Citation: New South Wales Crime Commission v Al Deleymi [2023] NSWSC 394
Court: Supreme Court of New South Wales
Date: 29 March 2023
Judge(s): Walton J
Background
The New South Wales Crime Commission brought an application by Summons seeking a restraining order and related orders against the defendant under the Criminal Assets Recovery Act 1990 (NSW). The application was made ex parte (meaning the defendant was not present or represented) and was heard instanter, that is, immediately on the day it was filed, in the duty list.
The Commission relied on an affidavit sworn by Jiansong Wen, an authorised officer under the Act. Mr Wen deposed that he held a suspicion that the defendant had engaged in serious crime related activity, specifically dealing with property suspected of being proceeds of crime, contrary to s 193C(1) of the Crimes Act 1900 (NSW).
Mr Wen's suspicion was based on a NSW Police Force facts sheet describing the alleged criminal activity, and the defendant had been charged with the relevant offences described in that facts sheet.
Legal Issues
- Whether the Court had a proper basis to proceed ex parte and instanter on an application for a restraining order under the Criminal Assets Recovery Act 1990 (NSW).
- Whether the affidavit of the authorised officer established reasonable grounds for a suspicion that the defendant had engaged in serious crime related activity within the meaning of the Act.
- Whether the restraining order and related orders sought in the Short Minutes of Order should be made.
Decision
Walton J was satisfied that the application could properly proceed ex parte and instanter, having regard to specific paragraphs of Mr Wen's affidavit that provided the factual foundation for urgency and the absence of the defendant.
The Court found that Mr Wen was an authorised officer for the purposes of the Act, and that his affidavit disclosed reasonable grounds for his suspicion that the defendant had engaged in serious crime related activity. The Court noted that Mr Wen had received and accepted a NSW Police Force facts sheet, that the defendant had been charged with the described offences, and that those facts supported the requisite level of suspicion under the Act.
On that basis, Walton J concluded that the Commission had established the proper basis for the Court to make the restraining order and related orders as set out in the Short Minutes of Order.
Orders Made
• Restraining order made under the Criminal Assets Recovery Act 1990 (NSW)
• Related orders made as sought in the Short Minutes of Order
Key Takeaways
- The Supreme Court confirmed that a restraining order application under the Criminal Assets Recovery Act 1990 (NSW) may be heard ex parte and instanter where the affidavit of an authorised officer provides proper grounds to do so.
- Under the Act, the threshold for making a restraining order requires the court to be satisfied that there are reasonable grounds for the authorised officer's suspicion of serious crime related activity, not proof of that activity.
- An authorised officer's suspicion, founded on a NSW Police Force facts sheet and confirmation that the defendant has been charged with the relevant offences, can satisfy the evidentiary requirements for a restraining order.
- Dealing with property suspected of being proceeds of crime, contrary to s 193C(1) of the Crimes Act 1900 (NSW), constitutes a "serious crime related activity" for the purposes of the Criminal Assets Recovery Act 1990 (NSW).
- Short Minutes of Order provided to the court at the time of hearing serve as the mechanism by which the specific terms of restraining and related orders are formalised in this type of application.
Legislation and Cases Referenced
Legislation:
- Criminal Assets Recovery Act 1990 (NSW)
- Crimes Act 1900 (NSW), s 193C(1)
- Uniform Civil Procedure Rules 2005 (NSW), r 1.26 and r 36.4(1)(a)
Cases cited: None cited in the judgment.