New South Wales Crime Commission v Vu

The New South Wales Crime Commission (the appellant) appealed to the Court of Appeal of New South Wales against a decision of the Supreme Court of New South Wales. The dispute concerned the requirements for obtaining a restraining order under the *Criminal Assets Recovery Act 1990* (NSW). The appellant sought to freeze assets belonging to Quoc Hoi Vu and Sinh Thi Tran, alleging they were proceeds of crime.

The Court of Appeal was required to determine whether the affidavit evidence filed by the appellant established reasonable grounds for suspicion that the property in question was derived from or otherwise related to criminal activity, as required by section 10 of the *Criminal Assets Recovery Act 1990*. A further issue was the nature of the appeal itself, specifically whether the first instance decision was an exercise of discretion or a judgment based on facts, and how that characterisation affected the principles applicable to the appeal.

The Court of Appeal held that the affidavit evidence was insufficient to establish reasonable grounds for suspicion. It clarified that the mere fact that a police officer had issued a charge against a person was not, in itself, sufficient to establish reasonable grounds for suspicion under section 10. The Court applied the principles from *Warren v Coombes*, noting that an ex parte determination should be treated as an inference from facts, and that the evidence must demonstrate a sufficient factual basis for the suspicion. The Court also indicated that in interlocutory proceedings, an affidavit need not identify the ultimate source of a statement, but the underlying factual basis for the suspicion must be evident.

The Court of Appeal granted leave to appeal, allowed the appeal, and made orders pursuant to section 10 of the *Criminal Assets Recovery Act 1990* restraining the disposal of interests in property by Quoc Hoi Vu and Sinh Thi Tran. Further orders were made for examinations on oath concerning their affairs and for them to furnish statements detailing their property interests and liabilities.