Citation: [2019] NSWSC 781
Court: Supreme Court of New South Wales
Date: 2 May 2019
Judge(s): Ierace J
Background
The NSW Crime Commission brought an urgent ex parte application (meaning it was heard without the other side present) for restraining orders under the Criminal Assets Recovery Act 1990 (NSW). The application was supported by an affidavit sworn on 30 April 2019, a statement of facts and circumstances, and draft orders filed in court on the day of the hearing.
The defendant was a man facing five charges of dealing with property suspected of being the proceeds of crime. The application also concerned two other individuals, including the defendant's son and another person, both of whom were themselves facing serious criminal charges spanning drug supply, proceeds of crime offences, and weapons-related matters.
The Commission relied in particular on two counts against the defendant involving dealing with proceeds of crime exceeding $100,000. An intercepted telephone call between the defendant and his son formed part of the supporting material and was described by the court as significant evidence in relation to one of those charges.
Legal Issues
- Whether the affidavit and supporting materials disclosed reasonable grounds for the suspicions required under s 10A(5)(a)(ii) of the Criminal Assets Recovery Act 1990 (NSW) to justify the making of restraining orders.
- Whether the court should grant leave to the NSW Crime Commission to file the application in court and proceed on an ex parte basis.
Decision
Issue 1: Leave to file and proceed ex parte
Ierace J granted leave to the NSW Crime Commission to file the summons, supporting affidavit, statement of facts and circumstances, and draft orders in court on the day of the hearing (at [1]). The application proceeded without the defendant or the other affected persons being present.
Issue 2: Satisfaction of the statutory threshold under s 10A(5)(a)(ii)
Having considered the fact sheets annexed to the affidavit in respect of each person the subject of the application, Ierace J was satisfied that reasonable grounds existed for the suspicions advanced in the affidavit (at [5]). The court noted the serious and current criminal charges facing all three individuals, including charges involving large-scale drug supply, proceeds of crime, and weapons offences (at [2]-[4]). That satisfaction of the statutory threshold was sufficient to warrant the making of the restraining orders sought (at [5]).
Orders Made
- Orders sought by the NSW Crime Commission were made in the terms of the draft order document.
Key Takeaways
- Under s 10A(5)(a)(ii) of the Criminal Assets Recovery Act 1990 (NSW), a court may make restraining orders where it is satisfied there are reasonable grounds for the suspicions advanced in the supporting affidavit, without requiring the affected parties to be present (at [5]).
- Fact sheets annexed to a supporting affidavit, together with material such as intercepted communications, can constitute sufficient grounds to meet the statutory threshold for restraining orders (at [2], [5]).
- The Supreme Court granted leave to file the application in court on the same day it was heard, reflecting the capacity for such proceedings to move with urgency on an ex parte basis (at [1]).
- Restraining order applications of this kind can extend to multiple individuals beyond the named defendant, provided the supporting material addresses each person the subject of the orders sought (at [2]-[5]).
Legislation and Cases Referenced
Legislation
- Criminal Assets Recovery Act 1990 (NSW), s 10A(5)(a)(ii)
Cases
- Not stated