Citation: [2023] NSWSC 413
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 against a defendant alleged to have engaged in serious crime-related activity, specifically the supply of methylamphetamine and heroin, contrary to the Drug Misuse and Trafficking Act 1995 (NSW). The defendant had been charged with those offences, and the Commission sought to restrain property connected to him before any assets could be dissipated.
The Commission applied to the Supreme Court's duty list on an urgent, ex parte basis, meaning without notifying the defendant. The application was supported by an affidavit from an authorised officer, Mr Bull, sworn on 22 March 2023, who deposed to his suspicions and the basis for them.
The Commission did not pursue all of the relief sought in its Summons at this stage. It focused on obtaining a restraining order and related orders under the Criminal Assets Recovery Act 1990 (NSW), covering property described in four schedules to the Short Minutes of Order.
Legal Issues
- Whether the Commission had established sufficient grounds, under s 10A of the Criminal Assets Recovery Act 1990 (NSW), for a restraining order over the defendant's property
- Whether it was appropriate to proceed ex parte, without giving the defendant notice of the application
- Whether the authorised officer's suspicion that the defendant had engaged in serious crime-related activity was reasonably held and properly substantiated
Decision
Walton J accepted that Mr Bull was an authorised officer for the purposes of the Act and that he held a genuine suspicion, supported by reasonable grounds, that the defendant had engaged in serious crime-related activity. That suspicion was grounded in a NSW Police fact sheet, a brief of evidence, and the fact that the defendant had been charged with the relevant offences.
The Court accepted the Commission's position that giving the defendant advance notice of the application would have been inappropriate in the circumstances. Mr Bull's affidavit identified a risk that a defendant might attempt to dispose of, or backdate transfer documents relating to, vehicles prior to restraint. He also noted that further interests in property, including bank accounts, might be identified following any order.
Walton J was satisfied there was a proper basis for proceeding ex parte and instanter (immediately, without delay) in the duty list. The Court accepted the undertaking provided by the Commission and made the restraining and related orders sought in the Short Minutes of Order.
Orders Made
• Restraining orders made under s 10A of the Criminal Assets Recovery Act 1990 (NSW)
• Related orders under the Criminal Assets Recovery Act 1990 (NSW)
• Orders made upon the undertaking provided by the New South Wales Crime Commission
Key Takeaways
- The Supreme Court confirmed that a restraining order under s 10A of the Criminal Assets Recovery Act 1990 (NSW) may be made on an ex parte basis where there is a proper evidentiary foundation for the authorised officer's suspicion of serious crime-related activity.
- Sufficient grounds for proceeding without notice to the defendant existed where the authorised officer deposed to a risk of asset dissipation, including the possible disposal or backdating of vehicle transfer documents.
- An authorised officer's suspicion can be substantiated by reference to a police fact sheet, a brief of evidence, and the fact that the defendant has been charged with the relevant offences.
- Under the Criminal Assets Recovery Act 1990 (NSW), the Commission is required to provide an undertaking to the Court as a condition of obtaining ex parte restraining relief.
- Restraining orders of this kind are made at an interim stage; the Commission did not pursue the full relief sought in the Summons, leaving further orders to be addressed subsequently.
Legislation and Cases Referenced
Legislation:
- Criminal Assets Recovery Act 1990 (NSW), s 10A
- Drug Misuse and Trafficking Act 1995 (NSW), s 25(1)
Cases cited: None cited in the judgment.