Elfar v New South Wales Crime Commission

The appeal concerned an application by the appellant, Elfar, to set aside a restraining order made by Hislop J on 24 October 2008, pursuant to the *Criminal Assets Recovery Act 1990* (NSW). The New South Wales Crime Commission sought the restraining order based on a suspicion that the appellant had engaged in serious crime-related activity, specifically a drug trafficking offence under s 24A of the *Drug Misuse and Trafficking Act 1985* (NSW), which concerned the possession of precursors for the manufacture or production of prohibited drugs. The appeal was heard by Spigelman CJ, Allsop P, and Hodgson JA.

The primary legal issues before the court were whether the affidavit supporting the application for the restraining order sufficiently established reasonable grounds for the Commission's suspicion, as required by s 10(3) of the *Criminal Assets Recovery Act 1990*, and whether the primary judge had provided adequate reasons for making the order. Specifically, the court considered whether the mere fact that a police officer had laid a charge was sufficient to establish reasonable grounds for suspicion for the purposes of the Act, and whether the primary judge's statement that he "had regard to" certain matters constituted a sufficient duty to give reasons.

The court reasoned that the affidavit sworn by Mr. Spark, the Assistant Director of Financial Investigations, did not adequately establish reasonable grounds for suspicion. While the affidavit referred to a Facts Sheet prepared by Detective Kiem and a search of the NSW COPS system revealing the appellant had been charged, the court found that the Facts Sheet itself did not provide sufficient information to justify the suspicion. The statement within the Facts Sheet that "It was believed that the accused was to supply a large quantity of prohibited drug or drug precursor" was an assertion of belief, not evidence supporting reasonable grounds for suspicion. Furthermore, the court held that the duty to give reasons required more than simply stating that the primary judge had "had regard to" certain matters; the judge needed to articulate the basis upon which the order was made.

The appeal was allowed. The court extended the time for filing the summons, granted leave to appeal, and set aside the restraining order made by Hislop J. The orders were to take effect one week from the date of the judgment, and the respondent was ordered to pay the appellant's costs.