NSW Crime Commission v Younan

Judgment 1This was an application for orders under the Criminal Assets Recovery Act 1990. Section 10A enables an application to be made ex parte for a restraining order which remains in force whilst (as here) there is an application pending for an assets forfeiture order (see s 10D). 2I made orders at the time of the making of the application, and I indicated that I would provide reasons for doing so at a later time. These are my reasons. 3The application is supported by an affidavit of Jonathan Lee Spark sworn 24 January 2011. In that affidavit Mr Spark, who is an authorised officer as defined in s 4(1) of the Act, deposes to his suspicion that the Defendant has engaged in a serious crime related activity or serious crime related activities, being the offence of demanding property with menaces with intent to steal contrary to s 99 of the Crimes Act 1900. This is a "serious criminal offence", as defined in s 6(2)(b) of the Act. 4The grounds on which Mr Spark holds his suspicion are set out in paragraph 4 of his affidavit. In short, he has read a Facts Sheet obtained from the NSW Police which he has annexed to his affidavit. He enquired of the officer who prepared the Facts Sheet if he had prepared it, whether the officer believed it was true, and if the information was obtained by the Police as a result of the investigation described in the Facts Sheet. The officer concerned confirmed the matters asked of him. 5In addition, Mr Spark had enquiries made by an officer of the Commission which disclosed that the Defendant had been charged with the offence described in the Facts Sheet. 6Section 10(5) requires an order to be made if the Court is satisfied that there are reasonable grounds for Mr Spark's suspicion. 7I have read the material in the Facts Sheet. The matters in the Facts Sheet, if true, are sufficient to show that the offence of demand money with menaces with intent to steal has been committed. Those matters plainly afford reasonable grounds for the suspicion deposed to by Mr Spark. Further, having regard to the source of information Mr Spark had and the terms of the email with the officer who prepared the Facts Sheet, I am satisfied that it was reasonable for him to form his suspicion on the assumption that the contents of the Facts Sheet were true. 8For those reasons I consider there are reasonable grounds for Mr Spark's suspicion. 9I am further satisfied, as s 10A(3) requires, from the material annexed to Mr Spark's affidavit, that the Defendant is domiciled in New South Wales and that the property in respect of which the restraining order is sought is situated in New South Wales. 10Section 10A(4) enables notice to be given to the Defendant before the order is made if the Court thinks fit. In the light of Mr Spark's evidence concerning the manner and speed with which property can be disposed of or transferred I do not consider that the Defendant should be given notice of this application before an order is made. 11There has been a difference of opinion within the Court about the need to provide reasons for the making of ex parte orders under this Act following the enactment of the Criminal Assets Recovery Amendment Act 2009. 12In NSW Crime Commission v Shane John Meads [2010] NSWSC 1145 Garling J concluded that in the light of the amendments to the legislation in 2009 reasons were no longer required to be delivered when an ex parte application was made for a restraining order under s 10A (see at [33]). His Honour's principal reason for that conclusion appears to have been that the revised procedure contained in the Amendment Act , and particularly the enactment of s 10C, sufficiently aligned that procedure to what was followed on any other ex parte application to the Court. His Honour noted at [28] that the Court's ordinary practice has not been to give reasons when granting such ex parte relief either by way of restraining order, or otherwise. His Honour also called in aid Cl 17(3)(c) of Schedule 1 to the Act. 13Section 10C provides: 10C Review of restraining orders (1) The Supreme Court may, on the application of a person whose interest in property is affected by a restraining order, set aside the order on any of the following grounds: (a) that, having regard to the affidavit supporting the restraining order application and any other evidence adduced, the Commission has failed to satisfy the Court that there are reasonable grounds for the relevant suspicion referred to in section 10A (5), (b) that the applicant has established that the order was obtained illegally or against good faith. (2) An application under this section by a person is to be made not later than 28 days after the person is notified of the order or may be made at any time with the leave of the Supreme Court. (3) If an application is made under this section, the restraining order concerned remains in force unless and until an order is made by the Supreme Court to set aside the order. (4) A person who applies for an order is entitled to adduce evidence at the application. 14In New South Wales Crimes Commission v Warren Richards [2010] NSWSC 1399 McCallum J declined to follow Meads . The view her Honour took was that what had been said by the Court of Appeal in International Finance Trust Company Limited v New South Wales Crime Commission [2008] NSWCA 291 concerning the need for reasons was not affected by the decision of the High Court which declared the unamended form of the legislation invalid: International Finance Trust Company Limited v New South Wales Crime Commission [2009] HCA 49. In addition, her Honour took the view that the amendments to the Act did not sufficiently align an ex parte application under the Act with the usual class of urgent ex parte applications for restraining orders in civil proceedings: Richards at [12]. 15With great respect to Garling J, I prefer the reasoning of McCallum J. I do so, particularly, when comparing the usual class of ex parte orders with the regime under the Amendment Act . The regime provided in the Amendment Act does not automatically return the proceedings to the Court after the ex parte restraining orders have been made. The matter will only return if an application is made by the Defendant under s 10C. 16The procedure under s 10C differs from the procedure on the return of an ex parte order in a number of respects. Some of these are pointed out by McCallum J in Richards at [12]. They may be summarised as follows: (i) On the return of an ordinary ex parte application it will be for the Plaintiff to establish again, ordinarily with the Defendant present, the right to such an order. This is because the usual practice in equity is to grant an injunction for a very short period within which notice of it is given to the Defendant: IFTC [2009] HCA 49 at [149]. By comparison, the Defendant must apply under s 10C to set aside the ex parte order made; (ii) Although it is not completely clear, the wording of s 10C suggests that there is an onus upon the Defendant to establish one of the grounds. By comparison, in the usual case, the onus is on the Plaintiff again to establish its right to the order for a further period; (iii) Because the application under s 10C is limited to two grounds it would not appear that any other bases for challenging the order would be available. In the usual case a failure by the Plaintiff to demonstrate complete frankness when an ex parte was obtained would disentitle the Plaintiff to a further order on the return date. Whether that is embraced by the term "against good faith" may be arguable. 17Further, a defendant making an application under s 10C will be at a considerable disadvantage in attempting to set aside an ex parte order if the defendant does not know, from reasons delivered at the time the ex parte order was made, the basis for the making of the order. That is particularly so when the section appears to place an onus on the defendant to establish one of the grounds stipulated. 18Since the decision in Meads was given the High Court has delivered judgment in Wainohu v New South Wales [2011] HCA 24. The judgments there identified the general duty of judges to give reasons for judicial decisions and linked that duty with the nature of judicial power: see at [53] - [58], [68], [70], [104], [109]. The statements there made are strong indications that the other changes made by the Amendment Act are not to be regarded as sufficient to obviate the general duty to provide reasons for applications of this sort. 19In my opinion what was said in Wainohu is sufficient to dispose of any support which might otherwise have been derived from Cl 17(3)(c) of Schedule 1 to the Act. If that provision was thought to provide a legislative imprimatur for not providing reasons, the provision is likely to be invalid because it authorises the purported exercise of judicial function with an essential incident missing: Wainohu at [68]. 20For the reasons given earlier in this judgment I was satisfied that Mr Spark had reasonable grounds for his suspicion. In those circumstances s10A(5) of the Act obliged me to make a restraining order. I considered also that it was appropriate to make the ancillary orders sought which were contained in paras 2-7 of a draft Order.