New South Wales Crime Commission v Schaaf [2019] NSWSC 750

Supreme Court New South Wales

Medium Neutral Citation: New South Wales Crime Commission v Schaaf [2019] NSWSC 750 Hearing dates: 14 June 2019 Date of orders: 14 June 2019 Decision date: 14 June 2019 Jurisdiction: Common Law Before: Lonergan J Decision: Orders sought made. Catchwords: CRIMINAL LAW – procedure – restraining orders sought – ex-parte – orders made Legislation Cited: Criminal Assets Recovery Act 1990 (NSW) Category: Procedural and other rulings Parties: New South Wales Crime Commission (Plaintiff) Richard Schaaf (Defendant) Representation: Solicitors: New South Wales Crime Commission (Plaintiff) File Number(s): 2019/187130 Publication restriction: Nil

EX TEMPORE Judgment 1. HER HONOUR: The plaintiff, the New South Wales Crime Commission, seeks a restraining order pursuant to s 10A of the Criminal Assets Recovery Act 1990 (NSW) as well as ancillary orders associated with that restraining order. I am prepared to make the orders sought by the Commission and these are my reasons for making those orders. 2. 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 who the Court has reason to believe has a sufficient interest in the application. 3. The evidence put before me by the Commission persuades me that it was neither necessary nor appropriate to require the Commission to give notice of the application to the defendant or to any other person. In particular, I have had regard to the nature of the criminal activity for which the defendant has been charged, and the risk of potential dissipation or disposal of the assets sought to be restrained if notice was given or published. 4. The first is that the authorised officer suspects that the person whose interest is the subject of the application has engaged in serious crime-related activity. 5. Section 10A(5) of the Act is highly prescriptive as to the determination of applications for restraining orders. This 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. 6. The present application is supported by an affidavit of Katie Elaine Bourne, an authorised officer within the meaning of the Act, who has stated her suspicion to that effect. The second requirement is that the affidavit must state the grounds upon which that submission is based. 7. The defendant to the present application has been charged with supply cocaine greater than a commercial quantity as well as dealing with the proceeds of crime in the nature of money laundering in the sum of over $100,000. 8. Annexed to the affidavit of Ms Bourne is a lengthy facts sheet that sets out in some detail the results of an extensive police investigation involving the accused as well as a number of co-accused. This fact sheet indicates the facts and investigation results pursuant to which the defendant has been charged and the criminal activity associated with those charges as well as some other lesser charges to which I do not need to refer for the purpose of this particular application. 9. It appears to me that this facts sheet forms a strong basis upon which Ms Bourne formed the relevant suspicion, and that together with an email from one of the investigating police officers confirming that material is accurate, and confirms those facts relevantly for the purpose of this application. 10. The final requirement is that having regard to the matters contained in the affidavit of the authorised officer, the Court considers there are reasonable grounds for the suspicion held by that officer. 11. Having considered the facts sheet, which is in reality a 15-page dissertation on the investigation and criminal activity allegedly committed by the defendant, these comprise reasonable grounds for the suspicion held by that officer. 12. Accordingly, for those reasons, I make the orders sought by the Crime Commission.