New South Wales Crime Commission v Thi Bich Tram Nguyen

[2013] NSWSC 1913

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crime Commission v Thi Bich Tram Nguyen [2013] NSWSC 1913

Hearing dates:

13 December 2013

Decision date:

13 December 2013

Jurisdiction:

Common Law

Before:

Davies J

Decision:

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 Thi Bich Tram Nguyen, including the interest 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 Thi Bich Tram Nguyen shall be examined on oath before a Registrar of the Court concerning her affairs, including the nature and location of any property in which she has an interest.

3. Pursuant to section 12(1)(b)(ii) of the Criminal Assets Recovery Act 1990 Van Tan Nguyen shall be examined on oath before a Registrar of the Court concerning the affairs of Thi Bich Tram Nguyen, including the nature and location of any property in which Thi Bich Tram Nguyen has 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 Thi Bich Tram Nguyen shall furnish to the Plaintiff, within twenty one (21) days after service of a sealed copy of these orders on Thi Bich Tram Nguyen, a statement verified by oath of Thi Bich Tram Nguyen setting out the particulars sought in Schedule Two hereto.

6. Liberty is granted to the Plaintiff and Thi Bich Tram 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.

Catchwords:

CRIMINAL LAW - confiscation of the proceeds of crime - persons with property other than the offender - restraining orders

Legislation Cited:

Criminal Assets Recovery Act 1990
Drug Misuse and Trafficking Act 1985
Uniform Civil Procedure Rules 2005

Category:

Interlocutory applications

Parties:

New South Wales Crime Commission (Plaintiff)
Thi Bich Tram Nguyen (Defendant)

Representation:

Counsel:
E Goh (Plaintiff)
No appearance (Defendant)
Solicitors:
New South Wales Crime Commission (Plaintiff)
No appearance (Defendant)

File Number(s):

2013/377075

Judgment

1. This is an application for orders under the Criminal Assets Recovery Act 1990. Section 10A enables an application to be made ex parte for a restraining order which remains in force whilst, as here, there is an application pending for an explained wealth order under s 28A of the Act.

1. The application is made in respect of the Defendant who is the sister of the person said to have committed particular offences which amount to serious crime related activity.

1. The application is supported by an affidavit of Jonathan Lee Spark sworn 12 December 2013. In that affidavit Mr Spark, who is an authorised officer as defined in s 4(1) of the Act, deposes to his suspicion that Van Tan Nguyen has engaged in a serious crime related activity, or serious crime related activities, being the offences of supplying a prohibited drug, knowingly taking part in the supply of a prohibited drug, both contrary to s 25(1) of the Drug Misuse and Trafficking Act 1985, and the supply of a prohibited drug on an ongoing basis contrary to s 25A of that Act. Those offences are all serious criminal offences as defined in s 6(2)(b) of the Act.

1. The grounds on which Mr Spark holds his suspicion are set out in paragraph 5 of his affidavit. In particular Mr Spark received a facts sheet from the investigating officer. Mr Spark ascertained from that officer that the officer had prepared the facts sheet, that he believed it to be true and correct, and that it had been prepared on the basis of investigation carried out into the activities of Van Tan Nguyen.

1. I have read all of the material contained in the facts sheet, and also the additional material that is exhibited to Mr Spark's affidavit. I am satisfied that the suspicion that Mr Spark has is one that is held by him on reasonable grounds. Section 10A(5) of the Act requires an order to be made if the Court is satisfied that there are reasonable grounds for Mr Spark's suspicion.

1. I am further satisfied that s 10A(3) requires from that material that the Defendant is domiciled in New South Wales, and that the relevant property is also situated in New South Wales.

1. Section 10A(4) enables notice to be given to the Defendant before the order is made if the Court thinks fit. In the light of Mr Spark's evidence of the speed and manner in which property can be disposed of, I do not consider the Defendant should be given notice of the application before the order is made. The Defendant has available rights under s10C of the Act to seek a review of the ex parte order made.

1. Accordingly I make orders in terms of paragraphs 1 to 3, 5, 7 and 8 of the draft order, and I grant leave and liberty contained in paragraphs 4 and 6.

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Decision last updated: 18 December 2013