New South Wales Crime Commission v Tran

[2019] NSWSC 1541

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crime Commission v Tran [2019] NSWSC 1541

Hearing dates:

7 November 2019

Date of orders:

07 November 2019

Decision date:

07 November 2019

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 Katie Elaine Bourne sworn 5 November 2019, 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 Van Duc Tran, 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 Van Duc Tran shall be examined on oath before a Registrar of the Court concerning his affairs, including the nature and location of any property in which he has an interest.

 

3.   Leave is granted to the Plaintiff to obtain from the Registry dates for the examination ordered in Order 2 above.

 

4. Pursuant to section 10B(2) of the Criminal Assets Recovery Act 1990 the New South Wales Trustee and Guardian shall take control of all the interest of Van Duc Tran in the property specified in Schedule One hereto.

 

5. Pursuant to section 12(1)(c1) of the Criminal Assets Recovery Act 1990 Van Duc Tran shall furnish to the Plaintiff, within twenty one (21) days after service of a sealed copy of these orders on Van Duc Tran, a statement verified by oath of Van Duc Tran setting out the particulars sought in Schedule Three hereto.

 

6.   Liberty is granted to the Plaintiff and Van Duc Tran 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 Monday, 24 February 2020.

 

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

 

Cash in the approximate amount of $600,000 seized by New South Wales Police on 16 October 2019 from a Mitsubishi Triton motor vehicle with New South Wales registration number AO26FC driven by Van Duc Tran at the time of his arrest.

 

SCHEDULE TWO

 

2007 Toyota Aurion motor vehicle with New South Wales registration number CNP05L and registered in the name of Van Duc Tran.

 

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:

Crimes Act 1900 (NSW)
Criminal Assets Recovery Act 1990 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)

Category:

Procedural and other rulings

Parties:

New South Wales Crime Commission (Plaintiff)
Van Duc Tran (Defendant)

Representation:

Counsel:
S Santhikumar – Ex parte (Plaintiff)

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

File Number(s):

2019/349942

Judgment

1. The plaintiff seeks a restraining order under s. 10A of the Criminal Assets Recovery Act 1990 (NSW), pending the making of orders under s. 22, 27 and 28A of that Act. The summons is supported by an affidavit of Katie Elaine Bourne, sworn 5 November 2019. Ms Bourne is an authorised officer of the plaintiff.

2. Section 10(A)(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 ground on which the suspicion referred to therein is based, and the Court considers there are reasonable grounds for the suspicion.

3. Ms Bourne deposes to a suspicion that the defendant has engaged in serious crime related activity, namely, dealing with property suspected of being the proceeds of crime, contrary to s. 193C(1) of the Crimes Act 1900 (NSW). That is an offence punishable by imprisonment for five years, involving money laundering and, in that way, falls within the definition of “serious criminal offence” pursuant to s. 6(2)(d) of the Criminal Assets Recovery Act.

4. Ms Bourne bases her suspicion, principally, on reading the Facts Sheet prepared by the police in preparation for the appearance in court of the defendant. Ms Bourne sent an email to Detective Senior Constable Peter Briscoe, whom she understood to be an officer involved in the investigation into the defendant. She asked him if he was the officer who had drafted the Facts Sheet, whether, to the best of his knowledge and belief, the contents of the Facts Sheet were true and if the Facts Sheet was prepared based on information obtained by the police as a result of the investigation described in the Facts Sheet. Detective Senior Constable Briscoe forwarded an email answering those questions in the affirmative.

5. I have read the Facts Sheet and I am satisfied from what appears therein that the suspicion held by Miss Bourne is reasonably held.

6. The plaintiff seeks an order that the NSW Trustee & Guardian take control of all of the interest of the defendant in the property described in schedule 1 to Ms Bourne's affidavit, which was the amount of cash of approximately $600,000, seized by the police at the time of the arrest of the defendant. The basis for that is that the cash will earn interest if held by the NSW Trustee & Guardian and not if retained by the New South Wales Police and, further, that if the cash was returned to the defendant in the interim, it may be concealed or disposed of.

7. I am satisfied that such an order should be made.

8. The plaintiff also seeks that the present orders be made without prior notice to the defendant. It does so based on Ms Bourne's experience at the Commission which demonstrated the ease with which persons can dispose of motor vehicles, or backdate forms notifying the Roads and Maritime Services of the disposal of the motor vehicles.

9. I am satisfied, in the circumstances, that it is appropriate that orders should be made without prior notice to the defendant. The defendant has his right under s. 10C of the Act to review the orders.

10. I note the usual undertaking given by the solicitor for the plaintiff.

11. On that basis, I make orders in terms of paragraphs 1, 2, 4, 5, 7 and 9 of the draft order provided to me.

12. I grant the leave and liberty referred to in paragraphs 3 and 6.

13. The proceedings are stood over for mention before the Common Law Registrar at 9am on Monday, 24 February 2020.

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Decision last updated: 08 November 2019