New South Wales Crime Commission v McDonald [2017] NSWSC 517

Supreme Court New South Wales

Medium Neutral Citation: New South Wales Crime Commission v McDonald [2017] NSWSC 517 Hearing dates: 28 April 2017 (ex parte application in chambers ) Date of orders: 28 April 2017 Decision date: 01 May 2017 Jurisdiction: Common Law Before: McCallum J Decision: Restraining orders made pursuant to s 10A of the Criminal Assets Recovery Act 1990 (NSW); further orders made as sought in short minutes Catchwords: PROCEEDS OF CRIME – application for restraining orders Legislation Cited: Criminal Assets Recovery Act 1990 (NSW), s 10A Drug Misuse and Trafficking Act 1985 (NSW), s 25(2) Category: Procedural and other rulings Parties: New South Wales Crime Commission (plaintiff) Gregory John Paul McDonald (first defendant) Mathew Ryan McDonald (second defendant) Representation: Solicitors: New South Wales Crime Commission File Number(s): 2017/126616 Publication restriction: Judgment not to be published until notice received of service of orders on defendants

Judgment 1. HER HONOUR: This is an application brought by the New South Wales Crime Commission for restraining orders pursuant to s 10A of the Criminal Assets Recovery Act 1990 (NSW). Such applications are ordinarily heard and determined in open court. Owing to the heavy listings before the Court on 28 April 2017, it was necessary to hear the application in chambers outside usual sitting hours. 2. I made the orders sought by the Crime Commission. These are my reasons for making those orders. 3. Section 10A(1) provides that the Commission may make an application ex parte (that is, without notice to and in the absence of the opposing party) for a restraining order. Section 10A(4) confers a discretion on the Court to require the Commission to give notice of the application to a person the Court has reason to believe has a sufficient interest in the application. The evidence put before me by the Commission persuaded me that it was neither necessary nor appropriate to require the Commission to give notice of the application to the defendants or any other person. In particular, I had regard to the nature of the criminal activity in which the defendants have allegedly been involved and the risk of dissipation or disposal of the assets sought to be restrained if notice were given. 4. Section 10A(5) of the Act is highly prescriptive as to the determination of applications for restraining orders. The section provides that the Court must make a restraining order if the application is supported by an affidavit of an authorised officer stating certain matters. 5. The first is that the authorised officer suspects that "the person whose interest is the subject of the application has engaged in a serious crime related activity". The present application was supported by an affidavit of Katie Bourne, an authorised officer within the meaning of the Act, who states her suspicion to that effect. 6. The second requirement is that the affidavit must state the grounds on which that suspicion is based. Each of the defendants to the present application has been arrested and charged with the supply of the commercial quantity of a prohibited drug (heroin) contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) and related charges. Police have provided fact sheets in respect of those charges. Ms Bourne's suspicion is based on her consideration of the content of those fact sheets together with her acceptance of a communication from the relevant police officer to the effect that the contents of the fact sheets are true to the best of the knowledge and belief of that police officer. 7. The final requirement is that, having regard to the matters contained in the affidavit of the authorised officer, the Court considers that there are reasonable grounds for the suspicion held by that officer. I have considered the contents of the fact sheets. The charges against the defendants were brought after an extended investigation involving continual monitoring of a telephone service identified as being operated by the defendants for the purpose of supplying heroin to a large number of customers. According to the fact sheets, numerous transactions involving the sale of drugs by the two defendants were monitored electronically and physically by police. I am satisfied that there are reasonable grounds for the suspicion deposed to by Ms Bourne. 8. For those reasons, I made the orders sought by the Crime Commission.