In the matter of Tian

[2022] NSWSC 899

Supreme Court

New South Wales

Medium Neutral Citation:

Application of the New South Wales Crime Commission; In the matter of Tian [2022] NSWSC 899

Hearing dates:

17 June 2022

Date of orders:

17 June 2022

Decision date:

17 June 2022

Jurisdiction:

Common Law

Before:

Hamill J

Decision:

The Court makes orders 1, 2, 6, 7, 10, 11, 12 and 13 in accordance with the short minutes of order filed by the plaintiff on 17 June 2022.

Catchwords:

CIVIL – confiscation of proceeds of crime – orders sought ex parte – restraining orders made – examination orders refused in circumstances of extant criminal proceedings and potential future criminal proceedings

Legislation Cited:

Criminal Assets Recovery Act 1990 (NSW), ss 7, 10A, 10B(2)

Uniform Civil Procedure Rules 2005 (NSW), r 36.4(1)(a)

Cases Cited:

Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20

R v Independent Broad-Based Anti-Corruption Commissioner (2016) 256 CLR 459; [2016] HCA 8

R v Kinghorn (2021) 106 NSWLR 322; [2021] NSWCCA 313

Strickland (a pseudonym) v Director of Public Prosecutions (Cth) (2018) 266 CLR 325; [2018] HCA 53

Turnbull v Office of Environment and Heritage [2021] NSWCCA 190; (2021) 290 A Crim R 458

Category:

Principal judgment

Parties:

New South Wales Crime Commission (Plaintiff)
Yuan Tian (First Defendant)
Rui Zhao (Second Defendant)

Representation:

Counsel:
S Santhikumar (Plaintiff)

Solicitors:
New South Wales Crime Commission (Plaintiff)

File Number(s):

2022/174910

ex tempore Judgment (revised)

1. The New South Wales Crime Commission (“the Commission”) brings an application ex parte against two nominated defendants, being Yuan Tian and Rui Zhao, seeking restraining orders pursuant to s 10A of the Criminal Assets Recovery Act 1990 (NSW) and ancillary orders including for the examination on oath of the two defendants and the requirement that they provide statements pursuant to the Act concerning their financial affairs.

2. In support of the summons are filed a statement of facts and circumstances and an affidavit of Jonathan Lee Spark, which annexes a number of relevant documents, both of a financial nature and also in the form of a police facts sheet prepared by New South Wales Police in respect of the first defendant, that is Mr Tian.

3. Based on that material, I am satisfied that Mr Spark is an authorised officer pursuant to the Act and that he has formed the relevant suspicion, as stated in paragraph 4 of his affidavit, and the grounds upon which he relies in forming that suspicion are well justified by the material that he annexes to his affidavit.

4. The criminal activities referred to involved money laundering. I am satisfied that the orders for restraint are appropriate and should be made.

5. The question then arises as to whether the ancillary orders should be made. Ms Santhikumar presses the order against Rui Zhao, although she accepts, because we have had a number of these cases together over a number of years, that I am unlikely to make the orders in respect of Mr Tian because he is currently charged with criminal offences. She presses those orders for examination and the like against Ms Zhao on the basis that Ms Zhao is not presently charged with any criminal offence. I accept the force of that submission, but I do note that there is, at the very least, a suspicion in relation to Ms Zhao, which is set out in Mr Spark’s affidavit from paragraph 7 onwards, and whilst she is not presently charged with an offence there is a prospect she will be.

6. The view I generally hold in relation to these matters is that an application for compelled examination should be made with the party being on notice so that they are in a position either to consent to the examination or to make arguments against it, based on a number of well-known authorities coming out of the High Court and even now the Court of Criminal Appeal of New South Wales. [1]

   1. See, for example, Lee v The Queen (2014) 253 CLR 455; [2014] HCA 20, R v Independent Broad-Based Anti-Corruption Commissioner (2016) 256 CLR 459; [2016] HCA 8, Strickland (a pseudonym) v Director of Public Prosecutions (Cth) (2018) 266 CLR 325; [2018] HCA 53, R v Kinghorn (2021) 106 NSWLR 322; [2021] NSWCCA 313 and Turnbull v Office of Environment and Heritage [2021] NSWCCA 190; (2021) 290 A Crim R 458.

7. It will be open to the Commission to pursue those ancillary orders once the two defendants are on notice of the proceedings and the property has been restrained.

8. So, I will make orders by reference to the short minutes of order provided by the Commission. I will make orders pursuant to orders 1, 2, 6, 7, 10, 11, 12 and 13.

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Endnote