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File Number(s): 2026/00274431

Publication restriction: Nil

JUDGMENT – EX TEMPORE (REVISED)

1. This is an application for restraining orders under s 10A of the Criminal Assets Recovery Act 1990 (NSW).

Two preliminary observations

Notice to the defendant in respect of orders under s 10A

2. Section 10A(4) provides that notice may be given to the defendant before the order is made if the Court thinks fit. I am satisfied that it is appropriate not to give the defendant notice of the order under s 10A before I make it. The risk of property being disposed of or transferred, if the defendant has notice before an order is made, warrants making an order ex parte without notice.

Ancillary orders

3. The plaintiff originally sought ancillary orders under s 12 of the C**riminal A**ssets R**ecovery Act, ex parte, for the examination of the defendant and one other person, and for the defendant to provide information on verified statement. Following the first hearing of this matter on 3 July 2026, after I raised concerns about making such orders ex parte, the plaintiff withdrew its application for those orders. I repeat what I said in NSW Crime Commission v Byrne [2026] NSWSC 820 (‘Byrne’) and NSW Crime Commission v Dibley [2026] NSWSC 821 about the plaintiff’s obligations in an ex parte application.

Substance

4. The defendant has pleaded guilty to three drug-related offences, being:

i. Attempt to import a commercial quantity of a border-controlled drug (namely 50 kilograms of cocaine) contrary to sections 307.1(1) of the Criminal Code (Cth) ("the Criminal Code"); and

ii. Attempt to import a commercial quantity of a border controlled drug (namely 111 kilograms of cocaine) contrary to sections 307.1(1) of the Criminal Code; and

iii. Attempt to possess a commercial quantity of unlawfully imported border controlled drugs (namely 30 kilograms of ketamine) contrary to sections 307.5 of the Criminal Code.

5. I have been provided with the statement of agreed facts on sentence in relation to those charges (signed by the defendant’s solicitor and on behalf of the Commonwealth Director of Public Prosecutions), together with an email exchange in which a New South Wales police officer involved in the investigation confirmed that the facts were based on information obtained as a result of the police investigation, and that the contents of the facts are true to the best of the officer’s knowledge and belief.

6. I am satisfied that there are reasonable grounds for the authorised officer’s suspicion that the defendant has engaged in serious crime related activity or activities. Mr Oliver identifies as that activity or activities supplying or knowingly taking part in the supplying of a prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). Before me, the plaintiff relied on subs (c) of the definition of serious criminal offence in s 6(2) of the C**riminal A**ssets R**ecovery Act that is:

6 Meaning of “serious crime related activity”****.

…

(2) In this section—

serious criminal offence means the following offences—

…

(c) a prescribed indictable offence, or an indictable offence of a prescribed kind, that is of a similar nature to a drug trafficking offence, including in either case an offence under a law of the Commonwealth, another State or Territory [.]

7. I am also satisfied that there are reasonable grounds for the authorised officer’s suspicion in respect of the Commonwealth offences. It is not necessary for me to consider further whether there are reasonable grounds for suspicion of serious crime related activity that involves a direct contravention of s 25(1) of the D**rug M**isuse and T**rafficking A**ct.

8. Since I am satisfied that there are reasonable grounds for the authorised officer’s suspicion, I must make, and will make, the restraining order. I am also satisfied, given the nature of the charges and their international character, that it is appropriate (if the Court has power) to restrain the defendant’s assets generally, inside and outside New South Wales: see extended definition of “property” in s 7(2A) of the Criminal Assets Recovery Act.

9. As the suspected activity arises out of offences against laws of the Commonwealth, the plaintiff concedes that the suspected activity is “external serious crime related activity” as defined in s 4 of the C**riminal A**ssets R**ecovery Act. The fact that the activity arises out of Commonwealth offences brings the matter within the ordinary language of that definition:

external serious crime related activity means serious crime related activity arising out of an offence under the law of the Commonwealth or a place outside this State (including outside Australia) which, if the offence had been committed in this State, would be a serious criminal offence.

10. It is not necessary for me to decide whether this concession was strictly necessary (noting that the suspicion to which the authorised officer deposes is also of breach of the D**rug M**isuse and T**rafficking A**ct), in light of the factual findings to which I turn now. Where the suspected activity is an external serious crime related activity, the Court only has power to make an order in respect of property outside New South Wales if the person who has the interests (here, the defendant) is domiciled in New South Wales: see s 10A(3) of the Criminal Assets Recovery Act.

11. When the matter first came before me on 3 July 2026, the Court did not have evidence that the defendant is domiciled in New South Wales. When I raised this at the hearing on 3 July 2026, the plaintiff sought to rely on the agreed statement of facts recording that the defendant (prior to his arrest) resided in New South Wales. Proving domicile requires more than proving residence. I stood the matter over to a hearing today to give the plaintiff an opportunity to adduce evidence to demonstrate that the defendant is domiciled in New South Wales.

12. The evidence now before me includes evidence from the Roads & Maritime Services database giving a registered address in New South Wales, evidence from the Australian Electoral Commission electoral roll recording the defendant being registered as a New South Wales elector with a New South Wales address, and evidence of correspondence received from Services Australia and the Australian Taxation Office indicating addresses in New South Wales.

13. This permits an inference to be drawn that the defendant is domiciled in New South Wales. While the Court has no information about whether the defendant was born in New South Wales, the evidence permits an inference that, if New South Wales was not the defendant’s domicile of origin, then it is the defendant’s domicile of choice, that is, the place where the defendant has evinced an intention to make his home indefinitely: see, eg, Domicile Act 1979 (NSW), s 7; O’Donnell v O’Donnell [2022] NSWSC 1742 at [138]-[142] (Robb J).

14. I would add for completeness that I am not persuaded to place weight, as the plaintiff asked me to, on the fact that the defendant is in custody in New South Wales. I was taken to no authority suggesting that a person’s domicile can become New South Wales – if it was not already New South Wales – by being taken into custody in this State. While a person who lacks mental capacity is not capable of having an independent domicile (see s 7(2) of the Domicile Act) and may acquire a domicile of dependence, there is no suggestion of an equivalent provision where someone is remaining in New South Wales if they are of sound mind but are in custody on remand (or while serving a sentence of imprisonment). Domicile of choice must be freely chosen. Involuntary detention in New South Wales could not constitute New South Wales as a domicile of choice.

15. To demonstrate domicile, it was necessary to adduce evidence from which an inference could be drawn that New South Wales was the defendant’s domicile prior to his arrest. As I have indicated, the defendant has now done this. Section 10A(3) permits a restraining order in relation to property outside New South Wales.

16. Since the defendant is in custody, bail refused, I do not consider it necessary to make provision for the use of assets for his living expenses, notwithstanding my observations in NSW Crime Commission v Hammoud [2026] NSWSC 564 and Byrne.

17. The evidence indicates that the defendant holds at least one bank account in common with another person, being the second person whom the plaintiff will want to examine in due course. I have considered whether it is appropriate to include provision in the restraining orders under s 10B(3)(a) to permit that person to meet her reasonable living expenses. Given that the only asset of hers which will be restrained is a single bank account, I am satisfied that this is not necessary. That is without prejudice to any application she might make, including on an urgent basis, for such provision should she contend that it is necessary or appropriate to make such an order.

18. Accordingly, I made restraining orders in the form sought by the plaintiff.

**********

Amendments

16 July 2026

Coversheet - corrected formatting of catchwords