Citation: NSW Crime Commission v Scarfo [2019] NSWSC 783
Court: Supreme Court of New South Wales
Date: 30 April 2019
Judge(s): Ierace J
Background
The NSW Crime Commission commenced proceedings against the defendant in February 2014 by summons seeking orders under the Criminal Assets Recovery Act 1990 (NSW). On the same day, Button J made orders pursuant to s 10A of that Act, which provides for the restraining of property suspected of being proceeds of crime.
In February 2019, the Commission filed a notice of motion seeking a further order: that a third party, Giuseppe Nardi, be examined on oath before a court registrar concerning the defendant's affairs, including the nature and location of any property in which the defendant holds an interest. The application was supported by an affidavit from a senior forensic accountant employed by the Commission.
The Commission served the notice of motion on Mr Nardi in April 2019. He indicated he did not oppose the order. The defendant's legal representative communicated that the defendant neither supported nor opposed the application.
Legal Issues
- Whether there were reasonable grounds to suspect that Mr Nardi held information capable of assisting the Commission in locating property belonging to the defendant that may fall within the Criminal Assets Recovery Act.
- Whether an order for examination on oath under s 12(1)(b)(ii) of the Criminal Assets Recovery Act should be made in those circumstances.
Decision
Ierace J considered the affidavit material filed by John Hampden Blackburn-Hart, the Commission's senior forensic accountant, which set out the basis for believing Mr Nardi could assist in identifying and locating property connected to the defendant.
The court was satisfied that reasonable grounds existed for the suspicion that Mr Nardi held relevant information. On that basis, the court made the orders sought by the Commission.
The application was heard on an essentially uncontested basis, with neither Mr Nardi nor the defendant formally opposing the orders.
Orders Made
- Mr Nardi be examined on oath before a registrar of the Supreme Court concerning the affairs of the defendant, including the nature and location of any property in which the defendant has an interest.
- Leave granted to the NSW Crime Commission to obtain dates from the registry for the examination.
Key Takeaways
- Under s 12(1)(b)(ii) of the Criminal Assets Recovery Act 1990 (NSW), a court may order a third party to be examined on oath concerning a defendant's affairs where reasonable grounds exist to suspect that person holds information relevant to locating property subject to the Act.
- The threshold applied by the Supreme Court was whether there were "reasonable grounds for the suspicion" that the proposed examinee could assist in locating relevant property, a relatively low bar satisfied here by the forensic accountant's affidavit evidence.
- The fact that a proposed examinee does not oppose an examination order is a relevant procedural consideration, though the court's satisfaction with the substantive threshold remained the foundation for making the orders.
- Orders under s 12(1)(b)(ii) operate against third parties who are not defendants in the primary proceedings, reflecting the broad information-gathering framework the Act provides to the Crime Commission.
- This decision is a brief procedural ruling and does not establish new legal principles; it illustrates the routine operation of the Commission's examination powers in the course of restrained-property proceedings.
Legislation and Cases Referenced
Legislation:
- Criminal Assets Recovery Act 1990 (NSW), ss 10A, 12(1)(b)(ii), 27
Cases:
- No cases were cited in the judgment.