Supreme Court New South Wales Medium Neutral Citation: New South Wales Crime Commission v Peters [2021] NSWSC 1454 Hearing dates: 16 July 2021 Date of orders: 16 July 2021 Decision date: 16 July 2021 Jurisdiction: Common Law Before: Hamill J (as Duty Judge) Decision: Orders 1, 6, 7, 8, 9 made in accordance with short minutes of order filed by the plaintiff. Catchwords: CIVIL LAW – criminal assets recovery - restraining orders – ex parte – restraining orders made – ancillary orders – compulsory examination – whether such orders should be made ex parte – realism of plaintiff's solicitor – discretionary considerations – where orders for examination can be made at a later stage – where pending criminal proceedings - ancillary orders refused Legislation Cited: Criminal Assets Recovery Act 1990 (NSW), ss 4, 10A, 12 Category: Principal judgment Parties: New South Wales Crime Commission (Plaintiff) Mitchell Ryan Peters (Defendant) Representation: New South Wales Crime Commission (Plaintiff) File Number(s): 2021/00203952 Publication restriction: Nil EX Tempore Judgment (REVISED) 1. The New South Wales Crime Commission ("Crime Commission") brings an application by summons for certain interim and then final orders against the defendant, Mitchell Ryan Peters. 2. The summons is supported by an affidavit of Katie Elaine Bourne who is an employee of the Crime Commission. Ms Bourne works in the capacity as the assessments director and is authorised pursuant to s 4(1) of the Criminal Assets Recovery Act 1990 (NSW) ("the Act"). 3. Ms Bourne's affidavit asserts, amongst other things, that she suspects that the defendant has engaged in serious crime related activity or serious crime related activities and sets out the basis of that suspicion in the third subparagraph of paragraph 3 of her affidavit. That paragraph refers in turn to a number of annexures to her affidavit which include some correspondence with the New South Wales Police Force, a court attendance notice and a series of facts sheets relating to, what I take to be, pending charges against Mr Peters. 4. The material in those court attendance notices, fact sheets and associated documents is such as to found the suspicion referred to by Ms Bourne in her affidavit. That being the case, pursuant to s 10A(5) of the Act, this Court "must" make the restraining orders sought. I am satisfied that the pre‑existing conditions set out in that subsection are satisfied by the content of Ms Bourne's affidavit, and accordingly, I propose to make the restraining orders sought. 5. The short minutes of order filed by the Crime Commission and the summons itself also seeks a number of further orders, which include orders under s 12 of the Act requiring the defendant to be examined on oath before a registrar, and to produce to the Court a statement verified on oath setting out particulars of his financial dealings. Because there are pending criminal charges against him, I take the view that Mr Peters is entitled to be heard before the Court makes those orders. It is open to the Crime Commission to seek those orders after the restraining order is served and takes effect. There are good reasons why the Crime Commission should obtain the restraining order on an ex parte basis (namely to avoid the defendant from taking any action to defeat the purpose of the orders). However, those reasons do not apply to the orders for compulsory examination and similar, particularly in the light of certain decisions of both the High Court and Court of Criminal Appeal over the last five or ten years. 6. Nothing in what I have said would stand in the way of the Crime Commission obtaining an order for compulsory examination at some stage down the track. Ms Santhikumar who is, if nothing else, a realist, has accepted the position that I hold, which may or may not be a majority view of the judges of this Division who are constantly called upon to determine such applications. It is a discretionary matter and I do not propose to make an order forcing someone to relinquish their right to silence in their absence. 7. Accordingly, and with my usual gratitude for Ms Santhikumar for her efficiency and realism, I make orders 1, 6, 7, 8, and 9 in accordance with the short minutes of order. I decline to make orders 2, 3, 4, and 5 which are the orders under s 12 of the Act. I will sign and seal and date those orders, and note that those orders are to be taken out with immediate effect. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 10 November 2021