New South Wales Crime Commission v Nguyen

[2016] NSWSC 1763

Supreme Court

New South Wales

Medium Neutral Citation:	New South Wales Crime Commission v Nguyen [2016] NSWSC 1763
Hearing dates:	8 December 2016
Date of orders:	09 December 2016
Decision date:	09 December 2016
Jurisdiction:	Common Law
Before:	Schmidt J
Decision:	Orders made in terms sought.
Catchwords:	CRIMINAL LAW - procedure - restraining orders sought - ex-parte - orders made
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) Duy Cuong Nguyen (Defendant)
Representation:	Solicitors: Mr S Vorreiter New South Wales Crime Commission (Plaintiff)
File Number(s):	2016/369432
Publication restriction:	No

Judgment

1. By summons which I granted leave to file yesterday, the New South Wales Crime Commission applied ex parte, seeking restraining orders under s 10A of the Criminal Assets Recovery Act1990 (NSW) in relation to the interest in certain property of the defendant, Duy Cuong Nguyen. Other orders under ss 12(1) and 28A of the Act were also there sought.

2. The application was supported by an affidavit sworn on 7 December 2016 by Jonathan Lee Spark, the Commission’s Director (Financial Investigations) and an authorised officer under the Act, as well as by a statement of facts and circumstances provided in accordance with Rule 1.26 of the Uniform Civil Procedure Rules 2005 (NSW).

3. For the reasons which follow, I am satisfied that the orders sought should be made.

4. The property sought to be restrained is identified in a schedule to the summons as real property located at Forster and Argenton, registered in Duy Cuong Nguyen’s name.

5. Mr Spark deposed that he suspected that Duy Cuong Nguyen had engaged in serious crime related activity or activities within the definition of a “serious crime related activity” in s 6 of the Criminal Assets Recovery Act, namely, supply prohibited drug (cannabis) greater than the indictable quantity contrary to s 25(a) of the Drug Misuse and Trafficking Act1985 (NSW).

6. Mr Spark also gave a detailed explanation of the basis upon which he came to hold that suspicion. It rested on a conversation with Detective Senior Constable Papallo and consideration of documents obtained by employees of the Commission, including a NSW Police Force Facts Sheet; questions which Mr Spark posed to Detective Senior Constable Papallo and responses which he gave; as well as searches conducted by Commission employees of the records held in the COPS database, which showed that on 15 November 2016, Duy Cuong Nguyen had been charged with the offence dealt with in the Facts Sheet, which was annexed to the affidavit.

7. Mr Spark had also had regard to information obtained as the result of searches conducted of the LPI and Veda databases in relation to the property of Duy Cuong Nguyen. On a consideration of the material relied on, he also deposed that he believed in the truth of the contents of the Facts Sheet.

8. In addition, Mr Spark deposed to his experience in his employment with the Commission, that in the absence of a restraining order, it is possible for people to attempt to enter into unregistered mortgages in relation to real estate very quickly in order to attempt to defeat the operation of the Act. He also deposed to his view that, given the serious nature of the criminal activity in which Duy Cuong Nguyen is apparently involved, notice should not be given of this application.

9. That is a course available under the Act, although s 10A(4) permits a different course to be taken, if the Court thinks fit.

10. Section 10A(5) requires the making of the orders sought under the Act, if the Court considers that there are reasonable grounds for the suspicions to which Mr Spark has deposed. In this case, I am satisfied that the material relied on well establishes that there are reasonable grounds for the suspicions to which Mr Spark has deposed and that the requirements of s 10A(5) of the Act have been addressed.

11. In that situation, the Act requires that the restraining order sought in relation to the property in question be made in the circumstances.

12. The Facts Sheet showed that Duy Cuong Nguyen came under police surveillance during a strike force investigation into the illegal supply of drugs and firearms, during which telephone conversations were lawfully intercepted which implicated him in drug supply. He was also observed supplying large quantities of cannabis to members of a criminal syndicate. On his arrest, after a short struggle, he was found to be in possession of 920 grams of cannabis.

13. All of these matters, I am satisfied, provided a proper basis for the making of the orders sought.

14. On the evidence, I am also satisfied that the Commission ought not to be required to give notice of this application and that it should be dealt with ex parte. In coming to that view, I had regard to the provisions of s 10C of the Act, which permits an affected person to apply to have a restraining order set aside, as well as the liberty granted in the order to the parties to apply to the Court on three days’ notice.

Orders

15. Accordingly, I make orders in the terms sought, as well as ordering that the Commission serve a copy of this judgment on Duy Cuong Nguyen.

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Decision last updated: 15 December 2016