NSW Crime Commission v Simpson

[2019] NSWSC 747

Supreme Court

New South Wales

Medium Neutral Citation:	NSW Crime Commission v Simpson [2019] NSWSC 747
Hearing dates:	13 June 2019
Date of orders:	13 June 2019
Decision date:	13 June 2019
Jurisdiction:	Common Law
Before:	Lonergan J
Decision:	Orders sought made.
Catchwords:	CRIMINAL LAW - procedure - restraining orders sought - ex-parte - orders made   PROCEDURE – suppression and non-publication – order sought pursuant to s 7 and s 8 of the Court Suppression and Non-Publication Act 2010 (NSW) – order made and to remain in place for 14 days from today's date
Legislation Cited:	Court Suppression and Non-publication Orders Act 2010 (NSW) Criminal Assets Recovery Act 1990 (NSW) Firearms Act 1996 (NSW)
Category:	Procedural and other rulings
Parties:	New South Wales Crime Commission (Plaintiff) Shane James Simpson (Defendant)
Representation:	Solicitors: New South Wales Crime Commission (Plaintiff)
File Number(s):	2019/183707
Publication restriction:	Nil

EX TEMPORE Judgment

1. HER HONOUR: The plaintiff, the New South Wales Crime Commission, seeks a restraining order pursuant to s10A of the Criminal Assets Recovery Act 1990 (NSW) as well as ancillary orders associated with that restraining order as set out in the minute of order. I am prepared to make the orders sought by the New South Wales Crime Commission and these are my reasons for making those orders.

2. Section 10A(1) provides that the Commission may make an application ex parte, that is without notice to and in the absence of, the opposing party for a restraining order. Section 10A(4) confers a discretion on the Court to require the Commission to give notice of the application to a person who the Court has reason to believe has a sufficient interest in the application.

3. The evidence placed before me by the Commission persuades me that it was neither necessary nor appropriate to require the Commission to give notice of the application to the defendant or to any other person. In particular, I have had regard to the nature of the criminal activity for which the defendant has been charged and the risk of dissipation or disposal of the assets, namely property, shares and a motor vehicle, sought to be restrained if notice is given or published.

4. Section 10A(5) of the Act is highly proscriptive as to determination of applications for restraining orders. This section provides that the Court must make a restraining order if the application is supported by an affidavit of an authorised officer containing certain matters. The first is that the authorised officer suspects that the person whose interest is the subject of the application has engaged in serious crime related activity.

5. The present application is supported by an affidavit of Katie Elaine Bourne, an authorised officer within the meaning of the Act, who has stated her suspicion to that effect. The second requirement is that the affidavit must state the grounds on which that suspicion is based.

6. The defendant to the present application has been charged with multiple offences pursuant to the Firearms Act 1996 (NSW), the most serious of which involves the supply of firearms to persons unauthorised to possess them. Multiple counts of that offence are included in the facts sheet, as it appears to have been the case that the defendant was in the business, through a sports business that he conducted to involve himself in multiple transactions regarding the sale of firearms including to persons not authorised to hold them and associated falsifying and altering of records in relation to such transactions. The facts sheet details that these transactions have been taking place for a long time between 2013 and February 2019.

7. It appears to me that this material forms a strong basis upon which Ms Bourne formed the relevant suspicion and that, together with an email from the New South Wales Police dated 15 April 2019, confirms the truth of the contents of the facts sheet. That email also requests a suppression order over the material within the facts sheet.

8. The final requirement is having regard to the matters contained in the affidavit of the authorised officer, the Court considers that there are reasonable grounds for the suspicion held by that officer. The statement of facts appears to me to support a proper basis and reasonable grounds for the suspicion and I am so satisfied.

9. For those reasons I make the orders sought by the Crime Commission set out in the minute of order.

10. In outlining the basis for the suspicion held by Ms Bourne I have referred in broad terms to the activity by the defendant that has led to the application. An email of 15 April 2019 from a police officer from the Drug and Firearm Squad to Ms Bourne suggests that there are on-going investigations associated with the defendant's activity and that as a result a suppression order on the contents of the facts sheet has been raised as something that would be necessary. An oral application has been made for non-publication of that material to be in place for a period to allow for instructions to be obtained as to whether an on-going suppression order of a longer time period is necessary.

11. I am of the view that it is consistent with the public interest to make a short non-publication order until this position has been clarified. Accordingly, pursuant to ss 7 and 8(1)(a) of the Courts Suppression and Non-Publication Act 2010 (NSW) I make a non-publication order over the contents of the police facts sheet on the grounds that the order is necessary to prevent prejudice to the proper administration of justice, that being an on-going police investigation in respect of firearms offences involving the defendant and potentially others.

12. Pursuant to s 12 of the Act the order is to remain in place for 14 days from today's date.

**********

Decision last updated: 19 June 2019