New South Wales Crime Commission v Cresnar [2015] NSWSC 1304

Supreme Court New South Wales

Medium Neutral Citation: New South Wales Crime Commission v Cresnar [2015] NSWSC 1304 Hearing dates: 22 July 2015 Date of orders: 22 July 2015 Decision date: 22 July 2015 Jurisdiction: Common Law Before: McCallum J Decision: Restraining orders made and ancillary relief granted. Catchwords: CRIMINAL LAW – procedure – Criminal Assets Recovery Act 1990 Legislation Cited: Criminal Assets Recovery Act 1990 (NSW), s 10A Crimes Act 1900 (NSW), s 249B Category: Procedural and other rulings Parties: New South Wales Crime Commission (Applicant) Phillip Cresnar (Respondent) Representation: Solicitors: New South Wales Crime Commission (Applicant) Ex parte File Number(s): 2015/217246

Judgment – Ex Tempore 1. HER HONOUR: This is an application brought by the NSW Crime Commission for a restraining order pursuant to s 10A of the Criminal Assets Recovery Act 1990 (NSW) and related relief. 2. The Act provides that the Commission may apply for such an order ex parte. Section 10A(4) provides that if the Court thinks fit it may nonetheless require the Commission to give notice of the application to certain persons. Having considered the material in support of the application, I do not consider it either necessary or appropriate to require the Commission to do so. 3. Determination of the application is governed by s 10A(5). That section provides that if certain conditions are satisfied the Supreme Court must make a restraining order. The requirements of the section are, first, that there be in support of the application an affidavit sworn by an authorised officer deposing to certain things. 4. The present application is supported by an affidavit sworn by Jonathon Lee Spark on 20 July 2015. Mr Spark is an authorised officer for the purpose of the Act and has, in the affidavit, deposed to his suspicion that the defendant has engaged in a serious crime related activity within the meaning of the Act; namely, receiving corrupt commissions or rewards contrary to ss 249B(1)(a) and (1)(b) of the Crimes Act 1900 (NSW). 5. The affidavit annexes a statement of facts prepared by the Independent Commission Against Corruption setting out the circumstances of an investigation into a series of alleged corrupt benefits received by the defendant in the context of his being employed as the person responsible for awarding contracts in the cable laying division of Ausgrid. The statement of facts recites a series of exchanges with different companies to which the defendant is alleged to have awarded very substantial contracts in exchange for very substantial personal benefits received. The benefits allegedly received range from home entertainment equipment, payments towards renovations at the defendant's home, travel and other benefits. 6. Mr Spark's affidavit deposes to the further fact that he inquired of the author of that statement as to its reliability and provenance. He received in response a letter from the Independent Commission Against Corruption setting out detail as to the basis on which it was contended that the contents of the fact sheet were true to the best of the knowledge and belief of its author. On that basis Mr Spark deposed to the basis for the suspicion held by him. 7. As to the final requirement of the section, on the basis that material, which I have read, I consider that there are reasonable grounds for Mr Spark's suspicions. 8. It follows, in accordance with s 10A(5) of the Act, that the requirements of the section are satisfied and accordingly that I must make the restraining order sought. 9. The Commission also seeks ancillary relief, which I am satisfied is appropriate in the circumstances. 10. For those reasons, I make orders 1 to 8 in the form of order provided by the Commission.