New South Wales Crime Commission v Pham

[2017] NSWSC 958

Supreme Court

New South Wales

Medium Neutral Citation:	New South Wales Crime Commission v Pham [2017] NSWSC 958
Hearing dates:	30 June 2017
Date of orders:	30 June 2017
Decision date:	18 July 2017
Jurisdiction:	Common Law
Before:	Walton J
Decision:	On the evidence before the Court, the Commission has established that a restraining order should be made under s 10A and ancillary orders be made under s 12(1) of the Act. I order accordingly.
Catchwords:	PROCEDURE – Criminal Assets Recovery Act 1990 (NSW) – proceeds of crime – restraining orders – 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:	Principal judgment
Parties:	New South Wales Crime Commission (Plaintiff) Minh Thuan Pham (Defendant)
Representation:	Solicitors: New South Wales Crime Commission (Plaintiff)
File Number(s):	2017/00195804

Judgment

1. This matter concerns an application for orders by the New South Wales Crime Commission (“the Commission”) pursuant to ss 10A and 12(1) of the Criminal Assets Recovery Act 1990 (NSW) ("the Act").

2. Section 10A of the Act enables an application to be made ex parte for a restraining order. Section 12 permits the Court, when making a restraining order, to make any ancillary orders that the Court considers appropriate. These orders may include, as sought in the present matter, an order for the examination under oath of the owner of an interest in property that is subject to the restraining order.

3. Having heard submissions by Mr Stephen Vorreiter, solicitor for the Commission in relation to the effect of s 12(3) of the Act upon the matter being called on 30 June 2017, I was satisfied that proceedings both under ss 10A and 12(1) of the Act may heard ex parte.

4. The application was supported by a Statement of Facts and Circumstances pursuant to r 1.26 of the Uniform Civil Procedure Rules2005 and an affidavit of Jonathan Lee Spark sworn on 28 June 2017. Mr Spark, a financial investigator with the Commission, deposed that he is an authorised officer as defined in s 4(1) of the Act and suspected that the defendant, Minh Thuan Pham, has engaged in a serious criminal related activity, namely, supply of prohibited drug contrary to s 25(1) of the Drug Misuse and Trafficking Act1985 (NSW) ("DMT Act"). It was deposed, and I accept, that the offences so described constituted serious criminal offence pursuant to ss 6(2)(b) of the Act.

5. The grounds upon which Mr Spark holds his suspicion are set out in his affidavit. In particular, he was provided with a police record of the defendant’s charge and sentence, documents such as a title search relating to a property to in Mount Pritchard, court documents of a previous restraining order and a letter from the Commission to the lawyers of the defendant. The documents represent a compilation of material directed to demonstrating the defendant’s interest in a property in Mount Pritchard, which had not been disclosed at the time of consent orders that was signed by the defendant on 20 February 2014 with regard to a proceeds assessment. Mr Spark described in his affidavit that the defendant is now eligible for parole and, in the absence of a restraining order, would attempt to deal with an interest in the Mount Pritchard constituting a breach of warranty.

6. It follows that the first two requirements of s 10A(5) of the Act are met in the present matter. The relevant authorised officer suspects that the defendant, whose interest is the subject of the application, has engaged in a serious crime related activity and his affidavit states the grounds upon which the suspicion is based.

7. There are three further requirements of the provisions of s 10A of the Act which required attention before an order may be made.

1. First, the Court is required to be satisfied pursuant to s 10A(3) of the Act that the defendant is domiciled in New South Wales and that the property in respect of which the restraining order is sought is situated in New South Wales. On the affidavit of Mr Spark, I was satisfied that this criteria has been met in the present case.

2. Secondly, s 10A(4) of the Act enables notice to be given the defendant, if the Court thinks fit to, before an order is made. In light of Mr Spark's evidence I do not consider such notice should be given having regard to the capacity of persons to enter into unregistered mortgages in relation to real estate, to quote Mr Spark, "very quickly" and thereby attempting to defeat the operation of the Act.

3. The final requirement is the Court must be satisfied that there are reasonable grounds for the suspicion held by the authorised officer. In that respect, I have considered Mr Spark’s evidence and I am satisfied there are reasonable grounds for the suspicion deposed by Mr Spark.

8. The defendant was charged and sentenced pursuant to the DMT Act. Through a search of the Land and Property Information database a caveat was registered over the Mount Pritchard property on behalf of the defendant. A statement of claim filed in September 2015, in this Court, shows that the defendant was seeking an declaration that the defendant enjoys an equitable interest over the property and an order that the Mount Pritchard property be transferred to the defendant on the basis of an agreement from March 2011. There is suspicion that the defendant had an interest in the property at the time he signed the consent orders in 2014 and failed to disclose that interest in property in the warranty. The defendant is now eligible for parole and there was suspicion that the defendant may attempt to deal with his interest in the Mount Pritchard property.

9. As earlier mentioned, by s 12(1) of the Act, the Court may, when making a restraining order, make any ancillary orders that the court considers appropriate. By s 12(1)(b1) of the Act the Court may order the examination on oath of the owner of an interest in the property that is the subject of a restraining order as to the affairs of the owner including the nature and location of any property in which the owner has an interest. That examination may be conducted by, inter alia, an officer of the court prescribed by the rules of the Court. In the present matter, the orders sought by the Commission proposed that the defendant be examined on oath before the Registrar of the Court. That order is permissible under the Act. It appears to me that there is a proper basis for the making of the orders proposed upon the grounds relied upon by the Commission.

10. On the evidence before the Court, the Commission has established that a restraining order should be made under s 10A and ancillary orders be made under s 12(1) of the Act. I order accordingly.

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Decision last updated: 18 July 2017