New South Wales Crime Commission v Eric Tran

[2017] NSWSC 1180

Supreme Court

New South Wales

Medium Neutral Citation:	New South Wales Crime Commission v Eric Tran [2017] NSWSC 1180
Hearing dates:	14 August 2017
Date of orders:	14 August 2017
Decision date:	05 September 2017
Jurisdiction:	Common Law
Before:	Walton J
Decision:	On the evidence before the Court, the Commission has established that a restraining order should be made under s 10A and ancillary orders be made under s 12(1) of the Act. I order accordingly.
Catchwords:	CRIMINAL PROCEDURE – Criminal Assets Recovery Act 1990 (NSW) – proceeds of crime – restraining orders – ancillary orders – ex parte – orders made
Legislation Cited:	Criminal Assets Recovery Act 1990 (NSW) Crimes Act 1900 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Category:	Principal judgment
Parties:	New South Wales Crime Commission (Plaintiff) Eric Tran (Defendant)
Representation:	Solicitors: New South Wales Crime Commission (Plaintiff)
File Number(s):	2017/247413

REASONS FOR Judgment

1. This matter concerns an application for orders by the New South Wales Crime Commission (“the Commission”) pursuant to ss 10A and 12(1) of the Criminal Assets Recovery Act 1990 (NSW) ("the Act").

2. Section 10A of the Act enables an application to be made ex parte for a restraining order. Section 12 permits the Court, when making a restraining order, to make any ancillary orders that the Court considers appropriate. These orders may include, as sought in the present matter, an order for the examination under oath of the owner of an interest in property that is subject to the restraining order.

3. The application is supported by a statement of facts and circumstances pursuant to r 1.26 of the Uniform Civil Procedure Rules2005 (NSW) and an affidavit of Jonathon Lee Spark sworn 14 August 2017. Mr Spark, who is an Executive Director (Financial Investigations) of and a financial investigator with the Commission, deposed that he is an authorised officer as defined in s 4(1) of the Act and suspected that the defendant, Eric Tran, had engaged in a serious criminal related activity, namely, participate in a criminal group and contribute to criminal activity contrary to s 93T(1) of the Crimes Act 1900 (NSW). It was deposed, and I accept, that the offences so described constitute serious criminal offences pursuant to s 6(2)(g1) of the Act.

4. The grounds upon which Mr Spark held his suspicion are set out in his affidavit. In particular, he was provided with and accepted a police fact sheet that described the arrest and charging of the defendant on 8 August 2017 and answers to questions raised with police, namely, Detective Sergeant John Edwards as to cash seized during the execution of the search warrant on the same day as well as the records obtained by the Commission, property, financial records and ASIC searches. The police fact sheet described investigations of the defendant, the son of Chi Quang Tran, as to his alleged involvement in the large scale importation and distribution of illicit tobacco. Mr Tran staffs a retail tobacco store operated by his father.

5. It follows that the first two requirements of s 10A(5) of the Act are met in the present matter. The relevant authorised officer suspects that the defendant, whose interest was the subject of the application has engaged in a serious crime related activity and her affidavit stated the grounds upon which the suspicion was based.

6. There are three further requirements of the provisions of s 10A of the Act which required attention before an order may be made.

1. First, the Court is required to be satisfied pursuant to s 10A(3) of the Act that the defendant is domiciled in New South Wales and that the property in respect of which the restraining order is sought is situated in New South Wales. I am satisfied that this criteria has been met in the present case.

2. Secondly, s 10A(4) of the Act enables notice to be given to the defendant, if the Court thinks fit to, before an order is made. In light of Mr Spark’s evidence I do not consider such notice should be given having regard to the capacity of persons to enter into unregistered mortgages in relation to real estate, to quote Mr Spark, "very quickly", dispose of a motor vehicle or back date from notifying the Roads and Maritime services of the disposal of a vehicle or dispose of funds held in bank accounts very quickly and thereby attempting to defeat the operation of the Act.

3. The final requirement is the Court must be satisfied that there are reasonable grounds for the suspicion held by the authorised officer. In that respect, I have considered the police fact sheet together with Mr Spark’s evidence and I am satisfied there are reasonable grounds for the suspicion deposed by Mr Spark.

7. As earlier mentioned, by s 12(1) of the Act, the Court may, when making a restraining order, make any ancillary orders that the court considers appropriate.

8. By s 12(1)(b)(i) of the Act the Court may order the examination on oath of the owner of an interest in the property, that is the subject of a restraining order, as to the affairs of the owner including the nature and location of any property in which the owner has an interest.

9. By s 12(1)(c1) the Court may make an order directing a person who is or was the owner of an interest in property that is subject to the restraining order or, if the owner is or was a body corporate, a director of the body corporate specified by the Court, to furnish to the Commission or NSW Trustee and Guardian, within a period specified in the order, a statement, verified by the oath of the person making the statement, setting out such particulars of the property, or dealings with the property, in which the owner has or had an interest as the Court thinks proper. That examination may be conducted by, inter alia, an officer of the court prescribed by the rules of the Court. In the present matter, the orders sought by the Commission proposed that the defendant be examined on oath before the Registrar of the Court. That order is permissible under the Act.

10. On 14 August 2017, the Court announced the following order: that on the evidence before the Court, the Commission has established that a restraining order should be made under s 10A and ancillary orders be made under s 12(1) of the Act. I order accordingly.

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Decision last updated: 05 September 2017