New South Wales Crime Commission v Vo

[2019] NSWSC 1543

Supreme Court

New South Wales

Medium Neutral Citation:

New South Wales Crime Commission v Vo [2019] NSWSC 1543

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 6 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 Dat Van Vo, including the interest in property in the property specified in Schedule One hereto and Schedule Two hereto.

 

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

 

5.   Liberty is granted to the Plaintiff and Dat Van Vo to apply on three (3) days’ notice.

 

6.   The costs of obtaining these orders shall be costs in the cause.

 

7.   These proceedings be listed for mention before the Common Law Registrar at 9:00am on 24 February 2020.

 

8. 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
The whole of the property described as Lot 19 in Deposited Plan 7345 at Springwood, Local Government Area Blue Mountains, Parish of Coomassie, County of Cook, also known as 16 Moorecourt Avenue, Springwood New South Wales 2777 and registered in the name of Dat Van Vo as sole owner.

 

SCHEDULE TWO
2018 Toyota Hilux 4 with New South Wales registration number DVM77G and registered in the name of Dat Van Vo.

 

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:

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)
Dat Van Vo (Defendant)

Representation:

Counsel:
S Santhikumar – Ex parte (Plaintiff)

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

File Number(s):

2019/349961

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 the Act. The summons is supported by an affidavit of Katie Elaine Bourne, sworn 6 November 2019. Ms Bourne is an authorised officer of the plaintiff.

2. Section 10A(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 grounds 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, being the cultivation of a prohibited plant, being cannabis, not less than the commercial quantity, an offence contrary to s. 23(2)(a) of the Drug Misuse and Trafficking Act 1985 (NSW), and knowingly partaking in enhanced indoor cultivation of cannabis for commercial purposes, contrary to s. 23(1)(A) of the Drug Misuse and Trafficking Act. Both of those offences are serious criminal offences under s. 6(2)(b) of the Criminal Assets Recovery Act.

4. Ms Bourne bases her suspicion, principally, on reading the Facts Sheet prepared by the police in relation to the charging of the defendant. Ms Bourne sent an email to Senior Constable Christopher Bradley, who was the arresting officer. She asked if the officer was the officer who drafted the Facts Sheet, or if he was aware of the contents of the Facts Sheet. She asked him if, to the best of his knowledge and belief, the contents of the Facts Sheet were true, and she asked if the Facts Sheet was prepared based on information obtained by the police as a result of their version. Senior Constable Bradley said that he was aware of the contents of the Facts Sheet, that the contents were true and accurate, and that the Facts Sheet was prepared from information obtained by the police in the investigation.

5. I have read the Facts Sheet and I am satisfied that Ms Bourne's suspicion is reasonably held. I note that both the defendant and a co-accused were located inside the premises where the hydroponic cultivation was discovered by the police.

6. The plaintiff also seeks that the 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 unregistered mortgages could be entered into in relation to real estate and the ease with which motor vehicles could be disposed of, or forms backdated notifying the RMS of their disposal.

7. I consider that it is appropriate that the orders should be made in the absence of the defendant. The defendant has his rights under s. 10C of the Act to review the orders.

8. I note the usual undertaking is given by the solicitor for the plaintiff.

9. On that basis, I make orders into terms of paragraphs 1, 2, 4, 6 and 8 of the order provided to me and signed by me.

10. I grant the leave and liberty in paragraphs 3 and 5.    

11. The proceedings are stood over before the Common Law Registrar at 9am on 24 February 2020.

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Decision last updated: 08 November 2019