Citation: [2019] NSWSC 1039
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 parties present) for restraining orders over property belonging to two defendants, identified by their roles as the first and second defendant. The application was made under s 10A of the Criminal Assets Recovery Act 1990 (NSW) and was supported by an affidavit from an authorised officer of the Commission sworn on 26 July 2019.
The first defendant had entered a guilty plea in relation to several criminal offences, and the agreed facts from those proceedings formed part of the evidentiary foundation for the application. The second defendant was alleged to have dealt with property suspected of being proceeds of crime.
The Commission sought restraining orders over property set out in a schedule to the summons, on the basis that the property constituted serious crime derived property.
Legal Issues
- Whether the affidavit of the authorised officer disclosed a suspicion, with stated grounds, that each defendant had engaged in serious crime related activity as required by s 10A(5) of the Criminal Assets Recovery Act 1990 (NSW)
- Whether the Court was satisfied there were reasonable grounds for those suspicions, such that the making of restraining orders was mandated by s 10A
Decision
Issue 1: Serious crime related activity of the first defendant
The authorised officer deposed to suspicions that the first defendant had engaged in serious crime related activity in three respects: dishonestly obtaining a financial advantage under s 192E of the Crimes Act 1900 (NSW), participating in a criminal group under s 93T, and knowingly dealing with proceeds of crime under s 193B(2) (at [3]). Each offence satisfied the definition of a "serious criminal offence" under s 6(2) of the Act. The suspicion was grounded in emails, documents, and agreed facts arising from the first defendant's guilty plea (at [4]).
Issue 2: Serious crime related activity of the second defendant
The authorised officer deposed to a suspicion that the second defendant had dealt with property suspected of being proceeds of crime contrary to s 193C(1) of the Crimes Act 1900 (NSW), an offence involving money laundering and punishable by five years imprisonment (at [5]). The suspicion was based on emails and related documents identified in the affidavit (at [6]).
Issue 3: Satisfaction of the statutory test
Ierace J reviewed the affidavit and annexures in respect of both defendants and was satisfied that the authorised officer's suspicions rested on reasonable grounds (at [7]). As s 10A(5) mandates the making of a restraining order once those requirements are met, the Court held the plaintiff had discharged its onus and made the orders sought (at [7]).
Orders Made
- Restraining orders granted as sought against both defendants in respect of the property described in the schedule to the summons
Key Takeaways
- Under s 10A(5) of the Criminal Assets Recovery Act 1990 (NSW), a court must grant a restraining order if an authorised officer's affidavit states the requisite suspicion and its grounds, and the court is satisfied there are reasonable grounds for that suspicion (at [2]).
- Agreed facts arising from a guilty plea can form part of the evidentiary foundation establishing reasonable grounds for an authorised officer's suspicion in a restraining order application (at [4]).
- Offences involving fraud or money laundering that carry a maximum of five years imprisonment satisfy the definition of "serious criminal offence" under s 6(2)(d) of the Act, as illustrated by the treatment of ss 192E, 193B(2), and 193C(1) of the Crimes Act 1900 (NSW) (at [3], [5]).
- Ex parte applications for restraining orders are available under s 10A, and the Commission is not required to give the defendants notice before the initial order is made (at [1]).
- Once the statutory requirements of s 10A(5) are satisfied, the Supreme Court's obligation to make the restraining order is mandatory, leaving no residual discretion to refuse (at [7]).
Legislation and Cases Referenced
Legislation
- Criminal Assets Recovery Act 1990 (NSW), s 10A
Cases
- Not stated