Citation: New South Wales Crime Commission v Paterson [2021] NSWSC 284
Court: Supreme Court of New South Wales
Date: 17 March 2021
Judge(s): Hamill J (as Duty Judge)
Background
The NSW Crime Commission brought an urgent ex parte application (meaning the defendant was not present or notified) for restraining orders over the assets of a defendant charged with serious drug and proceeds-of-crime offences. The application was filed and heard on the same day, supported by an affidavit from an authorised officer of the Commission sworn the previous day.
NSW Police had investigated the defendant and charged him with offences relating to an alleged one-kilogram block of cocaine found at a bungalow at Raymond Terrace near Newcastle. The defendant had been under police surveillance and was seen arriving at the bungalow carrying a shopping bag believed to contain drugs. Investigators also seized electronic scales, kitchen bags, and a large quantity of cash.
The Commission originally sought additional orders under s 12 of the Criminal Assets Recovery Act 1990 (NSW), which would have compelled the defendant to submit to examination and disclose his assets under oath. When Hamill J queried the necessity of making those ancillary orders on an ex parte basis, the Commission withdrew that part of the application.
Legal Issues
- Whether the statutory prerequisites under ss 10 and 10A of the Criminal Assets Recovery Act 1990 (NSW) were satisfied to justify the making of ex parte restraining orders over the defendant's assets.
- Whether the authorised officer's sworn suspicion of serious crime-related activity was properly grounded in the material before the court.
- Whether ancillary compulsory examination and asset disclosure orders under s 12 of the Act were appropriate to make on an ex parte basis.
Decision
Hamill J was satisfied that the affidavit of the Commission's authorised officer, Katie Elaine Bourne, established the necessary statutory prerequisites for the restraining orders. The affidavit confirmed her status as an authorised officer and set out the basis for her suspicion that the defendant had engaged in serious crime-related activity, specifically supplying a large commercial quantity of cocaine contrary to s 25(2) of the Drugs Misuse and Trafficking Act 1985 (NSW), and dealing in proceeds of crime contrary to s 193C(1) of the Crimes Act 1900 (NSW).
The grounds for that suspicion were drawn from a statement of facts provided by NSW Police, which was annexed to the affidavit. His Honour found the information clearly capable of grounding the suspicion Ms Bourne had formed, and was satisfied the restraining orders should be made.
On the question of the s 12 ancillary orders, the Commission withdrew its application for compulsory examination and sworn asset disclosure orders after Hamill J questioned whether those orders were necessary to make on an ex parte basis. His Honour accordingly made no such orders.
A non-publication order was also made at the time of the decision, requiring that the restraining orders not be published until they had been served on the defendant and any other relevant or interested parties. That restriction was subsequently removed on 7 April 2021.
Orders Made
- Restraining orders made in accordance with draft orders 1, 4, 7, 8, 9 and 10 as provided by the Commission (specific asset details not reproduced in the judgment extract).
- No orders made under s 12 of the Act for compulsory examination or sworn asset disclosure (application withdrawn).
- Non-publication order made pending service of the restraining orders on the defendant and interested parties (subsequently lifted on 7 April 2021).
Key Takeaways
- Under ss 10 and 10A of the Criminal Assets Recovery Act 1990 (NSW), an ex parte restraining order may be granted where an authorised officer's affidavit establishes the required statutory prerequisites, including a properly grounded suspicion of serious crime-related activity.
- A suspicion based on a police statement of facts, annexed to an authorised officer's affidavit, can be sufficient to ground the making of a restraining order under the Act.
- Hamill J's query about the necessity of making compulsory examination and asset disclosure orders ex parte prompted the Commission to withdraw that part of its application, reflecting a degree of judicial scrutiny over the scope of ex parte relief sought.
- The decision involves no novel question of principle and was decided on the specific facts and statutory framework presented; the catchwords confirm this was a routine application of established procedures.
- Non-publication orders are available at the time restraining orders are made to protect the integrity of service, though such restrictions may be lifted once service is effected.
Legislation and Cases Referenced
Legislation:
- Criminal Assets Recovery Act 1990 (NSW), ss 10, 10A, 12
- Drugs Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes Act 1900 (NSW), s 193C(1)
Cases cited: No cases were cited in the judgment.