Citation: New South Wales Crime Commission v Lee [2021] NSWSC 286
Court: Supreme Court of New South Wales
Date: 17 March 2021
Judge(s): Hamill J (as Duty Judge)
Background
The NSW Crime Commission applied by summons for a restraining order under the Criminal Assets Recovery Act 1990 (NSW), seeking to freeze assets held by the defendant. The application was brought on an ex parte basis, meaning the defendant was not present or given notice. The Commission also initially sought ancillary orders under s 12 of the Act, which would have compelled the defendant and another person to undergo examination and disclose their financial affairs under oath.
At the hearing, Hamill J indicated he was willing to deal with the restraining order ex parte, given the obvious need to prevent assets being dissipated before an order could take effect. However, the judge expressed reluctance to make the s 12 compulsory examination orders ex parte, given their impact on the common law right to silence. The Commission consequently withdrew those ancillary applications, leaving only the restraining order for determination.
The factual basis for the application rested on an affidavit from an authorised officer who held a suspicion that the defendant had engaged in serious crime-related activity. That suspicion was grounded in a police facts sheet concerning a pending charge of dealing with proceeds of crime, specifically $180,000 in cash produced at a casino in circumstances inconsistent with gambling winnings.
Legal Issues
- Whether the court was required to give reasons when making a restraining order under the Criminal Assets Recovery Act 1990 (NSW) on an ex parte basis.
- Whether the statutory prerequisites under s 10A(5) of the Act were satisfied on the evidence before the court.
- Whether it was appropriate to make ancillary compulsory examination orders under s 12 on an ex parte basis.
Decision
Hamill J addressed what his Honour described as a divergence in practice among judges of the Common Law Division. Some judges had proceeded to make restraining orders under the Act without giving reasons, while others had followed the approach endorsed by Allsop P in International Finance Trust Company Limited v New South Wales Crime Commission [2008] NSWCA 291, which identified a duty to provide at least brief reasons before making such an order.
His Honour aligned with the Court of Appeal's position in International Finance Trust, emphasising that a restraining order is a judicial act of considerable gravity. It freezes a person's property, potentially for a significant period, in their absence and without any inter partes interlocutory hearing. The only recourse is an appeal, not a review at first instance, which makes the provision of reasons particularly important to public confidence in the administration of justice.
Hamill J confirmed that the reasons need not be elaborate. Where the supporting affidavit is clear, specific, and admissible, a concise explanation of why the suspicion is reasonably grounded will ordinarily suffice. The judge noted that several colleagues, including Walton J, Rothman J, Ierace J, Lonergan J, and Beech-Jones J, had applied this approach in recent decisions, and expressed agreement with each of them.
On the merits, Hamill J was satisfied that the statutory prerequisites under s 10A(5) were met. The authorised officer's affidavit identified the grounds for her suspicion that the defendant had engaged in serious crime-related activity, and those grounds were adequately supported by the police facts sheet. The restraining order was accordingly made.
Orders Made
- Restraining order made in accordance with items 1, 5, 7, 8, 9, and 10 of the plaintiff's draft orders.
- Order made prohibiting publication of the orders until the Crime Commission had served them on the defendant and any other relevant or interested party.
- Ancillary compulsory examination and financial disclosure orders under s 12 were not made at this stage (the Commission withdrew those applications).
Key Takeaways
- The Supreme Court confirmed that judges exercising the power to make restraining orders under the Criminal Assets Recovery Act 1990 (NSW) are required to give reasons, even if those reasons need not be elaborate or intricate.
- A freezing order made ex parte under the Act is a judicial act of significant consequence, distinguishable from the approval of a search warrant or listening device, and the absence of any first-instance review process reinforces the obligation to explain the exercise of the power.
- Under s 10A(5) of the Act, the critical evaluative task is assessing whether the grounds for the authorised officer's suspicion are reasonable. Where the supporting affidavit is clear and admissible, brief and focused reasons will typically be sufficient.
- Divergent practice had developed among judges of the Common Law Division on the question of whether reasons were required. Hamill J expressly acknowledged this divergence and aligned with the line of authority requiring reasons, citing at least five recent decisions in support.
- Compulsory examination orders under s 12 of the Act engage the common law right to silence, and in Hamill J's view affected persons are entitled to be heard before such orders are made. Those orders were not made ex parte in this case.
Legislation and Cases Referenced
Legislation
- Criminal Assets Recovery Act 1990 (NSW), ss 10, 10A, 12
Cases
- International Finance Trust Company Limited & Anor v New South Wales Crime Commission [2008] NSWCA 291
- Elfar v New South Wales Crime Commission [2009] NSWCA 348
- New South Wales Crime Commission v Pham [2014] NSWSC 998
- New South Wales Crime Commission v Carnese [2020] NSWSC 1530
- New South Wales Crime Commission v Ke [2018] NSWSC 2054
- New South Wales Crime Commission v Ryan; Loriz [2019] NSWSC 1039
- NSW Crime Commission v Simpson [2019] NSWSC 747
- New South Wales Crime Commission v Xue [2018] NSWSC 1508