New South Wales Crime Commission v Tran

[2018] NSWSC 2053

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crime Commission v Tran [2018] NSWSC 2053

Hearing dates:

12 September 2018

Date of orders:

12 September 2018

Decision date:

12 September 2018

Jurisdiction:

Common Law

Before:

Rothman J

Decision:

(1) Pursuant to s 10A of the Criminal Assets Recovery Act 1990 (NSW) (“the Act”) 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 s 7 of the Act) of Van Cao Tran, including the interest in property in the property specified in Schedule One.

 

(2) Pursuant to s 12(1)(b)(i) of the Act Van Cao 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 s 12(1)(c1) of the Act Van Cao Tran shall furnish to the Plaintiff, within twenty one (21) days after service of a sealed copy of these orders on Van Cao Tran, a statement verified by oath of Van Cao Tran setting out the particulars sought in Schedule Two.

 

(5)   The balance of the Summons be listed for Directions before the Common Law Registrar at 9am on Monday 4 February 2019.

 

(6)   Liberty is granted to the Plaintiff and Van Cao Tran 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 (NSW) these orders are to take effect as of the date hereof.

Catchwords:

CRIMINAL ASSETS – reasonable suspicion – reliance of facts sheet – orders made

Legislation Cited:

Criminal Assets Recovery Act 1990 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW), s 25(2)

Category:

Procedural and other rulings

Parties:

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

Representation:

Solicitors:
S Santhikumar (Plaintiff)
Ex Parte (Defendant)

File Number(s):

2018/280261

EX TEMPORE Judgment

1. HIS HONOUR: The applicant, the New South Wales Crime Commission (hereinafter “the Commission”), applies for restraining orders in respect of an interest in the property of Van Cao Tran (hereinafter “the defendant”) pursuant to the terms of s 10 of the Criminal Assets Recovery Act 1990 (NSW) (hereinafter “the Act”). For the purposes of this application for a restraining order, the Commission relies on the Affidavit, sworn in support of this application, of 10 September 2018 by Katie Elaine Bourne.

2. That Affidavit establishes that Ms Bourne is an authorised officer for the purposes of the Act and suspects the defendant of having been engaged in serious crime related activity, namely, take part in the supply of a prohibited drug in a commercial quantity, contrary to s 25(2) of the Drug Misuse and Trafficking Act 1985 (NSW) (hereinafter “the offence”).

3. The Affidavit gives the grounds for Ms Bourne’s said suspicions. I have read the Affidavit and the facts statement which is an annexure. The facts and circumstances on which the commission relies in its application for a restraining order are:

1. The commission suspects the defendant of having engaged in serious crime related activity, namely, the offence;

2. Ms Bourne has been provided with and accepts a police facts sheet that describes the suspected serious criminal activity which Ms Bourne suspects the defendant has engaged in;

3. Ms Bourne has ascertained that the defendant has been charged with the offence described in the facts sheet; and

4. There are reasonable grounds for Ms Bourne’s suspicion that the defendant has engaged in serious crime related activity, namely, the offences.

4. I hasten to add that the Court has read the facts sheet and the evidence in relation to the offences is largely observation by police during an operation.

5. The Commission, by its Summons, is also seeking in respect of the defendant an unexplained wealth order, pursuant to the terms of s 28A of the Act, but that is not the subject of an application for orders today.

6. The facts and circumstances upon which the Commission will rely in seeking the unexplained wealth order are, nevertheless, the facts and circumstances described in the facts sheet; the result of pending investigation by the Commission, including a financial analysis of the affairs of the defendant; the evidence obtained pursuant to the examination of the defendant, pursuant to s 12 of the Act; and the evidence obtained as a result of any statement of affairs provided by the defendant pursuant to orders under s 12 of the Act.

7. In those circumstances, I am satisfied of the statutory conditions for the issuing of an order and I am satisfied that the order is appropriate. I share Ms Bourne’s assessment that the grounds for the suspicion are reasonable.

8. I make the orders sought in the draft minutes of order handed to the Court and signed, dated and initialled by me.

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Decision last updated: 09 April 2019