New South Wales Crime Commission v Power

[2020] NSWSC 1528

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

New South Wales Crime Commission v Power [2020] NSWSC 1528

Hearing dates:

2 October 2020

Date of orders:

2 October 2020

Decision date:

02 October 2020

Jurisdiction:

Common Law

Before:

Walton J

Decision:

On 2 October 2020, the Court announced the following order: on the evidence before the Court, the Commission has established that a restraining order should be made under s 10A and ancillary orders be made under s 12 of the Act. Orders were made accordingly.

Catchwords:

CRIMINAL PROCEDURE – Criminal Assets Recovery Act 1990 (NSW) – restraining order – ex parte – orders made

Legislation Cited:

Crimes Act 1900 (NSW)

Criminal Assets Recovery Act 1990 (NSW)

Drug Misuse and Trafficking Act 1985 (NSW)

Category:

Principal judgment

Parties:

New South Wales Crime Commission (Plaintiff)
Bradley Michael Power (Defendant)

Representation:

Solicitors:
New South Wales Crime Commission (Plaintiff)

File Number(s):

2020/284341

reasons for decision

1. The Court has before it a summons which seeks a hearing instanter and ex parte in order to partially deal with the matters in question, with the balance to be listed before this Court at another time.

2. This matter concerns an application for orders by the New South Wales Crime Commission (“the Commission”) pursuant to ss 10A and 10B(2) of the Criminal Assets Recovery Act 1990 (NSW) ("the Act").

3. Section 10A of the Act enables an application to be made ex parte for a restraining order.

4. The relief claimed appears under the heading "Relief Claimed" in the summons, which corresponds to the draft orders provided to the Court in support of the application. The application is supported by the affidavit of Ms Katie Elaine Bourne, sworn 24 September 2020. The application is also supported by a statement of facts and circumstances, as required on an application for a restraining order, pursuant to r 1.26 of the Uniform Civil Procedure Rules 2005 (NSW).

5. Pursuant to s 10A of the Act, the Commission may apply for a restraining order in respect of the interests in question, in this case interest in property of Bradley Power. The affidavit of Ms Bourne discloses that she is an authorised officer for the purposes of the Act and suspects Mr Power of having engaged in serious crime related activity, namely:

1. manufacture a prohibited drug (methylamphetamine), which is not less than the large commercial quantity applicable to the prohibited drug, contrary to s 24(2) of the Drug Misuse and Trafficking Act 1985 ("the DMT Act"); and

2. supply, or knowingly take part in the supply of, a prohibited drug (methylamphetamine), which is not less than the large commercial quantity applicable to the prohibited drug, contrary to s 25(2) of the DMT Act,

6. being offences falling within the definition of "serious criminal offence" pursuant to s 6(2)(b) of the Act.

7. I note, further, that Ms Bourne gives the grounds upon which the suspicion is held, that is a suspicion of Mr Power having engaged in serious crime related activity. In that respect, I further observe that Ms Bourne was provided with and accepted a police facts statement that describes the suspected serious criminal activity in which Ms Bourne suspects Mr Power to have engaged in.

8. It was also noted in the fact sheet that Ms Bourne has ascertained that Mr Power has been charged with the offences described in the fact sheet.

9. In my view, there are reasonable grounds for Ms Bourne's suspicion that Mr Power has engaged in serious crime related activity.

10. Finally, before disposing of the matter in its entirety, I should note that in my view, upon the circumstances outlined in the affidavit of Ms Bourne as to this particular matter, there was a proper basis upon which the matter may have proceeded as it has ex parte.

11. On 2 October 2020, the Court announced the following order: on the evidence before the Court, the Commission has established that a restraining order should be made under s 10A and ancillary orders be made under s 12 of the Act. Orders were made accordingly.

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Amendments

30 October 2020 - Correction to file number

Decision last updated: 30 October 2020