New South Wales Crime Commission v Luu

[2018] NSWSC 2050

Supreme Court

New South Wales

Medium Neutral Citation:	New South Wales Crime Commission v Luu [2018] NSWSC 2050
Hearing dates:	12 September 2018
Date of orders:	12 September 2018
Decision date:	12 September 2018
Jurisdiction:	Common Law
Before:	Rothman J
Decision:	(1) Pursuant to s 10A of the Criminal Assets Recovery Act 1990 (NSW) no person (other than any registered mortgagee dealing with its right to do so under the registered mortgage) is to dispose of, or attempt to dispose of, or otherwise deal with or attempt to otherwise deal with any interest in property (within the meaning of “interest in property” as defined in s 7 of the Act) of Van Cao Tran, including the interest in property in the property specified in Schedule One. (2)   Pursuant to s 12(1)(b)(i) of the Act Van Cao Tran shall be examined on oath before a Registrar of the Court concerning his affairs, including the nature and location of any property in which he has an interest. (3)   Leave is granted to the Plaintiff to obtain from the Registry dates for the examination ordered in Order 2 above. (4)   Pursuant to s 12(1)(c1) of the Act Van Cao Tran shall furnish to the Plaintiff, within twenty one (21) days after service of a sealed copy of these orders on Van Cao Tran, a statement verified by oath of Van Cao Tran setting out the particulars sought in Schedule Two. (5)   The balance of the Summons be listed for Directions before the Common Law Registrar at 9am on Monday 4 February 2019. (6)   Liberty is granted to the Plaintiff and Van Cao Tran to apply on three (3) days’ notice. (7)   The costs of obtaining these orders shall be costs in the cause. (8) Pursuant to Rule 36.4(1)(a) of the Uniform Civil Procedure Rules 2005 (NSW) these orders are to take effect as of the date hereof.
Catchwords:	CRIMINAL ASSETS – restraining orders – ancillary orders for examination – reasonable suspicion – orders appropriate – orders granted
Legislation Cited:	Crimes Act 1900 (NSW), s 193B Criminal Assets Recovery Act 1990 (NSW) Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)
Category:	Procedural and other rulings
Parties:	New South Wales Crime Commission (Plaintiff) Kien Minh Luu (Defendant)
Representation:	Solicitors: S Santhikumar (Plaintiff) Ex Parte (Defendant)
File Number(s):	2018/280267

EX TEMPORE Judgment

1. HIS HONOUR: By Summons filed today, the plaintiff, being the New South Wales Crime Commission (hereinafter “the Commission”), seeks orders under the Criminal Assets Recovery Act 1990 (NSW) (hereinafter “the Act”), being orders for a restraining order in accordance with or pursuant to s 10A of the Act.

2. For the purposes of this application for a restraining order, the Commission relies upon the Affidavit sworn in support of the application by Katie Elaine Bourne, being the Affidavit of 12 September 2018. That Affidavit establishes, in the view of the Court, that Ms Bourne is an authorised officer for the purposes of the Act and suspects the defendant of having engaged in serious criminal related activity, namely the supply of a prohibited drug, methamphetamine, not less than a large commercial quantity, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) and knowingly dealing with the proceeds of crime contrary to s 193B of the Crimes Act 1900 (NSW) (hereinafter collectively “the offences”). The affidavit also gives the grounds for Ms Bourne’s said suspicions.

3. The facts and circumstances on which the Commission relies in its application for a restraining order are:

1. Ms Bourne suspects the defendant of having engaged in serious crime related activity (namely the offences).

2. Ms Bourne has been provided with, and accepts, a police facts sheet that describes the suspected serious criminal activity in which Ms Bourne suspects the defendant to have engaged and further clarifying advice from New South Wales Police in relation to specified aspects of that facts sheet.

3. Ms Bourne has ascertained that the defendant has been charged with the offences described in the facts sheet which include the offences upon which the Commission relies in relation to the serious crime related activity.

4. There are reasonable grounds for Ms Bourne’s suspicion that the defendant has engaged in serious crime related activity (namely the offences).

4. The Commission, by its Summons, is also seeking in respect of the defendant an assets forfeiture order pursuant to s 22 of the Act and an unexplained wealth order pursuant to s 28A of the Act. While those orders are not sought today, it is necessary for the Court to set out the facts and circumstances upon which the Commission relies or will rely in seeking the said orders.

5. In respect of the assets forfeiture order, the Commission relies upon the facts and circumstances described in the facts sheet in that the property described in Schedule One to the Summons (“the seized cash”) is an interest in property of the defendant and the defendant has engaged in a serious crime related activity (namely the offences) and/or an available inference relating to serious crime use of property, because the seized cash is an interest in property of the defendant who has engaged in a serious crime related activity, namely the offences. The defendant’s activities resulted in the seized cash becoming serious crime use property and the seized cash is serious crime use property because it was used in or in connection with serious crime related activities, namely the offences.

6. In respect of the unexplained wealth order, the Commission relies upon the facts and circumstances described in the facts sheet; the results of pending investigations by the Commission, including a financial analysis of the affairs of the defendant; the evidence obtained pursuant to any examination of the defendant pursuant to orders under s 12 of the Act; and the evidence obtained as a result of any statement of affairs provided by the defendant pursuant to orders under s 12 of the Act.

7. I have read the Affidavit and the facts sheet. I have also read the exchange of correspondence between the deponent, Ms Bourne, and the police in relation to certain inquiries as to statements in the facts sheet which clarify a number of events that might otherwise be taken as being innocuous.

8. For my own part, I don’t know that the clarification was absolutely necessary, but I am grateful for the fact it has been clarified and I also accept that the affidavit establishes the prerequisite for the making of an order and in particular, I accept that the grounds for the suspicion that the defendant has engaged in serious crime related activity are reasonable and the Court shares the suspicion stated by Ms Bourne in relation to those matters including the engagement in serious crime related activity.

9. For those reasons the Court makes the orders handed up in the draft minute of order in relation to this matter which order is signed, dated and/or initialled by me.

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Decision last updated: 09 April 2019