New South Wales Crime Commission v Lee

[2021] NSWSC 286

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crime Commission v Lee [2021] NSWSC 286

Hearing dates:

17 March 2021

Date of orders:

17 March 2021

Decision date:

17 March 2021

Jurisdiction:

Common Law

Before:

Hamill J (as Duty Judge)

Decision:

See paragraph [10].

Catchwords:

CRIMINAL LAW – criminal assets recovery - restraining orders – ex parte – duty to give reasons – different approaches taken by judges of the Common Law Division – orders made

Legislation Cited:

Criminal Assets Recovery Act 1990 (NSW), ss 10, 10A, 12

Cases Cited:

Elfar v New South Wales Crime Commission [2009] NSWCA 348

International FinanceTrust Company Limited & Anor v New South Wales Crime Commission [2008] NSWCA 291

New South Wales Crime Commission v Carnese [2020] NSWSC 1530

New South Wales Crime Commission v Ke [2018] NSWSC 2054

New South Wales Crime Commission v Pham [2014] NSWSC 998

New South Wales Crime Commission v Ryan; Loriz [2019] NSWSC 1039

New South Wales Crime Commission v Xue [2018] NSWSC 1508

NSW Crime Commission v Simpson [2019] NSWSC 747

Category:

Procedural rulings

Parties:

NSW Crime Commission (Plaintiff)
Chester Lee (Defendant)

Representation:

Solicitors:
Crown Solicitors Office (Plaintiff)

File Number(s):

2021/00075574

Publication restriction:

Nil

EX TEMPORE Judgment (REVISED)

1. This is an application brought by summons for orders under the Criminal Assets Recovery Act 1990 (NSW) (the Act). At this stage a restraining order as defined in s 10 is sought and the plaintiff seeks to proceed ex parte pursuant to s 10A(1). Other ancillary orders including orders under s 12 of the Act for the compulsory examination of defendant and another person and the compulsory sworn disclosure of financial affairs of the defendant were also sought.

2. On the hearing of the application, I indicated that I understood the reasons the restraining order should be dealt with ex parte, namely, the need to ensure the assets subject to the order were not dealt with or disposed of so as to defeat the purpose of the order sought. On the other hand, I said I was disinclined to make the ancillary orders ex parte, whereupon the NSW Crime Commission withdrew its application for those orders at this stage. Orders under s 12 can be made later and the defendant or other person affected can be heard by the Court if they wish. In my view, they are entitled to make submissions given the impact of the orders and the common law right to silence.

3. Contrary to what I have been told about the practice of some Judges of the Common Law Division, I take the view that there is a duty to give reasons, albeit not intricate reasons, before making a restraining order: International FinanceTrust Company Limited & Anor v New South Wales Crime Commission [2008] NSWCA 291; Elfar v New South Wales Crime Commission [2009] NSWCA 348 at [16] – [18]; New South Wales Crime Commission v Pham [2014] NSWSC 998 at [10].

4. In International FinanceTrust Company Limited & Anor v New South Wales Crime Commission, Allsop P said at [41]:

“It has not been the practice of the Judges of the Common Law Division to give reasons. The primary judge followed that practice. What follows is not intended, in the slightest, as a criticism of the primary judge. My view, however, is that the subject matter of the Act, the nature of the application, including its judicial character, the consequences to the person of a successful ex parte application by the Commission, the lack of an inter-partes interlocutory hearing, the existence of the supervisory appeal and the character of the assessment to be made by the Judge all point to, or are consistent with, the obligation by the Court to provide reasons.”

5. At [46] - [47], his Honour continued:

“[46] Here, the Act deals with the restraint and later forfeiture of the property of individuals. The operation of the Act is of the utmost gravity. The power being exercised is judicial. It is not the approval of a search warrant or a listening device; it is the making of an order, in the absence of the relevant party, for the freezing of property for, potentially, a significant period of time. There is no review at first instance only an appeal. Confidence in the judicial system and ensuring that justice is seen to be done between State and subject require in my view an explanation of the exercise of such a drastic power. That explanation is the giving of reasons.

[47] Such reasons need not be elaborate. It is true, as McClellan CJ at CL points out, there is one ultimate issue for the Judge: the reasonableness of the grounds for the suspicion. In many cases, that will be a straightforward analysis. This will be especially so if the affidavit is clear, specific and admissible. That may not be the case. It was not the case in Hadjigeorgiou. It is not the case here. Though in one sense a simple evaluative task, the assessment of the reasonableness of the stated grounds may require some explanation. Thus, the extent of any reasons will or may vary from case to case. It may be enough to state with economy and conciseness why the suspicion is reasonably grounded. In other cases, if the affidavit is unclear in the possible relationship between the grounds and the suspicion more explanation might be required. A reading of Hadjigeorgiou reveals the difficulties that can be provoked in some cases.”

(Citations omitted.)

6. On a quick review of Caselaw, it is clear that some Judges of the Common Law Division remain of the view that applications for such restraining orders remain subject to the requirements referred to by Allsop P: See, for example, New South Wales Crime Commission v Carnese [2020] NSWSC 1530 (Walton J); New South Wales Crime Commission v Ke [2018] NSWSC 2054 (Rothman J); New South Wales Crime Commission v Ryan; Loriz [2019] NSWSC 1039 (Ierace J); NSW Crime Commission v Simpson [2019] NSWSC 747 (Lonergan J); New South Wales Crime Commission v Xue [2018] NSWSC 1508 (Beech-Jones J).

7. I agree with the approach in those cases.

8. I am satisfied that the restraining order should be made.

9. An affidavit of Katie Elaine Bourne and a statement of facts and circumstances established the statutory prerequisites required by s 10A(5) of the Act. Ms Bourne is an authorised officer under the Act and asserts that she is of the belief or suspicion that the defendant has engaged in serious crime related activity. She identifies the grounds for that suspicion. The suspicion is based on material contained in a police facts sheet relating to a pending charge of dealing with the proceeds of crime, namely $180,000 in cash, which was produced at the Star Casino and was not in a form consistent with winnings from that establishment.

10. For those reasons I make orders in accordance with 1, 5, 7, 8, 9 and 10 of the draft orders provided by the solicitor appearing for the plaintiff. I also make an order that there be no publication of these orders until the Crime Commission has served the restraining orders on the defendant and any other relevant or interested party.

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