Application of the New South Wales Crime Commission; In the matter of Yiannatzi [2022] NSWSC 1469

Supreme Court New South Wales

Medium Neutral Citation: Application of the New South Wales Crime Commission; In the matter of Yiannatzi [2022] NSWSC 1469 Hearing dates: 13 October 2022 Date of orders: 13 October 2022 Decision date: 13 October 2022 Jurisdiction: Common Law Before: Hamill J Decision: (1) Restraining orders and ancillary orders made pursuant to the Criminal Assets Recovery Act 1990 (NSW) (2) Costs in the cause Catchwords: PROCEEDS OF CRIME – restraining order – ex parte – reasonable grounds for suspecting property to be proceeds of crime – serious crime-related activity – refusal of order for examination of defendant Legislation Cited: Criminal Assets Recovery Act 1990 (NSW), s 10A Category: Principal judgment Parties: New South Wales Crime Commission (Plaintiff) Andrew Yiannatzi (Defendant) Representation: Counsel: S Askew (Plaintiff) File Number(s): 2022/304518

Ex tempore JUDGMENT (REVISED) 1. The New South Wales Crime Commission ("Crime Commission") by summons makes an application, pursuant to the provisions of the Criminal Assets Recovery Act 1990 (NSW) ("the Act"), restraining disposal of certain property nominated within the summons and proposed orders. The application is brought ex parte pursuant to the provision in s 10A(1) of the Act. I am satisfied it is appropriate to deal with the matter in that way and in closed court, in view of the potential that a failure to do so would give rise to the risk that the property may be disposed of before the orders take effect and are served. That is the normal way these matters are dealt with, at least initially. 2. The Crime Commission also seeks ancillary orders, including an order to allow for the examination of the defendant. That matter can also be dealt with on an ex parte basis. However, I have indicated to Mr Askew, who appears for the Crime Commission, that unless there are good reasons to do so, I do not propose to deal with that matter ex parte. This is because the defendant is subject to current and extant criminal proceedings and in my view has a right to be heard against being compulsorily required to answer questions, notwithstanding the protections that can be put in place. Mr Askew has instructions, if I took that view, not to press, or at least not to press too hard, for those ancillary orders. 3. The application is supported by an affidavit of Jonathan Lee Spark, which sets out in summary form the basis upon which he says he holds a reasonable suspicion that the property subject to the order is serious crime‑related property, and that the defendant has engaged in serious crime‑related activity or activities. Specifically, the suspicion is that he has been engaged in relatively serious drug distribution activities. A fact sheet was obtained from the New South Wales Police and the defendant has in fact been charged with a series of supply offences. 4. Based on those materials, I am satisfied of the matters in s 10A(5), namely that the defendant has engaged in serious crime‑related activity and because of that activity, he has acquired and has an interest in serious crime‑derived property. I only need to be satisfied of one of those things, but I am satisfied of all three. More importantly, Mr Spark, who is an authorised officer for the purposes of the Act is satisfied of this on reasonable grounds. 5. Accordingly, I make orders 1, 4, 6, 7, 8 and 9 in accordance with the draft orders provided to the Court.