New South Wales Crime Commission v Pham

[2014] NSWSC 998

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crime Commission v Pham [2014] NSWSC 998

Hearing dates:

24 July 2014

Decision date:

24 July 2014

Jurisdiction:

Common Law

Before:

Hamill J (as Duty Judge)

Decision:

Restraining orders under s 10A made.

Ancillary orders under s 12 refused.

Catchwords:

CRIMINAL LAW - criminal assets Recovery act - restraining orders - Ancillary orders - Whether ancillary orders should be made ex parte - refusal of ancillary orders ex parte - whether ex parte applications should be dealt with in chambers

Legislation Cited:

Criminal Assets Recovery Act 1990 (NSW)

Cases Cited:

International Finance Trust Company Limited v New South Wales Crime Commission [2008] NSWCA 291
New South Wales Crime Commission v Meads [2010] NSWSC 1145
New South Wales Crime Commission v Richards [2010] NSWSC 1399
New South Wales Crime Commission v Peter Geoffrey Martin [2013] NSWSC 15
New South Wales Crime Commission v Younan [2012] NSWSC 13

Category:

Procedural and other rulings

Parties:

New South Wales Crime Commission (Plaintiff)
Thi Ngoc Mai Pham (Defendant)

Representation:

Counsel:
Solicitors:

File Number(s):

2014/218335

EX TEMPORE Judgment

1. HAMILL J: This is an application principally under s 10A of the Criminal Assets Recovery Act1990 (NSW) for restraining orders with respect to the property of the defendant.

1. The defendant is currently charged with an offence which fits the description of a drug trafficking offence under the definition in s 6 of the Act.

1. The order is sought in respect of any interest in property of the defendant and specifically encompasses certain real estate which is nominated in Schedule 1 to the proposed orders.

1. As I did in argument, I should indicate for the record that the case came before me in chambers yesterday, Wednesday 23 July, 2014. Ms Goh attended in chambers on behalf of the plaintiff and she informed me, when I asked, that different judges had different practices as to whether matters such as this should be dealt with in chambers or in court. I took the view then, and take the view now, that it is more appropriate for applications like this to be dealt with in court. If cogent reasons exist to restrict the publication of material raised in the course of such an application, or if reasons exist to close the court, orders can be made to ensure that any necessary secrecy or privacy is maintained.

1. Accordingly I indicated to Ms Goh that I would deal with the matter in court this morning and that it would receive appropriate priority, which it has.

1. Section 10A allows the Commission to make an application for a restraining order as defined in s 10 and to do so in an application made ex parte to the court. Sub-section 4 allows the court "if it thinks fit" to require the Commission to give notice to any person who may be affected by the orders sought. In view of the material before me and, in particular, the material that establishes that the property encompassed by the proposed order could be quickly disposed of if the defendant became aware of the application, I am of the opinion that the Commission ought not to be required to notify the defendant of the application.

1. Accordingly, I have considered the matter on an ex parte basis as contemplated by s 10A.

1. A third preliminary question arises as to whether or not it is necessary, in an application of this kind, for the court to give reasons for its decision. Ms Goh has provided me with authorities of this Court and the Court of Appeal which go both ways on that question. A majority of the Court of Appeal in International Finance Trust Company Limited v New South Wales Crime Commission [2008] NSWCA 291 held that it was necessary for the Court to give reasons. However, since that decision in 2008 there have been amendments to the legislation and Ms Goh informs me that some judges of this Division take the view that those amendments make it unnecessary to provide reasons; see New South Wales Crime Commission v Meads [2010] NSWSC 1145.

1. In the case of New South Wales Crime Commission v Richards [2010] NSWSC 1399, McCallum J took the contrary view. Her Honour held that International Finance Trust remained good law in spite of the amendments and declined to follow the decision in Meads.

1. In New South Wales Crime Commission v Younan [2012] NSWSC 13 Davies J took a similar approach and preferred the reasons given by McCallum J. In my opinion reasons should be given for making a decision of this kind. I refer to the reasons articulated by McCallum J in Richards at paragraph 12. However, as Allsop P said in International Finance Trust at [47], such reasons need not be "elaborate". They may be stated with "economy and conciseness".

1. I turn then to the substance of the matter. In support of the application for the restraining order, the plaintiff reads an affidavit of Jonathan Lee Spark. Annexed to that affidavit is a statement of facts, as well as a series of emails between the deponent and the investigating police officers. It is unnecessary to recount the facts in detail. It is sufficient to know that, according to the facts sheet, the defendant was associated with certain premises which were subject to a police search on 15 January 2014, at which time a relatively elaborate hydroponic cannabis cultivating system was located.

1. In addition, police executed a search warrant on the defendant's home where they located a sum of cash in a wardrobe in the defendant's bedroom. The subsequent investigations led them to a third premises which were searched and they found further cannabis plants. The defendant's fingerprints were located on a lamp shade within those premises.

1. The deponent to the supporting affidavit indicates that he believes in the truth of the fact sheet and also the truth of things said to him by investigating police in the email to which I have referred. On the basis of that material Mr Spark indicates that he has a suspicion, both that the defendant engaged in serious crime related activity, and that certain property in her name and found in her possession was derived from that activity.

1. For the purposes of ss 5, and for the reasons that I have given, I consider that there are reasonable grounds for the suspicion deposed to by Mr Spark and, accordingly, the sub-section, which is in mandatory terms, requires that "I must" make a restraining order and I propose to do so.

1. The summons seeking the order, and the orders drafted, also seek a number of "ancillary orders" pursuant to s 12 to the Criminal Assets Recovery Act. In particular, the plaintiff seeks orders that the defendant be examined on oath and that she provide a statement verified on oath setting out the particulars which are articulated in Schedule 2 to the proposed orders. Those details concern her assets, and so forth.

1. Ms Goh, with commendable frankness, has indicated again that different judges take different approaches as to whether ancillary orders should be made at the time of making ex parte orders under s 10A. I have to say that there seems to be no doubt on the face of the legislation, particularly s 12, that the court has power to do so. That reads:

"The Supreme Court may, when it makes a restraining order or at any later time, make any ancillary orders...."

1. There is no question that that provides the Court with power to make the ancillary order, but again, as Ms Goh says with commendable frankness, it is a discretionary matter.

1. Ms Goh also brought to my attention, when the matter was before me in chambers, a decision of McDougall J in New South Wales Crime Commission v Peter Geoffrey Martin [2013] NSWSC 15, in which his Honour declined to make ancillary orders as those proposed here. His Honour did not give extensive reasons, other than to note that the application could be pressed at a later time.

1. As I have said, the question of whether I should make ancillary orders is a discretionary matter and in my opinion the urgency which attends the application for the restraining order, and which means that it is appropriate that the matter be dealt with without notice to the defendant, does not attend the application for the ancillary orders.

1. As Ms Goh has conceded, the plaintiff can make application for those orders at any time and she indicated to me, again in chambers yesterday, that the likelihood is that any such examination would not take place in the near future.

1. In my opinion, in the circumstances of this case, if orders for examination and compulsory provision of a statement of the kind contemplated, the defendant should be put on notice of the application and have a right to be heard in respect of it. This accords with the approach taken by McDougall J in Martin.

1. I am grateful to Ms Goh for bringing that case to my attention and her doing so reflects the balance with which she has conducted the application.

1. I note that the Commission has, through Ms Goh, made an undertaking as to the payment of damages or costs in relation to the operation of the orders that I will make.

1. Accordingly the discretionary power to refuse to make such an order under sub-section (7) of s 10A does not arise. Accordingly, I propose to make orders 1, 5, 6 and 7. I will not make orders 3 or 4.

1. I make orders in accordance with the hand-written amended orders proposed by the plaintiff. I have initialled the amendments and signed the document. It will be sealed and those orders should be made forthwith.

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Decision last updated: 28 July 2014