New South Wales Crime Commission v Tran
[2019] NSWSC 230
•08 March 2019
Supreme Court
New South Wales
Medium Neutral Citation: New South Wales Crime Commission v Tran [2019] NSWSC 230 Hearing dates: On the papers Date of orders: 08 March 2019 Decision date: 08 March 2019 Jurisdiction: Common Law Before: Schmidt J Decision: Orders in terms sought made.
Catchwords: CRIMINAL LAW - procedure - restraining orders sought - ex-parte - orders made Legislation Cited: Crimes Act 1900 (NSW)
Criminal Assets Recovery Act 1990 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Uniform Civil Procedure Rules 2005 (NSWCategory: Procedural and other rulings Parties: New South Wales Crime Commission (Plaintiff)
Thien Quang Tran (also known as Braxton Lee) (Defendant)Representation: Solicitors:
New South Wales Crime Commission (Plaintiff)
File Number(s): 2019/75469 Publication restriction: Nil
Judgment
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By summons which I granted leave to file, the New South Wales Crime Commission applied ex-parte, seeking restraining orders under s 10A of the Criminal Assets Recovery Act1990 (NSW), in relation to the interest in certain property of the defendant, Thien Quang Tran (also known as Braxton Lee). Other orders under ss 12(1) and 28A of the Act were also sought, as well as orders under s 101 of the Civil Procedure Act2005 (NSW).
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The orders pressed were for restraining orders under s 10A, as well as orders under ss 10B and 12(1).
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The application was supported by an affidavit sworn on 28 February 2019 by Katie Elaine Bourne, the Commission’s Director (Assessments) and an authorised officer under the Criminal Assets Recovery Act, as well as by a statement of facts and circumstances provided in accordance with rule 1.26 of the Uniform Civil Procedure Rules 2005 (NSW).
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For the reasons which follow, I am satisfied that the orders sought should be made.
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The property sought to be restrained is identified in schedules to the summons as real property located at Blacktown registered in the name of Mr Tran.
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Ms Bourne deposed that she suspected that Mr Tran had engaged in serious crime related activity within the definition of a “serious crime related activity” in s 6 of the Criminal Assets Recovery Act, namely, supplying prohibited drugs, methylamphetamine, contrary to s 25(1) of the Drug Misuse and Trafficking Act1985 (NSW) and supplying prohibited drugs, methylamphetamine, not less than the commercial quantity contrary to s 25(2) of the Drug Misuse and Trafficking Act.
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Ms Bourne there also gave a detailed explanation of the basis upon which she came to hold those suspicions. They rested on a consideration of documents provided by the officer in charge of the investigation Detective Senior Constable Riley, including a Facts Sheet in relation to Mr Tran’s arrest; questions which Ms Bourne posed to the Detective Senior Constable and responses which he gave; as well as searches conducted of the records held in the COPS database, which showed that on 24 January 2019, Mr Tran had been charged with the offence specified in the Facts Sheet, which was annexed to the affidavit.
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Ms Bourne also had regard to information obtained as the result of searches conducted of the COPS, LRS and SAI databases in relation to Mr Tran.
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Ms Bourne deposed to her experience that in the absence of a restraining order, it is possible for people to attempt to enter into unregistered mortgages in relation to real estate very quickly, in order to attempt to defeat the operation of the Act. She was also aware that other interests in property may be identified after a restraining order is made, including bank account funds, property registered in the names of others and interests in property held outside the State.
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She also deposed to her view that, given these matters and the serious nature of the criminal activity in which Mr Tran is apparently involved, that notice should not be given of this application. That is a course available under the Act, although s 10A(4) permits a different course to be taken, if the Court thinks fit.
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Section 10A(5) requires the making of the orders sought under the Act, if the Court considers that there are reasonable grounds for the suspicions to which Ms Bourne has deposed.
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In this case, I am satisfied that the material relied on well establishes that there are reasonable grounds for the suspicions to which Ms Bourne has deposed and that the requirements of s 10A(5) of the Act have been addressed. In that situation, the Act requires that the orders sought in relation to the property in question be made.
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In the circumstances, I have concluded that it was also appropriate to make the other orders sought.
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I have reached those conclusions after consideration of the material relied on, including what was disclosed in the Facts Sheet, as to which Ms Bourne deposed that she believed in the truth of its contents.
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That document revealed that Mr Tran became the subject of a strike force investigation into his commercial drug supply, with associates, during which evidence was gathered and it was established that he had on a number of different occasions supplied methylamphetamine to a particular purchaser. He was eventually charged with one count of supplying an indictable quantity of methylamphetamine and three counts of suppling a large commercial quantity of that drug, of which there was various surveillance evidence.
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All of these matters, I am satisfied, provide a proper basis for the making of the orders sought.
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On the evidence, I am also satisfied that the Commission ought not to be required to give notice of this application to Mr Tran and that it should be dealt with ex-parte.
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In coming to that view, I have had regard to the provisions of s 10C of the Act, which permits an affected person to apply to have a restraining order set aside, as well as the liberty granted in the order to the parties to apply to the Court on three days’ notice.
ORDERS
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Accordingly, I make orders in the terms sought, as well as ordering that the Commission serve a copy of this judgment on Mr Tran.
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Decision last updated: 09 April 2019
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