Citation: [2024] NSWSC 795
Court: Supreme Court of New South Wales
Date: 20 June 2024
Judge: Davies J
Background
The NSW Crime Commission applied ex parte (without the other side present) to the Supreme Court for a production order under the Criminal Assets Recovery Act 1990 (NSW). The order was directed at Zahr & Zahr Lawyers Pty Ltd, a law firm based in Rockdale, requiring its proper officer to produce specified documents.
The application arose from suspicions that a named individual had engaged in serious crime-related activity, specifically the supply of a large commercial quantity of methylamphetamine and money laundering through knowingly dealing with the proceeds of crime. Investigators had identified a property purchase in Chipping Norton and a related loan agreement witnessed by a solicitor then employed at the firm, which formed the basis for believing the firm held relevant documents.
The Commission's authorised officer, Melissa Digby, swore a supporting affidavit on 13 June 2024, attaching a police facts sheet and search results as the evidentiary foundation for the application.
Legal Issues
- Whether the authorised officer held a reasonable suspicion that the subject individual had engaged in serious crime-related activity within the meaning of the Criminal Assets Recovery Act 1990
- Whether the law firm held possession or control of "property-tracking documents" as defined in s 4 of the Act
- Whether the threshold requirements under s 33 of the Act were satisfied so as to warrant the making of a production order
Decision
Davies J reviewed Digby's affidavit and its annexures, including the police facts sheet and property search results. His Honour was satisfied that the suspicions set out in the affidavit were reasonably held, meeting the threshold required by s 33(1) of the Act.
The court accepted that both alleged offences, supplying a large commercial quantity of methylamphetamine under s 25(2) of the Drug Misuse and Trafficking Act 1985 and knowingly dealing with proceeds of crime under s 193B(2) of the Crimes Act 1900, qualify as serious criminal offences under s 6(2) of the Criminal Assets Recovery Act.
The connection between the law firm and the suspected individual was established through evidence that a loan agreement associated with the relevant property purchase had been witnessed by a solicitor then employed at the firm. This gave the Commission reasonable grounds to suspect the firm held property-tracking documents within the statutory definition.
The application was granted on the day it was heard, with the court making orders in terms of the draft order provided.
Orders Made
- A production order made under s 33(2) of the Criminal Assets Recovery Act 1990 (NSW) requiring the proper officer of Zahr & Zahr Lawyers Pty Ltd to produce the documents identified in the summons
Key Takeaways
- Under s 33(1) of the Criminal Assets Recovery Act 1990, an authorised officer may apply ex parte for a production order where there are reasonable grounds to suspect a person has possession or control of property-tracking documents.
- A "property-tracking document" under s 4 of the Act includes documents in digital or electronic form that are relevant to identifying or locating an interest in property held by a person reasonably suspected of serious crime-related activity.
- Supplying a large commercial quantity of methylamphetamine and knowingly dealing with proceeds of crime are both confirmed as serious criminal offences for the purposes of s 6(2) of the Act.
- A police facts sheet, combined with property and loan agreement records linking a suspect to a law firm, can be sufficient to establish the reasonable suspicion required for a production order.
- The Supreme Court confirmed the Act's production order regime applies to law firms where there is a reasonable basis to believe the firm holds documents relevant to tracing a suspect's property interests.
Legislation and Cases Referenced
Legislation:
- Criminal Assets Recovery Act 1990 (NSW), ss 4, 6, 33
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
- Crimes Act 1900 (NSW), s 193B(2)
Cases cited: None