NSW Crime Commission v Lee - [2010] NSWSC 1159

CITATION: NSW Crime Commission v Lee [2010] NSWSC 1159

HEARING DATE(S): 23 September 2010

JUDGMENT DATE :
15 October 2010

JURISDICTION: COMMON LAW

JUDGMENT OF: Davies J

DECISION: The Applicant's Notice of Motion is dismissed.

CATCHWORDS: CRIMINAL LAW - procedure - confiscation of proceeds of crime - restraining or freezing order - - subsequent order that solicitor for the Defendant produce documents - whether order should have been made ex parte - whether illegitimate forensic advantage obtained by the Commission - redacted documents a sufficient answer to the order.

LEGISLATION CITED: Criminal Assets Recovery Act 1990
New South Wales Crime Commission Act 1985

CATEGORY: Procedural and other rulings

CASES CITED: Hamilton v Oades (1969) 166 CLR 486
Hong Kong Bank of Australia v Murphy (1992) 28 NSWLR 512
International Finance Trust Company Limited v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319
North Australian Territory Co. v Goldsbrough, Mort & Co. [1893] 2 Ch 381
NSW Crime Commission v Bonaccorso [2010] NSWSC 876
Pickles v Gratzon (2002) 55 NSWLR 533
Re Auto Import Co. (Australia) Ltd (1924) 25 SR (NSW) 52
Re Hugh J Roberts Pty Ltd (In Liq) and the Companies Act (1969) 91 WN (NSW) 537
State Drug Crime Commission v Larsson (1991) 53 A Crim R 131

PARTIES: Dennis Miralis (Applicant)
NSW Crime Commission (Respondent/Plaintiff)
Jason Lee (First Defendant)

FILE NUMBER(S): SC 2010/118966

COUNSEL: C R Newlinds SC & G Jones (Applicant)
I Temby QC (Respondent/Plaintiff)

SOLICITORS: Nyman Gibson Stewart (Applicant)
NSW Crime Commission (Respondent/Plaintiff)

- 1 -

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

DAVIES J

15 OCTOBER 2010

2010/118966 NSW CRIME COMMISSION V LEE

JUDGMENT

1 On 13 May 2010 the New South Wales Crime Commission obtained restraining orders under s 10A Criminal Assets Recovery Act 1990 against the property of Jason Lee and the property of Elizabeth Park.

2 On 4 June 2010 Jason Lee filed an application pursuant to s 10C of the Act that the restraining order made on 13 May 2010 be set aside. The solicitor acting for Mr Lee on that application was Dennis Miralis of Nyman Gibson Stewart Criminal Defence Lawyers.

3 On 1 July 2010 the Crime Commission made application to Hoeben J ex parte for orders pursuant to s 33(2) of the Act requiring Mr Miralis to produce documents described as property-tracking documents.

4 Mr Miralis now moves to set aside those orders, alternatively, to vary those orders such as to limit them to a defined schedule of specific documents concerning the whereabouts and extent of assets of Jason Lee and Elizabeth Park.

Legislation

5 The power to make production orders of the nature that Hoeben J made, is to be found in Pt 4 of the Act entitled Information Gathering Powers. Section 33 relevantly provides:

33 Making of production order

(1) If an authorised officer has reasonable grounds for suspecting that a person has possession or control of a property-tracking document, or property-tracking documents, the authorised officer…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading NSW Crime Commission v Lee

Details

AGLC: NSW Crime Commission v Lee [2010] NSWSC 1159
Case: [2010] NSWSC 1159
Decision Date: 15 October 2010

CaseChat Overview and Summary

The NSW Crime Commission sought to enforce a freezing order against a defendant in order to confiscate the proceeds of crime. The defendant, Lee, was served with a notice of an application for a restraining or freezing order. However, the Commission did not provide the defendant with the documents relied upon in the application, instead requesting the defendant's solicitor to produce the documents. Lee argued that the order should not have been made without notice, and that the Commission had obtained an illegitimate forensic advantage by not providing the documents. The court was required to determine whether the order should have been made without notice, and whether the Commission's actions amounted to an illegitimate forensic advantage.

The court found that the order should not have been made without notice, as the defendant was entitled to be heard before such an order was made. However, the court found that the Commission's actions did not amount to an illegitimate forensic advantage, as the redacted documents provided to the defendant were sufficient to enable the defendant to respond to the application. The court found that the defendant had not been deprived of a fair opportunity to respond to the application, and that the Commission's actions did not amount to an abuse of process.

The court ordered that the restraining or freezing order be set aside, and that the Commission pay the defendant's costs of the application. The court also ordered that the Commission provide the defendant with the redacted documents relied upon in the application, in order to enable the defendant to respond to the application. The court emphasised the importance of ensuring that orders are made fairly and without abuse of process, and that parties are given a fair opportunity to respond to applications for such orders.

Orders