Citation: [2019] NSWSC 1038
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 over property belonging to the defendant under the Criminal Assets Recovery Act 1990 (NSW). The application targeted property listed in a schedule to the Commission's summons.
The defendant was suspected of involvement in the large-scale cultivation of prohibited plants. The application was supported by an affidavit sworn by an authorised officer of the Commission, who deposed to her suspicion that the defendant had engaged in serious crime-related activity.
Legal Issues
- Whether the affidavit of the authorised officer met the statutory requirements under s 10A(5) of the Criminal Assets Recovery Act 1990 (NSW) to enliven the court's obligation to make a restraining order
- Whether there were reasonable grounds for the suspicion deposed to in the affidavit
Decision
Issue 1: Statutory requirements under s 10A(5)
Section 10A(5) requires the Supreme Court to make a restraining order where an authorised officer's affidavit states a suspicion that one of the specified statutory conditions is satisfied and sets out the grounds for that suspicion, provided the court is also satisfied that the suspicion rests on reasonable grounds (at [2]). The authorised officer suspected the defendant had knowingly participated in the cultivation of prohibited plants in a quantity not less than the commercial quantity, contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW), which constitutes a "serious criminal offence" under s 6(2)(b) of the Act (at [3]).
Issue 2: Reasonable grounds for the suspicion
The authorised officer grounded her suspicion in email material set out in her affidavit (at [3]). Having reviewed the affidavit and its annexures, Ierace J was satisfied that the suspicion was based on reasonable grounds and that the Commission had discharged the onus required under the Act (at [4]).
Orders Made
- Restraining order made in the terms sought by the NSW Crime Commission
Key Takeaways
- Under s 10A(5) of the Criminal Assets Recovery Act 1990 (NSW), the Supreme Court is required to make a restraining order where an authorised officer's affidavit discloses a relevant suspicion and its grounds, and the court is satisfied those grounds are reasonable (at [2]).
- The court's role is not to second-guess the authorised officer's conclusion but to assess whether the material in the affidavit provides reasonable grounds for the suspicion expressed (at [4]).
- An authorised officer's suspicion of involvement in commercial-quantity drug cultivation falls within the definition of "serious criminal offence" for the purposes of the Act, triggering the restraining order regime (at [3]).
- Ex parte applications for restraining orders under this Act may be determined on the basis of affidavit evidence alone, without the defendant being present or on notice (at [1], [4]).
- Sufficient grounds existed in the email material annexed to the affidavit to satisfy the statutory threshold, resulting in the order being made as sought (at [3]-[4]).
Legislation and Cases Referenced
Legislation
- Criminal Assets Recovery Act 1990 (NSW), s 10A
Cases
- Not stated