New South Wales Crime Commission v Tran

[2017] NSWSC 957

Supreme Court

New South Wales

Medium Neutral Citation:	New South Wales Crime Commission v Tran [2017] NSWSC 957
Hearing dates:	30 June 2017
Date of orders:	30 June 2017
Decision date:	18 July 2017
Jurisdiction:	Common Law
Before:	Walton J
Decision:	On the evidence before the Court, the Commission has established that a restraining order should be made under s 10A and ancillary orders be made under s 12(1) of the Act. I order accordingly.
Catchwords:	CRIMINAL PROCEDURE – Criminal Assets Recovery Act 1990 (NSW) – proceeds of crime – restraining orders – ancillary orders – ex parte – orders made
Legislation Cited:	Criminal Assets Recovery Act 1990 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Electricity Act 1995 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Category:	Principal judgment
Parties:	New South Wales Crime Commission (Plaintiff) Thi Tranh Thanh Tran (Defendant)
Representation:	Solicitors: New South Wales Crime Commission (Plaintiff)
File Number(s):	2017/00195814

EX TEMPORE Judgment

1. This matter concerns an application for orders by the New South Wales Crime Commission (“the Commission”) pursuant to ss 10A and 12(1) of the Criminal Assets Recovery Act 1990 (NSW) ("the Act").

2. Section 10A of the Act enables an application to be made ex parte for a restraining order. Section 12 permits the Court, when making a restraining order, to make any ancillary orders that the Court considers appropriate. These orders may include, as sought in the present matter, an order for the examination under oath of the owner of an interest in property that is subject to the restraining order.

3. Having heard submissions by Mr Stephen Vorreiter, solicitor for the Commission in relation to the effect of s 12(3) of the Act today, I am satisfied that proceedings both under ss 10A and 12(1) of the Act may heard ex parte.

4. The application is supported by a statement of facts and circumstances pursuant to r 1.26 of the Uniform Civil Procedure Rules2005 and an affidavit of Katie Elaine Bourne sworn on 28 June 2017. Ms Bourne, a financial investigator with the Commission, deposed that she is an authorized officer as defined in s 4(1) of the Act and suspected that the defendant, Thi Tranh Thanh Tran, had engaged in a serious criminal related activity, namely, enhanced indoor cultivation of a prohibited plant for a commercial purpose contrary to s 23(1A) of the Drug Misuse and Trafficking Act1985 (NSW) ("DMT Act"), cultivate prohibited plant of a greater than commercial quantity contrary to s 23(2)(A) of the DMT Act and abstract electricity contrary to s 64 of the Electricity Act 1995 (NSW). It was deposed, and I accept, that the offences so described constitute serious criminal offences pursuant to ss 6(2)(b) and 6(2)(d) of the Act.

5. The grounds upon which Ms Bourne held her suspicion are set out in her affidavit. In particular, she was provided with and accepted two police facts sheets (“the fact sheets”) that described the suspected serious criminal activity. The fact sheets described as the “Leumeah” and “Bankstown” fact sheets, respectively, related to the geographic locations in which the offences allegedly occurred. By an e-mail communication with the officers who drafted the respective fact sheets Ms Bourne ascertained that the officers considered to the best of their knowledge and belief, that the contents of the Facts Sheets were true. Further, it was noted that those Facts Sheets were based upon information obtained by police as a result of their investigations.

6. It follows that the first two requirements of s10A(5) of the Act are met in the present matter. The relevant authorised officer suspects that the defendant, whose interest was the subject of the application, has engaged in a serious crime related activity and her affidavit stated the grounds upon which the suspicion was based.

7. There are three further requirements of the provisions of s 10A of the Act which required attention before an order may be made.

1. First, the Court is required to be satisfied pursuant to s 10A(3) of the Act that the defendant is domiciled in New South Wales and that the property in respect of which the restraining order is sought is situated in New South Wales. On the affidavit of Ms Bourne, I am satisfied that this criteria has been met in the present case.

2. Secondly, s 10A(4) of the Act enables notice to be given the defendant, if the Court thinks fit to, before an order is made. In light of Ms Bourne's evidence I do not consider such notice should be given having regard to the capacity of persons to enter into unregistered mortgages in relation to real estate, to quote Ms Bourne, "very quickly" and thereby attempting to defeat the operation of the Act.

3. The final requirement is the Court must be satisfied that there are reasonable grounds for the suspicion held by the authorised officer. In that respect, I have considered the Leumeah and Bankstown Fact Sheets together with Ms Bourne's evidence and I am satisfied there are reasonable grounds for the suspicion deposed by Ms Bourne.

8. The charges were laid after searches by police of a house owned by the defendant at Leumeah and the family home of the defendant at Bankstown. The defendant was located at the Leumeah premises at the time of the police search. Those premises contained four dedicated growing rooms upstairs and two dedicated rooms downstairs in the garage area in which were located a significant number of cannabis plants. Similar discoveries were made in the Bankstown premises. Investigations show that the electricity to the Leumeah premises had been bypassed as it had been intercepted from the mains power before the house metre.

9. As earlier mentioned, by s 12(1) of the Act, the Court may, when making a restraining order, make any ancillary orders that the court considers appropriate. By s 12(1)(b)(i) of the Act the Court may order the examination on oath of the owner of an interest in the property that is the subject of a restraining order as to the affairs of the owner including the nature and location of any property in which the owner has an interest. That examination may be conducted by, inter alia, an officer of the court prescribed by the rules of the Court. In the present matter, the orders sought by the Commission proposed that the defendant be examined on oath before the Registrar of the Court. That order is permissible under the Act.

10. On the evidence before the Court, the Commission has established that a restraining order should be made under s 10A and ancillary orders be made under s 12(1) of the Act. I order accordingly.

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Decision last updated: 18 July 2017