New South Wales Crime Commission v Peter Geoffrey Martin

[2013] NSWSC 15

Supreme Court

New South Wales

Medium Neutral Citation:	New South Wales Crime Commission v Peter Geoffrey Martin [2013] NSWSC 15
Hearing dates:	15/01/2013
Decision date:	15 January 2013
Jurisdiction:	Common Law
Before:	McDougall J
Decision:	Restraining orders made.
Catchwords:	CRIMINAL LAW - Criminal Assets Recovery Act - Restraining orders - Necessity for reasons - order should be made.
Legislation Cited:	Crimes Assets Recovery Act 1990 (NSW) Uniform Civil Procedure Rules (2005)
Cases Cited:	NSW Crime Commission in Younan [2012] NSWSC 13
Category:	Procedural and other rulings
Parties:	New South Wales Crime Commission (Plaintiff) Peter Geoffrey Martin (Defendant)
Representation:	Solicitors: New South Wales Crime Commission (Plaintiff)
File Number(s):	2013/13314

Judgment (ex tempore - REVISED 15 JANUARY 2013)

1. HIS HONOUR: The plaintiff seeks a restraining order pursuant to section 10A(1) of the Criminal Assets Recovery Act 1990 (NSW) (the Recovery Act). For the reasons that follow, I am satisfied that it is appropriate to make such an order.

1. There has been some controversy, in first instance judgments, as to whether it is necessary for reasons to be given for the making of a restraining order. That controversy was canvassed by Davies J in NSW Crime Commission v Younan [2012] NSWSC 13. I agree with his Honour's analysis, and with his conclusion that reasons should be given. I adopt his Honour's reasoning, and I shall not repeat what his Honour said.

1. By s 10A(5) of the Recovery Act, the Court is to make a restraining order if the application for the order is supported by an affidavit of an authorised officer stating certain things. Relevantly for present purposes, that affidavit must state that the officer suspects that the person whose interest is the subject of the application has engaged in serious crime-related activity or activities. Subsection (5) adds, as an additional requirement, that the Court be satisfied that there are reasonable grounds for the suspicion.

1. In this case, the application is supported by a statement of facts and circumstances (see UCPR r 1.26, read in conjunction with Sch 10) and an affidavit of Jonathan Lee Spark sworn today.

1. Mr Spark deposes that he is an authorised officer for the purposes of s 10A(5). He deposes to holding a suspicion that the defendant has engaged in serious crime-related activity or activities, namely, manufacture of a prohibited drug of an amount greater than or equal to the commercial quantity. That is a "serious criminal offence" within s 6(2)(b) of the Recovery Act.

1. Mr Spark sets out the grounds of his suspicion. In brief, he deposes that:

(1) he made enquiries of a police officer;

(2) the police officer sent him a "facts sheet" in relation to the defendant;

(3) the police officer stated that the investigations had been carried out under his supervision and that he believed the contents of the facts sheet to be true; and

(4) further enquiries that Mr Spark directed to be made showed that the defendant had been arrested and charged with offences (of a kind described in the facts sheet), including the serious crime-related activity to which I referred earlier.

1. The facts sheet is annexed to Mr Spark's affidavit. There is no need to go into its detail. I am satisfied that it, attested by the police officer's statement of belief in the truth of its contents, forms a reasonable basis for the suspicion that Mr Spark swears he has formed.

1. Mr Spark's affidavit also shows that the defendant is proprietor, as tenant in common with another person who appears to be a co-offender, of two parcels of real estate. The restraining order is sought in respect of the defendant's interest in each of those parcels of real estate.

1. Inevitably, the administrative enforcement of the restraining order may affect the interest of the other proprietor, at least in a practical sense. The court was informed that as a matter of administrative convenience, the Crime Commission would lodge a caveat. The effect of that caveat, even if directed only to the defendant's interest in the parcels of real estate, would be to prevent any dealings until the caveat was discharged. That however is a matter for the defendant and the co-proprietor, who can make application if they wish. I express no view as to whether a restraining order under s 10A(1) of the Recovery Act would give the Crime Commission, in whose favour it is made, a caveatable interest in the land.

1. The affidavit shows also that the defendant holds two bank accounts with a certain bank. They are also items of property in respect of which the restraining orders sought will operate.

1. The summons also seeks, among other things, orders for the examination of the defendant and the co-proprietor of the real estate to whom I referred. The court was informed that some judges will make those orders ex parte and others will not. I fall into the latter category. Having intimated that position in the course of submissions, the court was informed that the application would not be pressed ex parte.

1. I am satisfied that it is appropriate to make the restraining orders sought, but not the examination orders. They can be pressed at a later time, when the defendant (and the other person sought to be examined) have had an opportunity of considering their position.

1. I note that the plaintiff by its solicitor gives to the court, on behalf of the State, the usual undertaking as to damages. I make orders in accordance with paragraphs 1 to 4 as amended of the form of order, amended and initialled by me and dated today's date. I direct that those orders be entered forthwith. I hand the documents back.

1. I adjourn the summons for hearing to 15 April 2013.

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Decision last updated: 18 March 2013