New South Wales Crime Commission v Marreiros

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EX TEMPORE JUDGMENT

1. By summons filed in Court with leave this morning, the plaintiff ‑ which is the New South Wales Crime Commission ‑ seeks a number of orders under the Criminal Assets Recovery Act 1990 (NSW). It seeks some of those orders urgently today, and, in particular, seeks a restraining order pursuant to s 10A over certain property nominated in the schedule, asserting that it was derived from criminal activity. I am using that term loosely, and not adopting the somewhat more precise language of the legislation.

2. The first matter that had to be dealt with was whether the Court should be closed, and whether the application should be dealt with ex parte. Because of the nature of the application, it is customary for pretty obvious reasons that the Court is to be closed. That obvious reason is that the objective of the orders sought is to restrain certain property said to be the proceeds of crime, again using the term loosely. Closing the Court and hearing the matter ex parte, thwarts any attempt by a defendant themselves or another person on their behalf from taking steps through which the property might be disposed of or shifted or moved. Accordingly, I acceded to the application to close the Court, and I have dealt with the matter ex parte.

3. The application, as I said, is brought by summons. It is supported by an affidavit of Mr Oliver, who is an “authorised officer” for the purposes of the legislation. The application complies with relevant statutory formalities and prerequisites, most if not all of which can be found in ss 10A and 10B of the Criminal Assets Recovery Act.

4. As to the substantive matters required to be established under s 10A(5), the affidavit includes by way of annexure a series of court attendance notices, along with alleged facts prepared by the New South Wales Police.

5. This establishes at least that the defendant has been charged with a series of offences, including supplying drugs, and offences in the nature of proceeds of crime offences. There are also offences of failing to comply with digital evidence access orders. When I say supply offences, I think there are five such offences, including very serious offences involving large commercial quantities. I have also considered in addition to Mr Oliver’s affidavit and the annexed documents a statement of facts and circumstances relied upon in the application, which is filed with the application or summons in accordance with the relevant rules of Court.

6. Based on that material, along with the title searches which are also annexed, and the officer’s statements as to his belief or beliefs, I am satisfied the requirements for making the orders today, both formal and substantive, are established. Accordingly I propose, as I indicated at the outset, having read the material in advance of the hearing, to make the restraining orders sought in the summons, as well as the associated order for the New South Wales Trustee and Guardian to take control of the property so restrained. And that means that I will be making orders 1 and 2 in the draft orders provided by the plaintiff, as well as a number of orders of no moment in the orders 6, 7, 8, and 9.

7. The question remains whether I should make orders 3, 4, and 5, which are orders described I think in the legislation as ancillary, and are under s 12(1)(b)(i) and 12(1)(c)(i) of the Criminal Assets Recovery Act. Those orders are sought and would require the defendant to be examined on oath before a Registrar of the Court concerning his affairs, including the nature and location of any property in which he has an interest. It would further compel him to furnish to the Crime Commission within 21 days a statement verified on oath setting out the particulars set out in Schedule 3 which I need not go into now, but which are a series of interrogatories concerning his property interests.

8. The Crime Commission generally seeks these orders on the first occasion that the matters are before the Court. Some judges of this Division, as I understand it, customarily make the orders. I customarily do not. I have explained my position on that subject before. These are at their heart an interference with an accused person’s right to silence. As I said in the course of Ms Samuel’s spirited and persuasive submissions, I have been persuaded in previous cases in very peculiar or particular circumstances requiring an urgent understanding of a defendant’s property interests to make such orders. But despite Ms Samuel’s submissions, for which I am grateful, I am not persuaded today that these orders need to be made with such urgency, let alone made in the absence of giving the defendant an opportunity to be heard on the subject.

9. It is true that should I make such orders, it would be open to the defendant to come back to the Court and persuade me or another Judge to revoke the orders. It is equally true that it would be more convenient for the plaintiff to get the orders today, so they do not have to renew their application. But the reality is that the defendant has been charged with serious criminal offences which will result, upon conviction, almost inevitably with gaol terms of some significance. The High Court has in various cases ‑ most memorably perhaps Lee v The Queen*; Lee v The Queen* (2014) 253 CLR 455; [2014] HCA 20, X7 v Australian Crime Commission (2013) 248 CLR 92; [2013] HCA 29; cf ‑ discussed the potential interference with what it described as the “accusatorial” nature of criminal proceedings, where a person is compelled to provide such information by way of a sworn statement, or be asked questions about their affairs, as sought. It may well be that ultimately it is appropriate for such orders to be made, but I am not prepared to make them today in the absence of anything more particular than what is essentially the convenience of the plaintiff, in circumstances in which the defendant has not been afforded the opportunity to be heard.

10. I decline to make the orders sought in proposed orders 3, 4, and 5. But I do make the orders, as I have said, in accordance with 1, 2, 6, 7, 8, and 9 of the draft orders proposed by the plaintiff.

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