New South Wales Crime Commission v Phan

[2020] NSWSC 1527

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:

New South Wales Crime Commission v Phan [2020] NSWSC 1527

Hearing dates:

9 July 2020

Date of orders:

9 July 2020

Decision date:

09 July 2020

Jurisdiction:

Common Law

Before:

Walton J

Decision:

On 9 July 2020, the Court announced the following order: on the evidence before the Court, the Commission has established that a restraining order should be made under ss 10A and 10B, together with ancillary orders under s 12 of the Act. Orders were made accordingly.

Catchwords:

CRIMINAL PROCEDURE – Criminal Assets Recovery Act 1990 (NSW) – restraining order – ex parte – orders made

Legislation Cited:

Crimes Act 1900 (NSW)

Criminal Assets Recovery Act 1990 (NSW)

Drug Misuse and Trafficking Act 1985 (NSW)

Category:

Principal judgment

Parties:

New South Wales Crime Commission (Plaintiff)
Minh Nhat Phan (Defendant)

Representation:

Solicitors:
New South Wales Crime Commission (Plaintiff)

File Number(s):

2020/201769

reasons for decision

1. The Court has before it a summons which seeks a hearing instanter and ex parte in order to partially deal with the matters in question, with the balance to be listed before this Court at another time.

2. This matter concerns an application for orders by the New South Wales Crime Commission (“the Commission”) pursuant to ss 10A and 10B(2) of the Criminal Assets Recovery Act 1990 (NSW) ("the Act").

3. Section 10A of the Act enables an application to be made ex parte for a restraining order. Section 10B(2) of the Act enables this Court when making a restraining order, if it considers that the circumstances so require, order the NSW Trustee and Guardian to take control of some or all of the interests in property that are interests to which the restraining order applies.

4. The application is supported by the affidavit of Ms Katie Elaine Bourne, sworn 2 July 2020. The application is also supported by a statement of facts and circumstances, as required on an application for a restraining order, pursuant to r 1.26 of the Uniform Civil Procedure Rules 2005 (NSW).

5. Pursuant to s 10A of the Act, the NSW Crime Commission may apply for a restraining order in respect of the interests in question, in this case interest in property of Minh Nhat Phan. The affidavit of Ms Bourne discloses that she is an authorised officer for the purposes of the Act and suspects Mr Hughes of having engaged in serious crime related activity, namely:

1. supply, or knowingly take part in the supply of, a prohibited drug (namely, cannabis) in an amount not less than the commercial quantity applicable to the prohibited drug, contrary to section 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW), being an offence falling within the definition of "serious criminal offence" pursuant to section 6(2)(b) of the Act;

2. knowingly deal with proceeds of crime·, contrary to section 193B(2) of the Crimes Act 1900 (NSW), being an offence punishable by imprisonment for 5 years, involving money laundering and thus falling within the definition of "serious criminal offence" pursuant to paragraph 6(2)(d) of the Act; and

3. participate in criminal group contribute to criminal activity, contrary to section 93T(1) of the Crimes Act, being an offence falling within the definition of "serious criminal offence" pursuant to section 6(2)(91) of the Act.

6. Ms Bourne provides grounds upon which the suspicion is held, that is a suspicion of Mr Phan having engaged in serious crime related activity. In that respect, I further observe that Ms Bourne was provided with and accepted a police facts statement that describes the suspected serious criminal activity in which Ms Bourne suspects Mr Hughes to have engaged in.

7. It was also noted in the fact sheet that Ms Bourne has ascertained that Mr Hughes has been charged with the offences described in the fact sheet.

8. In my view, there are reasonable grounds for Ms Bourne's suspicion that Mr Phan has engaged in serious crime related activity.

9. As earlier mentioned, by s 10B(2) of the Act, the Court may, when making a restraining order, if it considers that the circumstances so require, order the NSW Trustee and Guardian to take control of some or all of the interests in property that are interests to which the restraining order applies. Ms Bourne deposed that the circumstances so require and supported this belief with regard to the evidence deposed in her affidavit, which set out the circumstances in which the aforementioned seized cash was seized by members of the police. She also noted, the seized cash is presently being held by the police.

10. Finally, before disposing of the matter, I should note that in my view, upon the circumstances outlined in the affidavit of Ms Bourne as to this particular matter, there was a proper basis upon which the matter may have proceeded as it has ex parte.

11. On 9 July 2020, the Court announced the following order: on the evidence before the Court, the Commission has established that a restraining order should be made under ss 10A and 10B, together with ancillary orders under s 12 of the Act. Orders were made accordingly.

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Amendments

30 October 2020 - Correction to file number

Decision last updated: 30 October 2020