Legal Research
Cases
NSW Crime Commission v Chen

NSW Crime Commission v Chen

Case [2017] NSWSC 943 17 July 2017

Limitation Periods

Admissibility of Evidence

Restraining Orders

Statutory Interpretation

Criminal Law

No judgment structure available for this case.

Type to search within this case.

Supreme Court

New South Wales

Medium Neutral Citation: NSW Crime Commission v Chen [2017] NSWSC 943
Hearing dates: 26 and 27 April 2017
Date of orders: 17 July 2017
Decision date: 17 July 2017
Jurisdiction: Common Law
Before: Schmidt J
Decision:
The further restraining orders which the Commission seeks under s 10A must be made and Ms Chen’s s 10C application refused.

The usual order as to costs under r 42.1 is that costs as agreed or assessed follow the event. In this case that is an order in favour of the Commission. The parties will be heard if some other order is sought.
Short minutes of the orders reflecting the conclusions reached should be filed within 7 days.
Catchwords:
PROCEDURE – Criminal Assets Recovery Act 1990 (NSW) – restraining orders – notice of motion seeking to set aside restraining orders and summary orders – notice of motion seeking further restraining orders – proper construction of s 10C of the Criminal Assets Recovery Act – whether the 2014 s 10A order should be set aside – whether evidence obtained from the examination in 2014, after the dismissal of the charge, had been obtained in accordance with law and whether it was available to Crime Commission to rely on, in forming suspicions as to whether “serious crime related activity” was engaged – whether further orders under s 10A should be made – whether the Briginshaw test applies to an application under s 10A – further restraining orders to be made – s 10C application refused
STATUTES – acts of parliament – interpretation – s 10C of the Criminal Assets Recovery Act 1990 (NSW)
Legislation Cited: Civil Procedure Act 2005 (NSW)
Crime Commission Act 2013 (NSW)
Criminal Assets Recovery Act 1990 (NSW)
Criminal Assets Recovery Amendment Act 2009 (NSW)
Drug Misuse and Trafficking Act 1985 (NSW)
Evidence Act 1995 (NSW)
Uniform Civil Procedure Rules 2005 (NSW)
Cases Cited: Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345; [2012] HCA 17
Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618; [1968] HCA 1
Briginshaw v Briginshaw (1988) 60 CLR 336; [1938] HCA 34
Burge v Burge [2015] NSWCA 289
George v Rockett (1990) 170 CLR 104; [1990] HCA 26
Henderson v Queensland (2014) 255 CLR 1; [2014] HCA 52
International Finance Trust Company Limited v New South Wales Crime Commission (2009) 240 CLR 319; [2009] HCA 49
Moore v R [2016] NSWCCA 260
NSW Crime Commission v Chen (Supreme Court (NSW), Button J, 4 March 2014, unrep)
New South Wales Crime Commission v Lee and Ors [2010] NSWSC 1012
Project Blue Sky v Australian Broadcasting Authority (1998) 194 CLR 355; [1998] HCA 28
Queensland Bacon Proprietary Ltd v Rees (1966) 115 CLR 266 at 303; [1966] HCA 21
Resort Hotels Management Pty Ltd v Resort Hotels of Australia Pty Ltd (1991) 22 NSWLR 730
State of NSW v Kable (2013) 252 CLR 118; [2013] HCA 26
Texts Cited: New South Wales…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading NSW Crime Commission v Chen

Details

AGLC: NSW Crime Commission v Chen [2017] NSWSC 943
Case: [2017] NSWSC 943
Decision Date: 17 July 2017

CaseChat Overview and Summary

The NSW Crime Commission sought to set aside restraining orders previously made under the Criminal Assets Recovery Act 1990 (NSW). The court was required to determine the proper construction of section 10C of the Act in the context of the application to set aside the restraining orders. The court also had to decide whether evidence obtained from an examination conducted in 2014, following the dismissal of charges, complied with legal standards and could be used by the Crime Commission to form suspicions about potential "serious crime related activity." Additionally, the court needed to determine whether further restraining orders should be made and whether the Briginshaw test applied to an application under section 10A of the Act.

The court examined the language and purpose of section 10C and concluded that it did not permit setting aside the restraining orders. The court found that the evidence obtained in 2014 could be relied upon by the Crime Commission. The Briginshaw test was not deemed applicable to an application under section 10A. The court determined that the evidence provided sufficient grounds to suspect serious crime-related activity, justifying the imposition of further restraining orders.

The court refused the application to set aside the restraining orders and granted the application for further restraining orders. The evidence obtained in 2014 was deemed lawful and relevant. The court's decision upheld the restraining orders and authorised the Crime Commission to continue its investigation based on the available evidence.

Orders