Hadjigeorgiou v New South Wales Crime Commission

This case concerned an appeal against a restraining order made under the *Criminal Assets Recovery Act 1990* (NSW). The appellant, Mr Hadjigeorgiou, challenged the validity of the order, which was based on an affidavit sworn by an authorised officer, Mr Spark. Mr Spark's affidavit asserted reasonable suspicion that the appellant had engaged in serious crime-related activity, specifically detailing grounds for suspicion relating to three offences. The core of the dispute was whether the matters stated in Mr Spark's affidavit provided sufficient reasonable grounds for the suspicion asserted, particularly in relation to the alleged offences.

The legal issues before the court were whether the affidavit of Mr Spark contained sufficient particularity to allow the court to assess whether there were reasonable grounds for his suspicion, and whether the material presented in the affidavit, when viewed as a whole, did indeed constitute reasonable grounds for suspecting the commission of the offences under sections 178BA, 178BB, and 300 of the *Crimes Act*. The appellant argued that the affidavit suffered from vitiating imprecision, particularly concerning the description of documents rather than their annexation, the lack of a clear comparison with ATO information, and the absence of direct evidence of causation for the alleged deception.

The majority of the Court of Appeal, comprising Giles JA and Santow JA, found that the matters stated in the affidavit, when considered as a whole, did provide reasonable grounds for suspicion. They reasoned that while the authorised officer must state the grounds for suspicion, this is distinct from proving facts, and the court can be satisfied by matters sworn in an affidavit in that manner. The court considered that the description of finance applications and supporting documents, including a purported tax return, when contrasted with ATO information indicating no returns had been lodged, could reasonably lead to a suspicion of falsity and that the tax return was not genuine. Furthermore, the court inferred causation for the first finance application, finding it unlikely that the represented earnings would be disregarded by the lender.

By majority, the Court of Appeal granted leave to appeal but dismissed the appeal, ordering that the appellant pay the costs. The court extended the time for the appellant to apply for leave to appeal and directed the filing of the notice of appeal within seven days.