New South Wales Crime Commission v Co

[2014] NSWSC 999

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crime Commission v Co [2014] NSWSC 999

Hearing dates:

24 July 2014

Decision date:

24 July 2014

Jurisdiction:

Common Law

Before:

Hamill J (as Duty Judge)

Decision:

Restraining orders under s 10A made.

Ancillary orders under s 12 refused.

Catchwords:

CRIMINAL LAW - criminal assets Recovery act - restraining orders - Ancillary orders - Whether ancillary orders should be made ex parte - refusal of ancillary orders ex parte - whether ex parte applications should be dealt with in chambers

Legislation Cited:

Criminal Assets Recovery Act 1990 (NSW)
Drugs (Misuse and Trafficking) Act 1985 (NSW)

Cases Cited:

International Finance Trust Company Limited v New South Wales Crime Commission [2008] NSWCA 291
New South Wales Crime Commission v Martin [2013] NSWSC 15
New South Wales Crime Commission v Meads [2010] NSWSC 1145
New South Wales Crime Commission v Pham [2014] NSWSC 998
New South Wales Crime Commission v Richards [2010] NSWSC 1399
New South Wales Crime Commission v Younan [2012] NSWSC 13

Category:

Procedural and other rulings

Parties:

New South Wales Crime Commission (Plaintiff)
Wilson Co (Defendant)

Representation:

Counsel:
Solicitors:

File Number(s):

2014/218300

Publication restriction:

Nil

EX TEMPORE Judgment

1. HAMILL J: This is an application by the New South Wales Crime Commission for a restraining order under s 10A of the Criminal Assets Recovery Act1990 (NSW).

1. The application came before me in chambers yesterday at which time I indicated to the plaintiff that I was of the opinion that such an application was more appropriately dealt with in open court. If there was any necessity for non-publication orders, or for closure of the court, the Court was in a position to make such orders so as to ensure the integrity of any ongoing investigation and the efficacy of the restraining order sought.

1. For reasons I have given in a similar case which I have just disposed of, it is my opinion that contrary to the decisions of some members of the court, reasons, albeit brief reasons, should be given in cases of this kind: see International Finance Trust Company Limited v New South Wales Crime Commission [2008] NSWCA 291; New South Wales Crime Commission v Richards [2010] NSWSC 1399; New South Wales Crime Commission v Younan [2012] NSWSC 13, cf New South Wales Crime Commission v Meads [2010] NSWSC 1145.

1. The application is to be dealt with ex parte under the provisions of s 10A(1). However ss (4) allows the court to require the Commission to give notice of the application to any person who may be affected by the restraining orders proposed.

1. I have come to the conclusion, based on the material before me, that the circumstances are such that a notice is or should not be required. My reason for coming to that conclusion is simply that the ease with which the relevant property could be disposed of, if the defendant became aware of the application, is such as it could thwart the very purpose of the orders sought.

1. The application is supported by an affidavit of Jonathan Lee Sparks, dated 22 July 2014. Mr Sparks is an authorised officer, as that expression is defined in s 4 of the Criminal Assets Recovery Act. His affidavit sets out his belief that the defendant has engaged in serious crime related activity, within the meaning that that phrase is given in the legislation. That activity is drug related activity and particularly the supply of drugs under the Drugs (Misuse and Trafficking) Act 1985 (NSW). Those offences, with which the defendant currently stands charged, falls within the definition of a serious criminal offence.

1. Mr Sparks has annexed a facts sheet prepared by the investigating police and I have read that facts sheet and observed that the case against the defendant is encompassed by surveillance of his premises during which two men appear to enter and leave the premises from which an inference might be drawn that they had made a significant drug transaction with the defendant. Thereafter, the police executed a search warrant of those premises and located around 30 kilograms of cannabis and about $104,000 in Australian currency.

1. When the defendant was interviewed by police, it is said in the facts sheet that he told the police that he found the cannabis "on the side of the road" and that he intended to use it for his personal use. I note again the quantity of 30 kilograms.

1. For the purposes of s 10A(5) I consider that the suspicion deposed to by Mr Sparks in his affidavit is one based on reasonable grounds and, accordingly I "must" make the order in accordance with the terms of s 10A. I note, in doing so, that the plaintiff, through Ms Goh has made undertakings as to damages or costs in relation to the making and operation of the order, so that the discretionary power to refuse to make the order under ss 7 does not arise.

1. In addition to the application for the restraining order, the plaintiff also seeks ancillary orders under s 12 of the Act. Those orders encompass his compulsory examination before the Registrar of this court as well as a requirement that he provide a statement verified on oath as to his interests in property.

1. As I indicated in the previous case, New South Wales Crime Commission v Pham [2014] NSWSC 998, there is no particular urgency surrounding the ancillary orders sought. In my opinion the application for such orders can be made at a later time.

1. I am also of the opinion that the defendant should be on notice of such an application so that he can chose to make submissions in relation to whether orders should be made in circumstances where he stands charged with criminal offences.

1. Ms Goh, who appears for the plaintiff, has helpfully and properly brought to my attention the decision of New South Wales Crime Commission v Martin [2013] NSWSC 15, in which McDougall J took a similar approach in declining to make the ancillary orders.

1. However, for the reasons that I have given, I propose to make the restraining orders as sought and the other orders in the proposed orders, that is, orders 5, 6 and 7.

1. I make orders in accordance with the amended orders. I have initially and signed those orders and they will be made forthwith.

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Decision last updated: 28 July 2014