Chen v NSW Crime Commission

[2018] NSWCA 63

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Chen v NSW Crime Commission [2018] NSWCA 63

Hearing dates:

26 March 2018

Date of orders:

26 March 2018

Decision date:

29 March 2018

Before:

Meagher JA
Simpson JA

Decision:

1. Leave to appeal dismissed.
2. Applicant pay the respondent’s costs of the summons.

Catchwords:

PRACTICE AND PROCEDURE – leave to appeal – where restraining orders made under Criminal Assets Recovery Act 1990 – where proposed grounds of appeal challenge making or continuance of two orders under s 10A – where no utility in appeal unless leave granted to challenge both orders – leave refused

Legislation Cited:

Criminal Assets Recovery Act 1990 (NSW)

Cases Cited:

NSW Crime Commission v Chen (Supreme Court (NSW), Button J, unreported)

Category:

Principal judgment

Parties:

Yan Ping Chen (Applicant)
NSW Crime Commission (Respondent)

Representation:

Counsel:

 

B Walker SC and L Fernandez (Applicant)
I Temby QC and R Bhalla (Respondent)

 

Solicitors:

  Nyman Gibson Miralis (Applicant)
NSW Crime Commission (Respondent)

File Number(s):

2017/235289

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Common Law

Citation:

[2017] NSWSC 943

Date of Decision:

17 July 2017

Before:

Schmidt J

File Number(s):

2014/67125

Judgment

1. THE COURT: On 26 March 2018 the Court dismissed Ms Chen’s application for leave to appeal with costs, and reserved its reasons for doing so. These are those reasons.

2. Ms Chen sought leave to appeal from two orders of the primary judge (Schmidt J) made in relation to applications under the Criminal Assets Recovery Act 1990 (NSW) (the CAR Act): NSW Crime Commission v Chen [2017] NSWSC 943.

3. By the first, her Honour dismissed Ms Chen’s application under s 10C of the CAR Act which sought to set aside restraining orders made under s 10A on 4 March 2014: NSW Crime Commission v Chen (Supreme Court (NSW), Button J, unreported). By the second order, her Honour acceded to the Commission’s further application under s10A for restraining orders against Ms Chen.

4. It was common ground that the interests in property which are currently the subject of the s 10A order made in March 2014 (that order having been varied by consent) and the order made by the primary judge on 17 July 2017 are the same. It follows, and was accepted by Senior Counsel for Ms Chen, that for her application for leave to appeal to have any utility, she must obtain a grant of leave to appeal from each of the orders of the primary judge.

5. It is convenient to deal first with Ms Chen’s application for leave to appeal in relation to the July 2017 s 10A order. The proposed ground of appeal is that the primary judge erred “in finding that the authorised officer’s suspicion was held on reasonable grounds”. Under s 10A(5) of the CAR Act, the affidavit supporting the application for the restraining order must set out each relevant suspicion of the authorised officer and the grounds on which that suspicion is based. The court must then be satisfied that having regard to the matters contained in that affidavit “there are reasonable grounds for any such suspicion”.

6. It is apparent from the primary judge’s reasons, and the transcript of the proceeding before her Honour, that three affidavits of Mr Spark were read in support of the second s 10A application. Those affidavits set out Mr Spark’s suspicions as to Ms Chen’s having committed three further serious crimes, they being offences in contravention of ss 135 (concealing a will), 192E (fraud) and 319 (perverting the course of justice) of the Crimes Act 1900 (NSW). They also stated the grounds on which those suspicions were based.

7. The material before this Court on the application for leave does not include any of those affidavits. The absence of those affidavits, and of an exhaustive summary of those grounds in her Honour’s reasons, prevented this Court from forming any view as to the merits or otherwise of Ms Chen’s argument that the primary judge erred in finding that there were reasonable grounds for any of Mr Spark’s suspicions. For that reason, the Court could not be satisfied of the existence of any arguable error in her Honour’s fact finding that might have justified a grant of leave in relation to the making of the s 10A order.

8. The merits or otherwise of the application for leave in relation to the order dismissing Ms Chen’s s 10C application therefore need not be considered. Whilst that application raised important questions concerning the construction of s 10C(1) – in particular whether the Commission is entitled to adduce evidence on such an application, and as to the legal and evidential burdens of proof in such an application – the answers to them would not necessarily have been dispositive of any appeal from that order. More significantly, success in that appeal would be of no utility to Ms Chen in the absence of leave to appeal from the July 2017 s 10A order.

9. For these reasons the Court ordered that the application for leave to appeal be dismissed with costs.

**********

Decision last updated: 29 March 2018