NSW CRIME COMMISSION v NGUYEN & ORS [2002] NSWSC 266

New South Wales Supreme Court

CITATION : NSW CRIME COMMISSION v NGUYEN & ORS [2002] NSWSC 266 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 10869/99 HEARING DATE(S) : 21 March 2002 JUDGMENT DATE : 21 March 2002

New South Wales Crime Commission (Plaintiff/Respondent)

v PARTIES : Thi Kim Loan Nguyen (First Defendant/Applicant) Thanh Van Nguyen (Second Defendant/Applicant) Quang Dan Nguyen (Third Defendant/Applicant) JUDGMENT OF : Adams J at 1

COUNSEL : Mr Ian Temby QC with Ms S M McNaughton (Plaintiff) Mr B Stratton QC with Mr G J Jones (Defendants) SOLICITORS : Mr M Giorgiutti (NSW Crime Commission) Freeman Solicitors as agents for Law Offices of Ellinghaus & Lindner (Carlton, Victoria) (Defendants) LEGISLATION CITED : Evidence Act 1995 CASES CITED : Stanley Hill v Kool [1982] 1 NSWLR 460 DECISION : Matter stood over to the holding list; Liberty to apply on three days' notice; Costs to be costs in the cause.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ADAMS J

THURSDAY 21 MARCH 2002

10869/99

THI KIM LOAN NGUYEN & ORS v NEW SOUTH WALES CRIME COMMISSION

JUDGMENT

1 HIS HONOUR: This is a matter in which proceedings have been under way since April 1999, both in this Court and in Victoria. Other proceedings involving the National Crime Authority have also been undertaken in respect of the first defendant. 2 The persons seeking access to funds reside in Victoria. The hearing of their motion seeking orders that moneys be available to pay legal expenses, since October 2001, was set down for yesterday. Affidavits were filed relating to the issues in such proceedings on the 29 April 2001. I think it was reasonable to anticipate that they would be required to give evidence on those affidavits. No evidence has been adduced, however, that they were given such advice. Their solicitor gave evidence in these proceedings and Mr Temby QC, for the NSW Crime Commission, did not suggest to him that they had been given such advice. 3 The Commission notified the applicants' solicitor on 14 March that the deponents would be required for cross-examination. This was certainly late notice and the delay was unfortunate. 4 In response to the notice that the deponents should be available for cross-examination the applicant's solicitor wrote by letter which was faxed on 18 March informing the Crime Commission that Thanh Van Nguyen and Quang Dang Nguyen were unable to attend the hearing on 20 March: first, because they were unable to afford the cost of such attendance; and, secondly, because it would place their part-time employment in jeopardy. As to Thi Kim Loan Nguyen, I accept that it is in effect or substance a condition of her bail that she not attend any point of departure from the State of Victoria and it follows that she is legally restrained from attending Court in Sydney for these proceedings. It is fair to observe, nevertheless, that an application for variation of bail could have been made for the purpose of coming to Sydney. Its chances of success cannot be assessed by me in the light of the material that I have but the availability of video conferencing facilities would, I think, have militated against such variation, if opposed. 5 The circumstances of this case are exceptional in that, unlike almost every other kind of civil litigation, the defendant has seized substantial assets of the applicants and points only to the possibility that there are other assets out of which expenses for travel interstate may be defrayed. Little assistance is therefore gained by considering the way in which the discretion under pt 38 r 9 of the Supreme Court Rules has been exercised in what I would call, respectfully, conventional civil cases. 6 It is impossible to accept that the giving of notice on 14 March does not arise from some procedural inefficiency in the Crime Commission. If adequate, it was only just adequate. On the other hand, the alternative of giving evidence by video link was not proposed by the applicants, although it is a somewhat obvious alternative. I cannot see in the circumstances of this case a proper basis under either s 63 or s 64 of the Evidence Act 1995 for admitting the affidavits of the applicants. Application is made to read the affidavits, despite the absence of the deponents, under Part 38 Rule 9 of the Supreme Court Rules. 7 In the result I find the considerations on each side to be very closely balanced. On the one hand, the application is for the release of funds to finance legal proceedings, which are not suggested to be improper or in any way vexatious and, so far as I can judge, appear to be conventional. The issues in this case are not without complexity and, in the absence of other funds being available to the applicants, it is reasonable to act upon the basis that orders for the utilisation of the seized assets for this purpose would be made in due course. In this respect, I note in particular that it is not suggested that the second and third defendants have committed any offences of any kind. I accept also, as a matter favouring the application, that very considerable legal fees have so far been expended and remain unpaid. 8 On the other hand, the likelihood that the applicants would be required for cross-examination does not seem to have been sufficiently appreciated by their legal advisor, an oversight for which, in the ordinary course of civil litigation, the party himself or herself would usually pay the price. At the same time, the Crime Commission seems to have proceeded upon the basis that it would not compromise in any sense its strict legal rights and it is difficult to accept without a degree of scepticism the submission of the importance of cross-examining these witnesses in person where a relatively cheap device is available which would scarcely place at risk anything but a tiny proportion of the funds seized and would be an unanswerable case should the applicants decline to take advantage of it, namely, agreement to fund a video link. 9 I hasten to add that of course the Crime Commission is not obliged to make an offer to fund a video link and I would not place emphasis on its insistence upon the preservation of every part of the funds it has seized, even at the cost of procedural inconvenience. However, as I say, such an attitude does, to my mind, reflect upon the cogency of the argument that the Commission sees it as vital to test the veracity of the deponents by cross-examination. 10 In the end I think the question of leave must be considered at large and falls to be determined by the Judge's sense of the justice of the case. 11 So far as Thi Kim Loan Nguyen is concerned the legal position is that she has no choice about remaining in Victoria but she has made no application to give her evidence by video link. As I understand it, her case is that she cannot afford to do so. 12 I notice that in his judgment of yesterday refusing an adjournment Whealy J said: "I do not discount the fact that perhaps an application can be made to the Judge who hears it, if a judge can be appointed, that he might consider using video link facilities if in fact the deponents are not here. I do think, however, that apart from the asserted impecuniosity, sufficient notice was given for them to attend". 13 Nothing that I have said should be taken as indicating any dissent from his Honour's observation. However although, as I said, the matter is finely balanced, I think that the Court should favour the hearing of evidence properly tested. Where that is not possible for one reason or another, to silence an applicant from saying anything about matters which affect his or her property is to my mind a very serious step to take. 14 Accordingly, although I do so with some hesitation, I consider that I should give leave for the affidavits to be read without requiring the attendance of the deponents. I would be prepared, however, to give sympathetic consideration to an application by the Crime Commission for an adjournment to permit arrangements to be made by video link for the purpose of cross-examining the deponents. 15 The applicants have sought an adjournment for that purpose. It was in substance the application made yesterday to Whealy J and I do not consider that it would be right for me to grant that application in the circumstances, although I should hasten to add that, of course, I am not bound by his Honour's ruling. 16 When the affidavits are read the question of what weight should be accorded to them will become a live issue. I do not see from the applicants' point of view how that position can be avoided. However, in the light of the evidence before me the question of who should pay for that link will remain a live issue even after applying a necessary degree of scepticism to the affidavit evidence. I should add that, as I see the matter, though this is not the subject of explicit submission on either side, I would be minded to exercise the sort of general power referred to in Stanley Hill v Kool [1982] 1 NSWLR 460 at 465 where his Honour Reynolds J said (pointing out that the Rules do not mention at whose cost the expense of requiring a witness for cross-examination should be borne): "The matter will generally be of little moment where local witnesses are involved but in a case where a dispute arises its resolution must be in the hands of the judge whose discretion is not limited by any proscription. This being so the party desiring to cross-examine could be ordered in an appropriate case to meet the expenses of attendance of a witness in the first instance. This would be to follow the practice which the Rules required before 1972 in circumstances where substantial assets are seized and the amounts are relatively small." 17 This might well be an appropriate order in the circumstances of this case. Indeed, I should indicate, although it is probably implicit in what I have said, that I would regard such an order as being virtually inevitable, although not necessarily so in relation to Thi Kim Loan Nguyen because of her bail condition. 18 TEMBY: We are not seeking an adjournment of this hearing; we are seeking an adjournment sine die to work out what course would best be followed to enable a satisfactory hearing that would carry through to hearing next time around. It is more important to do that than to rush on an application in these terms. 19 HIS HONOUR: I am concerned about an adjournment at large in the light of the history of the matter. However, this is not a case in which an order for expedition appears to be appropriate. The proper order is to stand the matter over to the holding list. I will make that order. I will give liberty on three days notice for each party to apply for any interlocutory or procedural orders that need to be made to facilitate the hearing. 20 I make the order that the costs be costs in the cause. **********