New South Wales Crime Commission v Thi Nga Nguyen

[2023] NSWSC 130

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crime Commission v Thi Nga Nguyen [2023] NSWSC 130

Hearing dates:

22 February 2023

Date of orders:

22 February 2023

Decision date:

22 February 2023

Jurisdiction:

Common Law

Before:

Davies J

Decision:

Upon the Plaintiff giving the usual undertaking as to damages (the giving of which by its solicitor being noted) and

Considering that, having had regard to the matters contained in the affidavit of Ryan James Bull affirmed 22 February 2023 there are reasonable grounds for the suspicion stated therein

The Court orders:

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 Nga Nguyen, including the interest in property in the property specified in Schedule One and Schedule Two hereto.

2. Pursuant to section 12(1)(b)(i) of the Criminal Assets Recovery Act 1990 Thi Nga 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)(b1) of the Criminal Assets Recovery Act 1990 Tien Manh Dinh shall be examined on oath before a Registrar of the Court concerning the affairs of Tien Manh Dinh, including the nature and location of any property in which Tien Manh Dinh or Thi Nga 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 Nga Nguyen shall furnish to the Plaintiff, within twenty one (21) days after service of a sealed copy of these orders on Thi Nga Nguyen, a statement verified by oath of Thi Nga Nguyen setting out the particulars sought in Schedule Three hereto.

6.   Liberty is granted to the Plaintiff and Thi Nga Nguyen to apply on three (3) days’ notice.

7.   The costs of obtaining these orders shall be costs in the cause.

8.   These proceedings be listed for mention before the Common Law Registrar at 9:00am on 22 May 2023.

9. 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.

SCHEDULE ONE

The whole of the property described as Lot 13 in Deposited Plan 785398 at St Johns Park, Local Government Area Fairfield, Parish of St Luke, County of Cumberland, also known as 52 Runcorn Street, St Johns Park NSW 2176 and registered in the name of Thi Nga Nguyen as sole owner.

SCHEDULE TWO

1. 2012 Honda Accord with New South Wales registration number BJB18P and registered in the name of Thi Nga Nguyen.

2. Funds held in Commonwealth Bank of Australia account number 213011307955 held in the name of Thi Nga Nguyen.

3. Funds held in Commonwealth Bank of Australia account number 213011276722 held in the name of Thi Nga Nguyen.

4. Funds held in St George Bank, a division of Westpac Banking Corporation, account number 442116449 held in the name of Thi Nga Nguyen.

5. Funds held in St George Bank, a division of Westpac Banking Corporation, account number 467328552 held in the name of Thi Nga Nguyen.

SCHEDULE THREE

1. Provide full particulars of the nature and extent of all your interests in property (within the meaning of "interest in property" as defined in section 7 of the Criminal Assets Recovery Act 1990), including in relation to each item of property:

(a)   a full description of your interest in the property, including the nature of that interest and, where possible, the estimated value, or in the case of bank accounts or deposits - the estimated balance, of that interest;

(b)   the location of the interest;

(c)   the name of the person or institution in whose custody title documents in respect of the interest are believed to be;

(d)   the approximate date of acquisition of the interest;

(e)   the source of funds used to acquire the interest.

2.   Provide full particulars of your liabilities on both a capital and recurring basis, including, in relation to each liability:

(a)   a full description of the liability including the nature of that liability and the amount of that liability;

(b)   the name of the person or institution to which the liability is owed.

Catchwords:

CRIMINAL LAW – proceeds of crime – restraining orders

Legislation Cited:

Criminal Assets Recovery Act 1990 (NSW) ss 4, 6, 10A, 10C, 22, 27, 28A

Drug Misuse and Trafficking Act 1985 (NSW) s 25

Uniform Civil Procedure Rules 2005 (NSW)

Cases Cited:

Nil

Texts Cited:

Nil

Category:

Procedural rulings

Parties:

New South Wales Crime Commission (Plaintiff)
Thi Nga Nguyen (Defendant)

Representation:

Counsel:
S Askew - Ex parte (Plaintiff)

Solicitors:
Legal Unit, New South Wales Crime Commission (Plaintiff)

File Number(s):

2023/60293

Publication restriction:

Nil

Judgment

1. The plaintiff seeks a restraining order under section 10A of the Criminal Assets Recovery Act 1990 (NSW) pending the making of forfeiture orders under section 22 of the Act, a proceeds assessment order under section 27 and an unexplained wealth order under section 28A of the Act.

2. The summons is supported by an affidavit of Ryan James Bull sworn 22 February 2023. Mr Bull is an authorised officer of the plaintiff as defined in section 4(1) of the Act. Section 10A(5) of the Act requires the court to make an order if the application is supported by an affidavit of an authorised officer setting out the matters contained in that subsection and stating the grounds on which the suspicion referred to therein is based, and the court considers that there are reasonable grounds for the suspicion.

3. Mr Bull deposes to having a suspicion and belief that the defendant has engaged in serious crime-related activity, being supplying not less than the indictable quantity of a prohibited drug being Cannabis leaf, contrary to section 25(1) of the Drug Misuse and Trafficking Act 1985 (NSW). That being a drug trafficking offence it falls within the definition of section 6(2) of the Criminal Assets Recovery Act and in that way it is within the definition of serious criminal offence pursuant to section 6(2) of the Act.

4. Mr Bull bases his suspicion principally on receiving a facts sheet prepared by the police involved in the investigation of the defendant.

5. Mr Bull sent an email to Detective Senior Constable Cao Nguyen and asked if he was the officer-in-charge of the matter and the person who drafted the facts sheet, if to the best of Senior Constable Nguyen's knowledge and belief the contents of the facts sheet were true, and whether the facts sheet was prepared based on information obtained by the police as a result of the investigation described in the facts sheet. Senior Constable Nguyen responded with affirmative answers to all of those questions.

6. Mr Bull has also sighted a bail report being the criminal history of the defendant, and that bail report discloses that on 5 October 2022 the defendant was convicted of the drug supply offence and was sentenced to an 18 month community correction order with 200 hours of community service.

7. Mr Bull also gives evidence of the searches that he has done into various real and personal property owned by the defendant.

8. I also have read the facts sheet annexed to Mr Bull's affidavit and as a result I am satisfied that the suspicion held by him that the offence was committed is a reasonably held belief.

9. The plaintiff asks that orders be made today without prior notice to the defendant and does so on the basis of Mr Bull's knowledge about the way property may be disposed of at short notice. I am satisfied in the circumstances that it is appropriate that orders should be made without prior notice to the defendant. The defendant has her rights under section 10C of the Act to review those orders.

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Decision last updated: 23 February 2023