NSW Crime Commission v Yaghi

EX TEMPORE Judgment

1. [1]

   This is an application for a restraining order under s 10A of the Criminal Assets Recovery Act 1990. Under s 10A(5), the Court is obliged to make a restraining order if the application for the order is supported by an affidavit of an authorised officer stating that certain suspicions are held and the grounds upon which they are held, and if the Court considers that there are reasonable grounds for any such suspicion held.

2. [2]

   In this case the relevant matter that must be noted in the affidavit is a suspicion of the authorised officer that the person whose interest is the subject of an application has engaged in a serious crime related activity or serious crime related activities. The affidavit in question, being that sworn by Jonathan Lee Spark dated 13 September 2013, records the convictions of the first defendant, now deceased, for a number of serious drug offences so that this condition is satisfied. This suffices to establish the grounds for the making of the order.

3. [3]

   I note three further matters. First, s 10A(4) contemplates that the Court may, if it thinks fit, require the Commission to give notice of the application to a person to whom the Court has reason to believe has sufficient interest in the application. I considered whether notice was required to be given to the executor of the first defendant's estate but have declined to do so. It is notorious that in such cases advance notice could lead to a diminution of the value of the property in question. The estate will be protected by the proffering of an undertaking as to damages.

4. [4]

   The second matter is to note that an undertaking to damages has been proffered, and I have taken that into account.

5. [5]

   Third, Mr Spark's affidavit reveals that there were previous proceedings under the Act between the Crime Commission and the first defendant which resolved on certain terms. I have not considered whether any estoppel or res judicata arises out of those proceedings. It seems to me that the statutory scheme indicates that if any argument about that is to be raised, it should not be at this point.

6. [6]

   Otherwise, I note that the proceedings are to be returnable on 25 November, but that there is scope for liberty to apply on three days' notice in the meantime.

7. [7]

   Accordingly, I note the plaintiff by solicitor gives the usual undertaking as to damages and, based on that undertaking, I make order 1 of the Short Minutes that I will sign. I also make orders 2, 3 and 4.