New South Wales Crime Commission v Luu

[2016] NSWSC 664

Supreme Court

New South Wales

Medium Neutral Citation:	New South Wales Crime Commission v Luu [2016] NSWSC 664
Hearing dates:	On the papers
Date of orders:	04 May 2016
Decision date:	24 May 2016
Jurisdiction:	Common Law
Before:	Wilson J
Decision:	1. Pursuant to section 10A of the Criminal Assets Recovery Act 1990 (NSW) (“the Act”) 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 section 7 of the Act of Thi Quyen Luu, including the interest in property in the property specified in Schedule One hereto. 2. Pursuant to section 12(1)(b)(i) of the Act Thi Quyen Luu shall be examined on oath before a Registrar of the Court concerning her affairs, including the nature and location of any property in which she 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 section 12(1)(c1) of the Act Thi Quyen Luu shall furnish to the Plaintiff, within twenty one (21) days after service of a sealed copy of these orders on Thi Quyen Luu, a statement verified by oath of Thi Quyen Luu setting out the particulars sought in Schedule Two hereto. 5. Liberty is granted to the Plaintiff and Thi Quyen Luu to apply on three (3) days' notice. 6. The costs of obtaining these orders shall be costs in the cause. 7. Pursuant to Rule 36.4(1)(a) of the Uniform Civil Procedure Rules 2005 these orders are to take effect as of the date hereof
Catchwords:	PROCEDURE – civil – Criminal Assets Recovery Act 1990 – restraining order
Legislation Cited:	Criminal Assets Recovery Act 1900 Drugs Misuse and Trafficking Act 1985 Uniform Civil Procedure Rules 2005
Category:	Procedural and other rulings
Parties:	NSW Crime Commission (Plaintiff) Thi Quyen Luu (Defendant)
Representation:	Ms E Goh (NSW Crime Commission) Ex parte
File Number(s):	2016/136790
Publication restriction:	None

Judgment

1. A Summons was filed in the Registry of this Court on 4 May 2016 by the plaintiff, the New South Wales Crime Commission, seeking a restraining order against the defendant, Thi Quyen Luu. The restraining order, pursuant to s 10A of the Criminal Assets Recovery Act 1900 (NSW) (“the Act”), would prohibit any person from dealing with any interests in property of the defendant, including her interest in the property as set out in Schedule One.

2. Section 10A of the Act provides for applications of this nature to be heard ex parte, and this application proceeded on that basis.

3. The plaintiff has filed an affidavit of Mr Jonathan Lee Spark, sworn 3 May 2016, in support of the application for a restraining order. Mr Spark is employed by the plaintiff as a Director of Financial Investigations and his affidavit sets out that he is an authorised officer. He is a person authorised in writing by the plaintiff generally to act as an authorised officer for the purposes of s 10A and Part 4 of the Act.

4. As a result of his employment with the plaintiff, Mr Spark has had access to records held by the New South Wales Police Force on its Computerised Operational Policing System, and records held by Land and Property Information New South Wales, being a unit of the Department of Finance, Services and Innovation. He has also seen, on a number of occasions, information provided to the Commission by Westpac and is familiar with the nature and appearance of such information.

5. Mr Spark’s affidavit sets out his suspicion that the defendant has engaged in a serious crime related activity as defined by s 6 of the Act. The serious crime related activity is the supply of a prohibited drug (cannabis), contrary to s 25(1) of the Drugs Misuse and Trafficking Act 1985 (NSW), which is an offence falling within the definition of “serious criminal offence” provided by s 6(2)(b) of the Act.

6. Mr Spark relies on a New South Wales Police Force Fact Sheet. The Fact Sheet outlines that on 21 March 2016 a search warrant was executed at an address in Fairfield Heights. The defendant and her co-accused were discovered inside the lounge room at the rear of the granny flat located on the property.

7. Police located a large open blue canvas bag in the lounge room of the granny flat. Inside the bag, police discovered nine clear plastic vacuum sealed bags with approximately 3.9 kilograms of cannabis head inside. Police also located a second open blue canvas bag inside the bathroom of the granny flat, containing ten clear plastic vacuum sealed bags with approximately 5 kilograms of cannabis head inside.

8. Also found on the property was $5000 in $50 dollar notes, four electronic scales, an electronic money counter, two packets of vacuum sealed bags, a large amount of various “high end” female clothing items, assorted crystals and $450 dollars in $50 notes in a wallet in a bedroom.

9. The defendant and her co-accused were subsequently arrested.

10. Police allege that the Fairfield Heights address was a safe house for the supply of prohibited drugs, and that the defendant and her co-accused are part of an elaborate criminal enterprise responsible for distributing cannabis to street level suppliers within the metropolitan area.

11. I have considered the material supplied by the plaintiff, including the affidavit of Mr Spark and I am satisfied that his suspicion about the defendant is reasonably held. I am prepared to make the orders sought by the plaintiff, pursuant to s 10A(5) of the Act.

ORDERS

12. Upon the Plaintiff giving the usual undertaking as to damages (the giving of which by it solicitor being noted) and considering that, having had regard to the matters contained in the affidavit of Jonathan Lee Spark sworn 3 May 2016, there are reasonable grounds for the suspicion stated therein.

13. The Court orders:

1. Pursuant to section 10A of the Criminal Assets Recovery Act 1990 (NSW) (“the Act”) 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 section 7 of the Act of Thi Quyen Luu, including the interest in property in the property specified in Schedule One hereto.

2. Pursuant to section 12(1)(b)(i) of the Act Thi Quyen Luu shall be examined on oath before a Registrar of the Court concerning her affairs, including the nature and location of any property in which she 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 section 12(1)(c1) of the Act Thi Quyen Luu shall furnish to the Plaintiff, within twenty one (21) days after service of a sealed copy of these orders on Thi Quyen Luu, a statement verified by oath of Thi Quyen Luu setting out the particulars sought in Schedule Two hereto.

5. Liberty is granted to the Plaintiff and Thi Quyen Luu to apply on three (3) days' notice.

6. The costs of obtaining these orders shall be costs in the cause.

7. Pursuant to Rule 36.4(1)(a) of the Uniform Civil Procedure Rules 2005 these orders are to take effect as of the date hereof.

SCHEDULE ONE

1. The whole of the property described as Lots 1 and 2 in Section number 48 of Deposited Plan 753 at Fairfield, County of Cumberland, Parish of St Luke also known as 18 Stella Street, Fairfield Heights, New South Wales 2165 and registered in the name of Thi Quyen Luu.

2. Funds in Westpac Banking Corporation account number 732172 810388 held in the name of Thi Quyen Luu.

SCHEDULE TWO

1. Provide full particulars of the nature and extent of all your interests in property (within the meaning of "interest in property" as defined in section 7 of the Criminal Assets Recovery Act 1990), including in relation to each item of property:

1. a full description of your interest in the property, including the nature of that interest and, where possible, the estimated value, or in the case of bank accounts or deposits - the estimated balance, of that interest;

2. the location of the interest;

3. the name of the person or institution in whose custody title documents in respect of the interest are believed to be;

4. the approximate date of acquisition of the interest; and

5. the source of funds used to acquire the interest.

2. Provide full particulars of your liabilities on both a capital and recurring basis, including, in relation to each liability:

1. a full description of the liability including the nature of that liability and the amount of that liability; and

2. the name of the person or institution to which the liability is owed.

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Decision last updated: 25 May 2016