Citation: New South Wales Crime Commission v Barta [2021] NSWSC 285
Court: Supreme Court of New South Wales
Date: 17 March 2021
Judge(s): Hamill J (as Duty Judge)
Background
The NSW Crime Commission applied to the Supreme Court on an urgent, ex parte basis (meaning without notice to the other party) for orders to restrain assets belonging to the defendant. The application was filed and heard on the same morning, supported by an affidavit from an authorised officer of the Commission and an annexed statement of facts.
The underlying conduct alleged against the defendant was drug dealing, specifically 11 pending charges of supplying a prohibited drug along with other associated charges.
In addition to the restraining orders, the Commission initially sought ancillary orders under s 12 of the Criminal Assets Recovery Act 1990 (NSW) that would have required the defendant to submit to a compulsory examination and disclose his financial circumstances. The Commission withdrew that part of its application after the judge questioned whether such orders should be made without the defendant being present or legally represented.
Legal Issues
- Whether the statutory prerequisites under ss 10 and 10A of the Criminal Assets Recovery Act 1990 (NSW) were satisfied, justifying the grant of ex parte restraining orders over the defendant's assets.
- Whether ancillary orders under s 12 of the Act requiring compulsory examination and financial disclosure could properly be made on an ex parte basis, without notice to the defendant or his legal representative.
Decision
Hamill J was satisfied that the affidavit of the Commission's authorised officer met all statutory prerequisites for making restraining orders under ss 10 and 10A of the Act. In particular, the officer was authorised, and she held a suspicion, grounded in the annexed fact sheet relating to the pending charges, that the defendant had engaged in serious crime related activity in the nature of drug dealing.
On the question of compulsory examination and financial disclosure orders under s 12, Hamill J queried whether there was good reason to make such orders in the absence of the defendant or his legal representative. The Commission withdrew that part of its application in response. The judge expressed the view that a defendant has a right to be heard on orders of that nature, and that there was no sufficient basis to make them ex parte.
Restraining orders were made in terms of the draft orders, and a publication restriction was imposed until after service on the defendant and any other relevant or interested parties.
Orders Made
- Restraining orders made in accordance with orders 1, 5, 7, 8, 9 and 10 of the plaintiff's draft orders.
- Orders under s 12 of the Act (compulsory examination and financial disclosure) were not made, following withdrawal of that part of the application by the Commission.
- An order was made prohibiting publication of the orders until the Crime Commission had served them on the defendant and any other relevant or interested party.
- The publication restriction was subsequently removed on 7 April 2021.
Key Takeaways
- Restraining orders under ss 10 and 10A of the Criminal Assets Recovery Act 1990 (NSW) may be granted ex parte where an authorised officer's affidavit establishes the requisite statutory prerequisites, including a grounded suspicion of serious crime related activity.
- A fact sheet annexed to an authorised officer's affidavit and relating to pending criminal charges can constitute a sufficient basis for the officer's suspicion, satisfying the evidentiary threshold for restraining orders.
- Hamill J expressed the clear view that a defendant has a right to be heard before compulsory examination and financial disclosure orders are made under s 12 of the Act, and that such orders should not ordinarily be granted ex parte without good reason.
- The Commission's withdrawal of the s 12 application, prompted by the judge's questioning, meant the court did not formally rule on the point as a matter of binding principle, though the reasoning was stated plainly.
- Publication of ex parte restraining orders may be restricted by court order until service is effected on the defendant and other interested parties.
Legislation and Cases Referenced
Legislation:
- Criminal Assets Recovery Act 1990 (NSW), ss 10, 10A, 12
Cases:
- No cases were cited in this decision.