New South Wales Crime Commission v Nguyen

[2019] NSWSC 1542

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crime Commission v Nguyen [2019] NSWSC 1542

Hearing dates:

7 November 2019

Date of orders:

07 November 2019

Decision date:

07 November 2019

Jurisdiction:

Common Law

Before:

Davies J

Decision:

Upon the Plaintiff giving the usual undertaking as to damages (the giving of which by its solicitor being noted) and

 

Considering that, having had regard to the matters contained in the affidavit of Katie Elaine Bourne sworn 5 November 2019, there are reasonable grounds for the suspicion stated therein

 

The Court orders:

 

1. Pursuant to section 10A of the Criminal Assets Recovery Act 1990 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 Criminal Assets Recovery Act 1990) of Van Dung Nguyen, including the interests in property in the property specified in Schedule One and Schedule Two hereto.

 

2. Pursuant to section 12(1)(b)(i) of the Criminal Assets Recovery Act 1990 Van Dung Nguyen 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. Pursuant to section 12(1)(b1) of the Criminal Assets Recovery Act 1990 Thi Thu Bui shall be examined on oath before a Registrar of the Court concerning the affairs of Thi Thu Bui, including the nature and location of any property in which Thi Thu Bui or Van Dung Nguyen has an interest.

 

4.   Leave is granted to the Plaintiff to obtain from the Registry dates for the examinations ordered in Orders 2 and 3 above.

 

5. Pursuant to section 12(1)(c1) of the Criminal Assets Recovery Act 1990 Van Dung Nguyen shall furnish to the Plaintiff, within twenty one (21) days after service of a sealed copy of these orders on Van Dung Nguyen, a statement verified by oath of Van Dung Nguyen setting out the particulars sought in Schedule Three hereto.

 

6.   Liberty is granted to the Plaintiff and Van Dung Nguyen to apply on three (3) days’ notice.

 

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

 

8.   These proceedings be listed for mention before the Common Law Registrar at 9:00am on Monday, 24 February 2020.

 

9. 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

 

The whole of the property described as Lot 140 in Deposited Plan 736129 at Green Point, Local Government Area Central Coast, Parish of Kincumber, County of Northumberland also known as 32 White Cedar Cl, Green Point, New South Wales 2251 and registered in the name of Van Dung Nguyen as sole owner.

 

SCHEDULE TWO

 

1.   2016 Toyota Kluger motor vehicle with New South Wales registration number YGG24R and registered in the name of Van Dung Nguyen.

 

2.   2019 Toyota Rav 4 motor vehicle with New South Wales registration number YIY74X and registered in the name of Van Dung Nguyen.

 

3.   Funds held in the Commonwealth Bank of Australia account number 213011204075 and held in the name of Van Dung Nguyen.

   

SCHEDULE THREE

 

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:

 

(a)   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;

 

(b)   the location of the interest;

 

(c)   the name of the person or institution in whose custody title documents in respect of the interest are believed to be;

 

(d)   the approximate date of acquisition of the interest;

 

(e)   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:

 

(a)   a full description of the liability including the nature of that liability and the amount of that liability;

 (b)   the name of the person or institution to which the liability is owed.

Catchwords:

CRIMINAL LAW – proceeds of crime – restraining orders

Legislation Cited:

Criminal Assets Recovery Act 1990 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Category:

Procedural and other rulings

Parties:

New South Wales Crime Commission (Plaintiff)
Van Dung Nguyen (Defendant)

Representation:

Counsel:
S Santhikumar – Ex parte (Plaintiff)

  Solicitors:
Legal Unit, New South Wales Crime Commission (Plaintiff)

File Number(s):

2019/349959

Judgment

1. The plaintiff seeks a restraining order under s. 10A of the Criminal Assets Recovery Act 1990 (NSW), pending the making of a declaration under s. 22AA of the Act and orders under s. 22, 27 and 28A of the Act. The application is supported by an affidavit of Katie Elaine Bourne sworn 5 November 2019. Ms Bourne is an authorised officer of the plaintiff.

2. Section 10A(5) of the Act requires the Court to make an order if the application is supported by an affidavit of an authorised officer, setting out the matters contained in that subsection and stating the grounds on which the suspicion referred to therein is based, and the Court considers there are reasonable grounds for the suspicion.

3. Ms Bourne deposes to a suspicion that the defendant has engaged in serious crime related activity, namely, the cultivation of a prohibited plant, being cannabis, not less than the commercial quantity, contrary to s. 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW). That is an offence falling within the definition of “serious criminal offence”, pursuant to s. 6(2)(b) of the Criminal Assets Recovery Act.

4. Ms Bourne deposes bases her suspicion, principally, on reading the Facts Sheet provided to her by the police in relation to the charging of the defendant. Ms Bourne sent an email to Detective Senior Constable Justin Harnott, who is the officer in charge of the investigation. In it, she asked if he was the officer who had created the Facts Sheet, if the contents of the Facts Sheet were true to the best of the officer's knowledge, and whether the information in the Facts Sheet came from the police investigation. Senior Constable Harnott replied answering in the affirmative to those three questions.

5. I have read the Facts Sheet and I consider that Ms Bourne's suspicion is reasonably based. I note that the defendant and the co-accused had been observed to attend the properties on a number of occasions where the cultivation was subsequently found, and that the defendant’s fingerprints were found on equipment used in conjunction with the hydroponic arrangement.

6. The plaintiff seeks that the orders be made without prior notice to the defendant. It does so based on Ms Bourne's experience at the Commission identifying the ease with which unregistered mortgages of real estate could be entered into very quickly, the ease with which motor vehicles can be disposed of quickly, or forms notifying the RMS being backdated, and the ability to dispose of funds held in bank accounts very quickly.

7. I am satisfied, in the circumstances, that it is appropriate that orders should be made without prior notice to the defendant. The defendant has his rights under s. 10C of the Act to review the orders.

8. The plaintiff also seeks an orders that the defendant and his de facto partner, Thi Thu Bui, should be examined on oath before a Registrar of the Court concerning the defendant’s affairs. I consider, in the circumstances, that it is appropriate that that orders should be made also.

9. I note the usual undertaking given by the solicitor for the plaintiff.

10. On that basis, I make orders in terms of paragraphs 1, 2, 3, 5, 7 and 9 of the draft order signed by me.

11. I grant the leave and liberty in paragraphs 4 and 6.    

12. The proceedings are stood over for mention before the Common Law Registrar at 9am on Monday, 24 February 2020.

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Decision last updated: 08 November 2019