New South Wales Crime Commission v Lee

This is an application brought by summons for orders under the Criminal Assets Recovery Act 1990 (NSW) (the Act). At this stage a restraining order as defined in s 10 is sought and the plaintiff seeks to proceed ex parte pursuant to s 10A(1). Other ancillary orders including orders under s 12 of the Act for the compulsory examination of defendant and another person and the compulsory sworn disclosure of financial affairs of the defendant were also sought.

On the hearing of the application, I indicated that I understood the reasons the restraining order should be dealt with ex parte, namely, the need to ensure the assets subject to the order were not dealt with or disposed of so as to defeat the purpose of the order sought. On the other hand, I said I was disinclined to make the ancillary orders ex parte, whereupon the NSW Crime Commission withdrew its application for those orders at this stage. Orders under s 12 can be made later and the defendant or other person affected can be heard by the Court if they wish. In my view, they are entitled to make submissions given the impact of the orders and the common law right to silence.

Contrary to what I have been told about the practice of some Judges of the Common Law Division, I take the view that there is a duty to give reasons, albeit not intricate reasons, before making a restraining order: International FinanceTrust Company Limited & Anor v New South Wales Crime Commission [2008] NSWCA 291; Elfar v New South Wales Crime Commission [2009] NSWCA 348 at [16] – [18]; New South Wales Crime Commission v Pham [2014] NSWSC 998 at [10].

In International FinanceTrust Company Limited & Anor v New South Wales Crime Commission, Allsop P said at [41]:

At [46] - [47], his Honour continued:

On a quick review of Caselaw, it is clear that some Judges of the Common Law Division remain of the view that applications for such restraining orders remain subject to the requirements referred to by Allsop P: See, for example, New South Wales Crime Commission v Carnese [2020] NSWSC 1530 (Walton J); New South Wales Crime Commission v Ke [2018] NSWSC 2054 (Rothman J); New South Wales Crime Commission v Ryan; Loriz [2019] NSWSC 1039 (Ierace J); NSW Crime Commission v Simpson [2019] NSWSC 747 (Lonergan J); New South Wales Crime Commission v Xue [2018] NSWSC 1508 (Beech-Jones J).

I agree with the approach in those cases.

I am satisfied that the restraining order should be made.

An affidavit of Katie Elaine Bourne and a statement of facts and circumstances established the statutory prerequisites required by s 10A(5) of the Act. Ms Bourne is an authorised officer under the Act and asserts that she is of the belief or suspicion that the defendant has engaged in serious crime related activity. She identifies the grounds for that suspicion. The suspicion is based on material contained in a police facts sheet relating to a pending charge of dealing with the proceeds of crime, namely $180,000 in cash, which was produced at the Star Casino and was not in a form consistent with winnings from that establishment.

For those reasons I make orders in accordance with 1, 5, 7, 8, 9 and 10 of the draft orders provided by the solicitor appearing for the plaintiff. I also make an order that there be no publication of these orders until the Crime Commission has served the restraining orders on the defendant and any other relevant or interested party.