New South Wales Crime Commission v Dinh [2017] NSWSC 1305

Supreme Court New South Wales

Medium Neutral Citation: New South Wales Crime Commission v Dinh [2017] NSWSC 1305 Hearing dates: 18 August and 18 September 2017 Date of orders: 18 September 2017 Decision date: 27 September 2017 Jurisdiction: Common Law Before: Walton J Decision: On 18 September 2017, the Court found that, on the evidence before the Court, the Commission had established that a restraining order should be made under s 10A and ancillary orders be made under 12(1) of the Act, in the terms of the application before the Court. Orders were made accordingly. Catchwords: CRIMINAL PROCEDURE – Criminal Assets Recovery Act 1990 (NSW) – proceeds of crime – scope of s 10A(5)(a) – restraining orders – ancillary orders – ex parte – orders made Legislation Cited: Corporations Act 2001 (Cth) Crimes Act 1900 (NSW) Crimes Legislation Amendment (Gangs) Bill 2006 (NSW) Criminal Assets Recovery Act 1990 (NSW) Drug Misuse and Trafficking Act 1985 (NSW) Interpretation Act 1987 (NSW) Uniform Civil Procedure Rules 2005 (NSW) Category: Principal judgment Parties: New South Wales Crime Commission (Plaintiff) Stephen Toan Dinh (Defendant) Representation: Counsel: Mr I D Temby QC (Plaintiff)

Solicitors: New South Wales Crime Commission (Plaintiff) File Number(s): 2017/252171

reasons for Judgment 1. This matter concerns an application for orders by the New South Wales Crime Commission ("the Commission") pursuant to ss 10A and 12(1) of the Criminal Assets Recovery Act 1990 (NSW) ("the Act"). 2. Section 10A of the Act enables an application to be made for a restraining order. Section 12 permits the Court, when making a restraining order, to make any ancillary orders that the Court considers appropriate. These orders may include, as sought in the present matter, an order for the examination under oath of the owner of an interest in property that is subject to the restraining order. 3. The application is supported by a statement of facts and circumstances pursuant to r 1.26 of the Uniform Civil Procedure Rules 2005 (NSW) and an affidavit of Jonathon Lee Spark sworn on 14 August 2017. Mr Spark, who is an Executive Director (Financial Investigations) of and a financial investigator with the Commission, deposed that he is an authorised officer as defined in s 4(1) of the Act and suspected that the defendant, Stephen Toan Dinh, had participated in a criminal group contributing to the occurrence of criminal activity contrary to s 93T of the Crimes Act 1900 (NSW). It was contended that the defendant had thereby engaged in a serious crime related activity for the purpose of s 10A(5)(a)(i) of the Act.