Supreme Court New South Wales Medium Neutral Citation: New South Wales Crime Commission v Jean Marco [2018] NSWSC 647 Decision date: 10 May 2018 Jurisdiction: Common Law Before: Button J Decision: (1) The summons filed by the plaintiff on 9 May 2018 is dismissed. (2) No order as to costs. Catchwords: PROCEEDS OF CRIME – confiscation – ex parte application for restraining order pursuant to the Criminal Assets Recovery Act 1990 – statutory interpretation of s 10A – whether no temporal or other connection required between reasonably suspected "serious crime related activity" and interests to be restrained – application dismissed Legislation Cited: Criminal Assets Recovery Act 1990 (NSW), ss 4, 6, 10A, s28A Criminal Procedure Act 1986 (NSW) Cases Cited: International Finance Trust Co Ltd v NSW Crime Commission (2009) 240 CLR 319 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 NSW Commission v Jomaa (Fagan J, 3 August 2017, unreported) NSW Crime Commission v Ayik [2016] NSWSC 1183 NSW Crime Commission v Elskaf [2017] NSWSC 681 NSW Crime Commission v Fatos Rama [2017] NSWSC 1396 NSW Crime Commission v Richards [2016] NSWSC 838 NSW Crime Commission v Yucel (Lonergan J, 6 October 2017, unreported) Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28 R v Independent Broad-based Anti-corruption Commissioner [2016] HCA 8 Category: Procedural and other rulings Parties: New South Wales Crime Commission (Plaintiff) Jean Marco (Respondent) Representation: Solicitors: New South Wales Crime Commission Solicitors (Plaintiff) Ex Parte (Respondent) File Number(s): 2018/145145 Publication restriction: Pseudonym adopted for the Respondent. EX TEMPORE Judgment – ReVISED Introduction 1. The New South Wales Crime Commission (the plaintiff) filed a summons seeking various orders in this Court on 9 May 2018. The matter came before me in the Duty List on the same day; that is, yesterday. 2. Only those proposed orders seeking to restrain the interests in property of the respondent, including but not limited to some specified interests, were pressed, along with some orders ancillary to the further progress of the matter, to be found in the summons and a filed draft set of orders. 3. The application was based upon s 10A (the section) of the Criminal Assets Recovery Act 1990 (NSW) (the Act). The salient portions of the section are as follows: 10A Proceedings for restraining orders (1) Application for order The Commission may apply to the Supreme Court, ex parte, for a restraining order in respect of specified interests, a specified class of interests, or all the interests, in property of any person (including interests acquired after the making of the order). (2) The Commission may apply to the Supreme Court, ex parte, for a restraining order in respect of specified interests, or a specified class of interests, in property that are held in a false name. (3) The Commission may only apply for a restraining order that relates to interests in property derived from external serious crime related activity if the person who has the interests is domiciled in New South Wales or the property is situated in New South Wales. (4) Notice to affected person of application Despite the application for a restraining order being made ex parte, the Supreme Court may, if it thinks fit, require the Commission to give notice of the application to a person who the Court has reason to believe has a sufficient interest in the application. A person who is required to be notified is entitled to appear and adduce evidence at the hearing of the application. (5) Determination of applications The Supreme Court must make a restraining order if the application for the order is supported by an affidavit of an authorised officer stating that: (a) in the case of an application in respect of an interest referred to in subsection (1)—the authorised officer suspects that: (i) the person whose interest is the subject of the application has engaged in a serious crime related activity or serious crime related activities, or (ii) the person whose interest is the subject of the application has acquired serious crime derived property because of any such activity of the person or of another person, or (iii) the interest is serious crime derived property, and stating the grounds on which that suspicion is based, and (b) (Repealed) (c) in the case of an application in respect of an interest referred to in subsection (2)—the authorised officer suspects that the interest is fraudulently acquired property that is illegally acquired property and stating the grounds on which that suspicion is based, and the Court considers that, having regard to the matters contained in any such affidavit and any evidence adduced under subsection (4), there are reasonable grounds for any such suspicion. …. 1. Due to the nature of the proceedings, and the need to ensure that the whole application not be rendered futile, I took the view, pursuant to s 10A(4) of the Act, that the respondent should not be notified of the application, and that it should proceed ex parte. For the same reason, the respondent will not be named in this judgment, and I shall discuss the facts of the matter very generically so that he or she cannot be identified. And although I propose to publish this judgment on NSW Caselaw, my Associate shall not do so until the solicitor for the plaintiff has expressed her contentedness with its form. Background 1. The application was founded upon an affidavit in orthodox form deposing that the deponent had reasonable grounds to suspect that the respondent had engaged in "a serious crime related activity" or "serious crime related activities", in accordance with s 10A(5)(a)(i) of the Act. That in turn was based on the seemingly incontrovertible fact that, something in the order of a decade ago, the respondent was convicted of a serious criminal offence to do with prohibited substances, and sentenced to a significant term of imprisonment. 2. Although the affidavit also spoke of events that could give rise to a suspicion that the respondent has engaged in unlawful activity far more recently, the solicitor for the plaintiff made it clear that the application was based upon the conviction many years ago. Furthermore, despite my respectful suggestion that it was possible that the application and the affidavit could be recast, each of them remained in its original form. 3. After I expressed my concern about restraining all of the interests of a citizen ex parte founded merely upon the commission by that person of an offence many years ago, the matter was adjourned to permit the solicitor for the plaintiff to conduct further research. That was kindly done, and I had the benefit of reading some single judge decisions of this Court, along with the benefit of further oral submissions today. Determination 1. Nevertheless, I do not propose to make the pressed orders. That is so for the following reasons. 2. First, I appreciate that s 10A of the Act is expressed in mandatory terms, in that Parliament in s 10A(5) has commanded that I must make a restraining order if satisfied of a number of facts. But I cannot accept that the section should be read with the effect that any person convicted – or indeed merely reasonably suspected – of having committed an offence that falls within the definition of "serious crime related activity," at any time in his or her life, is liable to mandatory peremptory restraint of all or any of his or her interests in property, for the rest of his or her life. 3. To give but one example, shoplifting a chocolate bar worth $2 is an offence of larceny (or theft) that is to be found in Table 2 of the Criminal Procedure Act 1986 (NSW), and that carries on indictment a maximum penalty of imprisonment for five years. It therefore falls within the definition of "serious crime related activity": see the portion of s 4(1) that leads one to s 6, including s 6(1)(c) and s 6(2)(d), of the Act. 4. The submission of the plaintiff is that, so long as the other, formal factors in the section are established, the interests of a person who is convicted of such an offence are, without more, "caught" by the section for the rest of his or her life. In my opinion, that highly counter-intuitive proposition would only be accepted with the utmost caution. 5. Secondly, I accept without question that, in passing the Act, Parliament objectively intended to create a regime of restraint and forfeiture that is rigorous, perhaps even, with respect, draconian. But, even reading the section (in accordance with Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28) within the context of the entirety of the Act, and bearing in mind the undoubted purpose of the latter, I cannot accept that the text of the section in question is to be taken to mean that a person convicted of shoplifting (or even reasonably suspected thereof) at the age of 18 is to have his or her civil rights in property diminished in that way for the rest of his or her life. 6. In accordance with the principle of legality, I consider that such an outcome would need to be expressed by Parliament with absolute clarity, or by way of the irresistible implication of necessary intendment on its part: for a recent statement of the principle, see R v Independent Broad-based Anti-corruption Commissioner [2016] HCA 8 at [40]. I do not believe that either is to be found in the section in particular or the Act in general. 7. On the contrary, I believe that, properly understood, the section must call for some nexus – even if it be only a temporal or extremely attenuated one – between the serious crime related activity relied upon by the plaintiff and the interests proposed to be restrained. 8. Thirdly, it is quite true that other judges of this Court have been content to make an order in circumstances similar to these; see, for example: NSW Crime Commission v Richards [2016] NSWSC 838; NSW Crime Commission v Jomaa (Fagan J, 3 August 2017, unreported) and NSW Crime Commission v Yucel (Lonergan J, 6 October 2017, unreported). And in NSW Crime Commission v Jomaa, Fagan J referred in passing to this at the least surprising aspect of the section. But it is clear from those judgments that no detailed submissions about this particular question were provided by the plaintiff on those occasions. 9. Fourthly, that gives rise to a separate concerning aspect of the matter; namely, the ex parte nature of these proceedings. 10. Self-evidently, I am bereft of any submissions resisting the application that could develop my concerns, or perhaps highlight other concerns. For example, even if I be wrong in refusing to construe the section in the way for which the plaintiff contends, I think it reasonably possible that it could be said that imposing the making of a mandatory ex parte restraining order upon this Court, merely upon the basis that the owner of the subject property was convicted of a potentially trivial offence, potentially many years ago, is inconsistent with the institutional integrity of this Court, bearing in mind its position within the federal judicature: Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51. And it is noteworthy that the principle in Kable's Case has, in the past, been found to play a role in a previous iteration of the section: see International Finance Trust Co Ltd v NSW Crime Commission (2009) 240 CLR 319. 11. Fifthly, although reliance was placed by the plaintiff upon decisions in which "unexplained wealth orders" have been made in broadly similar circumstances pursuant to s 28A of the Act (see NSW Crime Commission v Ayik [2016] NSWSC 1183; NSW Crime Commission v Elskaf [2017] NSWSC 681; and NSW Crime Commission v Fatos Rama [2017] NSWSC 1396), it is in my opinion significant that the phrase "at any time before" appears with regard to the triggering factors in s 28A(2), and yet no such phrase appears in its broad equivalent, s 10A(5)(a). 12. In my opinion, that not only calls for caution in assessing the direct relevance of cases founded upon s 28A. To my mind, it also raises the possibility that Parliament has indeed drawn a structural distinction between the two central sections, by omitting such a phrase from the section under consideration. 13. In short, accepting as one must that the section speaks on its face of an order being mandated if a number of factors are simply fulfilled, for a number of reasons I nevertheless do not propose to make the orders sought. 14. Turning now to questions of procedure, one solution to my concerns would perhaps have been to revisit my contentedness for the matter to be heard ex parte; to insist that the plaintiff put the respondent on notice; and for me to have the benefit of detailed submissions from him or her. But such a course would almost certainly have rendered the application futile, and in my opinion would not have been consistent with the due administration of justice. 15. I have thought it better merely to refuse to make the pressed orders in the summons, and to provide these very brief reasons for doing so, thereby permitting the plaintiff urgently to pursue its remedies with regard to my approach as it sees fit. Orders 1. For the foregoing reasons, I make the following orders: 1. The summons filed by the plaintiff on 9 May 2018 is dismissed. 2. No order as to costs. ********** 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: 11 May 2018