New South Wales Crime Commission v Ta
[2016] NSWSC 1483
•21 September 2016
Supreme Court
New South Wales
Medium Neutral Citation: New South Wales Crime Commission v Ta [2016] NSWSC 1483 Hearing dates: 21 September 2016 Date of orders: 21 September 2016 Decision date: 21 September 2016 Jurisdiction: Common Law Before: Beech-Jones J Decision: Restraining orders made in accordance with Short Minutes of Order
Catchwords: RESTRAINING ORDERS – no question of principle Legislation Cited: Criminal Assets Recovery Act 1990 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)Category: Procedural and other rulings Parties: New South Wales Crime Commission (Plaintiff)
Thi Phuong Ta (Defendant)Representation: Counsel:
Solicitors:
E Goh, solicitor (Plaintiff)
New South Wales Crime Commission (Plaintiff)
File Number(s): 2016/282811
Judgment
-
HIS HONOUR: By summons filed in court on 21 September 2016, the New South Wales Crime Commission seeks various forms of relief under the Criminal Assets Recovery Act 1990 (NSW) (the “Act”) against the defendant Thi Phuong Ta. The ultimate final relief sought in the summons is an order under s 22 of the Act. The relief sought today is, however, a restraining order under s 10A of the Act as well as various ancillary orders providing for the examination on oath of Ms Ta as well as the furnishing of information about her circumstances including the property she owns or controls.
-
Section 10A(1) of the Act enables the Commission to apply to the Court ex parte for a restraining order in respect of a specified class of interest or of the interest in property of any person.
-
Section 10A(4) enables this Court to require the Commission to put the person on notice of the application notwithstanding the order is made ex parte. Having regard to the circumstances, which I will describe, as well as the potential for persons to create interests in land on short notice, I do not consider that notice is required.
-
Section 10A(5) requires the Court to make a restraining order in the event that two particular criteria are satisfied. The first is that an application is supported by an affidavit of an authorised officer stating that, in the case of an application in respect of an interest referred to in s 10A(1), as this application is, that the authorised officer suspects that the person whose interest is the subject of the application has engaged in serious crime-related activity. There are other means by which this criteria can be met but they are for this purpose irrelevant. It is necessary for the officer to state on which that suspicion is based. The second criteria is that having regard to the matters contained in the affidavit and in the evidence adduced on the application the Court considers that there are reasonable grounds for the suspicion.
-
The relevant affidavit was sworn by Jonathan Lee Sparke on 20 September 2016. He is clearly an authorised officer for the purpose of s 10A(5).
-
Mr Sparke’s affidavit recounts his suspicion that the defendant has engaged in serious crime-related activity, specifically taking part in cultivation by indoor means of a prohibited plant, specifically cannabis, contrary to s 23(1A) of the Drug Misuse and Trafficking Act 1985 (NSW) and cultivate prohibited plants which are not less than a commercial quantity of that prohibited plant contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act.
-
In respect of that suspicion, Mr Sparke recounts his belief in the truth of material that was obtained from the officers who arrested Ms Ta and her partner on 7 September 2016 and provided to Mr Sparke concerning that arrest.
-
In brief, that material indicates that on that day the police entered the home occupied by Ms Ta and her partner they discovered a reasonably sophisticated cultivation enterprise in a number of rooms of the house involving a total of 59 cannabis plants and the re-direction of electricity to both grow the plants and avoid detection. Cleary the suspicion of Mr Sparke is reasonable and the order will be made.
-
The second order sought is an order that Ms Ta be examined on oath before a Registrar pursuant to s 12(1)(b)(i) of the Act. In the light of what is stated in Mr Sparke’s affidavit that order is justified. Following that, Ms Ta will have the ability to seek to set the order aside if there is a concern that it may jeopardise her prospects of a fair trial.
-
Similarly, the order is sought under subsection 12(1)(c1) of the Act that Ms Ta furnish a verified statement of the particulars set out in Schedule 2 to the summons, specifically, that she set out her interest in the property and the like. For the same reason that order will be made.
-
Accordingly the Court will make the orders proposed in the short minutes of order that have been provided by the Commission.
**********
Decision last updated: 24 October 2016
0
0
2