New South Wales Crime Commission v Tran

[2016] NSWSC 1526

Supreme Court

New South Wales

Medium Neutral Citation:	New South Wales Crime Commission v Tran [2016] NSWSC 1526
Hearing dates:	28 October 2016
Date of orders:	28 October 2016
Decision date:	28 October 2016
Jurisdiction:	Common Law
Before:	Schmidt J
Decision:	Orders sought made.
Catchwords:	CRIMINAL LAW - procedure - restraining orders sought - ex-parte - orders made
Legislation Cited:	Criminal Assets Recovery Act 1990 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Uniform Civil Procedure Rules 2005 (NSW)
Category:	Procedural and other rulings
Parties:	New South Wales Crime Commission (Plaintiff) Dinh Hung Tran (Defendant)
Representation:	Solicitors: Ms E Goh New South Wales Crime Commission (Plaintiff)
File Number(s):	2016/322618
Publication restriction:	None

Judgment

1. By summons which I grant leave to file today, 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, Dinh Hung Tran. Other orders under s 12(1), ss 22, 28A and 22AA of the Act were also there sought. The orders pressed were for restraining orders under s 10A and orders under s 12(1).

2. The application was supported by an affidavit sworn on 27 October 2016 by Jonathan Lee Spark, the Commission’s Director (Financial Investigations) and an authorised officer under the 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).

3. For the reasons which follow, I am satisfied that the orders sought should be made.

4. The property sought to be restrained is identified in a schedule to the summons as real property located at Bankstown, registered in Dinh Hung Tran’s name, as well as vehicles registered in that name and funds held in Westpac accounts in that name.

5. Mr Spark deposed that he suspected that Dinh Hung Tran had engaged in serious crime related activity or activities within the definition of a “serious crime related activity” in s 6 of the Criminal Assets Recovery Act, namely, cultivate prohibited plant (cannabis) contrary to s 23(2)(a) of the Drug Misuse and Trafficking Act1985 (NSW).

6. Mr Spark there also gave a detailed explanation of the basis upon which he came to hold that suspicion. It rested on a consideration of documents obtained by employees of the Commission, including a court attendance notice and facts sheet created by Detective Scard; questions which Mr Spark posed to the detective and responses which he gave; as well as searches conducted of the records held in the COPS database, which showed that on 30 September 2016 Dinh Hung Tran had been charged with the offence dealt with in the Facts Sheet, which was annexed to the affidavit.

7. Mr Spark had also had regard to information obtained as the result of searches conducted of the LPI, Veda and, RMS databases in relation to the property of Dinh Hung Tran, as well as information provided by Westpac as to bank accounts held in that name.

8. Mr Spark deposed to his 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; to dispose of motor vehicles; or to backdate forms notifying the RMS of disposal of such a vehicle; and to dispose of funds held in bank accounts, in order to defeat the operation of the Act. He also deposed to his view that, given the serious nature of the criminal activity in which Dinh Hung 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.

9. 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 Mr Spark has deposed.

10. In this case I am satisfied that the material relied on well establishes that there are reasonable grounds for the suspicions to which Mr Spark 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. In the circumstances, I have concluded that it was also appropriate to make the other orders sought.

11. I have reached those conclusions on a consideration of the material relied on, including what was disclosed in the Facts Sheet, as to which Mr Spark deposed that he believed in the truth of its contents.

12. That document indicated that Dinh Hung Tran was arrested and charged following an investigation into copper theft in an industrial area, during which a vehicle came to police attention, parked at night outside a large industrial shed, from which sounds of movement were detected. On entry a large structure was found and a strong smell of cannabis detected. A number of males present attempted to flee. Dinh Hung Tran was one of those pursued and arrested. A large, sophisticated hydroponic cannabis operation was found inside the structure, with some 566 plants later seized from what proved to be a sophisticated growing environment there discovered. Power had been diverted around the meter board, with stolen energy being used to supply 6 large rooms equipped with growth lamps, fans and filtration devices. Water was also being supplied to the pot of every plant. The estimated total value of the plants seized was in excess of $2 million. Cannabis heads were also found on some 30 square metres of drying rack.

13. Dinh Hung Tran was charged with a cultivation offence, but it was expected that the amount of cannabis would be found to exceed the commercial quantity with the result that a charge of supply prohibited drug would then also be laid against him.

14. All of these matters, I am satisfied, provided a proper basis for the making of the orders sought.

15. On the evidence, I am also satisfied that the Commission ought not to be required to give notice of this application and that it should be dealt with ex parte. In coming to that view, I 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

16. Accordingly, I make orders in the terms sought, as well as ordering that the Commission serve a copy of this judgment on Dinh Hung Tran.

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Decision last updated: 31 October 2016