New South Wales Crime Commission v El-Masri

In the case of New South Wales Crime Commission v El-Masri, the New South Wales Court of Appeal considered the application of the Proceeds of Crime Act 2002 (NSW) to an ex parte application for restraining orders. The New South Wales Crime Commission sought to restrain the disposal of assets held by Mr El-Masri, who was under investigation for organised criminal activity. The court was required to decide whether the application met the statutory criteria for ex parte orders and whether the Commission had demonstrated a real possibility that Mr El-Masri had engaged in serious criminal conduct.

The court first examined the statutory criteria for making ex parte orders, including whether the application was made in good faith, whether there was a real possibility of serious criminal conduct, and whether there was a risk that the subject would dispose of their assets. The court considered the evidence provided by the Commission, which included intelligence reports and affidavits, to determine whether it was sufficient to establish a real possibility of serious criminal conduct. The court also considered whether the evidence demonstrated a risk that Mr El-Masri would dispose of his assets.

The court found that the application met the statutory criteria for ex parte orders. The Commission had demonstrated a real possibility of serious criminal conduct, and there was a risk that Mr El-Masri would dispose of his assets. The court was satisfied that the evidence provided was sufficient to establish these elements, and that the application was made in good faith. The court therefore made the restraining orders sought by the Commission.

The court noted that the orders were interim in nature and that a final hearing would be required to determine whether the orders should be made permanent. The court also noted that the orders were subject to certain conditions, including that Mr El-Masri be given notice of the orders and an opportunity to be heard. The court emphasised the importance of ensuring that the rights of the subject were protected, while also recognising the need to prevent the disposal of assets that may be the proceeds of crime.