Act (at [3]).
- Email correspondence annexed to an authorised officer's affidavit can constitute sufficient grounds to satisfy the reasonable suspicion threshold required for a restraining order under the Act (at [4]).
- Ex parte restraining order applications under s 10A proceed on the basis of the affidavit material alone, without the defendant being present or heard, provided the statutory criteria are met (at [1]-[2]).
- The plaintiff's onus in these applications is satisfied at the threshold level of reasonable suspicion, not proof of guilt or commission of the underlying offences (at [2], [4]).
Legislation and Cases Referenced
Legislation
- Criminal Assets Recovery Act 1990 (NSW), s 10A
Cases
- Not stated