PIC v DHADLIE [2005] NSWSC 1245

New South Wales Supreme Court

CITATION : PIC v DHADLIE [2005] NSWSC 1245

HEARING DATE(S) : 4 November 2005

JUDGMENT DATE : 4 December 2005

JURISDICTION : Common Law Division

JUDGMENT OF : Rothman J at 1

DECISION : Restraining order granted

CATCHWORDS : Ex parte application - Restraining order - s.10 Criminal Assets Recovery Act - Applicability of Queensland v Kahn Nhat Bui [2005] QSC 292

Criminal Assets Recovery Act 1990 LEGISLATION CITED : Criminal Proceeds Confiscation Act 2002 (Qld)

CASES CITED : Queensland v Kahn Nhat Bui [2005] QSC 292

Plaintiff - Police Integrity Commission PARTIES : Defendant - Baljeet Singh Dhadlie

FILE NUMBER(S) : SC 15165/2005

LOWER COURT JURISDICTION :

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ROTHMAN J

7 DECEMBER 2005

POLICE INTEGRITY COMMISSION v BALJEET SINGH DHADLIE 15165/2005

JUDGMENT 1 ROTHMAN J: The Police Integrity Commission (PIC) applied, ex parte, for orders, under s.10 of the Criminal Assets Recovery Act 1990, restraining the defendant from disposing or otherwise dealing with certain described property (or attempting so to do), which orders I granted. Because of the arguable effect of a judgment to which I was referred I reserved my reasons therefor. 2 The PIC relied, amongst other things, upon substantive proceedings commenced, or to be commenced, by a summons seeking orders under s.27 of the Act for the payment by the Defendant of proceeds of serious crime related activity. 3 The issue in this judgment is the test to be applied under s.10 of the Act and, in particular, the applicability in New South Wales of the comments by McKenzie J of the Queensland Supreme Court in Queensland v Kahn Nhat Bui [2005] QSC 292. 4 Section 10 of the Act operates for a period of 2 days and thereafter only for so long as there is an application that has not been finalised, or satisfied if orders have been made, under s.27 of the Act. Section 10 requires the applicant for orders to give undertakings for damages to the extent thought appropriate by the Court, a course normally offered before being required and, if not, then required by the Court. 5 The Act also provides (s.12) that the Court may vary the interests in property over which the restraining order operates and may do so on the application of the owner of the property. Under the provisions of the Act (s.22) an assets forfeiture order may also be made. In the latter case, the Act makes specific provision for the variation of the order, the exclusion of property from the order and the exclusion of innocent interests from the property. 6 On the proper construction of s.10 of the Act, orders made thereunder are interlocutory in nature and not final. The Court has relevant power under the section only if: (a) There is a person suspected of involvement in serious crime related activities; (b) There is an application, supported by affidavit, based upon an authorised officer suspecting that the person has engaged in serious crime related activity; (c) The application and/or affidavit states the ground of the suspicion; and (d) The Court is satisfied that, having regard to the matters contained in the affidavit, there are reasonable grounds for the suspicion. 7 If the above tests are satisfied, a restraining order is required to be made by the Court. Any "discretion" reposed in the Court is confined to the exercise of judgment required to determine whether the grounds for the suspicion are reasonable. The use of the word "must" in s.10(3) of the Act, in the context of the section and Act as a whole, has that effect. 8 Probably because of its interlocutory nature, there is no requirement in s.10 for the property of a person, reasonably suspected of having engaged in serious crime related activity, to be derived from the particular criminal activity. It is different if the restraining order is sought for property not being property of the person who has, or is suspected of having, been engaged in the criminal activity in which case the property must be "crime derived property", being all or part of the proceeds of the criminal activity. 9 In the application before me, I was well satisfied of the criteria set out in s.10 of the Act and I granted the restraining orders. During the ex parte application Mr Wong, for the PIC, quite properly, drew my attention to a judgment of McKenzie J in State of Queensland v Kahn Nhat Bui [2005] QSC 292 under s.28 of the Criminal Proceeds Confiscation Act 2002 (Qld). 10 There are a number of distinguishing features of that judgment: (a) His Honour determined that factually the serious crime related activity was unlikely to have "involved commerciality". The charge was for possession of drugs. (b) No details of the facts of the serious crimes alleged were provided to His Honour. (c) One particular offence (the only one seemingly involving "commerciality", being for supply of drugs, it seems) was the subject of a nolle prosequi. (d) The alleged criminal activity was suspected to have occurred some years prior to the restraining orders being sought. (e) There was less than full disclosure by the Applicant. (f) The Queensland Act is in different terms than the New South Wales Act under which these orders are sought. 11 It is unnecessary and inadvisable for me to construe the Queensland Act and the powers being exercised by McKenzie J. It is sufficient for my purposes to observe that the Queensland Supreme Court has the express power to refuse to make a restraining order if: (a) All of the information required about the application by the Court has not been provided (see paragraph 10 of this judgment and s.28(4) of the Queensland Act); or (b) If the Queensland Supreme Court is satisfied it is not in the public interest to make the application (s.31(2)(a) of the Queensland Act). 12 For the reasons stated, I granted the restraining order and do not feel constrained to do otherwise by the judgment of McKenzie J on the particular facts of the matter before him, the correctness of which I do not doubt, in the context of the Queensland legislation.