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Supreme Court 29 March 2023

New South Wales Crime Commission v Pettersen

[2023] NSWSC 406

Drugs
CRIMINAL PROCEDURE CRIMINAL ASSETS RECOVERY ACT 1990 (NSW) PROCEEDS OF CRIME EX PARTE ORDERS MADE

Citation: New South Wales Crime Commission v Pettersen [2023] NSWSC 406
Court: Supreme Court of New South Wales
Date: 29 March 2023
Judge: Walton J

Background

The New South Wales Crime Commission brought an application against an individual (the respondent) suspected of serious drug-related criminal activity. The suspected offences included manufacturing methylamphetamine in not less than a large commercial quantity and supplying amphetamine in not less than a commercial quantity, both contrary to the Drug Misuse and Trafficking Act 1985 (NSW). The respondent had been charged with those offences at the time of the application.

The Commission filed a Summons on the day of the application and sought relief under the Criminal Assets Recovery Act 1990 (NSW). Rather than pursuing the full range of orders available under that Act, the Commission confined its application to a restraining order and related ancillary orders under section 10A, pursued on an urgent, ex parte basis (meaning the respondent was not present or notified before the application was heard).

  • Whether the Commission had established sufficient grounds for the Supreme Court to proceed ex parte (without notifying the respondent) on an urgent basis.
  • Whether the affidavit evidence provided a proper basis, under the Criminal Assets Recovery Act 1990 (NSW), for the making of a restraining order over the respondent's property.
  • Whether the associated ancillary orders sought under sections 10B(2), 12(1)(b)(i), and 12(1)(c1) of the Act were appropriately made in the circumstances.

Decision

A Commission officer, Mr Wen, swore an affidavit on 29 March 2023 in support of the application. He deposed that, if the matter did not proceed immediately and without notice to the respondent, there was a risk that assets could be disposed of before orders were made. Walton J accepted this as a sufficient basis to proceed ex parte.

The Commission also provided a statement of facts and circumstances in accordance with rule 1.26 of the Uniform Civil Procedure Rules 2005 (NSW). That statement identified the suspected serious crime-related activity, confirmed that Mr Wen had reviewed and accepted a police facts sheet describing the alleged conduct, and noted that the respondent had been charged with the relevant offences.

Walton J was satisfied that the affidavit disclosed reasonable grounds for the suspicion that the respondent had engaged in serious crime-related activity within the meaning of the Act. His Honour found that the material before the court provided a proper basis for making the proposed orders, and the Commission gave the usual undertaking as to damages.

Orders Made

  • A restraining order under section 10A of the Criminal Assets Recovery Act 1990 (NSW) over property described in five schedules to the order.
  • Ancillary orders under sections 12(1)(b)(i), 10B(2), and 12(1)(c1) of the Act.
  • The Commission's undertaking as to damages was noted in the form of the order.

Key Takeaways

  • Under the Criminal Assets Recovery Act 1990 (NSW), a restraining order may be granted ex parte where there is sworn evidence that prior notice to the respondent could result in the disposal of assets before orders are made.
  • Walton J confirmed that a police facts sheet, accepted by the deponent as accurately describing suspected criminal activity, can form part of the evidentiary foundation supporting the requisite suspicion under section 10A.
  • The court did not need to be satisfied of guilt or resolve contested factual matters at this stage; the threshold is whether reasonable grounds exist for the suspicion that the respondent engaged in serious crime-related activity.
  • Compliance with rule 1.26 of the Uniform Civil Procedure Rules 2005 (NSW), requiring a statement of facts and circumstances, was treated as a procedural prerequisite to the ex parte application.
  • The Commission's standard undertaking as to damages formed part of the order, providing a measure of protection to the respondent in the event the restraining order is later discharged.

Legislation and Cases Referenced

Legislation:
- Criminal Assets Recovery Act 1990 (NSW), sections 10A, 10B(2), 12(1)(b)(i), 12(1)(c1)
- Drug Misuse and Trafficking Act 1985 (NSW), sections 24(2) and 25(2)
- Uniform Civil Procedure Rules 2005 (NSW), rule 1.26

Cases cited: No cases were cited in the judgment.