New South Wales Crime Commission v Nguyen

By summons filed on 1 July 2015, the plaintiff seeks various orders, including an order pursuant to s 10A of the Criminal Assets Recovery Act 1990 (NSW) (the Act) restraining dealings with any interest in property, including certain property described in Schedule One to the summons; orders pursuant to s 12(1)(b)(i) of the Act authorising the examination of the defendant concerning his financial affairs; orders pursuant to s 12(1)(b1) authorising the examination of Thuan Thi Huynh concerning the defendant’s financial affairs; an order pursuant to s 12(1)(c1) of the Act requiring the defendant to furnish to the plaintiff within 21 days a statement verified on oath setting out full particulars of all his property; and a proceeds assessment order pursuant to s 27 of the Act that the defendant pay to the Treasurer an amount assessed by the Court as the value of the proceeds of the defendant’s illegal activities within the period of six years before the filing of the application.

The orders sought in the summons, apart from the proceeds assessment order under s 27 of the Act referred to above, were sought ex parte on the day of filing the summons, 1 July 2015.

In support of its application the plaintiff relied on the following documents:

Section 10A of the Act relevantly provides:

The plaintiff’s application for an order under s 10A was made ex parte, as it is entitled to do under s 10A(1). I considered the documents relied upon in support of the application in chambers.

The plaintiff’s application is supported by the affidavit of Jonathan Lee Spark sworn 30 June 2015. Mr Spark, who is an authorised officer of the plaintiff within the meaning of s 4(1) of the Act, deposes to his suspicion that the defendant has engaged in serious crime-related activity or crime-related activities, being: supplying a prohibited plant (cannabis) of an amount greater than the indictable quantity of that drug contrary to s 23(1)(b) of the Drug Misuse and Trafficking Act 1985 (NSW) (the DMTA) and supplying a prohibited drug (cannabis) greater than the indictable quantity of that drug contrary to s 25(1) of the DMTA. These are serious criminal offences within the meaning of s 6(2)(b) of the Act because s 6(3) provides that offences under ss 23 and 25 of the DMTA are “drug trafficking offences”. The Facts Sheet records that the defendant was charged with the offences described therein on 21 May 2015 following the execution of a search warrant at his residence in Mount Pritchard.

Mr Spark sets out the grounds for his suspicion in [4] of his affidavit. The deponent has annexed correspondence with Constable Shantel Fowler, who had prepared the Facts Sheet on the basis of information provided by investigating police officers. Constable Fowler informed Mr Spark that the facts set out are, to the best of her knowledge and belief, true.

Mr Spark also deposed in his affidavit to investigations he caused to be made into the defendant’s property interests.

Section 10A(5) provides, in substance, that I am obliged to make the order sought if the application is supported by an affidavit of an authorised officer stating that the officer suspects that the defendant has engaged in a crime related activity and setting out the grounds for the suspicion and I consider that, having regard to the matters contained in the affidavit, there are reasonable grounds for any such suspicion.

In all the circumstances I am satisfied that Mr Spark’s affidavit meets the requirements of s 10A(5) as to the matters which he suspects.

I am also satisfied, having regard to Mr Spark’s affidavit, that there are reasonable grounds for his suspicion. I have been guided by what the High Court said in George v Rockett [1990] HCA 26; 170 CLR 104 at [14].

I do not consider that it would be appropriate to require the plaintiff to notify the defendant of the application under s 10A(4) in light of Mr Spark’s evidence. I accept Mr Spark’s evidence as to the speed with which real estate can be encumbered, which tends to have the effect of defeating the operation of the Act and restraining orders made under it.

The defendant is domiciled in New South Wales and the real property is situated in New South Wales. Accordingly, the Commission is entitled to make this application for a restraining order: s 10A(3).

The orders, other than the restraining order, are designed to ensure that the plaintiff is apprised of the full extent of the defendant’s property interests. These orders are, accordingly, ancillary to the restraining order which, in terms, restrains dealing with any interest the defendant may have in property as defined by s 7 of the Act. The Statement of Facts and Circumstances states that the plaintiff also seeks, in its summons, a proceeds assessment order pursuant to s 27 of the Act.

In all the circumstances, I consider it to be appropriate to make the orders.

I note the undertaking given by the solicitor for the plaintiff, being the usual undertaking as to damages.

On the basis of that undertaking I make orders in terms of paragraphs 1 to 8 of the draft minute of order provided to me by the plaintiff.