Citation: NSW Crime Commission v Nguyen [2019] NSWSC 782
Court: Supreme Court of New South Wales
Date: 2 May 2019
Judge(s): Ierace J
Background
The NSW Crime Commission brought an ex parte application (meaning the application was made without notice to the other party) in the Supreme Court seeking restraining orders over property belonging to the defendant. The application was supported by an affidavit sworn on 30 April 2019 by a Commission officer, and drew on a police fact sheet relating to an investigation conducted at Penrith.
The underlying investigation centred on a residential premises at Prospect that police suspected was being used as an indoor cannabis cultivation facility. In October 2018, police observed the defendant attend the premises, and later stopped his vehicle as it reversed from the driveway. A search of the defendant revealed $1,450 in cash, and a subsequent search of the premises uncovered 76 cannabis plants, along with fans, exhaust systems, and bypassed electricity infrastructure.
The defendant faced three charges arising from events between 1 September and 2 October 2018: cultivating a commercial quantity of cannabis, unlawfully abstracting electricity under the Electricity Supply Act 1995 (NSW), and supplying a prohibited drug (329 grams of cannabis) under the Drug Misuse and Trafficking Act 1985 (NSW).
Legal Issues
- Whether there were reasonable grounds for the suspicion required under the Criminal Assets Recovery Act 1990 (NSW) to justify the making of restraining orders over the defendant's property
- Whether the restraining orders sought in the draft orders presented to the Court should be made on an ex parte basis
Decision
Ierace J considered the material contained in the Commission officer's affidavit, including the annexed police fact sheet setting out the circumstances of the investigation and the charges against the defendant.
His Honour was satisfied that the affidavit and its annexures established reasonable grounds for the suspicion advanced by the Commission in relation to the property identified in the schedules to the draft orders. On that basis, the Court made orders in the terms proposed.
The judgment is brief, reflecting the nature of ex parte restraining order applications under the Criminal Assets Recovery Act 1990 (NSW), which do not require the defendant's participation at the initial stage.
Orders Made
• Orders made in the terms proposed in the draft orders regarding property scheduled to those orders under the Criminal Assets Recovery Act 1990 (NSW)
Key Takeaways
- The Supreme Court granted ex parte restraining orders under the Criminal Assets Recovery Act 1990 (NSW) on the basis of a sworn affidavit and annexed police fact sheet, without the defendant being present or notified.
- A reasonable grounds threshold governs whether a restraining order may issue under the Criminal Assets Recovery Act 1990 (NSW); the court found that threshold met on the material before it.
- The underlying conduct included large-scale indoor cannabis cultivation with bypassed electricity infrastructure, supporting the Commission's characterisation of the property as potentially subject to the Act.
- Ex parte applications of this kind are determined on affidavit material alone, with the court assessing whether the statutory suspicion threshold is satisfied rather than conducting a full merits hearing.
- Under s the Criminal Assets Recovery Act 1990 (NSW), the Commission's investigative material, including police fact sheets, can form the evidentiary foundation for restraining order applications at the initial stage.
Legislation and Cases Referenced
Legislation:
- Criminal Assets Recovery Act 1990 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW)
- Electricity Supply Act 1995 (NSW)
Cases cited: None cited in the judgment.