Supreme Court New South Wales Medium Neutral Citation: New South Wales Crime Commission v Sayah [2017] NSWSC 1369 Hearing dates: 19 September 2017 Decision date: 19 September 2017 Jurisdiction: Common Law Before: McCallum J Decision: Restraining order made Catchwords: PROCEEDS OF CRIME – application for restraining orders – no question of principle Legislation Cited: Criminal Assets Recovery Act 1990 (NSW), ss 10A(4)–(5) Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1)–(2), 25A(1) Category: Procedural and other rulings Parties: New South Wales Crime Commission (plaintiff) Mrwan Sayah (defendant) Representation: S Santhikumar (solicitor for the plaintiff) (ex parte) Solicitor: New South Wales Crime Commission (plaintiff) File Number(s): 2017/284430 Publication restriction: None Judgment 1. HER HONOUR: These are proceedings brought by the New South Wales Crime Commission for restraining orders under s 10A of the Criminal Assets Recovery Act 1990 (NSW). That section provides that the Commission may make an application to this Court for a restraining order ex parte. The Act provides, in s 10A(4), that despite the Commission being entitled to make an application ex parte, the Court may, if it thinks fit, require the Commission to give notice of the application to any person the Court has reason to believe has a sufficient interest in the application. 2. The question whether notice should be required to be given in the present case is addressed in the affidavit sworn in support of the application by Mr Jonathan Spark. Mr Spark notes on the strength of his lengthy experience and his knowledge of the individual circumstances of this case that notice of such applications can enable defendants to defeat the operation of the Act by disposing of assets and contends that, having regard to the serious nature of the criminal activity alleged against the defendant, notice should not be required to be given in this case. 3. I am satisfied on the strength of that evidence that it is neither necessary nor appropriate to require the Commission to give notice of the application to any person. 4. As to the substantive relief sought, the provisions of s 10A are highly prescriptive. Subsection 5 provides that the Court must make a restraining order if certain matters are established by an affidavit of an authorised officer. 5. The affidavit of Mr Spark to which I have referred satisfies the requirements of that section. In particular, Mr Spark deposes to the fact that he suspects the defendant of having engaged in serious crime related activity, namely, supplying a prohibited drug on an ongoing basis contrary to s 25A(1) of the Drug Misuse and Trafficking Act 1985 (NSW) and offences of supplying a prohibited drug contrary to s 25(1) and (2) of that Act. 6. The affidavit gives the grounds for Mr Spark's suspicion which consist in the fact of his having made a direct inquiry with the author of the statement of facts on the strength of which Mr Sayah was recently arrested. The fact sheet, which I have read, plainly establishes a basis for suspecting a criminal activity of the kind referred to in the Act. Further, on the strength of my reading of the fact sheet, I am satisfied that there are reasonable grounds for Mr Spark's suspicion. 7. It follows in accordance with the regime of the Act that I must make the restraining order sought. The Commission also seeks ancillary relief of the kind ordinarily sought in proceedings of this kind and I am satisfied that it is appropriate to make those orders. For those reasons, I make orders one to nine in the form of order handed up. ********** 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: 15 November 2017