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Supreme Court 20 June 2024

Application of the New South Wales Crime Commission

[2024] NSWSC 796

DrugsFraud & dishonesty
CRIMINAL LAW PROCEEDS OF CRIME PRODUCTION OF DOCUMENTS SUSPICION REASONABLY HELD PRODUCTION ORDER MADE

Citation: Application of the New South Wales Crime Commission [2024] NSWSC 796
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 party present) to the Supreme Court for a production order requiring the proper officer of a Campbelltown law firm to produce property-tracking documents. The application was brought under s 33(2) of the Criminal Assets Recovery Act 1990 (NSW). The documents sought related to a property purchase and were believed to reveal a suspected offender's interest in real estate.

The Crime Commission's proper officer had sworn an affidavit suspecting that an individual had engaged in serious crime-related activity. The suspected offending included drug supply contrary to the Drug Misuse and Trafficking Act 1985 (NSW) and knowingly dealing with proceeds of crime under s 193B(2) of the Crimes Act 1900 (NSW), the latter being punishable by up to 15 years' imprisonment.

The Commission had previously served a notice to produce documents on the law firm in December 2023 under s 29 of the Crime Commission Act 2012 (NSW). Despite follow-up correspondence, the firm had not complied, prompting the Commission to seek a formal court order.

  • Whether the proper officer held a reasonable suspicion that the individual had engaged in serious crime-related activity within the meaning of the Criminal Assets Recovery Act 1990 (NSW)
  • Whether the law firm was likely to have possession or control of property-tracking documents as defined under s 4 of that Act
  • Whether a production order under s 33(2) of the Act should be made in the circumstances

Decision

Davies J was satisfied, on the basis of the proper officer's affidavit and annexed materials, that the suspicions held regarding the suspected offending were reasonably held. The suspicion was grounded in a police facts sheet prepared when charges were laid, along with title research confirming the law firm's apparent involvement in the purchase of a property registered in the suspect's wife's name.

The court found that the suspected offences, including drug supply and the money laundering offence under s 193B(2) of the Crimes Act, constituted serious criminal offences under s 6(2) of the Criminal Assets Recovery Act. The definition of "property-tracking document" in s 4 of the Act encompasses documents relevant to identifying or locating a person's interest in property where that person may reasonably be suspected of serious crime-related activity.

Satisfied that both the suspicion and the likelihood of the documents being held were reasonably established, Davies J made the production order as sought.

Orders Made

  • A production order made under s 33(2) of the Criminal Assets Recovery Act 1990 (NSW) requiring the proper officer of John Stonham & Co Lawyers to produce the property-tracking documents specified in the draft order signed by Davies J on 20 June 2024

Key Takeaways

  • Under s 33(2) of the Criminal Assets Recovery Act 1990 (NSW), the Supreme Court may make a production order on an ex parte application where an authorised officer deposes on oath to a reasonable suspicion of serious crime-related activity and a reasonable belief that the target holds property-tracking documents.
  • A police facts sheet prepared upon the laying of charges, combined with independent title research, was sufficient to ground a reasonably held suspicion for the purposes of the Act.
  • Property-tracking documents under s 4 of the Act extend to documents held by third parties such as solicitors, where those documents may reveal a suspected person's interest in property.
  • Non-compliance with a notice to produce issued under s 29 of the Crime Commission Act 2012 (NSW) can lead to the Commission seeking a formal court production order as an alternative enforcement mechanism.
  • The offence of knowingly dealing with proceeds of crime under s 193B(2) of the Crimes Act 1900 (NSW), carrying a maximum of 15 years' imprisonment, qualifies as a serious criminal offence under s 6(2) of the Criminal Assets Recovery Act 1990 (NSW).

Legislation and Cases Referenced

Legislation:
- Criminal Assets Recovery Act 1990 (NSW), ss 4, 6, 33
- Crime Commission Act 2012 (NSW), s 29
- Crimes Act 1900 (NSW), s 193B
- Drug Misuse and Trafficking Act 1985 (NSW), s 25

Cases cited: None