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of motion seeking further restraining
Quick Take
1On an application under s 10C(1)(a) of the Criminal Assets Recovery Act 1990 (NSW) to set aside a restraining order, the onus falls on the applicant to establish that the Commission has failed to satisfy the Court that reasonable grounds for the relevant suspicion exist; s 10C(1)(a) imposes no onus on the Commission, which is reinforced by the fact that the Commission has no right to lead evidence on a s 10C application.
2The withdrawal of criminal charges does not, without more, establish that reasonable grounds for the authorised officer's suspicion have ceased to exist; the s 10C applicant must lead evidence positively displacing the reasonable grounds, and the Court assesses the position at the time of the s 10C hearing by reference to all available evidence.
3Where a s 10C application is met by a fresh s 10A application based on different or additional suspicions, the two motions are heard together, with the onus on the Commission on its fresh s 10A application but remaining on the applicant on the s 10C application.
Case Details
Citation[2017] NSWSC 943
CourtNSWSC
JurisdictionNew South Wales
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