New South Wales Crime Commission v Nguyen
[2015] NSWSC 993
•01 July 2015
Supreme Court
New South Wales
Medium Neutral Citation: New South Wales Crime Commission v Nguyen [2015] NSWSC 993 Hearing dates: 1 July 2015 Decision date: 01 July 2015 Jurisdiction: Common Law Before: Adamson J Decision: See paragraph 18
Catchwords: CRIMINAL LAW – ex parte - application for criminal assets restraining order Legislation Cited: Criminal Assets Recovery Act 1990 (NSW), ss 4, 6, 7, 10A, 12, 27
Drug Misuse and Trafficking Act 1985 (NSW), ss 23, 25
Uniform Civil Procedure Rules 2005 (NSW), r 1.26, 36Cases Cited: George v Rockett [1990] HCA 26; 170 CLR 104 Category: Procedural and other rulings Parties: New South Wales Crime Commission (Plaintiff)
Duc Tam Nguyen (Defendant)Representation: Counsel:
Solicitors:
A Miranda (solicitor) (Plaintiff)
New South Wales Crime Commission (Plaintiff)
File Number(s): 2015/192896
Judgment
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By summons filed on 1 July 2015, the plaintiff seeks various orders, including an order pursuant to s 10A of the Criminal Assets Recovery Act 1990 (NSW) (the Act) restraining dealings with any interest in property, including certain property described in Schedule One to the summons; orders pursuant to s 12(1)(b)(i) of the Act authorising the examination of the defendant concerning his financial affairs; orders pursuant to s 12(1)(b1) authorising the examination of Thuan Thi Huynh concerning the defendant’s financial affairs; an order pursuant to s 12(1)(c1) of the Act requiring the defendant to furnish to the plaintiff within 21 days a statement verified on oath setting out full particulars of all his property; and a proceeds assessment order pursuant to s 27 of the Act that the defendant pay to the Treasurer an amount assessed by the Court as the value of the proceeds of the defendant’s illegal activities within the period of six years before the filing of the application.
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The orders sought in the summons, apart from the proceeds assessment order under s 27 of the Act referred to above, were sought ex parte on the day of filing the summons, 1 July 2015.
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In support of its application the plaintiff relied on the following documents:
Affidavit of Jonathan Lee Spark sworn 30 June 2015; and
Statement of Facts and Circumstances relied on in an application for a restraining order and a proceeds assessment order pursuant to r 1.26 of the Uniform Civil Procedure Rules 2005 (NSW) dated 30 June 2015 (Statement of Facts and Circumstances).
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Section 10A of the Act relevantly provides:
“10A Proceedings for restraining orders
(1) Application for order
The Commission may apply to the Supreme Court, ex parte, for a restraining order in respect of specified interests, a specified class of interests, or all the interests, in property of any person (including interests acquired after the making of the order).
…
(3) The Commission may only apply for a restraining order that relates to interests in property derived from external serious crime related activity if the person who has the interests is domiciled in New South Wales or the property is situated in New South Wales.
(4) Notice to affected person of application
Despite the application for a restraining order being made ex parte, the Supreme Court may, if it thinks fit, require the Commission to give notice of the application to a person who the Court has reason to believe has a sufficient interest in the application. A person who is required to be notified is entitled to appear and adduce evidence at the hearing of the application.
(5) Determination of applications
The Supreme Court must make a restraining order if the application for the order is supported by an affidavit of an authorised officer stating that:
(a) in the case of an application in respect of an interest referred to in subsection (1) - the authorised officer suspects that:
(i) the person whose interest is the subject of the application has engaged in a serious crime related activity or serious crime related activities…
and stating the grounds on which that suspicion is based …
and the Court considers that, having regard to the matters contained in any such affidavit and any evidence adduced under subsection (4), there are reasonable grounds for any such suspicion.”
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The plaintiff’s application for an order under s 10A was made ex parte, as it is entitled to do under s 10A(1). I considered the documents relied upon in support of the application in chambers.
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The plaintiff’s application is supported by the affidavit of Jonathan Lee Spark sworn 30 June 2015. Mr Spark, who is an authorised officer of the plaintiff within the meaning of s 4(1) of the Act, deposes to his suspicion that the defendant has engaged in serious crime-related activity or crime-related activities, being: supplying a prohibited plant (cannabis) of an amount greater than the indictable quantity of that drug contrary to s 23(1)(b) of the Drug Misuse and Trafficking Act1985 (NSW) (the DMTA) and supplying a prohibited drug (cannabis) greater than the indictable quantity of that drug contrary to s 25(1) of the DMTA. These are serious criminal offences within the meaning of s 6(2)(b) of the Act because s 6(3) provides that offences under ss 23 and 25 of the DMTA are “drug trafficking offences”. The Facts Sheet records that the defendant was charged with the offences described therein on 21 May 2015 following the execution of a search warrant at his residence in Mount Pritchard.
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Mr Spark sets out the grounds for his suspicion in [4] of his affidavit. The deponent has annexed correspondence with Constable Shantel Fowler, who had prepared the Facts Sheet on the basis of information provided by investigating police officers. Constable Fowler informed Mr Spark that the facts set out are, to the best of her knowledge and belief, true.
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Mr Spark also deposed in his affidavit to investigations he caused to be made into the defendant’s property interests.
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Section 10A(5) provides, in substance, that I am obliged to make the order sought if the application is supported by an affidavit of an authorised officer stating that the officer suspects that the defendant has engaged in a crime related activity and setting out the grounds for the suspicion and I consider that, having regard to the matters contained in the affidavit, there are reasonable grounds for any such suspicion.
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In all the circumstances I am satisfied that Mr Spark’s affidavit meets the requirements of s 10A(5) as to the matters which he suspects.
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I am also satisfied, having regard to Mr Spark’s affidavit, that there are reasonable grounds for his suspicion. I have been guided by what the High Court said in George v Rockett [1990] HCA 26; 170 CLR 104 at [14].
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I do not consider that it would be appropriate to require the plaintiff to notify the defendant of the application under s 10A(4) in light of Mr Spark’s evidence. I accept Mr Spark’s evidence as to the speed with which real estate can be encumbered, which tends to have the effect of defeating the operation of the Act and restraining orders made under it.
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The defendant is domiciled in New South Wales and the real property is situated in New South Wales. Accordingly, the Commission is entitled to make this application for a restraining order: s 10A(3).
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The orders, other than the restraining order, are designed to ensure that the plaintiff is apprised of the full extent of the defendant’s property interests. These orders are, accordingly, ancillary to the restraining order which, in terms, restrains dealing with any interest the defendant may have in property as defined by s 7 of the Act. The Statement of Facts and Circumstances states that the plaintiff also seeks, in its summons, a proceeds assessment order pursuant to s 27 of the Act.
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In all the circumstances, I consider it to be appropriate to make the orders.
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I note the undertaking given by the solicitor for the plaintiff, being the usual undertaking as to damages.
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On the basis of that undertaking I make orders in terms of paragraphs 1 to 8 of the draft minute of order provided to me by the plaintiff.
Orders
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 Jonathan Lee Spark sworn 30 June 2015, 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 Duc Tam Nguyen, including his interest the in property in the property specified in Schedule One hereto.
2. Pursuant to section 12(1)(b)(i) of the Criminal Assets Recovery Act 1990 Duc Tam 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 Thuan Thi Huynh shall be examined on oath before a Registrar of the Court concerning the affairs of Thuan Thi Huynh, including the nature and location of any property in which Thuan Thi Huynh or Duc Tam Nguyen have 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 Duc Tam Nguyen shall furnish to the Plaintiff, within twenty one (21) days after service of a sealed copy of these orders on Duc Tam Nguyen, a statement verified by oath or affirmation of Duc Tam Nguyen setting out the particulars sought in Schedule Two hereto.
6. Liberty is granted to the Plaintiff and Duc Tam Nguyen 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 these orders are to take effect as of the date hereof.
SCHEDULE ONE
The whole of the property described as Lot 44 in Deposited Plan 220549 at Mt Pritchard, Parish of St Luke, County of Cumberland also known as 13 Lookout Drive, Mount Pritchard, New South Wales 2170 and registered in the name of Duc Tam Nguyen.
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:
(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.
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Decision last updated: 09 September 2015
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