New South Wales Crime Commission v Bradley Colin Peters
[2017] NSWSC 1627
•17 November 2017
Supreme Court
New South Wales
Medium Neutral Citation: New South Wales Crime Commission v Bradley Colin Peters [2017] NSWSC 1627 Hearing dates: 17 November 2017 Date of orders: 17 November 2017 Decision date: 17 November 2017 Jurisdiction: Common Law Before: Hamill J Decision: Restraining order made. Ancillary orders refused.
Catchwords: CIVIL LAW – restraining order over large sums of cash – dealt with ex-parte – ancillary order for examination of defendant – ought not to be made ex parte Legislation Cited: Criminal Assets Recovery Act 1990 (NSW) Category: Principal judgment Parties: New South Wales Crime Commission (plaintiff)
Bradley Colin Peters (defendant)Representation: Solicitors:
New South Wales Crime Commission (plaintiff)
Ex parte
File Number(s): 2017/00348657 Publication restriction: No publication of the proceedings or the orders for seven days.
Ex Tempore Judgment
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By summons filed in Court today the New South Wales Crime Commission seeks a variety of orders and, particularly, seeks orders under s 10A of the Criminal Assets Recovery Act 1990 (NSW) which can generally be described as a restraining order in respect of certain property which is identified in a Schedule to the orders proposed. That includes a substantial amount of cash and it also includes money in a bank account.
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The section, that is s 10A, assumes, as a starting point, that such an application will be made ex parte for obvious reasons, namely that the person targeted by the order might attempt to remove the relevant assets, but there is a provision in subsection (4) that allows the Court to require the Crime Commission to give the person notice.
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On the material that I have, namely the affidavit of Ms Bourne, I can see no reason to require the Crime Commission to give notice in respect of the restraining orders and so I will proceed ex parte as contemplated by the section.
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In terms of the matters required to be established in s 10A(5), I have read the detailed affidavit of Katie Elaine Bourne and am satisfied of the matters referred to, namely that I have an affidavit from an authorised officer and that the authorised officer suspects that the person whose interest is the subject of the application has engaged in serious crime-related activity. The material in that affidavit clearly establishes that there are grounds upon which the authorised officer holds that suspicion.
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It might also be said that subparagraphs (ii) and (iii) of subsection (5) are also satisfied so I propose, in those circumstances, to make the order, the section being in mandatory terms and I will make the restraining orders.
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The Commission also seeks ancillary orders under s 12 of the Criminal Assets Recovery Act and specifically seeks orders that the target, that is a Mr Peters, be subject to an examination by the Registrar.
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Whilst that may be an appropriate order ultimately to be made, in my view in light of the cases on the way in which such compulsory examination may impact upon criminal proceedings it is not appropriate to make such an order ex parte, nor is there a basis upon which I would find that it is necessary to deal with that matter with great expedition. In other words it may be that once Mr Peters is aware of the application he can either consent to the examination or be legally represented or otherwise be heard.
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When I raised my reluctance to make the order, Ms Santhikumar, who appears for the Crime Commission, indicated that she would not press for that order.
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So for those brief reasons I propose to make the orders in paragraphs 1, 5, 6, 7, 8, 9 and 10. I will simply strike out orders 2, 3 and 4.
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I order that those orders be taken out forthwith.
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I order that there be no publication of the proceedings or the orders for seven days.
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Decision last updated: 27 November 2017
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